Thursday, May 29, 2014

Taking Time Out from the Mediation Hearing

On weekends, you can find me aboard our sailboat, aptly named, "Time Out".  Last week, I had two mediation hearings which could not settle on the day of the hearing.  Rather than declare an impasse, however, I simply called a "Time Out".  In the first case, there was some yet-to-be discovered documentation which Plaintiff's lawyer believed would support his contention that the basis for the termination was pretextual and the true basis was disability discrimination.  In the second, the Defendant Company had been sold and there was limited settlement authority from the old Company, given that they had already sold the case--both costs of defense and damages to a wealthier new Company, who would assume all future risk by mid-summer.
Our boat's name is a metaphor for taking time "out at sea" and the album name for the jazz record by Dave Brubeck, "Take Five" (our previous boat's name).  But in the case of a mediation, there are many compelling reasons to call a "time out" rather than an end to a mediation hearing.  A "time out" assumes it is temporary, as contrasted to a "time in".  Negotiations may be resumed at a time when they are likely to be more fruitful.  Like sailing, it also suggests that at least one, but often both sides need to take a little perspective before proceeding and closing the deal.
The post script is that one of the cases has rescheduled for another full day of hearings after negotiating an acceptable bracket within which to begin and resume negotiations.  The other is parlaying offers and counter-offers by telephone, now fully appreciating that there is limited time to continue negotiations before they will have to start over with new decision-makers in the board room.
In what ways do you communicate a willingness to continue negotiation when you hit what would otherwise appear to be an impasse?

Thursday, May 22, 2014

To the Success of Women Neutrals

I am honored to have attended the reception for the Top Women Lawyers last week (and to have been photographed by the L.A. Daily Journal with honorees, Susan E. Hollander and Diane M. Doolittle in the LADJ 5/16/14).  I also attended the California Women Lawyers 2014 Conference last week, "celebrating 40 years of Advancement".  Although I was struck by the awesome accomplishments of my cohort of women professionals at both events, I was equally troubled by the very current and persistent challenges still facing younger women as they enter the legal profession, and those in the middle of their career, still trying to juggle the demands of practice, family and self.For example, according to keynote speaker, Professor Joan C. Williams, who is Distinguished Professor of Law at Hastings and author of 8 books, most recently, "What Works for Women at Work" (co-written by her daughter, journalist, Rachel Dempsey), 40 years ago, only 15.9% of partners in major American law firms were female.  In 2013, that figure was only 16%. Where are all of the women lawyers hanging their shingles then?
In a fascinating study conducted in 2013 and presented by Patricia Gillette of Orrick, Herrington and Sutcliffe, LLP on "Rainmakers", the Lawyer Metrics group found that the top personality traits and behaviors of rainmakers of both genders were "engagement" (a desire to be highly engaged and place a high priority on work-related activities) and "dominance" (a tendency to exercise power and influence over others).  Part of me was left wondering whether these traits are primarily feminine or masculine and whether, though rainmakers of both genders had similar traits, there were in fact fewer women who naturally had an instinct towards "dominance", for example.
Finally, I attended an intriguing presentation by Kimberly Papillon on Implicit biases in decision-making, which called into play all kinds of brain tricks which we are nearly powerless to overcome as human animals.  For example, it is nearly impossible to resist reading the word "BLUE" when the print is in the color Yellow and asked to identify the color, not the word.
In what ways do you consider your gender affecting your practice--positively or negatively?  What strategies can women adopt to overcome some of these inherit biases or should we just "let it be"?  In what ways may the gender of your neutral affect both process and outcome of your mediation hearings?

Thursday, May 15, 2014

The Value of a Good Faith Gesture in mediation

This week I learned something from a friend and colleague, Steve Rottman, who, more often than I do, mediates at the lawyer's offices.  He sets up the condition that whoever has the convenience of holding the hearing in their office must pay for lunch and parking for all parties.
When I arrived at the Defense counsel's very elegant offices this week, I tried this out.  Though this had not occurred to the young associate before I arrived, he reluctantly agreed to bring in sandwiches and salads at noon for all participant's at his client's expense.
As most mediators know, the negotiation seldom begins significantly before noon, so the timing could not have been better.  Miraculously, the Plaintiff reduced her demand by $25,000. when the lovely, catered salad arrived.  She was hungry and hurting, and this put the first smile on her face that I had seen that day.  Then, when the very difficult moment came when the parties were down to the last $5,000 in the negotiation, the receptionist was leaving the  office for the day,  and (at my suggestion) asked to collect the Plaintiff and her attorney's parking cards, so she could validate the day's parking.
Voila, the case was settled in the very next move.
Sometimes, a very small gesture of good faith (in this case probably a total investment of $100.00) can go a long way towards signaling cooperativeness and indeed, gaining cooperation towards resolving a contentious dispute.
In what ways do you value and encourage these gestures of good faith?

Thursday, May 8, 2014

Apologies in Mediation: Are they Effective or Overstated?

I had the privilege of learning from Professor Peter Robinson of The Straus Institute for Dispute Resolution that a well-articulated apology can go a long distance towards resolving even the most contentious commercial dispute.  Yet, it is such a difficult word to summon when being sued by another person, as it may suggest acceptance of blame, guilt and responsibility for some conduct which has legally been "denied".

In employment mediation, particularly where there has been a longstanding relationship between employer and employee, I find that there are many very solid non-monetary options which can go a long distance towards resolving the dispute.  Beginning with a candid explanation for why the termination occurred, beyond the terse and legalistic "not for cause" severance letter, an employee can begin to see the reason why no early explanation was offered.  Often, the employee is desperately seeking alternative employment and payment of a fair severance plus a letter of reference or even assistance in finding another job can go a long way.

As a mediator, I try to find out the underlying interests of the parties before I begin to work through the financial negotiation.  Though it may be hard to orchestrate, a genuine apology for the conduct that got the parties to the litigation may unlock the doors towards an end to it.  How often do you hear an apology and is it a sign of "backing down" or just human decency?

Friday, May 2, 2014

Start the Music: Dancing through Mediation

I read Ken Cloke's newest book, "The Dance of Opposites" over the last weekend and then yesterday I attended an excellent training by my friends and colleagues at the IAM, Tracy Allen and Eric Galton at the United States District Court.  They reminded me of a concept Tracy calls, "People Moving" as a means to getting the parties out of position that appears to be heading towards impasse or "stuck".  In essence, the concept is simple in both dancing and negotiating:  if you stop moving, the dance is over.  Tracy reminded me that although we mediators are "on the move" throughout the day, shuttling between the two or more rooms in private sessions, the lawyers and their clients are physically "stuck" in a single "position":  a metaphor for the oppositional positions of adversaries in litigation.  Getting them out of their complacent seats, up on their feet, moving them to a different room, with different light and art work can sometimes be all it takes for them to gain additional perspective and to see the conflict from a different point of view.  Simple, elegant and brilliant!  I have reviewed Ken's book for an upcoming article and will publish it for you soon--but for now, I highly recommend getting out of your seat and getting a copy of it.  It is highly readable, ambitious and inspired--just like it's author, Ken Cloke.