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.

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      Several weeks ago, I, again, helped my colleague who teaches mediation by supervising two of her students while they conducted an actual mediation in small claims court.

      Typically, when parties are scheduled for trial in small claims court, they go into the courtroom and sit down. The court clerk begins the session by providing instructions and introductory information. At that point, the clerk introduces the student mediators who then say a few words about mediation, indicating that they are available then and there to mediate any case in which the parties are amenable, for free. Some parties take them up on the offer, while others prefer to take their chances at trial.

      Initially, only the parties in one  matter decided to take the student mediators up on their offer. So, the two mediators began to co-mediate. Suddenly, there was a knock on the conference room door; the Defendant in another case had gotten the plaintiff to agree to mediate; however, the plaintiff’s mother wanted to mediate immediately and not wait for the student mediators to finish the pending matter. So – I requested one of the student mediators to join me so that the student mediator could  begin mediating this second dispute in the hallway as there was no private space available!

      This mediation turned out be wild and crazy. Plaintiff- whom I will call John- is a 22 year old college student who was accompanied by his mother to court. She- whom I will call Joan- was clearly controlling everything- including her son. Initially- she was willing to  mediate, … as long as defendant- whom I will call Steve – met her complete demand as alleged in the complaint and concluded the mediation before her son’s case was called for trial (she did not want to lose her place on the trial calendar. )

      The defendant – Steve – held a much different perspective. He had been to mediation before, and it had worked. He was hoping it would work again; that he could come to some resolution short of paying John everything his mother demanded.

      The facts were strange.  It seems that Steve (defendant) and plaintiff’s mom (Joan) were long time friends. In order to help John improve his credit rating, Steve agreed to list John as a co-holder on one of Steve’s credit card accounts.  At the time, Steve was in the real estate business which was booming, and his credit was stellar.

      Over the next few months, Steve incurred charges on this credit card of over $20,000. Then, the bottom fell out of both the economy and the real estate market.  Steve did not pay on the credit card account, and so the credit card company looked to Plaintiff- John for payments. He hired an attorney (incurring fees of about $3500) to negotiate a settlement of about $4,000 with the credit card company.

      When Steve refused to take John’s calls, John (no doubt at the urging of mom) sued in small claims court for the $4,000 negotiated settlement, $3500 in attorneys’ fees and the small claims’ court costs.

      So- here we are—mediating. The student mediator tried to explain what mediation was all about, but Joan kept interrupting, stating that the only settlement that was acceptable was for Steve to pay everything that was owed and to agree to it  before the court called her son’s case for trial.

      At that point, the student mediator attempted to talk to Steve alone, to get his perspective on the matter. Again, mom- Joan – objected – stating that she should be entitled to hear everything that Steve said. Again, the student mediator tried to explain mediation confidentiality and the value of meeting separately with the parties. While not really understanding  (or wanting to), Joan relented and gave Steve and the student  mediator some privacy.

      From Steve’s viewpoint, since John was a co-signer on the credit card, he was responsible for the debt, even if it was Steve who incurred it. The student mediator talked with Steve  about whether he, Steve, should ultimately be responsible for the debt since he is the one who actually incurred it. Slowly, Steve began to see the light, and so offered a little money. (In truth, Steve claimed that he was broke! But mom did not care.) The student mediator did an admirable job of talking with Steve and having him begin to acknowledge that he should be the one responsible since he is the one who incurred the charges.

      So…  Steve offered some money. Surprisingly, mom was willing to accept less than the full sum demanded in the complaint but insisted that it be a lump sum.  Steve was unwilling (or more likely, allegedly unable, to pay a lump sum.. and again, mom did not care.)  

      After a few more rounds of back and forth, an impasse was reached but we also ran out of time as the court was about to call the matter for trial. The student mediator, considering the conditions under which the mediation was being held (in the hallway of a courthouse), did a great job.
 

      Given our interest in this case, we stayed for the trial. After the son made his presentation, Steve spoke, urging that since John was on the credit card, he is responsible for the debt, even if  he – Steve – was the one who incurred it. The Court asked Steve the same question that the student mediator did: since Steve incurred the debt, shouldn’t he be the one, ultimately, responsible for payment? Steve said ‘yes” but only partially so.

      The Court took the matter under submission. A few days later it issued its judgment, finding for plaintiff in the full sum requested, $7500, plus court costs.

      Steve will probably appeal the judgment but, since appellate courts have a tendency to affirm, rather, than reverse, trial court judgments, chances are that Steve will not fare any better on appeal.

      The morale: it is always better to settle. At a certain point, mom was willing to accept  less than the  full sum sought in the complaint, but Steve refused. Now, he will have a judgment against him in that full amount, and will always be looking over his shoulder to see if his bank account is being levied upon or one of his other assets is being seized to satisfy the judgment. True to Murphy’s  law, a seizure will occur when Steve can least afford it, or expect it; that is, at the worst possible time. At least with a settlement, one can control the outlay of the funds and protect the remaining assets. With a judgment, a defendant totally lacks control; surprise is the key element.

      It is one thing to sit in a classroom and study mediation, and to conduct mock mediations… It is quite another to conduct a real one involving a case actually filed in court and see the outcome at trial when the parties do not reach their own resolution….  Very quickly, everyone learns… that actions do have consequences…

      ….. Just  something to think about.

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       In searching for a topic for this week, I reviewed my colleague Linda Bulmash’s “Negotiation Tips” published monthly by the Los Angeles County Bar Association. Her topic for this month is using respect and grace in negotiation. (Negotiation Tips ) Her point: Civility, respect and grace do much towards reaching an agreement.
 

      These words hit me like a ton of bricks and/or struck me like a bolt of lightning. Although written two weeks ago for a different purpose, they suddenly seemed extremely appropriate in describing Richard Millen, – the “great great grandfather of the mediation movement” in Southern California – who passed away last week at the young age of 89. (Richard Millen ) Although I had the pleasure of knowing Richard for only the last few years I, along with the rest of the mediation community, mourn his passing and will greatly miss him. I am only sorry that I did not meet him sooner and get to know him better.

       To Richard -  it was very important to discover what each party wanted and to help the parties achieve their respective goals. He looked beyond the deal and he did it with civility and grace which is why Ms. Bulmash’s article struck me. She was describing Richard Millen without realizing it.

       As Ms. Bulmash suggests, Richard understood that each issue in a settlement held a different value to each party and as a negotiator and mediator, he sought to satisfy this “value” of each of the parties. He took the time to find out what the needs and interests of each of the parties were and see what he could do to assist the parties in fashioning a resolution that met those needs and interests and thus provided benefit to each party.

       Ms. Bulmash’s next point – negotiation is not a competition – was well understood by Richard. In fact, he railed against the ultimate legal competition – litigation – always commenting that the attorney mediators have taken over or kidnapped the practice of mediation, to its detriment. To Richard, mediation must remain true to its roots: community mediation. Lawyers as mediators were an anathema to him.

       Richard was the epitome of Ms. Bulmash’s next point – “show respect and acceptance of each party’s position.” He was always friendly and never got personal: he was the ultimate professional.
 

      And with respect to Ms. Bulmash’s last point (be persistent) – he was, indeed, persistent – and it is because of his persistence that mediation in Southern California has blossomed and gained so much recognition. Without Richard, mediation would not be ubiquitous or a word used as often as “litigation”. Most importantly, without Richard, there probably would not be a Southern California Mediation Association of which he was one of the founders. Today, I am the president, carrying forward his vision and inspiration of 22 years ago into the future, to hand  off to  the next generation of ADR professionals. Without his inspiration and vision, I and so many others would not be where we are today.

       We owe  Richard Millen a lot and I only hope that my tribute does justice to him and  to that debt.:

       Richard H. Millen – 1920 – 2010.

       . . .Just something to think about.

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        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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