The Value of A Professional Study Group

Over the past couple of weeks, I've attended a couple of different study groups that have really enhanced my practice in small and large ways. The first, hosted by my colleague, Wendy Kramer through the Southern California Mediation Association, was a group of about a dozen mediators. We considered a difficult personality and a bind that one of our members had experienced in a mediation that had not yet been completed. The very next day, I found myself in a quandary about an issue of finalizing a settlement. I called Wendy and suggested the topic for our next monthly meeting. It was a great relief to be able to take that matter off my shoulders, anticipating wisdom, validation or consolation within a matter of weeks from some of my esteemed contemporaries. This past week, I attended an informal gathering of about 17 mediators and a few other professionals, at the home of my friend, Laurel Kaufer. There, we were guided in the art of the story by Stacie Chaiken, about whom I have previously posted (see the Blog about storytelling). I think Stacie has a certain dynamic genius, but more than that, it was again a rich opportunity to take our thinking and practice to a higher level, and our friendships to a deeper one. We all spend plenty of time attending events where clients or potential clients are, but often ignore our inner needs to enrich and unload our own triumphs and challenges amongst a group of professionals who understand them. It may not be a coincidence that the only images I could find on Google to depict study groups were Church groups. So my conclusion is that these groups have the potential, perhaps even promise, of restoring a mediator's soul. The redemption offered by your colleagues' validation or simple understanding is unrivaled. I am grateful to have become a part of each of these groups and urge you to begin one in your town or join in on an existing one. For your sake!

Mediator Ethics

It's an interesting thing, mediator ethics. I know that many mediators, particularly those that had a stint as Judges in prior lives, advise the parties before them that they will beat up on each side until they get a settlement. I, on the other hand, tend to prefer to cast the whole event in a more positive light, by letting the parties know I'm there to partner with them to get the best deal--while telling the same to the other side. In the end, we achieve the same result: a settlement that both parties can live with. But what I hope to achieve is a settlement in which both parties are satisfied, whereas those that take the "beating up" approach tend to go after the settlement where both parties are equally unhappy. Is that a violation of my mediators ethics? I attended a training this week with the LA Superior Court in which the Judge very plainly cautioned that we must never allow a litigant to have reason to believe we are biased towards (or against) them. Yet I know it is common practice in our community for mediators to treat clients to meals, sporting events and concerts. Even a bottle of wine or cigar at the conclusion of a settlement is not unheard of! So are our ethical constraints different than a Judges? And if so, is it time for us to revisit them? I'm still considering this one...with no answers this week, only questions.

Cinema as Philosopher

This week's insight comes from last night's movie. We saw the Coen Brother's Excellent new film, "No Country for Old Men". In it, Javier Bardem does a phenomenal job of playing an intense, recalcitrant, violent, mad man out for drugs and money. Tommy Lee Jones, whose role is introspective, thoughtful and restrained, having spent his career seeking law, order, calm and peace, at one point makes the keen observation: "Sometimes you just can't solve every dispute. In those cases, the best you can do is put a tourniquet on the wound and let it go."

I won't spoil the movie for you, because I do highly recommend it...but there was certainly a metaphoric lesson for mediators there. It particularly struck me because a case I tried to mediate was "settled" this week by the court granting a Motion for Summary Judgment. Whereas I had an offer of a "tourniquet" (far below the actual medical specials, but at least a gesture of good faith by a defendant who earnestly believed it had no legal exposure), the parties chose instead to try to solve the dispute by taking their best shot before a Judge. Amongst "old men" perhaps, there are enough ups and downs that this particular case didn't strike as hard as it did for the minor Plaintiff and his family...but for me, the two were inextricably related and ultimately made me appreciate the philosophy of the cinema in order to put things into perspective.

THE POWER OF STORY IN MEDIATION

A couple of weeks ago, I had an interesting meeting with an actor who is interested in Storytelling as a tool for mediators. Last weekend, I accepted her challenge to write out a two page "story" of my own history. It was a self-reflection in which I rarely indulge.

Over the past two decades, I have succeeded in maintaining a home and marriage, and, together with my high school boyfriend, and husband of almost thirty years, raised three extremely competent, wonderful human offspring. So it was not so easy for me to look inwards at my own professional accomplishments for this purpose and to put them into a publishable perspective. My surprise, however, was not from the story, but from how powerfully the exercise itself has affected me. Somehow, putting the "story" into writing has given it a loud voice in my head and on my computer. I've yet to share it with anyone, but still can't put it away. I can only imagine how powerful such a tool could be in a difficult, personal and emotion-laden mediation!

In the meanwhile, I read an interesting account of a gentleman who is engaged in just such a process with prison inmates. By giving them the tools and space to write their own accounts, he can set them free to atone, to revise and edit, to grow and to earn peace within and outside the prison walls. It is an awesome tool and if she'll allow me to do so, I shall gladly reveal the individual who has inspired me after a more formal gathering we have planned in early February. In the meanwhile, I encourage you to give storytelling a try. Begin with your own story and see if it has the same effect on you that I have shared here. I'd love to get your feedback!

What's Behind the Conflict?

I had an opportunity to deliver a lecture on "Looking at Substance Abuse through a Different Lens: The impact of Drug and Alcohol Use on Legal Practice" this week. In preparation, I did considerable research on the subject. What I found, to my surprise, was that alcohol and drug abuse seemed to be a recurring, but always unstated theme as the driver of conflict and the impediment to resolution in many of the cases I've heard. Living and working in a large, metropolitan, expensive and competitive place like Los Angeles, I've seen evidence of substance abuse in business, real estate construction, employment and personal injury cases. It's no surprise, since the statistics suggest that abusers are generally both more aggressive and less likely to accept blame or responsibility for their own actions. Those that have access to attorneys to fight their battles consequently become regular clients in litigation. Whether the conduct is driven by substance abuse, or the litigation is confounded by it, mediator's and lawyers would be well advised to routinely investigate whether substance abuse plays into the conflict they're asked to resolve. The next time you have an inexplicable or intractable conflict, think about it through the lens of a drug abuser or alcoholic and see if that doesn't help you to understand why, for example, the story keeps changing, the recollection of facts has so faded, or the client refuses a reasonable settlement offer which will mean the end of their legal fight, representation and medical treatment on liens.

Watch Your Language!

Sometimes the informality of a mediation can be counter-productive. Recently, I had one that lasted late into an evening. At a certain point we were reaching an impasse that would have included an agreement to postpone certain discovery. I invited the attorneys to speak about this directly to one another, and instead of making that agreement, in frustration, one of them expressed his anticipation that the partner in charge of the case would respond with an "@*&% YOU". I believed that his comment was meant to be an incentive to keep the negotiation going, but it in fact had the opposite effect. I didn't know it at the time, (and thankfully the case got settled the following day), but that one choice reference to an "expletive" (which really was deleted!) completely undermined the negotiation that had been going on all day up until that moment. The Corporate clients, two very savvy business women (one general counsel of a huge conglomerate) took such offense to this that by the time I returned to the other room, they had packed up and were on their way out the door! Rudeness, crudeness, and crassness has no place in a mediation--even in the most informal moments. Next time you fear the worst language being tossed in for flavor or emphasis, take your mother's words into account and "Watch Your Language"!

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.