Trust

Unless we're raised in an oppressive or abusive family or society, we generally grow up with a certain confident sense of trust. Some of us are better able to preserve the optimism than others. But it is this sense of trust which, in my view, allows a third party neutral to help settle disputes in matters that cannot be settled directly between the two parties. Indeed, in most cases that need a mediator it is precisely because the trust between the two disputants has broken down (or never developed). But without that trust (in somebody--either the adversary or the neutral), the dispute is so much harder to resolve!

A few examples: last week I mediated a business dispute in which the defense lawyer did not trust me (as the mediator) with his trial strategies, his evidence or the basis for his evaluation of the case. I figured this out early, when he negotiated my contract, because he didn't trust that I would not bill him for time beyond that for which I had been retained. Later, he sent sensitive documents to me via email, but wouldn't send them to my assistant, fearing that he would not maintain their confidentiality. The result was that I was as powerless as he and his client to settle that dispute. I spent the better part of 5 hours trying to gain that trust. It was evident to me that the lawyer or his client or both had been burned in previous mediations--and were not about to make themselves vulnerable in ways that needed to happen if the other side was to make major compromises in their position.

But it wasn't until today when I read the New York Times and Washington Post's story of the Israeli attack of the ship heading for Gaza that I understood why. We are now bombarded with so much dis-information, that we've all become a bit wary of trusting the sources we believed in as children. We are all left to "do the research" and make up our own minds what is truth and what is slanted by public opinion. We are all biased by the "side" we've taken in the past--striving to make it consistent with current conduct--rather than accepting that it may be a discordance or bad behavior. One account makes it clear that the Israeli's were set up by Hamas terrorists to act badly and look bad to the worldwide press. The other account (an essay by Michael Chabon in the NY Times, suggests that the Jews aren't, as we as children are told, smarter or more ethical than the rest of the world's population. Essentially, Chabon suggests that the particular Israeli's who performed this particular mission were acting on impulse without regard to higher ethics or intelligence.

Finally, on the personal side, I have been informally mediating a family matter between two close relatives. The trust one placed in the other has been called into question--and two men have had to question a lifetime of innocent trust in one another--about the loyalty of family and friendship as against opportunity and money lost and money gained.

Forgive my rambling, but I have to conclude that the common denominator is trust. Is it smart or expedient to begin with trust or should we all distrust until trust is earned? And can we conduct inter-personal relations, international relations or business relations this way? Is it good for us or bad? In my narrow world of mediation, I would at least posit that if you choose a mediator, you should lead with trusting her to maintain your confidences and work hard to help both sides gain the perspective needed to resolve the conflict between them...which, in my humble view, is always in everyone's best interest. Without some innocent trust, we may all fall down. But children are made of rubber and will bounce back. All of this distrust as adults could have much more dire consequences.

A Tribute to the Penultimate Mediator: My Mom

My mom is the ultimate optimist. She loves life no matter what it brings. She has always worked hard to make each of her three children, and each of our spouses, feel that they are her favorite and that our own three children are superstars. Each of her 9 grandchildren and each of her 5 great grandchildren adore her for her special attentiveness to them. She travels hours to see their hockey matches, and ballet recitals and babysits two four year old little girls most every week!...and don't even ask about my Dad! She has spent 65 years adoring him and making him feel King of their castle. Never mind that currently they are cruising the Arabian Sea, where she's engaged in bridge lessons while my Dad (now 83) is on deck watching for pirates (alongside the armed guards on the Fly Bridge who are legitimately hired for this purpose these unfortunate days).

So on this Mother's Day, I want to say "thanks" to my loving, wonderful, joyful mom. The lessons of optimism, re-framing every situation to find the good and positive, the attentiveness to each person's perspective, the perseverance in keeping a family as diverse as ours (in most every way) together, year after year, week after week, the balance, and re-balance of perspectives and needs, the open ears and eager open arms, the broad shoulders, the empathic listening, the quiet reassurance (even when it's hard to believe) that "everything's gonna be alright", the light sense of humor and sage advice (as in "you should invest in Kleenex, you're going to be buying a lot of them" when our daughter became critically ill many years ago), all go into the package that is my mom.

Happy Mother's Day: and Thanks for all of these valuable lessons. Hopefully, they have made me not only a better mediator, but a better mom as well.

Condoleeza Rice and Renewed Faith in the Future of America

Last night I attended the Southern California Chapter's Association of Corporate Counsel Association's Annual Event. I'll be honest, I did not expect to be "wowed" by the keynote speaker, Condoleeza Rice after hearing Bill Clinton speak at last year's event. But wowed I was. Rice is articulate, insightful, charming, honest and, in ways I never appreciated as she worked under President Bush, a brilliant thinker. She restored my faith in America, which my readers know was a bit shaken after last week's visit to Alberta. She reminded us that America was founded upon the "myth of the log cabin" and that she was proof that "it doesn't matter where you come from, it matters where you're going". She gave a few good lessons in leadership, my favorite of which was: "I'd rather be naive than cynical, because cynical people can't lead." She reminded us that this country was built by and enhanced by holding promise that the best and the brightest from all over the world could rise to their full potential here. She sees the wisdom and value in education for our children that includes a central place for the arts and despairs that the new global economic leader, if the historic American capitalism loses it's edge, will be replaced by the worst of America if we don't begin to address critical issues including immigration (which she seems to support in accord with the old plan developed by McCain and Kennedy under Bush), education and poverty. She set the audience on edge with respect to the threat by nations that are politically unstable, such as Iran and now Mexico, where the titular authority is unable to control a militant minority and where the government itself is subject to mis-dealings in ways that enhance rather than protect against the instability. As a former student of International Relations, I found her talk fascinating. I haven't yet found the thread which binds this to the work of a mediator--but I'm pretty sure it's there--perhaps sewn into the lining or between those logs, holding us all together.

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.