The Luxury of Time to Resolve Conflict

This past week I conducted a rare (for me) mediation in an outside office. For the past seven years, I have conducted my hearings in my own offices, or those of ADR Services. In each location, I have access to an office where I can obtain e-mail, voice mail, real mail or more during breaks and before and after the sessions. This one lasted eleven hours, during which I had no access to computer, voice mail or telephone messages. Although all of the participants were drained by the end, it occurred to me what a modern luxury is the gift of a full day "un-wired". Wouldn't we all appreciate having the undivided attention of a professional to spend the day listening to our problems and helping us achieve a satisfactory solution? Wouldn't we love if our spouse or children or parents, our partners or associates would similarly indulge us a full, uninterrupted day to think about how to make us feel better about past issues or relationships? I dare say that even a full day alone--without interruption from PDA's and phones, would go a long way towards helping any of us solve our problems. And so it occurred to me that one of the best features mediation has to offer is the eyes and ears of a professional who dedicates the day to helping the participants to solve their conflict. A full day's commitment to being unwired, unhurried, giving undivided attention to the participants is a wonderful luxury!

Leaving the Narrows

Last night we celebrated the beginning of Passover. During the Seder, we recall the story of Exodus--as the Jews fled Egypt, (where they were slaves) and travelled for 40 years, carrying journey bread, or Matzoh on their backs, until they reached what is now "Israel"--the land of milk and honey. The Hebrew word for Egypt is "Mizrayim" which is also the word for narrow places (loosely translated, I think). And so I considered all of the ways in which parties in conflict are in their own "narrows"--with walls to the left and to the right and only a glimmer of light between them. The challenge for the mediator is to guide the parties out of their personal narrow places and into a new state. It is the guidance from slavery or tyranny or debt to sweetness and hopefulness and freedom. With freedom, of course, comes a heavy responsibility. It is our challenge to inspire parties caught between only two choices (as in slave holders or slaves) to freedom fighters who, by their own might and imagination dare to visualize a different future and take that chance to achieve it. There are so many profound messages in the Passover story, but for now I wish to merely challenge my readers to dare to imagine a different choice than the obvious. Only then can we hope to transcend our own narrow places!

Empathy Deficit Disorder in the USA?

I recently borrowed Barack Obama's Book, "The Audacity of Hope" from my 80 year old father. I am intrigued by this articulate and engaging candidate--even though I meet every criteria to be a Hillary Clinton supporter (middle aged, professional, Caucasian woman). In the Chapter he calls "Values", he talks about his mother's simple principle--"How would that make you feel?" as a guidepost for his politics. Then he says, "It's not a question we ask ourselves enough, I think; as a country, we seem to be suffering from an empathy deficit." My own work as a mediator compels me to concur.

Lately, I have been mediating business disputes where employees urge fair treatment from their former employers, or a business deal gone sour demands recompense to make things right. On the other side, I see struggling business people and professionals who cannot afford the inflated demands made of them--even though they may have agreed to those terms (before the costs of litigation were added) in more economically favorable times. And I, standing "in the middle" can simply urge empathy. Obama says, "No one is exempt from the call to find common ground". I am grateful that I listened to the call and act daily in an effort to bring mutual understanding and then action by those in conflict. It's my own contribution towards addressing the Empathy Deficit Disorder from which our country may be suffering.

The Art of The Spin: Another Benefit of Using Mediation

This week I attended a professional conference where I heard two compelling presentations. The first was on "The Ethics of Negotiation". First, was a thought provoking discussion presented by my colleague, Michael Young, an attorney and mediator here in Los Angeles and former Federal District Judge John Wagner, also now a mediator. The central thesis was that lawyers and negotiators need to use caution and discretion lest their puffery and strategic communication be relied upon as false facts. In California and the U.S., there's broad leeway in using exaggeration or puffery and also manipulating the timing and "bottom line" claims in the context of the litigated case. The only bright line offered seems to be the conduct which would otherwise be actionable as a material misrepresentation of fact.

The following day, the keynote address was delivered by Tony Snow, former Press Secretary to George W. Bush. He spoke of the invasion in Iraq, the surge in troops against popular tide of approval and, in an unabashed claim, his deft management of creating an appearance of the wisdom of staying in the Middle East even in the face of unprecedented negative ratings.

So it occured to me, that in the case of a difficult negotiation, the mediators role in so many instances is to create the spin that will sell the other side on reasons to accept a deal they were unwilling to accept before they engaged the mediator. What's more, the mediator will not likely present facts which will be relied upon (or rejected as untrue), but will merely "reframe" those details which she believes the parties need to highlight in order to make an informed decision about the best outcome they can achieve in the particular negotiation. What's more, the mediator's communication to the parties is confidential, and therefore not actionable. Mediators have ethics, too and won't lie for either party or knowingly present facts which are false. But they certainly will withold facts which they are asked to maintain as confidential!

During the course of this week, for example, I negotiated a re-finance of a home, a claim for attorneys fees rebated, a personal guaranty on a business debt and the proceeds of a fire insurance policy. Each of these negotiations were already attempted before filing a lawsuit and after...but it was only with the benefit of the mediator's "spin" that, like a Press Secretary, the parties were able to see the wisdom in an unpopular war based upon carefully chosen words and artful intervention. Like a figure skater, parties to a negotiation are well advised to bend as far as possible without causing a crack in the ice or skater!

Leap! What Will We Do with the Rest of Our Lives?

I've just finished reading Sara Davidson's "Leap!" and I wanted to share it with my own readers as a kind of broad and deep guidepost for travelling through "the narrows" and onward and upward. She concludes with a reminder that those of us who enjoy writing, should continue to write. In fact, she reminds us that a moral review--as in the narrative I blogged about earlier, is a healthy exercise and that a weekly review of those moral issues and resolutions is also an excellent, self-reflective tool. The work that we do as mediators, the kind of active peacemaking is an invaluable service which has this kind of far-reaching potential as teachers and guides for the good. I'm still processing the book, but I highly recommend it for those still searching for answers to the question of "what is the next decade or two going to look like for me?" Consider it a template of options for aging baby boomers who have had a half century or more of thoughtful engagement with our country, our communities and one another.

So here's my week past: two friends lost their parents (both in their 80's), one friend had a Bat Mitzvah for her 13 year old daughter, one friend is flying back East with her husband of almost 30 years for experimental and aggressive cancer treatment.

Taking a breath, reviewing and restocking and taking time for internal reflection is, indeed not only imperative to each of us--but a useful exercise for those in conflict that come before us for advice, empathy and resolution.

Read the book!

Be Careful What you Wish for: Have the High Costs of Arbitration Succeeded in Diminishing That as a true Alternative?

I attended an excellent Law & Employment Symposium put on by the L.A. County Bar Association this week. My colleague and friend, Lisa Klerman, a full-time mediator specializing in Employment Law chaired the conference. It's now been over a decade (I think) since safeguards were thrust into place to protect employees from the high cost of "mandatory" arbitration in employment matters. Employers eagerly insisted upon every case they could therefore compel to go into Arbitration, a forum in which they believed they'd get a lower verdict, based upon an arbitrator being less likely to be carried off onto an emotional or irrational tangent when reaching a verdict on the intangibles, such as emotional distress and punitive damages. Employee's and their lawyers resisted this, demanded the employer pay 100% of the costs, and built in other protections to ostensibly level the playing field. What the employer's lawyers have discovered, however, is that arbitration can be much more expensive than litigation (because the employer assumes the costs of the arbitration from both sides) and no faster. Last evening, I had dinner with a friend who is revising an old family LLC agreement and inquired whether he'd be better off including a binding or non-binding arbitration clause. I had to think for a few minutes (before I finished my margarita!) and honestly respond that I thought he should include a mediation clause, in a family agreement, and omit the arbitration provision. This lead me to do some introspection on whether we've taken this too far in terms of "fairness" and "accessibility". My last case as a litigator was taken out of the court system (over my protest) and sent to a binding arbitration. My client couldn't afford the costs, so I advanced them. We lost the arbitration after 5 days and several thousand dollars in costs alone. We had no right of appeal and no explanation. I still think the retired Judge got it wrong. Has Arbitration outlived its usefulness as a true alternative to Court?

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!