Jazz, Synchronicity and Mediation

I attended an outstanding ABA Dispute Resolution Conference in San Francisco last week. There, I heard and saw a wonderful demonstration of a concept called "Synchronicity" by Margaret Aaron and Dwight Golann during a presentation they called "Clientology". They talked about concepts we mediators call "mirroring and modelling" to meet the clients where they are and gently guide them to a place where reasoned decisions can be made about emotional conflict. They talked about delivering bad news with appropriate gravitas, and using the level and tone in our voices, our hands and even our bodies' posture for more than speech.

Today, I enjoyed a terrific jazz concert featuring a high school friend of my son's, Shana Bush, and a trio of musicians (some still in College) performing updated versions of tunes from the 1920's to 1940's. It struck me that the synchronicity I learned is a metaphor for improvisational jazz. The musicians play off one another, hit highs and lows, have a conversation amongst them which, if you're lucky, also touches the audience deeply, movingly, personally. It has the potential of uplifting or evoking the lonely, dark places we try to guard against.

So it is that in my next mediation, I shall take with me the melodies of Shana's jazz with the lessons of clientology. And perhaps with "Angel Eyes" I will accomplish more for my clients than the lyric goes: "All or Nothing at All".

Insightful Closings

Los Angeles lost a great friend and "Granddaddy of Mediation", Richard Millen, last week. I had the good privilege of knowing Richard well, as he had a seat on the Board of the Southern California Mediation Association "in perpetuity" during my term as President there and we sat together on the State Bar's ADR Committee. If I could capture his philosophy in a very few words, he was a defender of the process of mediation as an essentially human prospect. He was, although a lawyer himself, quite opposed to the legalistic (or commercial) approach to human conflict. So it was with great interest that I attended the International Academy of Mediator's Conference in Salt Lake City where four highly regarded commercial mediator's from London, England to Cleveland, Ohio to Northern and Southern California, revealed their most "insightful closings". All of them involved human conflict which took self-confident and highly competent lawyers taking a step back to allow their clients to truly express themselves in the heartbreak they'd suffered in order to resolve both the emotional and the financial issues that stood between them. I'll give Richard Millen's legacy the credit for shining a light on the "mediation" of the two strains of conflict within our own community: it's okay to "Show me the Money" if you can also meet the human needs by addressing the emotional factors in mediation. Thanks, Richard, and rest in peace. Your legacy will live on.

The Awesome Power of a Sincere Apology

Tiger Woods played his hardest match today when he made a public apology to his fans, business partners and supporters. It was humble. It was sincere. And it was personal. The timing was his own, based not upon a public outcry or demand, but based upon his own personal journey towards accepting responsibility for his bad behavior. It worked for me. I'm not sure that it changes his past, but I am sure that a sincere apology has the potential to change future relationships for the better. It doesn't happen routinely in mediation. When there is a sincere and humble explanation for bad conduct, and a request for forgiveness, coupled with a pledge to change or correct it, it can simply diffuse a conflict in ways that no money can buy. People, even heroes and celebrities, sometimes fail and disappoint. A decent apology can go an enormous distance towards relieving the sting of disappointment that bad behavior creates. It's a powerful lesson for mediators and those who represent people in conflict.

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...