The New Year: A Chance to Re-set

I love New Years. Like so many of life's phenomena, I see it as a metaphor for the mediation process. It's a chance to change our paths, review and re-do bad decisions, look towards the future. It's a chance to take stock of what worked and didn't, and to make up our minds to make things better in the future. One of my favorite messages of the New Year came from my friend and colleague, Deborah Rothman, who advocated for abandoning "The Bucket List" (of dreams yet unfulfilled) for "The F**k It List" (giving up those hopes that are never to be realized). It's a gentle surrender, and yet one that is so liberating!
To that end, there was an interesting article this morning in the New York Times by Barbara Strauch about Adult Learning, called "How to Train the Aging Brain". There is good news: "The brain, as it traverses middle age, gets better at recognizing the central idea, the big picture. If kept in good shape, the brain can continue to build pathways that help it's owner recognize patterns, and as a consequence, see significance and even solutions much faster than a young person can." So there's my chance to "reset": a good consolation for another year of age: I begin to see the "big picture" faster--and even can glean a solution to the biggest challenges that lie ahead. Now if I could just figure out the technical re-set mechanism...

Does Staying Neutral Require Staying Up in the Air?

I went to the movies last night and saw "Up in the Air". There were so many messages for a mediator, I'm still trying to process them. The story revolves around George Clooney's job flying around the Country to terminate people from their employment for Big Co. He does his best to re-frame the moment into an opportunity and indeed, seems to succeed at finding the one passion or interest in the person's past that was set aside for all the years of his/her employment that truly drives them. Through a brief, but ever so personal interaction, he attempts to give them hope that their future may be brighter than their past. It is a technique we mediator's call "re-framing" and most of the time, when it's done with thoughtfulness and sincerity, it works to help people accelerate acceptance of a less than optimal result.

Enter a very young Cornell alumna who seeks to revolutionize this business by terminating the employees via Skype. It sounds a little like internet based mediation to me. (I never understood that either). She uses the same approach (even the same lines), but this time is one step removed. NEUTRAL! She makes no personal connection and remains "Up in the Air". On the interpersonal level, both the Clooney character and the attractive young woman find they are unable to make or maintain genuine personal relationships. Their "up in the air" status precludes them from finding a center or home that is meaningful to either of them.

And so it brings me to wonder whether being neutral actually requires the proverbial being "up in the air" (as in not taking sides) or whether it's possible to be bi-lateral instead--meaning human and empathic towards both sides of a controversy.

I really enjoyed this movie and recommend that if you see it you consider these underlying issues...

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.