Thursday, November 26, 2009
I've just returned from travelling to Chicago for our daughter's engagement party and I'll admit it, I am one of those travellers who enjoys talking to strangers. I find that because of the temporary nature of their acquaintance, you can often learn more about their lives than they would share with their most intimate friends. On the way back to the airport, I was (affectionately at least) teasing my 82 year old mother, who, by that time, was getting on everybody's nerves. The woman seated across from us smiled and said, "that puts a good perspective on my weekend". She had, we soon learned, been in Chicago to bury her mother, who died suddenly. She learned of the death not from her estranged brother (who lived there), but from a cousin, who posted it on "Facebook". On the trip home, I sat beside a woman about my age who told me she'd have help making Thanksgiving dinner this year from her son, who was attending culinary school. I learned later that he had dropped out of High School after his parents spent $48,000. in rehab therapy, and that she was struggling with her husband to persuade him to allow him to stay in the family home after he turns 18 next month.
In the mediations over which I preside, I hear so many personal stories of strangers. They are grateful to have someone who will objectively hear them out. What did I do wrong to deserve to be fired from my job? Why didn't he appreciate the loyalty and energy I put into building his business over so many years? Why didn't they like me on the floor of the hospital where I worked? Why didn't they understand that I just needed some more time to heal? Why didn't they know how badly I was hurting? Why didn't they apologize?
The stories and small acts of kindness of strangers can make so much difference. Listening to the stories and reflecting on the little acts which make a life can be so important. On this Thanksgiving morning, I am so grateful to have these opportunities--large and small to provide perspective, levity, hope and friendship to strangers among us. Happy Thanksgiving to one and all.
Sunday, November 15, 2009
Both the mediation and legal communities in California are abuzz about the Court of Appeals decision in Cassel v. Superior Court (Cal. App. 2 Dist. November 12, 2009)which held that attorney client communications are not protected from becoming evidence when they take place at mediation if the mediator isn't in the room at the time of the communication. Apparently, a well respected lawfirm, Wasserman, Camden and Comden, strongly urged it's client, Mr. Cassel, to accept a $1 million settlement during a private meeting at the mediation. Mr. Cassel agreed and the settlement was drawn up. Now Mr. Cassel is claiming his lawyers coerced him into the settlment and in doing so, breached their fiduciary duty to him. Not only does he seek to unravel the settlement, but seeks additional damages from his attorneys. The Court created a judicial exception to the confidentiality statue where the communication was solely between lawyer and client. Lesson? Lawyer beware. Never let the mediator out of your sight lest your advice, if accepted, maybe subject to later challenges. And your settlement may be unenforceable. Sounds like a good deal for mediators, and a raw deal for mediation confidentiality. Lots to think about on this one.
Sunday, November 8, 2009
Yesterday I attended the Southern California Mediation Association's 21st Annual Conference. The piece by Professor/Dean Peter Robinson of The Straus Institute of Dispute Resolution at Pepperdine University really caused me to examine my practice. Although the talk was billed as "Ethics for Mediators", Professor Robinson provoked us to question whether mediator's have a heightened duty to make sure that whatever agreements we "broker" have legitimacy, integrity and meet legal standards. The legal standards would, of course, include only those agreements which were not entered under duress or coercion, were based upon informed consent and entered into by a person of sound mind and capacity. Robinson suggests that this is all the more important because if a party enters into an agreement in the context of mediation, he or she can never establish that the agreement was unfair and therefore set it aside later. Hmmm...This puts a burden upon the lawyer mediator that I'm not sure I'm willing to accept. I was pretty satisfied being staunchly "impartial" and allowing the parties to exercise their self determination. And yet....It's noteworthy to point out that there are Model Standards for Mediators, which are a little different from those adopted here in California, that require both self-determination and fairness. Occasionally, these contradict one another. I have frequently presided over mediations in which I believed that one side was getting an unfair "deal"--but did not intervene to re-balance the terms of a deal which both sides agreed to enter into. While I routinely "test" whether there is money left on the table, for example, I typically refrain from interfering in a negotiation which seems to me to be imbalanced. I assume that each party, always acting through their attorneys in my case, have their own reasons for doing what they are about to do--even if it doesn't make sense to me. There is something driving them to reach the deal that they strike--and I'm generally satisfied that I need not safeguard the "outcome", just the fairness of the process. Robinson's lecture suggests otherwise. I'm still examining...