Wednesday, July 24, 2013


I remember reading a piece by a newspaper columnist who described the process by which someone in that field can finally claim to have mastered the trade. The aspiring newspaper columnist starts with a head full of ideas. He might even have rough drafts or outlines for many weeks’ worth of columns in a bottom desk drawer. But after about a year of doing the column, all of those ideas are going to be exhausted, and the columnist will have nothing left in the storehouse to draw from. Around that time, the columnist is going to be facing a looming deadline with no idea what to say. And that is when any newspaper columnist worth his salt begins to prove that he knows what he is doing. The columnist still has to file the column no matter what.

I can relate to this analogy because I have been publishing this blog for about four years now, which I try to update weekly. I live in fear that I will run out of new ideas.

More to the point, however, the position of the writer on deadline with no idea what to put on paper might also resemble the position of a mediator in the midst of a broken down negotiation who has run out of suggestions. Getting beyond impasse is a popular subject for mediation training, and most mediators have listened to lots of talks filled with tips and tricks for keeping the mediation going when the parties have just about given up and are heading for the door. Lots of these techniques can be effective. Every mediation trainer will tell you that it’s good to have as many tools in your toolbox as you can because you never know for sure what might be effective. And they are right. But what happens when the mediator has run through the grab bag of tricks, or when all the participants can smell another trick coming a mile away?

At that point, the mediator who is not willing to give up, is left only with whatever remains of the initial will to persevere and hope for success. You just have to keep going, no matter what.

I recently participated in a seminar with Ken Cloke, one of Southern California’s great thinkers and writers on the subject of conflict resolution. Ken didn’t teach this group of mediators very many new techniques for breaking impasse. He just got us comfortable with the idea of impasse as a natural state, with exploring the sources of conflict rather than simply trying to squelch it, with getting beneath the surface concerns of parties to reveal deeper truths. And he reminded us that the most important tool a mediator can bring to the mediation is your authentic self. Remain present and remain interested. Because the parties eventually run out of patience with games. Whereas if you have demonstrated that you have listened to and understand the parties’ concerns, and that you still care, they will eventually trust you to take them beyond impasse to resolution.

Or as George Burns put it, “Sincerity is everything. Once you can fake that, you’ve got it made.” But seriously, faking it is dangerous. Parties tend to figure out if you are faking it. A genuine desire to continue working the problem, even after everyone--including the mediator--has run out of suggestions, may be the only tool in the mediator’s toolbox that counts in the end.

(A version of this post originally appeared in the spring 2013 issue of ADR Times Perspectives.)

Wednesday, July 17, 2013

Criminal Justice

I try to avoid second guessing juries, even when they don't come out the way I might think they should. And I generally would not say that any acquittal in the criminal justice system shows that the system is not working. That's because our criminal justice system is supposed to be based on the premise that it is better that ten guilty men go free than that one innocent person is convicted. A wrongful conviction might be used as evidence that the system is not working. But an acquittal, even of a guilty defendant, shows the system is working the way it was designed.

But if the acquittal in the Zimmerman case can be taken as evidence that the system is working the way it is set up to work, why are so many people dissatisfied with the outcome? And even if the jury had convicted, a large number of people--different people--would probably still have been dissatisfied.

What happened to Trayvon Martin is tragic. But it was always a difficult case to prove beyond a reasonable doubt, which might be one reason the Florida prosecutors initially did not want to pursue it, until a public outcry forced their hand. In addition to the ambiguities and conflicts in testimony that make it difficult to determine exactly what happened, the case also exposed deep divides in the way people perceive dangers, in the way we decide who to empathize with, and who we fear. If you're George Zimmerman, a black teenager wearing a hood is probably up to no good. He's the "other." If you're Trayvon Martin, an armed neighborhood vigilante is someone to be feared. If we were instead talking about a white teenager being stalked by an armed black vigilante, many people's perceptions of who is one of "us" and who is the "other" would change. To the extent these kinds of biases caused Trayvon Martin's death, and might affect the way people perceive and perhaps decided this case, it's understandable that the case aroused passions.

Whenever the criminal justice system reaches a result that does not accord with the sense of justice of one segment of the community, it's not so much that the system failed as that the system is inherently limited by the biases and prejudices of the people who make the laws and decide cases. The system is designed to reflect the community's sense of justice, but when the community is divided, we are not going to be able to get results that satisfy everyone. 

The real failure in this case might might be the failure of the criminal justice system in this case to do anything to deal with the underlying causes of violence, or in any way to address the needs of any of the participants. If George Zimmerman's first request after being acquitted was to ask for his gun back, the system obviously hasn't done anything to reduce his fears, or to reduce the possibility of continued violence. And if Trayvon Martin's supporters feel that people whom they perceive as predators are being encouraged, not punished, that only reinforces people's feelings of being the outcasts and victims of a hostile society. And so this result might only perpetuate a vicious cycle of violence.

Some of these failures might be overcome if we moved toward a more restorative model of criminal justice, a movement that is gaining a lot of favor in school disciplinary systems. Such efforts would more directly address the distrust and misunderstandings that can lead to violent crime.

Monday, July 8, 2013

Select a mediator

On July 16,2013 the Southern California Mediation Association is holding a launch party for our Select a Mediator directory. This promises to be one of our biggest and best parties EVER, so please invite all your friends. The launch party is not limited to SCMA members, or to mediators. In fact, we encourage attorneys and other consumers of mediation services to come and learn more about our service. This event will take place at the Sofitel Hotel at 6:00 p.m. (MORE DETAILS AND RSVP HERE)

Created in response to the dismantling of the LA Superior Court random select and party select mediation panels, our directory represents a substantial upgrade of SCMA's member directory. It allows users to search for mediators by geographical area, by rate range, and by area of substantive expertise. The SCMA directory sets qualifications for listing that are substantially similar to those employed by the court's ADR department, but unlike the court does not randomly assign mediators. Users have the ability to peruse listings and select a mediator appropriate to their situation. Best of all, the SCMA service, at least for the time being, is completely free. There is no charge for using the directory,and no administrative fees for setting up a mediation with one of our listed mediators. Those mediators set their own charges.

In addition, many mediators on the SCMA site, have agreed to participate in a reduced rate program for cases with a value under $25,000 or in which at least one side is not represented by counsel. Participants in this program will charge 50% of their normal rate, or provide the first two hours of service for free.

The website directory is currently in a "soft launch" phase. That means it is already in operation but still has a few bugs, so bear with us! We plan to keep improving the website to maintain it as a state of the art directory. But the directory is only the means for showcasing SCMA-affiliated mediators. What distinguishes the SCMA directory is that it offers a broad range of mediators versed in a large number of areas of expertise and coming from a variety of professional backgrounds. In addition, we are promoting this directory to the courts and to the bar as an excellent substitute for the late, lamented court program. Our goal is to offer the public a large panel of well-qualified mediators that will perform mediations at reasonable rates, and operate with a minimum of rules and regulations and a maximum of flexibility and party choice.

Hope to see everyone at the launch party!

Thursday, July 4, 2013

Happy Independence Day!

On July 13, 1776, Lord Howe, who had just led the largest armada ever to have crossed the Atlantic, and whose troops were encamped on Staten Island, getting ready to crush the American rebellion, attempted to deliver a letter to George Washington. The letter proposed negotiations with a view to preventing bloodshed and restoring peace between Britain and the American colonies. But according to the account in Revolutionary Summer, by Joseph Ellis, the letter could not be delivered. Howe's emissaries attempted to give it to General Washington's representative, Joseph Reed, a lawyer from Philadelphia, in a meeting of rowboats in the harbor between the two gathering armies. But Reed refused to accept the letter because it was addressed to George Washington, Esq., rather than to General Washington, commander of the Continental army.

Timing is important in negotiations. This peace overture was probably doomed because it took place just after the colonies had formally declared their independence. Only a few days previously, on July 9, Washington had ordered the reading of the amended and approved July 4 version of the Declaration of Independence to his troops. His orders were to defend New York City from the British invasion, a task he was starting to realize was probably hopeless. Nevertheless, he could not back down at this juncture.

Recognition of the other side's status is also important in negotiations. Just as Reed could not accept the letter because it failed to recognize Washington's claim to be leading a co-equal army of an independent nation, Howe could not, consistently with his own orders, accord Washington that status. To do so would have been to surrender in advance the very principle the British were fighting for. They were in America to put down a colonial rebellion. They were not about to accept the premise that they were declaring war on another nation.

It's obvious in hindsight that George III bungled these negotiations badly. If Britain wanted to hold the colonies, they should have started negotiations much sooner, and been prepared to accord the Americans some degree of autonomy or representation in Parliament. Instead, Lord Howe made his last ditch effort to negotiate peace after the colonies had formally committed themselves to independence, was not prepared to extend any substantial concessions, and mistakenly expected that the Americans would back down in the face of overwhelming force. Because of Britain's poor negotiating strategy, and their confidence of  victory in war, we celebrate our independence every year with a bang of exploding fireworks, rather than with appreciation of the virtues of diplomacy.