Sunday, January 30, 2011

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!

Monday, January 24, 2011

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.

Sunday, January 16, 2011

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.

Saturday, January 8, 2011

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!