The Value of a Symbolic Commitment

Our daughter became engaged to be married last night. Although the groom to be has been a steady boyfriend for over two years and we were all pretty certain he was "the one", the symbolic commitment that accompanied the diamond ring on her finger was/is HUGE! It occurred to me that when I mediate cases to a settlement, the signing ritual, the handshake, the acceptance of the "proposal" is more than a mere gesture. It also symbolizes a commitment to conform with the legal constraints that go beyond the casual promise or mutual assumptions. Until our daughter's boyfriend put a ring on her finger last night, his words of commitment could have been interpreted as temporal, happy for the moment, maybe even non-committal. Now, his intent is clear, he's invested in the process, and would have a much harder time reneging on his promise to marry next year than he would without the ring, ritual and public announcement. Next time you're tempted to leave a mediation based upon a handshake, think again. The symbols of commitment to a future agreement can mean a great deal in love and law!

Games People Play

I mediated an interesting case today because the two opposing counsel played poker together with some regularity. What this meant is that they both had a friendly degree of distrust, as well as respect for the other's ability to bluff, on the one hand, and to win on the other. I often see and even describe the negotiation process in a mediation as a game (usually of chess, implying strategic moves in anticipation of reciprocal moves designed to bring the opposing party to where the other wants them to be), but rarely do I overtly reference the bluffing that takes place in poker. Yet it is so apt! Consider the risk taker, the card counter, the one who is too obviously risk-adverse, or fearful of losing it all. These are frequently prototypical personalities represented in a mediation. So it was with much amusement that these two gentleman deftly conveyed their positions to me and then to one another and back and forth until they were fully engaged in the process--leaving with plans for more when additional parties (presumably not represented by part of their poker group) return to the table! There is much to be learned from excellent poker players, but when two of them meet--it's probably best to grab a beer and let it unfold! Happy 4th of July!

Fate is for Juries

I have been struggling with a few Mediator Proposals lately. At the point at which the parties invite me to propose the solution, typically the negotiations have threatened to break down, with a gap that would appear insurmountable. Often, it signals that the parties and their advocates are willing to leave their destiny to fate. Peter Adler, in his new book "Eye of the Storm Leadership", calls these breakdowns "not aberrations, but solutions in progress". A mediator's proposal is not supposed to reflect the likely jury result. That is a measure of fate, with a winner and a loser. It is high stakes, and high risk to both parties. The mediator's proposal, instead, is supposed to be a reflection of what will work to settle the conflict (the solution in progress): a measured consideration based upon a series of confidential communications reflecting the downsides on both sides of a conflict as well as the potential. I am no palm-reader, but when I arrive at a mediator's proposal that is accepted by both sides, I know that it is not reflective of a jury's deliberation, but of my own assessment of the likeliest solution to the conflict presented.

Women and Empathy: Is there a Difference?

I was struck by President Obama's appointment of Judge Sonia Sotomayor as Supreme Court Justice this morning. In choosing her, he affirmed that he was looking for a woman as well as a person who held a "different sense of justice", by which I understood that he was seeking out someone who would listen to the legal issues of the day with a certain empathy that may be harder to attain in a man. I had dinner with a friend from law school over the weekend, who has been a Superior Court Judge for 12 years. She readily admitted that she believes women bring a heightened sense of empathy to negotiation, and when acting as a mediator. I personally attributed my empathetic leanings to being a mother. Isn't that part of the job description? And yet, Judge Sotomayor is apparently single and without children. So is there a true genetic difference? I have recently taken an advanced training by Dana Curtis (also a woman, and I don't know if she's a mom) on empathy. It was based upon very specific steps which will open both the listener and disputant to a sense of empathy at every level of the negotiation (including the money side after insulting offers and demands were exchanged). As usual, I don't have the answers to these questions, but I'm undertaking an updating of my old "gender and negotiations" talk to study the specific question of "Learning Empathy: Can Men Learn to Listen Like Women and Women Learn to Speak like Men?" Do they/we want to?

Clinton and Communitarianism

I had the privilege of hearing former President Bill Clinton speak last night at the ACCAmerica Annual Gala (association of Corporate Counsel). I used to consider myself an intellectual, but his address really provoked my thinking. He spoke of "communitarianism", which I thought he'd made up until I did some research this morning. It turns out, that Communitarianism is a philosophy developed by deep thinkers in the 1980's (after I'd left those Ivy covered walls of College life) to reconcile the liberal and conservative thinkers, to unify the nationalists, and to recognize that if we are to move forward globally, we must accept certain basic moral principles (such as children should not have to starve because fate brings them into a nation with limited food and dirty water), and that we share common responsibility (such as addressing global climate changes).

As always, this theoretical construct had major implications in the mediation movement from my perspective. Based in part upon the Asian concepts of harmony, it seeks a balance between extreme positions, for the benefit of all. It is not to say that the philosophy favors proselytizing or converting believers, but rather a gentle, general acceptance that not all conflict must be resolved for coexistence in a world of limited resources and basic, shared, humanitarian values.

My limited research into communitarianism fascinated me and I wanted to share it with you and encourage my community of readers to look into it as a guidepost for the next century.

Taking Our Part in Public Dialogue

I had the privilege of watching a screening of "The Soloist" at Sony Pictures in celebration of one of the co-Producers' birthday this weekend. (We've been friends of Russ Krasnoff's for over a decade.) The movie captures the story of a Los Angeles Times' reporter, Steve Lopez, friendship with a schizophrenic, homeless, but nevertheless brilliant musician, Nathaniel Ayers. At the end of the movie, the producers urge their viewers to get involved with homeless causes, public housing and the mentally ill. It's a call I've heard before personally, but had not really put together with mediation until this week.

I'm also reading Bernard Mayer's new book: "Staying with Conflict", which urges conflict professionals to think of their role as going beyond conflict resolution. After all, not all conflict can be resolved. Instead, he invites us to consider facilitating the dialogue that is central to competing values, including limited resources, to manage conflict without a view towards solving it, but living with it in our communities, and internationally. This was/is a bit revolutionary to me, as my practice revolves around litigated cases: all of the conflict which I presume to resolve will come to an end in court if I'm unable to resolve it before then.

Finally, I was inducted into the International Academy of Mediators last week. One of my fellow inductees (not an American) spoke eloquently of taking our stance among other international leaders in committing to engage in the dialogue on the global climate crisis.

More and more, I see our profession as a social science not unlike psychologists, historians, and yes, even filmmakers with a message. I congratulate Russ Krasnoff for having the courage to make this excellent film and deliver this crucial message. I will report on the Mayer book once I've completed it. In the meanwhile, I welcome your comments on the role that mediators can or must play in moving beyond living as "Soloist" towards a better, more sustainable and ultimately more fulfilling duet or even orchestra.

Thumbs Up at the G20

Yesterday I had a difficult mediation which I sensed was heading towards an impasse. I suggested, after 4 tough hours of negotiation, that one of the attorneys (a smart, attractive woman) take a walk outside with opposing counsel--who had remained staunchly committed to his position all day. I won't say it fully resolved the case, but it definitely served to break the impasse and get both parties returning to the negotiation with "thumbs up". So it was with great amusement that I read today's L.A. Times article, "Obama makes a point with 1 word" and was shocked to find that the photo on page 24 appears to have Obama's thumb up, but my google image above appears to be Berlusconi's thumb up!

This, of course, only strengthens my point in this entry: diplomacy comes from small measures of partnership, not grand gestures of dictatorship. In the G20 yesterday, apparently the world's leaders were "stuck" over whether to "recognize" a list of tax havens being published by the Organization of Eceonomic Co-operation and Development. Obama tapped Sarkozy on the shoulder, huddled in a corner, and suggested they "note" the list, without "recognizing" it. Sarkozy concurred, and later so did Hu, resulting in a simple agreement and handshake.

Obama said: "We exercise leadership best when we are listening, when we recognize that the world is a complicated place and that we are going to have to act in partnership with other countries, when we lead by example, when we show some element of humility and recognize that we may not always have the best answer, but we can always encourage the best answer and support the best answer."

In this case, as in my mediation, the best answer was a small gesture of partnership and a large dose of humility, leading to "two thumbs up".