“When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights,  that among these are Life, Liberty and the Pursuit of Happiness. . . .” (Declaration of Independence, July 4, 1776).

With these words, one of the biggest disputes in history began: the thirteen colonies in far away America severed their relationship with George III and Great Britain by declaring their independence. The date: July 4, 1776.

In truth, by the time this Declaration of Independence was adopted, the relationship between the thirteen colonies and George III had deteriorated beyond repair and to an all time low. In fact, the first battle of the Revolutionary War occurred at Lexington and Concord in April 1775 or more than a year before the colonies adopted this Declaration of Independence.

Yet, prior to April 1775, many of the colonists hoped for reconciliation with  King George III and Great Britain. As we all learned in grade school, the relationship between Great Britain and the thirteen colonies began deteriorating many years before when as result of the Seven Years’ War in 1763, Great Britain found itself deep in debt and so needed to generate revenue quickly. To do so, it imposed a series of tax revenue measures on the thirteen colonies. While Great Britain believed these taxes to be fair as the colonies should pay their way, the colonies had a contrary view ( as is typical in any dispute) believing they should not be taxed by an entity (i.e., Parliament) in which they were not represented. Underlying this “taxation” dispute was the true one:  Should Parliament, situated thousands of miles away, really   have any authority and control over the thirteen colonies and their inhabitants? Remember- this is long before telephones, e mail and other means of instant communication existed; rather, communication took weeks and months – by horse and ship! (As is typical in a dispute, often the true issue lays hidden.)  Although many colonists were still hoping to reconcile with George III in 1775 even after war had erupted,  by January 1776, it became clear that George III was not inclined to negotiate or to be conciliatory in any way.

(See, United States Declaration of Independence at: http://en.wikipedia.org/wiki/United_States_Declaration_of_Independence)

But, what if a really good peacemaker (aka an ADR professional) had been invited to the table to mediate the dispute between the thirteen colonies and George III before the relationship was beyond repair, let’s say in 1763 when the dispute first arose?   Could he ( I doubt there were any women neutrals at the time.) have worked his magic and gotten George III to see that it was in his best interests to reconcile with the thirteen colonies so that Great Britain would continue to have an incoming  source of revenue? Suppose the mediator could have gotten George III to acknowledge and accept that one of the underlying needs of the thirteen colonies was to be represented in Parliament – to have a voice in their own governance. Would this have been so bad? Would this have been a really terrible concession for George  III to make ? He certainly, did not do a risk analysis or determine how much he had to gain by giving up a little.

If George III was a savvy negotiator, he could have leveraged this value item by requesting something of value in return, perhaps, additional revenues.   In this dispute, did George III lose sight that he was still the sovereign, and so would always have the ultimate vote and ultimate veto power?  Did he, in essence, lose sight of the forest for the trees?  What if, he hadn’t allowed his ego get in the way?

Certainly, if this dispute had been resolved through mediation, the United States would not be here, today and would not be the great nation that it is.  It would not have accomplished all that it has (good and bad) and each of our lives would have been very different. .  . as citizens of the British Empire.

So while my goal as a mediator is to resolve disputes, I must admit that there are some disputes left best unresolved. . . . (Perhaps, it was a good thing that George III was so bullheaded!)

Happy Birthday America!

Happy July 4^th to Everyone!

. . .Just something to think about.

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In my February 19, 2007 blog, I discussed the unconscious assumptions that each of us makes about someone upon meeting him/her for the first time. That is, within seconds of meeting a new person, we “assume” certain things about that person.

I re-visit this topic because it hit home with me in a recent mediation. To set the stage, I am mentoring a mediation student, Liz, who, as part of her training, sits in on my mediations.

The other day I conducted a mediation. The plaintiff was seemingly very shy. When I asked her to tell me what the dispute was about, she deferred to her attorney, requesting that she (the attorney)  present the issues. When I asked plaintiff a question, she said as little as possible. Although I tried to engage her in pleasantries, she would not participate.

Consequently, I mistook her shyness for lack of experience, and I assumed that she was neither sophisticated nor worldly wise.

The mediation proceeded. Even in separate sessions, plaintiff had very little to say in my presence. We eventually settled the matter.

Because it was lunchtime, plaintiff had gotten herself something to eat and had brought it back to the conference room to eat it. After the settlement agreement was signed and her counsel left, plaintiff remained to finish her lunch.

At this point, my mentored student, Liz, sat down with plaintiff just to chat with her. What she learned was that plaintiff was highly educated, highly intelligent, foreign born, and married to a foreigner of a different nationality. Further, Liz learned that; plaintiff has so little faith in the United States education system that she is sending her children abroad to be educated; she teaches a foreign language in the local public school system; and she is just a few units shy of obtaining her master’s degree. Liz also learned that plaintiff’s hesitancy to speak during the mediation was due to her unfamiliarity with the legal process in general, with the mediation process in particular, and the somewhat formal office setting of the mediation. Liz also opined that (1) she may have deferred to her attorney to speak based on the legal shows she may have seen on television; and (2) there may have been some cultural mores at work as she was born elsewhere!

In short, my assumption that she was unsophisticated was totally wrong. What I took for shyness was hesitancy due to situational unfamiliarity.

After the mediation, I discussed this notion of “assumptions” with Liz. In response, she told me about Hedley Scales. When Liz was working in clinical psychology in Chicago, she stepped over a homeless man every day in the street on her way to work. (She had gotten a job as a psychologist and had to work with “clients.”) Lo and behold, her first client was Hedley Scales, the homeless man she had stepped over many times in the street. She listened to his story: he was an extremely intelligent person who had owned a well renowned pharmacy on the west side of Chicago. Those in  the community revered him and always came to him for his compounded medicines. He had been well respected. Further, he had served in the U.S. Army and had been recruited to serve in intelligence during the Korean war. He had been taken prisoner and tortured. He bore the scars of cigarette burns on his arms as proof of the torture. Mr. Scales had an indelible memory and was brilliant.

Unfortunately, the ravages of war emotionally debilitated him: he turned to alcohol and became an alcoholic. Slowly, he lost everything – to the point that he became a homeless man that Liz stepped over every day on her way to work.

Everyone has a story to tell. . . . We cannot even begin to know what it is simply by looking at a person and “assuming” their story. There is so much more to each of us than meets the eye. . . ! In our own way, we are each a Hedley Scales.

. . . Just something to think about!

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Every week I write this blog, discussing mostly cases in court or published decisions. Such emphasis may give the impression that what I write about does not involve or apply to everyday events. Oh, but it does – very much so.

Case in point. In 1991, my husband and I moved to our present house. Being an exercise nut, I joined the local health club, which I will call “The Gym”. The annual dues were reasonable. Year in and year out, I paid my dues, even as they increased based on the cost of living index. But over the last few years, I have not really been going to The Gym; I get my exercise by walking my dog for 4 – 5 miles a few times a week and using my stationary bike on the other days. But, I kept sending in my annual dues (increasing each year) on the rationale that the rate was too low to pass up. (This is, if I quit and rejoined later, the rate would be much higher), and it had a pool which I sometimes used when swimming became the only exercise available to me due to injury (even though I dislike indoor pools!)

So, this past April, I received my renewal notice and promptly sent in my check. By doing so early, I was to be given two extra “free” months.

About six weeks later – in late May, I received a phone call from “Jane”, part of The Gym’s sales staff, asking if I was going to renew. I told Jane that I had sent the check in, in mid-April, giving her the check number and date. Jane said The Gym had not received it. I suggested she make inquiry again in the corporate office because in the past, The Gym had been slow in processing my payment. I told her that I would not be surprised if it was “lost” somewhere in the corporate office as I used The Gym’s self-addressed return envelope, placed a stamp  and a return address on it, and it has neither been returned to me nor negotiated. (I checked with my bank). Jane asked me if I wanted to put a “stop payment” on the check and write a new one. I told her that I really did not want to bear the $30.00 expense of a stop payment as that would mean, in effect, my renewal would increase by $30.00. I asked Jane if The Gym would bear the expense so that I could write another check for $30.00 less. Jane advised me that normally The Gym does not agree to such things, but she would ask.

The next day Jane called me to advise that she had asked the vice-president of sales who said “no”. Jane asked me if I wanted to put the renewal on my credit card. I said “no”; this fortuitous event made me stop and think about whether I really wanted to renew when I have not been using The Gym more than 3-4 times a year for the last few years. Upon reflection, I wasn’t inclined to renew. Jane said she would call me in a few days to see if I changed my mind.

A few days later, Jane called and told me that The Gym still had not located my check. I mentioned that while I had been a member for nineteen (19) years, I was not inclined to renew as I had not been using it that much. I stated that if The Gym found the check, that was fine, but if not, that was fine, too! (I was ambivalent).

When I hung up, I mentioned the call to my husband who asked if I told Jane that The Gym’s lack of loyalty to me really bothered me. I said “no, but you can tell her” and gave him the telephone and the number. He called Jane and told her how surprised he was that The Gym would not underwrite a $30.00 stop payment fee for a 19 year member and what a poor business decision it was.

And he is right. In their book, Beyond Reason, Roger Fisher and Daniel Shapiro (Penguin Books 2005) point out that all negotiations involve emotions and fall into one or more of five core concerns: Appreciation, Affiliation, Autonomy, Status and Fulfilling a Role.

By being a member of The Gym for nineteen (19) years, I have shown loyalty and appreciation to that organization. As Fisher and Shapiro note, “everyone wants to be appreciated.” (Id. at 26). I certainly did not feel any reciprocal loyalty or appreciation when The Gym refused to underwrite the $30.00 stop payment fee on my check but, instead, in a very cold and business like fashion, asked if I wanted to put the full amount on my credit card, leaving it to me to pay the extra $30.00.

In my conversations with Jane, she certainly did nothing to build affiliation with me, that is, attempt to work with me to find a mutually satisfying outcome. Rather, she just wanted my money for the twentieth (20^th) year.

And most importantly, Jane did nothing to acknowledge my status as a member of nineteen (19) years. As my husband pointed out, even the airlines do better. . . according  status – by way of certain privileges – to its loyal customers (aka frequent fliers)!

About an hour later, the phone rang.  It was Jane. Even though it was a Sunday of a holiday weekend, she “spoke” with the vice president of sales who now suddenly agreed to underwrite the $30.00 stop payment charge. I thanked her and gave her a credit card number as Sunday was the last day to renew.

I suspect my husband’s bluntness and directness provided her with an “ah-hah” moment. Perhaps, The Gym’s sales staff should be taught that good business is all about relationships ➔ appreciation, affiliation, autonomy, status and fulfilling a role.

. . . Just something to think about!

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As I have mentioned previously, I am the current president of the Southern California  Mediation Association (“SCMA”).  About a week or so ago, many of us gathered to honor Richard Millen, a co founder of SCMA and a leader in the Southern California mediation community who passed away in March 2010.   I attended that tribute and want to share with you my reflections on that wonderful evening…..

On Thursday night, May 27, 2010, Richard Millen was remembered by his family and friends from the mediation community. His family let us in on the deep dark secrets of how Richard was transformed from a Harvard trained business lawyer to a mediator with the mantra “follow the process.” We met Doug Kruschke who was responsible for suggesting that Richard attend Life Spring and pointed him toward mediation, which transformed Richard, who, in turn, inspired and changed each of us.

His friends remembered when and how they met Richard, even though, in truth, most of them could not remember the exact details; rather, each remembered simply that Richard had always been their friend, and mentor, their inspiration, who always said “yes” and who had always been around. Lee Jay Berman cited the Lyle Lovett song where he sings about a woman, saying, “I can’t remember how I met her; seems like she’s always just been hanging here off of my right arm.”

We were told stories of his singing abilities as his daughter Kathy recounted his “Tennessee Song” talking about the men of the US Calvary, of which Richard was one; of his organizing so many meetings of mediator round tables (before he co-founded SCMA!) and of more recent monthly series of mediator meetings they called   “My Dinner with Richard,” where they met to discuss Richard’s passions, including Martin Buber, Rumi, Ghandi, the Bodhisatvah and Ram Daas, who Richard had met.

We were reminded of all his favorite quotes, like Lao Tzu’s “A leader is best when people barely know he exists, when his work is done, his aim fulfilled, they will say: we did it ourselves.” and how he practiced his patient listening and tolerance (“living with opposites and acceptance of others”) as a devout liberal by watching Bill O’Reilly regularly and practicing sitting quietly, and his philosophy on life. Although a lawyer by training, Richard came to believe that people didn’t have legal problems until the lawyers got involved, and if people just listened to each other, communicated with each and let the process do its work, a resolution would be reached.

Many of you know that a few years ago, SCMA (through a special vote of its members) amended its bylaws as Richard was terming off of the board to create an Emeritus Board  position  just for him, because we did not want to lose Richard and his valuable insights and input..  We also named our annual Peacemaker of the Year award after Richard and Ken Cloke, awarding the Cloke- Millen award for the first time at our Annual Conference in November 2004.

We miss Richard very much and will continue to miss him deeply. But we carry him in our hearts and thoughts: he is still with us, if only in spirit, smiling down on us reminding us to follow the process. We owe him so much. . . much more than we can ever  possibly  put into words. He was and remains truly and forever our “Yoda”.

… Just something to think about!

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Sometimes, the goal of a mediator is not to settle the case but simply to prevent the dispute from escalating into all out war. I was reminded of this recently by getting into the middle of a dispute between two friends who have been separated for many years and now wanted to finalize it by a divorce. The only issue was the property settlement. To be noted well, I am not trained in family law, am not licensed to practice law in the jurisdiction in which my friends lived and being close to both of them, I have a huge conflict of interest (“Disclaimer”).

To maintain confidentiality,  I will call my male friend John and my female friend Jane. John and Jane had been separated for many years. Periodically, I would speak with each of them as I remained friends with them both despite their separation.  Lately though, what I was hearing from each of them was that he/she wanted to work out a property settlement so a divorce could be obtained but that the other was either  not cooperative and/or not responsive. John complained to me that while he made a proposal to Jane, she had rejected it but never made a counter-proposal. Jane, on the other hand, told me that she had told John what she wanted but that John wasn’t listening and/or was avoiding dealing with it.

This back and forth went on for about a year. It finally came to a head when Jane filed for a divorce to force the issue. Jane warned me she was going to file because she got tired of the purported non-responsiveness of John.

It was a good thing she warned me as I soon got a telephone call from John who was extremely upset about being served with the lawsuit and demanded that I choose sides.

Being the neutral that I am, I told John that I was on no one’s side but only wanted what was “fair” to both of them. I did not have a personal stake in how this ended but only wanted the outcome to be “fair” (whatever that means!)

I listened to John for quite awhile, letting him vent and get it out of his system. I discussed the notion of perception with him; i.e. how he perceives something may be different than how Jane perceives it and vice-versa.

As might be expected, John stated that he would escalate this to  all out war, defend himself to the utmost and go on the offensive. In response, I suggested that he not let his emotions take over but that he try to rise above them and view this lawsuit dispassionately.   The only issue was a property settlement and if he played “tit for tat” and blasted back with “everything he had”, the only people who would benefit would be the attorneys whose fees would greatly increase.  I told John that Jane really did not want to litigate but rather to settle quickly; she filed suit  because she perceived him as being non-responsive; she wanted to get his attention so that he would focus on this!

After awhile, John calmed down and begin to view this dispassionately.  He admitted that he, too, wanted to settle it and do so quickly.

So, I became the “accidental” mediator and called my friend Jane (with John’s permission) to advise that John was served, was upset but wanted to settle it and to do so quickly. I asked her for a proposal.  She told me she needed certain information from John before she could give me a proposal. She gave her permission for me to discuss this with John.

So, I then called John relaying Jane’s request for more information.  John provided it to me in great detail. Again, I called Jane and provided the information. I found that a large unstated issue was trust.  Purportedly, when John had given some of this same information to Jane previously, she was not sure that he was telling the truth. But, because of my relationship with each of them, they each trusted me and believed that the other would be honest with me. So, when I conveyed to Jane the same information that John had told her directly in the past, Jane felt more comfortable believing it. Jane said she would gather some information and get back to me with a counter-proposal.

Although by now, each of my friends had attorneys, it seemed that the attorneys were not always communicating with each other.  On more than one occasion, this created unnecessary conflict and potential escalation of this dispute into World War III. Over the next couple of weeks, I checked in with each of them, and one of them would tell me what they had instructed their attorney to do. More times than not, the attorney had not yet done it or communicated it to the other attorney.  So with the party’s permission, I would convey it to the other, giving the other party a “heads-up” so as to prevent the lack of communication from causing that party to become upset.

Variously, each of them would tell me that they had to check with their attorneys to which I responded with great encouragement that they do so, reminding them of my Disclaimer.

In all of my conversations, I continuously reminded each of them that the other party did not want major warfare, but wanted to settle and to do so quickly, and since the only issue was a property division, settlement should not be difficult. I kept reminding each of them that only the attorneys would make money from any escalation of this dispute. I tried my best to remind them to not let their emotions take over but to keep moving toward the goal: a quick and painless division of the property.

My discussions with them also encompassed a general framework of any potential settlement: what, in general, it might look like.

Last week, my friends, accompanied by their lawyers, met with each other and worked out a settlement using the general framework I had discussed with them. While I was not there, I would like to think that my accidental mediator role played a part in that I listened to each of them, let them vent, kept them in communication with each other so that they did not let misassumptions or lack of communications run amok in their imaginations and continued reminding each of them  that each of them wanted to settle, to do so quickly and that the only ones to benefit from a long drawn out battle would be the attorneys.

Did I get paid any money for the hours I spent on the phone helping my friends contain this dispute? Of course not! But did I obtain satisfaction from helping them? Yes! and it was “Priceless!”

. . .Just something to think about.

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