Impasse is Something That Happens Pre-Mediation

In preparing for a Class I teach at Cal. State Northridge tonight on "Breaking Impasse" something occurred to me for the first time. Virtually all cases come to mediation already at impasse or deadlock. If they were in a productive and on-going negotiation, they wouldn't seek out a mediator. They would be able to resolve the conflict on their own. By showing up for a mediation, the parties to the conflict are offering the mediator the keys to unlock the "deadlock" and begin the movement needed to get to a resolution. Because my students are primarily engaged in community-type mediation, working on conflicts which are not in litigation, I also offered them two statistics: 1) In Los Angeles County, 96% of cases that are filed in court are resolved without going to trial (outside of court); 2) Of the cases that are NOT filed as Lawsuits, 100% are somehow resolved. None of those go to trial and somehow, they all go away or transform into something the parties can tolerate. So in the sphere of all conflicts, it's really a tiny percentage that end in such a "deadlock" that they can only be resolved by a Judge, jury or arbitrator declaring someone is right and someone is wrong. Surprising? Yes, but it sure gives mediators a huge opportunity to serve!

The Stories We Tell

I've just returned from travelling to Chicago for our daughter's engagement party and I'll admit it, I am one of those travellers who enjoys talking to strangers. I find that because of the temporary nature of their acquaintance, you can often learn more about their lives than they would share with their most intimate friends. On the way back to the airport, I was (affectionately at least) teasing my 82 year old mother, who, by that time, was getting on everybody's nerves. The woman seated across from us smiled and said, "that puts a good perspective on my weekend". She had, we soon learned, been in Chicago to bury her mother, who died suddenly. She learned of the death not from her estranged brother (who lived there), but from a cousin, who posted it on "Facebook". On the trip home, I sat beside a woman about my age who told me she'd have help making Thanksgiving dinner this year from her son, who was attending culinary school. I learned later that he had dropped out of High School after his parents spent $48,000. in rehab therapy, and that she was struggling with her husband to persuade him to allow him to stay in the family home after he turns 18 next month.

In the mediations over which I preside, I hear so many personal stories of strangers. They are grateful to have someone who will objectively hear them out. What did I do wrong to deserve to be fired from my job? Why didn't he appreciate the loyalty and energy I put into building his business over so many years? Why didn't they like me on the floor of the hospital where I worked? Why didn't they understand that I just needed some more time to heal? Why didn't they know how badly I was hurting? Why didn't they apologize?

The stories and small acts of kindness of strangers can make so much difference. Listening to the stories and reflecting on the little acts which make a life can be so important. On this Thanksgiving morning, I am so grateful to have these opportunities--large and small to provide perspective, levity, hope and friendship to strangers among us. Happy Thanksgiving to one and all.

To Avoid a Claim for Malpractice, California Court says Keep Your Mediator Present at All Times

Both the mediation and legal communities in California are abuzz about the Court of Appeals decision in Cassel v. Superior Court (Cal. App. 2 Dist. November 12, 2009)which held that attorney client communications are not protected from becoming evidence when they take place at mediation if the mediator isn't in the room at the time of the communication. Apparently, a well respected lawfirm, Wasserman, Camden and Comden, strongly urged it's client, Mr. Cassel, to accept a $1 million settlement during a private meeting at the mediation. Mr. Cassel agreed and the settlement was drawn up. Now Mr. Cassel is claiming his lawyers coerced him into the settlment and in doing so, breached their fiduciary duty to him. Not only does he seek to unravel the settlement, but seeks additional damages from his attorneys. The Court created a judicial exception to the confidentiality statue where the communication was solely between lawyer and client. Lesson? Lawyer beware. Never let the mediator out of your sight lest your advice, if accepted, maybe subject to later challenges. And your settlement may be unenforceable. Sounds like a good deal for mediators, and a raw deal for mediation confidentiality. Lots to think about on this one.

Mediator's Ethics: Does it Include a Just Outcome for the Disputants?

Yesterday I attended the Southern California Mediation Association's 21st Annual Conference. The piece by Professor/Dean Peter Robinson of The Straus Institute of Dispute Resolution at Pepperdine University really caused me to examine my practice. Although the talk was billed as "Ethics for Mediators", Professor Robinson provoked us to question whether mediator's have a heightened duty to make sure that whatever agreements we "broker" have legitimacy, integrity and meet legal standards. The legal standards would, of course, include only those agreements which were not entered under duress or coercion, were based upon informed consent and entered into by a person of sound mind and capacity. Robinson suggests that this is all the more important because if a party enters into an agreement in the context of mediation, he or she can never establish that the agreement was unfair and therefore set it aside later. Hmmm...This puts a burden upon the lawyer mediator that I'm not sure I'm willing to accept. I was pretty satisfied being staunchly "impartial" and allowing the parties to exercise their self determination. And yet....It's noteworthy to point out that there are Model Standards for Mediators, which are a little different from those adopted here in California, that require both self-determination and fairness. Occasionally, these contradict one another. I have frequently presided over mediations in which I believed that one side was getting an unfair "deal"--but did not intervene to re-balance the terms of a deal which both sides agreed to enter into. While I routinely "test" whether there is money left on the table, for example, I typically refrain from interfering in a negotiation which seems to me to be imbalanced. I assume that each party, always acting through their attorneys in my case, have their own reasons for doing what they are about to do--even if it doesn't make sense to me. There is something driving them to reach the deal that they strike--and I'm generally satisfied that I need not safeguard the "outcome", just the fairness of the process. Robinson's lecture suggests otherwise. I'm still examining...

Do Mediators Do Justice?

I mediated a couple of tough sexual harassment and wage and hour cases this past week. At the end of one, the owner of the company asked me a probing question: "Is there no justice in this Country?" I had to step back and contemplate that one. Our California employment laws are particularly protective of employees. They have the right to rest and meal breaks, regular hours (or paid overtime subject to very specific pay rates) a workplace free of what used to be called "flirtation", particularly by their supervisors, and on it goes. And yet...the result can cost the employer much more than the employee would have earned, based upon penalties, attorneys fees and tort damages. So is it justice to settle a case for that kind of payment even in this tough economy? I maintain that what I do is it's own brand of justice: I help parties reach deals which roughly reflect a careful analysis of what a jury or judge would do, tempered by the ability to pay and the savings of avoiding a trial. Is it fair? Is there justice in this Country? These are hard questions. Sometimes I'm glad I'm not a Judge and don't have to bear the price of justice on my shoulders.

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.