Thinking about the Future of Mediation

I participated in an excellent conference yesterday for the Southern California Mediation Association, "Expanding Horizons, Expanding Opportunities" during which Keynote Speaker, Woody Mosten invited us to consider the state of mediation in 2030. It was an exciting dialogue with ideas ranging from a "Public Mediator" corps, similar to the Public Defender's office to an emergency line, where the first call in case of conflict would be to a local mediator. I was also made to consider that the "Elders" of the future will be those who fought for civil rights in the 60's and may well entertain engaging in more inclusive, collaborative processes than the elders of the last generation. Catching up with lots of colleagues and friends at a spectacular setting out in Malibu made for an invigorating, motivating day. Kudos to SCMA and all of the presenters and planners for an exceptional professional conference. P.S.: If you missed my presentation on Mediation, Ethics, Neutrality and Confidentiality, which I renamed "Dirty Little Secrets", send me an email and I'll fill you in.

The Mediator as "Silent Partner"

There's been chatter lately on a variety of List serve Discussion Groups about how Mediator's can break an impasse and I have to say, I often follow my cases, sometimes daily until that log jam is broken and the case is settled. But I'm left sometimes feeling like I'm too much in the spotlight when I should be behind the camera recording the "scene" instead. For example, in several cases lately I've been asked my opinion about the following strategies while settlement negotiations are pending: how to answer discovery and when to propound it, whether to consult with bankruptcy counsel and when, whether to communicate a particular offer or rejection of a particular demand to the client now or later. Yikes! Although I enjoy the power and the challenge, I'm left questioning whether I'm becoming the Silent Partner for the inquiring counsel and whether that compromises my neutrality and impartiality in getting the matter resolved. Have we evolved to a place where we do whatever it takes to get a matter settled? Is this added value to my (lawyer) clients? Interesting queries without obvious answers.

Leaning In to Conflict

Last evening we spent a magical evening in my sister's Sukkah. This week marks the Jewish harvest festival where it is tradition to share our joy and bounty by inviting strangers to dine with us in impermanent tents or booths, which are decorated with fruits and vines from the season's bounty. Because the tradition is that only one wall may be used, it is often necessary to lean in to engage one another in conversation. It occurs to me that the same is true in mediation. There, the physical "leaning in" can have several beneficial effects. First, by leaning in, you can gently push up against and ultimately penetrate those fictitious walls that have been erected around the person in conflict, literally, breaking down barriers which may have caused or contributed to the conflict at the beginning. Second, you model a sense of equality, rather than authority. For example, an employer may choose to stand, or push his chair back from his desk when confronting an employee, and a Judge usually sits on a podium, elevated from those whom he or she is "Judging". Third, by sitting across from the disputant, you can echo and demonstrate your empathy in your face and body language, so that they can feel truly heard and understood. The result can be magical, just like dining in my sister's Sukkah.

Leading from the Back of the Room

I've taken a few months off from blogging during which I fear I may have become complacent with my own techniques and absorbed in a sense of competence in my mediation efforts. Then today I read about a Business leader who spoke of "leading from the back of the room" and I was struck by the notion that I had risen to the position of leadership where I take a seat which is not rightfully my own. That is an important reminder that I thought I would share. Though mediators may think we know the best way to resolve a particular dispute, leading from the front of the room can be so dangerous. Because at the end of the day, if the parties haven't come to the terms on their own, by their own volition, it may feel forced even though successful. That result is what we expect from the Court. A judge or jury may superimpose their decisions upon the parties. But mediation is supposed to be different. A reminder to lead from the back of the room--instead of the podium where the Judge sits, was really a great message for me.

What It's Ultimately All About

Once in awhile, we all need to take a break from our day jobs to tend to our life's real work. For me, last week's Commencement from Columbia University, and this euphoric image of our youngest son becoming a College Graduate have fulfilled my life's true purpose. The insight for mediation and client's of mediation? Have some perspective. Most of the time the business disputes and litigation we're engaged in pales by comparison to what's really important in life: the health, success and dreams of our children. The Commencement speaker, President Bollinger, spoke of "The Butterfly Effect" and how butterflies flapping their wings independently can affect the environment worldwide. These young graduates, acting in their own communities, countries, businesses and professions, will undoubtedly change the world in which all of us live. I'm proud to have raised three responsible, college educated, decent, smart adults. I'm trusting them to make my world a better place. Judging from the past 27 years, I have complete faith and confidence that they'll do a great job at it!

Mom: The Ultimate Mediation Trainer

There's some debate about whether great mediators are born or made. I say that those of us lucky enough to have Mom's as mediation trainers provide a great model for sound mediation principles. My Mom, Bette, taught me these principles which have guided and eased not only my parenting, but some good instincts which serve me well professionally, too. Here are a few: 1) Be patient. 2) Not all of your wishes will come true. Choose those that are really important to you, and give in on those that aren't. 3) Life is about compromise. You can't win "em all! 4) You are the best and the smartest and the prettiest. But you don't have to tell people that to earn their love or approval. 5) Always be respectful. 6) Develop a curiosity about people. There is something good or interesting in everyone you meet. 7) Creativity counts more than smarts. 8) Put yourself out. People will appreciate it. 9) You get out of life what you put into it. 10) Strive to be fair. If you are fair to others, they will be fair to you. 11) Watch what you eat and take care of your health. That's the only body you'll get. 12) There's a time to speak and a time to remain silent. Sometimes people just need to be listened to. 13) If you really want something, persevere. You'll get it or something else will come along. 14) Be open to new challenges and adventures. 15) Nobody can take away your self esteem but you. Stand up straight! 16) Put value in the stuff that you can't buy: love of family, friends and your good health. The rest doesn't matter.

On this Mother's Day, I appreciate these lessons and want to say "Thanks Mom" and to all of the Mom's who have spent a lifetime teaching by their example in ways that promote peace.

Learning a New Perspective at the ABA Conference

The ABA Conference for the Dispute Resolution Section was inspiring this year. The keynote speaker, Temple Grandin, really made a lot of us "verbal/top down thinkers" think about different perspectives. Dr. Grandin, autistic from birth, has made her name in understanding animals, graphs, numbers, science in ways she describes as only "geeks" can do. She references the thinking of people within the autistic spectrum as "visual" and "bottom up" in contrast to verbal thinkers, whom she describes as "top down". It really made me consider different perspectives and why, despite my eloquent and painstaking efforts to explain theory, principles and justifications, sometimes people mediating before me just don't understand. On the other hand, it highlighted my own limitations as, for example, I cannot understand my own son, a computer science major, or my husband, an architect in their detail-driven thinking which sometimes flies in the face of my own overarching analyses.

In the end, I'm again struck by how much can be learned from people from different disciplines about how better to practice our own.

I was also happy to present (for the 3rd year in a row) a presentation on "Ethics for Mediators" with Kim Taylor, JAMS COO John Sherrill, Seyfarth, Shaw and R. Wayne Thorpe, Chair of the Section, as well as honored to present a story which will be a Chapter in Eric Galton's upcoming book, "The Stories Mediator's Tell".

Solution Focused Conflict Management

I'm reading such an interesting book, "Solution-Focused Conflict Management" by Fredrike Bannink. It occurs to me that there is an interesting dichotomy between the legal system, which is "problem focused" and the conflict resolution business which aims to be "solution-focused". Clients bring their problems to lawyers and they help them to address them by going back and seeking damages from those who have injured them. When they come to the mediator, we can either assist in that endeavor, or meet them where they are and assist in "getting out of the conflict" by changing their future--without any promise or hope of changing their past. Likewise, a client hires a lawyer to take action on their behalf in ways that they have been unable to do on their own. In solution based conflict resolution, the mediator gives the client back the responsibility and competence to make a decision which will affect change of their future. Bannink references a study which states that "a mediator can only mediate in the future tense." What an interesting challenge to mediate without regard to "how you got here" or "what is the problem?" to "how can you make small steps that will help you achieve your future goals?" It makes me see the world of hope and possibilities differently already.

The Power of Tactful Audacity in Mediation and in Life and Death

Yesterday, we laid my brother-in-law to rest at sea. It was a day in which we awakened to warnings that our Southern California Harbor was unsafe to exit due to the erratic seas caused by the Tsunami in Japan. An hour later, we were advised it was now safe, went to sea, only to be informed that we could not return to the slip because the warnings were again alarming and unsafe. We did return to safe harbor and were gratified to greet Tim's closest of friends and family who gathered to pay him tribute in ways he may never have known. He was a quiet spirit with an audacious lust for life, who died much too soon, but not before he left his imprint upon so many people throughout his life. What does this have to do with mediation? In today's New York Times interview of Romil Bahl, President and Chief Executive of PRGX, a data mining firm in Atlanta, Ga. , he talks about "tactful audacity" as a means of passing along a difficult message, which helps clients and trusted partners to evaluate difficult situations. Through collaboration and "leading from the front of the room", the best idea invariably wins. The next time I make an audacious move, from safe harbor to sea to returning to the slip, from challenging difficult clients with audacious ideas, from pushing back, tactfully, instead of clinging to old entrenched ideas, I will think of that day when the Tsunami struck, but we were unbowed, and those beautiful words that came pouring out of the mouths of strangers about the strong, but quiet spirit of a man who left this shore much too soon.

Transcendental Mediation

I had the privilege of listening to a lecture by Ashok Pannikar, from Banglore, India today at the Mediator's Beyond Borders Congress here in Los Angeles. The talk was called, "Why is Joe the Plumber Peeved? Mediating Minority Rights and Majority Fears". It was a kind of "call to action" for mediators and those engaged in large-scale, global dialogue to reexamine our own biases and outdated world views. He reminded us that we are no longer in the 60's, or even the 90's. In fact, we may not be able to change the world, despite our unfailing optimism. Changes in demographics, globalization, a prolonged recession and a generalized loss of identity and increasing alienation and isolation of people everywhere has created an infinite axis of evil where everyone becomes an enemy: outsiders, insiders (think Wall Street/Corporate America), minorities, majorities, rich, poor. All of this depressing analysis lead Pannikar to urge us to strive for transcendence, or the awe that is created where we connect with another in service of something greater than the individual needs or rights. Progress, he said, comes from the tension between what is and what can be. With creativity, competence and effort, we have the capacity to experience, and guide others towards the awe that will be required of us to move to the next level of collaboration. Difficult to distill down to the nitty gritty of litigation, but we can aspire to shift the paradigm. Loved the concepts, the presentation, and being among such inspired speakers and attendees.

The Devil in Mediator's Clothing

I had a rough week. As a mediator, on occasion, instead of feeling like each side's ally, one or the other side chooses to demonize us. This week, it was a landlord and tenant dispute in which I questioned whether an attorney/tenant would be able to prove a renewal of his lease by virtue of an oral agreement, which did not include an assent as to the material terms, including rent and length of the lease extension. I also stuck my neck out and offered that I didn't believe that a jury would be sympathetic to a little girl who had been seeing a "life coach" for a year following an auto accident to help her transition into the first grade. Both lawyers raised their voices at me and treated me as the "She-Devil" incarnate! (I'm pleased to advise that one of these cases has since settled based upon the Devil's Mediation Proposal which followed).

It was so helpful for me to read the interview of Richard D. Fain, Chairman and C.E.O. of Royal Caribbean Cruises today in the New York Times business section for that reason. He talked about his mentor, Jay Pritzker (founder of Hyatt Hotels) who was often his No. 1 antagonist, arguing vociferously against whatever he was proposing. Pritzker, he said, questioned him in a "highly skeptical tone" and even called him crazy. His conclusion was "you learn more by arguing with someone than just agreeing with them I learn more about whether somebody really believes their point of view and has thought it through, and it also helps me clarify in my own mind the direction I'm going."

So the next time one of the attorneys is demonizing me for that kind of skeptical questioning and antagonism, I'll remind myself that I'm actually helping them to clarify whether they believe in their point of view, have thought it through and wish to follow the direction they've started down, or change the course as the result of these "tough questions".

Empowering Women at the Helm

I write from Newport Beach for a weekend aboard "Time Out" where I spent the day yesterday at the Southern California Yachting Association's 22nd Annual Women's Sailing Convention. It was quite a learning experience. Over 150 women, ranging in age from their 20's to their late 70's gathered to teach one another, to empower one another, to encourage one another to take the helm and Captain their own ship. It was a rare opportunity to learn and observe from other women how to not only be competent crew, but to be the one relying upon our own judgment, giving orders to our own (all women) crew, and taking responsibility for our own mistakes. My morning instructor, who taught "docking" gave me some invaluable life advice: if you are going to take the helm, you must be willing to take responsibility for whatever damage you do. If you truly "own" the consequences of your errors, you will find the freedom to make your own mistakes. The lesson for mediation: it's not just about compromise, but sometimes about accepting the responsibility for your actions. In doing that, you may even find that you've been empowered to do great things and small (like reaching safe harbor and enjoying cocktails and the sunset). The other part of the lessons offered was about cruising--which is sailing off shore for extended periods of time. I was fascinated by the number of women who had taken off months or years to circumnavigate and leave the daily grind behind, in exchange for such basic efforts as navigating the wind, the waves and the weather. While it always seemed to me to be a sport reserved for the very wealthy and retired, it is in fact a lifestyle choice that young people and working people make as well. Some are single, some are married, some travel with children and some stop only to see the births of new grandchildren. And I'm brought back to the notion that we can take the helm as long as we are willing to accept the responsibilities of the consequences. Because I handle so many employment disputes, where the employees may not be returned to work until or unless the economy improves and they have been re-trained to return in a different capacity, this too felt empowering. The idea that one could live their life in adventure and beauty of the sea, was also exciting. In the end, it's a new perspective which I had not been realistically considering and which is now within my tool box as a challenge and opportunity. The lesson was not only how to get into the dock, but how to leave the dock behind and safely go with the currents even as they change moment to moment.

Balancing Optimism with Realism

The New York Times article by Sheryl Gay Stolberg, refers to President Obama as "The Cheerleader in Chief" in today's Business Section based upon last week's State of the Union address. As a mediator, I find myself required to do much the same. On the one hand, I am asked to convey an optimism that all conflict can be settled and that the parties can achieve their best possible results at an informal hearing in our offices on the very day set for a mediation hearing. On the other hand, I need to be that realistic "truth sayer" who reminds the parties that the potential exists that the case will not settle, causing a substantial risk to both parties, uncertainty in the outcome and an enormous expense. The article speaks of Obama's first two years being busy with a kind of "triage" of an array of emergencies ranging from an unpopular war to economic crisis. When I hear a mediation, so many times, the parties have been mired in their own discovery disputes, that they are unable to see the potential resolution or "way out". They arrive with a variance of the evaluation of damages and often divergent views of the facts, the law and whether certain evidence will ultimately be developed or admissible to prove their positions.

I particularly loved the example used by Ronald Reagan. He told the story of a boy who got a pile of manure for Christmas and declared, "There must be a pony in there somewhere!" In the end, the article suggests that this is a "trust but verify" moment. I suppose that the parties before me expect no less. A balance I strive to achieve and convey. Even when the parties bring nothing more than manure, an optimistic mediator will help to look for the pony underneath the pile!

It's Never "Just About the Money"

I was inspired at this weekend's Consumer Attorneys Association of Los Angeles' Gala and Installation of Officers. These are the trial lawyers who achieve the biggest verdicts for their clients and yet they spoke not of their financial marks but of their striving for "justice" for their clients. So I got to thinking about whether mediators can acheive justice, or if what we dish out is only money? There's a new show, "Fairly Legal" which depicts a sit-com/drama of a mediator who seems to stick her neck into all types of matters--civil, criminal and even social. Although it's plenty dramatized, it occurs to me that in a broad way (pun slightly intended, but with apologies), she is out for mediating justice--and so far without dealing with any monetary issues. I hope that our profession has not, and will not, ever be so commercialized that people only choose to mediate their disputes when it's "only about the money". We can offer a chance for face to face interaction, for control of the outcome by the clients (not a group of strangers or a "higher power" as a Judge), and compromise. Does justice in Court offer any of those features? I don't think so. It's a different version of justice, one where there is not a clear winner and loser, but nonetheless, not limited to money. I hope in the coming year that I can keep sight of that goal, just as the Trial Lawyer's did on Saturday night: It's never just about the money and we owe our clients that chance to achieve "justice" in our alternative forum as well as in Court when they choose.

New Reasons for Being a Mensch

When we look for the ideal husband for ourselves or our daughters, many have long known that the primary goal is to find a man who is a "mensch". (Pictured are my husband and new son in law--both epitomize the term!). This week, the California Supreme Court reversed an Appellate court decision and upheld confidentiality in mediation, even where it may allow a lawyer to commit malpractice and then shield it from discovery in a subsequent lawsuit. Cassel v. Superior Court, 2011 DJDAR 658 (S178914 filed Jan. 13, 2011). In essence, this creates a heavier burden to "do the right thing", because lawyers and mediators (and their clients) must know that the deals we strike in mediation cannot be later attacked by evidence that the lawyer acted improperly during the proceedings.

This morning's New York Times includes a Book Review of "Practical Wisdom: The Right way to do the Right Thing" by Barry Schwartz and Kenneth Sharpe by Bryan Burrough. Burrough calls the review, "The Spirit of the Mensch" and applies the practical wisdom of the book authors to the practice of law, medicine and business. In today's troubled age, and the weekend celebrating the great peacemaker, Martin Luther King, Jr. as well as the day I am attending a wedding of two young people who strike me as among the most ethical, decent, menschy I know, I can only offer that it is my hope that the Cassel decision will not give a green light for misbehavior, but instead impose a quiet code of "menschleikeit"--encouraging and inspiring lawyers to be their best and highest selves even though they have the cloke of confidentiality at that most critical moment of advising their clients in mediation.

The Ten Plagues

In the spirit of my New Year's Resolutions to broaden and deepen my own intellect, I attended a Torah Study yesterday by Rabbi Steve Leder of Wilshire Boulevard Temple in Los Angeles. We read from this week's Parscha (portion) the familiar story of The Ten Plagues which G-d caused in Egypt when the evil Pharoah stiffened his heart. The sixth Plague was darkness. The commentary about why "darkness" was considered a plague equal to blood, boil, locusts, hail was interesting. The Rabbi's concluded it was because "darkness" would not allow people to see one another's humanity. As I always do, I had to consider how this relates to my work and my role in other people's conflict. My conclusion is that mediator's are trained optimists. We look for the light in the dark canvas of other people's lives. Maybe we are born this way and it's what draws us into this field. Consider the "re-framing" technique: are we not attempting to find the light in an otherwise bleak situation. Particularly in my work in employment mediation, I find myself constantly looking for the opportunity that the lost job, and oftentimes the lump sum settlement creates: can they now put away money to put their children through college, take a long awaited vacation, return to their local community college to re-train and pursue something they have long wanted to learn how to do? Thank you, Rabbi Leder, for leading me to this journey of introspection and helping me make sense of Torah in the context of mediation!