Thinking Within the Box: Facilitated Dialogue without the need for Conflict

My parents, 82 years young, are beginning to recognize that they want the input of their adult children in managing their lives: business investments, tax and estate planning, cooking, driving, traveling. This morning we took advantage of the holiday week to all gather together for breakfast and a business-type meeting. Before going, I gave some thought to structuring the discussion in a mediation like way, but without the conflict. It was tricky: my brother and my husband clearly anticipated that I would unwittingly create or highlight conflict when there wasn't any. Instead, it worked this way: We began with my Dad, the patriarch, expressing some of his concerns and interests. I took notes and then invited the others sitting round the table to chime in. In the end, I set an agenda with 14 items (and we addressed only 7) ranging from "ground rules" including privacy from the next generation to a framework for regular commuication (Semi-annual meetings with our generations only--which my brother will "convene" via email in May and beginning of December). Because there were no real interpersonal disputes, it was more a useful tool for setting up a basis for future communications and accountability. (Who will check in to make sure they are eating well and are protected from financial predators, for example?) Mom promised never to drive to a family event in an evening without first checking with my nearby daughter. Dad promised that if they travel home at night they will arrange for someone to pick them up at the airport and not wait for a cab who may not be willing to drive them since they only live a short distance from the airport. My husband agreed to discuss some real estate issues with their accountant before they decide how best to characterize a taxable event that occurred in the past year and affects some family property. I submit that for my mediator friends, this was a useful way to engage our skills and expertise outside the world of conflict--but in a way that I am proud to say was highly appreciated by my brother and sister and their spouses and my terrific parents. It started as a difficult conversation, but once we put it in a familiar (to me) framework, it worked smoothly and paved the way for whatever more difficult conversations will inevitably follow.

Civility or Benevolent Dictatorship?

Today is my son, Zach's birthday. He is a man of many facets: a musician, a sharp business mind, a bon vivant, athletic, handsome, sweet, creative, tough, ambitious, and all around great guy. And so he brings me to consider my own multi-faceted business practices. I have been struggling this week with the objectives of both litigators and mediators in settling challenging commercial cases. On Monday, I lectured at a lawfirm on "Civility" and was struck by the ease with which litigators could rationalize less civil conduct than the State Bar's Civility Guidelines dictate could be ignored in the context of litigation. Then this morning's New York Times included an essay called "The Bipartisanship Racket" by Frank Rich Rich talked about the shortcomings of a new movement of "No Labels" and contrasts it with the much needed "leadership" virtues. At a holiday party last week for the Southern California Mediation Association (SCMA) my own trainer, Therese White asked me whether I employed an "Evaluative" style in mediation. I had to think for a few minutes. And then, in another article in the New York Times this morning, there was a profile of Bruce Flatt, of Brookfield Asset Management, who is known for his excellent skills in negotiation and has been called a "Benevolent dictator". My synthesis of this is that the two strains: civility and "heavy metal" evaluative mediation can be effectively combined. With civility as the overarching framework (ie: true benevolence) a form of dictatorship, although anathema to true mediation, may be the only way that challenging litigated cases can be effectively resolved. If the parties or the lawyers knew how to settle their claims without a benevolent third party dictator, they wouldn't need a private mediation! Something to consider...

The Power of Silence

Now that the Company has gone and we've delivered borrowed dogs and leftovers where they belonged, I note just how quiet my home is. I'll confess that I even abhor the constant Christmas music now that it's played on radio from Halloween to New Year's. So I find myself immersed in a welcome "hush" this Sunday after Thanksgiving.

This morning, while tuning into the Sunday morning news broadcasts, I heard one of the commentators talking about an aphorism in journalism about silence. He said the old adage goes: "Let the silence suck out the truth." What a powerful message for mediators! Silence can be among the best tools and yet least appreciated or employed in a mediation. It's been a hard lesson for me to learn: the art of sitting on my hands with my mouth shut and allowing the disputants to discuss and debate and ultimately collaborate on a way to settle their own disputes. Yet I find that in those moments when true emotion heats up and boils the silence in the room can, indeed "suck out the truth" in the key to a difficult resolution. Welcome quiet and the truth shall set you free!

Is "Settling" a Dirty Word?

I pride myself on settling cases. Most of the time, somewhere near the beginning of the mediation hearing, I explain to the parties that what we're after is a "compromise", not a win. Most of the time, they're satisfied with the outcome: it ends the lawsuit and usually resembles what is legally "right" or at least justifiable financially. And yet, when you "google" the word "settlements" you get a lot of images of uninvited housing developments in lands whose ownership is still under dispute. Does "settlement" also mean something like "staking out your claim"? Or consider the "settling" that takes place in so many homes in Southern California. That one causes cracks in our ceilings and walls after earthquakes have caused our foundation to tremble over so many years. Is that a good thing? What about "debt settlement"? That one gives relief to the debtor, so probably is analogous to the kind of settling I do for parties before me. And consider "settling down" as in making peace with your current situation. It appears to be subject to one's interpretation in ways that make my job that much more challenging. Do I dare to urge the parties to "settle" their lawsuit or is it useful to consider other terminology in light of the various meanings attached to the word?

A Week of Holding Conflict Together

I had an unusually full week and resolved 4 conflicts. By Friday night (I got home after 9 PM), I was exhausted and really need a weekend to re-charge my batteries. Two of the hearings were achingly similar: both women in their early 60's who were discharged after 20+ years of employment from their public entity careers after experiencing very typical orthopedic-type medical disabilities. After spending the days with these two dynamic older ladies, my own bones ached in empathy! It must be very hard to face retirement--no matter the nest egg you've got from your years of working at the same employment. Both were settled, at VERY different results, but both employer and employee were satisfied with the results. One of the cases this week was for 6 illegal aliens, all facing deportment proceedings, against a "notario". It presented a glimpse into the fascinating dynamics of the underground industry of folks who portend to help this community, without any power over the immigration authority of the U.S. government. It called into play the moral/political morass of whether some help and an ability to stay in the U.S. (illegally) for years was better than immediately going back to Mexico when their truth was revealed about how difficult it is to gain citizenship here. Then yesterday was a complicated purchase and sale of a business. Two friendly businessmen in the same industry made a bad mistake and entered into the loosest of transactions without consulting appraisers, business brokers or lawyers. Now 6 months later, they needed to re-do their deal by spelling out all of the terms they needed to negotiate when they were on friendlier terms. Thirteen hours later, they have a transaction I hope they can live with! Meanwhile, this mediator had an interesting, but exhausting week.

The Wisdom of My Mentors

I attended the SCMA Fall Conference yesterday for my 9th year. I'll confess that I was less than enthusiastic because for the first time in the past 5 or 6 years, I was neither presenting nor chairing the conference. But my expectations were so far exceeded. From the beginning of the day, with a moment of memory of Richard Millen, to the awe inspiring work of my friends, Laurel Kaufer and Doug Noll at "Prisons of Peace", the day was devoted not merely to developing "The Business of Mediation" as the theme suggested, but to getting to the business of mediating in every way we are called upon to do. This year's honorees, Woody Mosten and Lee Jay Berman have both been mentors and icons for me in developing my own practice and they didn't disappoint in their keynote addresses yesterday. Woody provided the constant (but often much needed) reminder than our approach to marketing needs to rely upon our approach to mediation: listen to our clients and referral sources, inquire about their needs, bring peace (not sales) into every conversation at every opportunity. Woody has privately counseled me on many occasions in this new venture: model the behavior that people want in a mediator and they will hire you if you are trustworthy, demonstrate genuine integrity and can bring peace into every room you enter.
Lee Jay did a dynamite presentation on "Closing" the Deal. Lee Jay is, I have found, a chameleon in that he presents himself as just so put together he could be called "slick", and yet is so very thoughtful, deep-thinking, insightful, that it's a consistently welcome surprise. He taught me a few new great tools for closing, and what's more, demonstrated his humanity, his humility and all of the reasons why so many in our community look up to him as mentor, teacher, friend.

I also learned a great deal of things to consider, as solid, reliable business habits, from my friends and colleagues, Ralph Williams, Nikki Tolt and Len Levy. They are those special people in my professional life who have taken me in as a fledgling "newbie" and given me the guideposts and reassurance that if I work at this, and want to succeed, and stay the course, I will become that successful mediator who can make this my life's work.

I am so grateful for those who have given me so much advice over these years. And so proud to reflect that I have followed their advice and am still a part of this mediation community after 9 years. With both enthusiasm and gratitude!

Kudos to SCMA, Phyllis Pollack President, Kendall Reed, Chair and to my friends, Laurel Kaufer, Ralph Williams, Nikki Tolt and Len Levy and my mentors, Woody Mosten and Lee Jay Berman for an inspirational conference. It will not soon be forgotten!

The Unsung Mediators of Nashville

I just returned from Nashville, Tennessee for the International Academy of Mediator's Conference. What a fabulous experience! We heard music everywhere with the most compelling, engaging lyrics anywhere. We saw amazing artwork in the botanical gardens by the Glass Artist, Chihuly and an Impressionist Exhibit at The Frist Museum. And we heard original music performed at The Bluebird Cafe, the Honky Tonks and by Alex Harvey, writer of "Delta Dawn" and Sammi Moore (beautiful young artist with a soul that belies her tender years). We heard from W. J. Michael Cody, the Attorney hired to represent Martin Luther King in Memphis the day before his assassination and heard his famous "I have a Dream" speech about growing up White and Southern and the beginnings of the civil rights movement there. He introduced us to one of our own members, George Brown, who was the First African-American in history to be appointed to the Tennessee Supreme Court and who partnered with Cody to bring pro bono legal services to the African-American community in Memphis as a young lawyer. From beginning to end, this was a conference, an experience, a memory to last a lifetime and I am so grateful and humbled to have participated.