This coming Thursday – November 25, 2010 – is Thanksgiving Day. According to Wikipedia, it is a harvest festival celebrated “. . .to express thankfulness, gratitude and appreciation to God, family and friends for which all have been blessed of material possessions and relationships.” (Id.)  While this holiday originated “to give thanks for a bountiful harvest,” it has long since moved from its religious roots to being a day on which we eat way too much, watch parades (e.g., the Macy’s Thanksgiving Day Parade or the Philadelphia, Detroit or Chicago Thanksgiving Day Parade) and watch endless football games.

            The first Thanksgiving which definitely does not resemble anything like we do today, was held in 1621 at the site of Plymouth Plantation in Massachusetts. For centuries, it was celebrated on various dates. By the mid-twentieth century, those in the United States were observing it on the final Thursday in November. However, on December 26, 1941, President Franklin D. Roosevelt signed a bill into law making Thanksgiving a national holiday and setting it on the fourth (rather than final) Thursday in November. The holiday was moved back “to give the country an economic boost.” (Id.) And, that it does. . .  we now have Black Friday and Cyber Monday!

            But seriously, it is a day to give thanks, to be thankful and to count our blessings. Each of us have something, if not quite a lot, to be thankful for. No doubt, our “thank you” list changes each year. This year, my list includes the Southern California Mediation Association and its members: thank you for allowing me to be your president and to grow and learn from the experience. It has been truly and richly rewarding. My tenure is practically over and as I exit, I take one of the best experiences of my life with me.

            I could list a lot more “thank you’s” but there is one “thank you” on my list that never changes: you. I want to thank you, my readers, my clients, my supporters for always being there. Without your support and guidance, I would not be here today: Thank You!

            Happy Thanksgiving: enjoy the day and your blessings!    

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            On Monday, November 1, 2010, the California Supreme Court heard argument in Cassel v. Superior Court (Wasserman, Comden Casselman & Pearson, LLP – Real Parties in Interest), Case No. S178914. Therein, plaintiff Michael Cassel alleged legal malpractice against his former attorneys, Wasserman, Comden Casselman & Pearson, LLP, for allegedly forcing him to settle a case during mediation for an amount less than was acceptable. On the eve of trial, the defendant attorneys filed motions seeking to prevent certain communications from being admitted into evidence on the grounds that these communications occurred during a mediation and so were covered by mediation confidentiality. The trial court agreed, ruling that the conversations solely between attorney and client outside the presence of the mediator would be excluded by mediation confidentiality.

             The California Court of Appeal (Cassel opinion) directed the trial court to vacate its order, determining that conversations solely between an attorney and his client during mediation but outside the presence of the mediator are not covered by mediation confidentiality.

            The issue is now up to the California Supreme Court: when an attorney and client discuss things privately during a mediation but outside the presence of the mediator, are such conversations admissible in a subsequent legal malpractice suit or are they precluded under the rubric of “mediation confidentiality”?

            I raise this issue because my mediation the other day brought this issue front and center. It was a “lemon law” case; however, the defendant, for the first time, at the mediation, raised the spectre that plaintiff had been committing insurance fraud and quite possibly was now committing “lemon law” fraud. As plaintiff’s counsel  had no warning that this was an issue, she was caught by surprise. Naturally, when she talked to her clients about it, they denied it. (Realistically – who is going to admit that he/she has been filing fraudulent claims with insurance companies and/or filing fraudulent lawsuits?)

            This surprising information at mediation put the plaintiff’s attorney in a difficult position: being bound by the Rules of Professional Conduct, she cannot knowingly participate in a fraud on the courts. So, should she stop the mediation and do some independent checking and due diligence? Or, should she continue with the mediation and advise her clients to settle for the very minimal amount being offered by the defendant manufacturer (which believed this case to be fraudulent). And, if she does continue with the mediation and the matter settles for minimal value, is she opening herself up to a subsequent legal malpractice action as in Cassel because she advised her client to settle for a lot less than the case was “worth” without independently investigating the “fraud” claim and determining whether it had merit?

            As a result of the defendant attorney springing this information on the plaintiff attorney for the first time at mediation, the plaintiff attorney spent quite a lot of time discussing the issue with her client and figuring out what to do next; the defendant and her client sat around twiddling their thumbs.

            In the end, the matter settled for a minimal amount. However, the whole thing left a very bad taste in the plaintiff’s attorney mouth to the point that she requested that I suggest to defense counsel not to engage in such tactics again; if defendant has such game – changing information in the future, she should share it before the mediation so that plaintiff’s counsel can conduct her due diligence, investigate and determine the merits and thereby protect herself from a potential malpractice suit when the settlement amount is lower than expected as in Cassel.

            I wholeheartedly agree. This is clearly one of those situations in which one must view the events in the shoes of opposing counsel. If the parties want the settlement to be durable, they must make sure that it is not based on “surprises.” (Needless to say, the plaintiff could also sue to rescind this settlement based on the legal malpractice of her attorney.) “Surprises” simply do not lead to good settlements.

            Besides,. . . parties need time to “process” new information and so to spring “surprises” at mediation makes it difficult, if not impossible, to reach a resolution, or, at least one, that is not extremely distasteful to all concerned.

            . . .Just something to think about!   

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In its July 27, 2010 guest blog, Scientific American published an article by R. Douglas Fields entitled, “Of Two Minds: Listener brain patterns mirror those of the speaker.” In it, Mr. Fields discusses a study (published in the July 26, 2010 issue of Proceedings of the National Academy of Sciences) showing that simply by speech, a speaker “. . .can project her own brain activity onto another person” such that the neural activity of the listener will closely mirror that of the speaker. (Id.)

Using functional magnetic resonance imaging or fMRI, the researchers examined both the speaker’s and the listener’s brain activity patterns while they communicated with each other. What they found was that:

“. . . when two people communicate, neural activity over wide regions of their brains becomes almost synchronous, with the listener’s brain activity patterns mirroring those sweeping through the speaker’s brain, . . .with a short lag of about one second. If the listener, however, fails to comprehend what the speaker is trying to communicate, their brain patterns decouple.” (Id.)

The researchers found that “the better matched the listener’s brain patterns were with the speaker’s, the better the listener’s comprehension. . . .” (Id.) Thus, if a listener truly comprehends what the speaker is saying, her brain imaginary will mirror the speaker’s. If, on the other hand, the listener hasn’t a clue about what the speaker is saying, her brain imaginary will show that as well: there will be absolutely no mirroring.

The researchers also found that when a listener is fully comprehending what the speaker is saying, her own neural activity preceded that which was about to occur in the speaker’s brain. That is, she anticipated what the speaker would say next!

As explained by the lead investigator, Uri Hasson, “communication is a joint activity, by which two brains become coupled.” (Id.)

This research intrigues me because one of the basic concepts in mediation is “active listening” (which means to listen carefully to what the speaker is saying and how it is being said and then use various techniques such as paraphrasing or restating the speaker’s remarks to make sure the listener understands what is being said. It is a continuous and interactive process of listening and providing feedback.) This research confirms that there really is an “active” in active listening: when we truly listen to someone and comprehend what she says, our neural activity will closely mirror the speaker’s to the point that our own neural activity may well mirror what is about to occur next in the speaker’s brain. We can anticipate what the speaker will say next.

And, I have learned that mirroring or mimicking is one of those great tools that can lead to agreement. If one mirrors or mimics the body language of another, that other person will tend to become more receptive to you, albeit, subconsciously. That is, the more similar you are to someone, the more agreeable she will become. And the more agreeable a person is, the more likely a resolution will be reached.

So,. . . there really is something to “active” in active listening: it epitomizes a joint activity through which resolutions can be reached.

. . .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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       It is often said that the purpose of mediation is to resolve disputes. Parties attend a mediation session hoping that, in a few hours, their dispute will be resolved. But, as is true with all aspects of mediation, sometimes we have to think “outside the box” in terms of why the parties are even attending a mediation session.
 

      Sometimes, the purpose of mediation is not to resolve the dispute then and there but simply to break the impasse or stalemate that has already occurred by getting the “conversation” going. Many times, parties attempt to discuss settlement prior to attending mediation but “life” gets in the way, and the “conversation” gets interrupted. By attending a mediation session, the parties are in the same place at the same time and, at least, for a few moments or hours, can shut out life with its myriad of interruptions and converse with each other about settlement.

       I had such a  mediation last week. In a separate session, defense counsel told me she had been trying to settle the matter prior to mediation, but was unable to get any counter-proposals from plaintiff’s counsel. Thus, she was looking forward to the mediation session so she could, at least, start the settlement discussion, and perhaps, even settle the case.
 

      At first, the thought went through my mind  that the parties were not ready and/or not prepared for mediation. But then, I realized that mediation serves many purposes, only one of which is to resolve disputes. Another purpose is that exemplified here: to get the “conversation” started because the over taxed schedules of the parties and/or counsel had prevented that. Sometimes, the simple beauty of a mediation session is that it gets everyone in the same room at the same time focusing on the same issues. Given how small the world has become, how interconnected we are and how easily and quickly reachable we are be it by e-mail, texting, twitter or even an old fashioned mobile telephone call – this subtle aspect of mediation is wondrous. It forces people to stop, think, look and listen. It is a conversation “starter” rather than a conversation “stopper.”
 

      Did the parties in that mediation settle that day? No – their “conversation” was just beginning, and it had some way to go before it could end. But the mediation session served its purpose; it enabled defense counsel to start the conversation with plaintiff’s counsel and hopefully, they will be able to resolve the matter without a trial.
 

      For mediation to work, sometimes, we have to think outside of the box ….

       . . .Just  something to think about.