Arts mediation

Yesterday I had a chance to help train mediators for a California Lawyers for the Arts program that provides  mediation and other ADR services for artists. Calfornia Lawyers for the Arts also runs a well-developed lawyer referral program. What was interesting to me about the group's ADR program is the separation they try to maintain between legal services and ADR services. They take care to screen new cases to determine whether the client needs legal advice or resolution of a dispute, and they instruct the program's mediators not to give legal advice during mediation sessions, instead only to suggest to participants that they consult an attorney if they feel they need legal advice. In mediation parlance, it's a facilitative, rather than an evaluative service. In that way, the mediator can be truly neutral about the outcome, not preferring any particular solution because it seems more in accordance with the way the legal system might resolve the dispute.

Some of the lawyer volunteers have difficulty overcoming their extensive training and experience in how to approach what seems like a legal problem. (To a lawyer, every problem may seem like a legal problem.) When lawyers listen to people describing a situation, they are naturally prone to spot the legal issues. Do the parties have an enforceable contract or partnership agreement? Is someone infringing copyright? Do they have a valid trademark? These might be important questions, but they are not necessarily the first questions to ask in trying to resolve a dispute.

Instead a mediator in these kinds of disputes needs to focus on the concerns the parties themselves bring to the table. We practiced some mock mediation sessions resembling the types of problems that are actually brought up by artists: one was a conflict between a theater company's business director and artistic director over the commercial potential of some of the company's productions. Another was a dispute between members of a rock band, after one of the players quit. The issues driving such disputes have to do with creative control, feelings of distrust and betrayal, and numerous other misunderstandings. In mediation these problems are best resolved by helping the parties understand and appreciate each other's viewpoints, rather than by explaining their rights and responsibilities. That leads to solutions the parties themselves feel comfortable with, rather than solutions that the law might impose on them. Moreover, in trying to solve many of these kinds of problems, for example deciding how many experimental-type theater productions a company should put on, the law does not provide any answer at all.

Unlike some of the litigated disputes I have been involved with, this kind of program is therefore less about trying to predict how the court might resolve a particular dispute, which is how a lot of litigated disputes get resolved, even in mediation, and more about paying attention to the parties' emotional, artistic, and business needs. For more information about volunteering for, or obtaining a referral from this program, see the California Lawyers for the Arts website.

The end

Yesterday I mediated my last case referred by the Los Angeles Superior Court mediation program (aside from a couple of cases I am still trying to wind up as private mediations). This last case turned out to serve as a good illustration of some of the problems with the LA program. It was a case involving a high dollar amount, making me wonder why the parties chose a randomly-assigned mediator for three free hours. One of the attorneys was determined to insult the mediator, reminding me that I was chosen at random and admonishing me not to speak to her client. Another attorney refused to engage in any substantive discussions about the case until after the other side presented what he judged to be an acceptable demand. Which of course they would not do. Since it was obvious the parties were not there for a serious settlement discussion, but only to persuade each other that they were both ready to go to the mat, I was not sorry to see them leave.

For cases like that, the end of the court program could not come soon enough. Those parties have the wherewithal to select a private mediator when they're ready to discuss settlement. There is very little justification for offering them a free ADR program.

On the other hand, I settled a handicap access case recently which served as a good illustration of the need for a program like the court program. These cases typically settle for between $5000 and $10,000. The settlement amount usually barely justifies the time the plaintiff's lawyer and the plaintiff (usually a wheelchair-bound person making part of his living enforcing the handicap access requirements) have put into the case, but is more than the defendant (usually a small business owner barely making a profit) can comfortably afford. That makes settlement difficult, but also makes settlement imperative, because the alternative is much worse for both sides. And the cost of a private mediator is hard to justify in those cases.

Now that the court program is ending, I don't feel bad at all for the parties in the first kind of case. The only use they were making of the court's free mediation program was to abuse it. When they're genuinely ready to mediate, they can call me, or call some other private mediator. There is no shortage of people ready to help them, they can afford it, and they will have more respect for the process when they are paying for it. I should make clear that I don't feel offended by everyone who uses the court panel for large cases, just the people who don't respect and appreciate the service.

For the second kind of case, it's a shame the court program is ending, because they desperately need help in resolving their dispute, and the mediators who serve on those cases can feel good about the public service they are providing. In the most recent case of this kind, one of the lawyers told me they are not sure how they are going to be able to resolve these cases economically now that the court program has ended.

I and others have been working on behalf of the Southern California Mediation Association on a program that will hopefully serve both kinds of cases well. It might take a little more initiative from the parties to use our new program. The court will probably not coerce parties into using mediators who are not members of a court-designed panel. But we will provide a list of market-rate mediators from which parties will be able to choose, and we will also provide a list of mediators willing to work at a reduced rate that may serve the needs of smaller cases. In either case, no one is going to be coerced into participating, and that may make a lot of difference to the success of mediation for parties smart enough to choose it.

Justice

I heard a great story tonight from a college professor. Near the beginning of this professor's course on political philosophy, a student proclaimed that there was no such thing as justice. "I've read Nietzsche," the student said, "and so I know that there is only power. Justice does not exist."

The professor asked the student to give the course a little more time to test his assumptions. "But I'm warning you," the professor advised. "If you still think the way you do by the end of this course, you are not going to get a very good grade."

"You can't do that," the student said.

"Why not?" asked the professor.

"Because it's not fair!"

The professor told us how pleased he felt that he had achieved that kind of rare teaching moment, the lesson being that even when people doubt that justice exists, our desire for justice remains strong; our appeals to justice are often the strongest arguments at our disposal.

Peace

This is eight year old Martin Richard, who has achieved immortality as an international symbol of peace. Martin was killed on Monday for being in the wrong place at the wrong time. His mother also suffered a brain injury and his sister lost her leg, when a bomb exploded near to where the family was standing while they were watching the finish of the Boston Marathon.

Budget Negotiations

Sometimes as an attorney representing a party in negotiations you might have an unreasonable client, who refuses to give any ground to the other side on a particular point, somehow failing to understand that it is impossible to make a deal without conceding something to your opponent. Sometimes you have an unreasonable adversary, who seems uninterested in making a deal except on their own terms. And sometimes you have both. That seems to describe the position of President Obama in current budget negotiations.

The president is facing outrage from his fair weather supporters on the left for suggesting that he is open to changing benefit formulas for Social Security as part of a budget deal with Congressional Republicans. The concept of "chained CPI," and other changes to entitlement formulas, is something Republicans have been demanding as part of the budget negotiations for months. Republicans promised that if the president was willing to make some concessions on entitlements, they would show interest in additional revenue increases. So it should be clear from the history of these budget negotiations that chained CPI was not the president's idea. It's probably not his preferred method of fixing Social Security. This administration, which pushed through a Social Security payroll tax holiday for the last couple of years, evidently doesn't even consider it very urgent to shore up Social Security at all right now. But they are willing to consider such a proposal from the other side in the interest of getting a budget deal. Those expressing outrage on the left are somehow failing to grasp this elementary principle of negotiation strategy.

AFP

And what about that unreasonable adversary I mentioned at the top? Now that the president has expressed willingness to consider agreeing to something that the other side has been demanding, something they told the president was one of their top priorities, the Republicans have moved the goalposts. Here is John Boehner's response to President Obama's budget proposals: "If the president believes these modest entitlement savings are needed to help shore up these programs, there's no reason they should be held hostage for more tax hikes." This statement might be smart politics, but Boehner knows it is disingenuous in the extreme. The president doesn't believe these savings are needed. That is something Speaker Boehner has been demanding. To suggest otherwise is to use the kind of bad faith negotiating tactic that kills deals.

So now we have the left and right (client and adversary) both attacking the president for advancing a proposal in negotiations over a budget. The left plays into Speaker Boehner's hands by perceiving chained CPI as President Obama's idea. And the right seems ready to play the same trick they played with Medicare in both the 2010 and 2012 election campaigns, trying to blame the Democrats for taking people's benefits away, when that was their demand in the first place.

What will protect the president, and perhaps allow a deal to be made, is the American people (the real client). The president's popularity remains strong, especially compared to the standing of Congress. People generally favor the balanced package of spending cuts and revenue increases the administration is suggesting. A bit of public pressure to stop fooling around might help get a deal done. Once the irrational actors on all sides are done scoring political points and blaming one another for failing to make a deal, one hopes that enough rational actors will be left in the room to identify the common interests that will permit us to move forward.

Collaboration

There was talk around the ABA Dispute Resolution Conference this week that the demand for mediation services may be declining. If that's true, does that mean that mediation is falling out of favor, just as arbitration has somewhat fallen out of favor? Or is it a reflection of the economy and the decline in demand for dispute resolution services in general? Law firms have dramatically shrunk in recent years as clients are less willing to shell out gigantic sums for litigation. If litigation activity is declining, one would expect that fewer parties would use mediation as a stage in the litigation process.

I think there is a larger trend going on, one that actually points in the opposite direction. I see evidence that the values behind mediation--values such as collaboration, interest analysis, problem-solving, participation, self-determination--are starting to permeate the culture. That was evident from some of the panels I attended this week. For example, one panel discussed processes that local governments are developing that allow greater citizen participation in decision-making.  If all the affected groups participate in designing a project, fewer conflicts should prevent the completion of the project or deal with its impacts. In other words, if the project managers use a mediation-like process in the project development stage, they are less likely to need any kind of dispute resolution process at the end.

Civic collaboration

Another panel talked about how project design and management has changed in the construction industry, by changing contract incentives and using similar conflict-avoidance techniques. As a result, the construction industry is moving away from a culture in which all of the contractors and sub-contractors point fingers at one another when something goes wrong, to one in which all of the participants have the incentive to do what is best to allow the project to move forward.

Lawyers are talking about practicing in a less adversarial manner, introducing mediation into the litigation process, or avoiding litigation altogether. Concepts like collaborative law, integrative law, and planned early negotiations, are starting to seep into the legal profession, moving it away from the traditional adversarial model.

These cultural changes seem particularly pronounced in  the younger generation, which seems steeped in more collaborative values. Technology has also made people recognize the wisdom of crowd-sourcing, and has given everyone the tools to participate in every conversation.

If there is less formal conflict resolution going on, maybe that means that the values behind mediation have already succeeded to some extent in transforming a competitive culture into a more cooperative culture. That is not to say there aren't plenty of old-fashioned nasty and destructive conflicts still going on. Those are not going away completely or any time soon. Adversarial thinking still predominates. But if the values supporting mediation are truly taking hold, such that conflict management and avoidance are built into the system, then mediators might have to rethink the ways in which they practice their trade. Instead of thinking of mediation as an adjunct of or alternative to the court system, people trained in conflict resolution will instead end up employing their skills in a variety of roles in a more collaborative society.

Peace is boring.

Yesterday at the ABA Dispute Resolution spring conference I heard former Senator George Mitchell talk about his five year effort to mediate a peace agreement in Northern Ireland. When the agreement was finally signed in 1998, Mitchell knew the work of making peace was not over, that implementation of the agreement was going to be even more difficult than the long effort to obtain the agreement, and that it would take some time before violence died down. He told people in Ireland at the time that although he knew they still had a lot of difficult days ahead, he hoped someday to return to Northern Ireland with his son, born only about six months before the Good Friday agreement, and sit in the visitors' gallery of the Northern Ireland Assembly, where there would no longer be talk of violence, and no talk of peace either. Neither would be worth mentioning, as peace would be taken for granted.

BBC photo

Mitchell finally got the chance to take that trip with his son last year. (Some google research disclosed that a documentary about the trip is going to be released this month.) Michell told our audience that after traveling a few days through the Northern Ireland countryside he had grown to love, he took his son to watch the debate in the Northern Ireland Assembly, where they sat and listened for about 45 minutes to a "dry as dust" presentation of a report from the European Parliament in Brussels. Finally, Mitchell's son turned to his father and begged to leave, complaining that the proceedings were really boring. Boring to his son maybe, but to Mitchell the mundane speeches in the Assembly were music to his ears.

Mitchell told us what every mediator already knows, that it takes lots of patience and perseverance to reach a peace agreement. He also emphasized the importance of holding out hope and economic opportunity, otherwise people without those essentials are likely to continue to engage in violence. Since the end result of this process is so boring, however, that probably explains why the peace process does not excite most of us--it explains why they make a lot of war movies, and not very many peace movies. Only dogged peacemakers like Mitchell get excited by the deadly dull reports of an uneventful legislative session in a more peaceful Northern Ireland.

Process and Outcomes

One of the panels I attended at the ABA Section on Dispute Resolution spring conference turned into something of a psychology experiment. The presenters asked the participants to sit around a series of circular tables, and assigned each table a role to play as groups interested in a proposed canal project for a hypothetical harbor. My table was assigned to play several environmental groups opposed to the project for differing reasons, another table represented shipping company owners concerned about the cost, another represented union interests favorable to the project, and another represented government representatives sponsoring the project. We were asked to discuss among ourselves our concerns about the process that was supposed to take into account all of these different views in the design of the proposed project.

What happened was that instead of focusing on how to design and manage the process for addressing all of these competing interests, most of the participants tended to focus on how to achieve their substantive goals. The shipping interests talked about diverting their cargoes to another port; we environmentalists argued among ourselves about our reasons for opposing the project and also threatened a lawsuit to stop it; the government interests figured they had the power to push the project through despite the opposing interests. Even after some prodding by the panelists, we found it difficult to talk about designing a process that would allow all of the competing interests to be heard and perhaps accommodated. Instead we distrusted the process and talked mostly about how to either win or opt out.

In the post mortem, the panelists reminded us that we were a group of dispute resolution professionals. And that this was only a simulation, in which we were arbitrarily assigned various roles, and were only pretending to favor them. Nevertheless, we became heavily invested in our assigned positions, distrustful of other parties, and distrustful of the process itself.

I often find that parties entering mediation show little interest in discussing procedural issues, with the exception that they frequently express a desire to retreat to a separate room and have no interaction whatsoever with the opposing side. Even when parties are willing to be guided by the mediator as to how to structure the process, they are a lot less interested in the process than in the result they are trying to achieve. And they are often eager to walk out if it does not appear to be heading toward the result they favor. The exercise I participated in shows how much resistance has to be overcome to induce parties even to discuss and participate in a process that tries to allow every voice to be heard and every legitimate interest to be accommodated.

It's somewhat disconcerting to realize that even conflict resolution experts need to be reminded to focus on the process before worrying about the result. But when we are asked to take the point of view of parties, it's only natural to be concerned about your client's goals more than how you arrive at those goals. Still, parties understand that process is important. I was reminded at another panel that research demonstrates that when people feel they have had a chance to tell their stories, and even more importantly, when they feel they have been heard; when participants are treated with respect; and when they have confidence in the neutral, they are more likely to be satisfied with the result, even it does not achieve all their goals. Those should be the values served by any dispute resolution process, including litigation as well as alternatives to litigation.

Stories

We tell stories to make sense of experience. We need to organize the chaos of events in the form of stories, containing a beginning, a middle and and end. By doing that, events acquire meaning.

We tell stories to define who we are. Tomorrow night my family will gather to re-tell the Passover story, a defining story of the Jewish people, as it charts a journey from slavery to the promised land. Every culture defines itself by telling their own stories.

We also tell stories as a means of resolving conflict. One thing that trial has in common with mediation is that both forms of dispute resolution provide an opportunity for the parties to the conflict to tell their stories. In a trial, two conflicting accounts of the relevant events are laid side by side so that a neutral fact finder can try to decide what really happened, and which side should prevail. In mediation, parties have the chance to tell their stories to each other, and are allowed greater scope to describe how the conflict has affected them, all in an effort to promote reconciliation or compromise.

On Friday, I had a chance to hear Professor Lela Love at an SCMA program, talking about her recent book Stories Mediators Tell, which attempts to convey how the mediation process works by means of a series of stories. This seems a very effective way to explain what happens in mediation that can allow parties to let go of conflict: whether that comes from understanding the other side's point of view; recognizing the other side's humanity; discovering common interests; or finding acceptable middle ground. The stories in the book run the gamut from heartbreak to humor to common sense resolutions of practical problems.

Mediators themselves seem to enjoy and learn something from telling stories, as we discovered when members of the audience were invited to share our own experiences that to each of us seemed to capture the essence of the mediation process. When trial lawyers get together, they like to tell war stories. I guess you could call the stories this group of mediators told on Friday "peace stories." Thanks to Professor Love, the other participants in our discussion, and the indispensable Robyn Weinstein for organizing the program.

The power of an apology

Critics who accused President Obama of leading an "apology tour" during his early foreign trips might claim some vindication from this week's presidential visit to Israel, which culminated in a spectacular apology that took place in a trailer at the airport as the president was about to depart for Jordan. But it wasn't President Obama who was apologizing. The president instead acted as a mediator in brokering a restoration of diplomatic relations between Israel and Turkey. In order for that to occur, it was necessary for Israel to apologize to Turkey for mistakes that occurred during the 2010 Israeli raid on a Turkish ship trying to run the blockade of Gaza. Clearly, both Israel and Turkey will greatly benefit from the restoration of normal relations. Improved relations will bolster the security of both countries in the face of violence in Syria and elsewhere. Israel also gains some international respect, as Turkey has already tempered some harsh criticism of Zionism, which may have laid the groundwork for this week's action. But some  Israeli hard-liners are already criticizing the apology. Are there any costs to Netanyahu and Israel in expressing regret and sorrow for the Israeli military action in 2010?

Those who resist making apologies rely on a couple of arguments. One is that the party being asked to apologize has nothing to apologize for. This view is often expressed by American conservatives, who seem to argue for a doctrine of American infallibility. Thus, no matter how much other countries might perceive us as a bully, no matter if we sometimes make strategic military mistakes, we should never apologize because we are always in the right and always a force for good in the world. That is an argument based on pure arrogance. Countries that do not acknowledge their mistakes only lend further support to negative perceptions. Israeli hard liners can argue that their country had every right to enforce a naval blockade, an action that every sovereign nation has the right to engage in when permitted under international law. But these same defenders of Israeli prerogatives should also take enough pride in the Israeli military to be able to claim that Israel tries to use force sparingly and to minimize unnecessary casualties. And no matter how precise and well-planned a military operation may be, it probably could have been even more well-planned and precise. That means there is almost always something to apologize for.

Another argument is that apologies make nations appear weak. That means that even if leaders recognize that they made some mistakes, they should still never acknowledge those mistakes, because that will cost them respect. Those who make this argument should have the burden of proving it. They must demonstrate that if Israel covers up or refuses to acknowledge any operational errors in its military missions, that will cause the country's enemies to respect it more. Even if they could make that case, which seems doubtful, it would be an odd position to take for a country that prides itself on democratic institutions, an independent judicial system, and the freedom of Israeli citizens to criticize their own government. That means that no matter how much leaders may wish to refuse to acknowledge their mistakes, other institutions are going to ferret them out anyway.

In private disputes, parties often resist apologizing for similar reasons. They are reluctant to admit they did anything wrong, and they are afraid of some potential adverse consequences in admitting fault. But so long as an apology is crafted in a way that it cannot be used in court as an admission of liability--which is usually the case if an apology instead becomes a tool to obtain a legally binding settlement which implies a discharge of liability--the costs of apologizing usually pale in comparison to the gains that can come from resolving the dispute.

The arguments against making apologies thus seem remarkably weak. They are mostly based on pride and a miscalculation of the party's real interests. When weighed against the remarkable gains that can come from openly acknowledging a mistake to a party that feels wronged by one's actions, the costs of apologizing seem trivial in comparison. Prime Minister Netanyahu acted wisely in recognizing that the benefits of restoring good relations with Turkey far outweighed any risks in making an apology for Israel's attack on a Turkish ship.