On Friday, February 5, 2010, I helped a colleague who teaches a mediation clinic in a local  school by coaching some of her students conducting a mock mediation. That is, I observed the students conduct their first  mediation  (using a fact pattern given out by the professor) and provided suggestions.

      The particular fact pattern was, in essence, a collection action. A quick reading of it showed that Plaintiff did not have a very good case and would probably lose in small claims court, were the matter actually tried.  The issue for the student mediator was how evaluative, if at all, should she be in her discussions with  Plaintiff. Should she say anything to Plaintiff to the effect that she faced an uphill battle and if so, how mildly or strongly should such a “ suggestion” be  worded.

      Each of the student mediators approached the task differently, but, they were all evaluative–telling Plaintiff she did not have much of a case and would lose. They each just conveyed  this sentiment differently.

       In driving back to my office, I reflected on this in light of a recent mediation. There, the parties reached an agreement that involved the participation of a third party who was neither a party to the lawsuit nor to the mediation. Implementing the settlement was not going smoothly as the third party was not responding in the manner envisioned by the parties. So, much communication was occurring in trying to keep the settlement on track. More and more, our discussions focused on the cultural differences of the parties and the third party. Plaintiff and the third party were Asian while the defendant was “American”, (that is, Anglo-Saxon.)  

      Suddenly, I had an epiphany or ‘ah-hah” moment. Both the students that day as well as me, must take into the account the cultural background of the participants in deciding whether to be evaluative. Why? Let me explain. In my mediation, the Plaintiff was from a country that followed Dutch law or the civil code tradition in which the judge also investigates, asks questions and prosecutes. That judge has a lot more power and control over the matter than do our American judges under our adversarial system. The system used in this Asian country is not at all  adversarial but  rather, inquisitorial.  
   

       In the later stages of my mediation and with the blessing of her counsel, I became evaluative with the plaintiff advising plaintiff that because her english was very difficult  to understand,  she might well lose the attention of the jury and thus lose her case.  I noted that using an  interpreter may also cause her to lose because again, she may well lose the jury’s attention.

       Subsequent to the mediation, plaintiff’s attorney  advised me  that after my discussion with plaintiff, plaintiff used her mobile phone and told the other party that “she had lost” her case.  At the time, the attorney did not think much of it, but suddenly, amid all of our discussions about cultural differences, he had his own epiphany or  “ah-hah” moment as well, and realizing that given plaintiff’s cultural background, (and even though I told plaintiff  that I was neither an arbitrator nor judge and was not deciding anything), she cloaked me with  authority, Thus, when I warned her that her inability to speak English could adversely impact her case, she understand that to mean that I was deciding her case and telling her that she had “lost”! 

       I have taken many training classes focusing on cultural differences.  But, the discussions have always been in the abstract. This mediation brought it home; be careful about the cultural differences.  What I say as a mediator with the intent that it be received one way may well be taken completely differently by the listener in light of her cultural background. While I wanted my “evaluation” to be taken with a grain of salt, this plaintiff, because of her culture and her country’s legal system, took it as “gospel.”

      …..  Just something to think about.

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          On December 18, 2009,  I posted a blog entitled ” What Has The World Come To” about a disturbing event that  allegeldly occurred during the California Bar Examination. According to the story, one of the test takers fell ill and while others stopped taking the exam to help him, they were not allowed to make up the time to finish the test.
    

          I received an e mail  from James Karney[mailto:jkarney@mindspring.com] advising that the story is an urban legend.

          He writes:
     

         ”As a former cop with EMS training, I was properly horrified by the alleged actions of both the bar examiner and Mr Braun. A bit of fact checking revealed his contact information–and also the following narrative of the incident that shows it is another urban legend. Thought you might want to know.”
   

         “1. The Famous Heart Attack Story, Debunked
     

         http://sites.google.com/site/cabarexamprimer/
     

         This is the original legend:
     

       ”At the July 1993 administration of the California bar exam at the Pasadena Convention Center, a 50 year old man had a heart attack, and two of the test takers, John Leslie and Eunice Morgan, stopped their exams to help the man.  They administered CPR for forty minutes until paramedics arrived, and then resumed their exams.  The proctors did not give the applicants additional time to complete their exams (in fact, the proctors are not empowered to do so).”
     

        Jerome Braun, a state bar executive, supported the decision, and said, “If these two want to be lawyers, they should learn a lesson about priorities.”
    

       John is listed as a member of the bar, meaning he passed the exam.  Eunice is not listed as a member, but I have heard that she did in fact pass.  Just think: They passed, despite sacrificing 30 minutes to save a man’s life!
     

       In November, 2001, a Primer reader contacted Jerome Braun to verify this story.  Mr. Braun clarified that the incident occurred in 1992, and the individual suffered an epileptic seizure rather than a heart attack.  Five persons taking the examination came to the individual’s aid, and their taking of the examination was clearly disrupted. Unfortunately, those seated around the person who suffered the seizure were also disrupted, but at the time the extent of the disruption could not be ascertained. To give some who were disrupted additional time and to not give it to others who were disrupted would have been unfair.
    

        In situations where there is a significant disruption, the Committee of Bar Examiners of The State Bar of California engages a  psychometric consultant to determine after grading has been completed the extent of the disruption and then makes appropriate adjustments to the scores of the individuals who suffered the disruption. Following that policy, no additional time was given the five persons who came to the aid of the individual who suffered the seizure and post-grading adjustments were made to the scores.  None of the adjustments changed the pass or fail status of any of the five.
     

       The remark attributed to Mr.  Braun was not made by him, nor to his knowledge by any person affiliated with The State Bar of California.”
     

       I am not sure that the true story is much better than the Urban Legend. Something disturbs me about the Bar’s use of a “psychometric consultant” to determine if adjustments are needed to the test scores because of a “disruption” and then making the ‘appropriate”  adjustments.  I still get the same gut reaction as with the original story and find it just as disturbing.
     

      But, I print the above, to “clarify the record’.
     

      …. Just something to think about!….

       Happy 2010!

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       Because this is my last blog for this year (I will return in early January 2010), I have been pondering what to write about. I wanted it to  be inspiring and memorable. I wanted to end this year on a high note.

       Then – it dawned on me: Simplicity is best – keep it simple.

       So. . . I want to wish every one of you a very happy holiday and the warmest of wishes for a healthy and prosperous 2010.

       I know that 2009 has been a very difficult year for everyone. Especially because of the times, I want to thank each of you for allowing me to mediate your matters. I truly appreciate and am deeply grateful for your continuous support and trust during 2009 . Because of you, my mediation practice has been successful. I have met a lot of great people and have learned a lot from each of you. I only hope that I have  been able to enrich your lives as much as you have enriched mine. Thank you!

      I also want to thank my blog readers for your support. I have met some wonderful people in cyberspace  and have been privileged to even meet  some of them in person.  I wish each of my cyber friends a very warm holiday and a  very happy 2010. I know it will be a good year for all of us.

       May 2010 bring each of you peace and joy and  easy resolutions to all of your disputes.

       Happy Holidays and Happy 2010! 

       …. Just a lot to think about!….

      I am a member of the Louisiana State Bar. Like most states, the Louisiana Bar  requires that its active non-exempt members take so many hours of continuing education each year, including courses on “Professionalism”. As a result, I get e mails advertising courses from time to time. 
 

      Recently, I received the following e mail advertisement. It troubled me. It really made me stop, think and wonder what the legal world is coming to. Sadly, I am also a member of the California Bar which is the object of this article:   

      “More than 600 soon-to-be lawyers were taking the California State Bar exams in the Pasadena Convention Center when a 50-year-old test-taker suffered a heart attack. Only fellow candidates John Leslie and Eunice Morgan stopped to help the man. They administered CPR until paramedics arrived, then resumed taking the test. Citing policy, the test supervisor refused to allow the helpers any additional time to make up for the 40 minutes they spent helping the victim. Jerome Braun, the State Bar’s senior executive for admissions, backed the decision stating, “If these two want to be lawyers, they should learn a lesson about priorities.”

      “Against this kind of backdrop, it’s no wonder that, for some of us, the line between winning and waging war is blurred. Clever rebuttals can slip into verbal abuse, zealous advocacy becomes incivility, and the thrill of victory can turn into battle fatigue. In this course, Dr. Johnston takes a look at the role stress plays in incivility and how attorneys can channel the emotional energy of litigation into appropriate, constructive behavior.”

        This is a sad commentary on the state of  the legal world in California. The fact that it is being noted by a provider of training in Louisiana (CLE Compliance - DigiLearn) (approximately 2000 miles away via Interstate 10) is really troublesome. What Mr. Braun did is, obviously, well known throughout the country, and California’s reputation is clearly  tarnished as a result.

       This episode  epitomizes why I gave up the practice of law and became a full time mediator; I am into peace making, not battle fatigue. I am into resolving matters using  a “win-win” approach; not “I win and you lose” or zero sum game approach. There is no thrill in victory for me. The thrill for me is in helping people settle their disputes; when I succeed, I feel that I have done some good in the world that day.

      I share this story with you to show why mediation is so valuable in our society. By using mediation to resolve a dispute, a party avoids the verbal abuse, the over zealous advocacy  and the general incivility in civil litigation. Yes, civil litigation can be quite uncivil these days.

      As you ponder this story and its implications and ramifications, I would like to  leave you with a wish for a very Happy Holiday and a wonderful New Year. Surely, 2010 will be a better year for all of us. 

      . . .Just something to think about.

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       This week is Chanukah or the Festival of Lights. It commemorates the extraordinary feat of Judah Maccebee and his small band of fighters defeating a much, much larger Syrian army. In fact, they were outnumbered 100 to one.

       It seems that in about 333 BCE Alexander the Great conquered Syria, Egypt and Babylonia. Under his rule, the Jews were not treated too badly. However in 167 BCE, Syrian King Antiochus IV, a successor to Alexander the Great, began to openly persecute the Jews, including prohibiting them from studying Torah and desecrating the Second Temple.

       These actions caused a small band of Jews, led by Judah Maccabee to revolt. Although greatly outnumbered, Judah and his forces were able to defeat the very much larger Syrian army.

       With this victory, the Jews wanted to rededicate the Second Temple. To do so, among other things, required re-lighting the menorah which typically burns continuously. Judah and his men found only enough oil for the menorah to burn one day. However, they needed eight days to obtain a fresh supply of oil, and thus to keep the menorah lit continuously.
 

      As miracles would have it, that one day’s worth of oil lasted for eight days – long enough for the Maccabees to obtain a fresh supply of oil. To celebrate this miracle, the festival of Chanukah was declared.
   

       Miracles - this is an important concept both in the story of Chanukah and in the story of our everyday lives, especially during this holiday season. While our rationality tells us that “miracles do not exist” and we should not place false hopes in one occurring, our everyday lives tell us something different. Examples readily come to mind that miracles do happen - someone walks away from a horrendous crash without a scratch, another person is found alive after many days lost in the mountains or buried under an avalanche of snow or a third person wakes up from a coma after many years and so on. The news seems to be full of miracles that are not “supposed” to happen.

       I am dedicated to the peacemaking process because I believe in miracles. I witness people telling me that there is no way their case will settle, only to witness them signing a settlement agreement several hours later. Often times when I walk into a room to start a mediation, I am the only optimistic person in the room: I am the only one who believes in the miracle that this particular case will, indeed, settle. I witness the “impossible” happening with looks of doom and gloom turning into twinkles in the eye and smiles on the faces.

       In short, mediation can and does work miracles.

       So. . .believe in miracles. . . they do happen!

       Happy holidays!

       . . .Just something to think about.

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