Closing the Deal in Mediation: How do you Speed the Process?

As another year has seemingly flown by, I close this year's blog with a question about rushing through the process of negotiation.  After reading the briefs, and 10 years of experience as a mediator,  I am sometimes tempted to predict the outcome of the negotiation and once the discussions get "on track"--would like to get to 6:00 at about 4:00 P.M.  This is, in my opinion, always a mistake! 

Just as childhood or work experience, the trying moments in life pass excruciatingly slowly, yet the years fly swiftly by.  I read an editorial in the New York Times last weekend about a man who worked in a prison where the prisoner wanted to change the clock to mark the months, rather than the minutes that he had left to remain in prison.  Minutes and even hours, were immaterial to him.  Only years matter when he was serving time behind bars.

People in conflict usually come to a mediation after months or years equally imprisoned by their anger, frustration, griefs and fears.  In a single day, we mediators hope to guide them through the ordeal and set them free.  Clients and their lawyers, on the other hand, need to vent and be heard.  Both client and lawyer need a chance to fully articulate their well-considered opinion before compromise can be achieved. Skipping over the facts towards the march to an inevitable negotiation is an error for the overly eager! 

I wish you all a happy and successful New Year and I wish for each of us to have the wisdom and grace to slow down, if only for a moment, before another year has passed.

How Does a Mediator Remain a Beacon of Peace to Conflicting Parties?

      "Tis the season"...to think about peace on earth and good will towards men (and women).  As a professional mediator, I am keenly aware of the conflict that arises between people every day.  I am invited into the lives and struggles of strangers to gently yet effectively intervene with some dosage of humanity, kindness, understanding and empathy.  This I do with equanimity, diplomacy and purpose.  I am asked to draw upon my  20 + years of legal experience and my 10 + years developing skills as a mediator, to assist parties in reaching a satisfactory solution to their suffering in a single day--usually by the transfer of money, and often also based upon an offering of some understanding by a neutral third party as to what lead them into the conflict in the first place.  This is harder than it seems and often results in an exhausted and depleted mediator by day's end.

     What are some strategies that you have developed to keep you from being drawn into the drama that gives rise to the litigation and unfolds throughout a mediation hearing?  How do you balance empathy and understanding with clarity to be a beacon of light forward? Are readers that are lawyers as genuinely passionate about their client's causes as they appear? How do you let it go after the settlement is achieved?

     Next week, I will be taking the week off from blogging and instead spending Christmas aboard our sailboat in the Pacific Ocean (we'll be in the nearby harbors at Long Beach and Newport Beach--enjoying family, lights, and letting go of the stress of the year).  I hope that there I will find some guidance, take a few much-needed days off, and enjoy the peace, light and clarity that I wish for all of you in the coming Year.  Have a wonderful holiday week!

Do Secrets Compromise the Mediator's Neutrality?

   Occasionally, I get stuck in a corner where I know that the Defendant in a dispute would pay more than the Plaintiff's "bottom line".  Of course, this is revealed to me in confidence, and of course, I maintain that confidence all day long--even after the case settles for something less than the Defense was willing to pay.  Still I am a little haunted by the collision between my duty of confidentiality, which in this instance is crystal clear, and my duty of neutrality.  By NOT revealing or even hinting to the Plaintiff and his counsel that the Defense would pay, hypothetically "up to $75,000" at any time before the case settles at $55,000, am I favoring the happy Defense counsel and his client? Am I maintaining my neutrality or do I have a duty to hint at the possibility of a better settlement to the Plaintiff even if he is quick to reduce his demand to $55,000?  My hypothetical assumes that Plaintiff is satisfied with the settlement at $55,000 for a variety of reasons which may include Plaintiff's sordid past history, his lawyer's incompetence or failure to comply with discovery deadlines or his inability to finance future litigation.  As in every settlement, the parties are both satisfied with the outcome of the mediation, but a mediator with a conscience is left wondering:  does my duty of confidentiality compromise my duty of neutrality?  I'd love to have your thoughts, fellow mediators as this one is a big SECRET!

The Private Meeting Between Clients: Mediating Dangerously

      In it's purest sense, a mediation is supposed to be a chance for direct confrontation and communication between the principals engaged in the dispute.  Far too often, in the age of litigated cases and commercial mediation, this step is avoided or eliminated at all costs.  Still, whenever there has been a strong and positive pre-existing relationship, such as employment, family or even marriage, it's great if you can orchestrate a private meeting between the principals early on in the mediation.
     This week, I took that risk and had the Human Resources manager meet privately with the terminated long-term employee to discuss the reasons for her decision, her regrets and her thoughts about future potential alternative employment.  At the same time, the employee had her chance to rage at the H.R. manager, express her sadness for being let go so abruptly, her frustration in finding alternative employment and her profound sense of loss after she was fired.  The meeting ended with tears and a hug.
     The mediation was not over, but it was only after that watershed meeting that the parties could productively and collaboratively work together to find a way out of the lawsuit.  It is mediating dangerously, since neither the mediator nor either sides lawyer was present to orchestrate or script the meeting and each of us took the considerable risk of allowing things to blow up instead of over.  But in the end, when those private meetings result in tears, hugs and ultimately settled cases, it is oh, so rewarding to take such a risk.

Leaning In to Conflict

Sheryl Sandberg has written a great book called "Lean In" about the importance of women assuming a certain posture in business and personal interactions designed to demonstrate that we are truly engaged and committed to serious business as equals at the conference table.

This week, I heard a civil service case in which an employee who was discharged from her employment after an angry outburst directed at her Supervisor lead to her termination.   As a civil servant, she was entitled to have an administrative appeal before the Personnel Commission makes the termination follow or makes the decision to overturn the termination and restore her to work.  The striking part of the case for me was that after she was separated from her work site during the investigation, no one really took the time to listen to her complaints, which were plentiful!  She painted a picture through numerous witnesses of a toxic environment in which screaming and disrespect were commonplace amongst staff members and tears and resentment were a regular occurrence.

It sounds trivial, but often times the way out of conflict is to allow your client to fully vent and explain the circumstances to a non-biased third party.  In the heat of the conflict, nobody within the work place can completely divorce themselves from the environment in order to see the full context of the events precipitating a termination with an un-biased view.

The outcome may be identical, but the output is very different.  Just giving a person a chance to be heard can be a very satisfying and emotional experience which may have a healthy impact on everyone involved. 

It turns out that "leaning in" can be a way to "lead out" the parties who come to a conflict in so much pain and chaos.

As my readers approach Thanksgiving next week, I give you permission to put your elbows on the table and practice "leaning in" to really discover what is affecting at least one person at your holiday table.  You will both be grateful for the opportunity to connect in that way.  And isn't gratitude what this holiday is all about?

Finding the Sweet Spot: The art of the Mediator's Proposal

      Lately I have been finding that very skilled litigators frequently defer to me as mediator to help them settle their cases by making a mediator's proposal, even before they reach an impasse in mediation.  In fact the last 3 of 4 cases I have mediated have been resolved on the basis of a mediator's proposal.  So how do I do it? 
     At a certain point in the negotiation, when it threatens to stall, but before it hits an impasse, I begin negotiating with each side in hypothetical brackets or ranges until I hear or sense there is a potential overlap.  Contrary to the beginning stages of negotiation, this one really becomes a negotiation between mediator and parties, as opposed to party against party. 
     By the way, there is not always an overlap, so sometimes I have to consider both the "bluff factor" and the "stretch factor".  That is, one side may be telling me that the case will never settle below 6 figures ($100,000.00) and I may ultimately discount that by 10-15% and make a mediator's proposal at $85-90,000 on the assumption that the strong assertion of a particular number has some "bluff" to it.  The other side may tell me that they will never go above $75,000, but in a mediator's proposal at $85,000, that side will usually "stretch" to get there.
     I just read and reviewed Dwight Golann's excellent book, "Sharing a Mediator's Power" where he describes the negotiating dynamic in mediation as a triangle with each opposing party at either side and the mediator as the base of the triangle--negotiating with both and still trying to achieve balance and harmony between the two, standing as their foundation and supporting them in an integral function of her own. 
     I prefer to think of it as hitting the "sweet spot" where the proposal just abuts the intersection of good ideas and bad ideas to make a sensible means of settling the case after all other efforts through the course of direct and indirect negotiation have failed.  And boy do I feel triumphant when I hit the sweet spot and both sides say "yes".

Beware the Bully Negotiator

     I have just finished reading Professor Dwight Golann's excellent book, "Sharing a Mediator's Powers".  It was timely in that last week I mediated a contentious wrongful termination case in which one of the advocates was a notorious "bully".  The case ended with a mediator's proposal which was accepted by both sides.  But I have to say that I was very concerned that the bully advocate had hijacked the mediation and would be gaining an unfair advantage as the result.  I was so relieved and gratified when both sides accepted the proposal and the weight of the balance was taken off my shoulders.

     As Professor Golann details, the mediator gains all of her power from controlling the process of the negotiations, but the advocates can in fact achieve a better outcome for their clients if they are successful in getting the mediator to help them, for example, to make sure that all necessary parties are at the negotiating table, that a joint session is either intentionally held or omitted, that the mediator avoid "reactive devaluation" by delivering key messages instead of delivering them yourself directly to your adversary, and so on. 

     The integrity of the process is sacrosanct.  As Golann concludes, "mediation is an active process, capable of almost infinite variation.  Good lawyers know a mediator can help them negotiate effectively, and are not bashful about asking for help."  Just be careful to maintain your balance!

    

Know your BATNA and WATNA

Last week's monthly "Settlement Strategies" newsletter talked about the ZOPA and NOPA (Zone of Possible Agreement and No Possible Agreement), in preparation for "winning" at negotiation.

This week I address another set of acronyms:  the BATNA and WATNA.  This stands for the Best (and Worst) alternative to a negotiated agreement.

Once the parties are engaged in litigation, it is hard to step back and genuinely analyze the best and worst possible outcome.  It may surprise you to know that as a mediator, I do not think it is necessary to carefully look at the BATNA or the WATNA until or unless you are presented with a respectable offer.  Before then, you are only speculating, because you only know your side of the equation, not the "alternatives".  After the negotiation has become and when there is an offer on the negotiating table that has some appeal, the lawyer representative should help their clients to engage in a "what if" questioning mode to determine what the consequence of turning down a respectable offer might be.  Will the rejection signal a breakdown in negotiations altogether? Will the conclusion of negotiation trigger a large expenditure in costs to do better? Will the outcome of a pending motion for summary judgment cause the losing party to double or triple their offer? Is it worth the risk?
    
     Looking at your BATNA and WATNA, a term that most business students learn, but law students seldom know will make you look smart and may improve the outcome for your client, too.

Helping the Lawyers to Gain Client Control

One of the most valuable services a mediator can provide is to conduct the most difficult conversations between a lawyer and his own client about the value or risks and merits or defenses to the case pending.  Let's face it:  when lawyers take on a case, they are as starry-eyed as their clients about the merits of their position.  As trial approaches, discovery is completed, thorough investigation is conducted and realities of costs v risks and benefits has set in, both lawyer and client may change their evaluation. 

Without treading into the dangerous waters of creating or highlighting any conflicts of interests between lawyer and client, a good mediator will ask a lot of rhetorical questions and be a leader in this regard, based upon the claims being made by each side and her independent evaluation of what is truly needed in order to resolve the dispute.  The key is transparency so that neither side feels that you are working on their behalf, while underscoring the most likely outcomes if the matter is not settled, including the risks that one or the other side is correct in their new evaluation!

Last week, I mediated a small case in which not only did the defense lawyer think his clients should pay the Plaintiff's bill, but one of the two partners believed it would be more expedient and less expensive to pay than to continue to fight.   The other, of course, in a dramatic fashion, adamantly maintained that this was extortion and he would rather lose the case in trial than pay for a claim which he did not believe had merit.  There were lots of micro-opportunities to mediate in only the defense room! 

This kind of mediation is a great challenge.  A fearless mediator is one that dives into these micro-conflicts before they break out into nasty accusations that potentially derail the negotiation at hand.

Begin the Mediation Before the Hearing

     Call me old-fashioned, but I think it is critical to have a voice to voice conversation with every lawyer involved in a litigated case before the mediation begins.  This week, I failed to follow my own cardinal rule because after the first conversation with the defense lawyer, I knew that my hardest effort would be to get his clients on board with an earnest interest in settling the dispute. 
     Then when I arrived, the Plaintiff's lawyer informed me that her client was short on time and requested I begin the process with them.  I happily obliged and ultimately got the parties negotiating earlier than usual in the process.  The trouble was that neither had revealed to me beforehand that they had previously discussed settlement and that there had been pre-litigation offers and demands (between the principals before they engaged lawyers) that were identical to those made at the hearing, but now after many months of litigating and incurring costs and fees on both sides. 
     When I returned the "final" demand, the Defendants, understandably, were incensed by the number, since this had been communicated to them many months before.  They lost faith in the process and walked out without a settlement.  The whole debacle could easily have been avoided had either side communicated to the mediator what the history of settlement negotiations had been.
     Next time, I am going to ignore the signs and signals and ask the probing questions of both sides before I sit down with their clients to begin.  Email communication only goes so far.  Go ahead and call me old-fashioned.
     On a personal note, I am thrilled to have been named to the Top 50 Neutrals list by the Daily Journal for the State of California.  Many aspiring mediators have asked for my secret to success.  That is, I confess, old fashioned too:  hard work, many hours of trial and error and perseverance in a profession that can be more rewarding than any I could imagine, but challenging every single day!

Lessons from Improv Actors for Negotiators

     This week, I'm preparing a couple of talks on negotiation skills and conducting some research which has lead me to draw upon improvisational acting class.  One of the cardinal rules of improvisational comedy, (as in negotiation), is "offer" and "acceptance".  When one participant offers up a comment, the other accepts it and builds upon it.  Rather than disagreeing with an unwanted or unexpected idea or offer, the competent "player" simply says, "yes, and.." instead of "but, no..."  Consider the possibilities! 
     For example, where one party offers to buy a house at 10% below asking price with a 90 day escrow, instead of rejecting the offer, perhaps the seller's response would be:  "Yes, the price is very close to asking price, and if the buyers could close in 30 days, it would be a particularly attractive offer."  In response, rather than, "But we can't close that soon", the buyers could say, "Yes, 30 days would be agreeable, but we won't have the financing in place for 45 days since we need to close escrow on our own home".  "If the price was 10% lower still, we could probably get a bridge loan sooner."  Do you see how we are making progress here?
     Another lesson from Improv actors is not to ask questions, because they don't build on the story and lots of questions require the other fellow do all of the work on stage--inventing the setting, roles and action.  For example, in the image above, if one guy says, "What's for dinner?", the other has to invent a meal.  If his invention includes, "Spaghetti and meat balls", the other side cannot fairly respond with "and what's for dessert?".  Instead, it's his turn to say, "Yes, spaghetti is delicious and I can eat it all night with my hands."  In negotiation, asking questions can cede power to the other party, at least temporarily, putting both of you in the spotlight unnecessarily and risking giving away too much power and creating a negative interpersonal dynamic.  For that reason, you don't want to start a negotiation with, "what do you propose?" but rather by suggesting a proposal which can be refined as the narrative builds.
     Finally, improv actors are trained to maintain eye contact.  It's essential to send and receive physical cues and to deeply engage with one another.  In negotiation, serious listening, without distraction is critical to successful outcomes.  You don't want to lose sight of your objectives or your negotiating partner!

Reframing the Value of Settlement

    Psychologists have learned that people are generally more averse to loss than to risk of not getting a gain.  In other words, if I offer you $100,000, but you only have a 50% chance of winning it (value now $50,000), you are more likely to accept it than if I say, for example, if you lose the case you'll have to pay me $50,000.00 (making the settlement value potentially a net loss).  For this reason, a valuable offer which has no risk of cost should be carefully re-framed to shake out it's true value.
     I have found the most troubling cases lately are those of older workers who have been discharged from their jobs with little prospect for being re-hired before their retirement or pensions kick in.  After two or three years of diligently searching for work, they often have relatively high lost earnings and can justifiably claim many more years at a fairly high salary that they can anticipate being out of work.  Where an employee loses their job in their 20's or 30's, they can usually show a year or two of lost wages.  After that, the world expects them to find alternative employment.  An employee in their mid-50's can often demonstrate a loss of at least two years past lost wages and an additional 5-10 years of future lost wages, causing the "actual damages" to creep up to millions of dollars quickly.
     In these cases, it's a great opportunity for the mediator to reframe the value of the offer in conceptual ways that extend beyond money.  For example, an offer of the equivalent of a full year's salary can be described as a fair offer if it had been made at the time the termination occurred in a way that was intended to give the worker a full year paid leave of absence to re-train or find a more suitable work environment for himself, even if it is only a fraction of the actual out-of-pocket losses incurred by the time of the mediation hearing.  The same hypothetical $100,000 can also be couched as a college fund for both of the Plaintiff's children:  which is really what they were working to save in the past ten years--but now in a lump sum.  (Having put three children through college, I am keenly aware of today's costs of college--ranging from elite private to State schools).  Too, the $100,000 can be conceptualized as enough to pay their mortgage for six months and pay off their credit card debt.  In other words, we mediators cannot un-ring bells and turn back the hands of time...but a healthy offer can put an end to the lawsuit and make for a better future if a neutral can present the offer in light of it's true value, even if it is far less than the amount the Plaintiff's lawyer predicted in the uncertain outcome at trial.

Beware Hidden Motivations

     Often, the motivation to settle or to sue has nothing to do with the case that is before a mediator or Judge.  For example, a party may feel disrespected by her family members, may feel let down by her personal trainer or frustrated by her former spouse.  The motivation to sue someone is sometimes an enigma that doesn't completely reveal itself to the lawyer who brings the claim.  Then, many months or years later, the motivation to settle can derive from something altogether different, such as an impending divorce, a series of bad investments, a desire to quit a job or leave the country.  A business may be positioning itself for sale or acquisition.  A lawyer may be leaving the practice to write novels or open an art gallery.  When you probe with open-ended questions, you can find out all kinds of factors that may have driven the litigation and will be the engines that drive towards ending the conflict.

     This week, I mediated a case brought by a very wealthy woman against her former business partner in a business centered around her daughter's sport.  Now that the woman had a falling out with her daughter, (who was a freshman in college), she was angry at the considerable investment she had made in her childhood activities.  Rather than sue her own daughter, she sued her daughter's fondest coach.  Once it became evident that the lawsuit was not motivated by a desire to collect considerable damages, but by a hope that she could be heard and understood now that she was alone, she could put the dispute in a proper storage bin, alongside all of the complicated emotions and memories that empty nesters put the worldly possessions of their children's childhood in once they move away and spread their wings.  Having your last child move out on his own is a huge adjustment, but, like aging itself, there is no easy way to turn back the clock and change history.   Mom and Dad just have to keep looking forward, not back and re-frame their children's childhood in the most favorable light possible.

     Even a black cat can not consistently spot the mouse in the grass.  Once she makes peace with that, she can just begin to enjoy the long grassy garden for it's own sake.

Make no Assumptions in Mediation

     The problems encountered by the Plaintiff are generally laid bare in pleadings and through discovery by the time of a mediation hearing.  After reading and reviewing a comprehensive mediation brief, we mediators can get to a place of thinking we know the darkest secrets which lead to the conflict.  But as a wise mediator said to me once, "you don't know what you don't know".  For this reason, it's unwise to make any assumptions. 
     In last week's mediation against a governmental agency and a former employer, both of the Defense lawyers independently and separately revealed true and shocking facts regarding their own personal backgrounds during the course of a long day's mediation.  One of them, who had flown in from a well established large defense law firm, had grown up abjectly poor and understood the depths of the Plaintiff's financial plight more than anyone may have imagined.  The other had suffered a similar legal issue as a young man and knew firsthand how his past had haunted and plagued his efforts once he changed his life, went back to school and then law school and finally sought a job with a governmental agency, where his legal record threatened to derail the plans he made for himself as a prosecutor many years later.
     On this day after the Jewish Yom Kippur, where the Book of Life is laid open and we are asked to confess our sins and repent for our transgressions, it is a good reminder that not everyone is an open book.  There are dark secrets in every person's past.  If we accept that we don't know the participants in the mediation, we can remain more open-minded, more generous and more creative about the particular dynamics that converge to resolve the most vexing disputes.

Make No Assumptions

There is some logic to wearing a mask when you are about to commit a crime:  you don't want to reveal your true face.  We all wear masks from one time to the next.  I appear different when I'm at the gym than at the office and even differently when I'm arbitrating a case than doing case follow ups by phone.  As a mediator or a litigator, it's important to remember that every individual is unique and may defy your expectations of their characteristics.  For example, a very young woman with a soft voice may be very powerful in the context of her family-owned business, or an elderly, frail looking man may be one of those "Super Agers" who has unbelievably accurate recall of facts and events that may exceed his lawyer and paralegals put together!  A banker may be less facile with numbers than with literature and a school teacher may be defiant about learning lessons.  Mediation works best when we indulge every participant in a genuine interview designed to understand what lies beneath the mask that they may have donned for the hearing.  Once we determine the critical driving factors, very often the dispute can be resolved with less pain and shame than the masked hold up that it sometimes appears to be.
     May this New Year, for those who observe Rosh Hashanah, bring a renewed commitment to treat every individual as unique and valuable, without pre-judgment.  L'Shana Tova.

Some things are Better Left Unsaid

     I lost an Uncle this week unexpectedly.  My father's youngest brother was a figure larger than life.  He was our family Accountant, bon vivant, treasured confidante and friend.  Through the years, he held the position of the "go to" consultant for most important decisions relating to business, finance, vacations and celebrations.  He was the guy who referred the family to virtually all professionals needed throughout my life:  bankers, lawyers (for adoptions, estate planning or litigation), investment counselors, even wine merchants, caterers and home decorators.  His loss will be felt deeply by all who knew and admired him. 
      He had an opinion on everything and was willing to offer it.  But here is what I learned last night from my older sister:  he was also willing to offer up that not all disagreements were meant to be fully vetted, discourse engaged in, transparency revealed and happy conclusions derived through consensus.  Indeed, it was his belief that some things were better left un-resolved, for the sake of peace in the family, or mutual respect or deference.  Essentially, he was willing to proffer that we might not accept his opinion or view of things, and that he would never accept ours, and that it was okay to disagree.
     I never had this conversation with my Uncle before his passing:  yet another position that remained unsaid.  Yet, I can see great wisdom and applicability in mediation.  Indeed, not every dispute ends in agreement.  Most disputes end in a rough resolution of the case that does not concede that the adversary was right or that one side or the other has been convinced they were wrong.  Most disputes end in a tacit agreement that the parties prefer to resolve the dispute quietly and confidentially rather than air the dirty laundry in court and expect that a Judge or jury will decide who is right and who is wrong and what damage has been caused.
     My Uncle was right, of course.  Some things are better left unstated. 

Make a Connection with Each Participant

     Over the weekend, I visited the Ronald Reagan Library in Simi Valley, California.  Though I was not a huge fan of the former President, coming from California, I remembered his early days as an actor (or at least re-runs of the Western movies watched by my mother and grandmother!) and then I remember his first election as our Governor.  Though many were surprised, his training as an actor, like another famous former Governor, gave him the gift of being a terrific orator.  He was comfortable on screen, delivering lines and being warmly embraced by the world of his viewers.  The Library momentos and film clips confirmed it.  In nearly every "take" he was seen to be addressing not a huge general audience, but me, the listener, as though I was the only one in the room.  Last Sunday, the library was extremely crowded with tourists, school children and locals.  Yet, I came away feeling as though I had made a new connection with a public figure who I had never met!

     The lesson for mediators and litigators is to work towards making a connection with every participant with whom you hope to make an ally.  Physically, stand a little closer to the one who you wish to engage.  Make direct eye contact.  Listen and respect each varying point of view.  As Lincoln famously said, ""Discourage litigation. Persuade your neighbors to compromise whenever you can.  There will still be business enough."

     To President Reagan's credit, he was an articulate spokesperson for peaceful transitions and stood in exactly the right place to take credit when the world events revolved in his direction.  He was everybody's ally in ways that serve his diplomatic efforts incredibly well.

Developing a Rapport with Every Stakeholder

It's important to understand something of our multi-cultural environment when mediating.  For example, many, but not all, cultures value the tradition of making eye contact with each individual, at their own level.  Others, like some Asian cultures, resist making eye contact, particularly where there is an age disparity between those in conversation.  Instead, averting the eyes or bowing to show respect may be indicated.

In mediation, it is always valuable to take a moment to reflect upon the particular cultural customs the disputants may hold and then engage in whatever appropriate methods there are to develop rapport.  Sometimes this takes a little small talk until you can find some commonality:  a love of pets, or travel or fashion, for example.  Other times, it takes a deliberate sitting at the level of the disputant (as pictured above, though I'll admit I've never had to stoop quite this low!).  Sometimes a genuine gaze into the eyes of the disputant will click and they will instantly feel heard, respected and understood as they reveal the core of their particular truths.

This week, I mediated a sexual harassment claim by a young woman who had immigrated to the United States and worked in lieu of rent at a Hotel.  Though she was clear in her mind about the boundaries and limits of what was allowable and not allowed at work, the laws in our State were not quite as explicit.  In other words, because of the blurred lines between working and living, her social life became part of her work life and the sexually hostile work environment that she claimed to have endured, was primarily a sexually promiscuous living situation instead.  She needed to be heard, and although it was challenging to understand her, given her thick accent and use of foreign expressions which didn't translate easily into English, I listened.

Her employer, a young entrepreneur who owned and operated several of these establishments, had no idea that his managers and staff were quite so involved in one another's personal lives.  They were regularly posting photos of one another on Face book, throwing birthday parties for one another and even loaning money to each other.  In his case, it was only by leaning out (as opposed to what Sheryl Sandberg advocates for women, "leaning in") that I could truly hear all of the conflict between these two erupt.  I figuratively and literally backed away from the conference table and just let each of them tell me their story for hours.  It was, after all, their dispute, not mine!

It was only after they were permitted to safely and fully express themselves to someone who had gained their trust by listening intently and looking them in the eye without judgment, that the matter could be finally and fully resolved.  The time and effort I put in at the outset to develop a rapport with each of the stakeholders (including the lawyers who represented them) paid off for all involved.

Avoid Taking Shortcuts in Mediation

       There is always a tension between the desire to get to the agreement and the arduous process of negotiation that takes you there.  This week, I had two very similar lawsuits:  both for wrongful termination in discrimination.  In both instances, the former employer claimed there was a non-discriminatory reason for the termination.  Both of the former employees had since found other work, but had never been given what they considered to be a genuine explanation for their termination, nor any compensation for the time and anguish they had lost.

       Since I knew how the first case had settled, I was eager to gently nudge the parties into the same pattern of negotiation in the second case.  For that reason, I thought it was safe to skip a few steps in the process.  I did not take the time to develop a rapport with the clients, choosing instead to forecast where I thought the case would end up to the lawyers.  I failed to get the clients to buy in to the process early on and ultimately hit a stall in the negotiations before it was completed.  This left a lot of uncomfortable explaining to be done by the lawyers to their clients. 

     Luckily, I sensed that the entire mediation was going too quickly for the Defendant (who wanted to slow down the pace of his moves in order to get to the strategic end-point at the right moment and not before).  For the Plaintiff, who had an infant at home, the negotiation was going painfully slowly, since she had been left alone during much of the day while I conducted the negotiation through her lawyers.  Once I circled back to both of the parties, we could begin the negotiation in earnest and I have every expectation that within a few days the case will settle.  Still, once everyone departs from a mediation hearing, each offer and counter-offer can take days to communicate!  No time savings there. 

     Those of us who mediate routinely, including counsel, need to be ever mindful that taking short cuts is dangerous and may ultimately slow down the resolution of conflict. 

The Genius of a well crafted Mediation Brief

     I have always loved the written word.  I still write handwritten notes and just purchased a beautiful new pen for signing autographs of my book.  So I appreciate a well-constructed, clear, concise and abbreviated legal analysis in a brief in advance of the mediation.  As with most busy mediators, I read the briefs on the weekend and hope that the details will stick with me on the day of the hearing.  The more evidence that can be clearly highlighted, the happier I am to begin the negotiation with a real understanding of the legal points of contention as well as the facts leading up to the dispute.  It is, in my opinion, also an excellent way for the lawyers to be sure that they cover every salient detail and fully understand the contentions being made by their clients.

Yesterday's hearing was more about the evidence that had NOT been yet produced, than that which had.  In other words, the Plaintiff's brief was accompanied by email correspondence between the former manager and the Human Resources Department that had been obtained by the Plaintiff during his medical leave of absence and in preparation for an administrative hearing which took place long before the lawsuit was filed.  There were declarations by former employees whose Depositions had not been taken.  And there were Proofs of Service and a Notice of Default which had been taken by Plaintiff against the store manager who had seemingly disappeared and become unavailable to testify about her claim that the Plaintiff had committed a theft, thereby justifying his immediate discharge on the day he returned from medical leave.  On the other side, there was a clear reliance upon the testimony of this former manager, who had not yet appeared, was not being defended by the Defendant, and may even have been in default.  It made the allegation that the Plaintiff was terminated indisputably "for cause" a bit less credible.

Always take the time to review your entire file, consider all of the evidence which you have gathered and all that you have not, and lay out the best of your contentions in a written brief for the mediator, at least the week before your hearing.  You will be glad to have an ally who is familiar with your case if you've taken the time to adequately prepare her.
    

The Art of Effective Interviewing

     Learning to conduct an effective interview is one of the key techniques for resolving conflict.  It creates rapport and conveys understanding.   It will often revealing hidden "drivers" that underlie the conflict.  For example, when asking about a motor vehicle accident in which liability is uncertain, the Plaintiff may reveal that she was scared when she saw the Police behind her (who witnessed the accident) because she was using the cell phone to call for results on a pregnancy test.  She never saw the traffic light, but firmly believed it was green when she entered the accident--since it was green a second or two later when the collision occurred. 
     Mediation trainers teach new mediators to ask open-ended questions--something that is discouraged in legal practice!  Law students are emphatically trained never to ask open ended questions.  As a consequence, IMHO (in my humble opinion), too few lawyers have taken the opportunity to really get to know their client's own stories. 
     The probing, personal kind of questions, such as:  "Tell me more about that" and "How did you feel when it happened?" may serve the mediator well in understanding each disputant and ultimately in unlocking creative solutions which will address the very concrete issues and make a more complete resolution occur.
     In acquiring this skill, there is secondary benefit to a business person, too.  It makes networking kind of second nature.  It is easy for me to walk into a room and learn something personal or important from any individual whom I engage in conversation.  My children have teased me all of my life because I have a way of "taking the deposition" of friends and family:  but mine is a friendly inquisition, not a harsh cross-examination. 
     Ultimately, the greatest benefit to effective interviewing is that I am privy to the most fascinating life stories! It is, every day, a privilege to be on the listening end of folks--both ordinary and extraordinary.

Be an Empty Vessel

John D. Weiss, Esq.

     I attended the funeral of my esteemed colleague and friend, John Weiss this past week.  John epitomized the concept of listening to the parties in a mediation without prejudgment or bias.  Like a good psychotherapist, the mediator's job is to listen, empathize and re-frame in such a way that disputants are truly heard and personal growth is actually possible.  There is an art to offering a different perspective to a person so that, often for the first time, he/she can begin to appreciate the adversaries' point of view.  There is an art to listening deeply, without judgment and echoing back what you've heard in ways that reassure the disputant that you have really heard his story that lead up to the dispute and where he is at that moment in his head and heart.
     I attended John's funeral because, over the years that I've known him, I always felt we had a special connection.  He always made me feel that he was keenly interested in my life and my career.  What I learned there was that it was his gift to make every person he touched feel that way.  The Rabbi shared with us that the lesson he had imparted to his children was that the most important person in the world was always the person standing right in front of them, or the person with whom they were engaged in conversation at that very moment.
     In mediation trainings, we talk about being an empty vessel, or a blank chalk board or any number of cliches.  My friend John Weiss modeled that behavior in genuine interest and an unique ability to tune out the noise of the world when he was engaged in a conversation with you.  Every one of the hundreds of people in attendance at his funeral understood that lesson.  We all knew we were his closest connection:  at least when we were lucky enough to be engaged in a conversation with him.  May his memory be for a blessing, and may I be fortunate enough to carry his lesson forward.

Preparing for a Successful Outcome

     Mediation hearings are not really the best place for surprises.  Recently, I was mediating what appeared to be a garden variety single plaintiff wage and hour case.  The Defense lawyers, representing a small business, had carefully analyzed the damage exposure to their client and given him advice on the parameters of the value of the case.  The parties had exchanged briefs and communicated their opening offers before the hearing.  The Defense arrived committed to resolving the case, at an uncomfortably high, but affordable value if necessary. 
     Unfortunately, as I got to know the Plaintiff, she revealed an incident of violence in the workplace which, if true, had the potential of completely changing the value of the case.  The defendants were caught unawares and the negotiation was severely hampered, and ultimately unsuccessful given that this allegation had not been verified or even made a part of the pleadings by the time of the mediation hearing.  There had been no discovery--formal or informal and the Defendants had no way of evaluating the veracity of a claim that was made for the first time during the first hour of a 1/2 day mediation hearing.
     In this instance, the Plaintiff's attorney was also unaware of the new issue, so he could not have raised it sooner.  Still, in negotiation, being prepared and preparing your client and your adversary, will always have a better chance of success than surprising the lawyers and parties with new facts and allegations at the time of the hearing. 

That's my View from the Middle of the Road!

Re-Framing to Present the First Offer in a Better Light

    Though sophisticated parties are often frustrated by the length of time it takes to get to the negotiation of numbers in a mediation, the time is always well spent.  During that first hour or two (sometimes many more), the mediator can really listen to the parties and then formulate a plan for how best to approach the delicate dance that is inevitably to follow. 
     This week, I mediated a sad employment situation where an employee was terminated by her Supervisor, 10 years her junior, without a real explanation or what most employees would consider to be "good cause".  The problem is that here in California, an employer doesn't need good cause to terminate an employee who serves "at will". 
     Still, it was clear to me that the owners of the medical practice felt awful about the way this termination had occurred.  It was simply a reaction by a new Supervisor to a seemingly insubordinate, though much more experienced employee.  When she challenged him in the presence of other co-workers and a client, he simply couldn't tolerate her and exercised his broad managerial discretion in firing her on the very next day.  I am reminded of the situations which I observe increasingly where counsel on the one side have 3-5 years experience (making them under 30 years old) and their adversaries have 30 or more years experience.  It's a challenge to assert the authority without the experience in those circumstances, too.  What she saw as retaliation for whistleblowing, he saw as firing an at will employee for cause.
     The tool I engaged in order to begin the negotiation on that case was to articulate the employer's remorse that this loyal and competent employee had been fired without any severance or explanation (without admitting any liability for retaliatory misconduct, as she had alleged).  I did that by framing the first offer as a severance offer:  based upon her years of service, they began with an offer that was equivalent to a one month's severance pay.  Ultimately, the case settled on a mediator's proposal of several times that amount, but by carefully re-framing the initial offer from what appeared to be a "nuisance value" (less than $5,000) to a calculated offer based upon two weeks per year of service (often considered a fair severance package pre-termination), I was able to drive home the legitimate feelings behind the offer in a way that the Plaintiff could, for the first time in the life of the case, appreciate and ultimately accept.
     The Employers too, felt better about paying a "severance" than they would have had I couched it as a penalty or actual damages for wrongful termination.  While they believed the termination was wrongful, they also understood that the way this employee was terminated (the day after she had raised legitimate concerns about overtime pay) was problematic.  Settlement was the best solution.  Re-framing to hang the whole incident neatly on a wall, behind both parties, was the best way to conclude the dispute and look forward to using more caution in managing other employees in the future.

Ask the Hard Questions before the Negotiation Begins

     Not all lawsuits are motivated by a desire to obtain monetary damages from a party who has aggrieved another.  There are, in fact, a myriad of reasons why someone may want to sue another party:  to bring a company who they believe has wronged them down, to shame another person, to vindicate one's rights,  to be heard, to prove to himself and/or his spouse or the world that he was right in standing up on his own behalf, or even to show someone their personal strength, intelligence and experience in a way that was not previously recognized by the other.  It's hard to predict, because by the time a matter gets to mediation, it is typically framed in conventional pleadings covering a series of causes of action which are taken, element by element, from Forms of Pleading and Practice--not revealing the true motivation for bringing the suit. 

     Most Judges will agree that once a jury gets a case, they make decisions not based upon law, but upon personality: who do they like and who do they believe?  The legal questions are all decided before trial.  The jury is left only to decide matters of fact, based upon their own determination on credibility, and often, likability.
  
     The motivation for bringing a legal action, will almost always reveal critical keys for unlocking it.  If, for example, the aggrieved party is acting because he wants to prove that he was right, sometimes money alone can't do that:  an acknowledgement, public exposure, an agreement to take steps to prevent such misconduct in the future may be necessary.  If, on the other hand, the lawyers have become passionately embroiled in a contest of strength and skill between them, sometimes a few rounds of litigation, or even a concession or two may be what's needed to empower the advocate to recommend settling the lawsuit at any amount.

     The cautious mediator will give voice to every participant's true objectives by asking them probing questions early on which are designed to dig deeper than the initial demands or offers and to uncover the true motivations for moving forward or pushing back.  It is only after this initial sensitive work is done that the process of negotiation can begin in earnest.

In Negotiation as in LIfe, Timing is Everything

In the last couple of weeks, I've heard two mediations which were brought to me before a lawsuit had been filed, and two that were within a month of trial.  Which is the better time to settle the lawsuit? 
      In one case, a tenant was seeking reimbursement for pre-paid rents and security deposits after being evicted when the house was sold in foreclosure during the pendency of their lease.  The trouble was that the lawyer for the sold out owner/landlord had done a lot of legal research that she had not shared with the tenants, indicating that they had a right to stay in the leasehold based upon California law protecting tenants in just this type of situation following the housing bust beginning in 2008.  Though they were required to attempt mediation under the lease, the lack of information made this mediation too early to be effective.  Still, the lawyers and their clients knew a lot more about one another's claims and perspective when they left than when they arrived.  Not a wasted effort:  just a step towards meaningful negotiation.
     In another case, for wrongful termination in retaliation for whistleblowing, the parties are on the verge of spending a week in a binding arbitration before a retired Judge.  To date, both parties have held off on incurring the expense of substantial formal discovery, given the typical limits imposed in an arbitration (usually one deposition per side and one set of Interrogatories and Requests for Documents).  As a consequence, there were lots of witnesses and theories exposed in this mediation that had not been considered before by the lawyers involved in the case.  Both of them were caused to have difficult conversations with their respective clients, and re-evaluate their positions dramatically as the result of this safe and confidential conversation through an unbiased intermediary.
     In both instances, though at opposite ends of the life of the lawsuit, mediation was useful and informative in getting to the ultimate resolution of the lawsuit.   Maybe it is time to expand the objectives of a mediation beyond simply "settling a case".  Here, both sides found a great deal of value in coming together in a non-confrontational way through an unbiased intermediary to explore the issues, the evidence and the contours of the value of the cases (in their own minds and their opposing parties').  Each side will now have to consider the value of further litigation to find out whether it is worth the risk and expense to move forward or whether there is some region where the case can be settled satisfactorily without testing these boundaries.  I have my predictions....

Use Caution Not to attempt to Predict Outcomes

I've had a hard week.  I mediated four employment cases:  allegations of pregnancy discrimination (termination while on leave after the baby was born), disability discrimination (failure to promote by a current governmental employee), sexual harassment and a whistleblower case (by a warehouse worker based on his complaints of noxious fumes in the workplace).  It's been ten years now that I have been mediating.  It's a real risk that I believe I can predict values and outcomes based upon the briefs even before I meet any of the disputants.  Also, I work with a group of highly skilled mediators and former Judge's, who often engage in banter during our cases about their guess on values and outcomes. 
     My week's efforts were met with varying degrees of success.  In the first, I would never have imagined that the case or the facts had such a high value--but it settled easily and to the great relief and satisfaction of both parties.  In the next, the government's attorney refused to make any offer, despite the Plaintiff's attorney reducing his demand to 1/4 of his initial demand.  In that one, I believed that if I could just get Plaintiff to come down to a reasonable number, the Defendant would reward that gesture by making an offer, particularly since the Plaintiff was still working there.  Alas, complete and utter shut down.  Inexplicable and unexpected.  The sexual harassment case is still being negotiated, but suffice it to say the values being discussed are beyond my highest expectations. 
     The point in all of this rant is that after awhile, a seasoned mediator has a tendency to make predictions of outcomes which can obfuscate the negotiation.  Yes, it's helpful to get everyone into that coveted "zone of possible agreement" early on, but occasionally the contours of the end zone are entirely different than my expectations and I am reminded that there are many factors beyond the facts and law that influence the ultimate settlement (or not) in every case. 

Mine for the Unspoken Interests at the Heart of the Matter

I had the privilege of attending a training with Kenneth Cloke this past week.  That was not unusual, I have attended many trainings with him before.  He is the author of many ADR books and articles and a local treasure here in Southern California. 
     What was unusual was that he was addressing an audience of United States District Court Attorney Settlement Officers:  those of us who mediate disputes within Federal Court.  All of us have at least 10 years of experience as attorneys in Federal Court and are sophisticated commercial mediators dealing with high stakes cases. 
     But Ken speaks and trains on a different plane:  he looks for the underlying issues in every conflict:  the root of the anger and the fear which underlies it.  And then he digs deeper:  into the love that drives the fear of the possibility of loss, pain and grief.  Ken sees a direct connection between anger and caring in a relationship.  He prodded us into deep listening in order to excavate the truth that goes well beyond the pleadings in a lawsuit.  He reminded us to bring our own hearts with us to every mediation. 
     Ken quotes both Albert Einstein:  "Make everything as simple as possible, but no simpler" and the poet, Pablo Neruda:  "Every casual encounter is an appointment" as he reminded us to bring ourselves into the mediation room and be fully and actually present and available to the disputants before us.  Only then is it possible to have those dangerous conversations which may ultimately lead to the path towards a lasting resolution of conflict.
     Though we may become complacent in our everyday negotiations which quickly devolve into a conversation that is only about the money being exchanged, it's a critical reminder that we are also engaged in helping people in pain and crisis to get beyond their grief:  indeed, that is the essential heart of every matter in mediation.

Is it Worth It?

Clients are more demanding than ever in evaluating whether the expense of litigation is worth the potential gain.  Mediators, therefore, should always inquire about each disputant's agenda early in the process.  For the Plaintiff and her lawyer, the questions revolve around how much more will they get if they invest in more discovery, spend more hours opposing pivotal motions, spend more money getting witnesses to testify on their behalf.  Are they at the mediation to find that out or to settle for what they may get after a Motion for Summary Judgment has been denied?  For the Defense, it's sometimes a question of how much they will have to spend if they don't settle at that time, in order to get a better result than the one offered at the time of the mediation hearing.  Not all parties come to the mediation with settlement as their ultimate objective!

I find that very often the mediation of a litigated dispute is, in fact, educational.  One side learns what the other is willing to pay and/or accept before all of the unknowns are established.  They begin to appreciate what evidence each side has established and will rely upon to prove or disprove their case.  Yes, there may be a crucial witness who will clarify the issues, but in order to be sure, they have to be found, statementized and then, perhaps, a motion based upon their testimony has to be filed, heard and granted.  There may be disputed issues of law which a Judge may declare in one or the other side's favor.  This, of course, is usually subject to challenge at a higher level and may take years to finally discern.  Finally, there is often a mere question of how much the Plaintiff will take before or after the filing of a Motion for Summary Judgment, and is it worth the expense and risk of moving forward with such a hearing?

In cases with smaller values, it is almost always at least sensible to explore this through mediation before the big expenses are incurred.  Your clients deserve no less and, as Abraham Lincoln, said:  "Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough."

The Importance of Pre-Hearing Telephone Conferences

It's not a new concept, but it always bears repeating.  Prior to every mediation, I try to reach the parties to find out what they have discussed by way of settlement before the mediation.  This week, I was unable to reach the Plaintiff's counsel, but the defense told me that he had been trying to reach his opposing counsel by telephone since the lawsuit was initiated.  He had left over 30 messages--and never received a return phone call in the 6 months that the case was pending! 

The case involved a wage and hour claim brought by a disgruntled employee who was terminated last year after an alleged assault and battery of a co-worker at a car maintenance yard.  Because he had been unable to reach the Plaintiff's attorney, Defense counsel earnestly expected that the opposing party would not show up for the mediation and the case would proceed to a trial or default.  But alas, the attorney did show up with his client, and began by informing me that his client had been offered a significant settlement by his former employer before he filed the lawsuit.  The only fact that had changed since then, was that attorneys fees had mounted, so his demand was now twice as much as it had been at the time this purported offer had been made.  The trouble with that logic was that Defendant had been eager to settle at the exact amount of the alleged wage loss before all of the attorneys time had been incurred.  And they weren't budging from that place--rewarding Plaintiff's attorneys for billing a lot of unnecessary time. 

Ultimately, it did settle at the value of the wage loss and Plaintiff and his attorney lost an opportunity to get full value on the case by their stubborn refusal to answer the telephone calls of the defendant.  Telephones are never further than your pocket these days.  The failure to use them is, in my view, is inexcusable!

Priming for Likely Range of Outcomes

It's been a tough week, nationwide.  First there was the Boston Marthon Bombing and then the fertilizer plant explosion in West, Texas.  In between, there were shootouts, captures and loads of probing questions.  I found that it put everyone on edge all week as the news streamed throughout our office.  For those reasons, I paid particular attention to attempting to focus the disputants in two of my mediations this week upon the negotiation at hand. 

On Monday, I mediated a challenging race discrimination case.  The challenge, in part, stemmed from the fact that the Plaintiff was still working for the governmental entity, who, he claimed, had discriminated against him, subtly, but hurtfully, for over a decade.   Before commencing that mediation, I had to caution the defense lawyer that he may need to get more monetary authority than he had previously attained if he wanted to get the case settled.  It was simple "priming" so that when the case got settled for something higher than his original authority (but less than the worst case scenario I painted for him), the defense lawyer and his client were well prepared to accept "the deal".  In another case, I had an out-of-state Plaintiff suing her former divorce lawyer and because she was so long embittered and angry, she had communicated to me that she was prepared to go to trial unless she was certain she could get every last cent on the lawyer's malpractice policy.  When she inevitably fell short in the negotiation, I had to prime her for the likelihood that if she chose to reject the offer at hand, she may have been met with an even smaller "pie" after the Defense lawyers spent considerable time and effort preparing for trial while she considered their "almost policy limits" offer. 

Sometimes the only way to strike oil is to prime the pump until it begins to flow.  It takes some effort and foresight, but the result is all the more satisfying.

Every Disputant Deserves Respect and Empathy

I learned something travelling to Japan last month that I drew upon this week.  Their culture dictates that they bow in greeting one another.  Yes, families bow to one another, employees to one another, employees to customers, business to business, men to women, young to old.  Without even the first meeting, the Japanese greet strangers with a polite and deferential bow.  This evokes a bow in exchange, and sometimes it ricochets into escalating bows until the doors are closed or the elevator has left the floor!

This week I presided as an Arbitrator in a highly contentious hearing.  After handling the matter for almost 1 1/2 years, I had never met the principals, only their attorneys.  My job was to take the process back so that leaving the hearing on Friday afternoon, the parties (and their counsel) felt respected and felt that they had gotten what they had bargained for:  an empathic neutral who listened carefully to all of the evidence, weighed and measured it fairly and delivered a respectful result based upon all of the proof and legal arguments presented.  The Court reporter marveled at how "cool" and polite I remained throughout the hearing when tempers and frustrations flared.  The practice of deliberate deferential-ism through bowing upon greeting, seems to be a cultural acceptance that every person deserves respect.  By summoning my own humility and humanity, these parties, who were embroiled in a long, expensive and sometimes painful legal dispute can finally feel fully heard and gratified that the process of Arbitration in this instance fairly served them.  Though I didn't bow, I held on to the lessons from my visit to Japan in giving every deference to the parties to put on a legal case efficiently, completely and fairly. 

The parties before us in mediation or arbitration deserve no less.

Check Personal Biases at the Door

My family and I just returned from a week's vacation in Japan where I was struck by the crowds of people, the beauty of the fully bloomed "sakura" (Cherry Blossom trees), and being a member of a very observable minority ethnicity (Caucasian).  As a mediator, I occasionally catch myself identifying with a particular participant (a woman lawyer, a mom, a person of my relative age or appearance, for example).  At those times, it's critical to keep my personal biases (whether positive or negative) firmly in "neutral" mode.  Sometimes, it takes some effort to do that.  My strategies include taking a little walk around the office, centering myself with a cup of tea or finding a quiet place to do some deep breathing and a few stretches.  I find that I am unable to "call myself out" without physically walking out and considering how my own personal biases may be affecting my mediation hearing and process.

     What I learned from this trip to such a faraway, foreign land is that people are, in many ways, more alike than different.  Because of the season, for example, there were many weddings and celebrations of young women--who enjoyed getting dressed up and celebrating with family members in Tokyo.  In Kyoto, there were many young people on Spring break, enjoying the fun of the night life, a good beer and an evening of Karaoke.  There were grandparents walking in the park with their grandchildren alongside the river.  There were women in business suits and men entertaining visitors in the restaurants and hotels.  In short, if you take a step back, you can usually find commonalities with nearly everyone--even if you expect otherwise based upon your preconceived biases. 

     Next time I catch myself leaning towards a particular viewpoint, I will remember the lessons from the Sakura season in Tokyo as I sip my tea and call myself on my own biases.

Use Caution in Meetings Where Lawyer and Client are not in Agreement

It may surprise you to know that not all clients follow their attorney's advice and not all lawyers anticipate non-cooperation from their clients.  Generally, lawyers don't like surprises.  After years of law school and months of handling a particular lawsuit, usually the lawyers believe they know whether it's in their client's best interest to settle the lawsuit and at approximately what level.  This week, I had one such lawsuit which resulted in a mediator's proposal at the end of the sixth hour at a level which both lawyer's indicated they could agree upon.  To the Plaintiff's lawyer's chagrin, his client did not agree.  This took a good deal of diplomacy and consideration to reach an ultimate resolution.  Afterwards, I remarked to the lawyer that I thought she had performed magic by gaining her client's compliance.  She thought it was my explanation that did "the trick".  The dilemma could have been avoided had the client and the lawyer carefully and realistically evaluated the claim and the expenses and risks of not settling before or at the outset of the mediation.  Instead, I spent about an hour conducting that evaluation.  I wrote out the range of values in the event the Plaintiff won a verdict (Hypothetically $75-$100,000).  Then I wrote out the odds of overcoming a Motion for Summary Judgment.  (Hypothetically 50/50).  In the scenario of a 50/50 loss on a motion for summary judgment, the settlement value became $37,500-$50,000.  But I couldn't stop there.  Even overcoming a Motion for Summary Judgment, the attorney and I agreed that Plaintiff had only a 50/50 chance of winning at trial.  This reduced the settlement value to:  $18,750-$25,000.  After I articulated the costs of going forward, which would be recoverable to Defendant if they became the prevailing party (about $5,000), settling the case at something in the range of $13,750-$20,000 became "reasonable).  When I was able to show the Plaintiff that if he settled, he could also be paid that amount within one week, he understood why his lawyer was recommending he accept my proposal. 
     Occasionally, a mediator has to step in to mediate between a lawyer and his client.  Diplomacy is paramount at that moment.

The Flip Side of an Apology: Forgiveness

I had the pleasure of hearing Azim Khamisa deliver a Keynote address at the Orange County Mediation Conference yesterday.  His topic was "Forgiveness".  Mr. Khamisa lost his only son at the age of 20 to a random act of gun violence by a 14 year old gang member in San Diego.  Ironically, he had brought his son here to the U.S. to raise his family in the land of opportunity and security.  The pain, I'm sure, was unbearable.  What was most remarkable, though, is that within months, he met up with the perpetrator's grandfather (pictured at the left) and together they initiated a foundation dedicated to teaching youth in America about the risks and consequences--for both victim and perpetrator of a momentary act of violence.  Five years after Tariq's death, Khamisa met his murderer at Folsom Prison.  By that time, Tony was 19 and working towards his GED degree.  Mr. Khamisa looked deeply into the eyes of this young boy, still younger than his own son had been at the time of his death.  He thought he'd see a murderer.  Instead, he saw a tortured young man who expressed his regret and remorse.  He saw a young man who was paying for his crime in prison for his entire adolescence, and who did not see himself worthy of forgiveness.  Still, Azim forgave him his crime and offerred him a job with the Institute, teaching kids how to avoid violence and gang affiliation.  In fact, Khamisa is working on getting his sentence commuted so that he can put him to work.  That way, Khamisa believes Tony can begin paying his debt to humanity and forgiving himself now that the family of his victim has forgiven him. 
     In mediation, we often counsel clients to engage in apologies and explanations, but seldom get to the other half of the equation:  forgiveness.  Forgiving the other is only one part of that side of the equation:  the other is forgiving yourself. 
     Every member of the audience was emotionally moved by Azim's story...but when he went to the place of forgiving ourselves, the crowd of about 100 mediators was, in a word, breathless.  None of us will soon forget these wise words and Azim's message.   I wanted to attempt to capture them here.