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.  

Saturday, July 19, 2014

War and peace

Conflicts that have recently erupted into violence in Gaza and in Ukraine raise the question of how to end the killing and lead the parties back to a less destructive process. President Obama yesterday, in his press conference following the tragic downing of a Malaysia Airlines passenger jet over the Ukraine, attempted to respond forcefully without further inflaming the situation. The president was careful not to jump to any more conclusions than are warranted by what we know so far. He was firm in condemning the responsible parties, yet careful to emphasize the goal of de-escalating tensions and violence so as to prevent further loss of life.

In short, it was just the sort of speech that was bound to infuriate hawks such as Senator McCain who called the president's response to the fighting in the Ukraine "cowardly." At the same time, it wasn't the kind of speech likely to inspire the president's supporters either. What would probably stir people more might be a Rooseveltian ("day that will live in infamy") or Churchillian ("fight on the beaches") type of response to the outrageous act of violence that appears to have been committed by Ukrainian separatists with the help of their Russian patrons.

But remember that both Roosevelt and Churchill made their stirring remarks in an effort to whip up national resolve to fight and defeat an enemy that had already brought war to their shores. Our side needed to be mobilized for all-out war. President Obama's much harder challenge is to stir up the desire for peace, not only to avoid a military confrontation with Russia, which no responsible person wants, but also to reduce tensions in the Ukraine. He faces a similar task dealing with the situation in Gaza.

Even though the United States supports the Ukrainian government in its struggle against the separatists, and supports Israel in its struggle with Hamas, the president was attempting to play the role of mediator. To do that you have to emphasize the goals of fairness and impartiality. You have to be careful not to exaggerate threats or to accuse the enemy of anything more than you can prove. You have to give your adversary a face-saving way out of a dangerous situation.

Laying out a path to peace in this way is far from easy. It's certainly not cowardly. The challenge for the president, as for any would-be mediator, is to persuade the parties that they can accomplish their goals more readily by peaceful means, and that further retaliation will only make the situation worse. Perhaps to make peace, we have to talk less about the grand designs and historical claims of the respective parties, and turn the talk toward such mundane topics as implementing a ceasefire, conducting an independent factual investigation of plane wreckage, restricting arms shipments to the combatants, and calculating the damage to lives and property inflicted by the scourge of war. If the parties can focus their effort on cleaning up the mess, maybe they will consider less destructive means of managing these conflicts.

Monday, July 14, 2014

Dawn of the Planet of the Apes

Surprisingly, the second in the new series of Planet of the Apes movies (Dawn of the Planet of the Apes) presents a pretty good illustration of the forces that drive groups into violent conflict, or provide opportunities for diplomacy. As the story begins, we find a rapidly-evolving colony of apes living in the woods, while a group of humans, perhaps all that is left of humanity (most people having been wiped out by a virus and the mass chaos caused by the virus) are struggling to survive in what's left of San Francisco. An exploring party makes contact with the apes, and both sides have to decide whether to go to war against the other, or find a way to co-exist peacefully.

On each side, there is an advocate for peace, and a counter-advocate for war. The apes' leader, Caesar, still has kindly feelings toward humans, and thinks they might be able to establish trust and respect each other's boundaries, while his rival Koba wants to keep humans away or destroy them. The two points of view on the human side are represented by Malcolm, who asks for a chance to negotiate with the apes to allow the human city to re-build, and Dreyfus, who is skeptical of this diplomatic mission, and makes preparations to fight.

What I liked about this set-up is that there is a logic to each of these four points of view. The dreamers on each side who hold out hopes for peace are correct in pointing out the awful toll that war would take. They recognize the risks, but only ask for a chance to test whether a means can be found for both groups to achieve their goals without threatening the other's. On the other hand, those who advocate for war are correct in suggesting that the other side cannot be fully trusted, and that peaceful coexistence might never be possible.

The movie also demonstrates the powerful roles that fear, distrust, selfishness and bias all play in leading both sides toward violent conflict. Peace is difficult to achieve, and fragile to maintain. It requires individuals to get to know and understand individuals on the other side. It requires trust, which can easily be broken. War seems natural for those not ready to shed their prejudices and fears.

An important lesson for conflict resolution is well illustrated in this film. That is that you generally can't use logic and reason to persuade people to avoid taking a confrontational approach. The hawks will not be persuaded by logic, and their arguments are just as strong as those of the doves. Instead you have to appeal to deeper emotional needs, such as self-preservation or brotherhood, in order to avoid destructive conflict.

(For those who prefer historical drama to science fiction, an even better movie with similar themes is Ridley Scott's Kingdom of Heaven, illustrating the forces that drove both sides to war leading up to the siege of Jerusalem in 1187.)

Sunday, July 6, 2014

Joint sessions

I heard about a mediator who started a session by asking all the participants to spend some time talking about their personal histories and interests, presumably in an effort to get the parties to see each other as human beings and establish connections that might help them resolve the dispute. Lo and behold, these parties did resolve the dispute to each side's great satisfaction, but at least one side later reported that they disliked this touchy-feely aspect of that mediation. So even though this technique was proven to work well, it still made one of the parties uncomfortable enough that they would probably prefer a more conventional and perhaps less effective approach.

Mindful of stories like that, I try to make sure parties buy into whatever process we might be following in a mediation before proceeding. So I don't force participants into joint sessions. I also don't require people to share details of their private lives, or sit around the campfire and sing Kumbaya. But I do generally encourage parties and attorneys at least to think about doing a joint session at some point in the process. I also tell them we can retreat to separate rooms if they feel uncomfortable about continuing.

In Southern California, it's often an uphill battle to persuade parties and attorneys even to consider participating in a joint session. For some reason, joint sessions have a bad name here, unlike in a lot of other places where they are apparently still the norm. Maybe that is just the way the practice has evolved. Maybe it is because parties in mediation have somehow gotten the wrong idea about what is supposed to happen in a joint session. Or maybe it's because some of the mediators who still hold joint sessions are doing them wrong.

As an example of the common reluctance to engage in joint sessions, one of the attorneys in a case I mediated recently told me almost as soon as he walked into my office, that he disliked joint sessions and thought a joint session was out of the question in this case. That would exacerbate the conflict further, he told me. It would give each side an opportunity for chest-thumping that would only inflame passions on the other side. The parties were already angry enough with each other, and probably shouldn't be in the same room. This was far from the first time I've heard these perceptions expressed.

I responded that if we did decide to do a joint session, I didn't expect to see any chest-thumping. I had no desire to listen to each side's attorneys give a preview of their opening statement or their closing argument at trial. I don't think that is productive. Instead, what I suggested we might do in a joint session was to exchange information that might be helpful to resolution of the case. Information about the parties' respective future business plans, for example. Information supporting the parties' respective damage claims, to the extent that had not already been exchanged. Exchanging that kind of information directly across the table is often more efficient that requiring the mediator to go back and forth to convey questions and answers. It's also helpful to dispelling some of the suspicions and distrust that builds up between opposing parties in a lawsuit.

A second purpose is to allow the mediation to be conducted in a more transparent manner. Rather than wondering what is happening in the other room, each side can hear directly from the other side what is troubling them, and what is important to them. If mediation works by means of communication and understanding, that process is often facilitated by face-to-face contact. Not always, mind you. Sometimes parties are more receptive to having the mediator convey information indirectly. But you lose a lot of body language and emotional content that way.

Finally, in the ideal situation, a joint session can allow the parties to brainstorm together to design a solution to the conflict, rather than work at cross-purposes and in opposite directions. But it takes some time to break down the barriers of distrust and hostility that prevent parties from working together.

Eventually, the lawyer who adamantly told me at the beginning that he was opposed to joint sessions became so curious about what was going on in the other room, that he finally decided he wanted to go in and meet everyone, and convey to them some of the things that were motivating his client. And he did. And we eventually settled the case. With only a small amount of chest-thumping.