Leading in a Connected, More Empathic -- Dare I Say, Feminine -- World

Declare our Inter-dependence

Last night, while I was ironing linen blouses, I watched a Netflix film called Connected.  Written and created by Webby Awards founder, Tiffany Shlain, it was an oddly organized musing about what it means to be connected in the 21st century.

Her discussion of disappearing honeybees and the intentional killing of sparrows showed graphically how we are connected at a fundamental biological level.

Her stories about the important role her neurologist father played in her life spoke to family connections, that for her, extended back to Russian pogroms against Jews.  She wove the news about his brain cancer in with her story about her pregnancy with twins, -- who came later in her reproductive life through fertility medicine after a successful birth and then five miscarriages.

She talked about her early interest in something that would later be the World Wide Web, and the role it might play in making feminist dreams of work-life balance real by offering flexibility in the way we work.

One theme she developed was the role the Web played in increasing (or releasing) empathy.  We can now see, very quickly, images of suffering and injustice from around the world.  It triggers our naturally empathic selves and, more often than not, forces us to think about the contribution each one of us can make to improving our existence on this planet.  Perhaps the multi-racial protests and millions of Facebook postings following the Zimmerman verdict this past week illustrate this widespread empathic response.

Another theme running through the film was the role of technology in shifting our brains to more left-brained, linear, logical, analytical, symbolic, abstract, temporal, sequential thinking that is associated frequently with a masculine approach to problem-solving.  The left-brain controls speech and writing.  She asserts that the first alphabet took us down this path.  That shift led to great progress, through our increasing understanding of the world.  But, it has now put us at a crossroads.  We will need to make another shift if we want to ensure the survival of human, animal, and plant life on the Earth.

Up till the creation of the first alphabet, human cultures relied more equally on right- and left-brained thinking. The right-brain, expert at holistic problem-solving, pattern recognition, and the processing of emotions, reflected a feminine way in the world.  It processes information synthetically, creatively, and concretely.  It thinks in analogies, suspends judgment, sees relationships between things, and makes leaps of insight based on intuition.  At this early time, these competencies -- and women -- were esteemed, if not revered. Interesting, I thought, if true.

Later, I tied this notion to some recent reading I'd done (who knows the source at this point) about how we are increasingly relying on visual images as our source of information -- TV, on-line films, YouTube videos, Vine, digital photographs, and Instagram.  Are we moving away from the alphabet -- and more linear input -- to a more visual, right-brained means of processing events in the world?

The visual cortex of the brain, positioned at the back, inhabits both hemispheres. Wikipedia explains: "It is highly specialized for processing static and moving objects and is excellent in pattern recognition."  Its five regions map spatial information, create object recognition memory, perceive and process motion, and modulate attention.

At the end of the film, her father dies and, shortly thereafter, one of the twins survives and is born.  Flowers from loved ones and friends filled her home.  She remembered what her father had taught her:

• Live life to the fullest
• Be compassionate to others
• Plant gardens
• Always laugh at yourself
• Be curious
• Make a difference
• Be present
• Always remember you are loved
• If you are not living on the edge, you are taking up way too much space.

She closed by asking us to shift from declaring our independence, to declaring our inter-dependence.  Like a beehive, where no bee can survive on its own, humans are now widely and deeply inter-dependent.

Acknowledging that fact should make us more mindful in the way we live, love, and consume. 

Using Your Super Power and Being Indispensable.

As part of my summer concentration on books written by Seth Godin, I recently read his 2010 Linchpin: Are You Indispensable?  It ties to many of the themes I summarized in my post,“Leaning In” as a Woman Lawyer, found here.

 

Godin argues that with so many means of direct communication with so many different “tribes” in a hyper-competitive world, each one of us can make an indispensable contribution, as a linchpin, to a business, art, project, or something we care deeply about.  You have the choice of being indispensable.  Just make it.

He defines linchpins as the “people who own their own means of production, who can make a difference, lead us, and connect us.”  “The linchpin is an individual who can walk into chaos and create order, someone who can invent, connect, create, and make things happen.  Every worthwhile institution has indispensable people who make differences like these.”   They are artists and givers of gifts.  They bring humanity to work.  They have vision and engagement.  They help the organization fulfill its mission.

We live in a revolutionary time that gives each one of us the opportunity to bring our “best sel[ves] to the marketplace and be rewarded for it.”   Each one of us can chart our own path and create value as we go. 

But the path involves difficult work.  The tasks require “maturity and soul and personal strength.”  And, you must be motivated by the right reasons.  You must be “brave enough to make a difference.”    You must be bold and think bigger.  

Linchpins do not wait for instructions, but identify and choose the next steps.   They can chart those steps with confidence because linchpins “understand their subject so deeply.”

The linchpin understands that the work requires him or her to make something happen every single day!  Knowing that “changes what you do all day.”  So many opportunities exist to lead.  So many things need to be done.  So many situations offer a way to contribute. 

  

The seven abilities of the linchpin are:

• Providing unique interface between members of the organization;
• Delivering unique creativity;
• Managing a situation or organization of great complexity;
• Leading customers;
• Inspiring staff;
• Providing deep domain knowledge;
• Possessing a unique talent.  It’s a superpower!

“The 'super' part and the 'power' part come not from something you’re born with, but from something you choose to do, and more important[ly], from something you choose to give.”

The work connects the linchpin to others.   When the work fails to connect with others, the linchpin has received the signal to create new work that will.  Godin advises to make the choice of a linchpin again and again.  Learn from what you did and then create something else. 

In contrast, most individuals respond to the messages of their “lizard brains” and avoid situations that feel risky, threatening, difficult, or generous.   These folks “want [a] pretty safe skill to be enough.  Enough to make you valued, enough to make you fairly paid, enough to make your life stable.  But it’s not.  It’s not enough because in a very connected, very competitive marketplace, there are plenty of people with your pretty safe skill.”   

Amen.  Choose to be remarkable.  Choose to be indispensable.  

An Improving Employment Trend for 2012 Law Grads

Some qualified good news.  Overall employment for 2012 law grads suggests an improving trend.

The 2012 grads obtained more jobs than 2011 grads, but the class also had more graduates in it. Accordingly, the percent of employed fell to 84.7% from 85.7% the previous year.  The 2012 grads entered law school in the fall of 2009, and so the larger class size apparently indicates the choice of many college graduates to attend graduate school rather than face a job market deep in recession.

The NALP Executive Director, James Leipold, stated: "I continue to believe that the Class of 2011 represented the absolute bottom of the curve on the jobs front . . . ."

Many of the stories about job prospects for law school grads compare current employment rates to the pre-recession rate of 2007.  This comparison misrepresents the situation because employment that year represented a 24-year high of 91.9% according to NALP.   I compute the 20-year average (from 1988 to 2007), as 88.7%, which is still 4 percentage points higher than the 2012 employment rate.

About one half (50.7%) of the employed 2012 graduates got a job in private practice, up a bit from the year before.  However, this employment rate lagged behind historical averages of 55-58%.  Firms with more than 500 lawyers offered improving opportunities for new grads by providing 19.1% of law firm jobs, up from 16.2% in 2011.

On the other end of the spectrum, small firms (2 to 10 lawyers) provided 8,200 jobs in 2012 up from 7,600 jobs in 2011.  In 2011, these small firms provided 42.9% of new jobs for grads.  About 6% of new 2011 grads entered solo practice.

Jobs requiring bar passage provided 64.4% of jobs for 2012 grads, falling slightly from the 2011 rate of 65.4% -- but falling ten percentage points below the pre-recession 2008 rate of 74.7%.

Jobs in which employers preferred a J.D. degree, but did not require bar passage, increased from 12.5% in 2011 to 13.3% in 2012.  The 2012 percentage for this category set a new high since 2001, when NALP began tracking the category.

At the same time, the unemployment rate rose a bit from 12.1% in 2011 to 12.8% in 2012.

The National Association for Legal Career Professionals (NALP) has reported preliminary data, which it plans to finalize in August. The press release announcing the data appears here.  The data reports outcomes 9-months after graduation, which may fail to represent long-term prospects for law grads, as I discussed in an earlier blog found here.   Percentages reflect only those graduates responding to the NALP survey.

As we begin a new recruiting season in graduate schools, I wonder how many other professions offer employment rates of 84.7% in this recovering economy.  And, what is the employment rate for new MBAs? If you know, please comment to this blog.


 

"Leaning In" as a Woman Lawyer

The June 2013 issue of the ABA Magazine features women who have ascended to the heights of law firm management.  It profiles seven women who currently operate as the managing partner in medium to ubber-large law firms.  Most of the women are in their late 40’s or early 50s, and they talk about the choices they made to get these positions in their firms.  I want to share some of their comments:

• Most importantly: Ask to take on the management responsibilities as your skills and credibility expand.  Don’t wait to be asked! 
• “Lean in.”  Do it consistently over a long period of time. 
• Actively create the future you want for yourself.
• Avoid any distractions from your top priorities.  Develop laser focus on your goals.
• Establish your credibility by being a very good lawyer who works hard.  Have a “dogged” work ethic.
• Build a lucrative book of business that gives you economic power within the firm.
• Show you have a “business mind” as well as a “practical legal mind.”
• Advance the agenda of the firm.  Consistently add value.
• Gravitate toward the most complex legal matters or cases in the firm.  Ask to work on those tough cases where partners will notice you.  Make sure you stay in the spotlight.
• Be “a master at relationships.”
• Educate yourself about the psychology of “people, relationships, and the impact of fear on their choices and actions.”
• Be a good firm citizen, by working well with others and by acknowledging the rules of the firm. But, do not be afraid to help change the rules that may keep women from finding the work-life balance they need to succeed.  
• Accept that a work-life balance will still require you to work towards your professional goals with commitment, but that at different times in your life you may have different priorities.
• One managing partner is quoted saying:  “When we talk about work-life balance, it’s all life.  It’s doing what you do at certain points in your life because those are your priorities.  And that’s where you figure out your balance.” 
• Be brave.   Ask for what you need to excel.   
• If your firm won’t give you what you need to thrive, you may need to move to a new firm. 
• Take risks!
• Ask your male colleagues for help.  “[T]ake the team concept to heart.”
• Turn a deaf ear to social pressures.  If you need to feed your family every night at 9:30 p.m., then do so.  Who says dinner has to be at 6 p.m.?
• Do not succumb to self-inflicted guilt about not spending enough time with your family.  Ask for help, either by hiring a good nanny, by using a great housekeeper, or by marrying a man who truly takes on 50 percent of the responsibilities at home. 
• Marry a man who supports your career aspirations.  If your spouse does not support those aspirations, it may be time for a new spouse or the single life.
• Assume the role of legal technologist.  Push the firm to update software, web platforms, and client communication systems. 
• Help the firm get on top of the sea changes happening in the profession.
• Be a good listener and a good communicator.
• Be more present in meetings with partners by listening, focusing on their concerns, understanding their motivations, and participating more actively.  Take a seat at the conference table and engage.
• See business possibilities in those conversations with partners.  Lead the efforts to capitalize on those possibilities. 
• Understand that leadership is about integrity “and the willingness of others to follow because they think you’re interested and will listen to them and represent their interests and needs best.” 

Gee.  Sounds like the subjects I teach in our dispute resolution program prepare our students well –  whether men or women – for lofty positions in law firms.  So grads, trust yourself and your training.  Lean in. 

Disputes Less Suitable for Mediation

Hal Abramson, the author of Mediation Representation: Advocating in a Problem-Solving Process, suggests that the following types of disputes or circumstances make mediation less desirable:

·        The party needs to establish binding precedent;

·        The party needs to deter future claims by establishing a “hard-ball litigation – no settlement reputation” (aka the Walmart strategy);

·        The party seeks validation or vindication by a person in authority who declares that the client was blameless, but the other party was a low-down, dirty SOB;

·        The party wants or needs to go for a litigated “jackpot” damage award, no matter the statistical chance of winning that award;

·        The parties are embroiled in a value-based conflict on which they see no room for compromise;

·        The party will not be effectively represented in mediation, either because he or she is unrepresented or represented by inexperienced or unskillful counsel;

·        One or more parties refuses to participate in good faith in the process; or

·        The parties cannot bring into the process one or more persons essential to a resolution.

I would add to this list disputes in which:

·        A party seeks retribution; or,

·        A weaker party needs the power of the court or of law to balance a significant imbalance of power or resources.

The Maryland Handbook for Lawyers identifies four types of disputes in which mediation would not be successful or is not considered appropriate:

·        When a party victimizes the other party;

·        When alcohol or drug abuse plays a significant role in the dispute or undermines a party’s ability to effectively participate in the mediation;

·        When only a court can offer a remedy to the dispute, especially in matters of first impression or those matters requiring injunctive relief; or,

·        When relationships cannot be healed. 

I would challenge two components of this last list.  

While the mediation community continues to debate whether victims of spousal abuse or domestic violence should ever participate in mediation, several authors suggest that with sufficient safeguards the process may offer an attractive alternative for abused spouses.  One of my former students, a victim of spousal abuse, wrote a seminar paper advocating the use of med-arb in divorce proceedings involving abused spouses.  After her experience in the West Virginia court system, in which a judge openly expressed his bias against her, she preferred a process giving her more control, especially, over the outcome.

I also suggest that mediators successfully handle many cases in which the parties either had no pre-existing relationship (auto accident cases) or do not wish to preserve the relationship (divorcing spouses with no children). 

As mediators, lawyers, and their clients gain more experience with mediation, fewer and fewer types of disputes will seem less amenable to the process.  Even if mediation only succeeds in improving the parties’ communication, in identifying their underlying interests, in narrowing the issues in conflict, or in helping them more carefully evaluate their litigation option, it can move the dispute towards a quicker, more cost effective resolution.  

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.

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.