Sunday, April 25, 2010

Reflections from the Alberta Arbitration and Mediation Society

I was honored to be invited to present two talks at the Alberta Arbitration and Mediation Society's Annual Conference in Edmonton last week. The President, Pat Withers, had heard about my presentation at the ABA Dispute Resolution Section's Conference in 2009 on Ethics and Mediation and was excited to have me do a reprise. In fact, since the time of the initial invitation, I had given the updated version of the talk at this year's ABA Dispute Resolution Section in San Francisco just two weeks before. It was met by a lively, engaged, largely American audience who had much to say about their own ethical dilemmas dealing with American lawyers and their clients in cases ranging from personal injury (that was sometimes exaggerated) to workplace discrimination (that was sometimes dependent upon nuanced evidence that was hard to secure). So it was with somewhat troubling to me to find that the audience of about 50 Albertan mediators could simply not relate to the stories I told of deceitfulness, exaggeration and secrets which lawyers and their clients reveal to mediators on occasion, and we are duty-bound to maintain those as confidential. In short, many members of the audience confided in me afterwards, "this would simply not happen" in Canada. Some of it is institutionalized. For example, there is no such thing, apparently, as civil fraud. Fraud is criminalized and would give rise to terminating the mediation and reporting to a Judge in the event of such behavior. One can imagine, then, how the threat of criminal prosecution may deter the employment of such "tactics" which are so commonly seen in civil disputes in the U.S. Second, citizens have access to good health care at no cost, so there is no incentive to sue a third party (and in fact in cases of "minor injuries" a law against it) in order to afford costly and necessary medical care following an accident. On and on, the examples I gave of ethical dilemmas, some personally experienced and many arising out of published California cases that have tested the duties of confidentiality as against the professional ethics of attorneys appearing in mediations of civil disputes, were, simply stated, unfathomable to my Canadian audience.

As usual, I learned more from my "students" than what I taught. But it particularly heightened my own consciousness about the cultural differences between American attorneys and mediators and our very nearby neighbors. The second workshop I presented was on Breaking Impasse. It dealt with sophisticated models or tools that mediators in the U.S. commonly use to get high stakes cases resolved (including brackets, decision tree analysis and risk analysis as well as mediator's proposals). Once again, these were very "foreign" concepts to the Alberta mediators who were unaccustomed to negotiating over money without committing to a robust opportunity for the parties to collaborate, and resolve through interest-based negotiations with the monetary issues then falling into place without mediator intervention. It's a purist model of mediation in which I was also trained, but admitting to this audience that I rarely use it without the necessity to also get into "the money" through shuttle diplomacy made me feel "unpure".

So it is that this photo--depicting the reflection of Canadian Rockies in the pure, clear Lakes, made me think hard about the value of self reflection, the open vistas just beyond our borders and the American way. More questions than answers, but what a fascinating experience for me and a deep and sincere appreciation to my Albertan friends and colleagues for giving me a chance to do this self-reflection and for listening with open ears and arms to the ethical issues we face here as though they are universal.

Sunday, April 18, 2010

Indecision-Making: Science Helps Explain the Basis for Voluntary Consent

There's an interesting Book Review in this morning's New York Times on "The Art of Choosing" by Sherrna Iyengar. The study is based upon a famous "jam experiment" where shoppers were offered either six different jams to sample or thirty. Surprisingly, although more shoppers stopped by the table with more samples, ten times more sales were made at the table with the limited choices! The new study takes it a step further to look at the role of culture and religion in choice. Her findings reveal that Anglo college students respond most favorably when they have maximal choice, whereas Asian children performed better in response to a cue that they were instructed to do a particular task by their mothers! Significantly (for mediators, I thought), both groups resisted commands that were made by a stranger, third party. Ms. Iyengar's findings also demonstrated that members of more fundamentalist faiths demonstrated more optimism than those without strict belief systems in a higher power. She discounts this finding by reminding readers that the study was conducted in the U.S., where members of a particular faith remain in that system by choice. A provocative study which informs some difficult mediations for me. Too many choices can lead to obstacles instead of opportunities. And finding those options which the parties themselves offer can be much more effective than the mediator's proposal. Liberating and informative!

Sunday, April 11, 2010

Jazz, Synchronicity and Mediation

I attended an outstanding ABA Dispute Resolution Conference in San Francisco last week. There, I heard and saw a wonderful demonstration of a concept called "Synchronicity" by Margaret Aaron and Dwight Golann during a presentation they called "Clientology". They talked about concepts we mediators call "mirroring and modelling" to meet the clients where they are and gently guide them to a place where reasoned decisions can be made about emotional conflict. They talked about delivering bad news with appropriate gravitas, and using the level and tone in our voices, our hands and even our bodies' posture for more than speech.

Today, I enjoyed a terrific jazz concert featuring a high school friend of my son's, Shana Bush, and a trio of musicians (some still in College) performing updated versions of tunes from the 1920's to 1940's. It struck me that the synchronicity I learned is a metaphor for improvisational jazz. The musicians play off one another, hit highs and lows, have a conversation amongst them which, if you're lucky, also touches the audience deeply, movingly, personally. It has the potential of uplifting or evoking the lonely, dark places we try to guard against.

So it is that in my next mediation, I shall take with me the melodies of Shana's jazz with the lessons of clientology. And perhaps with "Angel Eyes" I will accomplish more for my clients than the lyric goes: "All or Nothing at All".