Wednesday, January 29, 2014


In the climactic scene in the new movie Philomena (the title character played by Judi Dench), the two protagonists confront some of the Irish nuns who forced Philomena and other teenage girls to give up children born out of wedlock. The journalist Martin Sixsmith, played by Steve Coogan, has only harsh words for these nuns, angrily condemning them for their lies and brutality. Philomena, on the other hand, who suffered most directly from the sisters' having wrenched her child from her, turns to one of the nuns responsible for her treatment, and says "I forgive you."

Both, it seems to me, are valid and understandable reactions. The journalist will channel his anger into writing a devastating exposé of the church's harsh practices. He needs that anger to fuel his fire. But the victim, who has even more reason to feel anger and to demand compensation or retribution, rejects that approach, telling the journalist she does not want to live like that. Philomena needs to forgive in order to find peace, while Martin is not particularly interested in finding peace. He is seeking a different sort of resolution.

Conflicts can be resolved by determining retribution or compensation. Or they can be resolved by reconciliation and redemption. The first method seems more characteristic of the traditional justice system, while the second more characteristic of a mediated or collaborative or restorative process. But mediation is flexible enough to handle either sort of emotional reaction to conflict. A mediator can recognize and validate an angry response, and can help the victim obtain some measure of compensation for her injuries, or perhaps help an aggrieved person see that the case might not be quite as black and white as they think. A mediator can also help the parties, if they choose, to seek and accept forgiveness.

Philomena's choice shows uncommon wisdom. She understands that anger is a destructive emotion that the victim carries. Most of the time, it hobbles the person carrying the anger more than the target of that anger, who only becomes more defensive and self-righteous in the face of anger, a reaction perfectly displayed by Barbara Jefford, the actress playing Sister Hildegarde near the end of the movie. Forgiveness, on the other hand, silences and shames the wrongdoer. Philomena's forgiveness makes herself large and Sister Hildegarde small. For those reasons, it is not surprising that a lot of mediators make efforts to achieve forgiveness and reconciliation. But some people, like Martin Sixsmith, want to hold on to their anger, and they are entitled to do that. Conflicts can still be resolved without requiring them to let it go.

Wednesday, January 22, 2014

Choosing a mediator, part 2

Assuming you have an idea of the qualities you are looking for in a mediator, how do you go about locating a mediator who fits the bill?  Your telephone and computer can lead you to much more comprehensive sources than will be found on the list that your colleague down the hall keeps in his top drawer. You can always call one of the commercial provider organizations, and they will be happy to send you a slate of resumes of the members of the panel. You can Google various search terms that could direct you to the type of mediator you are looking for.

If you want something more organized, there are a number of online directories available. Those who were accustomed to relying on the court panel, especially the party select option, might find some of the features of these directories familiar. Most allow you to search for a mediator by geographic area, by legal subject matter, or other criteria. Standards for inclusion in these directories will vary. Some require their members to pass some sort of screening process. Others accept payment for listing. And still others are open to all, but provide enough information to allow users to get some idea of the qualifications of the panelists. Some of these sites have a particular focus, such as real estate or entertainment or community mediation. Others are more oriented to commercial or high dollar value disputes.

For example, the SCMA Select a Mediator directory, with which I am most familiar, is limited to members of the Southern California Mediation Association who can demonstrate comparable qualifications to those formerly required for listing on the LA Superior Court mediator panel. It includes a wide range of mediators, both lawyers and non-lawyers, with experience in a large number of substantive areas, from neighbor disputes to family law to complex commercial or personal injury matters. This directory also allows searching by three tiers of rate ranges, and identifies mediators willing to work at reduced rates on smaller cases.

After conducting a search for mediators on one or more of these sites, parties can usually browse through the biographical and other information supplied by mediators to get more detailed information usually supplied by the mediator, about their backgrounds, level of experience and their mediation styles. The next step might be to interview several mediators over the telephone, to find out how they might approach your case, and ascertain their availability.

Here are the major free online directories that are particularly useful in California:

SCMA Select-A-Mediator Directory

The Mediator Registry

Mediator Directory

Courtroom Insight

American Arbitration Association Mediator Profile Search

California Lawyers for the Arts - Dispute Resolution Program

California Assn. of Realtors’ Mediation Center for Consumers

CA Dept. of Consumer Affairs List of Local Mediation Programs

The National Academy of Distinguished Neutrals

Los Angeles County Bar Assn., Center for Civic Mediation

San Fernando Valley Bar Assn. Mediator Directory

Happy hunting!

Saturday, January 18, 2014

Choosing a mediator, part 1

In Los Angeles County, where the court is no longer assigning mediators, attorneys who used to rely on the ADR panels might be feeling a bit at sea. One reason is that many attorneys appreciated the court's service in saving them the bother of having to choose a mediator. That way attorneys didn't have to admit to their adversaries that they might be interested in settlement. They didn't even have to try to reach agreement with opposing counsel on how and where to conduct mediation. They didn't have to admit to their clients that they might actually want to let go of their dog of a case. If they wanted to, they could blame the court for forcing this procedure on them, and tell their client that mediation is simply another hoop that the court was making the parties jump through, and is probably a waste of time.

The removal of court-ordered mediation shatters these illusions. Now lawyers have to admit to themselves, and inform their clients, that they should consider a mediated settlement. And they have to actively get involved in the selection of a neutral.

This can be a scary and unpleasant prospect. Attorneys are often reluctant to  initiate a conversation with opposing counsel about finding a neutral acceptable to both sides. The distrust and bad feelings on both sides can make that a difficult discussion. Moreover, the kind of conversation best suited to choosing a mediator can be quite different from the adversarial nature of counsels' prior dealings. Prior to being sent to mediation, parties could argue and disagree about everything, such as motions addressed to the pleadings or discovery disputes, and attorneys could rely on the court to resolve those disagreements. Without court-ordered mediation, there is now no one to choose a mediator for the parties. If the parties want to mediate, they are probably going to have to agree on a mediator all by themselves. Ironically, the removal of ADR from the courts might have the effect of encouraging attorneys to adopt a more collaborative approach toward resolving their dispute--because they now have to choose their own mediator--than they did previously when the court did all the work for them, allowing them to maintain an adversarial posture.

Now a lot of attorneys--those who have always disdained the court panels of randomly-assigned neutrals--already have plenty of experience choosing a mediator. But have they really thought through the best way of going about it? Some attorneys like to leave the choice up to their adversary, on the plausible theory that their adversary is more likely to listen to someone they like. Others will look at anyone their adversary suggests with great suspicion, on the equally plausible theory that anyone their adversary thinks is good for their client, is probably bad for the other side. Very often, attorneys will just ask their colleagues down the hall to recommend someone, or vet the names of prospective mediators with colleagues who may have very little experience with those names. They might choose based on geographical proximity, or subject matter expertise, or some other system that doesn't require much thought. They might have too limited a list of candidates, or limited experience with the candidates who are suggested.

"The Usual Suspects"

A better method might require counsel to think about what kind of person might have the most effect on their own client's thinking about the case, and on their adversary's thinking. They might think about using a mediator who takes both parties out of their own comfort zones. They might need to collaborate with opposing counsel about what kind of person that might be.

In some cases, the parties might need to hear an authoritative-sounding opinion from a judge or other evaluative-type mediator to shake the parties out of their reluctance to let go of their assumptions. In others, the parties might be better off with a more facilitative mediator who will help them think about how best to satisfy their underlying interests.

One way to approach the selection of a mediator is to try to identify the problem that is keeping the case from being resolved--whether it is a factual disagreement, a disagreement about the law, or an emotional issue--and then think about the type of person who can best try to remove those impediments. Attorneys might be well served by having a candid discussion with opposing counsel about the factors that are causing each side to view the case the way they do, and about what approaches might cause the parties to look at the case differently.

When counsel start to think about cases in those terms, they've already gone a long way toward helping the mediation process work better. Because by doing that, they're starting to think like mediators themselves, and are helping to work toward agreements large and small that will move the dispute toward resolution. In other words, if the parties use the right process for choosing a mediator, a process that itself helps find out what needs to be done to resolve the case, then the act of choosing a mediator can by itself bring the case a lot closer to resolution.

Sunday, January 12, 2014


I recently joined a psychological study, now in its third year, called the Good Judgment Project. The project asks groups of people of diverse backgrounds to make predictions about the the occurrence of various events, mostly in the realm of foreign affairs. This study has already had remarkable success in forecasting the likelihood of various world political and economic events, in contrast to the often dismal record of even highly renowned individual experts and pundits. Similarly, various trading exchanges that allow the public to purchase (with real or imaginary money) interests in various possible outcomes, have also had notable success in accurately predicting election results and such. These kinds of experiments demonstrate something about the wisdom of crowds.

But the Good Judgment Project might demonstrate more than the value of harnessing the wisdom of crowds. In the training materials I had to read to participate in the project, there is a great deal of emphasis on using a collaborative approach to working on problems as a team. The project is designed to foster competition between teams, and even competition among individuals on a team. But team members are also encouraged to share information freely with the team, to rely on the strengths of various members in different topics, to explain the basis for their judgments and comment on the judgments of others, to reveal to others the extent and limitations of each members' knowledge of various topics, and to listen respectfully and take into consideration the diverse opinions within the group. Each team also has a facilitator to assist the team with developing the most productive strategies for answering the questions being posed to all the participants in the study. So far the results of the competition suggest that teams that communicate effectively do better in the competition. Teams that have more internal disagreements may also perform better. Thus, conflict does not impede success. It's how you manage that conflict that matters.

The materials teach that constructive conflict promotes accuracy, while destructive conflict just makes people angry and defensive. Teams that did poorly in the first rounds of the competition, and that created unhappiness among team members, tended to resort to blaming individuals in the group for problems. They also ignored problems in the group, and also allowed negative emotions to fester.

The results so far would seem to suggest that a process in which each competing point of view tries to prove those who disagree wrong, while digging in to their own positions, is going to be less successful in accurately predicting outcomes than a process in which people with divergent points take account of conflicting forecasts, respectfully point out the flaws in one another's analyses, and work together to solve a problem.

Readers of this blog can probably see where I am going with this analogy. Typically, in a litigated or other highly-contested dispute, both sides are highly invested in proving their own positions right and unwilling to credit the other side's point of view. To the extent parties in destructive conflict do listen to the other side, it is mainly with a view toward buttressing their own position so as to counter the other sides' arguments, or constructing ammunition to throw back at them. As a result, neither side is in a very good position to make an accurate prediction about the likely or best resolution of their conflicting positions. Both are apt to over-confidently predict their own sides' success. And although a neutral, whether a judge or mediator, can be brought in to try to make a more objective evaluation after listening to the exaggerations being tossed out by both sides, that neutral still may not be working with the best information available. Research seems to indicate that a more effective process would encourage both sides to work collaboratively to explore the strengths and weaknesses of their initial assumptions. That kind of process will probably make more accurate predictions, and also seems more likely to arrive at solutions that are more fair and more satisfying to both sides.