Thursday, February 11, 2016

Neutrality

Neutrality is a cherished concept in mediation, but the term is interpreted differently by different mediators. Some take it to mean being strictly impartial and fair toward both sides in a dispute, in the way that a judge should not let his or her biases affect the outcome, or show favoritism toward one side or the other. I take it to mean being indifferent toward the outcome of the process, leaving the parties to achieve a resolution acceptable to each side, but assisting both sides in satisfying their interests to the greatest extent possible. To do that mediators play a different role than judges or arbitrators, at times coaching one side or the other on their negotiating tactics, and at other times playing the devil's advocate. It's more of a shifting partiality, than an attempt to remain impartial.

That is why the ideal mediator does not necessarily resemble the image of blind justice, holding a scale that awaits the evidence to be piled up on each side. The ideal mediator is more likely to be someone who each side thinks the other side will listen to. In some cases, that ideal mediator might resemble a judge or other authority figure, if each side thinks the other is prone to respect such authority figures. In other cases, it might be best to bring in a friend of the other side, or someone with similar background and sympathies.

These thoughts on neutrality were brought to mind by today's story of the resolution without further bloodshed of the stand-off at an Oregon wildlife refuge between the federal government and so-called militia members who had seized the facility as a protest. It turned out a Nevada assembywoman named Michele Fiore played a critical role in talking some of the protesters into surrendering to federal authority. Ms. Fiore is not someone one would think of as a "neutral" party in the dispute, being famous for posing with guns and taking outspoken conservative positions. But she was someone the protesters viewed as sympathetic to their cause, someone they would listen to, and someone they felt they could trust. Her role was to assure the protesters that they could trust the government enough to lay down their own weapons and allow themselves to be taken into custody, and that in return they would not be harmed.

Certainly the FBI must have used a lot of tactics well known to negotiators and mediators in bringing about a peaceful resolution of this dispute. But when it came to finding someone who could act as a "neutral" between the government and the protesters, Michele Fiore fit the bill well.

Friday, January 15, 2016

The Hateful Eight

Are there negotiating lessons one can learn from the world of Quentin Tarantino? Mediators tend to believe that if we encourage parties in conflict to continue talking even when resolution seems unlikely, they will eventually reach a level of common understanding that will enable both sides to find an acceptable way out of conflict.

Films like The Hateful Eight and most other Tarantino films, severely test that assumption. The characters jabber endlessly. They examine each problem in excruciating detail. They lay out all of the various scenarios for escape from their predicament (their best alternatives to a violent outcome). At one point in The Hateful Eight, a character is jumping to conclusions about which of the three guys lined up against the wall might be responsible for poisoning the coffee. Sam Jackson's character tells him to slow it WAY down. He does not believe you can short-cut the process of detailed examination of all of the evidence. He wants to talk some more. And eventually we find out that nobody has been telling the truth, and nothing is exactly as it seems to be.

But all of this talking cannot save the characters in Tarantino's world from their fates. Anyone who has seen his previous films knows that this one is likely to end with an explosion of violence. Once in a while, the hero in a Tarantino movie is allowed to ride triumphantly off into the sunset, but only after vanquishing all of his or her enemies. More often, all of the characters in these films are doomed. There is never anything like a "win-win" solution available. Only "win-lose" or "lose-lose."

So is there a point to all of the ceaseless chatter in these movies, if negotiated resolution to conflict is impossible? At the very least, it is usually entertaining. No matter how talky or long these movies are--and they are all talky and long--I am rarely bored watching a Tarantino movie. Maybe because the tension of a violent resolution to conflict is always present. But in addition to having entertainment value, all the talk still seems to have another purpose. Understanding the sources of their conflicts, and the possible means of escape, is still important to these characters. They are not allowed to die in ignorance. They must meet their fates fully informed of the circumstances. And that gives them a certain level of dignity, and proves that there is value in talking a problem out fully, regardless of whether or not that problem can be resolved by negotiated agreement.

Monday, November 30, 2015

Spotlight

Confidentiality agreements often serve the short-term interests of the parties to a particular dispute: An enterprise accused of wrongdoing has a strong interest in keeping its alleged wrongful actions secret, both to protect its reputation and to dissuade others from suing. At the same time, individuals bringing such accusations have an incentive to agree to requests for secrecy, which are often demanded in exchange for settlement payments.

In the new movie Spotlight, in which a motion to unseal court records plays a central part, the practice of entering into confidential settlement agreements providing a small amount of compensation to victims of sexual abuse by Catholic priests, is portrayed as a shameful means of allowing the Church to cover up crimes for decades and keep predators at large. The legal system's complicity in the sort of confidentiality that allows evidence to be suppressed, criminals to be spirited away, and victims to remain in the shadows, is portrayed as an obstacle that must be overcome in order to allow justice and healing for abuse victims.

It is important, however, to distinguish the kinds of protective orders and confidentiality agreements that had to be defeated in the Church abuse cases, from the need to conduct settlement negotiations in private, without fear that admissions or offers might be used against parties in that particular case.

I have been involved in efforts to protect the confidentiality of settlement negotiations--mediation confidentiality in particular. Confidentiality is essential to the practice of mediation and to settlement negotiations in general, as the evidentiary bar against the admissibility of settlement negotiations encourages parties to speak candidly without fear that their offers and admissions may be used against them in later court proceedings. Without the shield of confidentiality, parties might be reluctant to engage in spirited settlement negotiations, and cases might be less likely to resolve in a consensual manner. Without the protection of confidentiality, parties are more likely to be forced into adversarial confrontation, and less likely to find a cooperative means of obtaining resolution. Without an evidentiary rule against the admissibility of settlement negotiations, parties are more likely to move back toward needlessly destructive litigation.

While the confidentiality of settlement negotiations generally deserves strong protection, courts must still be mindful of the over-use of protective orders and other efforts to hide wrongdoing in individual cases from public view. This is where the courts have to balance the interests of the public, including the interests of other potential victims of wrongdoing, against the desires of the parties in a particular case to keep facts out of the public view. Confidentiality clauses in settlement agreements are even more problematical than the use of protective orders, because usually judges have no opportunity to oversee their use, and parties are often too willing to agree to them. The situation in Spotlight illustrates one scenario where the routine use of confidentiality clauses may not have served any of the parties' long term interests. Parties and their attorneys should therefore be mindful of the potential over-use of protective orders and settlement confidentiality provisions, which can create traps even for the parties in a particular case, and which may also harm the public interest.


Saturday, November 14, 2015

SCMA fall conference recap

Congratulations to outgoing president Robyn Weinstein, incoming president Floyd Siegal, conference chair Hass Sadeghi, executive director Anne Sawyer, and all the other volunteers who helped create the Southern California Mediation Association's successful fall conference last weekend. The conference's theme, Conflict Revolution, made clear that our organization is moving well beyond the goal of helping people learn to mediate litigated disputes. Our goal is to change the world!

Ken Cloke
This goal was emphasized not only in panels such as the one described in my previous post that addressed new roles for mediators and mediation, but was also addressed in panels on critical race theory, LGBT rights, and other timely topics. Peter Robinson kicked off the conference with what amounted to a synopsis of an entire course on apology and forgiveness. And Ken Cloke closed the event by expressing the view that global problems from civil war to climate change can only be solved by the application of principles learned by mediators.

It's been my privilege to serve on SCMA's board for the past five years, including as president last year. It's a committed group of idealists filled with positive energy and intent on changing the world, and I have gained a lot from knowing these people.

Sunday, November 8, 2015

Urban Projects

Streetsblog
There is a half-finished Target store in my neighborhood that stands as a perfect metaphor for the problems with using litigation as a means of resolving developers' and the community's interests in urban projects. With construction halted because of claimed height violations, the unfinished building has been left in limbo. The community now has to live with something that is ugly; that is enormously wasteful; and that has been sitting there unfinished for a long time. Its continued unresolved status satisfies neither those opposed nor those in favor of the project.

I used that metaphor while introducing one of the workshops at the SCMA fall conference yesterday, a workshop on urban projects organized by Noah Stein. The panel brought together developers, community group leaders and an official with the MTA to talk about how mediation might be introduced into the planning and approval process to alleviate the adversarial nature of the current system. It was pointed out that zoning codes are so complex that variances are almost invariably needed, leaving developers at the mercy of changing political winds, as well as at risk of penalties for violations. There was also general agreement that the current CEQA process, which dates back to the 1970's, is in need of reform, if not complete overhaul. It leaves developers and planners after all of the environmental reviews and comments, still at the mercy of one opponent of the project willing to resort to litigation challenging the project's approval on the grounds that some negative environmental impact of the project was not fully considered.

So perhaps structural changes in the law are needed before we can design a more collaborative rather than adversarial type of planning and approval process. Still there was general agreement that even within the current system it is important for planners and developers to work with community groups and property owners early in the design process, so as to gain the community's trust, and to help create projects that will be more beneficial to all of the various competing interests. While it might be too late effectively to mediate disputes among project proponents and opponents after litigation has commenced, there does seem to be a place earlier in the design and planning process for the kinds of facilitated dialogues that mediators are trained to conduct.

Tuesday, November 3, 2015

Bridge of Spies

The new Cold War thriller Bridge of Spies, based on the true story of the prisoner exchange for captured U2 pilot Francis Gary Powers, shows an attorney living up to the highest standards of advocacy as well as negotiating ability. The movie's lawyer-hero, James Donovan (played by Tom Hanks) is first seen as a typical insurance company lawyer making clever legal arguments about whether an accident involving five motorcyclists should be considered a single "incident." Even when doing that, however, Donovan is able to impress by tying those arguments to a higher purpose.

When Donovan is asked to defend accused Russian spy Rudolf Abel, he takes his ethical responsibilities, and his devotion to the Constitution and to his client's interests, as seriously as any lawyer would wish to perform them, and performs to the highest professional standards, despite pressure to compromise those standards for the sake of gaining an advantage in the Cold War game of espionage. Compare James Donovan to the fictional Atticus Finch, an idealistic role model who has served as an inspiration to many lawyers. Both took on hopeless cases, and both strove to uphold the rights of a reviled defendant. But it must be said that although Finch showed courage in exposing the community's racism, his shaming of the jury may not have served his client all that well in the end. We should probably admire the real-life hero Donovan even more, because he took on the defense of a client who was probably not so innocent, and came up with the winning strategy that saved his client's life.

At the same time, like Atticus Finch, Donovan reminds the community of the Constitutional ideals they are supposed to stand for.  At home, Donovan has to endure the disapproval of his neighbors for taking on the defense of a hated spy. But all it takes is a tour of postwar Berlin with our hero to appreciate his viewpoint that upholding the rule of law is the only thing protecting us from descending into the fear, crime and oppression prevalent on the other side of the Iron Curtain.

Not only does Donovan turn out to be a highly skilled trial lawyer, he also shows himself as an effective negotiator. He does that by knowing both the limits and the extent of leverage he had over his adversaries. Donovan also knew his client well enough to understand his value to the Russians, and had built up the kind of trust with his client that enabled him to achieve even greater success in the end.

All in all, a perfect combination of street smarts and idealism. And a perfect combination of knowing what it takes to win, and what it takes to negotiate a mutually beneficial result with one's adversary. Truly an inspiring story.



Saturday, October 31, 2015

Car wars

An ongoing contentious conflict in Los Angeles, that affects every resident, is the conflict between automobile drivers and other users of the city's public spaces. This city, which has been designed in deference to the automobile since the 1920's, is facing new challenges from pedestrian, bicycle and public transit advocates seeking to reclaim a larger share of the city streets. Surprisingly, and without much public attention, this car-centric city has already adopted a new policy giving substantial ground to these advocates.

By a 12-2 vote, the City Council recently adopted what is called the Mobility Plan 2035, which calls, among other things, for putting many city streets on a "road diet" to allow more room for bicycle lanes and sidewalks. A few city streets have already been re-striped to add bike lanes and reduce the number of lanes available for cars. Advocates of the "road diet" approach claim that removing traffic lanes, and improving access to the city's amenities by other means, will improve the quality of life and actually improve traffic flow in many areas. (Some of these arguments are summed up in this LA Times article.) If you accept the premise that traffic is caused by having too many cars trying to use the available street space, then the best way to reduce traffic is to adopt measures aimed at reducing the number of cars. The alternative approach of attempting to accommodate increased traffic by building even more roads, has been shown time and again to encourage greater reliance on cars, and results in even more traffic.

Drivers naturally feel threatened by the new policy of re-allocating scarce road space away from cars. They are skeptical of the argument that they and other drivers will be coaxed out of their cars by these new measures, and they can be expected to fight them vigorously. An organization called Fix the City that claims to represent the public interest (though it has no members) has already filed a CEQA lawsuit attempting to reverse the city's adoption of its new mobility plan.

So this conflict is likely to play out in court, where instead of being able to engage in an orderly process of determining a reasonable allocation of competing uses for public space, the parties will instead be forced to argue about whether the city complied with applicable environmental regulations and statutes.

The conflict will also play out in contentious public meetings, where advocates for motorists, public transportation, bicyclists and pedestrians will see who can shout the loudest. As another LA Times column points out, however, it is only through greater public involvement that all competing concerns can be properly addressed. And public meetings can once in a while provide an opportunity for eloquent voices to be heard, as in the video clip below, where 11 year old Matlock Grossman shames the drivers who curse at him merely for trying to ride his bike to school.




Instead of turning this debate into a legal problem that frames the issues in a way that may not directly address all of the stakeholders' real concerns, or into a zero-sum power struggle in which the demarcation of every inch of pavement is seen as a gain or loss for each side, what is needed is for all participants in this debate to try to better understand one another's perspectives on this important issue of the allocation of public space. We should all be able to do that, since we all find ourselves using a variety of modes of transportation at different times. But if you are viewing the problem of traffic congestion only from behind the windshield of your own car, you might have trouble seeing how you yourself are contributing to the problem, or appreciating how the speed and noise of cars can affect others who are trying to cross the street or use the sidewalks. With a better understanding of other perspectives, we should be able to work together to design solutions that improve everyone's ability to use public spaces. After all, we share a common interest in making the city streets and sidewalks safer, more usable and pleasant places to spend our time.

Monday, October 12, 2015

Quartet

Tunisia, where the Arab Spring started, is also the first country to emerge from its revolution with a genuine commitment to democracy and the rule of law. This outcome may be attributable in large part to the work of the National Dialogue Quartet, a group composed of four organizations: the General Labor Union; the Tunisian Confederation of Industry, Trade and Handicrafts; the Tunisian Human Rights League; and the Tunisian Order of Lawyers. When Tunisia appeared in danger of falling into civil war, these organizations banded together and persuaded the Islamist and other parties to agree to a framework for negotiations that would lead to a more legitimate and pluralistic government.

The quartet's work illustrates two techniques favored by mediators: (1) acceptance by all of the feuding factions of a set of ground rules, and (2) encouragement of continued dialogue among all of the affected parties to the conflict.

Last week, the Quartet was awarded the Nobel Peace Prize.

Upon learning of the award, the president of the Tunisian Order of Lawyers, Mohamed Fadhel Mahfoudh, stated: "I think this is a message to the world, to all the countries, to all the people that are aiming for democracy and peace, that everything can be solved by dialogue. I also think that it this a message for political parties engaged in political conflicts that everything can be solved with dialogue. Everything can be solved in a peaceful climate. To engage with weapons does not lead anywhere."

New York Times

Friday, October 9, 2015

SCMA fall conference

The Southern California Mediation Association has announced the schedule for its annual fall conference in scenic Malibu, California on November 7, 2015. This year's theme is "Conflict Revolution: Mediators as Agents of Social Change."

The website describes the focus of the conference this way:
Today, in addition to the role they play helping to resolve legal disputes, mediators regularly serve as educators, executive coaches, facilitators, leadership trainers, ombudsmen, therapists, business consultants, and architects of dispute resolution programs at all levels. In today’s inter-connected world, there are numerous opportunities for mediators to support societal change through peaceful dialogue. 

This year's conference will include workshops on LGBT rights, race relations, urban projects, health care, and corporate governance, in addition to more nuts and bolts offerings on mediating family law, real estate, employment and other kinds of legal disputes. It promises to be a very exciting event.

Register here.

Wednesday, September 30, 2015

Days of Dialogue

I have had the opportunity recently to act as a facilitatator at a couple of the Days of Dialogue events taking place in Los Angeles this year. Taking a contentious topic--the future of policing--that has been debated around the nation in a confrontational fashion, this program demonstrates another way the issue can be addressed. The program brings together police officers, community leaders, students, and other interested and affected residents of the city to sit around small tables exchanging ideas and experiences related to how policing is and should be conducted.


The organizers of these dialogues have promoted them as a starting point for action and change. And it's certainly legitimate to view the process of listening and trying to understand different perspectives as a first step in helping to craft better policing practices. But the dialogue could also be viewed as an end in itself. The mere fact that people can engage in reflective communication about a divisive issue is what brings about change. By participating in these kinds of dialogues, we have an opportunity to gain some appreciation of the challenges facing police officers. And police officers have an opportunity to gain a better understanding of how they can be viewed sometimes as protectors and sometimes as threats to the community. Biases can be exposed; historical perspectives can be shared. Just by sitting around tables and talking with random people of different views, we may change more attitudes than can happen when opposing factions only shout at and confront each other.

(But see my post on a black lives matter protest I witnessed this summer, where I argued that carefully-staged confrontations can also be effective in changing attitudes. Protest marches may be needed sometimes to call attention to an issue, but constructive dialogue is also needed to help resolve conflict.)