Thursday, May 30, 2013

Tells

When I was in high school, I had a chance to see the Amazing Kreskin perform his "mind reading" and similar feats in the school gym before a large audience. One of Kreskin's signature stunts is to ask the event organizers to hide his check anywhere in the room where he is performing. If he fails to find it, which apparently hardly ever happens, he forfeits his fee. I still remember watching Kreskin run up and down the risers supposedly drawn by the mental waves he was feeling, until he inevitably found what he was looking for. I can't say for sure how he does it, but it seems likely that in addition to any psychic emanations he might have been picking up, he was reading a lot of highly visible clues from the facial expressions and body language of more than a thousand people in the gym, all of whom knew exactly where the check was hidden.

In mediation, we have two forms of confidentiality, one of which I support, and the other I have some skepticism about, just as I am skeptical of Kreskin's supposed psychic powers. The first confidentiality rule in mediation is that nothing said in the course of a mediation may be quoted in subsequent court proceedings if the case does not settle. There are some questions about the scope of this kind of confidentiality, but in general the rule is easily understood and makes perfect sense. If we want to encourage participants in mediation to be candid about their mistakes and their willingness to make concessions to the other side, we cannot allow adversaries to use those admissions against them in court.

The second kind of confidentiality allows mediators to keep secrets revealed by one side from the other side.  Generally, participants in mediation value their ability to engage in what in court would be called ex parte communications with the neutral. Parties like to submit briefs to the mediator labeled CONFIDENTIAL, even when virtually all of the information in those briefs is already known to the other side. They like to share with the mediator the bombshells they intend to drop on the other side if the case goes to trial, and ask the mediator not to make any use of that information. Oftentimes parties actually want the mediator to convey that kind of confidential information to the other side, but to do so in an oblique way, similar to the way the body language of the audience in my high school gym conveyed the location of Kreskin's check to him. Sometimes they want the mediator to be even more direct, by telling the other side something like, "the other side has some information that might be devastating if they use it effectively at trial, but they shared it with me in confidence so I am not allowed to tell you what it is." In that way, the secret trial bombshell might have even more power than if the evidence is revealed.

In any case, people should understand that it's not entirely possible for a mediator who is also a human being to maintain absolutely the confidentiality of information that is conveyed to him ex parte. In fact it is probably next to impossible for a mediator to do that. Poker players all recognize this truth. Even the best of them often show up at tournaments wearing elaborate sunglasses and hats. They understand that their facial expressions and gestures can inadvertently reveal the contents of their hole cards, even while they are trying to keep that information secret. They also deliberately practice deception, otherwise known as the bluff. In mediation, parties and mediators also commit both deliberate deception and unconscious reveals of confidential information. We can convey information with a wink or with a stern face. No matter what expression we assume, we might be sending a false signal, or committing an unknowing tell. If a party authorizes me to convey a particular offer to the other side, but also privately tells me that they can do somewhat better than that offer, I am not going to reveal directly the limits of their authority, but I am probably going to--either deliberately or perhaps inadvertently--convey their offer in a way that suggests that the offer is not final.

In other words, the second type of confidentiality cannot and should not be relied upon entirely. Any mediator who tells you that he will hold information you provide him in strict confidence and will not divulge it to the other side is either fooling you or fooling himself. It's not possible to guarantee that. Moreover, the whole point of revealing confidential information to the mediator is that parties want the mediator to use that information somehow to further the purposes of the mediation, maybe not by repeating it directly, but perhaps by conveying it  in a more subtle way. At the very least, parties interested in an evaluative-type mediation are asking the mediator to take confidential information provided by each side into account in determining a value for the case, and they want that evaluation conveyed to both sides. Otherwise, there would be no point in providing confidential information to the mediator in the first place.

Anytime we are withholding information, we are engaged in a form of deception. Whichever of the parties are being deceived--and that usually means both sides--are going to do their best to find out the truth. And generally none of us can help allowing some of that truth to be revealed. That means nobody can entirely trust the mediator, or themselves, to keep from revealing in some manner information that they are supposedly holding in confidence. And generally that is the way parties should want it.

Thursday, May 23, 2013

Intentional conversations

A friend of mine, Hoyt Hilsman, runs a program called the Intentional Conversation, sponsored by Marymount College. I finally had a chance to participate in my first one of these events this week. The design of the  program is deceptively simple. You enter a large space with a lot of other people, mingle a bit and get some coffee. Then you are assigned to a table, as if you are attending a wedding or a banquet. That becomes your table for the day, which enables everyone at the table to get to know one another fairly well. Everyone at all of the tables is given the same topic and some questions to stimulate discussion of the topic. So there are a lot of conversations going on at once, but you're not really conscious of what is happening at all the other tables, because you stay focused on the discussion at your own.


Other than allowing people of different backgrounds to connect and share experiences and ideas relevant to the topic, these conversations have no particular agenda or goal. At the end of the day, we have not solved any problems; we have no policy proposals to present; we have not resolved any debate topics. Instead, a leader at each table simply summarizes parts of the conversations that occurred at each table, enabling everyone to see some similarities in the discussions, and also how the different tables often veered in different directions.

I found the format fascinating, because it resembles discussion groups I have observed in ADR demonstrations. (See also my previous post on the 1000 tables event in Israel.) It's inherently a non-adversarial format, in contrast, for example, to a leader presenting a topic, and being challenged by the audience; or a debate, in which opposing factions square off as in a courtroom. And perhaps because there is nothing at stake in these conversations, other than participating in the exercise of listening to a variety of different perspectives on a topic, and contributing one's own perspective; what results is a remarkably civil discourse. Another feature that makes the format work is that we spent the first hour or so simply introducing ourselves to everyone else at the table, talking about our careers, our families and our interests in life. In that way, we established personal connections with others at the table that allowed us to respect one another's viewpoints. Also, because we were encouraged to bring our personal experiences into the discussion of the topic, rather than approaching it as an academic exercise, each person's point of view is more easily validated.

Think about the methods that activists typically employ to accomplish some policy objective or another: a march, a demonstration, a lawsuit, a boycott. All of these methods are inherently militaristic in nature. All of these methods, even when they mobilize and organize supporters, usually provoke, and may even stimulate opposition. Contrast those kinds of tactics with a process of engaging people in small groups to share their personal experiences, discover their common interests and appreciate their differences. Out of that kind of process comes genuine dialogue and greater understanding. That is the promise of small round tables.

Sunday, May 19, 2013

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.

Wednesday, May 8, 2013

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.