Sometimes, we have to say “no” to get to “yes”. In his new book entitled The Power of a Positive No: How to Say No and Still Get to Yes, William Ury, Director of the Global Negotiation Project at Harvard University, explains “how to deal with a situation in which you simply want to put your foot down.” (“Why Almost Everyone Has Trouble Saying No” by Barbara Kiviat, Time Magazine, March 8, 2007). As Ury explains, “no is so often hard to say . . . because it highlights the “tension between exercising your power and tending to your relationship.”” (Id.)  That is, a tension exists between your short term goal of getting what you want and your long term goal of keeping everyone happy for the sake of the relationship. (Id.) According to Ury, people err by picking one of these choices over the other. In truth, there is a middle ground which is “to serve your “no” sandwiched between two “yeses””. (Id.)  For example:

  Say you’re a dutiful son who works in the family business and
  always covers weekend shifts – kind of a drag if you have a wife
  and kids at home. When you go to talk to dad, start by saying yes
  to your own interests (my family needs me), then move on to your
  no (I can’t work weekends anymore) and finish by saying yes to
  your relationship with dad (together, let’s figure out how we can
  get the work done and let me spend time with my family.) (Id.)

 In sum, saying “no” may very well get you to “yes”. As Ury explains, “. . . delivering a respectful decisive no can paradoxically strengthen your relationship with the person on the receiving end.” (Id.)
 . . . Just something to think about.  

 “Free yourself.” This is the title of an article by Sally Kempton in the April 2007 issue of Yoga Journal. Although the article discusses “resistance” in terms of meditation, the concept is equally applicable to mediations.

 Ms. Kempton comments that “. . . one of the most puzzling paradoxes of the human organism [is] the way we resist not only life’s difficulties but also life’s potential sweetness.” We each have a “subtle tendency to hold back from anything that changes the balance of our lives.” This resistance, Ms. Kempton notes, is to both unpleasant and pleasant tasks alike.
(Id. at p. 57).

 According to Ms. Kempton, as we grow up, we build not only a physical immune system but a psychological one as well:

  The problem. . . happens when a psychological immune system doesn’t
  know when or how to let down its boundaries. Then resistance stops
  being a useful filtering device and becomes a wall, a kind of armor.
  Sometimes the habit of resistance is so deeply ingrained that you
  can’t tell whether your inner ‘no” is a legitimate warning or
  just obstructive. (Id. at p. 58).

 Anyone who has attended a mediation knows that, at least at the beginning, “resistance” is a key element. Each party to the dispute has her psychological immune system firing on all cylinders “to keep out intruders.” (Id. at p. 58). This system is doing its best

“. . . to keep out hostile energies, potentially toxic situations and exploitative relationships.” (Id.).
 But, if the mediation is to progress at all, each party must stop, think and reflect on whether her psychological immune system is saying “no” as a legitimate warning signal or as an obstruction. Is the inner self saying ‘no” just for the sake of saying ‘no”? Or is there a real concern behind it?

 Each of us has a tendency to resist any suggestions or proposals made by the other party. None of us feels comfortable with anything that changes the balance in our lives. But, each party in a mediation should not be on auto pilot, saying “no” because it is the easy thing to do, or because the psychological immune system tells us to do so. Rather, each party should question why it is she wants to respond to the proposal with a “no”. Is there a legitimate concern behind it? If so, the party should explain that concern so that the mediation can progress forward. If the resistance is not the result of a legitimate warning signal, then each party must question and analyze the resistance and whether “no” should even be said. Should the party override this obstructionist tendency? Obviously, to resist  simply for the sake of resisting will cause the mediation (like a meditation practice) to end with irritation and much frustration. At the end of either (meditation or mediation), the parties will not feel “at peace.”

 So, although many people have confused meditation and mediation and many believe the two concepts to be quite different, perhaps in reality, they are not so far apart. Each seeks “peace” and to accomplish that goal, each must overcome “resistance.”

 The next time you are in a mediation (or are meditating), reflect on your “resistance” to the situation and what is it that you (or the other party) must do to reach a peaceful resolution.
 . . . Just something to think about.     

 Although trained in family law mediations, I have conducted only a very few mediations involving family issues. I, like many other mediators, are familiar with the collaborative law movement in which the lawyers for the parties work together (rather than adversial) to resolve the family law issues in a collaborative environment. Of prime importance, the lawyers agree that if this alternative dispute resolution model does not result in a settlement, they will not represent their clients when resort is made to litigation to resolve the issues.

 An ABA Journal e-Report dated May 4, 2007 entitled “A Warning to Collaborators” highlights that “one of the most rapidly expanding forms of alternative dispute resolution in family law” has received a blow. (Id.) In Ethics Opinion 115 dated February 24, 2007, the Ethics Committee of the Colorado State Bar opined that collaborative law is per se unethical
“. . . insofar as a lawyer participating in the process enters into a contractual agreement with the opposing party requiring the lawyer to withdraw in the event the process is unsuccessful.” (Id.). The Ethics Committee further concludes that the collaborative law model presents a conflict of interest that simply can never be waived by the client.

 The basis of the Committee’s conclusion is Rule 1.7(b) of the Colorado Rules of Professional Conduct governing conflicts of interest, mandating that an attorney may not represent a client if that representation may be “materially limited” by her obligations to a third person. In addition, the comment to this rule states that the lawyer must have unfettered loyalty to her client.

 The Ethics Committee found that the “Four-Way Agreement” mandating that each lawyer withdraw if the matter is not resolved by the ADR process allows a third party – the opposing party – to control the lawyer’s relationship with her own client.
 While the existence of a conflict, in and of itself, does not usually preclude representation, the Ethics Committee, in this situation, found that this conflict simply cannot be waived by the client because it is the type of conflict that will “inevitably interfere with the lawyer’s professional judgment in considering the alternative of litigation in a material way.”
( Id.)

  Turning back to the ABA Journal article, its authors note that this Ethics Opinion is not binding and may have limited significance because so far collaborative law has been used mainly in family law but not in other areas of practice. While other states, including New Jersey, Pennsylvania, and Kentucky, have addressed the issue, Colorado is the only state to deem collaborative law as unethical per se.

 Whether this Ethics Opinion will, indeed, effect the growth of collaborative law is unknown. But it is definitely an issue worth following.
  

 How many times have we been told not to make a decision when we are angry? How many of us have written a nasty or angry letter only to put it in the drawer so that we can decide whether to really send it once we have calmed down?

 It now seems that such behaviors are not in our best interests. From a study conducted by Wesley Moons, a psychologist at the University of California at Santa Barbara and his colleague Diane Mackie, these researchers concluded that “anger actually seems to help people make better choices – even aiding those who are usually very poor at thinking rationally.” (“Anger Fuels Better Decisions” by Melinda Wenner, Live Science posted June 11, 2007 at 8:01 am ET). These researchers think it “could be because angry people base their decisions on the cues that “really matter” rather than things that can be called irrelevant or a distraction.” (Id.)

 Using two groups of college students for their experiments, the researchers induced anger in the first group before beginning the experiment. The second group remained calm. The experiment consisted of having each group “read either compelling or weak arguments designed to convince them that college students have good financial habits.” (Id.). The study was repeated with a second group of students; this time, providing the students with the identities of those making the arguments.

 As a consequence of these two experiments:
  “. . . the researchers found that the angry subjects were better at discriminating between strong and weak arguments and were more convinced by the stronger arguments. Those who were not made to feel angry tended to be equally convinced by both arguments, indicating that they were not as analytical in their assessments.” (Id.)
 Thus, it seems that anger, by motivating people to take action, helps them take the right action. Anger causes people to focus on the right cues, and to disregard those that are not relevant.
 So . . . perhaps getting angry during a mediation session is not such a bad thing after all, and, in fact, may lead to a more rational and analytical resolution.
 . . . Just something to think about. 
 

 How many times have we been told not to make a decision when we are angry? How many of us have written a nasty or angry letter only to put it in the drawer so that we can decide whether to really send it once we have calmed down?

 It now seems that such behaviors are not in our best interests. From a study conducted by Wesley Moons, a psychologist at the University of California at Santa Barbara and his colleague Diane Mackie, these researchers concluded that “anger actually seems to help people make better choices – even aiding those who are usually very poor at thinking rationally.” (“Anger Fuels Better Decisions” by Melinda Wenner, Live Science posted June 11, 2007 at 8:01 am ET). These researchers think it “could be because angry people base their decisions on the cues that “really matter” rather than things that can be called irrelevant or a distraction.” (Id.)

 Using two groups of college students for their experiments, the researchers induced anger in the first group before beginning the experiment. The second group remained calm. The experiment consisted of having each group “read either compelling or weak arguments designed to convince them that college students have good financial habits.” (Id.). The study was repeated with a second group of students; this time, providing the students with the identities of those making the arguments.

 As a consequence of these two experiments:
  “. . . the researchers found that the angry subjects were better at discriminating between strong and weak arguments and were more convinced by the stronger arguments. Those who were not made to feel angry tended to be equally convinced by both arguments, indicating that they were not as analytical in their assessments.” (Id.)
 Thus, it seems that anger, by motivating people to take action, helps them take the right action. Anger causes people to focus on the right cues, and to disregard those that are not relevant.
 So . . . perhaps getting angry during a mediation session is not such a bad thing after all, and, in fact, may lead to a more rational and analytical resolution.
 . . . Just something to think about. 
 

One very important aspect of mediation is that it is self-determinative. The parties have control over the process and the outcome. They are not putting their fates into the hands of a third party who can cause the whole process to malfunction and lead to a very bad result.

 An extreme example of a case going haywire is Haluck v. Ricoh Electronics, Inc., Case No. G035681 decided on June 1, 2007 by the Fourth Appellate District, Division Three of the California Court of Appeal. Plaintiffs were employed by Defendant Ricoh Electronics, Inc. Claiming they were passed over for promotions and ultimately terminated, plaintiffs sued for discriminatory employment practices and wrongful termination. Losing at trial, plaintiffs appealed, not so much on the substantive issues but based on the trial judge’s behavior. Plaintiffs urged that the conduct of the trial judge was so egregious and pervasive that they did not receive a fair and impartial trial. The Appellate Court agreed, reversing the verdict, and remanding the case for assignment to a different judge.

 It appears that during the trial, the judge did several things that, at a minimum, had the appearance of impropriety. First, he viewed a videotape during lunch time to determine its admissibility. While he invited defense counsel to join him who did so, he said nothing to plaintiff’s counsel about participating. Thus, the judge and defense counsel viewed the videotape without plaintiff’s counsel being present. (Id. at 8-9). Second, in overruling plaintiff’s objections to testimony, the trial judge held up a hand-lettered sign saying “Overruled.” The next day, defense counsel presented the judge with a more professionally made sign which the judge accepted and also invited plaintiff’s counsel to submit a “Sustained” sign. (Id. at 3-4). (Plaintiff’s counsel did not do so). Several days later, the judge commented that he would implement the soccer style method, using red cards, yellow cards, etc. Red cards would cost $50 each, the court would keep a running tab and collect the money at the end of the trial and possibly use it to take the jury to have a nice lunch. (Id. at 4). A little later in the trial, defense counsel asked a witness if he ever heard of “The Twilight Zone” and sung a few bars of the theme song. Although plaintiff’s counsel objected, the judge did nothing to stop the argumentative and mocking nature of this cross-examination. (Id. at 5). Further along in the trial, when plaintiff’s counsel raised numerous objections, and finally asked to have a “running objection”, the court responded, saying that counsel could have it “until I die.” The next day, overruling plaintiff’s objection, the judge referenced “187” which is the California Penal Code section on “murder.” Elsewhere throughout the trial, the judge made sarcastic and other inappropriate comments.

 Noting that during trials, judges ““should be exceedingly discreet in what they say and do in the presence of a jury lest they seem to lean toward or lend their influence to one side of [sic] the other.”” (Id. at 7), the appellate court found that the “judge’s actions and comments during trial violated these principles such that “it shocks the judicial instinct to allow the judgment to stand.”” (Id. at 8). As noted, the appellate court reversed the defense verdict and ordered that this matter be re-assigned to another judge for trial.   

 The original trial lasted more than 30 days. These are court days. In real time, the trial lasted probably close to two months. Imagine being one of the parties – plaintiff or defendant – who puts her life on hold for two months – 60 days – to attend and participate in trial – only to find that a third party over whom neither plaintiff, defendant nor counsel – has control – messes up the matter so badly – that it has to be re-done completely: an involuntary mulligan or do-over. How much time, money and resources have been wasted?

 Resolving this dispute at mediation gives control back to the parties. They decide their own fates and do not leave it to the whims of a third party who may take the whole thing sideways! How much time, energy and money they would have saved had they mediated this dispute to resolution.

 While this case is an extreme example of a dispute gone bad, it is still food for thought: on a less extreme basis, disputes have, can and will go sideways when left to the control of third parties.
 . . . Just something to think about.

 I went to Mardi Gras in New Orleans. In fact, I was in a krewe – the Krewe of Morpheus – which took to the streets on Friday night (February 16, 2007), winding its way along a compressed route – first along Napoleon Ave., then along St. Charles around Lee Circle to Canal Street and ending on Tchoupitoulas St.

Our krewe was the last of three parades that night, in a schedule compressed by the grim realities of living in the Big Easy after Katrina. With police protection and other public amenities available only on a limited basis, the city was forced to throw its big party on a reduced scale.

The city needed to party. With so much continuing stress and despair from the aftermath of Hurricane Katrina, the residents needed – if only for a moment – to forget their stress and laissez les bon temps rouller (let the good times roll). New Orleans is sometimes labeled as the city that care forgot. But looking around its streets and at its residents during Mardi Gras, I think that more than just “care” has forgotten this city.

It was a great party. . . everyone partied and drank and drank and partied and then when they could not do either anymore. . . partied and drank some more until the clock struck midnight on Fat Tuesday/Ash Wednesday and the party officially ended.

What does this have to do with mediation? Nothing. I just wanted publicly to say “Thank you, New Orleans” for allowing me to participate in your party and help your residents forget their trials and tribulations and have a good time – they sorely needed it.

 . . . Hey, throw me something, mister. . . . !