Families in Conflict: A Holiday Super-Challenge!

The holidays present an extra special time of family conflict for so many of us. Children don't grow up expecting this as adults, but as I age I learn that our family is not alone in this dynamic. It's a time when expectations run high and memories deep. Last weekend, I took on an informal mediation between my husband and his mother to see if I could orchestrate a truce or at least change the dynamic between them so that next year may bring a less stressful holiday season. What I am discovering, as I go through the process, is that it takes a super skilled mediator to "self-mediate". While I profess not to take sides in this conflict, and indeed, objectively see both sides of the issues, the very nature of creating the environment (we've decided on neutral territory--neither one's home) and the timing (we've decided on dinner on New Year's Day--instead of Christmas) is a challenge. I'm curious whether any of my readers have attempted self-mediation within the family, or whether I am the only one who belongs to a family who doesn't live life in perfect harmony. Your thoughts and insights are welcome this time. This Christmas, Schau's Mediation Insights need you to contribute! May you be blessed with abiding peace, challenges and triumphs and above all gratitude!

P.S.: For those of you who have noticed, I took a few months "sabbatical" from blogging--having disclosed a few too many details about a mediation which I found challenging...but I'm back! Merry Christmas and a Happy New Year to you all.

Lessons from the China Law Society

I had the privilege of meeting with 19 Delegates from the China Law Society this week. Judges, Lawyers and Business People came together to learn about Mediation principles from my colleague, Nikki Tolt and I. We met at the Southern California Mediation Association's office, which was a bonus because we could then make introductions to Judge Dorothy Nelson, U.S. 9th Circuit Court of Appeals Judge and Najeeba Sayeed-Miller, Director of the Western Justice Center Foundation. It tuns out that Judge Nelson has visited China many times and is even a member of the China Law Society! She provided an extensive (and intimate) tour of the Federal Court of Appeals in Pasadena, and then entertained questions and made a brief presentation in her chambers--complete with fruit juice and chocolate biscuits! Then the delegation was treated to a brief tour and introduction to the Western Justice Foundation. As usual, I learned more from my "students" than they did from me. What I learned was that the Chinese value balance, harmony, perspective, respect, over law, rules, analysis, and business. The principles of mediation are tautologic to them. It is the principles of law that are new and challenging! Ancient Eastern principles seem so novel and creative to our Western culture. Even by the flash of cameras and the response to the presentation of mediation v. the Court house, it was obvious that the Chinese are way ahead of us in the world of mediation!

A Peacemaker's Picnic

Today I attended (alright, I planned...) the Southern California Mediation Association's First Annual Peacemaker's Picnic! It was a great chance to see one another as people in relation to other people who are not necessarily mediators: mothers and daughters, fathers and sons, husbands and wives, even dogs and masters gathered together to enjoy a hot dog, some pretty hiking trails, a great lawn for throwing a frisbee and some fresh, outside air. It was a great chance to see men unshaven, women in T-shirts and shorts, dirty feet and happy children...Often I think we take on so much responsibility to be sober truth-sayers, speakers of other people's truths, bearers of other people's conflict...that we don't take the time to see one another as participants in the human joys of life...like hot dogs and brownies and admiring other people's babies and ill-behaved dogs. Again, it's a matter of living life deliberately: including hard work and relaxation. A fine way to end a weekend!

Taking Time Out to Gain Perspective

I'm writing this from the cockpit of our new sailboat, "Time Out" on Catalina Island. I can't help but reflect on how taking some "time out" to do some perspective taking is such a healthy exercise. It is really why I ask every party mediating before me to come to my office--away from their usual trappings and try for a few hours to gain some perspective on the conflict their enmeshed in. I also had the pleasure of substitute teaching for a class at the Straus Institute for Dispute Resolution this week. Seeing mediation through the eyes of students was another perspective I had not taken the time to experience in quite awhile. Many of the students were also law students and my observation was stunning to me: being in the world of "law" and training to figure out who's right and who's going to win at trial is a real impediment to mediating!

So this week I'm thankful--that I have a chance to gain some perspective now and then...and that I have the blessing of inviting people in conflict to take a much needed "time out" to do the same.

Private Dialogues on Public Issues

While on vacation last week, I saw the Michael Moore's brilliant new documentary, "SIcko". We've all been there: in the place where we've hesitated about getting needed health care until we can figure out what's covered by insurance. So why isn't America discussing this issue? I've decided it's time for mediators to take a crack at it. I've invited an elite corps of commercial and community mediators together in the Fall to begin to promote public dialogue on the health care system in America. I intend to invite elected officials, insurance and hospital owners or at least managers and free clinic directors with a hope that this will begin a respectful process of discussing the issues, better understanding the various perspectives and lending our skill set to the fray with a goal towards initiating needed change. Why do movie producers get to have all of the fun? On another note, over my holiday I read my favorite book of all time, "A Thousand Splended Suns", by Khaled Hosseini. As agitated as I was after watching "SIcko", Hosseini's book made me feel darn lucky to have been born in America, raised my children in a land that valued personal freedom, and generally followed a code of law with which I could abide. If you have a summer vacation planned, I highly recommend you read it. It's haunting, but ultimately gratifying and beautifully written. The story takes place in more or less modern day Afghanistan, beginning in the 1970's. It is the story of two women's lives, how they intertwine and are affected by the political events over the past thirty years. It is written by the author of "The KiteRunner", which was also a fabulous read. Hosseini was born in Kabul, but has been in the United States since 1980. Bravo for bringing these stories to life and bringing these hard topics to American readers!

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.