Tuesday, October 14, 2014

SCMA Fall Conference 2014

There is still time to register for the Southern California Mediation Association fall conference being held at Pepperdine University in Malibu on November 8, 2014. This year's conference, entitled "Roads to Resolution," will feature a number of panels discussing psychological considerations in mediation such as the psychology of greed, transference, the role of anxiety, and much more. Other panels will address innovations in the field such as mediator certification, organizational conflict management, the use of improv techniques in mediation, and various technological advances in the field. We are also for the third year in a row, featuring an advanced track for experienced mediators.

But the SCMA fall conference is not just for mediators and aspiring mediators. We are featuring panels on new opportunities to put mediation skills to use, new careers in conflict resolution, and opportunities to collaborate with other professionals. I am really excited about the quality of the presenters who have come forward this year. They have put together some thought-provoking materials which we are gathering on the online conference journal page, and have put a lot of time and effort into their presentations.

Our keynote speaker will be Los Angeles City Attorney Mike Feuer, being honored for bringing a more collaborative and problem-solving approach to the City Attorney's office. We will also be honoring Professor Russell Korobkin from UCLA Law School at a Friday night reception.

We're offering a wealth of information and a chance to connect with the Southern California mediation community. And it's worth the trip just for the scenery alone. For more information, click here.


Wednesday, October 8, 2014

Losing

So last night the Dodgers dropped the final game of the NL division series to the Cardinals, who have now blocked the Dodgers two years in a row from attaining their World Series goal. And what I'm reading in today's paper is about who to blame for the loss. Here is a team that set out to spend whatever it took and do whatever was necessary to get to the championship, and yet they came up short once again. It's hard not to want to blame somebody in the organization in that situation. If you were willing to do anything to win, and yet you failed to win, there must have been something you did wrong, right?

Certainly there is no shortage of candidates for blame. The ace pitcher who seems to lose control against this particular team at particular moments. The unreliable bullpen. The manager who made some questionable decisions. The general manager who lost some opportunities for better trades. The hitters who never quite seemed to jell as a team. The new owners who somehow failed to put all the pieces together in the right way.

Yet finding the right person to pin the blame for failure can't be the whole story. Particularly in baseball, an inherently cruel and tragic sport in which failure is pre-ordained. Under the inexorable rules of baseball, one team must always lose. That is true in other sports, but even more true in baseball where ties are not permitted, and the game can continue indefinitely until somebody finally loses. That means that no matter how well both teams play, no matter whether they have done everything humanly possible to insure victory, one team is going to lose anyway.

Baseball is designed to test the limits of human endurance in other ways. A pitched ball travels too fast for the batter to actually see where it is going in time to adjust their swing. Batters basically have to guess where the ball is going in order to hit it, which is why every hit in a baseball game seems miraculous. The game is so long that pitchers hardly ever finish a complete game. Most of the time, they must be removed when they reach their physical limits. So even the best batters repeatedly strike out, and the best pitchers have to be taken out. Everyone reaches the point of failure, as if by design. Furthermore, in baseball, even the best teams only win about 60% of their games over the course of a season, and the worst teams still win about 40% of the time. You do not see the long undefeated streaks that you sometimes see in football or basketball. No matter how well you play baseball, you still have to accept a lot of losing.

If the game is set up for failure, then blaming yourself for failure can only tell part of the story. Sure, there are always mistakes that you can point to to explain a defeat, and sure the team that makes the fewest mistakes will usually win. But taking the game last night as an example, there were also numerous breaks that could have easily worked out differently. Say Justin Turner who came in as a pinch hitter in the 9th inning, had hit a home run instead of striking out. One slight adjustment of the wrist in a single second could have changed the result. And then everyone on the team would be a hero and we wouldn't be looking for anyone to blame. Instead we'd be talking about how Clayton Kershaw pitched a hell of a game on short rest, and we'd say that allowing one tiny little three run homer in the 7th inning only showed that Kershaw held the Cardinals to a small enough lead that the Dodger hitters were easily able to overcome it.

I heard Orioles manager Buck Showalter interviewed on the radio this morning saying some wise things about baseball. He said that managers sometimes make unquestionably correct decisions that turn out to be disastrous. And sometimes they make very bad decisions that somehow work out. Yet fans are so results-oriented that they judge the quality of the decision by the outcome of the game, even though the game's score does not perfectly reflect the quality of the decisions or the quality of the play. I'm not saying the result is all luck. But I am saying that shit happens in baseball, and in life as well, and you can't blame yourself for all of it.

Thursday, September 25, 2014

When to fight

President Obama's speech to the United Nations this week is worth reading to study the evolution of the president's foreign policy views in response to new and continuing conflicts around the world. With respect to such crises as Russian aggression toward Ukraine, preventing a nuclear Iran, and the Israeli-Palestinian conflict, the president reiterated his belief in finding cooperative, negotiated solutions:
This speaks to a central question of our global age: whether we will solve our problems together, in a spirit of mutual interests and mutual respect, or whether we descend into destructive rivalries of the past. When nations find common ground, not simply based on power, but on principle, then we can make enormous progress. And I stand before you today committed to investing American strength in working with nations to address the problems we face in the 21st century.
But when it comes to the latest threat presented by the surge of ISIL in Syria and Iraq, President Obama took a different tack:
There can be no reasoning – no negotiation – with this brand of evil. The only language understood by killers like this is the language of force. So the United States of America will work with a broad coalition to dismantle this network of death.
So what puts this group beyond the pale? Surely they are still human beings, and many of their followers are motivated by the same concerns as the rest of us. Is there no possibility of accommodating whatever legitimate interests they may have, and involving them in the political process? Not while their murderous actions disqualify them from the benefit of more civilized solutions, is President Obama's answer.

While a lot of mediators and other peace advocates might find this answer disconcerting, many of us realize that not all problems are susceptible to a negotiated resolution, and that sometimes you do have to fight. (See Robert Mnookin's book Bargaining with the Devil, which provides some case histories of when to fight and when to negotiate.)

Even though pressing forward with a military solution to this problem, President Obama was still careful to stress that he was not advocating war with Islam.
So we reject any suggestion of a clash of civilizations. Belief in permanent religious war is the misguided refuge of extremists who cannot build or create anything, and therefore peddle only fanaticism and hate. And it is no exaggeration to say that humanity’s future depends on us uniting against those who would divide us along fault lines of tribe or sect; race or religion.
The president took particular care to invite other Arab and Muslim nations to join in condemning the violent and extremist actions of groups like ISIL. The message: Choose sides not based on ethnic or religious identities, but based on whether you are willing to adhere to principles of human rights, self-determination and peaceful resolution of conflict. If you're not willing to adhere to those basic principles, then you must expect the rest of the world to respond with force.

This message is bound to be disconcerting to those who would divide us by ideology or ethnicity or nationality or religion. It rejects the world view that on one side are arrayed the forces of good (white, Christian, capitalist, or whatever other traits one wants to associate with that side) vs. on the other hand the mighty forces of evil (whether fascists, Communists, Muslims, dark, etc.) Instead we should gather together from all regions and ideologies those who respect the ideals of peace and freedom, and together that far larger force will defeat the small and weak enemies of civilization.

Friday, September 12, 2014

LA Court Update

More than a year after closing most of the LA Superior Court's ADR program, in conjunction with consolidating and closing courtrooms around the county and other cutbacks, how is the court faring? For all the predictions of disaster, it seems this court system is managing surprisingly well. The courts have been able to maintain most trial dates, in the administrators' view probably the most important requirement for keeping the court processing its workload. Local rules have been modified to decrease the number of court appearances, especially in personal injury cases. Judges are figuring out how to muddle through with fewer staff positions, and parties are coping with a system that has significantly reduced their ability to interact with court personnel.  In other words, cases are still moving through the system, but they are getting less attention along the way.

Cases that used to be resolved with the aid of the ADR department's mediation are still being resolved somehow--presumably either through private mediation, or through negotiation by the parties' attorneys themselves, or through the court's expanded settlement judge program. What has slipped somewhat is the court's ability to resolve motions. In contested cases where the parties feel the need to file discovery motions or summary judgment motions or other motions, the courts cannot set those motions for hearing as quickly as they used to, and that has resulted in significant delays.

As a result, the court is still looking for help in processing its large caseload. Meanwhile there are still lots of mediators out there who would be willing to help. It's frustrating that we can't seem to figure out a way to put them back to work. In the court's view, what is lacking is an administrative structure. In the mediators' view, what is lacking is a push from trial judges to send cases out to mediation.

Perhaps we need to stop looking at mediation programs merely as a means of helping the courts clear their dockets. Mediation's true value is instead providing a means for parties to have their concerns heard and perhaps understood. That is something the courts are simply unable to provide for the vast majority of cases passing through the system. Most litigants experience the court system as a maze where they hardly ever find a chance to interact with the judge, and never have an opportunity to tell their stories. Finding a way to steer more cases to mediation would reduce the court's workload to some extent, but would also have the chance of increasing litigants' satisfaction with the justice system.

Sunday, September 7, 2014

Truth, justice and peace

It being a weak weekend for new movies, we decided to settle for The November Man, a grade B thriller starring Pierce Brosnan. Brosnan plays Peter Devereaux, a retired CIA agent who is lured out of his comfortable life in Lausanne to perform another mission that takes him first to Moscow and then to Belgrade. He's a cold-blooded killer, but eventually we learn that he might have some soft spots. I'm not going to summarize the convoluted and somewhat predictable plot, but will jump right to the moral dilemma at the heart of the story. It involves a Russian politician, Arkady Federov, who is on the verge of being elected the next Russian president. The CIA is interested in helping Federov out, since he is pro-American and might even lead Russia to join NATO. Now there's a tempting prospect in this time of increasing tensions with Russia over Ukraine and elsewhere. Think of it: finally a true end to the Cold War conflict that has been hanging over the world's head all our lives.

But it turns out that Federov is hiding some dark secrets, in which the CIA is also complicit. And Devereaux has to decide whether to help bury the dirty past in order to bring about peace in the world, or to expose Federov's crimes and cause his downfall, which will keep the US-Russia conflict alive. It's the age-old philosophical question of whether the ends justify the means, a common theme in spy stories. Naturally there is a beautiful woman involved who may have to be sacrificed in order to bury the scandal. Should he let her die, and thereby help realize the goals for which he played the spy game for so many years? Or should he help her reveal the secrets that will destroy Federov, tarnish the agency, and threaten world peace? Devereaux gives a rather cavalier response to this question when it is posed to him, but it actually represents a serious dilemma that is frequently encountered in attempting to resolve conflict.

One of the top reasons people advance for being reluctant to agree to a negotiated resolution of conflict is that they cannot abandon the quest for truth and justice. I just heard this feeling expressed recently in a mediation between two former business partners who each felt betrayed by the other.   World peace was not at stake in that case. Still peace between these two parties, possibly even forgiveness and reconciliation, might be achievable, perhaps only at the expense of pursuing justice. At first neither side was quite ready to let go of the conflict. Each still wanted to punish the other side and vindicate their positions in court. Eventually each conceded some ground to the other, making resolution possible.

I'm not sure we should ever try to talk people into sacrificing truth and justice in the name of peace. Instead we might talk about how difficult (and costly) it is to obtain truth and justice in our imperfect system. Or even better to help people appreciate at least a little bit of the other side's conception of truth and justice. That way people will sometimes realize that a negotiated resolution might represent the fairest possible solution.

What they won't be happy being told is that they should give up on the quest for truth and justice. That goes against the grain, not only of nearly every story Hollywood has ever told us, but probably of human nature.

Sunday, August 24, 2014

Philosophy

An entertaining new book on philosophy (who would have thought there could be such a thing) called Plato at the Googleplex, transports Plato to various settings in our modern world, and attempts to show that we are still grappling, or should be grappling, with many of the same problems that Plato addressed in dialogues written more than 2000 years ago. The book's Plato character makes you wonder whether, for example, Google does a better job of organizing knowledge than the ancient philosophers did, or whether we've made any progress in dealing with child rearing or love or figuring out how to live a better life.

This "Plato" leads the people who pass for our modern dispensers of wisdom (such as search engine specialists or Tiger Moms or advice columnists or cable news producers) through the kinds of Socratic dialogues meant to help them think about what is fair, or what is most satisfying, or how best to organize society, or what ideals are most important.

Naturally these dialogues made me wonder whether philosophy as exemplified by these Socratic dialogues has any relevance to the practice of mediation. It seems obvious that parties involved in conflict also need help in identifying what is most important to them, what results seem fair and why, and similar considerations that enter into resolving a dispute. In that way, the mediator is acting in some respects like a philosopher, by challenging parties to consider their noblest impulses, and by asking people to step outside themselves to try to imagine what would constitute a just resolution for all parties.

If we try to resolve a dispute only by making predictions about how the legal system might handle that dispute, we might fairly be accused of acting like we are stuck in Plato's cave. We are blinding ourselves to other considerations that might provide a better solution. On the other hand, if we venture outside the legal system, how do we identify the values that would lend legitimacy to mediated resolutions? This is where philosophy might be able to help.

We know that mediators sometimes need to act as an amateur psychologist, an amateur economist, an amateur diplomat, an amateur judge, or apply other kinds of expertise to help resolve conflict. That's what makes the practice of mediation so interesting. We might not have realized that mediators also need to act as amateur philosophers. But in helping parties move beyond vindictive or selfish concerns to discover their best selves, as well as finding principles that can guide them to resolution, mediators are practicing philosophy whether they know it or not. Reading Plato at the Googleplex makes me want to dig out my old copy of the Republic to explore further whether these ideas have practical value in dealing with modern problems.

Thursday, August 14, 2014

Marching together

What a remarkable turnaround we witnessed today in Ferguson, Missouri, where five days of protests in the wake of the shooting death of Michael Brown this past weekend, had been met with police armed to the teeth with military weapons and tactics. But when Governor Nixon finally decided to replace the local police force with state highway patrol officers, the situation changed almost immediately. Today the new representatives of law enforcement started marching with the protesters, and a much different atmosphere returned to the streets.

Yesterday law enforcement viewed the protesters as the enemy, and felt they had to meet them with force to preserve order. All that did was inflame the situation, and exacerbate the conflict.


Today, law enforcement took the opposite approach. First the new commander, Ron Johnson, renounced violence, saying his officers would not be carrying and using tear gas, as the local police had. He apologized for the prior use of tear gas, even though he had had nothing to do with that decision. Second, Captain Johnson emphasized the need to listen: “Sometimes you just have to let people speak and make yourself listen. I used to tell my kids when they were small, open up your listening ears.” Third, Johnson identified common interests with the protesters, saying that "we all want justice. We all want answers." Finally, Johnson marched alongside the protesters.


In one day, this new approach achieved what peacemakers dream of, turning a confrontation where both sides distrust the other, and respond to each other's provocations with forceful opposition, into a joint effort where both sides now appear to be working together to solve a problem.

Once we drop the war mentality, once we stop treating our opponents as the "other," once we identify common goals between ourselves and the opposition, we find ourselves no longer needing to fight our opponents, but instead marching alongside them toward resolution. Note that the parties haven't yet resolved the underlying problems, and haven't suddenly decided they agree with each other. Far from it. But they are approaching this conflict with a much different attitude. Let's hope this new spirit holds.

Tuesday, August 12, 2014

Improvisation

Last night I had a chance to assist at an improvisation class, playing the role of mediator to actors working out various conflict situations. The class arose out of some discussions with the teacher, Rob Watzke, about the similarities between the techniques used in improvisation and mediation. In both situations, careful listening is imperative. You must be sensitive to the content as well as the emotional underpinnings of statements made by other participants in order to advance the process. In both situations, it is also important to stay positive. Whatever new bit of material is offered to you by a fellow improviser, you must use it. You cannot reject it, or the scene dies. Similarly, in mediation, it is better to thank the other side for their proposals, and make a counter-proposal, rather than to simply reject or attack the other side. In both improv and mediation, creativity is also key to success. Improvisers are encouraged to come up with all kinds of crazy suggestions, sometimes the crazier the better, as these fresh additions lead the scene in new directions. Mediators also encourage the participants to brainstorm to come up with creative solutions that might satisfy the interests of both sides.

The actors I had a chance to work with were very talented and a lot of fun. But after watching them create some warm-up scenes, I could see some of them having difficulty doing scenes that asked them to try to win an argument, but most had no trouble at all enacting an argument they were trying to lose. It seemed that improvisation training makes it difficult for these actors to do what comes naturally to people embroiled in real conflict. Parties in conflict are generally focused only on proving their own points. They are unable even to recognize what the other side is saying. To the extent they even pay attention to the other side's points, they do so only to prepare their response. That's why a mediator is often needed to transmit the other side's perspective in a way that might be absorbed.

Parties in conflict could be compared to actors who work from memorized scripts. They only listen to the other side enough to recognize their own cue to speak. Actors trained in improvisation, on the other hand, are always trying to build something from the information the other player is giving them. They had some trouble with an assignment that simply asked them to try to "win" the argument, because they couldn't help but pay attention to the information the other party was giving them, and try to incorporate it into the scene. Their training also kept them focused on guiding the scene toward a satisfying resolution, rather than going around in circles pointlessly, as people in actual conflict tend to do.

So when my turn came to act as mediator in various scenarios that resembled some I have handled in real life, I found these actors very good at expressing emotion and setting up a conflict. I was also amazed at all the new material they kept adding to the conflict. But then I found it was much too easy to lead them to resolution. These people were actually trying to search for the underlying motivations that led themselves and their partner into the conflict, and find their own ways out of it. So we quickly found out, for example, that the guy complaining about his neighbor's barking dog was only doing so because of his own childhood trauma at seeing the death of a family pet; and that the store manager was only piling an unfair workload on an employee because she had broken off their romantic relationship, but that she actually wanted him back if he would only change one little thing about himself. (This was probably the only employment mediation I will ever handle that was resolved by a circumcision!) In the real world, parties in conflict work hard to avoid revealing these kinds of vulnerabilities. And that's why mediations in the real world take hours, while we were able to wrap up cases on the improvisational stage in about ten minutes each. It made me think we should send divorcing couples or feuding business partners to improv class so they can learn some techniques that might make the process go a lot quicker and easier.


Thursday, July 24, 2014

Prisoners

In the first episode of the second season of Orange is the New Black, the series presents a variation on the prisoner's dilemma problem that is often discussed in mediation programs and texts. Piper and her former girlfriend Alex both have to testify against the drug kingpin they used to work for. Alex persuades Piper to lie and say she had no contact with the guy, otherwise he might take reprisals against them both. After giving her testimony, Piper finds out that Alex in fact told the truth at the trial, leaving Piper exposed to a possible perjury prosecution and an increase in her sentence.

In the prisoner's dilemma scenario, an opportunity to communicate as well as familiarity with the other player's past moves is supposed to allow each player to learn whether or not they can trust the other, and if trust is established, to encourage greater cooperation and mutually beneficial decisions. In the show, the two players did have an opportunity to communicate and also had a long history together.  That is what leads Piper to trust what Alex was telling her and follow her advice. What she failed to consider, however, was that this long history should not have led to greater trust but instead to greater suspicion. In season 1 we found out that Alex had already played the defector card once, by betraying Piper and landing her in prison in the first place. In that situation, the parties' history and knowledge of each other's actions should have led Piper not to trust Alex again.

Piper seems to have such a strong need for love and acceptance that she trusts Alex even when she should not. I have seen it happen occasionally in mediation that a party develops (or previously had) warm enough feelings for the other side, that they make deals that they might later regret. Communication and trust are wonderful things , but nobody wants to be played for a sucker either. Sometimes it's a good idea to stay on your guard even while the other side is trying to play on your warm and fuzzy feelings. The way to test a deal is to consider not only whether the deal will work if the other side lives up to it, but also whether the deal makes sense even if the other side defaults.

That's a reminder that it is the lawyer's job to provide that kind of dispassionate advice. Piper's real mistake in this episode was failing to follow her lawyer's good advice, and instead listening to her untrustworthy friend.