Wednesday, December 31, 2008

On Reflection

I always make a point to do some self reflection at the New Year. This year, I noted in a Journal I've been keeping for my children since 1993 that American's have seen the best of times and the worst of times. I believe that the election of Barack Obama will be an indelible memory for my children and for me forever. Being Jewish, and the Aunt of seven children of mixed races (in two different generations), I am thrilled that our nation has progressed to a point of electing a leader who seems most fit for the job, irrespective of his ethnicity. Being a lawyer who fancies herself somewhat intellectual, I am equally thrilled to have elected a man who is articulate, thoughtful and believes in diplomacy and dialogue, too.

And then it was the worst of times: we watched the value of life savings plummet with the Dow Jones, and watched respected and even elected leaders fall to disgrace and corruption. We braced ourselves for another and deeper recession or depression and wondered how we'd keep the kids in college.

And yet, when I look in the mirror, I feel success and triumph, hope and courage. As I said in the journal, we've got love, we've got our health and we've got hope for the future.

It occurs to me that what I do in mediation is much the same: I help the parties evaluate the facts, apply the law when necessary, and then do a little self-reflection/perspective taking to look towards a better future. I ask them to look to that future with hope and courage. It's surprising what an optimistic outlook can do.

And so I invite you to join me in that glance--inward and then forward. Auld Lang Syne aside, I try not to look back...but to march looking skyward towards a brighter tomorrow.

Sounds a bit trite, but it works. Happy New Year to all and may this be a good year, filled with health and happiness, prosperity and hope.

Friday, December 12, 2008

Personal Conscience Meets Mediator's Ethics

I delivered a Continuing Education Lecture this week on "The Ethics of Negotiation". As always, I learned a lot from my audience, an impressive group of lawyers with an age range from mid-20's to late 50's. I struggled with the message to deliver because my research allows for a considerable amount of deceit in negotiations, which I've come to expect and accept. But this week, I was on alert for these deceptive strategies when I negotiated a transaction which I felt slightly morally reprehensible, or maybe just unfair. Without revealing any of the facts, the case involved an elderly woman who was evidently wealthy enough and sufficiently uncomfortable about the lawsuit against her to offer more money than a Plaintiff would have normally expected based upon the particular set of facts and legal obstacles involved. I brokered a deal where all were satisfied, or even delighted, but it had a certain thud in my own instinctive gut after it was over.

Does the mediator's personal conscience matter? My conclusion was it does not. If I can't step back and allow the parties to craft a deal in which all parties are comfortable, than my only move should be to withdraw or recuse in advance. I have done that on only one occasion when the factual scenario struck me as not only unfair, but echoed a personal experience with a lawsuit on similar grounds. Otherwise, I'm left to conclude that the mediator's personal conscience has to be checked at the conference door. That's why each party is represented by a lawyer, and I'm delighted to give them the responsibility of both evaluation and conscience over the results of their actions.