Standing in my Power

This week, I held my last Board meeting as President of the Virginia Mediation Network (VMN).  It was a bittersweet moment giving me a chance to reflect back on all we had accomplished and the chance to say: "What's next!"

I remember the first meeting I conducted as VMN President, in October 2012.  I arrived frazzled and exhausted after staying up most of the night reading all the copies I could assemble of the minutes of past-Board meetings.  I was trying to find the loose threads that I might need to follow or tie up.

Then I turned my attention to my Dad's very old, yellow-stained, version of the Robert's Rules of Order that he had used as President of some professional organization a long time ago. I was trying to learn how to conduct the meeting the next day.

I was overwhelmed, but worked hard to be ready for the trust my tribe had placed in me.  As part of that personal growth of trusting myself and earning the trust of my tribe, I had:

• Attended a week long training at the Center for Creative Leadership in Greensboro that made clear-- through a 360 feedback process -- the support I had from all my Board members.  That experience gave me the confidence I needed to face the challenge with more courage and calm.
• Gotten training in a group facilitation method called Appreciative Inquiry that proved so helpful later on.
• Exceeded all my expectations by planning two conferences for VMN involving over 40 speakers.
• Launched a strategic planning process for the organization.
• Interviewed all 12 of the current Board members using an hour-long Appreciative Inquiry format and then interviewed about 10 of the past-Presidents.  In doing so, I learned more about my colleagues, the history of the organization, its ongoing challenges, and my colleagues' dreams for VMN's future. 
• Wrote four President's Messages, appearing in the VMN newsletter, that were intended to inspire our members;
• Supported my colleagues on the Board, as needed;
• Mastered the essential parts of Robert's Rules of Order after reading them another three or four times;
• Nearly mastered a web-based work platform called TeamViewer;
• Mastered the Doodle meeting planner platform; 
• Worked collaboratively with my President-elect, who has also become a close friend; and 
• Encouraged the women on the Board to "lean in" and "stand in their power."

One of the most interesting comments coming out of the interviews I conducted with past and current Board members was this.  Many said that they had not thought they could serve until someone asked them to do it.

That was certainly true for me.  First, VMN's leaders asked me to serve as Conference Committee Co-chair and then as President. Thank Heavens they had more confidence in me than I had in myself at the time. (Perhaps our new law students feel the same way.)  

After this experience, I won't wait to be asked to serve.  I will look for those opportunities.  I thank my VMN colleagues for letting me learn these lessons about my leadership capacities.  I love you, and I love our tribe. 

Disputes Suitable for Mediation

I've been discussing the "what" of mediation.  What kind of disputes are ripe for the process?  In my last posting found here, I identified some very interesting disputes that a court or the parties have sent to mediation. 

            

Hal Abramson, the author of Mediation Representation: Advocating in a Problem-Solving Process, suggests that certain types of disputes are especially amenable to mediation:

·        When the parties have conflicting views of the facts or law;

·        When a party needs to express strong emotions;

·        When a party craves the opportunity to be heard directly by the opposing party;

·        When clients or their lawyers can no longer effectively communicate with each other without the assistance of a skillful mediator;

·        When the parties are not skillful negotiators and need the process structure and negotiation expertise provided by a mediator; or

·        When a conflict exists between a party and his or her attorney.

Christopher Moore -- a partner in CDR Associates, a mediator since 1979, and author of The Mediation Process: Practical Strategies for Resolving Conflict– would also consider these factors:

·        The intense emotions of the parties prevent a settlement;

·        Poor communications -- in quality or quantity -- between the parties make it difficult for them to change the situation on their own;

·        Misperceptions or stereotypes hinder productive exchanges;

·        Repetitive negative behaviors create barriers to settlement;

·        Disagreements over data hinder its collection and evaluation;

·        Multiple issues in the dispute keep the parties from agreeing about the order and combination in which they should resolve the issues;

·        The parties perceive their interests as incompatible;

·        The parties have no negotiating procedure, they use the wrong procedure, or they use a procedure without skill;

·        The parties have no acceptable forum for the negotiation;

·        The parties have difficulty starting the negotiations; or

·        The parties have reached impasse in the unfacilitated negotiation process.

I would add to this list cases in which the parties:

·        Need to protect -- in a confidential process -- reputations, good will, trade secrets, or a good name;

·        Seek to avoid the emotionally and psychologically exhausting process of litigation;

·        Seek to avoid the distraction –especially in a business setting – of ongoing litigation;

·        Seek to avoid the expense of litigation;

·        Need a much quicker resolution of the dispute;

·        Cannot accurately predict the outcome at trial;

·        Desire to maintain control over the dispute resolution process design;

·        Need more than an award of damages or an injunction as a remedy;

·        Seek some sort of compromise solution rather than a win-lose outcome;

·        Desire to maintain control over the outcome;

·        Seek to avoid the decisions of a potentially biased adjudicative neutral; or

·        Cannot afford the expense of skillful and higher-paid lawyers, expert witnesses, or other representatives in litigation.

Still other authors identify those attributes of a dispute or of the parties that will make mediation more successful.  They include: a positive state of mind; good faith; adequate settlement authority; flexibility; patience; realistic expectations; preparation; a willingness to listen; an effective negotiation strategy; creativity; and honesty.

In my next posting I will discuss disputes that are less suitable for mediation. 

This article first appeared in the St. Louis Lawyer, Dec. 2006, and was reprinted in The Insurance Receiver, Winter 2006 and at http://mediate.com/articles/young18.cfm (footnotes in original omitted in this posting).  By providing this information, the author does not intend to create an attorney client relationship with anyone reading or relying on this post.

Photo provided, with permission, by Chris Jones, Harlan, KY. 

The "What" of Mediation: Some Interesting Disputes Sent to Mediation

In 1999, Steven Keeva, the editor of the ABA Journal and author of Transforming Practices: Finding Joy and Satisfaction in the Legal Life, had this to say about ADR:

While alternative dispute resolution has made encouraging inroads over the last twenty years, the adversarial system continues to hover above ADR like an elephant over a chipmunk.

I now suggest to my students that, in less than a decade, the metaphor has completely changed.  ADR is now the elephant hovering over the chipmunk of litigation. 

For instance, a review of the ADR referral policies of the district judges in the United States District Court for the Eastern District of Missouri shows that the eight judges will refer almost all cases to mediation, especially if they present fact issues.  The judges do not make referrals when the cases involve: only questions of law; appeals from rulings of administrative agencies; habeas corpus and extraordinary writs; bankruptcy appeals; Social Security cases; and prisoner civil rights cases.  For most experienced mediators, even this list of excluded cases raises questions about why the judges have deemed these cases inappropriate for mediation. 

  All of us have heard about mediation of personal injury cases or child custody matters.  But a review of the headlines appearing over the past several years indicates the increasing use of mediation at earlier stages in the dispute – often pre-litigation – in an increasing variety of matters.

-                      White rap singer, Eminem, will use mediation to resolve the terms of his second divorce from his high-school sweetheart after a judicial settlement conference failed to bring the parties to agreement.

-                      African-American plaintiffs dropped a 38-year old lawsuit seeking desegregation of Tennessee’s college and professional school educational system after hammering out an agreement in court-ordered mediation six years earlier.

-                      The Securities and Exchange Commission mediated fraud claims of $800 million that it had filed against ousted chief executive of the HealthSouth Corporation.   Courts had already referred the company’s investors, in related lawsuits, to mediation. 

  

-                      A very public sexual harassment suit filed against the former sheriff of Roanoke, Virginia entered mediation in early 2006 by court order.

-                      Major League baseball requested a pre-suit mediation with Washington, D.C. after the city failed to approve, by a December 31, 2006 deadline, a lease for a new ball park designed for the Washington Nationals.   Without the lease -- the pre-cursor for the planned $535 million bond-funded stadium located in Southeast Washington -- the commissioner’s office would not sell the team, formerly the Montreal Expos, to the city. 

-                      A federal judge ordered Barry Scheck -- a prominent New York lawyer facing a $3 million malpractice suit for having missed court filing deadlines in a client’s rape and robbery case -- into mediation with the former client. 

-                      The family of deceased civil-rights icon, Rosa Parks, engaged in pre-suit mediation of allegations of undue influence with the people Ms. Parks appointed to handle her estate.  

-                      The Federal Aviation Commission, nearing impasse in its contract negotiations with unionized air traffic controllers, requested mediation. 

-                      The New Jersey Division of Youth and Family Services agreed to mediate with an advocacy group, Children’s Rights Inc., in an effort to prevent a take-over by the federal government of the state’s child welfare agency.   The advocacy group alleged that the state had failed to overhaul the system as agreed. 

-                      World Trade Centerarchitect and master planner, Daniel Libeskind, entered mediation in an attempt to resolve his lawsuit for $843,000 in fees that he filed against the site leaseholder, Larry Silverstein.  Silverstein requested the mediation within a week of the lawsuit’s filing. 

-                      Mexico’s then-president Vincente Fox agreed to have his country act as a mediator between Columbia’s government and guerrillas in their forty-year conflict. 

-                      A judge ordered two younger teenage boys – accused of killing their father – to mediation with the prosecution after the judge ordered a new trial in a case carrying a 20-year to life sentence.

The use of mediation to resolve conflicts seems limited only by the support of courts, the will of the parties, and the creativity of their counsel.

This article first appeared in the St. Louis Lawyer, Dec. 2006, and was reprinted in The Insurance Receiver, Winter 2006 and at http://mediate.com/articles/young18.cfm (footnotes in original omitted in the posting). The author does not intend to create an attorney-client relationship with any person who reads this posting.

Wisely Choosing a Mediator: Process Skills, Expertise, and More on Style and Approach

I want to continue my discussion of how best to choose a mediator.  I started the discussion here.  This posting will focus on a few more factors to consider.  

Mediator's Process Skills and Expertise

 Mediation skills do not come naturally to any of us.  Some people call mediation an art.  Some people call it a craft.  Mediators acquire their skills through hard work and hands-on experience.  Good mediators spend their spare time reading books about interest-based negotiation, mediation and conflict resolution.  We do pro bonowork to gain additional experience early in our mediation careers when no one will hire us.  So don’t be afraid to ask how many mediations the mediator has done and the nature of the disputes she has mediated.  You might even ask about her settlement rate.  But you should “avoid at any cost [a mediator] whose only goal is to achieve an agreement.” And “[b]e wary of a mediator who overstates the advantages of mediation.”

            Mediators learn listening, paraphrasing, reframing and astute questioning skills.  Our questions can be probing, but as non-threatening as possible.  Mediators learn techniques to facilitate communication between the parties.  We develop a firm understanding of the stages of mediation, but also demonstrate flexibility in handling the mediation agenda.  Mediators can explain the process clearly and effectively to the parties. 

            Mediators gain sensitivity to the needs of parties for equality, respect, security, face and safety.  We learn to spot and deal with high conflict personalities.  We understand the psychological barriers to negotiation.  And the really good mediators handle emotional expressions skillfully without cutting them off prematurely.  We know if, when and how to engage in joint sessions and private caucus with parties.  We know the rules of confidentiality.  We also know and adhere to the aspirational or ethical guidelines that apply to our practices and we practice consistently with the most rigorous set of ethical rules. 

Mediator's Legal and Substantive Experience

Some people believe that only attorney-mediators or retired judges serving as mediators should mediate litigation-related disputes.  These comments begin to frame one of the debates about the qualities of the most effective mediators.  Many parties assume that the mediator should have substantive expertise, with the ability to do very rigorous case evaluations or legal reality testing.  They argue that these mediators possess intimate experience with juries, know the judges in which the dispute is pending, and have personal knowledge of the legal issues and recent verdicts that may affect a party’s negotiating leverage.   Judges and well-respected lawyers may also provide the high status or authority parties seek.

If you seek this sort of expertise, then you are looking for a mediator who possesses great credibility and reliable analytical and evaluation skills.  You will probably want to ask the mediator what type of legal practice he or she has and how many years of experience the attorney has in that practice area.  How much trial experience does the attorney-mediator have?   How many mediations in the relevant subject-matter area has she done?  When the judge was on the bench, what was the nature of the caseload he handled?  Does the judge have a disposition and personality that is appropriate for the mediation context? Can he successfully shift from an adjudicator’s behavior to a mediator’s behavior?

Similarly, if the dispute involves a highly specialized or technical nature – like construction, environment, securities, computer technology, child custody, tax, or insurance coverage -- you may want to hire an engineer-mediator, biologist-mediator, broker-mediator, computer scientist-mediator, therapist-mediator, accountant-mediator, or claims manager-mediator.  You would ask that prospective mediator similar questions about his or her subject-matter expertise.   

One writer suggests that lawyers choose other lawyers and retired judges as mediators simply because it is their way of adapting an otherwise unfamiliar process to “look like something that is more familiar to them.”  Another commentator says: “Many advocates, especially lawyers, insist that subject-matter expertise is not only important but imperative in the mediation of their disputes.  This does not, however, explain why retired judges, who normally possess no such expertise are used by lawyers more often than other [attorney-mediators].”  However, if legal expertise were enough to carry the day in mediation, then the Microsoft mediation -- conducted by well-respected Judge Richard Posner, Chief Judge of the Seventh Circuit Court of Appeals -- should have been a great success.  Instead, that mediation is a textbook example of how the failure to master the process skills and apply a well-developed body of mediation and negotiation theory led to impasse on more than one occasion and the rejection of the deal by state attorney generals whom Posner had excluded from the process.

In jurisdictions, like Virginia, that prohibit a mediator from providing legal advice, allow the mediator to provide legal information only in highly constrained circumstances, and limit evaluations to three situations, the legal experience of the mediator is potentially irrelevant, a trap for the ethically careless mediator, and a risk to party self-determination.  The mediator, unlike an arbitrator, is not deciding the matter.  And real risks come with this highly evaluative style.  I will deal with that topic in a future article.   Another writer says: “An aggressive [presumably lawyerly] questioning style and a tendency to focus on fault and historical fact often limits a lawyer’s creative problem-solving ability and can aggravate positional behavior.”

Most mediators, including myself, will tell you that having good people skills, process expertise, and other qualities are far more important than knowledge of a particular area of law.  Even the author quoted above concedes:  “Mediation can also be successful even if a mediator is not well versed in the subject matter of a case.  In fact, a mediator who does not have subject-matter expertise but who offers an open mind could be more effective….A mediator who lacks subject matter expertise [] might provide the parties with a read on how a jury member—who most likely will not have subject matter expertise – would react to each party’s position.”  Many experts in the field, including myself, believe that non-lawyers bring backgrounds, skills and professional experience that may help the parties see the dispute in a new light.  Non-lawyers also may have better skills at handling the inter-personal relationship issues existing in the dispute and the emotions fueling the dispute.

As Hal Abramson says in his new book: “Just because someone is trained as an attorney or judge does not mean the person is qualified to serve as a problem-solving mediator.  A former judge, for instance, can successfully advance settlements by bringing to bear her vast experience in evaluating and deciding cases.  But, only a person formally trained in problem-solving mediation knows the nuanced structure of the mediation process and the refined techniques of mediators.”    But a short time later, Abramson concedes: “You are better off with a mediator who has some substantive understanding of the dispute.  However, you should unambiguously instruct the mediator to not give any substantive opinions, unless both sides specifically request the mediator to do so.”   He believes a mediator with some substantive knowledge can perhaps “hit the ground running,” better understand what is really at stake, and can more credibly communicate with the parties and their lawyers.  But Abramson cautions that a knowledgeable attorney-mediator may have extreme difficulty hiding his opinions and so may exhibit conduct in the mediation that undermines his neutrality or the parties’ perception of his neutrality.

If I were looking for a mediator, I would find someone with substantial process knowledge and skill, who had solid training and extensive hands-on experience before I would hire a less experienced attorney-mediator or retired judge-mediator.  In a perfect world, the mediator would have significant process and substantive expertise, and would know when to leave the substantive expertise out of the mediation.  This discussion should again highlight how selection of the mediator must consider the specific facts and circumstances of a particular dispute.

Mediator's Style or Approach

            In an earlier posting found here, I discussed the different mediator styles or approaches.  I won’t repeat that discussion here.  However, Woody Mosten has yet another tool for considering a mediator’s style or approach – the Mediator’s Abacus.  Envision a 12-wire abacus.  The “x’s” represent beads on the abacus wires indicating how a particular mediator might characterize himself or herself on the indicated approaches to mediation.  Thus, a lawyer-mediator is more likely to focus on the facts and law of the dispute rather than on the therapeutic, psychological, or emotions aspects of the dispute.  He may co-mediate about as often as he conducts solo mediations.  She will have a brief intake process with little documentation.  He may advise the parties to consult with lawyers as often as they like during the process, and he may ask them to have an attorney review any draft agreement before they sign it.  And, so on. 

Therapeutic_________________________________x_______Just facts and law

Co-Mediator__________________x_____________________Sole mediator

No intake process_________x__________________________Lengthy intake process

No intake documentation___x__________________________Lengthy documentation

No consulting lawyers________________________x_______Lawyers required

No lawyers at sessions________________x_______________Lawyers present

No solutions suggested____x___________________________Solutions recommended

Memorandum not binding___________________________x__Binding agreements

Multiple short meetings____________x___________________Long single sessions

Voluntary Participation____x___________________________Mandetory/court-ordered

Caucus_________________________________________x___All joint sessions

            Again, the style or approach of the mediator is an especially important factor to consider when choosing a mediator. 

This article first appeared in the St. Louis Lawyer, April 2005, reprinted in The Insurance Receiver, Summer 2005, at 11 and at http://mediate.com/articles/young16.cfm.

Empathy and Future Lawyers Looking for New Clients

This week, ASL hosted a Solo Practice workshop for its students.  I spoke on marketing a law practice.  For a very long time, I have enjoyed marketing in the law or mediation context.  It gives me an opportunity to describe the joy I feel when I can serve a client competently, efficiently, and at an affordable cost.  It gives me the opportunity to describe the skills, training, experience, and values I can offer potential clients.  It gives me the chance to talk with the folks I'd like to help.

It also gives me a platform for writing about substantive topics that interest me, while -- I hope -- showing I am thoughtful, ethical, and competent.  It also allows me to learn more about people, their concerns, their stressors, and their businesses.  

Recently, I started an online business coaching program called, UpLevel Your Business, offered by Christine Kane.  Last summer, I took her personal coaching program and found it very helpful.  In the first week of her new program, Christine made a comment that really hit home for me.  I am roughly paraphrasing: "Marketing your business, is your business.  It allows you to then apply your skills in a way that helps people." 

She also suggests that my personal story is part of my message to my potential clients.  What I offer the world radiates from me and my marketing message should radiate from that same source of "light."  My message should be a seamless expression of myself and what I want for the world.  She asked me to list 10 cool (or unique) aspects of myself that would help me craft my marketing message.  She also asked me to list the values and beliefs that shaped how I wanted to help people.   

I shared this concept this past week with students.  Earlier this week, I attended the meeting of our new Toastmasters club.  I was "table topics master."  I asked students questions not too distant from the ones I later asked students at the solo practice workshop:  What is your purpose in life?  What motivated you to go to law school?  Who do you want to serve?  Who is your ideal client?  

In an attempt to illustrate how you might use the answers to those questions to begin crafting a marketing message, I wrote: 

As an award winning mediator, I help people:

• Handle conflict with more power, skill, and wisdom;
• Protect themselves and the people they love and support; and 
• Make smarter decisions at times of conflict and transition. 

I also built my talk around the concepts from Seth Godin's books, The Icarus Deception and Tribes.  If we are moving quickly into the connected-era he identifies, how do we adapt marketing techniques to this connected world.   The Law Practice Management Section of the ABA and other advisers to solo practitioners suggest the following ways to find potential clients:  Formal announcements of firm events and changes; business cards; yellow page ads; billboards; TV commercials; public speaking; memberships in organizations, both trade and law; firm brochures; newsletters; published writings; and birthday cards.

In the connected-era, tech savvy lawyers will supplement or supplant these approaches with some of these tools:  Facebook and Link-in postings; business cards with e-commerce components built right in; webpages; search engine strategies; on-line ads; YouTube videos; podcasts; list serve discussions; blogs; FB "likes" and birthday wishes; and automated generation of contact lists. Many of these tech-dependent tools allow lawyers to market to a much broader group of people at much lower cost.  They also allow the lawyer to connect with a very specific "tribe" or ideal client. 

Interestingly, some of my other reading suggests that personal interaction will still matter most in this connected-era.  Traditional marketing approaches always supported this level of interaction.   For instance, in a very compelling book by Richard Susskind called Tomorrow's Lawyers: An Introduction to Your Future (2013), Susskind argues that despite all the "disruption" the legal field will experience over the next decades: "Tomorrow's lawyers will need to acquire various softer skills if they are to win new clients and keep them happy.  In-house lawyers of the future will not only be more demanding on costs, they will be more discerning about the relationships they choose to cultivate with external firms. This will place pressures on law firms to make the most of face-to-face interactions and use social networking systems to maintain regular contact."  

Later, he argues that law firms currently take insufficient time to "immerse themselves in their clients' environments and get a feel for what it is actually like to work in their businesses . . . . [M]ost firms do not grasp, in any given client, the tolerance and appetite for risk, the amount of administration and bureaucracy, the significance and extent and tone of internal communication, and, vitally, the broader strategic and business contexts of the deals and disputes upon which they advise . . . . In other words, law firms lack empathy . . . . This lack of empathy and the inability to listen could be deeply prejudicial to long-term relationships between firms and clients in the future." 

Earlier, Daniel Pink, in A Whole New Mind: Why Right-Brainers Will Rule the Future (2008), suggested that the future lies with our ability to engage in high concept, high touch enterprises that reflect and respond to our level of abundance, automation, and the competition from highly competent, more affordable, Asian employees engaged in left-brained work.  

High concept enterprises display the ability to create artistic and emotional beauty, to direct patterns and opportunities, to craft a satisfying narrative, and to combine seemingly unrelated ideas into a novel invention.

High touch enterprises display the ability to empathize, to understand the subtleties of human interaction, to find joy in one’s self, to elicit joy in others, and to pursue purpose and meaning in work and play.   

In what Pink calls the Conceptual Age, we will need to master six right-brained aptitudes:

1.                  Not just function, but also DESIGN.

2.                  Not just argument, but also STORY.

3.                  Not just focus, but also SYMPHONY (seeing the big picture, crossing boundaries, and combining disparate pieces into an arresting new whole).

4.                  Not just logic, but also EMPATHY.

5.                  Not just seriousness, but also PLAY.

6.                  Not just accumulation (of stuff), but also finding MEANING.

I'll apply these concepts in the context of law and mediation in a future blog.