Saturday, January 5, 2013

HAPPY NEW YEAR AND NEW BLOG!

Happy New Year.  You may have noticed that I have not posted on this blog for sometime.  I am happy to report that I have a good explanation:  I've been writing a book!  "View from the Middle of the Road:  A Mediator's Perspective on Life, Conflict and Human Interaction" is due out this Spring.  Please see:  www.viewfromthemiddleoftheroad.blogspot.com for details and excerpts.

In the book, I spent a year examining a dozen mediation hearings over which I presided.  In my self-reflective analysis, I came up with 120 "Mediator's Tools" which are detailed in the text and the Appendix.  In my new blog, www.viewfromthemiddleoftheroad.blogspot.com, I'll be revealing these tools each week.  I'd be happy to have your comments and feedback!

Happy New Year and New Blog

Happy New Year!  As you may have noted I have taken a break from my blogging efforts.  The good news is that it was for good reason as I have, in the past two years, written a book, "View from the Middle of the Road:  A Mediator's Perspective on Life, Conflict and Human Interaction".  It is due out in April, 2013.  In it, I tell 12 stories of Mediation's over which I have presided, taking care to step up to the balcony and consider what went right and wrong in each of them.  The end result is that I've developed a list of "120 Mediator's Tools" based upon my own self-reflective analysis.  These Mediator's tools will be described over the course of this coming year in my new blog:  www.viewfromthemiddleoftheroad.blogspot.com.  Please check it out and comment.  I'd love your feedback.

Sunday, October 16, 2011

Leaning Into Conflict


Last night, we spent a magical evening in my sister's backyard Sukkah. Sukkot marks the Jewish Harvest Festival, where it is tradition to build impermanent tents in yards, under the stars, and to share the harvest of joy by inviting strangers to join with family for a festival meal. It occurs to me that because there is only a single wall in a traditional sukkah, it is unavoidable that both guests and hosts "lean in" to engage in conversation. There is something intimate about that effort which also works in conflict resolution. By literally and physically "leaning in" to listen to and empathize with the disputants, there is a natural comfort level that is engendered. When you lean in, you can demonstrate or model important features that may facilitate unlocking and resolving the dispute. First, the barriers to communication can be surmounted--you can literally get within the shell of exterior protection that may have caused or contributed to the conflict with the other disputant. Next,by sitting close by, you can show that you are on the same level (as opposed to standing, as a person in authority, or seated on a podium, as a Judge would be), thus facilitating a more likely willingness to trust and confide in the mediator. Finally, by leaning towards the disputant, you can better model their own behavior, echoing and thereby showing the empathy they need in order to put the conflict behind them. The opposite of "leaning in" would be a classic interviewer who leans back in his chair, and displays a degree of arrogance by his posture. This may be effective at certain steps, but in this season of harvest, I'm going with leaning in towards the stranger. After all, it was a magical evening.

Saturday, October 24, 2009

Does Mediation Do Justice?


I presided over two tough employment cases this past week. In both cases, neither Manager/owner nor claimant/employee were American born. In both, claimants were very young, very attractive women/girls in their early 20's working for the first time in this Country. Like many cases in California,the employers failed to adhere to strict wage and hour laws and were accused of sexual harassment. Although the employer/managers were in each instance either ignorant of or intentionally ignoring the strict laws of employment, there was no allegation of any intent to harm.

In the second case, after the settlement was reached, the owner posed a probing, rhetoric question to me: "Is there no justice in this Country?" I had to take a deep breath and reflect upon this. The truth is, I don't profess to be after achieving justice. I see that as the province of judges and juries. And sometimes I don't even think the laws are just as they apply to the facts of a particular case. Yet, I hope that in most cases which I mediate, some rough justice is achieved through agreement as to the likely result in court v. pre-trial. Maybe that's different than "fair". I'm also reflective about men and their flirtatious nature, and young, attractive women, and the extra protections they are afforded. Without protest or actual harm (there were no claims of improper touching, for example, in either case--just flirtatious gestures, words and suggestions) these young women do have legitimate and valuable claims for monetary damages for being the recipient of what in many countries and cultures is considered to be flirtatious banter. In Europe, for example, affairs are commonplace and even political figures are not criticized for their well known mistresses and womanizing. Here, the allegations amounted to sufficiently egregious behavior to call for damages. Here, the conduct is not tolerated, especially in the workplace, even though it's common in other cultures and in many other settings than the workplace. A curious thing, justice.

P.S. For those readers who are curious, that Subpoena has not materialized yet...but my insurance carrier has my claim form waiting just in case!

Saturday, October 17, 2009

Duties to Clients or Country?

Well, here it comes. I'm about to receive a Subpoena in a U.S. District Court Case which didn't settle and went to trial for my mediation notes. I've been talking to the lawyers all week. Up until now, I considered them to be my "clients" (together with their clients, none of whom I met at the hearing). I didn't see any obligation to produce notes (and I didn't keep them) of the confidential negotiations, but I also didn't see any harm in making ex parte communications as to how I recalled the negotiation going. (No offers no demands, the parties, 18 months ago, were too far apart to settle absent a whole lot of discovery and investigation into an alleged civil rights/police false arrest case). So I told the lawyers what I remembered and that I had no notes. Next best? My testimony! Not going to do it, but it will cost me some in quashing the subpoena or hiring someone to make a special appearance to advise the court of why I'm not going to testify. What a country! I'm pretty confident that the confidentiality clause will be upheld and I won't be required to testify or produce notes, but the process for that response is sure still elusive. Also, the Federal Judges in our District don't seem to appreciate the sanctity of the negotiation process in the same way as State Court Judges. This isn't the first time a mediator in our local area has been asked to testify about the negotiations. What a mess!