Duty to Clients or Country?

It is about to happen to me. Next week, I anticipate receipt of a subpoena to testify in Federal Court about a mediation over which I presided 18 months ago. I have already received the Court order telling the parties to request my declaration (which I refused to do.) Here's the deal: U.S. District Court civil rights action. No offers made and the case did not settle before me. 18 months later, the case went to trial and the Plaintiff got a "modest" verdict. The parties are now fighting about attorneys fees. The court seems to be persuaded by the Defense's position that the case could have been settled for the amount of the verdict at the mediation. (But of course, it wasn't!) I discarded my notes a year ago, but have orally communicated with both lawyers that my recollection is that no offer was made. Certainly, the case didn't settle--so what difference does it make? It's a perilous position for the court or the attorney's to take: if you fail to accept a low-ball offer, you may not be able to recover your fees if you do better than that at trial unless it's huge. While up until now I considered the attorneys and their clients to be "my clients", I intend to refuse to testify under the confidentiality protections. I guess I feel a little differently about my "duty to country" in the face of a Subpoena to testify to a Federal Judge about matters I consider to be strictly confidential. I'm left feeling angry that the Court may determine this in ways that contravene the policies favoring mediation through confidential communication. I'm lefting feeling angry that I will have to go through the expense of refusing to comply with a Federal subpoena in order to safeguard this process.

Lessons from the International Academy of Mediators

I attended an excellent Professional Conference this month in London, The International Academy of Mediators, "What Can we Learn from Each Other". During the conference, a full day's mock mediation was staged. It was the first I'd ever seen where professional actors were employed to demonstrate the raw emotionality that so often surfaces in civil mediation. So this week, I gave it a try. I facilitated two joint sessions in cases in which I would normally have kept the parties separate. In the first, the lawyer blew up and shouted in ways that were unexpected to me, her client and opposing counsel. Just as I had observed Avi Schneerson at the IAM do, I sat quietly and allowed that anger to boil over into the joint session. Within a very few minutes, there were huge concessions following that outburst and the case was settled within 30 minutes thereafter. In the other case, I spent over two hours preparing for the hearing by discussing the relative positions of the parties through their counsel. This one turned out to be more procedural than fact-based, but the lawyers weren't communicating with one another, rather they were busy advocating for their clients. So I took the chance to conduct that one with all lawyers together in a joint session for almost all of the negotiation. Lo and behold, they were much more civil to one another when sitting together in a room without their clients then I would have anticipated and the case was also settled in 4 hours. Thanks to my fellow IAM members, and a couple of paid actors, the theater of my mediation hearings proved to be a great laboratory for new lessons learned, including bravely allowing conflict and emotionality to be demonstrated publicly in order to truly allow the parties to get to a resolution.

Respect of a Man

My youngest son will turn twenty one tomorrow. This is a hat tip to Jordan, aka "Mr. Schau" of Mr. Schau.com. He is my webmaster and also the host of a site known as "PureNeeds.com". He is most certainly a rising "bon vivant". He leaves today for Las Vegas and then after he drops his bags at Columbia in New York, where he will be Junior in the Engineering Program at SEAS, he will meet his sister in Nice, France for a quick vacation abroad on Tuesday.
But this entry is not about Jordan, but about the two mediations over which I presided this week. Without revealing any confidential information, the first was the wrongful termination of a young, Hispanic kitchen worker and the second was a contract issue by a well known celebrity. Both cases were resolved, with hugely different results monetarily, but with a single commonality. Each of these men brought their legal claims because they were disrespected in the workplace and the only means to attain the respect to which each knew instinctively they were entitled was to seek legal redress. The kitchen worker was not represented by counsel, but the celebrity could also not get his point across without legal representation. In the end, once I was able to acknowledge and confirm their positions and contributions to the Companies to which they had dedicated years of work, the money part was easily resolved. The Companies they sued were not able or willing to acknowledge or value those contributions without engaging a mediator who could evaluate them with a degree of neutrality. I would conclude it was also a degree of humanity--which often times a corporate culture doesn't bring to the table.
So here's to you, Jordan, and to all good men: may you always act with integrity, work with intelligence and humanity to others and earn the respect of others and to acknowledge the contribution of your friends and colleagues.

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!