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?

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?

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?

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?

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.

Those Nightmare Stories: Are they Useful in Mediation?

Mediators and attorneys generally discuss the alternatives to a mediated solution in terms of risk analysis, cost analysis, investments of time and likely verdict potential in litigated cases.  But occasionally, a case goes awry in ways that seem unpredictable and aberrant.  Are these stories useful to help get cases settled or is it too easy to discard these as hyperbolic nightmares?

In a recent appeal from a Labor Board Commission ruling, both sides rejected a Mediator's proposal of the amount of the award plus 25% for attorneys fees.  The attorneys fees would only be awarded to the employee if the employer lost it's appeal--as a kind of penalty for appealing a Labor Commission ruling and incentive to simply pay the award.  The shrewd Employer in that case decided rather than to pay the award plus 25% as I had proposed, that he would simply dismiss the appeal and pay the Labor Commission award alone.  The employee's lawyer brought a motion for fees and costs crying unfairness and gamesmanship.  The Judge, however, was constrained by the letter of the law and dismissed the motion. No fees were awarded.

It is a bit of a nightmare, but maybe makes a good story as to the strange tentacles that come with the law.  Useful?

What has Fairness got to do with Mediation?

For those readers that enjoy a bit of game theory, here is a lesson I learned last week at the ABA Dispute Resolution Conference.  It turns out that human beings have a keen sense of fairness and will reject an offer they think is inherently unfair, even if it is of benefit to them.  The good news is that we are all human, and so behavioral economists predict that most of us will not be ultra-greedy as we expect that our human negotiating counterparts will reject an inherently unfair offer.  Some call this "predictable irrationality".
Here is how the "ultimatum game" is played.  One person is the "proposer" and is handed $100.00 (in singles).  He is asked to offer some amount to the responder.  If the responder accepts, they have a deal.  If the responder rejects, neither proposer nor responder get to keep any of the money.  Typically, 50% of the responders would reject anything less than $30 and about 50% of the time, the proposer would offer about $50.  On the other hand, if it was a computerized offer, the responder would, on average, accept $15, because we don't expect a computer to be fair.  But even monkeys exhibit similar behaviors where, for example, they observe another monkey getting a better treat than theirs.
Mediators can, it seems, harness that inherent "fairness" principle to begin a negotiation that is driven by the parties sense of fairness.  This will trigger a natural reciprocity and bring out the best in the negotiating parties at the outset.

How do you Get an Honest Evaluation of Liability?

One of the most valuable reasons to have private caucuses before bargaining begins in mediation is to ferret out how strongly each lawyer feels about their client's case.  These are discussions that are rarely included in the legal briefs.  A friend and awesome mediator, Gig Kyriacou, says he asks each side to anticipate the other's strongest points.  In doing that, he is able to learn early on what each side perceives their weakest point to be.
I find that most lawyers have carefully and deliberately evaluated their chances of success at trial, but have never communicated their weak points to their clients and certainly never would concede them to the opposing counsel.  Enter the mediator's world!  How do you get an honest evaluation from the lawyers in mediation or settlement discussions?

Keeping the Mediator from Making Assumptions about the Parties

This Saint Patrick's Day I had a good reminder that a mediator should never make assumptions about matters such as culture, experience or sophistication of the parties before them.  The case was brought by a Japanese man who had sued his former employer, an American company, for wrongful termination.
The Company's representative, a jolly Irish gentleman, was respectful of the process and greeted the Plaintiff warmly at the outset of the hearing.  At the end, I said to the Defendant that I thought it unfortunate, but that the genesis of the conflict appeared to be a breakdown in communications at the workplace, as so many employment matters are.
It was at that point that the Irish Defendant muttered something to me in perfect Japanese!  It turns out he had lived in Japan in his youth and had a great respect and deference for the people there, whom he considered family.  Had we not engaged in that banter, I would never have known that this individual had such a deep understanding of the Plaintiff's culture.  What was more, he had been a party himself to a published lawsuit many years ago, and knew the vagaries of litigation firsthand.
I was reminded of how important it is to enter every negotiation fresh and engage in basic conversation at the outset in an effort to ferret out the keys to helping the parties arrive at a mutually acceptable settlement to their disputes. How do you keep yourself from making assumptions about the parties?

Is Distributive Bargaining Worthwhile when the Parties to a Negotiation are Hundreds of Thousands of Dollars Apart?

       I find that most of the cases that I mediate need a third party neutral because the two sides are evaluating both liability and damages very differently.  The mediator is the bridge to some better understanding.  But beyond the conceptual, how effective is it to conduct distributive bargaining by way of demand, offer, counter-offer and counter-demand when the parties start out with a demand of something like $1 million and an offer of $5,000.?

     My experience recently tells me that the simple acting of loosening up the parties towards movement, even if it's minimal, is useful to gain some momentum and narrow the chasm between the two sides.  In a hearing this week, the Plaintiff responded to that hypothetical $5000 offer with a drop of $100,000.  The clever defense lawyer moved up another $5000 and was surprised to get another $100,000 drop in exchange.  Though there was an obvious slowing at a certain point, the seemingly futile dance had begun, resulting in a mediator's proposal within a field that had been considerably narrowed against what would otherwise appear to be great odds.

Yes, I'd say showing up to the dance is only the first step.  After that, you actually have to get out onto the dance floor and take those first risky, uncertain steps before the rhythm of the music takes over.

How do you manage emotions and tempers in mediation?

In mediation, there are often moments when we become coaches through difficult, emotional moments.  At those times, I find it is helpful to take a lesson from addiction counselors.  They call it "SOBER" breathing and it works like this:  Stop, Observe, Breathe, Evaluate and then Respond.
What techniques have you used or observed to be effective when emotions erupt and tempers flare?

Is it possible to be Multi-Partial, not Impartial in Mediation?

     Sometimes I feel like I am being torn in two.  My "empathy" quotient goes up so high that I truly feel like I am on each side of the dispute I am mediating for the time I am in each room.  Then when I go into the other room, the other side wins me over completely.  Is this the kind of neutrality that is effective to settle disputes?  How do others keep themselves from being multi-partial, or is it actually a good quality to have when the facts or issues call for it?
     Last week, I mediated a dispute arising out of an allegation of disability discrimination by a long-term employee against a small business.  I empathized with the Plaintiff, because she had loved the job and got no full or legitimate explanation for why she was terminated, leaving her lawyer to conclude the stated reason of insubordination was pretextual and the real reason was her recent diagnosis of an old injury, which now required surgery.  In the other room, I truly empathized with the employer, whose office manager had made a quick decision in reaction to an argument with the employee and who now was looking at paying many multiples of the Plaintiff's salary to avoid a trial on this case.
     I am confident that at the end of the day, both clients and both lawyers saw me as their champion--and the key to a successful negotiation.  I was able to confidently reassure them that the result was fair in the scope of the litigation before them.  But is that what neutrality is supposed to look like? Is a mediator supposed to remain neutral and impartial or is it actually more effective to be "multi-partial"?

How do you Use a Written Evaluation of Likely Damages Effectively in Mediation of Business Disputes? ?

    Numbers have their own mystical language and I find that sometimes writing out the most likely, least likely and somewhere in between outcome in a business case can be a useful vehicle for further discussion. 
     After I elicit the parties best estimates of those figures, I can project a range of most likely outcomes.  For example, in the lawsuit arising out of an allegation of damage to manufacturing equipment due to a leak at a warehouse, I was able to project that if the property proved to be a total loss, after the salvage value of about $50,000,  the owner would be left with a hypothetical loss of $250,000 (since he claimed the depreciated value of the equipment was $300,000.). 
     On the other hand, if the equipment could be restored, at a cost of $25,000 and resold at a discounted price of $200,000., the loss would be only $75,000.  ($300,000 less $225,000 for costs of repair less purchase price).  The third possibility was that he could use the machinery himself once it was restored, making the loss only $25,000.00 (the cost to restore to it's full value of $300,000.).         
     After assessing these values, the analysis goes further to assess the likelihood that each occurs.  In my example, the lawyer and I believed that there was only about a 10% chance the machinery would be a total loss. The settlement value of 10% of $250,000 turned out to be $25,000.  On the other hand, we agreed that there was a 50/50 chance that he could re-sell the property, making the settlement value approximately 50% of $75,000.  The chance that the only loss would be the cost of repair, or $25,000 was again only 10%, making the settlement value $2,500.00.  By assessing these potentials, and writing them out, the numbers demonstrated that if the case could be settled at something between $25,000 and $75,000, the Plaintiff would have achieved his goal of being compensated for the most likely amount of loss occasioned by the leak at the warehouse.   Whereas he arrived at the mediation assuming his case was worth no less than $250,000., he left feeling fine about a settlement of $60,000. based upon this careful analysis.
     This technique is particularly useful where, as here, there is a language barrier and the concepts are translated but the numbers are too quickly glossed over.  Somehow seeing these numbers throughout a long day's mediation can achieve a magical consensus on the value of settlement in a business dispute.
     Do you find a written number analysis useful in your mediation hearings?

Do you ever hold a Late Day Joint Session to Save a Dying Deal from Impasse?

Sometimes after a long day of bonding and commiserating, I get a sense that the lawyers are so busy posturing for their own clients that they get stuck in an argument they no longer believe in against "the enemy" in the other room.  Joint sessions at these junctures are risky business.  Still, I find it is worth taking that risk when real signs of an impending impasse seem to be looming. 

Last week, after 9 hours of negotiation on a case that had an initial demand of $500,000 and an initial offer of $15,000, the Defense offered a "last, best and final" offer that was well below the last mid-point of the proposed bracket that was on the negotiating table.  Hypothetically, Plaintiff was hinting that she'd take $200,000 by offering to bracket the negotiation at $100,000 and $300,000. and Defendant instead offered a randomly chosen $127,500.  At that point the lowest actual demand by Plaintiff had been $350,000, though it was apparent that the mid-point of their range would be $200,000.  Rather than present that offer myself, I invited the two defense lawyers to meet with the two Plaintiff lawyers (without their respective clients) and present the offer themselves.

I was not so very surprised, but pleased when the Plaintiff lawyer kindly stated that his team wanted to settle the case, couldn't accept that offer and was willing to stay to see if there was a number which all could live with that evening, rather than risk losing the deal after so much progress in narrowing the chasm between them had been made.  This was a gentlemanly hint that the gap between $200,000 and $127,500 could be bridged if they worked at it.  The defense counsel, to their traveling client's chagrin, agreed to stay for another hour to continue to negotiate, beginning with the terms of a long-form agreement which had heretofore seemed unattainable.

It only took another hour to move the Defendant up ever so slightly to $135,000. but at that point Plaintiff was satisfied that she had really gotten the best deal possible at the mediation.  And most of the non-monetary terms had already been agreed upon by then, too.

It's risky business, but I find that late day joint session between opposing counsel without clients can be worthwhile where the attorneys are urging settlement to their clients and feeling somewhat discouraged that the parties can reach an agreement based upon the negotiation at hand.

How does a Busy Mediator Stay Fully Engaged in each Case?

One of the struggles I have when I am as busy as January has become is to fully attend to each case and essentially be "an empty vessel" so that I can listen deeply to the parties in conflict, without pre-judgment or bias.  Like a good psychotherapist, a mediator's job is largely to listen, empathize and reframe in such a way that the disputants to any given conflict feel genuinely heard and understood.  It is only after that exercise and effort that the mediator can help each side to see the other's perspective and be truly creative in addressing each side's claims and underlying interests.

Last week, I attended a Networking meeting lead by a colleague and friend, Mark Fingerman, who also teaches Yoga and meditation.  He challenged the lawyers present to give meditation a try.  Together, we sat erect in our conference room chairs, eyes closed, attentive only to our own breathing.  After three minutes, chimes sounded and we opened our eyes.  It sounds too easy to have been true:  but somehow I felt a little more genuine in my listening to the life story of the Plaintiff in a wrongful termination case that came before me that day.  I heard (through a translator) about the plight of a man who had experienced an extraordinarily challenging life.  He came to the U.S. on a boat from Viet Nam during the war in the 1970's.  He suffered horrible losses during that trip:  family members drowned and others were too weak to survive the journey.  He struggled to gain U.S. citizenship and employment here--with no English skills when he arrived here.  He was now the sole care taker for a disabled (adult) child and had been out of work for over a year. 

My morning meditation (only 3 minutes!) gave me the calm and legitimate "presence" to listen deeply to a point of view which I cannot personally know, given my own experience as an American born, college educated, empty nester.  Having calmed myself early in the morning, I found I could attend to the difficult facts and truly empathize and engage with this Plaintiff.

I am certain it is not the only way, but for me, so far, meditation has been a simple, but effective tool to empty my mind of my own personal clutter and fully attend to those in conflict before me.  And today I worked my way up to 4 minutes!

How do You Manage Multiple Defendants?

I was up late last night mediating a challenging case where an employee sued her former company after it had been sold to another Company.  Though the first company had sold all of it's assets, there was a contract that specifically stated that the successor company did not purchase or assume any of it's liabilities.  Luckily, there was some insurance coverage for the old company, since it no longer had any assets and was defunct. 

After a full day of negotiation, the Plaintiff and defendants collectively agreed to my mediators proposal.  Then the real drama began.  Although the defendants had spent a full 8 hours together in a single conference room, the dynamic suddenly shifted when the standard terms appeared on the short-form agreement:  "each party to bear its own costs and fees".  Though all of the defendants were delighted to settle the case against Plaintiff, there was an express indemnity agreement which legally gave rights to the new company to look to the selling company, Plaintiff's former employer, for indemnity.  And their costs were huge!

At 9:30 P.M., after Plaintiff had signed the agreement and left the office, I found myself looking at faces like those above.  While I was circling between rooms and mobile phones, discussing the ramifications of holding up the settlement to pursue recovery of costs with out of state clients and senior partners, the mood was getting darker and the other participants angrier.

After a relatively sleepless night, I did get confirmation that it had worked out and there was a full release made.  Still, I clearly could have and should have raised this dark issue as a potentiality long before the final agreement was being signed.  I guess the lesson is not to make any assumptions that standard terms will be agreeable in any settlement agreement.  Everything is subject to negotiation.  I just wish those negotiations could be conducted before sundown.

Lessons Learned from Negotiating to buy a new car

     This week I negotiated to buy a new car.  After over thirty years of marriage, this was the first time I did all of the negotiation and took title on my own.  I was struck by how many techniques the salesmen used to close which are also employed by the astute mediator.  Here's how it went down. 
     First, the salesman offered to let me take the car out for a drive.  He had some confidence that this car would "sell itself".  This was a little rapport building.  Then, he searched his computer for a car that met our wishes in terms of color and features.  This was the information gathering stage.  While he did that, he offered us expressos, pastries and even sandwiches.  He kept us there and kept us happy. (We were at the dealership for over two hours on Monday and about three hours on Tuesday.)
     Next, he offered to take my old car in trade at a certain (low) rate, even though it was in the shop for repair with an unknown problem.  We developed a mutual, collaborative process at this point to figure out how I could get rid of my old car and swap for a new car effortlessly and at the least expense.  There was a nice rapport going and even a bit of distributive bargaining on the terms of the purchase and sale.  This was about 4:00 PM, and as is typical in the negotiations of lawsuits as well, things got a little challenging and I needed a break to discuss the pros and cons with my husband.  We left and promised to be back in touch later in the day.
   Then we hit a snag.  The next morning, my husband took my car over to CarMax and sold it at a 20% higher rate than the salesman was offering. 
     Sometimes a particular new development arises in a negotiation which changes the terms entirely.  In those instances, though the negotiating parties may want to follow their instincts and forge ahead, it is better in fact to take a step backward and re-assess.  I had superior bargaining power at that point because I wasn't asking the dealer to take my old car (with 71,000 miles and out of warranty) in trade.  I was able to negotiate a better rate and higher mileage on the lease.
     Now it was New Year's eve and insurance offices and finance offices were closing every hour all over the Country.  My car had been sold and I wasn't sure we could get the deal done on the new one before the New Year's holiday.  I knew, however, that the salesmen wanted to make it happen to boost their 2013 sales.  Another advantage! 
     We got several levels of Managers involved in order to close the deal by 4:00 PM on New Year's eve, overriding their initial offer on higher financing costs.  Clearly, the collaborative process and information exchange which began the transaction served us well as the final details were completed.  And my negotiating skills were completely transferable.  Triumph in four wheels!

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!