Good Advice From the Next Generation

A friend of mine sent me a Commencement address given by Journalist, Samantha Power, this year in Claremont , Ca. (I'm an alumna of Pomona College, although this one was at our sister College, Pitzer). I found it particularly compelling. I attach the website here:
http://www.huffingtonpost.com/samantha-power/message-to-graduates-be-a_b_103886.html

What does this have to do with Mediation? The part I loved was about taking time for silence. It is so true that this generation is more interconnected than any before. They have the capability and technology to be in constant communication with one another. And yet, is anyone giving them the advice of the value of taking a few minutes alone? Do any of them listen to their inner voice? Has the Ipod, the Blackberry, Face Book and text messaging supplanted the need for interaction and introspection?

I attended a funeral today where the Rabbi spoke of a concert where Itzhak Perlman broke a string on his violin. Apparently, rather than struggling with the leg braces and crutches he had just removed in order to walk off stage and replace the string, he performed the entire concert on just 3 strings. When asked how he'd accomplished this, and why, his answer was simple: "I'm a musician", he said, "We make music where nothing was there before". My synthesis of these two stories leads me to the conclusion that both participants and mediators can greatly benefit from taking a few key moments during the course of a difficult hearing to themselves. Some quiet, self reflection can unlock the inner yearnings both driving the conflict and blocking it from being resolved.

Next time you feel stuck, try taking a time out by yourself and see!

Publicity and the Limits of Mediation

I had two interesting cases this week that hit me in the forehead with an "Aha" about the limits of mediation. The first was an employment case in which the employee had somehow become the recipient of a copy of the evaluation letter of the employer's attorney. When confronted with this apparent impropriety, she immediately returned the letter, but of course, could not "un-ring" that bell. In the second, the facts had already been highly publicized and the Plaintiff was not bringing the action for the award of damages, but rather the satisfaction of teaching a lesson to the errant defendants on how not to run their company. It occured to me only later that in that case a mediation was bound to be unsatisfying, because I couldn't offer the kind of publicity that the case demanded. To the contrary, because I am bound to strict confidentiality, I cannot offer the satisfaction that a trial can in instances like these.

In this mornings New York Times, there was an interesting article about a blogger in New York--who relishes the opportunity to privately "publicize" facts and impressions via her blog. I was struck by the contrast between my ability to "publicize" and my hard-earned lesson that the blogosphere cannot expect to be kept confidential. Thus, you will get no further disclosure from me on the case I failed to settle this week until the media properly reports it. Some cases need to go through that process in order to be fully "settled". Cases that are mediated are subject to strict confidentiality. Cases that need the traditional media to ultimately satisfy the litigants, will not likely be settled through mediation. That's the limit of mediation: and the promise of this mediator. Maybe I should have gone into journalism as a second career after all...

The Disclosure Movement in Medical Accident Cases

There was an interesting article in today's New York Times entitled, "Doctors are Beginning to Say 'I'm sorry' long before 'I'll see you in Court' which I've copied below. Although I'd heard of this "movement" on several occasions, I was struck by two pieces in the article: the first, was that the Sunday New York Times chose to feature it on the first page, as though it was news; and the second was that Presidential rivals, Hillary Clinton and Barack Obama co-sponsored a bill which would have legislated that such apologies are inadmissible in court back in 2005.

One of the key principles which mediators emphasize in any hearing which includes an apology is the assurance of confidentiality. Apologizing will not become an admission of culpability if it's done in the context of a mediation. What researchers have found is that in most instances, an apology and explanation of the circumstance of the medical accidents reported resulted in the patient or his/her family deciding not to pursue the matter in litigation. I loved that they've given a name to the practice, which is a departure from the old "defend and deny": "the disclosure movement". Contrary to popular press, what the study reveals is that most patients are earnestly concerned about hospital practices that may cause injury in subsequent procedures, and in the explanation, more than the huge damage claim. What's more, they want it soon after the incident, and an offer to fix or repair, rather than subject both sides to protracted litigation aimed at concealing the facts and minimizing the ultimate expense. Interesting stuff, this disclosure movement.

Here's the link to the article: http://www.nytimes.com/2008/05/18/us/18apology.html?pagewanted=1&_r=1&ref=us
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Brain Studies Prove That A Fair Deal is A Happy Deal

Most Mediators are taught to ensure fairness in process above all. After many years, and hundreds or thousands of negotiations, it can sometimes feel tedious and unnecessary to do so. However, at this past weekend's Employment Mediation Conference sponsored by the Southern California Mediation Association, some of the attorneys expressed shockingly disappointing results where the mediator failed to take the time to explain the process and ensure it's fairness. The outcome of the negotiation, it appears, is not determinative of the parties' ultimate satisfaction.

This morning, our local newspaper, the Los Angeles Times, included an article in the "Health" section, which explains that brain science backs up this effect. It's a good reminder for all of us: and those of you who are tempted to skip that process, in service of making the deal! I've copied the article here, but basically, it concludes that the brain actually responds differently when the studies made a "fair deal" v. merely "a deal" that ends the negotiation. I thought it interesting and informative and have copied it in it's entirety for you below.

Fairness is emotionally rewarding, a study finds
A fair deal activates parts of the brain also stimulated by earning money, looking at attractive faces or eating chocolate, UCLA researchers find.
By Elena Conis, Special to The Times
May 12, 2008
What's new: The sinking feeling that creeps in after you've paid too much for a house, car or new pair of shoes may actually be a hard-wired, neurological response to being treated unfairly.

On the flip side, getting a fair deal on that same car or pair of shoes stimulates parts of the brain associated with reward and happiness.

The finding: Researchers at UCLA's Semel Institute for Neuroscience and Human Behavior recently reported in the journal Psychological Science that getting a fair deal activated the same parts of the brain -- the ventral striatum, the amygdala and the ventromedial prefrontal cortex, together known as the reward circuit -- that are stimulated by earning money, looking at attractive faces or eating chocolate (in those who like the stuff).

Lead study author Golnaz Tabibnia, a postdoctoral researcher in the department of psychiatry and biobehavioral sciences, said the findings suggest people care about fairness itself not just because unfairness is unpleasant, but because fairness generates positive emotions. Fairness, in and of itself, she said, is emotionally rewarding -- regardless of how much money may come (or go) in the deal.

How the study was done: The researchers conducted two separate experiments. In both, the study subjects, all UCLA students, played a so-called ultimatum game in which a person called a "proposer" offered to split with them a certain amount of money, say $10. Sometimes the proposer would offer to split the money in half (a fair deal), at other times he or she would offer less than half. If the student accepted, proposer and student kept the money. If the student rejected the offer, proposer and student walked away with nothing.

In the first experiment, the 29 students who played the game were asked to report how happy or upset they were about each offer. In the second experiment, 12 students played the game while their brain activity was monitored using functional magnetic resonance imaging, or fMRI. The fMRI measures changes in blood flow to different regions of the brain, indicating which parts of the brain are more or less active.

When students were offered $5 out of $10, they'd typically accept the offer -- and their reward circuitry would light up. When offered, say, $2, roughly half the students rejected the money, and their brain region associated with disgust would light up. In the half that accepted the meager offer, their disgust region wasn't activated, but neither was their reward circuitry -- instead, the part of the brain that came into play was the region involved in self-control. "It's the neural pattern of what swallowing your pride looks like," Tabibnia said.

Why it matters: Essentially, the results bolster the maxim that money doesn't buy happiness. No matter how much money people make, or lose, in a deal, what determines how they feel at the end of the day, the study suggests, is how fairly they think they've been treated. "Certainly money is rewarding," Tabibnia said. "But more and more research is suggesting that our social relations with other people can also be rewarding, and can be very strong determinants of our happiness and satisfaction."

What we still don't know: Scientists think -- but aren't sure -- that emotional responses to fair or unfair treatment could differ based on gender, cultural background or socioeconomic status. Being poor, for example, conceivably could build tolerance to unfair treatment -- but the idea is pure conjecture.

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.