Journalism and Mediation

I have long been considering the skills of a highly trained journalist to mediation. Last evening, I saw the excellent film, "Frost/Nixon" and it crystallized the analogy for me. Like a journalist, the mediator must be deliberate and well prepared to ask the appropriate questions. A good mediator will also know when to follow up and dig further, and when to remain quiet and still and allow the underlying issues to surface. A good mediator will never gloat when the truth comes out, but rather calmly offer a hand and allow the perspective to be taken by the parties in conflict on their own following the emotional pitch point. A mediator, like a television interviewer, will know when to "lean in" to the conflict, and when the boxing match has turned the score against her, with the upper hand going to the disputants. And above all, a good mediator will know when to wear the Italian loafers to the hearing and when it's necessary to go with lace-ups. I highly recommend you to see the film.

On Reflection

I always make a point to do some self reflection at the New Year. This year, I noted in a Journal I've been keeping for my children since 1993 that American's have seen the best of times and the worst of times. I believe that the election of Barack Obama will be an indelible memory for my children and for me forever. Being Jewish, and the Aunt of seven children of mixed races (in two different generations), I am thrilled that our nation has progressed to a point of electing a leader who seems most fit for the job, irrespective of his ethnicity. Being a lawyer who fancies herself somewhat intellectual, I am equally thrilled to have elected a man who is articulate, thoughtful and believes in diplomacy and dialogue, too.

And then it was the worst of times: we watched the value of life savings plummet with the Dow Jones, and watched respected and even elected leaders fall to disgrace and corruption. We braced ourselves for another and deeper recession or depression and wondered how we'd keep the kids in college.

And yet, when I look in the mirror, I feel success and triumph, hope and courage. As I said in the journal, we've got love, we've got our health and we've got hope for the future.

It occurs to me that what I do in mediation is much the same: I help the parties evaluate the facts, apply the law when necessary, and then do a little self-reflection/perspective taking to look towards a better future. I ask them to look to that future with hope and courage. It's surprising what an optimistic outlook can do.

And so I invite you to join me in that glance--inward and then forward. Auld Lang Syne aside, I try not to look back...but to march looking skyward towards a brighter tomorrow.

Sounds a bit trite, but it works. Happy New Year to all and may this be a good year, filled with health and happiness, prosperity and hope.

Personal Conscience Meets Mediator's Ethics

I delivered a Continuing Education Lecture this week on "The Ethics of Negotiation". As always, I learned a lot from my audience, an impressive group of lawyers with an age range from mid-20's to late 50's. I struggled with the message to deliver because my research allows for a considerable amount of deceit in negotiations, which I've come to expect and accept. But this week, I was on alert for these deceptive strategies when I negotiated a transaction which I felt slightly morally reprehensible, or maybe just unfair. Without revealing any of the facts, the case involved an elderly woman who was evidently wealthy enough and sufficiently uncomfortable about the lawsuit against her to offer more money than a Plaintiff would have normally expected based upon the particular set of facts and legal obstacles involved. I brokered a deal where all were satisfied, or even delighted, but it had a certain thud in my own instinctive gut after it was over.

Does the mediator's personal conscience matter? My conclusion was it does not. If I can't step back and allow the parties to craft a deal in which all parties are comfortable, than my only move should be to withdraw or recuse in advance. I have done that on only one occasion when the factual scenario struck me as not only unfair, but echoed a personal experience with a lawsuit on similar grounds. Otherwise, I'm left to conclude that the mediator's personal conscience has to be checked at the conference door. That's why each party is represented by a lawyer, and I'm delighted to give them the responsibility of both evaluation and conscience over the results of their actions.

Time for Family and Thanks

Towards the end of this luxuriously long holiday weekend, I am mindful of the power of time for reflection and the strength of family ties. In year's past, it has not always been so. Sometimes the crush of a desire for the perfect Thanksgiving feast, the conflict of spending the holiday with one or the other family members, the rush to hit the sales on the day after Thanksgiving have effectively destroyed the opportunity for quiet reflection. This year, none of that got it my way. Perhaps the economic situation, or the massacre in Mumbai colored the long weekend and put our world into perspective. And so, with gratitude for the many blessings I have enjoyed, I offer a moment's reflection and hope that our world, given time, family and an opportunities for thoughtful reflection will improve. For me, I am thankful that we will have a new President in the White House who believes in dialogue and diplomacy, respects family and community and takes time for thoughtful reflection in all matters.

Four Important Qualities for a Mediator

Aaron David Miller's Op-Ed piece in today's Los Angeles Times caught my eye. He calls it "State of Mind" and recounts four important qualities for President-elect Obama to consider in choosing a Secretary of State. Miller worked for six secretaries of state over twenty years and is the author of the book pictured. In brief, he says to succeed a Secretary of State needs the right persona, the President's confidence, a negotiator's mind-set and some balance of deviousness and toughness. I see these qualities as equally vital to the success of a mediator.

Miller says the top diplomat "needs to be an actor, a teacher, a tactician, an intimidator and a confidant." Sound familiar? He describes the negotiator's mind-set this way: "Teenagers talk on the phone, beavers build dams, and secretaries of state manage crises and solve problems. This means having a smart and tough view of the world, seeing how America's ends and means can fit together, and then knowing how to make them do so." He calls the particular mind-set "the intuitive capacity to see where the deal is, and to put oneself in the middle of the mix to bring it about". This is a perfect description of what a mediator does.

And here's the part I've never seen printed, but that also weighs in heavily in the artful mediation: "Deception is sometimes required and they maneuver constantly, trying to figure out what's necessary to succeed and how to use incentives, pressure, arm twisting and, when necessary, untruthfulness (either by omission or commission) to manage a crisis or close a deal."

So thank you, Aaron Miller, for articulating the true qualities of an artful mediator or Secretary of State. I'm looking forward to reading your thoughts on solving that pesky Middle-East issue next and looking forward to learning of Obama's choice for the role!

A Rare Transformative Experience

Mediation isn't always measured by how much or how little money is exchanged. Last week, I had a wage and hour claim against an employer who was going to be unable to pay even a small percentage of the Plaintiff's demand. Nevertheless, this young woman was a part of the extended family of the former "employer". She had lived with the family for several years when she first came to this country and genuinely endeared herself to the "host" family until they had an apparent falling out--when she disappeared without saying goodbye and without explanation. It became obvious early in the session, that this matter was not going to be settled for anything close to the "value" and that neither side was adequately capitalized to try the case, given the slim prospect of collecting upon any eventual judgment. So I took a chance. I orchestrated a meeting with some of the family members (two sisters) and the Plaintiff. There were no attorneys present (except me) and the session was conducted in a foreign language (which I understood, but in which I did not contribute). There were tears (including mine!) and hugs and an offer to settle which was within a few hundred dollars of the ultimate resolution. Although nobody felt satisfied that the case had to be resolved in this way, it at least offered an opportunity for soothing old hurts, answering unasked questions and most importantly, given people a chance to make a gesture towards restoring relationships which may prove to be mutually beneficial in the future. If you can't get money, it's gratifying to see you can sometimes get hugs, laughter and even tears! This was a rather unique experience in my litigation-driven practice, but ever so rewarding to me and the other participants!

Ballroom Dancing for Lawyers

I mediated a couple of cases this week which unfortunately came to me after settlement conversations had begun. In each instance, one side refused to move off their pre-mediation demand by even a dollar. This lead me to the conclusion that lawyers may need legitimate ballroom dancing lessons. During my summer cruise, I actually took ballroom dancing lessons with my 21 year old son, and here are a few tips:
1) It is not good enough to get dressed and show up for the dance. You must get into position by the time the music starts.
2) It is not good enough to get into position and then stand in the same place. You must move your feet.
3) It is not good enough to merely kick or stomp your feet, you must attend to the rhythm of the music and the posture, mood and responses of your dancing partner.
4) It is not good enough to move always in the same direction: ballroom dancing is a give and take, back and forth, sometimes even circular motion--but motion (movement) is critical.
5) It is not your prerogative to dictate the song list: this is done by consensus, or by the band or your host. You've been invited to the dance and accepted the invitation, so be gracious and "go with the flow".
6) Starting the dance but then refusing to finish it if you don't like the tune is unfair. Both your partner and your host will be disappointed and may not invite you to dance again.
7) Ballroom dancing can be a complicated, even unfamiliar and intimidating event, but if you start with a simple box step, you'll be able to work on more complicated steps as the evening wears on. It takes practice, so don't expect mastery in the first lesson!

Okay--you get my point, I hope. Please consider these tips before you get to your next mediation. At the very least, I hope it will cause you to crack a smile when we begin "the dance"!

Good luck!