Indecision-Making: Science Helps Explain the Basis for Voluntary Consent

There's an interesting Book Review in this morning's New York Times on "The Art of Choosing" by Sherrna Iyengar. The study is based upon a famous "jam experiment" where shoppers were offered either six different jams to sample or thirty. Surprisingly, although more shoppers stopped by the table with more samples, ten times more sales were made at the table with the limited choices! The new study takes it a step further to look at the role of culture and religion in choice. Her findings reveal that Anglo college students respond most favorably when they have maximal choice, whereas Asian children performed better in response to a cue that they were instructed to do a particular task by their mothers! Significantly (for mediators, I thought), both groups resisted commands that were made by a stranger, third party. Ms. Iyengar's findings also demonstrated that members of more fundamentalist faiths demonstrated more optimism than those without strict belief systems in a higher power. She discounts this finding by reminding readers that the study was conducted in the U.S., where members of a particular faith remain in that system by choice. A provocative study which informs some difficult mediations for me. Too many choices can lead to obstacles instead of opportunities. And finding those options which the parties themselves offer can be much more effective than the mediator's proposal. Liberating and informative!

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...