Being a California Lawyer

I was invited to present at this year's Annual California State Bar Conference on the topic of "Winning your Case without going to Trial" with my colleague, Hon. Joe Hilberman. We had a great audience who were respectful, engaged and even, I dare say, introspective about the direction of access to justice and their own markers for professional success. The conference took place in sunny, beautiful Monterey, California and was, in almost every way, a breath of fresh air. I hadn't appreciated that I am so routinely surrounded by lawyers zealously advocating their client's positions, embroiled in conflict, adversarial that I had nearly forgotten how congenial, friendly, even intellectually engaged a group of lawyers can be when there are no client's around! The attendees were enormously diverse in age, geographic origin and perhaps even worldview (although not very diverse ethnically). Yet they came with a common purpose which probably began with securing their continuing education credit but ended with their broadening their education in areas of ethics, the psychology of bias, techniques and future-thinking in new areas of the law. In the end, new friendships and old were forged and we experienced that although advocates in the courtroom, we share more in common than differences. Great conference.

Steering from the Back of the Boat

Today's New York Times Business Section had an interesting interview of Anne Berkowitch, co-founder and Chief Executive of "SelectMinds", a social networking company in Manhattan. She talked about the keys to effective leadership and listed the most important as "being able to listen to people." She analogized to "steering from the back of the boat" as opposed to being the military general in front of the troops and the first one rushing into battle. As many of my readers know, my husband and I are avid sailors, so the metaphor really struck me as to the reason mediation can be so effective. The mediator is trained to do exactly as Berkowitch advocates. We bring together a group of people, get the best of them and get them wanting to work as a unit toward some goal post (settlement/resolution of their conflict). We listen to them, trying to understand what really motivates them (or is driving the conflict) and then get them to push themselves beyond their comfort zones. As I go off to relax on the boat this holiday weekend, I will be so happy to carry the metaphor into my week as the key to successful settlements of dispute. I wish you fair winds and smooth sailing!

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.