Reflections from the Alberta Arbitration and Mediation Society

I was honored to be invited to present two talks at the Alberta Arbitration and Mediation Society's Annual Conference in Edmonton last week. The President, Pat Withers, had heard about my presentation at the ABA Dispute Resolution Section's Conference in 2009 on Ethics and Mediation and was excited to have me do a reprise. In fact, since the time of the initial invitation, I had given the updated version of the talk at this year's ABA Dispute Resolution Section in San Francisco just two weeks before. It was met by a lively, engaged, largely American audience who had much to say about their own ethical dilemmas dealing with American lawyers and their clients in cases ranging from personal injury (that was sometimes exaggerated) to workplace discrimination (that was sometimes dependent upon nuanced evidence that was hard to secure). So it was with somewhat troubling to me to find that the audience of about 50 Albertan mediators could simply not relate to the stories I told of deceitfulness, exaggeration and secrets which lawyers and their clients reveal to mediators on occasion, and we are duty-bound to maintain those as confidential. In short, many members of the audience confided in me afterwards, "this would simply not happen" in Canada. Some of it is institutionalized. For example, there is no such thing, apparently, as civil fraud. Fraud is criminalized and would give rise to terminating the mediation and reporting to a Judge in the event of such behavior. One can imagine, then, how the threat of criminal prosecution may deter the employment of such "tactics" which are so commonly seen in civil disputes in the U.S. Second, citizens have access to good health care at no cost, so there is no incentive to sue a third party (and in fact in cases of "minor injuries" a law against it) in order to afford costly and necessary medical care following an accident. On and on, the examples I gave of ethical dilemmas, some personally experienced and many arising out of published California cases that have tested the duties of confidentiality as against the professional ethics of attorneys appearing in mediations of civil disputes, were, simply stated, unfathomable to my Canadian audience.

As usual, I learned more from my "students" than what I taught. But it particularly heightened my own consciousness about the cultural differences between American attorneys and mediators and our very nearby neighbors. The second workshop I presented was on Breaking Impasse. It dealt with sophisticated models or tools that mediators in the U.S. commonly use to get high stakes cases resolved (including brackets, decision tree analysis and risk analysis as well as mediator's proposals). Once again, these were very "foreign" concepts to the Alberta mediators who were unaccustomed to negotiating over money without committing to a robust opportunity for the parties to collaborate, and resolve through interest-based negotiations with the monetary issues then falling into place without mediator intervention. It's a purist model of mediation in which I was also trained, but admitting to this audience that I rarely use it without the necessity to also get into "the money" through shuttle diplomacy made me feel "unpure".

So it is that this photo--depicting the reflection of Canadian Rockies in the pure, clear Lakes, made me think hard about the value of self reflection, the open vistas just beyond our borders and the American way. More questions than answers, but what a fascinating experience for me and a deep and sincere appreciation to my Albertan friends and colleagues for giving me a chance to do this self-reflection and for listening with open ears and arms to the ethical issues we face here as though they are universal.

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.