Meet M. Laurie Murphy

HIGHLIGHTING THE 97% OF LITIGATORS WINNING CASES WITHOUT GOING TO TRIAL

INTRODUCING M. LAURIE MURPHY, Principal, Valensi, Rose, PLC

Jan: Laurie, give me some background about your experience.
Laurie: I’ve been a litigator with the same firm since 1989. my undergraduate degree is in civil engineering in which I also have a masters degree. Before going to law school, I was a civil engineer, but I went to law at night school a couple of years later. I have always maintained an interest in real estate and construction.

Jan: Can you give me an example of a case in which you were able to avoid a trial and still get a great result for your client?
Laurie: Yes. Recently, I represented a partner in a real estate venture where the two parties were disputing over the acquisition, construction and carrying costs of a multi-million dollar home that they were building as their primary residence. They invested in the property together after a long term romantic relationship. Unfortunately, they broke up right after the construction of the home was completed. Even more unfortunate, the original agreement between them did not include a mediation clause and in view of the huge financial stake as well as the highly emotional nature of this dispute, we couldn’t get the matter settled for quite a while.

Jan: What was the strategy you took to get the matter settled?
Laurie: I tried to get the parties to mediate before the lawsuit was filed, but the attorney for my client’s former partner refused. He filed a lawsuit instead and he was not approachable so we really didn’t talk about settlement for the rest of the time that he was representing the Plaintiff. After he was substituted out and a new attorney was brought in, we participated in a Court ordered mediation but unfortunately that failed.

The issues were complicated and although we participated in a full day private mediation before a retired Judge, both sides left disappointed because it felt like the Mediator didn’t want to “get down in the trenches” and really dig into the accounting issues as well as the legal ones. Although the mediation didn’t result in a settlement, we were able to keep the lines of communication going between counsel thereafter. He’s a reasonable guy and I’m also reasonable, so we kept talking and meeting and narrowing the issues. We had several meetings and lots of emails back and forth including getting our accounting experts involved in an effort to narrow the issues and minimize the prolonged pain of the litigation.

Following the mediation hearing, and with the court’s indulgence, we agreed to stay formal discovery and obtained stipulated continuances for both trial and motion dates. As mentioned, we met informally with the parties present as well as our experts to discuss the issues. With an attorneys fees provision, we all knew there were huge financial as well as emotional obstacles to settlement, but both sides wanted “stop the bleeding”. Their personal lives were being impacted by the time and energy as well as financial resources they were committing to resolve this dispute and it was clear that both of them wanted to move on.

Jan: How did you or your client come up with the “Winning” idea that lead to the settlement?
Laurie: There was an apparent and painful logjam between our clients and opposing counsel and I knew that both of our clients wanted help out of it. When opposing counsel and I met with our clients the last time, we came up with an idea to make a “joint counsels' proposal” (akin to a mediator’s proposal) which both of us considered to be a fair compromise. I can't recall ever having done this before, but both of us thought it might work and we felt we understood the issues better by now than the mediator had at the hearing. The issues were complicated and somewhat diverse, but instead of further polarizing the parties, counsel and I came up with a comprehensive list of terms the major one being a method to jointly market the property.

Jan: Why was it so effective?
Laurie: The initial “joint counsel proposal” ultimately lead to a meeting between the clients only. They finally had a good starting point to tweak the terms of the joint proposal until they reached an agreement on all of the various terms. When they circled back to us, we added a proposal that an arbitrator be appointed to resolve future controversies on very short notice if necessary while the parties were marketing the property. This gave both sides the comfort necessary to go forward with the deal despite the uncertainty that is ever present in real estate sales. Though there is still a fair amount of distrust between the parties, because counsel and I worked together to come up with a creative but fair proposal, the parties felt they were protected and could move forward.

Jan: What was the turning point that allowed the case to settle and avoid a trial?

Laurie: this was a case that should never have been filed in the first place but unfortunately one does not get to choose opposing counsel. And again unfortunately a lot of time and money was wasted during the time he was in the picture. But, once prior counsel substituted out and a new, more rational counsel was brought on board, after our first conversation, I knew I could develop a line of communication upon which I could build. It took several meetings and some mutual trust in one another to get to the proposal. Also, the fact that the Court was willing to continue our trial and agree with the stay of discovery really helped us focus on settling instead of posturing the case for trial. In actuality, it was very pragmatic—just unusual. Also, I have to say that our mutual disappointment with the outcome of the mediation lead us to thinking about creative ways that we could step in as counsel to mediate the dispute in some workable way. I really didn’t know if it would be accepted by the clients, but they did agree to our proposal ultimately.

Jan: Was there an “aha” moment that resulted from avoiding trial and settling the case?

Laurie: Listen, my client is a wealthy individual who does not litigate for a living who has plenty of other businesses, hobbies and interests and who was anxious to get on with life.
Jan: Laurie: You are litigating like crazy. What to you do for fun?
Laurie: I'm a horse fanatic. I have two dressage horses. I take lessons on them every weekend and compete from time to time.

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.

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.

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.

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.

The Wisdom of My Mentors

I attended the SCMA Fall Conference yesterday for my 9th year. I'll confess that I was less than enthusiastic because for the first time in the past 5 or 6 years, I was neither presenting nor chairing the conference. But my expectations were so far exceeded. From the beginning of the day, with a moment of memory of Richard Millen, to the awe inspiring work of my friends, Laurel Kaufer and Doug Noll at "Prisons of Peace", the day was devoted not merely to developing "The Business of Mediation" as the theme suggested, but to getting to the business of mediating in every way we are called upon to do. This year's honorees, Woody Mosten and Lee Jay Berman have both been mentors and icons for me in developing my own practice and they didn't disappoint in their keynote addresses yesterday. Woody provided the constant (but often much needed) reminder than our approach to marketing needs to rely upon our approach to mediation: listen to our clients and referral sources, inquire about their needs, bring peace (not sales) into every conversation at every opportunity. Woody has privately counseled me on many occasions in this new venture: model the behavior that people want in a mediator and they will hire you if you are trustworthy, demonstrate genuine integrity and can bring peace into every room you enter.
Lee Jay did a dynamite presentation on "Closing" the Deal. Lee Jay is, I have found, a chameleon in that he presents himself as just so put together he could be called "slick", and yet is so very thoughtful, deep-thinking, insightful, that it's a consistently welcome surprise. He taught me a few new great tools for closing, and what's more, demonstrated his humanity, his humility and all of the reasons why so many in our community look up to him as mentor, teacher, friend.

I also learned a great deal of things to consider, as solid, reliable business habits, from my friends and colleagues, Ralph Williams, Nikki Tolt and Len Levy. They are those special people in my professional life who have taken me in as a fledgling "newbie" and given me the guideposts and reassurance that if I work at this, and want to succeed, and stay the course, I will become that successful mediator who can make this my life's work.

I am so grateful for those who have given me so much advice over these years. And so proud to reflect that I have followed their advice and am still a part of this mediation community after 9 years. With both enthusiasm and gratitude!

Kudos to SCMA, Phyllis Pollack President, Kendall Reed, Chair and to my friends, Laurel Kaufer, Ralph Williams, Nikki Tolt and Len Levy and my mentors, Woody Mosten and Lee Jay Berman for an inspirational conference. It will not soon be forgotten!

The Unsung Mediators of Nashville

I just returned from Nashville, Tennessee for the International Academy of Mediator's Conference. What a fabulous experience! We heard music everywhere with the most compelling, engaging lyrics anywhere. We saw amazing artwork in the botanical gardens by the Glass Artist, Chihuly and an Impressionist Exhibit at The Frist Museum. And we heard original music performed at The Bluebird Cafe, the Honky Tonks and by Alex Harvey, writer of "Delta Dawn" and Sammi Moore (beautiful young artist with a soul that belies her tender years). We heard from W. J. Michael Cody, the Attorney hired to represent Martin Luther King in Memphis the day before his assassination and heard his famous "I have a Dream" speech about growing up White and Southern and the beginnings of the civil rights movement there. He introduced us to one of our own members, George Brown, who was the First African-American in history to be appointed to the Tennessee Supreme Court and who partnered with Cody to bring pro bono legal services to the African-American community in Memphis as a young lawyer. From beginning to end, this was a conference, an experience, a memory to last a lifetime and I am so grateful and humbled to have participated.

Wedding Planning: The Ultimate Exercise in Mediation

After a 14 month engagement, our little girl got married last weekend to a wonderful young man. During that time, we both came to learn about ourselves and one another in ways that no other exercise in parenting has served to do. For instance, I learned that I am a natural-born skeptic. I need to interview several vendors before I decide that even the first one was the best. She, on the other hand, is self-reliant and determined. If she liked the photographer, she didn't need to interview any others. I second guessed every detail--wanting to make sure it was the best, most attractive, best deal. She knew the look she wanted for the wedding and went for it. About the only thing we didn't disagree about was the groom: he is great and both of us knew it. So I wanted to share a bit of triumph. It all went perfectly. And a survival story of overcoming an unnecessary, but long term underlying conflict in undertaking planning of a perfect day, together with my now adult daughter. After that, my "work" seems like, excuse the pun, a "cake walk".

Steering from the Back of the Boat

Today's New York Times Business Section had an interesting interview of Anne Berkowitch, co-founder and Chief Executive of "SelectMinds", a social networking company in Manhattan. She talked about the keys to effective leadership and listed the most important as "being able to listen to people." She analogized to "steering from the back of the boat" as opposed to being the military general in front of the troops and the first one rushing into battle. As many of my readers know, my husband and I are avid sailors, so the metaphor really struck me as to the reason mediation can be so effective. The mediator is trained to do exactly as Berkowitch advocates. We bring together a group of people, get the best of them and get them wanting to work as a unit toward some goal post (settlement/resolution of their conflict). We listen to them, trying to understand what really motivates them (or is driving the conflict) and then get them to push themselves beyond their comfort zones. As I go off to relax on the boat this holiday weekend, I will be so happy to carry the metaphor into my week as the key to successful settlements of dispute. I wish you fair winds and smooth sailing!

Condoleeza Rice and Renewed Faith in the Future of America

Last night I attended the Southern California Chapter's Association of Corporate Counsel Association's Annual Event. I'll be honest, I did not expect to be "wowed" by the keynote speaker, Condoleeza Rice after hearing Bill Clinton speak at last year's event. But wowed I was. Rice is articulate, insightful, charming, honest and, in ways I never appreciated as she worked under President Bush, a brilliant thinker. She restored my faith in America, which my readers know was a bit shaken after last week's visit to Alberta. She reminded us that America was founded upon the "myth of the log cabin" and that she was proof that "it doesn't matter where you come from, it matters where you're going". She gave a few good lessons in leadership, my favorite of which was: "I'd rather be naive than cynical, because cynical people can't lead." She reminded us that this country was built by and enhanced by holding promise that the best and the brightest from all over the world could rise to their full potential here. She sees the wisdom and value in education for our children that includes a central place for the arts and despairs that the new global economic leader, if the historic American capitalism loses it's edge, will be replaced by the worst of America if we don't begin to address critical issues including immigration (which she seems to support in accord with the old plan developed by McCain and Kennedy under Bush), education and poverty. She set the audience on edge with respect to the threat by nations that are politically unstable, such as Iran and now Mexico, where the titular authority is unable to control a militant minority and where the government itself is subject to mis-dealings in ways that enhance rather than protect against the instability. As a former student of International Relations, I found her talk fascinating. I haven't yet found the thread which binds this to the work of a mediator--but I'm pretty sure it's there--perhaps sewn into the lining or between those logs, holding us all together.

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".

Insightful Closings

Los Angeles lost a great friend and "Granddaddy of Mediation", Richard Millen, last week. I had the good privilege of knowing Richard well, as he had a seat on the Board of the Southern California Mediation Association "in perpetuity" during my term as President there and we sat together on the State Bar's ADR Committee. If I could capture his philosophy in a very few words, he was a defender of the process of mediation as an essentially human prospect. He was, although a lawyer himself, quite opposed to the legalistic (or commercial) approach to human conflict. So it was with great interest that I attended the International Academy of Mediator's Conference in Salt Lake City where four highly regarded commercial mediator's from London, England to Cleveland, Ohio to Northern and Southern California, revealed their most "insightful closings". All of them involved human conflict which took self-confident and highly competent lawyers taking a step back to allow their clients to truly express themselves in the heartbreak they'd suffered in order to resolve both the emotional and the financial issues that stood between them. I'll give Richard Millen's legacy the credit for shining a light on the "mediation" of the two strains of conflict within our own community: it's okay to "Show me the Money" if you can also meet the human needs by addressing the emotional factors in mediation. Thanks, Richard, and rest in peace. Your legacy will live on.

Lessons for Mediators from Corporate Leadership

I was always a bossy little girl. So it was with great interest that I read an interview in this morning's New York Times of Susan Doeherty, who leads the United States Sales, service and marketing of General Motors. Her natural demeanor was instructive for me as a mediator in these ways. First, she recognized that communication is essential. "It needs to be simple. It needs to be consistent. And even when you're tired of what the message is, you need to do it again and again, because everybody comes to the table with a different perspective and a different experience"..."On some very key things, people need to internalize it, and they need to own it." Second, she says, "The best way to counteract coming across as being bossy would be to ask others what they thought." Third, she sits in a different chair at each meeting, to keep her meetings "dynamic". If it's good enough for GM, it's good enough for me. These are, in fact, essential lessons for mediation. And by the way, does anyone remember a male CEO being criticized for being "bossy"?

The Stories We Tell

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.

The Beer Summit

Here's to President Obama and his brave and wise staff who understood the power of mediation this week as he invited the Harvard Professor to confront and discuss his arrest with the Cambridge Police Chief at the White House. There were so many mediator techniques brewing that afternoon, that I wanted to take a moment to reflect on them. First, there was an invitation for dialogue. There were no guarantees that there would be a particular outcome, but in the heat of the conflict, somebody had the wisdom to bring the conflicting parties together for the purpose of discussing their different perspectives and exploring options for improving the relations between African Americans and Police in America in the future. Second, there was a "third sider" present: not necessarily Obama, who actually took sides when he called the Cambridge Police Officer's conduct "stupid", but Joe Biden--who had no dog in the fight. (You'll notice that Biden did not drink alcoholic beer. Interesting, but maybe not coincidental.) Third, there was a balance: two African-American Harvard trained participants would not have achieved the level of impartiality that a true mediation would require as against a single, Caucasian (probably not Harvard trained, Ivy league, elite?) Police Officer. Although a mediator need not be a separate race from the disputants, in this case, the commonality of Obama with one of the disputants would likely have raised eyebrows had he been alone to face the Police Officer after calling his conduct "stupid" in a press conference. Fourth, they offered confidentiality: although the Press was invited to take the initial irresistible photos, they were expressly excluded from the dialogue itself. The parties were then at liberty to express their interests and perspective without risking losing face or conceding anything concrete. Finally, informality: have you seen other photos of such an informal meeting with the President of the United States? Obama was in shirt sleeves, without jacket or tie, at a table on the lawn. The table was round (not a true "summit") and the dialogue was not recorded. All of this facilitated the true dialogue that perhaps will begin or advance the discussion of racism in America. Bravo for the mediators!

The Mediator's Perspective: Taking Time Out

I had a tough week this week. I presided over two particularly challenging and emotional disputes: issues of betrayal, interpersonal trust and respect, dashed hopes, lost profits, desperate measures and counsel who were not always in control of the perspective they needed to help resolve the conflict.

As we do on most weekends during summer, yesterday, we took our sailboat, "Time Out" out to sea for several hours with old friends for several hours. Watching the extraordinary surf hit the beaches of Southern California was so much the medicine I needed, that we ended up staying the night in the Marina.

When I arrived home this morning, my sons told me of the news of Lily Burk's apparent murder on Skid Row at age 17. Our children attended the same School as Lily. Her mom is a lawyer and adjunct faculty at a local law school. The news was nothing less than shocking, deeply disturbing and all too close. Though we didn't know her or her family, at a memorial service for a classmate's Dad today, I spoke with one of the teachers from Oakwood, who expressed his profound grief and loss. Seeing Mickey Morgan that profoundly lost, I'm imagining that this event will forever change the Oakwood community: it will take a long time to restore that hope and optimism that gives the school that "anything is possible" attitude. Simply stated, it made my "tough week" seem trivial by contrast. Even mediator's need lessons in perspective taking, and I'm so sorry that it took this horrible tragedy to wake me up this week.

The Value of a Symbolic Commitment

Our daughter became engaged to be married last night. Although the groom to be has been a steady boyfriend for over two years and we were all pretty certain he was "the one", the symbolic commitment that accompanied the diamond ring on her finger was/is HUGE! It occurred to me that when I mediate cases to a settlement, the signing ritual, the handshake, the acceptance of the "proposal" is more than a mere gesture. It also symbolizes a commitment to conform with the legal constraints that go beyond the casual promise or mutual assumptions. Until our daughter's boyfriend put a ring on her finger last night, his words of commitment could have been interpreted as temporal, happy for the moment, maybe even non-committal. Now, his intent is clear, he's invested in the process, and would have a much harder time reneging on his promise to marry next year than he would without the ring, ritual and public announcement. Next time you're tempted to leave a mediation based upon a handshake, think again. The symbols of commitment to a future agreement can mean a great deal in love and law!

Clinton and Communitarianism

I had the privilege of hearing former President Bill Clinton speak last night at the ACCAmerica Annual Gala (association of Corporate Counsel). I used to consider myself an intellectual, but his address really provoked my thinking. He spoke of "communitarianism", which I thought he'd made up until I did some research this morning. It turns out, that Communitarianism is a philosophy developed by deep thinkers in the 1980's (after I'd left those Ivy covered walls of College life) to reconcile the liberal and conservative thinkers, to unify the nationalists, and to recognize that if we are to move forward globally, we must accept certain basic moral principles (such as children should not have to starve because fate brings them into a nation with limited food and dirty water), and that we share common responsibility (such as addressing global climate changes).

As always, this theoretical construct had major implications in the mediation movement from my perspective. Based in part upon the Asian concepts of harmony, it seeks a balance between extreme positions, for the benefit of all. It is not to say that the philosophy favors proselytizing or converting believers, but rather a gentle, general acceptance that not all conflict must be resolved for coexistence in a world of limited resources and basic, shared, humanitarian values.

My limited research into communitarianism fascinated me and I wanted to share it with you and encourage my community of readers to look into it as a guidepost for the next century.

The Right Approach to Conflict

No matter what your politics, I imagine that you had to be inspired by today's inauguration. The piece that I heard from our new President that's resonating with me as mediator was this: "To our enemies: We will extend a hand, if you will unclench a fist." The idea of beginning a Presidential term (or any negotiation) with an outstretched hand, and by encouraging the opposing parties to do the same, struck me as rather brilliant. How difficult is it to begin a mediation with a handshake instead of a wagging finger, or a vigorous shake of the head? We're undoubtedly off to a great start and this is good advice that extends beyond grand diplomatic efforts to everyday litigated disputes. There is much to be learned from President Obama. A man of mixed heritage (Kenyan and Kansan) has instincts that allow him to adapt to inherent conflict and feel comfortable--through a simple outstretched hand, and an adaptable nature. Like a chameleon, his personal heritage allows him to glimpse varying perspectives and appeal to 88% of Americans! I, for one, have high hopes that the rhetoric will be an inspiration towards more handshakes, true diplomacy and more peaceful times ahead.

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.