Interest Based Negotiation Applied Effectively

Last week I had the privilege of studying with Randolph Lowry, the President of Lipscomb University and one of the founders of both the Straus Institute for Dispute Resolution and the Southern California Mediation Association, an organization of which I am the current President (18 years later!). Lowry co-taught a course on Advanced Mediation Skills with Judge Jack Etheridge, another founder of SIDR, retired Judge from Atlanta, Georgia. To be honest, the course seemed a bit elementary to me at the time. But this week, I had a mediation in which I applied my new-found "interest based negotiation" skills. I have learned from this blog experience, that I need to carefully disguise my facts to protect the confidentiality of the parties. So here's a quick synopsis of my fictional experience.

A mid-50's firefighter is out for his morning jog, when he is struck by a car and badly injured. As a result, he is unable to re-gain use of his right ankle, and accordingly has to accept an early retirement and is completely dependent upon his wife, a pre-school teacher, for basic, daily care. Their future is completely changed. Unfortunately, the driver has an insurance policy that is limited to $15/$30K, leaving them without a remedy that will provide enough funds for both the attorney and medical liens. Here was an instance where mediation was clearly more about the process than the outcome. I faced this bravely and strategically, preparing both sides for what I anticipated would be an emotional joint session. What I discovered, when I probed deeper, was that here was a couple whose life was out of their own control, beginning on the day of the accident. The victim of the accident was accustomed to "taking charge": he would be able to respond to an emergency and literally "put out fires". His wife, for her part, was used to imposing simple, human rules: show up, sit in your seat, wait your turn and speak up when called upon. The absence of the adverse driver from the proceeding infuriated them.

The resolution involved a promise by the insurance carrier to accompany the victim's lawyer to the home of the insured driver. They needed an explanation and proof that he was truly unable to do anything to compensate the victim or his family. This was more about "doing the right thing"--for both the insurance company and the victim and his wife, than about the monetary damages they had the potential to receive. The money was the easy part, but was clearly insufficient to satisfy them. What I learned from Lowry and Etheredge, however, was that the "law" only gives money as a remedy in civil actions. And this couple wanted something different.

This negotiation lasted all day, but resulted in a satisfying process and outcome for the participants and the mediator. Thank you, to Randy Lowry and Jack Etheridge, for giving this mediator the courage to explore the parties interests, even while knowing the positions and ultimate outcome.

California Court of Appeals Affirms Mediation Confidentiality

The Court of Appeals (Second Circuit) issued it's opinion on the Wimsatt v. Kausch writ of mandate and upheld the mediation confidentiality statutes under California Evidence Code Sec. 1119. This was a proud moment for me, because I supported an amicus curiae brief (as President of the Southern California Mediation Association) and was present for the oral argument. In brief, the Plaintiff's were alleging that their own lawyer had committed malpractice by telling the defense counsel in an underlying airplane crash case that the case that he told his own clients was worth $3.5 million had a value closer to $1.5 million. The case was settled at a second mediation for about $1 million. Now, the Plaintiff's wanted to compel the production of the defense counsel's mediation brief and some e-mail communications between the two lawyers that took place the day before the second session of the mediation. The trial court denied the motion for protective order, out of concern that the protection requested might very well shield the plaintiff's former lawyer from claims for perjury as well as breach of fiduciary duty. The Court of Appeal disagreed. They really understood that the policy favoring settlement through frank conversation in a mediation trumped the possible abuses offered to counsel where evidence was prepared for, or in the course of a mediation. The Court did note that this may be unwise or impracticable, leaving the door open for the Supreme Court to act more critically in the case now before them in Simmons v. Ghaderi. Tough decisions, but certainly nice to read in black and white that the Court of Appeals honors the legislative scheme, even against their most solid judgment, to foster mediation as an alternative dispute resolution mechanism that is meaningful and appreciated.

Lessons from Recovery to Mediation

I had an interesting evening this Shabbat at the home of a Prison Rabbi. There, he described the process of "reaching" (with a view towards helping to "uncover" the good self within) of the prison inmates. It occurred to me that in so many instances, a courageous mediator is doing the same "uncovering" process: digging down deep to find the reasons for the behavior that lead to the initial conflict in order to "recover" the relationship or the basis for moving forward in harmony. In looking for an image to depict this thought process, I took a chance and googled "Uncovery"--a term I thought I invented! What I found was a bit of marketing research by Abraham Maslow. I share those here for you: How to Fill Your Customer's Needs


Ever hear of Maslow�s Hierarchy of Needs? If you are trying to uncover the critical information that will motivate potential customers to do business with you, if you are searching for the �meat� in your messaging, you really want to think about what Maslow had to say.

Abraham Maslow didn�t spin out his theories for marketers � he was conceiving an alternative to the more depressing, deterministic psychologies of the day. Maslow presented an optimistic view of human kind: folks are fundamentally focused on growth and love. Violence and other evils appear when basic human needs are not filled. So, for instance, denied a sense of safety, people might engage in violence to defend themselves, but they are not inherently violent.

This seems to me to be germane to both recovery, prison inmates, religion and mediation. In any case, it helps me to consider the pyramid ranging from physiologic needs to self-actualization. From "uncovery" to "recovery".

On Secrets and Blogging

Well, it finally happened. My blog was picked up by google, which was searching for someone (name now confidential!) and lead her to one of my "musings" which apparently revealed far too much of a confidential mediation. Luckily, blogging also carries a "delete" feature--so that entry is now forever zapped away in the stroke of a key. And yet...

Mediation is a solitary, secret society. We hold confidences. We try new and innovative ways to resolve conflict, knowing if it fails (or if it succeeds) it will never be revealed. Even the negotiation is confidential, so that lawyers are not supposed to tell other lawyers what they tried and how it worked in a particular fact pattern. And yet...

But the internet is a different sort of creation. It is mass media writ larger than life! And so it strikes me that the wise mediator may have to keep mum from musing via this blogging tool. And yet...

Perhaps a brief hiatus and re-consideration/reconfiguration might be warranted in this instance. While I'm tempted to reveal my innermost musings in this fashion, perhaps it's ill-advised. And yet...

Making A Life while Earning A Living

This week's Musings involve Congratulations. My daughter, Rachel, graduated from California State University this week and is pursuing a Masters Degree in Special Education. There is a great triumph in graduating a child from College. Hooray for Rachel! My son, Jordan will graduate from Oakwood School (High School) on June 14, 2007. We are very proud of both of them (and our middle son, still in College at University of Wisconsin). So this week, I did some introspection not so much on the practice of mediation, but on the life it offers. The move from practicing litigation to practicing mediation is positively liberating. Although many of my days are long, I don't bear the burden of responsibility for the fate of my clients as I did in law. I don't answer to a Senior Partner, or advocate for positions which I don't believe in because I've been hired to do so. I rarely incur the wrath of an opposing party and am almost never treated with disrespect or disdain. It has taken me several years to get there, but finally I am earning what I earned as a lawyer, but making a life that is oh, so much more satisfying to my soul. And the best part is that I was able to actively participate in watching my children grow up to be such capable, caring, decent adults. That is a life worth living.

Collaborating with Fellow Peacemakers

This week was highlighted by a Quarterly Breakfast hosted by the Western Justice Center Foundation. The WJCF is dedicated to bringing together non-profit organizations whose mission is consistent with their own: finding ways to bring peace and justice to our community. I was thrilled to meet vibrant young spirits there who represent the United Nations' efforts to clean our environment, a nursing care advocate's rights group, a group dedicated to the rights of adolescent mom's, a group repesenting children of incarcerated parents and the Dispute Resolution Services representatives, who perform community mediation through the Los Angeles County Bar Association. Together, these fine individuals and organizations are changing the face of our community--tackling hard issues and helping to repair our broken spirits and uplift our optimistic souls. Bravo! Thanks go to Najeeba Syeed Miller, Director of the WJCF for bringing together this inspiring group and as importantly for sharing the vision originally proffered by Judge Dorothy Nelson, of the United States Court of Appeal, 9th Circuit, who was the Founder of the Western Justice Center Foundation. It is a worthwhile experiment which holds a world of promise for our future!

Authenticity and Angels

This has been an introspective week, colored in large part upon two women mediators who I hardly knew, but touched me deeply. On Tuesday, I heard Linda Meyer speak on "Authenticity" in mediation. Linda urged a group of SCMA members to seek out our true selves and approach every individual with our own humanity. She gave us permission to be "in the room" and a part of the process. She reminded us that settling a case was the easy part of a mediation--but connecting with the parties in conflict was our true art. Then on Thursday my colleague and fellow woman mediator, Holly Spevak succumbed to her battle with cancer. I only met Holly on one occasion, through a mutual friend, Susan Bulfinch. Holly had a website www.spevaklaw.com for her visitors' comments. I spent about 30 minutes yesterday reviewing how this elegant woman had touched lives--from Junior High to her own law students in so many ways. It made me think about the insularity of our business, and about the concomitant far reaching potential we hold. Although many of our clients will only see us once, we have the chance to touch them, to reach them, to connect to them in ways that may change their lives forever. This was clearly Holly's legacy. Happy Mother's Day to my readers (who of course include my own mom!). May the wisdom of our foremother's be forever in the forefront of our minds and hearts.