Lessons for Mediators from Corporate Leadership

I was always a bossy little girl. So it was with great interest that I read an interview in this morning's New York Times of Susan Doeherty, who leads the United States Sales, service and marketing of General Motors. Her natural demeanor was instructive for me as a mediator in these ways. First, she recognized that communication is essential. "It needs to be simple. It needs to be consistent. And even when you're tired of what the message is, you need to do it again and again, because everybody comes to the table with a different perspective and a different experience"..."On some very key things, people need to internalize it, and they need to own it." Second, she says, "The best way to counteract coming across as being bossy would be to ask others what they thought." Third, she sits in a different chair at each meeting, to keep her meetings "dynamic". If it's good enough for GM, it's good enough for me. These are, in fact, essential lessons for mediation. And by the way, does anyone remember a male CEO being criticized for being "bossy"?

New Employment Case Limits Right to Recover Attorneys Fees

We might have known it was coming since I reported about being subpoenaed to testify that attorneys fees were unwarranted in a Federal employment case because the employer would have settled for the same amount as the ultimate verdict in a mediation that took place six months before trial...but now the California Supreme Court has decided that an employee may not be entitled to recover attorneys fees in a meritorious employment case where the amount in controversy (or the ultimate verdict) is too small to have warranted the fees incurred. The decision -- Chavez v. City of Los Angeles -- tilts the balance between employee and employer interests in employment cases a little towards the employer by allowing trial courts to deny attorney fee recoveries to plaintiffs who only recover a small amount.

In Chavez, the Plaintiff was awarded $11,500 for FEHA violations, but the Attorneys submitted a fee bill of $840,000. Prior to this decision, the Court didn't have the discretion to deny attorneys fees, although they could be taxed pursuant to motion. Now, if the Court thinks they're out of balance with the value of the case, it can deny the fees. Game changer!

I have often seen the threat of huge legal fees tip the evaluation towards settling a case that otherwise has relatively low damages in employment actions. Although the cases are not frivolous, they may have limited value without the additional threat of legal fees.

Plaintiff's attorneys will likely be scrutinizing the intake on these cases more thoroughly where the damages are low. Employees who have been wrongly terminated may have less access to quality attorneys to take their cases where damages are small. Indeed, I'm going to assume that more of these cases will be settled earlier and through mediation than assuming the risk and expense of trial in light of this decision.

Interesting development in light of the economic recession in our generally pro-employee liberal State.

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.