Ken, Doug and Other Inspirational Mediators

Alec was recently selected as a Southern California SuperLawyer in the field of Alternative Dispute Resolution.

I just returned from San Diego, where I spent most of last week at the annual convention of the Association for Dispute Resolution (ACR), a leading international group of arbitrators, mediators (commercial, family, community, etc), and peacemakers of all stripes. During the convention, I attended the Advanced Commercial Mediation Institute (ACMI), which was co-chaired by Jerome Allan Landau and Lee Jay Berman, two nationally renowned mediators who’ve inspired me for a long time, although I’ll have to discuss them in a forthcoming article. I attended the ACMI to gain additional insights and techniques that I could apply to improving my own commercial practice, as well as spend some time with mediator friends from around the nation. For me, the ACMI was a great success on both counts.

My other major event was the luncheon hosted by Mediators Beyond Borders (MBB), of which I am a Founding Member. MBB engages in international peacemaking at the community level in, inter alia, South America, Africa and the Middle East. In those specific nations, MBB works with the group that is hosting them to empower local individuals to be mediators and/or peacemakers. They’ve even been successful working with Israelis and Palestinians! At the luncheon, I heard a review of the last year’s activities, and, again, had the chance to meet, face-to-face, some of my distant mediator friends.

I love the ACR annual conferences!!

Getting back to the ACMI, in addition to the powerful presentations over the two days, we had a luncheon speaker on each day. I’d like to tell you about them.

The first day, the speaker was my old friend, Doug Noll. Doug discussed his Prison of Peace project. I urge all of you to go to the project’s website, http://prisonofpeace.org, and, especially, go to the press-media page and view the Prison of Peace video that Doug showed during his talk. I can’t imagine anyone not being moved by this.

Allow me to summarize the story of Prisons of Peace. A few years ago, Laurel Kaufer, another nationally renowned mediator I have the pleasure of knowing, received a letter from an inmate at Chowchilla, the toughest women’s prison in California. The letter was a plea for a mediator to come to the prison to train women as mediators, with the hope of lessening the extreme level of violence. Laurel immediately contacted Doug. Laurel and Doug vetted the letter to be certain that the inquiry was legitimate. After that, they went to the prison to visit. The inmate was in prison for life without parole for murder. She explained to Doug and Laurel that she and a group of other women were hoping that a mediator would come to the prison and train the women as mediators so that they could attempt to introduce alternatives to violence. Doug and Laurel also learned that, although many letters were sent, the only other response was from a San Diego mediator who was willing to take on the project for $50,000. And so Prison of Peace was born.

The prison authorities looked at Doug and Laurel with bemusement as they began their work. Before anything else, they taught the women how to mindfully listen, a skill that I teach often, sometimes even to attorneys (without their realizing it). Next, they taught the women how to organize and manage peace circles, an excellent tool for conducting discussion about the issues behind a conflict. Finally, they taught the women who wanted even more actual mediation. At the end of the day, Prison of Peace had 70 trained mediators and 200 women trained in peace circles.

Unfortunately, given the state budget crunch, funding for expansion of the project has not been available, and, although some private grants have been obtained, Prison of Peace is clearly not a high priority, as the amounts have not been sufficient to expand the program to other prisons. But the prison administrators have reported to Doug and Laurel that they’ve observed a marked decrease in the level of violence as well as peace circles springing up everywhere.

It’s moments like these that have made Doug Noll one of my mediation role models and a personal inspiration. After his speech, I asked him to keep me in mind next time he receives a request like this. And I meant it!

The second day, the speaker was Ken Cloke, the co-founder of Mediators Beyond Borders. Ken spoke, in great detail, about the projects MBB is involved in. He especially emphasized that MBB works within the strictures of the hosting organization. Rather than “imposing” anything, MBB allows the local community to “own” the project and sees its role as a provider of assistance.

Ken’s been doing things like this . . . well, forever. He may be the single most respected mediator as peacemaker in our profession. I have to admit that I’ve been lax in my commitment to MBB in the past, with excuses like health, family issues and other things. I had the opportunity to chat with Ken for a few moments before his talk. I told him that I was ready to take action. I added that while my funds (the participants pay their own way) may be limited, my conscience is infinite. And I meant it!!

A primary reason that I attend mediation conferences, such as the ACR or SCMA events is not really to network with other mediators, although many are dear friends. It’s mostly to recharge my batteries, to get a booster shot of excitement and enthusiasm. And most of all, to be inspired by people like Doug Noll and Ken Cloke — the mediators who inspire me.

Welcome to the Rest of My Life

Alec was recently selected as a Southern California SuperLawyer in the field of Alternative Dispute Resolution.

As I enter September, I feel as though a series of enormous weights has finally been lifted from my back; I hope that I’ve come to the end of my annus horribilus.

My sorry tale began in late January of this year when I developed my customary winter cough. I say customary, since, being asthmatic, I seem to contract a bone shaking cough almost every winter. Past experience had taught me that my doctor would, at best, give me an antibiotic, and, in truth, the cough would just run its course. Well, the cough kept worsening until I was literally shaking the house with the volume of my middle of the night coughs. I resisted seeking treatment, but when my head began feeling stuffed, I finally submitted to my wife’s advice (she’d been on me for a month to take action) and went to my doctor’s office on March 4. One chest x-ray later, and the verdict was in — I had a very serious pneumonia.

Bear in mind that pneumonia didn’t scare me at all. I’d had pneumonia a number of times in the past. Given the very compromised state of my lungs, I always felt that pneumonia during the winter was something I’d have to deal with. I started a course of antibiotics and, within a couple of weeks, things started to improve. That is, until Easter Sunday. Sitting at the family dinner table, I felt enormously weak, excused myself, and went upstairs to bed. I went back to the doctor the next day, only to discover that I now had pleurisy as well! My doctor sent me to a pulmonologist whom I’d used before. This doctor, Dr. Ence, changed the antibiotic and explained that, if all else fails, the fluid in my pleura might have to be removed with a syringe. Two weeks later, the syringe removed only 100 ccs of an opaque liquid. That meant that the pleural fluid had begun to gel. I could see the handwriting on the wall, but Dr. Ence agreed to take one last stab at antibiotics.

I went to his office on May 13, and we agreed that all measures had failed. The thorectomy was performed on my the afternoon of May 14. The surgeon was unable to pump out the junk, so he had to open me up, go in, and remove the infected material manually. I woke up in recovery, Foley catheter in place and a drainage tube coming out my side. I was able to go home four days later.

My recovery was attenuated. My wife had to administer painkillers and set up my nebulizer treatments. I was too weak to do much of anything. Things didn’t change much for two or three weeks, but then the improvements started to kick in. By mid-June, I was able to drive short distances, given the minimal stamina that I had. All in all, I didn’t feel really healthy until mid-July, although some symptoms are continuing.

But, as I said, this has truly been an annus horribilus. Just as I became able to function somewhat normally, my Mom (84 years old) had to be hospitalized and, as a side-effect, temporarily lost her short term memory. Naturally, I stepped in and began supervising her life. She already resided in an assisted living home, but I needed to take over her financial affairs, explain the simplest things to her repeatedly, and exhibit more patience than I knew I had. Thankfully, by late August she had pretty much recovered her faculties.

Now, during this time, I’d neglected many things that would normally have been routine. First on the list was an eye examination. Last year, I was told I had cataracts and to expect surgery within 5-8 years. On this visit, I learned that my cataracts had ripened, so I scheduled two surgeries on consecutive Mondays, August 9 and 16. The doctor also made my day when he told me that because of my especially poor vision (about 20/1275) and astigmatism, I was an especially high risk case.

As an aside, nothing anyone could say or do would have had much effect on me by then.

The surgeries went smoothly and, at the end of the day, I’m driving without glasses for the first time in my life, with one eye at 20/15 and the other at 20/30! At that point, I began thinking that my “lucky streak” might be at an end.

There are several lessons I learned from this experience.

First, always be grateful for what you have and, no matter how difficult things seem, reflect on the fact that others have it far worse. For me, I think Darfur. Gratitude has long been a cornerstone of my philosophy, but this year, when put to the test, it really came through for me.

Second, instead of asking “why me,” ask “why not?” Life is a series of random events that happen for no particular reason. So rather than feel sorry for myself, I just figure that this is just another obstacle in my path and I treat it accordingly.

Third, I really realized how much I miss working. My last mediation before getting sick was on January 21, 2010. I tried to juggle things for a while, but when I realized how dire my condition was, I canceled all upcoming jobs. All except one, that is. Although I repeatedly suggested that they find someone else, one set of adversaries insisted that I conduct a second session and were willing to wait until August for me to do it! Incredibly, given the layoff, I really hadn’t missed a beat. The case settled and all concerned were very grateful for my assistance.

In reflection, it seems that I used a lot of the same advice that I provide while mediating. And not surprisingly, it worked well.

So now I’m up to the last piece — blogging. I’m not sure exactly what mediation related article I want to write, but I’m sure I’ll come up with something. Stay tuned

Why I Mediate

Alec was recently selected as a Southern California SuperLawyer in the field of Alternative Dispute Resolution.

Since I began my mediation career just seven years ago, the question that I have heard, almost continuously, from professional friends and acquaintances, personal friends, and from relatives, has been: “Alec, why in the world are you mediating?” There’s always a follow-up statement, although this varies with the questioner. Some of the follow ups include:

  1. “But I thought you were so enthusiastic about your law practice.”
  2. “But everything else you ever did paid you so much more money.
  3. “How can you stand the stress of being involved in other people’s divorces?”
  4. “How can you stand being in the middle of an argument between two cutthroat attorneys?”
  5. “Why don’t you just retire, since you can afford to?”
  6. “If you just open your own office, I’ll be your client!”
  7. “Don’t you have enough stress in your own life?”

And the list goes on and on, interminably. After all, after very successful careers in business and at the bar, they reason, why “lower myself” to getting paid far less than I’m used to earning for the privilege of assisting people who, in many cases, don’t seem at all interested in the help I’m offering them.

Good questions, all. And my answers to those questions have been all over the ballpark, from the very incisive, to the “beats the s____ out of me” variety. And part of the reason for that was that, at the start, I had a very limited and specific reason for turning to mediation.

In 1999, my father passed away. Although I had ceased working in the family business in 1996, I was still a major shareholder and derived income from those enterprises. Almost immediately, I was frozen out and my income cut off. I was told, in effect, “you may own 45% of the business, but we don’t like you, so we won’t buy you out or pay you a penny.” And so began my personal adventures as a litigant. Including related lawsuits, the adventure didn’t end until about five years later. In the process, although I was legally vindicated and was paid off, I was also emotionally destroyed by the process and came very close to losing everything that had any value to me. I enabled a number of people from those businesses to survive financially, but at a terrible physical and emotional cost to myself.

During this litigation, I attended a number of mediations as a party, rather than as an attorney. I experienced some outstanding mediators. But I also had some horrendous experiences. On more than one occasion, the mediator caucused with the other side first, and then, in caucus with my wife and me, demanded that we dismiss our lawsuit or face a malicious prosecution lawsuit. Unbelievable! My wife was flabbergasted and wanted to go to the State Bar immediately, which, of course, was out of the question. That day, I made a mental note that other litigants needed to be spared this experience.

In late summer 2002, although the litigations were far from over, I took the L.A. County Bar/DRS basic mediation training. I already knew that I was leaving my firm at the end of that year, and thought that maybe, just maybe, I would like to mediate a bit.

So there you have it. My original reason for mediating. Now from here on, this article will take an intensely personal turn. If that offends you, I suggest that you stop here.

But there is another, and very important, sidebar that I wish to discuss. I’d like to take you back to my days as an intercollegiate debater for U.C.L.A. As some of you know, in competitive debate, each team has to take both sides of the same issue. Not surprisingly, given human nature, and ego being what it is, debaters typically think that they’ve won virtually every round that they’ve debated. For some reason, I was an exception. I was always able to leave a round and tell my coach, with great accuracy, two things. I told her whether the judge had voted for or against us. Then I told her whether I thought we had won or lost the debate. I tell you this now because it illustrates two things about how I think. Even as a teenager, I could analytically evaluate something that I was personally involved in detachedly. But, more importantly, I could also evaluate the judge, him or herself. I would watch the judge very carefully as I gave my speeches and would always have a sense of how the debate was going in the head of the judge. I didn’t understand it then, but I had an intuitive ability to read body language and facial expressions that would serve me well for the remainder of my life.

One reason that knowledge of this intuitive ability eluded me for so many years was that I was completely retarded in my ability to interpret social clues in my everyday life. What I did in debate was an anomaly, although I couldn’t see that for a long time.

There were other skills that I had that set me off from others. From the time I was a very little boy, I felt different than all the other kids. I had trouble making friends, and I was socially excluded from parties and other normal activities. But I was always the smartest kid in the class. I never had to study, to speak of, because I had a remarkably retentive memory and, to a significant degree, thought in pictures as well as spatially.

I went through life this way. I took marginal notes during law school, didn’t study for the bar exam until it was a week or so away, then, after reviewing my Gilbert’s Law Summaries, said “c’est la vie,” and passed it. As an attorney, my partners called me “the savant” and valued me most for my issue spotting and case writing. All very consistent with the talents I’ve outlined. And I was outstanding in drafting and arguing Law and Motion, again, not surprising. I again found myself quite skilled at reading the judge during my argument. But, and this is critical, my partners would NOT let me do mediations. That was because they felt that I was too conciliatory. This was because, just as I did in debate, I was quite able to and willing to see both sides of an argument. To my partners, that was a fatal weakness.

My adult life was a roller coaster of twists and turns, many of them seemingly unconnected and, to me, rather bewildering. I was enjoying the ride, but never felt that I had a complete grip on the situation.

Soon after I began mediating, a therapist suggested that I check out something called “Asperger’s Syndrome.” She thought that it might apply to me. Here’s a brief synopsis of what I found.

According to ConnectAbility, “Asperger’s Syndrome is a neurological condition on the autistic spectrum which occurs in approximately 1:300 people. People with asperger’s syndrome have very good communications skills but lack in social skills.”

The differences between Asperger’s Syndrome and Autism are profound and numerous. The Autism Society explains the important differences between Asperger’s Syndrome and Autism here: http://www.autism-society.org/site/PageServer?pagename=life_aspergers.

According to the Mayo Clinic staff, Signs and symptoms of Asperger’s syndrome include:

  • Engaging in one-sided, long-winded conversations, without noticing if the listener is listening or trying to change the subject
  • Displaying unusual nonverbal communication, such as lack of eye contact, few facial expressions, or awkward body postures and gestures
  • Showing an intense obsession with one or two specific, narrow subjects, such as baseball statistics, train schedules, weather or snakes
  • Appearing not to understand, empathize with or be sensitive to others’ feelings
  • Having a hard time “reading” other people or understanding humor
  • Speaking in a voice that is monotonous, rigid or unusually fast
  • Moving clumsily, with poor coordination
  • Having an odd posture or a rigid gait

There’s one other factor that’s not often found in the literature, but which many therapists have agreed with me about. Most Aspies (an “Aspie” has Asperger’s Syndrome) have far less ability than other people to dissemble. In other words, they tend to be more blunt and straightforward. This is one of the problems that leads to their difficulties in social situations. Throughout my life, that’s been one of my most obvious traits.

Well, that was a lot to swallow! Almost all of the symptoms seemed to apply to me, or to have applied to me in the past. In some cases, through very hard and persistent exercises, I learned certain skills that most of you take for granted. For example, I emphasize eye contact in my communication, but, for me, it was a learned skill. Similarly, I walked very oddly as a boy, but I worked long and hard to modify my gait with some success.

The “appearing not to understand, empathize with or be sensitive to others’ feelings” symptom has been a personal nightmare. From my parents harping on that when I was a little boy up until the present, I’ve heard that millions of times. It took me decades to realize that, during my adulthood, those comments were, increasingly, limited to my relatives . . . usually the ones who didn’t know what made me tick. I’ve made it a lifetime task of learning this behavior, because, indeed, it is not inborn for me. But, oddly enough, I think that it enhances, rather than detracts from, my mediation ability.

The reason for this is that whereas many mediators take their interpersonal skills as a given and concentrate on the case before them, I do the opposite. With my memory and retentive skills, my note taking in a mediation is minimal, especially if the written briefs are done well. Instead, a great deal of my effort is put into being sensitive, understanding, empathetic, and, when appropriate, sympathetic to each party’s legal position as well as their feelings and motivations. I retain my intuitive ability to read and understanding the individuals involved and, just as I did with debate judges, trying to figure out what’s motivating them and what they’re likely to do with a given set of facts.

So there you have my second reason for mediating. It’s because I’m an Aspie that I’m able to bring a special skill set into the room when I mediate.

I have so much more to share about this subject, but I’d really appreciate as much feedback from my reader’s as possible. It will greatly help me in determining what directions to go in as I continue along this line.

Uncertainty Drives Conflict Resolution

Alec was recently selected as a Southern California SuperLawyer in the field of Alternative Dispute Resolution.

After many years of mediating litigated cases, I find that several threads continually recur. Among the most pervasive are the following:

  • Attorneys believe that their analysis of the case is superior to that of their opponent
  • Parties believe that the opposing party is insincere in his/her/its position
  • Attorneys believe that the opposing witnesses will be surprised by certain evidence when directly confronted by it at trial
  • Attorneys believe that they will be able to communicate the “gestalt” of their case to a jury far better than opposing counsel will his or hers

1. Any dispute can be settled at any time

This is a very straightforward concept. Let’s take a personal injury case in which an injured plaintiff is demanding $150,000, but in which the defendant is not willing to pay more than $25,000. Now, let’s assume that we are totally omniscient and can, with absolute certainty, know what the result will be after trial.

In Case 1, the trial court awards the plaintiff $125,000. Now, given the costs involved in getting to and through trial in order to reach that result, I would expect that, at an early mediation, armed with the knowledge of the outcome, plaintiff might be willing to accept $100,000, believing it to be a better overall result than he/she would get at trial. And, in the same vein, defendant might be willing to pay a premium, say $140,000, to avoid spending additional defense costs knowing the final outcome. As a mediator, I would know that I had a zone of about $40,000 within which the case would have to settle. Life would be good.

In case 2, the trial court defenses the case. Now, given the same analysis, plaintiff will take anything he/she can get in settlement. Similarly, defendant might be willing to pay anything less than cost of defense, looking upon that as an overall savings. Cases like this often result in a walk away, since continuation of the litigation would be as costly to one side as the other. Again, life is good.

The point is clear: If the results were known in advance, mediation would be unnecessary; the cases would settle themselves. In that scenario, the only reason that a case might not settle would be because one or both sides made their decisions on an economically irrational basis, such as anger, revenge, or other such factors. Does this happen? It does, and it happens often. But that’s another topic for a different article.

2. Dispute participants are unduly optimistic

This is an inherent and totally predictable facet of our adversarial system. When I convene a mediation, I expect all participants to be unduly optimistic. Those who are not are truly the exceptions, in my experience.

a. Attorneys

It is a rare litigator who is not in love with his or her work. I certainly fell into that category during my courtroom days. I often wonder whether or not a litigator without that trait could be the best possible advocate. But, while perhaps a necessary component of the best litigators, it has two unintended consequences. First, the litigator will give him or herself a better chance of winning than that of an “average” litigator handling the same case. Second, the inherent optimism of the litigator, even if tempered with cautious words, often, sometimes invariably, is transmitted to the client.

b. Parties

To start with, parties believe strongly in their positions. At least, that’s my hope. And, just as hopefully, they believe in their attorney(s). Prudent attorneys always temper their language in order to avoid giving their clients any false optimism about their likelihood of success. But as we all know, many clients read optimism “between the lines,” in their attorney’s demeanor, or in any other way that justifies their own need to be optimistic. And, of course, this optimism can be further buoyed at various times, such as at deposition, where the attorney will take a particularly vigorous position as advocate.

3. Settlement value

For the purpose of this article, I am using the simpletonian method that I always used in my own practice: value times percentage of success. Using this method, a $50,000 case with a 50% chance of success, for example, has a settlement value of $25,000. Similarly, a $100,000 case with a 25% chance of success also has a value of $25,000.

4. The Index of Over-Optimism

This is a tool that I developed myself that has been useful in my own evaluation of the status of the mediation. Initially, I ask each attorney to tell me, privately of course, what his or her opinion of the likelihood of success at trial is. Keep in mind that I believe that “slam dunks” win, at best, 75-80% of the time. I then take the two numbers, add them together, and have my Index of Over-Optimism.

The lowest reasonable number would be 100%. That would be when each attorney measures the likelihood of success at 50%. In that case, the only difference would be in the valuation of the case itself, a straight distributive issue that, while challenging, would certainly be simpler to address than would inflated expectations.

More typically, the Index ranges from 120% to 160%. I’ve even had a case in which both attorneys felt 90% sure of success at trial, for an index of 180%. The Index is a measure of the degree of difficulty presented in the mediation based on the evaluation as stated by the attorneys themselves. I emphasize this because too often the percentage given does not reflect the true opinion of the attorney, but rather what the attorney wants the mediator to think. As the mediation goes on, the mediator should adjust the Index as developments change the “lay of the land.”

5. The job of the mediator

Even when all of the foregoing information is absorbed and understood, the challenge of putting it into effect remains. This is where the experienced mediator will transcend the basic training and call on his or her years of experience to use the knowledge and seal the deal.

a. Getting beyond the numbers

Emphasizing the costs of litigation is something that every mediator is taught to do in the first hour or two of training. It’s a valuable tool, but as we all know, it’s a very limited one. It doesn’t work very well with parties who don’t put a value on the costs, insurance companies in particular, and it may not work at all in cases in which substantial sums are at issue. And there’s a certain amount of resistance to this pitch, since almost all litigators have heard this argument hundreds of times already and already discussed it with their client(s). When you can resolve a case based on the costs of litigation, that’s great. When you can do it on the costs and other elementary tools, that’s great, too. But what happens when you cannot?

b. Feeding the fire

The primary reason attorneys are anxious to mediate, regardless of what they say or how they act out the outset of the session, is because, when all is said and done, they’re uncertain of the result. Paradoxically, the more certainty they’ve shown up to that time, the more worried they often are about the potential of failure and how their client will react were that to occur. My own favored technique is to use personal anecdotes to relate to the latent fear of failure in a similar situation. However you do it, the goal is to reinforce the fact that nothing is certain and that good attorneys are always bullish. A bit of devil’s advocacy never hurts, either.

In a similar fashion, many parties have never had a reality check from a disinterested third party prior to the mediation. In my experience, even after a reality check performed in a gentle manner, many parties emerge shell-shocked. I’ve watched them whisper to their attorney, and the attorney whisper back, audibly, “I’ve been telling you that all along, but you wouldn’t listen. It happens all the time.

After feeding the fire, I find it best to step back and mollify a bit. Rather than press the issue, I tell the participants that, after all, they might prevail in the end, but, on the other hand, this might be an opportune time to cash out.

c. Forging the deal

All of the foregoing activity will often take place within the first hour or so of the process, and continue intermittently as the mediation moves forward. The deal will be forged against the backdrop that has been created through your exploitation of uncertainty. Yes, the costs of litigation, the emotional toll and all the other factors will still play a major role in your pitch, but the context in which it is received is, I think, the overarching factor in whether or not the case will settle.

In my experience, the more uncertain the attorneys and parties are about the outcome in court, the more amenable they will be to all the other solutions available to them in mediation. These solutions can include simple distributive negotiation, a mediator’s proposal, creative construction of terms, or anything else that works for the parties.

The point to take with you is this: A party that feels certain, that it has little to lose, will feel that it has little motivation to go that extra step that invariably makes mediation successful. Your job is to dispel that certainty!

Mediating Commercial Relationships

Alec was recently selected as a Southern California SuperLawyer in the field of Alternative Dispute Resolution.

In mediating commercial disputes, once all of the frills are striped away, the dispute is very typically about money. The money can evince itself in a number of ways: one side paying the other cash; one side paying the other in specific performance; one side paying the other by refraining from competing, and so foregoing potential income, and so on. But, when the dust clears, the outcome is generally that money either does or doesn’t change hands.

A second characteristic of such mediations is that they’re almost always distributive in nature. In many cases, the lawsuit is about one party trying to collect from another that is no longer in business. And in the others, by the time that the parties have hired lawyers, filed suit and enjoyed the pleasures of litigation, each has probably come to loathe the other in such a personal way that they’d rather do business with the devil than with each other. That’s not surprising, when each side perceives the other to have broken faith, lied, cheated, and other wise proven to be completely untrustworthy. Welcome to a commercial mediation on a very typical morning

Not long ago, I walked into just such a room. The facts, while not so typical, were not too complex, either. The Plaintiff owned a wholesale warehouse, from which he sold electrical components to retailers, including the Defendants. Plaintiff told me that his cousin, who had worked for him for many years, had apparently been “back dooring” (ie. stealing) merchandise worth $300,000, and then selling it secretly to customers, including the in pro per Defendants. When the fact of the missing merchandise was discovered, Plaintiff said, the cousin confessed all, pointed to the Defendants and was fired after agreeing to make restitution. Naturally, Defendants denied all, telling me that the cousin, now an admitted felon, was giving Plaintiff this “story” to make it easier on himself.

Now a lot of questions were never addressed and/or answered, such as why the police were not brought in, but my overarching understanding is that Plaintiff wanted his money back and wanted reimbursement from his cousin, rather than his cousin in jail and the family complications that would follow.

For a few hours, we engaged in classic back and forth negotiation, but, because each side had invested in a very different reality, very little progress was made. Because Plaintiff insisted that he was dealing with thieves, he expressed an unwillingness to substantially reduce his demands, since this was a case of good vs. evil. The Defendants, on the other hand, lived in a world in which they’d been unfairly smeared and vilified, were now involved in a totally unwarranted lawsuit.

Did I accept either reality? Well, first of all, that’s not my job. My usual approach might be to get each side to understand the reality of the other side, while not necessarily modifying their own reality. Here, that seemed doomed to failure, since each reality overtly required the other party to be lying. I skirted around this several, times, but was starting to run out of ideas. Then, as is often the case, a little nugget was dropped into my lap.

One of the things I always do in caucus is chat up the parties. Among the reasons I do this is because the key to settlement can often inadvertently come from the parties themselves. In this case, one of the Defendants remarked how he was especially infuriated because the Plaintiff, his brother, himself and their families had had so many fun times in the past. In other words, he felt betrayed. I had my lever!

I caucused with the Plaintiff, and after a few minutes of the usual housecleaning discussion, I casually said to him, “I understand that you had a lot of good times with the Defendants. Sitting hear today, that seems hard to believe. Is that true?” The Plaintiff sighed, and said: “Yeah. We used to go to Vegas a lot, we’d spend the holidays with one another’s families. We had a lot of laughs over the years.” I went on: “It’s a shame those times are over, huh?” The Plaintiff agreed, but went on to say that he could never do business with the Defendants after what they’d done to him. I asked him, for the umpteenth time, whether his cousin could have been making it up, and he again said that that was impossible, but with a bit of regret in his voice.

Then I asked him the key question. I asked whether he would be willing to do business with the Defendants if, in the long run, they could repay the value of the goods and he could continue to make a profit along the way. He thought it over, consulted with counsel and then said that he would.

I caucused with Defendants, and, after a lot of wrangling, got them to agree that they’d resume business with Plaintiff and make payments toward the loss, but said that the payments were entirely dependent upon the profit they would make on their end from the product Plaintiff would provide. Several caucuses ensued, and, bottom line, both sides agreed to do $3 million worth of business as soon as reasonable, Plaintiff would bill at his lowest price, and Defendants would pay a surcharge of 10%.

At the end of the mediation, all parties were sitting together, reminiscing and laughing. It’s not something I get to see very often, but I don’t think you’ll ever see that in a courtroom.

The Joys of Giving

Alec was recently selected as a Southern California SuperLawyer in the field of Alternative Dispute Resolution.

At this time of year, everybody, myself included writes paeans to the gratitude we’re supposed to feel during this holiday season, and opines that gratitude should not be a seasonal thing. All true, of course. But I want to remind all of us in the business of resolving conflict to be joyous in all that we give — and not just during the holidays.

For me, mediation acts as a conduit for my spiritual self. I harness a higher power that I do not regularly have, but that I am able to use for the benefit of others. It’s a power that works best when turned outward, rather than for my own, personal benefit. Many times, in the course of opening an initial mediation session, I point out that I’m basically one of the tools available to the parties that they can use to help resolve their disagreements, if that’s what they choose to do. And when I say that, I mean it from the bottom of my heart. What goes on within the mediation rooms may include very evaluative input from me, but if I’m on my game, that input is provided for the benefit of the party to whom it is given, rather than for my own personal gratification. I try to be sure that I don’t dispense evaluative information with an ulterior purpose, such as self-aggrandizement, manipulation of the outcome, and the like. I can’t swear that I always succeed in drawing this line, but I can guarantee that it’s always on my front burner and is something that I take very seriously before any of the words leave my mouth.

No matter what my mood has been, something amazing happens when I enter the mediation room. Some days, I’ve found myself in a tired, grumpy, stressed or otherwise negative mood while driving to a mediation. I remember so many times when I thought to myself, “why did I schedule this for today? Why on a day when I’m just not emotionally up to dealing with someone else’s problems? Why couldn’t I have just called in sick and spent the day in bed licking my own wounds?” To be honest, that thought has crossed my mind a whole lot of times. But never have I taken that action. It never occurred to me to abandon a client, whether pay or pro bono, who was relying on me for help. And then, without exception, once I’ve shaken hands and gone through any formalities, the details of the case come to the fore of my thinking and I start studying each person, and . . . voila . . . the mystique is back! Whatever you want to call it, mystique, focus, mindfulness, I find myself in a tight little world where nothing is happening but the mediation. My personal issues have vanished. The outside world may as well be another planet. Every sinew of my being is completely focused on the single process of mediating the matter before me. What I’ve done is immersed myself into a total act of giving with no expectation of anything at all in return.

Lest the cynics among you point out that I’m being paid for my services, I have two responses. First, I find no distinction in the feelings I have in pro bono versus pay mediations. Second, financial matters are among the externalities that reside on another planet while I’m in my mediation “zone.”
So, my friends and colleagues, while I certainly join in the overall sense of gratitude for all the wonderful people and things in my life that I’ve been privileged to enjoy, I am far more grateful for the unconditional love that I receive from several very special people in my life. And in the same way, I am most grateful for my own ability to return that unconditional love to these special people as well. And, to me, mediation is an extension of that. I am grateful for the opportunity to give of myself unconditionally to people who are asking for help.

To me, that’s not a job. It’s a calling.