Mediating Civil Rights Issues

I was struck by the latest bipartisan efforts at mediating civil rights. Yes, it's true, apparently Rev. Al Sharpton and Former Congressman Newt Gingrich are on a road trip promoting equal education in America! Bravo! I'm currently reading an excellent novel, "The Help" by Kathryn Stockett, which addresses civil rights in Mississippi. The shocking part of the story is not the tender discussion of disparities between the Southern White families and their African-American maids, but rather how recent this disparity existed! The story reads as though it's another century, but takes place in the 1960's. It's a story of a White woman writing the "stories" of a dozen maids about their experiences working for White families: they raise their children, nurse them when they are elderly and all the while attempt to maintain their own lives and families on limited income and unequal liberties and opportunities. Now, nearly 50 years later, the news in America is indicating the government is relying upon a partnership of Sharpton and Gingrich to bring this conversation forward once again with respect to education. It's shocking, and yet, so compelling. Partnerships, alliances, dialogue is the only way change can be meaningfully made. Bravo to Kathryn Shockett for taking on this raw conversation, and kudos to Sharpton and Gingrich for continuing the dialogue towards a better future for our kids--all of them!

The Beer Summit

Here's to President Obama and his brave and wise staff who understood the power of mediation this week as he invited the Harvard Professor to confront and discuss his arrest with the Cambridge Police Chief at the White House. There were so many mediator techniques brewing that afternoon, that I wanted to take a moment to reflect on them. First, there was an invitation for dialogue. There were no guarantees that there would be a particular outcome, but in the heat of the conflict, somebody had the wisdom to bring the conflicting parties together for the purpose of discussing their different perspectives and exploring options for improving the relations between African Americans and Police in America in the future. Second, there was a "third sider" present: not necessarily Obama, who actually took sides when he called the Cambridge Police Officer's conduct "stupid", but Joe Biden--who had no dog in the fight. (You'll notice that Biden did not drink alcoholic beer. Interesting, but maybe not coincidental.) Third, there was a balance: two African-American Harvard trained participants would not have achieved the level of impartiality that a true mediation would require as against a single, Caucasian (probably not Harvard trained, Ivy league, elite?) Police Officer. Although a mediator need not be a separate race from the disputants, in this case, the commonality of Obama with one of the disputants would likely have raised eyebrows had he been alone to face the Police Officer after calling his conduct "stupid" in a press conference. Fourth, they offered confidentiality: although the Press was invited to take the initial irresistible photos, they were expressly excluded from the dialogue itself. The parties were then at liberty to express their interests and perspective without risking losing face or conceding anything concrete. Finally, informality: have you seen other photos of such an informal meeting with the President of the United States? Obama was in shirt sleeves, without jacket or tie, at a table on the lawn. The table was round (not a true "summit") and the dialogue was not recorded. All of this facilitated the true dialogue that perhaps will begin or advance the discussion of racism in America. Bravo for the mediators!

The Mediator's Perspective: Taking Time Out

I had a tough week this week. I presided over two particularly challenging and emotional disputes: issues of betrayal, interpersonal trust and respect, dashed hopes, lost profits, desperate measures and counsel who were not always in control of the perspective they needed to help resolve the conflict.

As we do on most weekends during summer, yesterday, we took our sailboat, "Time Out" out to sea for several hours with old friends for several hours. Watching the extraordinary surf hit the beaches of Southern California was so much the medicine I needed, that we ended up staying the night in the Marina.

When I arrived home this morning, my sons told me of the news of Lily Burk's apparent murder on Skid Row at age 17. Our children attended the same School as Lily. Her mom is a lawyer and adjunct faculty at a local law school. The news was nothing less than shocking, deeply disturbing and all too close. Though we didn't know her or her family, at a memorial service for a classmate's Dad today, I spoke with one of the teachers from Oakwood, who expressed his profound grief and loss. Seeing Mickey Morgan that profoundly lost, I'm imagining that this event will forever change the Oakwood community: it will take a long time to restore that hope and optimism that gives the school that "anything is possible" attitude. Simply stated, it made my "tough week" seem trivial by contrast. Even mediator's need lessons in perspective taking, and I'm so sorry that it took this horrible tragedy to wake me up this week.

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?