Each year, the Southern California Mediation Association (SCMA) presents its Cloke-Millen Award also known as Peacemaker of the year award to a member of the dispute resolution community who has honored and inspired us through his/her passion and dedication to “peacemaking.”

            This year, SCMA truly went “outside the box” in determining who should be the honorees. They are 15 women, each of whom are responsible for the death of at least one person, many of whom are serving life sentences for their crime, at Valley State Prison for Women in Chowchilla, CA. (Seventy percent of them committed these homicides as a result of being in an abusive/domestic violence relationship.) They are “peacemakers” in the truest sense of the word.

            How does this story begin? Beginning in 2007, one of them, Susan Russo, wrote over 50 letters to various mediators throughout California requesting training for inmates. One of these letters landed in Laurel Kaufer’s mailbox in August 2009. The instant she read it, she was hooked. Knowing that she could not do this project alone, Ms. Kaufer called her colleague, Doug Noll, an expert in Restorative Justice, and read the letter to him. He, too, was hooked, and for the next six months, they tried to convince authorities to allow them to conduct this pro bono project. They finally obtained permission and started in April 2010 with the first group of 15 women. Twelve weeks later, these 15 women were fully trained and through mediations and peace circles, they have begun to reduce conflict and violence within the prison, slowly replacing the conflict and violence with “peace.”

            Laurel Kaufer, an SCMA member, knew of our Peacemaker award and called me (since I am the president) to nominate this first group. Once the SCMA board and I understood what was what, without hesitation, we agreed and voted to present the award to these ladies.

            Saturday, October 2, 2010 was Peace-Day – a fitting day on which to present the award. So I (with my husband playing chauffeur) went to the prison to make the presentation.

            It was a privilege and honor to make this presentation. It was also a deeply moving and profound experience. At times, in talking with these ladies, I was left speechless (which is rare for me!) These women are phenomenal. Through this program, these ladies have turned their lives around.

            Laurel Kaufer and Doug Noll taught these ladies survival skills through teaching them simple communication skills – how to listen, really listen, reframe and to communicate. By learning how to listen – and I mean truly listen to what another is saying – and then acknowledging what the speaker said by repeating it back, they are showing the speaker that she is being heard. As a consequence of learning and using this simple skill, these ladies are slowly reducing the conflict and violence within the prison. Rather than using pepper spray (which costs the state $1,000 in time and paperwork) to break up a potentially violent situation, the prison guards will call in these ladies to mediate it. . . and, at times, it works. They are slowing bringing “peace” to the prison; less conflict and violence and more  listening and reframing.

            More importantly, the outlook on life of these honorees has changed. They are no longer shut down emotionally, defensive, afraid and seeing violence as the only way to resolve things. They have a reason to greet each new day; they have hope. Through learning and employing these simple communication skills – how to listen and reframe – they have begun to trust not only each other but themselves, to open up and share their emotions and feelings. They provide each other with self-esteem and confidence by acknowledging that they are, through listening and reframing, indeed, listening to the speaker and paying attention. For the first time in their lives, these ladies feel important; someone cares about them. Their words, thoughts and feelings do matter to someone.

            It is sad that first, the social services programs let these ladies down by not  rescuing them from their domestic violence situations; that the judicial and corrections systems have let them down and that it took Laurel Kaufer and Doug Noll to come to their aid: to go outside the box, beneath the line, figure out what the needs and interests of these ladies are and to help them not only meet them but rise well above the challenge!

            After the presentation was over, I walked away from the prison deep in thought, a changed person. For most of the 275 mile drive home, I could not get what I witnessed out of my mind (and I still can’t). How could something so simple – communication skills – have such a profound and lasting impact on a prison population to the point of slowly bringing a little bit of “peace’ within its barbed wired concrete walls?

            It is oxymoronic that SCMA awards its “Peacemaker” award to 15  inmates, most of whom are serving life sentences, but, after being with these ladies, it makes perfect sense to me. I salute them: Barbara Chavez, Breanne Eldridge, Penny Greer, Shelbi Harris, Anna Humiston, Sara Jackson-Reynolds, Christine Loyd, Candace MacDonald, Mianta McKnight, Suzy Mellen, Betty Mills, Jan Ritchey, Susan Russo, Robyn Sotelo, and Marta Ulen. Congratulations!

            On November 6, 2010 at its annual conference, SCMA will formally announce this award, using video and pictures to share my profound experience with everyone. Come Join Us!

            . . .Just something to think about.!

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            If I had to list one thing that is a must for mediation, it would be “preparation.” I raise this again for the umpteenth time because I just conducted another mediation in which the lack of preparation by the plaintiff attorney controlled  both the process and  the outcome.

            Plaintiff claimed she was laid off from her blue collar job due to a work injury disability. She had previously been injured on the job and claimed that while still injured, her supervisor required her to perform tasks that she was unable to do because of her injury; when she could not do them, she was laid off. As part of this claim, plaintiff alleged that although she was cleared by her doctor to return to work, it was with restrictions. Allegedly, her supervisor ignored the restrictions and made her perform tasks as though she were 100% well.

            Defendant contended that the plaintiff was hired solely to work on a particular project and when the project was almost completed, the plaintiff, along with several others, was laid off.

            Although trial is set to begin within the next five months, plaintiff’s counsel has conducted no discovery and so, while defendant’s counsel told plaintiff’s counsel of its position early on in the case, plaintiff’s counsel has done nothing to investigate defendant’s claim or to determine its veracity.

            So, the parties came to mediation. Naturally, plaintiff told me what occurred from her perspective. I then held a separate session with the defendant and her counsel who told me what occurred from the defendant’s perspective asking me to share that perspective with plaintiff and her counsel. Instead, I suggested that counsel for both parties and I meet alone which we did. Defense counsel shared her information with plaintiff’s counsel who then requested to see documentation. For the next 2-3 hours, defendant had documents faxed to the mediation to be shown to plaintiff’s counsel. Then, counsel met together to discuss the documents; then plaintiff’s counsel met with her client to discuss them and then met with defense counsel once again with additional questions and requests for documentation. Defense counsel then met with her client to obtain the requested information and documents. Defendant then requested her office to fax more documents which her office did and so on and so on.

            Finally, after about three hours of conducting “discovery,” plaintiff’s counsel realized that the “facts” were far different than what her client  had told her, to the extent that the value of the case was far less than originally envisioned. However, plaintiff’s counsel realized that her client  also had to process this sudden turn of events as well as the “truth” that her case has minimal value. So, after defense counsel responded to plaintiff’s monetary demand by offering far, far less money than anticipated, plaintiff’s counsel suggested that the mediation be continued to allow her client to process and come to grips with all of the “new” information. So, after more than 4 hours, the mediation session ended with a second session to be scheduled in the next week or so.

            However, complicating this process is the fact that defendant intends to file a motion for summary judgment and must do so within the next two weeks. Unfortunately, the calendars of the parties are such that no one is available until after the date by which the motion must be filed.

            Will defendant be inclined to settle after it has spent the time and money in preparing and filing the summary judgment motion? I do not know, but no doubt, defendant’s incentive to settle will be a lot less.

            So while plaintiff’s counsel now realizes that the case needs to be settled, if a second session is held, most probably, the defendant will be inclined to pay even less to settle than it was willing to pay at the mediation (given the attorney’s fees and costs it has just expended on the motion for summary judgment).

            Needless to say, plaintiff’s dilemma could have been completely avoided with preparation. Had plaintiff’s counsel conducted the necessary investigation/discovery prior to attending the mediation, the mediation process would have flowed smoothly rather than turning into a “discovery” or “information gathering” session, and the matter probably would have settled. But now, it is quite a quagmire.

            Preparation, preparation, preparation,. . . I cannot say it often enough! It will make or break both a mediation and a settlement!

            . . .Just something to think about.

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          The Los Angeles County Superior Court is the largest county court system in the United States. Unlike many other jurisdictions throughout the country, it provides free mediation services. The mediator provides preparation time plus three hours of actual session time for free. Thereafter, if the parties wish to continue, they may do so but must pay the mediator her market rate.

            For many years, I have been a member of the court’s “free” panel as a way to give back to the legal profession. And, for the same number of years, I have debated with myself, whether I should remain on the panel. While I am quite willing to provide my services for free to those who truly cannot afford to pay for mediation, this has rarely been the case; more often, my idealistic motivation for being on this panel has been abused and misused by litigants and counsel who earn more than I do!

            Last week’s mediation was another example. The mediation was set for 10:00 a.m. At 9:00 a.m., plaintiff’s counsel called to advise her client did not want to appear and asked if we could reschedule. However, both defense counsel and the defendant were already on their way to my office and they said “no.” So, plaintiff’s counsel appeared without her client. Counsel did not even offer to make plaintiff available by telephone. However, counsel told us that she knew what were the plaintiff’s parameters in settling, had “authority” to settle, and so would negotiate to see if the matter could be resolved.

            As both defendant and her counsel were here already, they decided to give it a try rather than simply walk out. So, we started negotiating.

            As you might guess, as of the end of the third and final “free” hour,  the matter had not settled. (Naturally, plaintiff’s counsel did not want to continue on).  Why – the plaintiff was not here. Throughout the mediation, the plaintiff’s attorney had to keep calling the plaintiff to discuss the latest proposed offer and to obtain authority and/or wait for plaintiff to call back. Despite counsel’s comment that she had “authority” to settle, in truth, she did not have “full and complete” authority! As always happens at mediation – proposals different from those envisioned beforehand are made, necessitating a call to the client and a lot of waiting for the “callback” from the client. Not an ideal situation!

            Why did this situation occur? Because it was “free.” I learned a long time ago that when folks do not have to pay for something, they do not become invested in it and thus do not take it seriously. As they have put no money into the deal – they believe they have lost nothing by sloughing off the appointment: if they had to pay a cancellation fee, they would think twice about not showing up. They do not see other people’s time – especially the mediator’s – as a valuable commodity, and so they make light of it!

            While granted – no one forces me to be on this panel, I have stayed on it for those one or two litigants who are truly improvised and cannot afford to pay. But so far, out of the 200 or so “free” mediations I have conducted, I have run into such litigants less than 10 times. Most of my experiences, unfortunately, have been like last week’s in which one or more parties do not take it seriously.

            So. . . the morals of the story: (1)  mediation can be extremely frustrating when one or more parties do not show up at a mediation and makes it difficult to resolve the matter; and (2) I am going to seriously re-think my commitment to “give back to the legal profession” via “pro bono” mediations for court!

            . . .Just something to think about.  

  Post Script: I learned the next day, that the matter, indeed, settled, later that afternoon on the same terms as plaintiff’s counsel had declined as she walked out of my office at the end of three hours. So, while my services helped plaintiff settle the case, for plaintiff to pay for even the additional half-hour of time it would have taken to settle this matter was too much to ask!

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“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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