Balancing Optimism with Realism

The New York Times article by Sheryl Gay Stolberg, refers to President Obama as "The Cheerleader in Chief" in today's Business Section based upon last week's State of the Union address. As a mediator, I find myself required to do much the same. On the one hand, I am asked to convey an optimism that all conflict can be settled and that the parties can achieve their best possible results at an informal hearing in our offices on the very day set for a mediation hearing. On the other hand, I need to be that realistic "truth sayer" who reminds the parties that the potential exists that the case will not settle, causing a substantial risk to both parties, uncertainty in the outcome and an enormous expense. The article speaks of Obama's first two years being busy with a kind of "triage" of an array of emergencies ranging from an unpopular war to economic crisis. When I hear a mediation, so many times, the parties have been mired in their own discovery disputes, that they are unable to see the potential resolution or "way out". They arrive with a variance of the evaluation of damages and often divergent views of the facts, the law and whether certain evidence will ultimately be developed or admissible to prove their positions.

I particularly loved the example used by Ronald Reagan. He told the story of a boy who got a pile of manure for Christmas and declared, "There must be a pony in there somewhere!" In the end, the article suggests that this is a "trust but verify" moment. I suppose that the parties before me expect no less. A balance I strive to achieve and convey. Even when the parties bring nothing more than manure, an optimistic mediator will help to look for the pony underneath the pile!

It's Never "Just About the Money"

I was inspired at this weekend's Consumer Attorneys Association of Los Angeles' Gala and Installation of Officers. These are the trial lawyers who achieve the biggest verdicts for their clients and yet they spoke not of their financial marks but of their striving for "justice" for their clients. So I got to thinking about whether mediators can acheive justice, or if what we dish out is only money? There's a new show, "Fairly Legal" which depicts a sit-com/drama of a mediator who seems to stick her neck into all types of matters--civil, criminal and even social. Although it's plenty dramatized, it occurs to me that in a broad way (pun slightly intended, but with apologies), she is out for mediating justice--and so far without dealing with any monetary issues. I hope that our profession has not, and will not, ever be so commercialized that people only choose to mediate their disputes when it's "only about the money". We can offer a chance for face to face interaction, for control of the outcome by the clients (not a group of strangers or a "higher power" as a Judge), and compromise. Does justice in Court offer any of those features? I don't think so. It's a different version of justice, one where there is not a clear winner and loser, but nonetheless, not limited to money. I hope in the coming year that I can keep sight of that goal, just as the Trial Lawyer's did on Saturday night: It's never just about the money and we owe our clients that chance to achieve "justice" in our alternative forum as well as in Court when they choose.

New Reasons for Being a Mensch

When we look for the ideal husband for ourselves or our daughters, many have long known that the primary goal is to find a man who is a "mensch". (Pictured are my husband and new son in law--both epitomize the term!). This week, the California Supreme Court reversed an Appellate court decision and upheld confidentiality in mediation, even where it may allow a lawyer to commit malpractice and then shield it from discovery in a subsequent lawsuit. Cassel v. Superior Court, 2011 DJDAR 658 (S178914 filed Jan. 13, 2011). In essence, this creates a heavier burden to "do the right thing", because lawyers and mediators (and their clients) must know that the deals we strike in mediation cannot be later attacked by evidence that the lawyer acted improperly during the proceedings.

This morning's New York Times includes a Book Review of "Practical Wisdom: The Right way to do the Right Thing" by Barry Schwartz and Kenneth Sharpe by Bryan Burrough. Burrough calls the review, "The Spirit of the Mensch" and applies the practical wisdom of the book authors to the practice of law, medicine and business. In today's troubled age, and the weekend celebrating the great peacemaker, Martin Luther King, Jr. as well as the day I am attending a wedding of two young people who strike me as among the most ethical, decent, menschy I know, I can only offer that it is my hope that the Cassel decision will not give a green light for misbehavior, but instead impose a quiet code of "menschleikeit"--encouraging and inspiring lawyers to be their best and highest selves even though they have the cloke of confidentiality at that most critical moment of advising their clients in mediation.

The Ten Plagues

In the spirit of my New Year's Resolutions to broaden and deepen my own intellect, I attended a Torah Study yesterday by Rabbi Steve Leder of Wilshire Boulevard Temple in Los Angeles. We read from this week's Parscha (portion) the familiar story of The Ten Plagues which G-d caused in Egypt when the evil Pharoah stiffened his heart. The sixth Plague was darkness. The commentary about why "darkness" was considered a plague equal to blood, boil, locusts, hail was interesting. The Rabbi's concluded it was because "darkness" would not allow people to see one another's humanity. As I always do, I had to consider how this relates to my work and my role in other people's conflict. My conclusion is that mediator's are trained optimists. We look for the light in the dark canvas of other people's lives. Maybe we are born this way and it's what draws us into this field. Consider the "re-framing" technique: are we not attempting to find the light in an otherwise bleak situation. Particularly in my work in employment mediation, I find myself constantly looking for the opportunity that the lost job, and oftentimes the lump sum settlement creates: can they now put away money to put their children through college, take a long awaited vacation, return to their local community college to re-train and pursue something they have long wanted to learn how to do? Thank you, Rabbi Leder, for leading me to this journey of introspection and helping me make sense of Torah in the context of mediation!

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!