Precious Life: Just Hold On

Since my last post, I have attended two funerals and a memorial service. The first was a 19 year old relative. His family had no indication that he was desperately, emotionally distraught until it was too late. There was absolutely no signs at the memorial that the family of this young man was anything other than "solid". And yet, they were tragically unable to hold onto their eldest son in his time of trouble.
Last week, I attended a funeral of a 94 year old man. He was, by all accounts, loved. His gift to his family? His love. A long life, well lived. And then this weekend, when I arrived at Temple for regular Shabbat services, the community of the Jewish rehab center in my town was reeling over the death of a 23 year old resident. Everybody was doing the right thing in his case: his parents had gotten him into rehab and his counselors and Rabbi were working hard towards saving his soul. And yet...
The Rehab has a saying, "Just Hold On", but I would submit that it's not enough. We are not alone, and each of us has a responsibility to "hold on" to one another, too. I had a challenging mediation last week when I was asked to mediate a Conservatorship of an elderly lady, whose two living children could not agree upon the appropriate care for her and could not bear to be in the same room together--leading to an awkward visitation schedule. As a consequence, neither son was "holding on" and both feared she would die alone.
I'm not sure, once again, that I've got the answers here, but I do hope that my readers will reach out and "hold on" to somebody, knowing that it is not enough to "Just Hold On". Perhaps this mantra could open the path towards all kinds of peaceful resolutions. Three deaths in a month can certainly put things into perspective.

Being Present in the Moment

Mediators talk about "being present" as an effective tool towards helping people we hardly know resolve very personal conflicts. It is a term borrowed from spiritual practices where meditators (not all mediators) tune into themselves in order to be more available and accessible to the rest of the world. So it was with some amusement that I found myself forced to be fully present during the last two weeks on my vacation. For the first time, I traveled overseas without a book or even a pad and pen and project. On the first day of the cruise, a fellow passenger knocked down my Kindle, causing the screen to become unreadable. All of my planned reading went dark. I chose not to bring a computer or to register for the Internet on the ship. So I was forced, to my delight, to really tune in to my family. The first week was an Aegean Sea cruise with 28 family members celebrating my parent's 65th wedding anniversary. We had both deep and light conversations and we played games. We sang and danced and dined and hiked and laughed and experienced so much together. It really made me aware of how distracting our modern technology has become--and how the key to being "fully present" may be the simple, but oh, so difficult act, of giving up the gadgets and tuning in to one another with intentionality. The second week was a visit with my sister and her family in Bern, Switzerland and then three heavenly days in Paris. We had all been to both locations before, so we had no absolute agenda. We were spontaneous and carefree. In all ways, we were practicing "being in the moment"--which is really a great chance to renew and refresh in order to lean in to every mediation with the same intentionality. Fully present. No distractions. Time to think and listen more than speak. Now that's a vacation!

The Hazards of A Life as Mediator

This is my tenth year as a mediator. I mediate all kinds of tough business negotiations and painful litigated cases. I spend my days with people in conflict. There, I summon my humbler self to strive towards empathy, creativity and compromise. So it was rough this week when my youngest son (a College Senior) got hit by a man who appeared to be plenty affluent and at least my age in a parking lot. Instead of exiting the vehicle and apologizing, or inquiring if we were okay, the man refused to provide his insurance information and asked us to handle it directly through him. He argued with me about what damage may have been caused and pleaded with me to minimize the claim, since he was having a bad time. After the initial estimate was communicated to him, he again got me involved, explaining that he's grieving the death of his mother, a religious man who couldn't speak too near the Sabbath, and ultimately that his business in real estate was abysmal. My natural inclination was to empathize, encourage my son to go for a second estimate and then accept whatever he offered. Ultimately, today, after a week of negotiation, my son made the claim through our insurance, and they will make the effort to collect from the other driver. I couldn't get past this man's sad story to get to the "rights" which my young son was able to articulate. And yet...it's clear to all of us that had the man accepted responsibility at the outset, we would likely have accepted his real interest, which was to avoid going through insurance. So beware the mediator! Sometimes our hyper-empathetic habits cloud the ability to exert our rights. Good thing I'm off on vacation for a couple of weeks. I'll be taking a cruise in celebration of my parent's 65th anniversary with 20 family members. Now that will undoubtedly bring opportunities for mediation! No vacation when you're a mediator. Just unpaid leave...

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.