Recently, in her Two-Minute Training, my colleague Maria Simpson, Ph.D (www.mariasimpson.com) wrote about a process called “social construction” as defined inThe Social Construction of Reality by Berger & Luckmann (Doubleday 1966).

As she explains:

“Social Construction means that we create meaning through social interaction, mostly talking to each other. . . . We look at the world around us and try to find reasons for what has happened, good or bad, or find meaning in events. . .”

That is, we create our “realities” through conversation and discussion, through the specific words we use. Based on the words we choose, we can either create agreement or disagreement, resolution or conflict, thoughtful consideration or intolerance.

Why is “social construction” important? Because it plays a critical role in every dispute and thus in every mediation. Each of us comes to a mediation with our own construct of “reality” of the “true” facts of “what really happened.” We each have our own “story” built on our interactions with others. This is the “story” we bring to the dispute, we tell in a joint session and go into more detail with the mediator in a separate session. Obviously, one party’s “perception” of the “truth” will be different than the other party’s because the “reality” of each participant is different. Because of life experiences and social interactions with others, each participant comes from a “different place” with a different “reality” of what happened!

In many mediations, I discuss this point with each party: that there is no one single “truth” but merely every one’s own unique perception or social construction of what happened. There is no single “right” and no single “wrong.” Because of our social construction, our “right” and “wrong” will be different.

In a dispute, this point is critical. If the dispute is to be resolved, each participant  must be willing to acknowledge this process of social construction and be able to see the dispute from the other person’s vantage point, “reality” or perception. Once accomplished, it becomes apparent to all concerned that the dispute is not as cut and dry or as black and white as initially perceived but rather very mercurial and nebulous; there are a lot more different sides or “realities” to the dispute than originally imagined.

Once the parties understand that there are several different “realities” or several different social constructions of the “truth”, the dispute becomes more malleable and thus easier to settle. Understanding that there is no one “true” story, each party no longer clings so tightly to her social construct of “the truth” and without necessarily accepting the other party’s construct (although perhaps acknowledging its existence), becomes more willing to settle. Principles of “right” vs. “wrong” give way to pragmaticism and practicality. With luck and persistence, the matter settles.

As my colleague concludes in her short Two-Minute Training: “Reality is, after all, yours to define.”

. . .Just something to think about.

If you enjoy this blog, and want to receive it weekly via RSS Feed, click here: http://www.pgpmediation.com/feed/ or via FeedBurner email subscription, then enter your email address under the word “Subscribe” to the above right and click on the “Subscribe” button

       As a mediator, I hear a lot about the value of apologies and how apologizing can make a difference in resolving (or not resolving) a matter and/or doing so for far less monetary value than would occur without an apology.

       So, I decided to pick up a book on the topic. In On Apology, Aaron Lazare (Oxford University Press 2004) discusses the many different aspects of an apology. While at first glance, one might think this is a simple topic, Mr. Lazare shows it is really quite complex. As he explains, the apology process is actually a paradox: although it is seemingly simple and straight forward to say “I apologize” or “I am sorry”, it is, at the same time, a remarkably complex process. (Id. at p. 22-23). 
 

      It seems that apologies have an anatomy or a structure:

      ““Apology” refers to an encounter between two parties in which one party, the offender, acknowledges responsibility for an offense or grievance and expresses regret or remorse to a second party. . . .”

      “Some scholars suggest additional criteria for apology, such as an explanation for the offense, an expression of shame and/or guilt, the intention not to commit the offense again, and reparations to the offended party. . . .” (Id. at p. 23).

       Thus, it seems, the simple words “I am sorry” to be effective as a true apology must: (1) acknowledge the offense; (2) accept responsibility, or, provide an explanation; (3) express various attitudes and behaviors such as remorse, shame, humility, and/or sincerity; and (4) offer reparations. (Id. at p. 25, 35). Quite a lot of work for 3 simple words!
 

      In pointing out that an apology is a four step process, the author notes that this process can occur over a broad spectrum of situations; on an individual level (one to one), on a cultural or societal level (from one nation or culture to another), explicitly (verbally) or even implicitly (a brief nod or a handshake) or publicly or privately. The apology can be just a few words or a lengthy speech given by a head of state on behalf of or to a nation (e.g. President Lincoln’s apology for American slavery. (Id. at p. 78)). That is, its circumstances can be as varied as one’s imagination.
 

      But, for all of these different types of apologies to work, each must successfully satisfy certain psychological needs of the offended party. To heal the damaged relationship with the offended party, the author explains that the apology must satisfy the offended party’s following needs:

      • “Restoration of self-respect and dignity
      •  Assurance that both parties have shared values
      •  Assurance that the offenses were not their fault
      •  Assurance of safety in their relationships
      •  Seeing the offender suffer
      •  Reparation for the harm caused by the offense
      •  Having meaningful dialogues with the offenders.”
          (Id. at p. 44).

      In the simplest of terms, most offenses are viewed as an assault on one’s dignity or self-respect or honor. They are viewed as insults or humiliations. (Id. at p. 45).
 

      By the offender acknowledging she made a mistake, she affirms that her values are the same as those of the offended person, – i.e. that they both have shared values – and that it will not happen again. (Id. at p. 53). By doing so, the offender also acknowledges that the offended party is blameless who will then feel exonerated, if not validated in her innocence. (Id. at p. 58-59).

       The author notes that for some apologies to be effective, “the offended party needs to see the offending party suffer.” (Id. at p. 61). This suffering may simply be the offender expressing shame, guilt, remorse, et cetera or it may be a bit more complex by the offended party waiting awhile (hours, days, weeks, years) before accepting the apology to insure that the offended party is suffering (also known colloquially as “tit for tat”, “eye for an eye” or “retributive justice.” (Id. at p. 62)).
 

      Mr. Lazare points out that there is a difference between “reparation” and “settlement”:

       “Reparation refers to repairing, undoing the damage, making amends or giving satisfaction for an acknowledged wrong or injury. (When the party makes redress without acknowledging remorse, we tend to refer to this process as a “settlement”, not “reparation”). . . . Reparation is the central or dominating feature of the apology.” (Id. at p. 64).

      And finally, and what many mediators have learned, for an apology to heal, it must be an interactive process: there must be dialogue or negotiations between the offender and the offended party. The victim must be able to express her distress, its meaning, nature and severity, to the offender. She must be able to tell her story: “the mere act of telling what happened [is] a healing emotional release.” (Id. at p. 67). It is a catharsis of sorts. . . and with the telling, the offended party can move past the offense and allow the apology to have a healing effect.
 

      Mr. Lazare further discusses why some people are able and/or willing to apologize while others are unable and/or willing to do so. The first group acts in response to either strong internal feelings (they need “. . .to resolve and maintain their own dignity and self esteem”) and/or to strong external pressure (“. . .they want to influence how others perceive and behave toward them.” (Id. at p. 134)).
 

      In contrast, the second group – those who are unable and/or unwilling to apologize – act out of fear, embarrassment and/or shame. They fear the reaction of the offended party (rejection) and/or they are embarrassed and/or ashamed of the self-image it creates. (Id. at p. 160).
 

      Before I read this book, I thought an apology was a pretty simple thing. But, as you can see, it is not: it is rather complex. So, the next time, I suggest its use in a mediation, I will tread a lot more carefully: there are a lot more ramifications to saying “I’m sorry” than I ever imagined!

       . . .Just something to think about.

If you enjoy this blog, and want to receive it weekly via RSS Feed, click here: http://www.pgpmediation.com/feed/ or via FeedBurner email subscription, then enter your email address under the word “Subscribe” to the above right and click on the “Subscribe” button

       Last week, I discussed a legislative bill, AB 2475, introduced into the California legislature which, if passed, abolishes quasi-judicial immunity for mediators and other alternative dispute resolution professionals.(ab_2475_bill_20100408.) As President of the Southern California Mediation Association (“SCMA”), I sent a letter to the sponsor of the legislation, posted it on my blog and urged everyone to make their voices heard.
 

      It seems those voices were heard as the legislation was amended on April 22, 2010 to abolish quasi-judicial immunity only for matters falling within California’s Family Code. (ab_2475_bill_20100422 .) Thus, while this legislation no longer effects mediators handling civil, commercial, contractual or personal injury disputes, it still effects private mediators handling family-law matters. Given that its purpose is apparently aimed at evaluators (i.e. not mediators) who submit findings and recommendations to a court, this latest amended draft still sweeps too broadly: Family law mediators are bound by mediation confidentiality and so do not submit any findings and recommendations to a court.

       So, once again, I have written to the sponsor of the legislation ( letter) and urge each of you to do the same and make your viewpoint known and heard.

       . . . Just something to think about.

Postscript:   It seems that this draft legislation has once again been amended. On April 28, 2010, it was modified drastically  so that it now abolishes”… quasi -judicial immunity… [for] any private third  party … appointed by the court …who provides a report or findings to the court in a proceeding under the Family Code, with the intention that the court act in one way or another based on the  report or findings….” (ab_2475_bill_20100428.) Success! The Assembly Member heard your voices!  Have a great day!

If you enjoy this blog, and want to receive it weekly via RSS Feed, click here: http://www.pgpmediation.com/feed/ or via FeedBurner email subscription, then enter your email address under the word “Subscribe” to the above right and click on the “Subscribe” button

       In 1990, a California appellate court held that “absolute quasi-judicial immunity is properly extended to neutral third persons who are engaged in mediation, conciliation, evaluation or similar dispute resolution efforts.” Howard v. Drapkin (1990) 222 Cal. App. 3d 843, 851-860.( 222_cal__app__3d_843)
 

      Recently, California Assembly Member James T. Beall, Jr. introduced AB 2475 (ab_2475 ) which would abolish such quasi-judicial immunity not only in all court ordered mediations but in those held privately, as well, It is rumored that the genesis of this draft legislation was a family law matter that went awry. That is, as rumor has it, a family law evaluator (not a mediator) submitted substantive written recommendations to the court which adopted them. The consequences were disastrous for the family who sued the evaluator but lost due to this quasi-judicial immunity.
 

      In an attempt to correct the “problem,” Assembly Member Beall drafted this legislation which, “throws the baby out with the bath water.”
 

      Because of the importance of this issue, I want to share with you, the letter I wrote as President of the Southern California Mediation Association to Assembly Member Beall opposing this legislation. ( letter)
 

      As the issue affects not only mediators but parties to a dispute, (mediations are liable to become a lot less available), I urge each of you to write Assembly Member Beall and make your voice and thoughts known.

       . . .Just something to think about.

If you enjoy this blog, and want to receive it weekly via RSS Feed, click here: http://www.pgpmediation.com/feed/ or via FeedBurner email subscription, then enter your email address under the word “Subscribe” to the above right and click on the “Subscribe” button

       According to the Second Appellate District of the California Court of Appeal, mediation confidentiality does not and will not protect attorney-client communications. In Porter v. Wyner, Case No. B211398 (April 8, 2010), (Porter v. Wyner )this appellate court held that communications between an attorney and a client during a mediation are not protected by mediation confidentiality.

       In light of the California Supreme Court’s repeated pronouncements that mediation confidentiality must be given broad application without exception, I question how long this decision will remain valid. I strongly surmise that it will be short lived.
 

      But, back to Porter v. Wyner. Plaintiffs John Porter and Deborah Blair Porter sued the Manhattan Beach Unified School District and the California Department of Education on behalf of their son who required special education services. In that suit, the Porters were represented by Steven Wyner and Marcy Tiffany, the defendants herein (“Wyner Tiffany”).

       This underlying action was resolved at mediation. Plaintiffs alleged that during this mediation, Wyner Tiffany agreed to reimburse the Porters for the attorneys’ fees and costs that the Porters had previously paid and further agreed to pay Mrs. Porter for services she rendered as a paralegal.
 

      Once the settlement was documented and concluded, the instant dispute arose, with Wyner Tiffany denying it had ever agreed to these things.
 

      Consequently, the Porters sued Wyner Tiffany for legal malpractice and related claims. During the litigation, the defendants’ attempts to keep out all of the attorney-client communications made during the mediation on the grounds that they were protected by mediation confidentiality, were denied and rebuffed by the trial court. At trial, Wyner Tiffany, initially, filed a motion in limine to exclude all such communications but withdrew it based on the waiver argument made by the Porters.
 

      After a jury trial, the jury returned a verdict for the Porters and against the defendants, awarding Mrs. Porter her back wages of $211,000 as a paralegal and the Porters $51,000 for breach of the attorney fee agreement.
 

      About a month later, the California Supreme Court decided Simmons v. Ghaderi (2008) 44 Cal 4th 570. (simmons_v_ghaderi ).Based on this decision, the trial court granted Wyner Tiffany’s motion for new trial on the grounds that evidence concerning mediation in the underlying action was improperly placed before the jury. Although Wyner Tiffany also filed a motion for judgment notwithstanding the verdict (Motion for Jnov), the trial court held it was moot.
 

      The appellate court reversed the order granting a new trial and remanded the matter back to the trial court to rule on the Motion for Jnov. It determined that mediation confidentiality applies only to communications between the disputing parties, and not to an attorney and his client, not even to those communications occurring when the mediator and/or opposing counsel are present during a mediation. (Id. at p. 16.) The appellate court reasoned that communications between an attorney and client are not the type of communications that the legislature had in mind when it provided the cloak of confidentiality to all evidence or anything said or admission made “for the purpose of, in the course of or pursuant to” the mediation process (California Evidence Code §1119). Rather, the appellate court opined that the open, candid and frank exchange promoted by the cloak of confidentiality applies to parties or disputants themselves: they are the ones who filed or responded to the lawsuit. In the appellate court’s view, the mediation is conducted to resolve the differences between the disputants or plaintiff and defendant, and not between an attorney and his client who is one of the parties. Thus, to the appellate court, communications between an attorney and his client cannot be considered to be “in the course of or pursuant to” a mediation. Otherwise, all attorney-client communications from time immemorial would be potentially covered by this privilege, which to the appellate court makes no sense. (Id. at p.11-15).
 

      Further, the appellate court reasoned that mediation confidentiality should not trump Evidence Code §958 which waives the attorney-client privilege when breach of the attorney’s obligation to his client is at issue. ( Section 958 states:” There is no privilege under this article as to a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship. “)

The appellate court reasoned that if mediation confidentiality were applied, this Evidence Code section would be a nullity: an anomalous situation would be created. (Id.)
 

      The appellate court also believed that to allow attorney-client communications to be cloaked with mediation confidentiality would have a chilling effect on the use of mediations. It would preclude clients from pursuing any remedy against their own counsel for any alleged malpractice that may have occurred during the mediation process. (Id.)

       As noted, it will be very interesting to see how the California Supreme Court responds to this decision. Thus far, the Second Appellate District is batting way below the “Mendoza line” on this issue: that is, in every instance in which the California Supreme Court has reviewed the Second Appellate District decision not upholding mediation confidentiality, the Supreme Court has reversed, holding, repeatedly, that mediation confidentiality means just that: confidential with no exceptions. I strongly suspect that this decision, too, will not help the appellate court’s batting average!

       . . .Just something to think about.

If you enjoy this blog, and want to receive it weekly via RSS Feed, click here: http://www.pgpmediation.com/feed/ or via FeedBurner email subscription, then enter your email address under the word “Subscribe” to the above right and click on the “Subscribe” button