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.

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.

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.