Thanks to Weise Law Studio (studio? interesting) for the following from the Harvard Program on Negotiation.

How is it that mediators—who themselves lack any power to impose a solution—nevertheless often lead bitter disputants to agreement? Substantive expertise helps, as does keen analytic skill. But according to a survey by Northwestern University law professor Stephen Goldberg, veteran mediators believe that establishing rapport is more important than employing specific techniques and tactics.

To gain parties’ trust and confidence, rapport must be genuine: “You can’t fake it,” one respondent said. Before people are willing to settle, they must feel that their interests are truly understood. Only then can a mediator reframe problems and float creative solutions.

For an enlightened manly-man resolution to the patently insane prospect of litigating a $40,000 dispute, see the WSJ Law Blog post ADR Chronicles: Taylor Lautner Gets Settlement Offer for the Ages

Lautner . . . star of the “Twilight” movies, recently sued McMahon, the owner of an RV dealership in Irvine, Calif, for allegedly failing to deliver a customized vehicle in time for the shoot of his new movie, “Abduction.”

On Monday, McMahon presented what we can only consider to be an awesome solution to the dustup: settle it with pushups. That’s right: whoever can do more pushups — McMahon or Lautner — wins the lawsuit. Click here for the story, from the Hollywood Reporter.

McMahon and attorney Adam Obeid say the Lautners and their lawyers demanded $40,000 before filing the lawsuit. But they offered up a different idea: If Lautner shows up and wins the push-up contest, McMahon will pay him and his Shark Kid Entertainment the $40,000 to settle the case. If McMahon wins, he’ll donate the $40,000 to Children’s Hospital of Orange County.

“We’re taking a negative and making it into a positive to benefit the sick children at Children’s Hospital of Orange County,” McMahon said at the press conference. He says he has other sponsors willing to chip in if Lautner appears.

 

Can we afford not to learn and teach these skills?  Cross-posted at She Negotiates.

. . . and the Supreme Court has it.  Check out The Female Factor over at Slate (excerpt below):

Social scientists contend that the difference is more than just cosmetic. They cite a 2006 study by the Wellesley Centers for Women that found three to be the magic number when it came to the impact of having women on corporate boards: After the third woman is seated, boards reach a tipping point at which the group as a whole begins to function differently. According to Sumru Erkut, one of the authors of that study, the small group as a whole becomes more collaborative and more open to different perspectives. In no small part, she writes, that's because once a critical mass of three women is achieved on a board, it's more likely that all of the women will be heard. In other words, it's not that females bring any kind of unitary women's perspective to the board—there's precious little evidence that women think fundamentally differently from men about business or law—but that if you seat enough women, the question of whether women deserve the seat finally goes away. And women claim they are finally able to speak openly when they don't feel their own voice is meant to be the voice of all women.

Over at She Negotiates, we use the power of women to support, encourage, cheer and brainstorm in every class we offer, with the greatest power coming to and from our post-graduate Negotiation Master Classes which are limited to only four women.  For additional information about how you can use woman-power to improve your bottom line, contact either Lisa or Vickie using our contact form or catch either one of us at our direct numbers.

This isn't about gender-war, this is about human peace and prosperity!

Thanks to Bruce Moyer, the Federal Bar Association's Government Relations Counsel for the head's up on this one.

www.facebook.com/pages/She-Negotiates-Consulting-and-Training/154481911229603?ref=ts

How do we "sell" the nation on the idea that women's work is as valuable as men's? Despite the fact that 90 years have passed since women were given the vote and 40 since an entire generation of women raised their voices against unequal treatment under the law, we continue to make a third of what our men do.

What's up with that? and why the Coke ad?

What's up with that is this: we're not negotiating our true market value because we believe it is worth one-third less than men believe their true market value to be. That's what the research shows. Instead of getting angry, let's finally "get even" by learning our true market value; gathering the tools to ask for it; and, then just go get it.

That's what Lisa Gates and I are up to over at She Negotiates ~ our four-week online coached negotiation class for women. First, we give you the tools to re-calibrate your market value. Then we teach you how to get it. It's a simple as that.

Why the Coke ad?

Coca-Cola, one of the most successful products ever to grace our planet, wasn't always a world-wide beauty pageant winner. It once had to sell itself. It's SODA POP for goodness sakes. But it didn't sell itself as soda pop. It sold itself as the staff of life ~ bread. It wasn't a luxury ~ something our then-post-depression post-war parents were not keen on buying. It was a necessity.

So how do we sell ourselves as necessary to the economy and as valuable as bread and butter? Come on over to She Negotiates and we'll teach you how.

Our next course begins on September 13 and you can take it in your jammies! A warning: this is no ordinary e-class. It's a lot of hard work.

If you're ready to upset the apple cart and apply a little elbow grease to the gears and levers of a society that still fails to recognize our value, come on by!

Our best for yet another new beginning,

Vickie Pynchon and Lisa Gates
She Negotiates Consulting and Training

Listen to internet radio with Women On The Move on Blog Talk Radio

Cross-posted at She Negotiates.

At 8 PM Women on the Move gets down to business with attorney Victoria Pynchon, author of the Settle It Now Negotiation Blog, who has been called a “master of conflict resolution and deposition skills.”

Victoria recently became a regular contributor to Forbes.com’s “On the Docket” column.

You can call in with questions! 

Call-in Number: (347) 857-2102

As a member of the Los Angeles Chapter of the Federal Bar Association and incoming Chair of the FBA's ADR Section, I'd like to wish the Central District's new Settlement Officer Panel Czar a hearty welcome to the District and to Los Angeles.

Gail Killifer has been actively mediating with Killefer Mediation for the past nine years.  In addition to her mediation experience, knowledge and training, she brings to the new job an unusual depth of academic experience from her nine years as an Adjunct Professor at U.C. Hastings College of the Law where she taught mediation to law students.

Having served on the ADR panels of the U.S. District Court for the Northern District of California and other Bay Area superior courts, Ms. Killifer is well acquainted with the challenges facing federal attorneys, mediators, administrators and the judiciary in running the robust and highly qualified settlement officer panels that the U.S. Courts are known for.

Ms. Killefer served as an Assistant United States Attorney in San Francisco from 1989 to 2001.  She served as a Deputy Chief, Civil Division, 1994-1998, and as Chief, Civil Division, 1998-2001.  Prior to joining the U.S. Attorney’s Office, she served as a Trial Attorney with the U.S. Department of Justice, Torts Branch, in Washington, D.C., and as a law clerk to the Honorable Barrington D. Parker (D.D.C.).  She received a B.A. from Stanford University and a J.D. from the Vermont Law School.

Welcome Gail!!  We have a great community of neutrals here, all of whom are all eager to get to know you (without overwhelming you with Welcome Wagon invitations) and to assist you in any way we can with your challenging and important new position.

Dear Fabulous Women Neutrals of Los Angeles:

One last time!! before the door closes on the opportunity to have your picture in the WLALA Tribute book and to share two tables with your fellow neutrals at the WLALA annual Installation Dinner and Gala. 

I have three more places at the table and on that ad.  I need your check for $175 and a .jpg by Friday to put you in it!  Please, let's show WLALA how eager we are to cross-refer business.

This is a particularly good year to join us as we begin the first WLALA ADR initiative in its nearly 100 year history.

ONE HUNDRED YEARS! of women lawyers - way past time to reach and firmly occupy the higher reaches of the profession.  We've been graduating from the nation's law schools in nearly equal numbers with men for more than 20 years.  My own U.C. law school class (King Hall, '80) was 50% women thirty years ago.

The ADR pipeline is full of competent -- indeed glorious -- women.  Yet the statistics at the top remain grim.

Chopped Liver?

Why is your ADR practice not everything that Tony Piazza's or Eric Green's or even Steve Cerveris' is?  Research shows that both men and women have negative implicit attitudes toward women in leadership and authority positions.  The good news is that women are slightly less pre-disposed than are men to picture a man in a suit when they're looking for access to money and power.  I've had at least half a dozen women commercial litigators look straight at me and say "I don't know any women mediators."

Huh????

Followed by, "well their names are never on the lists [circulated in my firm]."

Women, with their slightly reduced inability to "see" women in authority positions, are our foot in the door. And the new WLALA ADR Committee is our opportunity to open that door wide.

As a member of the CPR-led Joint Task Force on Diversity, I have heard the verdict of JAMS and the AAA.  "The market has spoken.  Commercial lawyers just don't hire women and minorities."

What????

We're advocates, for goodness sakes.  When we come into town we have to register our skills of persuasion with local law enforcement authorities.  We're change agents, opinion makers, powerful holders of the keys to the kingdom. 

And the market has spoken? 

We make the market!

This year's ADR Committee is dedicated to closing the gaping void between men and women neutrals.  We're not going to ask for special treatment, picket the LASC's ADR office, pass new laws or burn our ADR certificates, Super Lawyer plaques, Ivy League diplomas, or our bras (not at this age!). 

We're going to market like no one has ever marketed before and we're going to do so as a group so that we don't each hesitate, as we women tend to do, to promote ourselves and our services.

2010 and 2011 will be the years in which top women will refer to other top women.  2010 and 2011 will be the years in which we close the income gap not only between men and women neutrals but between men and women lawyers (its 40% at the top).  2010 and 2011 will be the years in which we make a market younger women lawyers will be entering in the next decade and the one after that -- one in which they'll flourish after they grow weary of fighting over interrogatory objections and e-discovery.

How?

Marketing.  Proctor and Gamble does  not say, "well, the market doesn't want a new improved laundry detergent."  P&G asks "how?" not "can we?"  And it certainly never says "we give up, the market has spoken."

We're putting our first stake in the ground on September 16 at the  WLALA Gala.  There's no event more important for women neutrals to attend this year. 

Our current attendees will appear in two full-page ads in the Tribute Book and two color flyers to be distributed at the dinner. 

To date those women are Eleanor Barr, Joan Kessler, Lynne Bassis, Katherine Edwards, Laurel Kaufer, Linda Klibanow, Denise Madigan, Stephanie Maloney, Deborah Rothman, Jan Frankel Schau, Gretchen Taylor, Caroline Vincent, Diane Wayne, Linda Bulmash, Lisa Gates (my She Negotiates business partner), Kathy Balin, and Erica Bristol. 

We need three more women neutrals to fill table two.  If you want to sit at another table, ask a woman litigator to change places with you while whispering "cross-refer" in her ear.  The key is that you'll be there to network.  You'll show your support to WLALA by showing up and WLALA women (among the most entrepreneurial in the Bar) will see your beautiful face and panel affiliation or business name in the  Tribute Book while enduring the inevitably tedious speeches at these events. 

Do you want to double your income by 2012?  If we've lasted this long in a profession that was solidly male when so many of us were in high school, we can close this gap by coming together and just doing it.

And if the $175 is too steep a price during these recessionary times or if you'll be out of town or otherwise engaged on the 16th of September, please let me know that you want to be a member of the new WLALA Committee by return email.

Our first event will be an afternoon on arbitration in October with CPR CEO Kathy Bryan and other powerful women attorneys, GC's and CEO's who arbitrate, either as advocates, as clients or as arbitrators.  The panel will be moderated by complex-commercial AAA arbitrator Deborah Rothman.

Shock me!  Let's fill Table Three!!

I look forward to hearing from you and to kicking the last pitiful shards out of that darn glass ceiling.

Best,

Vickie

Victoria Pynchon, Esq., Incoming Chair, WLALA ADR Committee
ADR Services, Inc. and She Negotiates Consulting and Training

Motion here.

Story (misprision of earwhigging meets "honest services fraud") over at Forbes On the Docket.

My Forbes Bernard Pivot questionnaire here.

(pictured:  Nancy Botwin, preparing to torch her suburban home)

I once lived in the neatly trimmed suburban neighborhood of litigation.  Although bullies sometimes populated the streets, because residents share important values (critical thinking, evidence-based fact-finding, and,  the application of the rule of law to competing claims) its streets are clean, its trains run on time and its police force keeps most of the "bad element" out of town.  Just as importantly, Litigation Land has many town mayors, those  be-robed authority figures who can and sometimes do sanction those attorneys who break the folkways of civility.  So you can be an asshole in your dealings with fellow members of the Bar, but the practice is strongly discouraged and subject to sanctions imposed by "Mom and Dad."

I now live in a much wilder environment, one without a set of standarized rules; one that does not necessarily strip from disputes their unpredictable human complexity, texture and dimensionality  in favor of a flattened litigation story to which established rules can productively be applied.  There are no rules of evidence governing statements made during mediation, nor any rules of procedure.  And unless the mediator features himself the school Principal with virtually unlimited power to suppress or avoid conflict, all manner of disputes may be aired that do not fall strictly within the four-corners of the relatively neat and predictable "causes of action" that govern Litigation Land.

In mediation, anything and everything can and eventually does happen.

One of the common occurrences in mediation is the eruption of emotion in the course of attempting to resolve an active dispute.  To suppress or avoid those pesky emotions, many mediators (often retired Judges) revert to Litigation Land form - separating the parties; enjoining everyone to focus on the "facts" and discouraging the expression of the feelings that brought people into litigation in the first place - a bitter dose of injustice; enduring slights; accusations of wrong-doing; shaming, blaming and, of course, claiming.

Early on in my mediation career I wrote a short article entitled The Biggest Lie in the Business:  It's Only about Money. 

The social scientists who study these things say that the way in which we respond to adversity "often reflects the fact that [our] prestige or status has been threatened more than the fact that [our] purchasing power has been diminished." Miller, Disrespect and the Experience of Injustice, Annual Review of Psychology (2002). In other words, the corporate C.E.O., like any other kid on the block, will retaliate when he feels he has been disrespected.

Conversely, research shows that business people are reluctant to recommend legal action if they believe that they and their company have been treated respectfully. Although this is particularly true of fiduciary and special relationships such as lawyer-client and business partnerships of all kinds, it also applies to arm's length business transactions.

Every commercial interaction, we are told, "represents a social exchange and every form of social behavior represents a resource." Id. People's satisfaction with the outcome of a commercial transaction therefore "depends highly, and often primarily, on their perception of the fairness of those outcomes." Id.

No Matter How Vigorously We've Monetized a Dispute, It's Still About Justice

In physics, there's a phenomenon known as the observer effect.  The "observer effect" made its way into pop psychology and sociology to stand for this proposition:   observers of human behavior alter that behavior just in the act of observation.  Mediators, active or passive, evaluative or facilitative, emotion discouraging or conflict encouraging, settlement-focused or transformation-oriented will affect the negotiated resolution of any dispute that occurs under their gaze.

And though we're called neutrals, we are not human Switzerlands. Unless we are autistic or schizophrenic or sociopathic, we respond to human feeling with human feeling.  We respond to perceived injustice with the desire to "right" it.  We form opinions about legal and factual positions and attitudes toward the people - attorneys and clients - who express them.  We find some people credible and others not.  We find some people difficult, even offensive, and we try, if we are good at our jobs, to deal with them from a position of compassion and an attitude of inquiry.

But sometimes, not often, but sometimes, we get pissed off.

Let me say here that getting pissed off and acting on it are two different things.  Acting pissed off while being pissed off based upon our own feelings that we are being treated unjustly or disrespectfully is - by my lights - below the standard of care for mediation professionals.  We are, however, human and fallible just like everyone else.  The question is not whether we will make mistakes but how and when.  The more important question is when we do err, will we fess up and make it right or try to hide our mistakes?

This is my stake in the ground -- if we err, if we acknowledge our error, and if we make amends for that error without getting overly remorseful about it (scraping, servile) we set a standard of authenticity and accountability that is an absolute prerequisite for the voluntary resolution of disputes concerning perceived or actual injustice. By frankly acknowledging our error and taking the steps necessary to repair any damage that error has done, we encourage lawyers and litigants alike to do the same.  And once everyone is acting as a free agent, acknowledging their own part in whatever miscommunication occurred or misstep made, brain-storming mutually satisfactory resolutions is far easier for everyone.  And clients whose injustice issues are resolved, even if their money desires are not met, are clients who are happy both with their legal representation and with their mediator.

Back to the Canary in the LASC Pro Bono Coal Mine

As lawyer, mediator, author, academic and activist Ken Cloke observed in  Conflict Revolution, every dispute occurs 

not only between individuals, but in a context, culture, and environment; surrounded by social, economic, and political forces; inside a group or organization; contained by a system and structure; among a diverse community of people; at a particular moment in time and history; on a stage; against a backdrop; in a setting or milieu. 

For as long as I have been mediating, there has been an active, on-going, often bitter dispute between the Los Angeles Superior Court and most professional (not hobbyist) mediators who are trying to make a living based upon their negotiation and conflict resolution education, training and experience, many of them lawyers with decades of litigation and trial experience.   I will not go into the history of the pro bono panel and the disputes about its provision of free mediation services to all comers, but I can provide references if you are interested in exploring the conflict./ *

I am only the most recent canary in the mine shaft of the LASC's pro bono mediation panel.  By canary in this instance I refer to my own keenly felt sense of pride and sensitivity to all forms of injustice, including the economic variety.  Though I take my own part in having responded irritably to a request by two AmLaw 100 law firms to mediate their $10 million antitrust action gratis while they charged their clients upwards of $400 per hour, that irritation must be understood not only in the context of the unresolved conflict between the Court and local mediators, but also the undeniable fact that many attorneys and their clients take unfair advantage of the mediators who volunteer their time on behalf of the Court.  And that they do so without giving it a second thought.

This canary, who owes so much of her training to the opportunity to serve on the pro bono panel, must now take flight.  I'm good at what I do and I have spread the word about the quality of my services far and wide.  If I am not able to make what I consider to be a good living as a mediator, I will do what I have always done, find other sources of gainful employment and other streams of income without entirely abandoning what is to so many simply a hobby and to others a desperate attempt to scratch a living out of a fallow field.

Why attorneys are doing themselves and their clients a disservice whenever they permit the Court to simply "assign" them a random mediator (we are not widgets) tomorrow.

________________

*/  A Brief History of the Los Angeles Superior Court's Mediation Program, authored by the founder and President of the American Institute for Mediation, Lee Jay Berman on behalf of the Southern California Mediation Association.

Mediator Charles Parselle's Materials on the History and Status of the Pro Bono Panel

Lost in Translation:  Legislature's Revision Necessary to Restore Funds to Community Based Dispute Resolution Programs by Elizabeth Moreno

When it Comes to Mediators, You Get What You Pay For by Jeff Kichaven

The CDRC's Correspondence to the Superior Court Concerning the Pro Bono Panel

 

If your intent is transformation, you can get there by reading the telephone directory. ~ Unknown

My primary job as a mediator, aside from learning the "case" and acquainting myself as deeply as possible with the parties' interests - is to "hold the space" of resolution.  That usually means that I begin the process by creating an atmosphere of hope that the matter can be resolved and by providing assurances that the mediation room is a safe environment in which to have candid conversations about the dispute without fear of ridicule or other emotional attacks. 

What I had done here was create an atmosphere of distrust and peril.  Even before one of the parties telephoned me, I was naturally beginning to feel remorseful.  The telephone conversation that did occur could not have inspired trust in a mediator who seemed more interested in her own inconvenience than the well-being of the parties.  Led to believe (despite my persisting doubts) that the parties were proceeding to mediation in a good faith effort to settle their antitrust litigation, I agreed to arrive at the appointed hour with the same intention. 

I awaken the next morning feeling pretty much the same way litigants do prior to a mediation.  They have outstanding conflict issues with one another - telephone calls not returned; suspicion generated by the games litigators play; harsh words exchanged between the parties; accusations lobbed by counsel across the bar to the sitting judge; and, the natural demonization that occurs when the parties stop talking to one another and put their disputes into the hands of attorneys. 

No matter how sophisticated the litigation and how able the counsel, at least half the people in the room would rather not see the other half now or ever.  No one likes conflict.  But if your mediator is unskilled at facilitating a group process in the presence of conflict -- even one she's created -- hire another mediator.  

I enter the meeting room all "morning in America."  Shake hands, make and receive introductions, sit down with the entire group in joint session, roll up my sleeves and get to work.  Everyone seems cheerful, unusually so.  They're friendly with one another and only slightly wary of me.  We carve out one of the issues that seems most amenable to resolution, stay in joint session and make progress on that issue before we eventually reconvene in separate caucuses.

At some point in the process, when everyone seems affable and we are sharing war stories while waiting for a counter, someone mentions the email.  This spirit of camaraderie among counsel and the parties, I'm led to believe, arises from my irritability.  They united, they say, against me.  I somewhat sheepishly acknowledge that my intention was not to create a common enemy.  I admit, however, that I'd awoken that morning hoping that, at a minimum, the parties would have come together in the spirit of resolution against a mediator who'd accused them of gamesmanship. 

Five hours after we begin, we have narrowed the issues, resolved significant differences in opinion and have whittled a $10 million dispute down to a $500,000 difference of opinion.  I leave confident that the parties will resolve that difference, either through direct negotiations or in a future mediation, with or without me.

There are takeaway lessons here - not the least of which is a reminder that we can resolve the conflict we create simply by showing up and being accountable for our part in it. 

The larger lesson about developing conflict-resilience will be the subject of the final post in this series tomorrow.

 

It is a truism that our greatest weaknesses can also be our greatest strengths.  We all have something that we'd like to see changed.  We're too easily startled by the unexpected.  We don't have easy access to our own emotional lives.  We're short-tempered.  We speak softly, tentatively, when we'd rather be bold and appear confident.  We're confident but we too often appear arrogant.  We enjoy the sound of our own voice and tenor of our own opinions better than those of others.  We have a difficult time seeing both sides of the issue.  We'd rather be right than happy.

Are you with me?  As a friend who is a therapist is fond of saying, we're all some kind of crazy.  And as one on those 12-step programs regularly notes, we're just lucky not to all be crazy on the same day.

The Mediator Must Be Crazy!

 I'm doing what I always do to prepare for a mediation - reducing the parties' positions, relationships and events to a single page by making the verbal graphic.  I'm on page four of the single-spaced letter brief drafted by a seasoned attorney at am AmLaw 100 firm.  It's written densely but as clearly as humanly possible.  Still, understanding it requires the application of all 25-years of my commercial litigation knowledge, experience and training. 

I'm pretty sure I've got the basic idea, have identified the central legal and factual issues, understand the contractual relations of the parties and comprehend (dimly but well enough) the statutory bases of their conflicting claims.  I'm assuming (because I don't read ahead) that there's probably only one page to go.  I'm reading the brief as a .pdf so I click on button that lays out all of the pages of the document as small icons in the right margin. 

It's fourteen pages long!  Single spaced!  There's approximately $10 million at issue with four real parties in interest.  One of the other parties, also represented by am AmLaw100 firm, has given me a shorter brief, but has attached to it a 30-page record.  The third is waiting for me at my "virtual office" in Beverly Hills, fed-exed there the night before.

And that's the moment the mediator cracks.

Dear Counsel

I've been here before.  I have written an irritable email and my finger is hovering over "send."  Every rational fiber of my being is shouting no no no no no no no.  Still, my central weakness, often read as intemperance, sometimes spun as authenticity, is about to win again.

Dear Counsel,

I'd like to remind the parties that the Superior Court may only recommend but not order parties to mediate a case with an amount in controversy that exceeds $50,000.  California case law prohibits the Court from ordering the parties to pay a neutral to mediate any case regardless of the amount in controversy.  That being the case, mediation in California remains voluntary for any matter with an amount in controversy that exceeds $50,000. 

For reasons that frankly mystify me, the highest quality law firms in the City are voluntarily asking a randomly appointed pro bono mediator to assist them in settling a matter with an amount in controversy of $10 million based upon a factual record of astonishing complexity as applied to a body of case and statutory law that has required a fair amount of study by a commercial litigator with 25-years of practice behind her. 

Had I read your briefs before today, I would have called each one of you to inquire about your intentions. I have, unfortunately, already spent three hours summarizing one of your submissions, which disinclines me to make the additional effort to contact you separately.

In the few cases I have been asked to mediate free of charge where the amount in controversy was in eight figures, either one of the parties possessed an unreasonably inflated idea of the value that could be wrung from a piece of litigation (something I do not believe is likely here) or counsel for the parties felt the need to satisfy the Court's recommendation that they mediate a matter they did not believe had any chance of settling.

If the latter explains your use of the pro bono panel for this case, I'd ask that you allow me to provide the documentation you feel you need to fulfill your perceived mediation obligation in abstentia.  If there is an explanation for your use of the pro bono panel that eludes me, I ask that one of you please call me tonight. /*

I'm pretty sure this disqualifies me from continuing to serve on the Los Angeles Superior Court Pro Bono Panel.

Because it's Sunday, and because I always loved Saturday movie serials that ended with Pauline strapped to the train tracks with a locomotive bearing down upon her, I am going to delay to my readers the satisfaction of getting the then what happened?!? answer until tomorrow.

Hint:  it was a good thing!

__________________

*/ Email changed only in its case-specific details to protect the parties' confidentiality.

Spoiler alert:  this will ramble, so anyone who wants a quick shot of mediation or negotiation advice, do come back soon.

The Back Story

When I first dipped my big toe into mediation's waters by taking Mediating the Litigated Case in a downtown hotel ballroom back in the Spring of 2004, generous attorney-mediators like Jeff Kichaven, Laurel Kaufer, Bob Steinberg, Jan Frankel Schau, Steve Cerveris, and Deborah Rothman all arrived on the beachhead of my new profession with advice, support, empathy, and warnings.  Starting a new profession, particularly one that is entrepreneurial, is just like moving into a new neighborhood and these wonderful mediators were my Welcome Wagon (for which I will always be grateful).

It didn't take me long to learn where the landmines were buried. And a lot of them surrounded the perimeter of the downtown Los Angeles Superior Court.  There's an mediation pro bono panel there where new mediators can first practice their new trade, learning the skills, picking up best practices, and, beginning to build a reputation for excellence among the litigation and trial bar.  This was all good and I was grateful for the opportunity to have cases referred to me to test my new-found mediation knowledge and growing skill-set.  Never mind that I was paid to practice my new legal trade as soon as I'd passed the Bar.  I understood that this was a kind of internship and I was happy for the opportunity to serve.

My new mentors, however, as well as pretty much everyone else I met, had some dire warnings about conflict between panel mediators and the Superior Court.  Conflict?!?  By May of 2004 (a month after I'd finished my first mediation class) I'd enrolled in the Master of Laws program at the Straus Institute for Dispute Resolution, not because I thought it would give me a necessary credential, but because I was on fire for this new field of study. 

How could there be simmering conflict in a community of conflict resolvers, I repeatedly asked, long before I realized (once again) that people chose their occupations at least in part to work on improving their ability to handle situations that baffle them.  Yes, we conflict resolvers were, like therapists, "wounded healers."  We had conflict issues!

The Problem

The problem that existed when I entered the mediation profession was this - the pro bono panel had been providing free mediation services to Los Angeles lawyers for years.  There are a set of understandable and complex reasons for the initial "decision" to ask L.A. citizens (panel members are not necessarily lawyers) to provide free mediation services on behalf of the Court to the organized bar. Those reasons, and the unresolved conflict that existed in 2004, are the same today as they were then - witness Jeff Kichaven's recent Daily Journal article excoriating the maintenance of this free service once again, this time on behalf of women and minorities.

Here's the intro to Jeff's article:

August 13, 2010 DIVERSITY IN MEDIATION:HERE'S HOW By Jeff Kichaven

There's a problem with mediation. The profession is almost lily-white, and about as male as the Green Bay Packers. In our age of diversity, this has to change. Here's how it won't, and also how it can.

Most importantly, it won't change by itself. In mediation, as in other professions, women and minorities are concentrated at the entry and junior levels. In these economic times, it's harder for these newer mediators to break in. The market is shrinking, not growing. Many of the law firms that hire mediators have shrunk. Others have closed. We are not in an economy where a rising tide of demand can lift all mediators' boats.

Worse, these newer mediators are increasingly being asked to work for free. Court-annexed mediation programs - in which newer mediators work for free, or for below-market rates in order to develop their reputations - are growing. For example, on May 3, 2010, the Central District of California announced: "The ADR 'Pilot Program' is no more. We have made the long overdue change of deleting the 'pilot' designation. You will notice that the website and all forms now simply reference the 'ADR Program.'...any civil case assigned to any judge may be referred to the program, either at the discretion of the assigned judge or at the request of the parties, pursuant to Local Rule 16-15.

My Panel Service

As I said, I was grateful for the opportunities the pro bono panel offered me and for several years worked with the Court (and around it) as well as with the organized bar to find a solution with which everyone could be satisfied (the golden fleece of the mediation profession, after all, solutions by which my needs and your needs can be satisfied simultaneously).  But the problem had reached the intractable, autistic hostility stage by the time I'd come on the scene and only band-aid solutions were entertained with any degree of seriousness by the Court and the organized bar.

Who wants to give up a free service?

After a couple of years of panel service, I quit because I found myself becoming, well, bitter and irritable, that my services were taken for granted by attorneys and clients alike.  More importantly for the "build your business through the pro bono panel" crowd, lawyers who use the pro bono panel don't tend to hire mediators.  They tend to use the pro bono panel.  And their expectation of the caliber of mediators in Los Angeles is predictably low, the entire system having reached the self-fulfilling prophecy stage - the pro bono panel is filled with mediators who do not know their trade well; the LASC "customers" conclude that mediation is not worth the paper it's written on; and, their use of the pro bono panel confirms their existing low opinion of the profession, which supports their unwillingness to pay mediators for services they believe to be worth . . . . well . . . . nothing.

In the meantime, I built a relatively healthy commercial mediation practice, which has suffered, along with all the professions, the effects of the recession.  So I returned to the pro bono panel because I needed the eggs.  I, like many mediators, love my trade.  And I, like all trial lawyers, can't retain my great chops without practice.  So here I am, once again serving the L.A. Superior Court and providing my services to local (and out of state) attorneys and their clients free.

The Canary in the Mineshaft

The Canary in the Mineshaft - Everyone has heard this phrase but not everyone knows its origins.  Miners used to actually bring a canary into the mineshaft with them.  The canary, a delicate creature, would perish from toxic fumes before the miners had a hint that they were in danger.  The miners didn't look at the canary's dead carcass and mutter beneath their breath about how weak the canary was - "damn canary; couldn't take it; weak sister; let's muster on guys."

No, the miners got the hell out of the mineshaft.

My Mineshaft Moment

So I'm pretty busy now.  I write two columns for Forbes.com - well, I blog for one (On the Docket) and write for another, the Forbes Woman, She Negotiates Column.  And I have a new business with a new business partner, Lisa Gates, teaching women how to negotiate.  I have a thriving consulting practice; am being hired to keynote conferences (rather than simply speaking to promote my mediation practice); and, have a book ready for publication (September I'm told) called A is for Asshole, the Grownups' ABC's of Conflict Resolution, which I actually believe will make me a little change.  I'm also the new Chair of the first ADR Committee the Women Lawyers of Los Angeles has ever had; will also be the new chair of the Federal Bar Association's ADR Section in the fall of this year; and, have, for several years, sat by appointment on the State Bar's Standing Committee for Alternative Dispute Resolution.

I'm not bragging.  I'm just saying - in a down economy when your mediation and arbitration practice isn't filling your plate full-time, you enter what former New Yorker editor Tina Brown calls the "gig economy."   And I'm very very busy even though my busy-ness does not always mean that I am making money.  My pro bono activities are now mostly confined to representing the interests of my fellow ADR practitioners and spreading the holy grail of interest-based collaborative negotiation, particularly for women, who I encourage to stop undervaluing their services.

This is going to explain why I finally voiced my irritation at well-heeled attorneys (my market for goodness sakes) to whom I was assigned by the pro bono panel to help them settle a $10+ million complex multi-party anti-trust dispute (the details of which will be altered in their superficial detail to protect mediation confidentiality).  None of these attorneys, by the way, knew that the pro bono panel is filled not only with attorneys, but also with non-attorneys who were highly unlikely to grasp the complex and sophisticated legal and factual issues in the case they asked asked a pro bono mediator to handle. This, I believe, should be a sign to the Superior Court that their attempts to educate the Bar about the panel need improvement.

If you've gotten this far, you'll likely be happy to wait for the conclusion tomorrow.

 

On a personal note, it's great to feel in the middle of things again . . . as Billy Collins described it in Aristotle,

This is the middle.
Things have had time to get complicated,
messy, really. Nothing is simple anymore.
Cities have sprouted up along the rivers
teeming with people at cross-purposes –
a million schemes, a million wild looks.
Disappointment unsolders his knapsack
here and pitches his ragged tent.
This is the sticky part where the plot congeals,
where the action suddenly reverses
or swerves off in an outrageous direction.
Here the narrator devotes a long paragraph
to why Miriam does not want Edward's child.
Someone hides a letter under a pillow.
Here the aria rises to a pitch,
a song of betrayal, salted with revenge.
And the climbing party is stuck on a ledge
halfway up the mountain.
This is the bridge, the painful modulation.
This is the thick of things.
So much is crowded into the middle –
the guitars of Spain, piles of ripe avocados,
Russian uniforms, noisy parties,
lakeside kisses, arguments heard through a wall
too much to name, too much to think about.

 

Unwelcome mediator's proposals are trial counsel's single biggest mediation headache. Done correctly, a mediator's proposal builds on prior negotiations, manifests the parties' unspoken intent to settle and bridges the gap to closure. Done poorly, a mediator's proposal is a bell that cannot be unrung. It emboldens the side it favors, making the case more difficult to settle while alienating counsel and clients.

Best practices for mediators:

1. Before making a mediator's proposal, make sure that it is what the parties want. If you are not sure, don't do it.
2. Build on prior negotiations.
3. Allow time for consideration and securing authority

  Best practices for trial counsel:

1. In the first caucus, inquire about the mediator's thoughts, philosophy, practices and procedures re: mediator's proposals.
2. Instruct the mediator that he may not make a mediator's proposal without your express permission.
3. Keep a watchful eye during the mediation's final third, so you can either head off or shape a mediator's proposal.
4. As a last resort, terminate the mediation. It will be easier to restart the negotiations than to repair an unwelcome mediator's proposal.

 

  Ralph O. Williams III
ADR: 310.201.0010
Direct: 818.986.8101
rwilliams@adrservices.org  

Book launch in September!  Stay tuned!

If you always wanted a raw, gutsy, no-holds-barred, emotionally wrenching, profoundly inspiring, intellectually challenging account of what actually happens in conflict and a no-nonsense guide to the practice of mediation, look no further. Victoria Pynchon is amazingly brilliant, deeply creative, profoundly insightful, and painfully honest. Read it. You won’t be sorry.

Kenneth Cloke, author of The Crossroads of Conflict: A Journey into the Heart of Dispute Resolution; and Conflict Revolution: Mediating Evil, War, Injustice and Terrorism.

I continue to bark at the moon.

Here's a piece I missed in April on real litigation filed over virtual property in Second Life.

Architect David Denton spends much of his time on a lush tropical island, where he experiments with cutting-edge building designs and creates spaces for artists to showcase their work.

Never mind that the island only exists in the virtual-reality world of Second Life, a popular online venue where people interact via digital avatars. Denton, 62, said he purchased the island for about $700 — real money, not virtual cash — from its former owner, and considers it his property.

Here's the thought this article triggers.  If 90% of all litigation involving people (I'll skip corporate litigation and litigation brought to vindicate rights such as that declaring Prop 8 unconstitutional) will end with a retired Judge telling the people that litigation is too expensive and a jury trial too uncertain for them to bear, why don't we just litigate virtually (with Linden dollars!) giving the parties the experience of litigation that will eventually drive them to settlement?

I'm sure some smart programmer can come up with an algorithm for most personal disputes, including both factual templates and the application of simple legal principles.  A "ticker" could keep track of the dollars your virtual attorney is billing on your law suit's screen everyday.  Continuances, discovery motions, pre-trial proceedings and depositions could all be simulated.

Then the parties return from the virtual life of Second Life Litigation and sit down in the old fashioned way to negotiate a resolution to their dispute or, if necessary, hire a village elder trained in conflict resolution, sometimes called a mediator, to help them do so.