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Delay in Blog Postings

Mon, 19 Apr 2010 18:48:51 -0500

Dear Subscribers,

I am disappointed to report that I have been unable to post any articles on my blog for over two months. My health has taken a series of twists and turns, including the development of pleurisy, which appears to be coming under control. My outlook, as always, is optimistic, but I cannot say, with certainty, when I'll be able to compose my next full article. Regardless, I hope that all of you are doing well, and I look forward to communicating with you as soon as possible!

Best regards,

Alec Wisner

Why I Mediate

Tue, 09 Feb 2010 02:27:11 -0500

{the First in an occasional series of articles)

Since I began my mediation career just seven years ago, the question that I have heard, almost continuously, from professional friends and acquaintances, personal friends, and from relatives, has been: "Alec, why in the world are you mediating?" There's always a follow-up statement, although this varies with the questioner. Some of the follow ups include:

"But I thought you were so enthusiastic about your law practice."
"But everything else you ever did paid you so much more money.
"How can you stand the stress of being involved in other people's divorces?"
"How can you stand being in the middle of an argument between two cutthroat attorneys?"
"Why don't you just retire, since you can afford to?"
"If you just open your own office, I'll be your client!"
"Don't you have enough stress in your own life?"

And the list goes on and on, interminably. After all, after very successful careers in business and at the bar, they reason, why "lower myself" to getting paid far less than I'm used to earning for the privilege of assisting people who, in many cases, don't seem at all interested in the help I'm offering them.

Good questions, all. And my answers to those questions have been all over the ballpark, from the very incisive, to the "beats the s____ out of me" variety. And part of the reason for that was that, at the start, I had a very limited and specific reason for turning to mediation.

In 1999, my father passed away. Although I had ceased working in the family business in 1996, I was still a major shareholder and derived income from those enterprises. Almost immediately, I was frozen out and my income cut off. I was told, in effect, "you may own 45% of the business, but we don't like you, so we won't buy you out or pay you a penny." And so began my personal adventures as a litigant. Including related lawsuits, the adventure didn't end until about five years later. In the process, although I was legally vindicated and was paid off, I was also emotionally destroyed by the process and came very close to losing everything that had any value to me. I enabled a number of people from those businesses to survive financially, but at a terrible physical and emotional cost to myself.

During this litigation, I attended a number of mediations as a party, rather than as an attorney. I experienced some outstanding mediators. But I also had some horrendous experiences. On more than one occasion, the mediator caucused with the other side first, and then, in caucus with my wife and me, demanded that we dismiss our lawsuit or face a malicious prosecution lawsuit. Unbelievable! My wife was flabbergasted and wanted to go to the State Bar immediately, which, of course, was out of the question. That day, I made a mental note that other litigants needed to be spared this experience.

In late summer 2002, although the litigations were far from over, I took the L.A. County Bar/DRS basic mediation training. I already knew that I was leaving my firm at the end of that year, and thought that maybe, just maybe, I would like to mediate a bit.

So there you have it. My original reason for mediating. Now from here on, this article will take an intensely personal turn. If that offends you, I suggest that you stop here.

But there is another, and very important, sidebar that I wish to discuss. I'd like to take you back to my days as an intercollegiate debater for U.C.L.A. As some of you know, in competitive debate, each team has to take both sides of the same issue. Not surprisingly, given human nature, and ego being what it is, debaters typically think that they've won virtually every round that they've debated. For some reason, I was an exception. I was always able to leave a round and tell my coach, with great accuracy, two things. I told her whether the judge had voted for or against us. Then I told her whether I thought we had won or lost the debate. I tell you this now because it illustrates two things about how I think. Even as a teenager, I could analytically evaluate something that I was personally involved in detachedly. But, more importantly, I could also evaluate the judge, him or himself. I would watch the judge very carefully as I gave my speeches and would always have a sense of how the debate was going in the head of the judge. I didn't understand it then, but I had an intuitive ability to read body language and facial expressions that would serve me well for the remainder of my life.

One reason that knowledge of this intuitive ability eluded me for so many years was that I was completely retarded in my ability to interpret social clues in my everyday life. What I did in debate was an anomaly, although I couldn't see that for a long time.

There were other skills that I had that set me off from others. From the time I was a very little boy, I felt different than all the other kids. I had trouble making friends, and I was socially excluded from parties and other normal activities. But I was always the smartest kid in the class. I never had to study, to speak of, because I had a remarkably retentive memory and, to a significant degree, thought in pictures as well as spatially.

I went through life this way. I took marginal notes during law school, didn't study for the bar exam until it was a week or so away, then, after reviewing my Gilbert's Law Summaries, said "c'est la vie," and passed it. As an attorney, my partners called me "the savant" and valued me most for my issue spotting and case writing. All very consistent with the talents I've outlined. And I was outstanding in drafting and arguing Law and Motion, again, not surprising. I again found myself quite skilled at reading the judge during my argument. But, and this is critical, my partners would NOT let me do mediations. That was because they felt that I was too conciliatory. This was because, just as I did in debate, I was quite able to and willing to see both sides of an argument. To my partners, that was a fatal weakness.

My adult life was a roller coaster of twists and turns, many of them seemingly unconnected and, to me, rather bewildering. I was enjoying the ride, but never felt that I had a complete grip on the situation.

Soon after I began mediating, a therapist suggested that I check out something called "Asperger's Syndrome." She thought that it might apply to me. Here's a brief synopsis of what I found.

According to ConnectAbility, "Asperger's Syndrome is a neurological condition on the autistic spectrum which occurs in approximately 1:300 people. People with asperger's syndrome have very good communications skills but lack in social skills."

The differences between Asperger's Syndrome and Autism are profound and numerous. The Autism Society explains the important differences between Asperger's Syndrome and Autism here: http://www.autism-society.org/site/PageServer?pagename=life_aspergers.

According to the Mayo Clinic staff, Signs and symptoms of Asperger's syndrome include:

Engaging in one-sided, long-winded conversations, without noticing if the listener is listening or trying to change the subject
Displaying unusual nonverbal communication, such as lack of eye contact, few facial expressions, or awkward body postures and gestures
Showing an intense obsession with one or two specific, narrow subjects, such as baseball statistics, train schedules, weather or snakes
Appearing not to understand, empathize with or be sensitive to others' feelings
Having a hard time "reading" other people or understanding humor
Speaking in a voice that is monotonous, rigid or unusually fast
Moving clumsily, with poor coordination
Having an odd posture or a rigid gait

There's one other factor that's not often found in the literature, but which many therapists have agreed with me about. Most Aspies (an "Aspie" has Asperger's Syndrome) have far less ability than other people to dissemble. In other words, they tend to be more blunt and straightforward. This is one of the problems that leads to their difficulties in social situations. Throughout my life, that's been one of my most obvious traits.

Well, that was a lot to swallow! Almost all of the symptoms seemed to apply to me, or to have applied to me in the past. In some cases, through very hard and persistent exercises, I learned certain skills that most of you take for granted. For example, I emphasize eye contact in my communication, but, for me, it was a learned skill. Similarly, I walked very oddly as a boy, but I worked long and hard to modify my gait with some success.

The "appearing not to understand, empathize with or be sensitive to others' feelings" symptom has been a personal nightmare. From my parents harping on that when I was a little boy up until the present, I've heard that millions of times. It took me decades to realize that, during my adulthood, those comments were, increasingly, limited to my relatives . . . usually the ones who didn't know what made me tick. I've made it a lifetime task of learning this behavior, because, indeed, it is not inborn. But, oddly enough, I think that it enhances, rather than detracts from, my mediation ability.

The reason for this is that whereas many mediators take their interpersonal skills as a given and concentrate on the case before them, I do the opposite. With my memory and retentive skills, my note taking in a mediation is minimal, especially if the written briefs are done well. Instead, a great deal of my effort is put into being sensitive, understanding, empathetic, and, when appropriate, sympathetic to each party's legal position as well as their feelings and motivations. I retain my intuitive ability to read and understanding the individuals involved and, just as I did with debate judges, trying to figure out what's motivating them and what they're likely to do with a given set of facts.

So there you have my second reason for mediating. It's because I'm an Aspie that I'm able to bring a special skill set into the room when I mediate.

I have so much more to share about this subject, but I'd really appreciate as much feedback from my reader's as possible. It will greatly help me in determining what directions to go in as I continue along this line.

Uncertainty Drives Conflict Resolution

Fri, 08 Jan 2010 20:27:54 -0500

After many years of mediating litigated cases, I find that several threads continually recur. Among the most pervasive are the following:

· Attorneys believe that their analysis of the case is superior to that of their opponent
· Parties believe that the opposing party is insincere in his/her/its position
· Attorneys believe that the opposing witnesses will be surprised by certain evidence when directly confronted by it at trial
· Attorneys believe that they will be able to communicate the “gestalt” of their case to a jury far better than opposing counsel will his or hers

1. Any dispute can be settled at any time

This is a very straightforward concept. Let’s take a personal injury case in which an injured plaintiff is demanding $150,000, but in which the defendant is not willing to pay more than $25,000. Now, let’s assume that we are totally omniscient and can, with absolute certainty, know what the result will be after trial.

In Case 1, the trial court awards the plaintiff $125,000. Now, given the costs involved in getting to and through trial in order to reach that result, I would expect that, at an early mediation, armed with the knowledge of the outcome, plaintiff might be willing to accept $100,000, believing it to be a better overall result than he/she would get at trial. And, in the same vein, defendant might be willing to pay a premium, say $140,000, to avoid spending additional defense costs knowing the final outcome. As a mediator, I would know that I had a zone of about $40,000 within which the case would have to settle. Life would be good.

In case 2, the trial court defenses the case. Now, given the same analysis, plaintiff will take anything he/she can get in settlement. Similarly, defendant might be willing to pay anything less than cost of defense, looking upon that as an overall savings. Cases like this often result in a walk away, since continuation of the litigation would be as costly to one side as the other. Again, life is good.

The point is clear: If the results were known in advance, mediation would be unnecessary; the cases would settle themselves. In that scenario, the only reason that a case might not settle would be because one or both sides made their decisions on an economically irrational basis, such as anger, revenge, or other such factors. Does this happen? It does, and it happens often. But that’s another topic for a different article.

2. Dispute participants are unduly optimistic

This is an inherent and totally predictable facet of our adversarial system. When I convene a mediation, I expect all participants to be unduly optimistic. Those who are not are truly the exceptions, in my experience.

a. Attorneys

It is a rare litigator who is not in love with his or her work. I certainly fell into that category during my courtroom days. I often wonder whether or not a litigator without that trait could be the best possible advocate. But, while perhaps a necessary component of the best litigators, it has two unintended consequences. First, the litigator will give him or herself a better chance of winning than that of an “average” litigator handling the same case. Second, the inherent optimism of the litigator, even if tempered with cautious words, often, sometimes invariably, is transmitted to the client.

b. Parties

To start with, parties believe strongly in their positions. At least, that’s my hope. And, just as hopefully, they believe in their attorney(s). Prudent attorneys always temper their language in order to avoid giving their clients any false optimism about their likelihood of success. But as we all know, many clients read optimism “between the lines,” in their attorney’s demeanor, or in any other way that justifies their own need to be optimistic. And, of course, this optimism can be further buoyed at various times, such as at deposition, where the attorney will take a particularly vigorous position as advocate.

3. Settlement value

For the purpose of this article, I am using the simpletonian method that I always used in my own practice: value times percentage of success. Using this method, a $50,000 case with a 50% chance of success, for example, has a settlement value of $25,000. Similarly, a $100,000 case with a 25% chance of success also has a value of $25,000.

4. The Index of Over-Optimism

This is a tool that I developed myself that has been useful in my own evaluation of the status of the mediation. Initially, I ask each attorney to tell me, privately of course, what his or her opinion of the likelihood of success at trial is. Keep in mind that I believe that “slam dunks” win, at best, 75-80% of the time. I then take the two numbers, add them together, and have my Index of Over-Optimism.

The lowest reasonable number would be 100%. That would be when each attorney measures the likelihood of success at 50%. In that case, the only difference would be in the valuation of the case itself, a straight distributive issue that, while challenging, would certainly be simpler to address than would inflated expectations.

More typically, the Index ranges from 120% to 160%. I’ve even had a case in which both attorneys felt 90% sure of success at trial, for an index of 180%. The Index is a measure of the degree of difficulty presented in the mediation based on the evaluation as stated by the attorneys themselves. I emphasize this because too often the percentage given does not reflect the true opinion of the attorney, but rather what the attorney wants the mediator to think. As the mediation goes on, the mediator should adjust the Index as developments change the “lay of the land.”

5. The job of the mediator

Even when all of the foregoing information is absorbed and understood, the challenge of putting it into effect remains. This is where the experienced mediator will transcend the basic training and call on his or her years of experience to use the knowledge and seal the deal.

a. Getting beyond the numbers

Emphasizing the costs of litigation is something that every mediator is taught to do in the first hour or two of training. It’s a valuable tool, but as we all know, it’s a very limited one. It doesn’t work very well with parties who don’t put a value on the costs, insurance companies in particular, and it may not work at all in cases in which substantial sums are at issue. And there’s a certain amount of resistance to this pitch, since almost all litigators have heard this argument hundreds of times already and already discussed it with their client(s). When you can resolve a case based on the costs of litigation, that’s great. When you can do it on the costs and other elementary tools, that’s great, too. But what happens when you cannot?

b. Feeding the fire

The primary reason attorneys are anxious to mediate, regardless of what they say or how they act out the outset of the session, is because, when all is said and done, they’re uncertain of the result. Paradoxically, the more certainty they’ve shown up to that time, the more worried they often are about the potential of failure and how their client will react were that to occur. My own favored technique is to use personal anecdotes to relate to the latent fear of failure in a similar situation. However you do it, the goal is to reinforce the fact that nothing is certain and that good attorneys are always bullish. A bit of devil’s advocacy never hurts, either.

In a similar fashion, many parties have never had a reality check from a disinterested third party prior to the mediation. In my experience, even after a reality check performed in a gentle manner, many parties emerge shell-shocked. I’ve watched them whisper to their attorney, and the attorney whisper back, audibly, “I’ve been telling you that all along, but you wouldn’t listen.” It happens all the time.

After feeding the fire, I find it best to step back and mollify a bit. Rather than press the issue, I tell the participants that, after all, they might prevail in the end, but, on the other hand, this might be an opportune time to cash out.

c. Forging the deal

All of the foregoing activity will often take place within the first hour or so of the process, and continue intermittently as the mediation moves forward. The deal will be forged against the backdrop that has been created through your exploitation of uncertainty. Yes, the costs of litigation, the emotional toll and all the other factors will still play a major role in your pitch, but the context in which it is received is, I think, the overarching factor in whether or not the case will settle.

In my experience, the more uncertain the attorneys and parties are about the outcome in court, the more amenable they will be to all the other solutions available to them in mediation. These solutions can include simple distributive negotiation, a mediator’s proposal, creative construction of terms, or anything else that works for the parties.

The point to take with you is this: A party that feels certain, that it has little to lose, will feel that it has little motivation to go that extra step that invariably makes mediation successful. Your job is to dispel that certainty!

Guest Blogger, Learn to Exercise Forgivness for Inner Strength

Fri, 08 Jan 2010 05:18:04 -0500

By Jane Hernishin

January 7, 10:43 AM

Las Vegas Spiritual Pathways Examiner

The weak can never forgive. Forgiveness is an attribute of the strong.
~Mahatma Gandhi~

Starting off 2010 with the Virtue of Forgiveness can start a theme of healing in your life. The New Year is a time in which new beginnings are created. Reflecting back on the life lessons of 2009 and make a conscious decision to develop new habit, gain a higher level of mastery of this virtue and create in yourself a habit of forgiveness. To withhold forgiveness from someone is to make the decision to not trust God and his messengers. Forgiveness allows the Divine to take care of the problem and allowing an individual to focus on other things that bring joy.

Forgiving as an act is faith in action and an act that will remove stagnation from an area in your life. It also encourages an individual to step back and look at the whole picture and walk in another individual’s shoes, to see their position and not judge it, but to be compassionate and put loving energy towards that person. It builds character muscle, internal strength, and is a practice that is honorable.
To forgive through silence or prayer assists in the restoration of integrity in life and in fulfillment of your own goals. It is one path which brings inner peace to the heart and soul. Inner peace is strength in quietude mixed with the blessings of Divine Love and Divine Grace.

If you cannot forgive someone for one wrong or another, then ask God and his Angels to help you grow and master this skill. This is one way to empower your own life with grace and Divine Love. After all, Forgiveness is not religion specific. It is Universal Law and ultimately beneficial in all ways.

Mediating Commercial Relationships

Wed, 09 Dec 2009 05:30:20 -0500

In mediating commercial disputes, once all of the frills are stripped away, the dispute is very typically about money. The money can evince itself in a number of ways: one side paying the other cash; one side paying the other in specific performance; one side paying the other by refraining from competing, and so foregoing potential income, and so on. But, when the dust clears, the outcome is generally that money either does or doesn't change hands.

A second characteristic of such mediations is that they're almost always distributive in nature. In many cases, the lawsuit is about one party trying to collect from another that is no longer in business. And in the others, by the time that the parties have hired lawyers, filed suit and enjoyed the pleasures of litigation, each has probably come to loathe the other in such a personal way that they'd rather do business with the devil than with each other. That's not surprising, when each side perceives the other to have broken faith, lied, cheated, and other wise proven to be completely untrustworthy. Welcome to a commercial mediation on a very typical morning

Not long ago, I walked into just such a room. The facts, while not so typical, were not too complex, either. The Plaintiff owned a wholesale warehouse, from which he sold electrical components to retailers, including the Defendants. Plaintiff told me that his cousin, who had worked for him for many years, had apparently been "back dooring" (ie. stealing) merchandise worth $300,000, and then selling it secretly to customers, including the in pro per Defendants. When the fact of the missing merchandise was discovered, Plaintiff said, the cousin confessed all, pointed to the Defendants and was fired after agreeing to make restitution. Naturally, Defendants denied all, telling me that the cousin, now an admitted felon, was giving Plaintiff this "story" to make it easier on himself.

Now a lot of questions were never addressed and/or answered, such as why the police were not brought in, but my overarching understanding is that Plaintiff wanted his money back and wanted reimbursement from his cousin, rather than his cousin in jail and the family complications that would follow.

For a few hours, we engaged in classic back and forth negotiation, but, because each side had invested in a very different reality, very little progress was made. Because Plaintiff insisted that he was dealing with thieves, he expressed an unwillingness to substantially reduce his demands, since this was a case of good vs. evil. The Defendants, on the other hand, lived in a world in which they'd been unfairly smeared and vilified, were now involved in a totally unwarranted lawsuit.

Did I accept either reality? Well, first of all, that's not my job. My usual approach might be to get each side to understand the reality of the other side, while not necessarily modifying their own reality. Here, that seemed doomed to failure, since each reality overtly required the other party to be lying. I skirted around this several, times, but was starting to run out of ideas. Then, as is often the case, a little nugget was dropped into my lap.

One of the things I always do in caucus is chat up the parties. Among the reasons I do this is because the key to settlement can often inadvertently come from the parties themselves. In this case, one of the Defendants remarked how he was especially infuriated because the Plaintiff, his brother, himself and their families had had so many fun times in the past. In other words, he felt betrayed. I had my lever!

I caucused with the Plaintiff, and after a few minutes of the usual housecleaning discussion, I casually said to him, "I understand that you had a lot of good times with the Defendants. Sitting hear today, that seems hard to believe. Is that true?" The Plaintiff sighed, and said: "Yeah. We used to go to Vegas a lot, we'd spend the holidays with one another's families. We had a lot of laughs over the years." I went on: "It's a shame those times are over, huh?" The Plaintiff agreed, but went on to say that he could never do business with the Defendants after what they'd done to him. I asked him, for the umpteenth time, whether his cousin could have been making it up, and he again said that that was impossible, but with a bit of regret in his voice.

Then I asked him the key question. I asked whether he would be willing to do business with the Defendants if, in the long run, they could repay the value of the goods and he could continue to make a profit along the way. He thought it over, consulted with counsel and then said that he would.

I caucused with Defendants, and, after a lot of wrangling, got them to agree that they'd resume business with Plaintiff and make payments toward the loss, but said that the payments were entirely dependent upon the profit they would make on their end from the product Plaintiff would provide. Several caucuses ensued, and, bottom line, both sides agreed to do $3 million worth of business as soon as reasonable, Plaintiff would bill at his lowest price, and Defendants would pay a surcharge of 10%.

At the end of the mediation, all parties were sitting together, reminiscing and laughing. It's not something I get to see very often, but I don't think you'll ever see that in a courtroom.

The Joys of Giving

Thu, 03 Dec 2009 23:43:29 -0500

At this time of year, everybody, myself included writes paeans to the gratitude we're supposed to feel during this holiday season, and opines that gratitude should not be a seasonal thing. All true, of course. But I want to remind all of us in the business of resolving conflict to be joyous in all that we give -- and not just during the holidays.

For me, mediation acts as a conduit for my spiritual self. I harness a higher power that I do not regularly have, but that I am able to use for the benefit of others. It's a power that works best when turned outward, rather than for my own, personal benefit. Many times, in the course of opening an initial mediation session, I point out that I'm basically one of the tools available to the parties that they can use to help resolve their disagreements, if that's what they choose to do. And when I say that, I mean it from the bottom of my heart. What goes on within the mediation rooms may include very evaluative input from me, but if I'm on my game, that input is provided for the benefit of the party to whom it is given, rather than for my own personal gratification. I try to be sure that I don't dispense evaluative information with an ulterior purpose, such as self-aggrandizement, manipulation of the outcome, and the like. I can't swear that I always succeed in drawing this line, but I can guarantee that it's always on my front burner and is something that I take very seriously before any of the words leave my mouth.

No matter what my mood has been, something amazing happens when I enter the mediation room. Some days, I've found myself in a tired, grumpy, stressed or otherwise negative mood while driving to a mediation. I remember so many times when I thought to myself, "why did I schedule this for today? Why on a day when I'm just not emotionally up to dealing with someone else's problems? Why couldn't I have just called in sick and spent the day in bed licking my own wounds?" To be honest, that thought has crossed my mind a whole lot of times. But never have I taken that action. It never occurred to me to abandon a client, whether pay or pro bono, who was relying on me for help. And then, without exception, once I've shaken hands and gone through any formalities, the details of the case come to the fore of my thinking and I start studying each person, and . . . voila . . . the mystique is back! Whatever you want to call it, mystique, focus, mindfulness, I find myself in a tight little world where nothing is happening but the mediation. My personal issues have vanished. The outside world may as well be another planet. Every sinew of my being is completely focused on the single process of mediating the matter before me. What I've done is immersed myself into a total act of giving with no expectation of anything at all in return.

Lest the cynics among you point out that I'm being paid for my services, I have two responses. First, I find no distinction in the feelings I have in pro bono versus pay mediations. Second, financial matters are among the externalities that reside on another planet while I'm in my mediation "zone."

So, my friends and colleagues, while I certainly join in the overall sense of gratitude for all the wonderful people and things in my life that I've been privileged to enjoy, I am far more grateful for the unconditional love that I receive from several very special people in my life. And in the same way, I am most grateful for my own ability to return that unconditional love to these special people as well. And, to me, mediation is an extension of that. I am grateful for the opportunity to give of myself unconditionally to people who are asking for help.

To me, that's not a job. It's a calling.

Moving the Goalposts 2, The Blowback

Sun, 08 Nov 2009 21:31:38 -0500

In my last blog post, I described, at length, my personal methodology in crafting a mediator's proposal. Today, I'm going to consider what I call the "blowback," which is the downside of the method itself. It's something that's always on my front burner whenever I'm actively involved in "moving the goalposts."

There's an important ideological divide between facilitative and evaluative mediation, and it's one that I'm not entirely comfortable with. Let's examine the relative strengths of each in the context of the mediation of a matter, currently in litigation, which the parties are paying you to help bring to resolution.

Facilitative Mediation

The obvious advantage here is that the solution is controlled by the parties themselves. Because the mediator acts as a facilitator and, perhaps, a referee, the his/her input is limited to being a sounding board, and, perhaps, engaging in brainstorming with the parties, whether in caucus or in joint session. To the degree that a facilitative mediator suggests his/her own ideas, it is generally in order to widen the scope within which a party can seek their own solutions.

Another "advantage" can be the lack of confrontation. Because a facilitative mediator doesn't have a position of his/her own, there oughtn't be a reason for any party to feel the necessity of defending a position vis a vis the mediator.

Evaluative Mediation

A key advantage here is that the mediator is able to both broaden and narrow the discussion.

Broadening the discussion can be important when each party has limited itself in such a way that there is no common basis for a settlement. In such a case, an evaluative mediator is often able to step in with suggestions that neither party may have considered, but which can form a nexus upon which each party can reach a consensus. In a similar vein, a good mediator, by evaluating the importance of various issues, can often persuade the parties to narrow the discussion and, in so doing, prevent tangential issues from becoming deal breakers.

And, of course, evaluative mediation very often shortens the length of the process, saving the parties money.

My Dilemma

The problem that I always find myself facing is that, while I almost always act evaluatively, I'm very uncomfortable with the exercise of power that that method requires. I always wonder whether, by my evaluations and resultant statements, I'm not predetermining the terms of the settlement itself. Because this invariably occurs, and re-occurs to me during the mediation itself, I feel, for lack of a better word, haunted by my own choices. Do I stay evaluative, risking that my technique will, even subconsciously, impose my opinions on the process? Or do I revert to facilitative, allowing nature to take its course, presumably getting fewer settlements and spending more time in session?

My Solution

I'm clearly a work in progress. Some of the time, the dilemma resolves itself, as the parties take a little bit of evaluation, run with it, and come to their own settlement. More often, I continue to move the parties, using evaluative techniques among the many in my mediator's toolbox.

My Request

Help!! I'd really like some feedback from those of you reading this blog post. What's your reaction to this post? What are your experiences in this area? Do you have any suggestions for the rest of us?

Moving the Goalposts, How To Craft a Mediators Proposal

Wed, 28 Oct 2009 00:54:03 -0500

As a professional mediator, some of my most challenging and, yes, enjoyable moments have come when I've been able to go "under the line." That is to say, I've been able to do things to increase the size of the pie that was presented to me when I first entered the room. Perhaps I was able to assist the parties in re-establishing a business relationship that had gone south and ended in litigation. Or maybe I was able to provide a safe haven within which somebody was able to commence the process of grieving.

But these occasions are the exception. In mediations involving commercial, business, contractual, employment, construction and insurance issues, the bottom line is most often dollars and cents. This is referred to as "distributive mediation," meaning that the size of the pie is predetermined, and the issue is limited to determining what size each claimant's slice will be. In my practice, I've developed a systemic method (sort of) through which I can narrow down my focus as much as possible in order to be able to insert my own proposal in a final effort to close the gap and obtain settlement.

A. The Purpose of the Mediator's Proposal

In many situations, as the parties make a series of concessions, they reach a point where each demands that the other make the final concession. There may be several reasons for this. Perhaps one of the attorneys is such an alpha personality that it is constitutionally impossible for him/her to settle without having the last word. Perhaps the attorney needs to tell a partner or an adjuster that he/she beat down the plaintiff to the very end. Perhaps a plaintiff's attorney feels unable to make a further concession in light of the anger his/her client already feels after so many previous moves.

A common solution for this is for the mediator to propose a settlement. When I do this, the terms are simple. I present each side with the same proposal. Each side has the same period of time to respond "yes" or "no." If I receive two affirmative answers, I congratulate the parties on their settlement. If not, I report that the case didn't settle. I explain to the parties that the beauty of this mechanism is that each side can take one final leap off the diving board, knowing that, if they don't do the same thing, the other side will never know that they made the leap. I refer to this as the "double blind blink." Each side gets the chance to blink outside of the vision of their opponent.

B. The Crux of the Problem

This should be self evident. Suppose that a plaintiff arrives at the mediation with a demand of $500,000 for personal injuries. Then suppose that the defendant arrives, with an adjuster, offering, say, $15,000. As a mediator, what possible number can you possibly choose with any hope that both parties might accept it. The answer? There isn't any. At least, not at that time. The art that the mediator must master is in reducing the size of the playing field; he/she must move the goalposts closer together, with or without the knowledge of the parties.

C. The Method As I Use It

I really do just two things. First, I assume that there's always a settlement number. That's because if the parties had a crystal ball and could predict, with certainty, the litigated outcome of the case, each would settle for that result, minus the cost of achieving it. Thus, the mediator, in an ideal hypothetical, ought to always have the joint cost of litigation as a buffer area within which settlement should always occur. Unfortunately, we don't have crystal balls, and parties and their attorneys evaluate cases very differently. So the first thing I do is give each party a continuing series of reality checks, playing upon their uncertainties, emphasizing my experience, and creating WATNA's (Worst Alternative To Negotiated Agreement) that they've likely never thought of. But, more importantly, I measure the playing field in several distinct phases. These phases are:

The offer and demand at the outset of the mediation.
The first serious offer and demand from each side.
The bottom line (based upon my impressions) of each side.
What each side thinks their bottom line is.
The number that actually settles the case.

The first three of these ought to be easy for any experienced mediator. After all, the first is handed to you at the outset. The second ought to be available after a caucus or two. By serious offer, I don't mean serious by an objective standard, but, rather, a number reasonably calculated by the proponent to move toward settlement. The third number is where the mediator's art kicks in. There's no way to teach this; each mediation provides another learning experience. A good mediator pays careful attention to everything going on: what is said, what isn't said, the timing of attorney-client caucuses, intonations, facial expressions and body language, how devil's advocate arguments are handled, etc.

When I do this, and if I'm on my game, number four should come naturally. Again, based upon hundreds of mediations, I try to intuit what each side actually believes their bottom line to be. Sometimes, a party will tell me their bottom line, but even then, it may only be for publication to me, rather than accurate. The determination of a party's real bottom line is a subjective one and I have to make that call.

Once I've decided on number four, I move on to number five. By this time, the goalposts ought to be a lot, lot closer than they were at the outset of the mediation session. Now comes the hardest judgment. Which side is less likely to accept further pressure? Again, this is a purely subjective call. It has to be based upon every single thing that the mediator has learned during the mediation. The trick is to find the number that will be equally offensive to each side. When the mediator feels comfortable with that number, he/she is ready to make a proposal.

D. How This All Fits In

I don't like mediator's proposals! I cannot say that too often. It's always better if the parties themselves hammer out their own agreement with the assistance of the mediator. However, I believe that the mediator has an inherent conflict of interest. The mediator has, on one hand, an interest in providing the parties with the best possible environment within which they can decide how they want to proceed with their matter, but on the other. the mediator is being paid, presumably, by the hour or the day. It is this conflict that impels me to use the mediator's proposal. When I realize that a mediator's proposal is likely to resolve a matter in short order, whereas continued, very tedious, negotiations could go on interminably (often because of non-economic elements), I feel an obligation to offer this tool to the attorneys and/or parties.

My success rate with the mediator's proposal is extraordinarily high. And that never ceases to amaze me. If you agree with my reasoning, give it a try. If it fails, you can do as I have done, and suggest that the mediation continue.

Exhilaration and Disappointment

Sun, 18 Oct 2009 05:29:03 -0500

This morning, driving toward the University of Southern California campus, a lot of memories passed through my mind. I recalled attending the High School Debate Institute at USC, in the summer of 1965, prior to my senior year, and, as an unknown, being named second speaker, behind Roy Shults. I remembered how the lessons learned their got me to the 1966 state finals in extemporaneous speaking, where I finished 3rd, behind Roy Shults. I recall going to see a professor about something during my sophomore year at UCLA, passing the debate office, and seeing the team list on the blackboard, and there, on the top team, was . . . you guessed it: Roy Shults. Thus began my odyssey into intercollegiate debate, partnered with Roy, during which we reached the highest levels of competition and multiple prestigious awards. Debate provided me with invaluable training in logic, quick thinking and communication that has served me well in every aspect of my life since then.

I bring all of this up because an old debate friend recently sent me a video of last years national championship debate. I was stunned! The debaters were dressed like slobs and spoke so quickly as to be incomprehensible, sounding rather like birds tweeting. Part of me was repelled, but part of me felt guilty. For, you see, in the late 60s, in my prime, I was considered one of the faster talkers on the debate circuit. Not that I was proud of it. I would have rather had Roy's oratorical skills, which were amazing. But the team needed an infighter, and I was best suited for that job. Several friends from that time keep telling me and others that I was one of the innovators of "spread" debating. If I was, it's something I deeply regret. What for me was a tactic has apparently become an end all in today's collegiate debate world. Truth be known, my best debating was done when I raised three or four issues in a ten minute speech, explained each logically, often with no evidence, and sustained each of them.

But today was different. I was heading to SC to be a volunteer judge for the Metro Debate League, a national program designed to teach debate to students at inner city high schools. I was excited. I knew that I was going to find a lot of passion, a lot of enthusiasm. Of course there wouldn't be a lot of skill, but the purpose of teaching debate is so much broader; debate can instill a love of learning, of discussion, of seeing two sides to an issue. Even the poorest debaters can carry these skills forward throughout their lives.

I entered the room in which I was to judge. Two teams, four typical looking high school kids, each team armed with a computer. The first speaker stood up, introduced herself, and then started reading her speech - - at a mile a minute! She stumbled over every third word, and, in general, was speaking far beyond any rate of speed that was wkthin her reasonable range. All four speakers did this. The debate itself was well done by all, entertaining for me, and a completely exhilarating experience within the vacuum of that room.

But then I went downstairs and spoke with the head of the Los Angeles program and then to the USC debate coach. I asked each of them what the point of debate was if the speakers were incomprehensible (referring to the college level). They had well thought out answers about the need to think quickly, how one of their former debaters won a case before the Supreme Court, etc. But, to use an old debate term, they begged the question. You see, in my day, rapid speaking was a way to shoehorn more "stuff" into a ten minute speech. My instinct still is that the time limit is meant to force you to think through your case, just as court briefing limits force lawyers to refine their arguments. The solution for debaters cannot be to simply jam in the information at such a rate as to lose any relationship to communication; to do so reduces debate to a mechanical activity with no value outside the debate tournament. The skills that these coaches touted can be learned with a more intelligible presentation, which, by the way, is far better training for the next phases of life.

Attorneys can't do this kind of shoehorning. To do what these debaters do, the lawyer would have to use a 2-point font, single spaced, with margins out to the edge of the page. Imagine how that would play out in a courtroom!!

I say all of this because it reminds me of what I see far too often in mediation. I see participants who arrive with an agenda, hellbent on doing it their way, with no regard to communication skills or persuasive effectiveness. Many are more interested in persuading me so that I can act as their proxy. Like the college debaters, many think that by overwhelming the mediation with evidence, they will somehow gain an advantage. Again, this reflects a serious misunderstanding of the mediation process itself.

Similarly, many mediation participants have a lot of rocks to throw, when a single guided missile may be all that is needed for the opposing party to reevaluate its position. Too often, I have to conjure up that guided missile and present it in caucus. How much better it would be if participants in mediation would stop being advocates wedded to their own positions and, instead, were able to honestly analyze their opponents' case and figure out what it will take to move their position.

Original Intent v Consistency, and the Constitutional right to privacy

Thu, 15 Oct 2009 02:53:40 -0500

For many years, I've been a bit upset about the "original intent" faction of the bar, and, more specifically, the progeny of the Federalist Society, who, as a result of 5 out of 7 of the most recent Presidential terms worth of conservative Republican court nominations, have come to dominate the Federal judiciary. For one thing, I've always thought it fantastic that these scholars were so apt at reading the minds of those who lived in a different time and such a different place.

I've had meandering thoughts about this area for a long time, but today, I've been thinking about how the doctrine of "original intent" seems at odds with the present positions of these conservative judges, particularly those on the U.S. Supreme Court, in at least two areas.

First, consider abortion. To fully evaluate the view of the Founding Fathers about abortion, one need only check out the prevailing social standards as they existed in 1787-91, the time during which the Constitution and the Bill of Rights were drafted and enacted. At that time, laws prohibiting abortion were unheard of; there weren't any. Lest we assume that Justice Scalia is already retorting: "But nobody would have thought of outlawing a procedure that was so reprehensible that it was unheard of by the good Christian men and women who founded our nation." Putting Scalia's other biases aside, that statement, if made, is factually incorrect. Abortion was routine in the late 18th century, done with the assistance of midwives, and not being something that was the topic of conversation among the literati. While families, as a rule, were larger than they are today, a review of the family size of our Presidents, Vice-Presidents, cabinet members and more distinguished members of Congress makes one thing palpably clear: their wives were not in a state of perpetual pregnancy, as were the women in other, much more devout sects. Given the state of birth control during that era, this fact ought to give any thinking person reason to pause. Given the horrific rate of death during childbirth during that era, many of the more educated Americans tried to limit childbirth to children that were desired. Since tubes could not be tied in that bygone era, and vasectomy wasn't a word, much less a procedure, one can only imagine how busy the midwives were. And, of course, midwifery was a perfectly respectable, actually essential, profession, given that birth routinely occurred at home. Had the Founding Fathers wanted to protect "unborn lives," they had every opportunity to do so in the Constitution, and again, perhaps more appropriately, in the Bill of Rights. The absence of even a mention of this issue, given how commonplace abortion was, reflects, if anything, an acceptance of the procedure, and, most probably, a view that the government had no place making such personal decisions for any of its citizens.

That neatly segues into the second area, search and seizure. In the aftermath of the Revolution, Americans were quite sensitive to their personal privacy, which had been effectively ignored during the British occupation. Various remnants of this concern remain in the Bill of Rights, such as the entire 3rd Amendment. To my knowledge, nobody has ever suggested applying a balancing test or a "good faith exception" to the quartering of soldiers. However, the 4th Amendment guarantee against unreasonable searches and seizures has a direct antecedent in the British constitutional tradition that a man's home is his castle. There were no exceptions that I know of at the time of the Founding Fathers. The fact that the 4th Amendment is written in absolute proof stands in corroboration of this. In practice, the 4th Amendment was routinely violated by police actions, especially against the poor and people of color, until the middle of the 20th century. At that time, the Warren court actually consider the breadth of the 4th Amendment and reaffirmed that the scope of government search and seizure was to be stricly limited and subject to the strictest scrutiny. It seems ironic that the very police departments that so opposed these rulings when they were first promulgated are among the strongest supporter of many of these procedures today, after 40 and 50 years in practice. So what's happened since? Well, since Earl Warren retired, the Court has grown increasingly conservative, and as early as the 1970s began to chip away at the landmark decisions of the Warren court, creating a series of exceptions to the bright line rules. If nothing else, the law was becoming steadily murkier. This was a public works project for criminal defense attorneys! And today, we have a Supreme Court that is in love with allowing the police the widest possible leeway in searches and seizures, creating any exception for which legal justification can be created; exceptions are created rather than holdings outright overturned.

So, I ask these questions. Where did "original intent jurisprudence" go in the abortion argument? And why isn't anyone standing up for the Founding Fathers' absolute language in the 4th Amendment? One would expect some consistency from these Justices who so decry "activism" when they disagree with the result. I'm waiting . . .

Making Settlements Last

Tue, 06 Oct 2009 17:09:47 -0500

A settlement is meaningless if it the parties don't respect it. Parties who don't respect settlements simply see breach as another cost of doing business, accepting further litigation if they see the overall result to be profitable. An all too common example may occur when a large small vendor is owed money by a large retailer. In a typical scenario, the vendor needs prompt payment to remain healthy and a continuous flow of sales and payments to remain in business. Knowing this, the vendor may choose to "stretch" payments as far out in time as possible, until forced to the bargaining table by a desperate vendor. If the retailer is sufficiently unscrupulous, it may make a small payment at that time and agree to make monthly payments, but insist that in exchange for the monthly payments, the vendor must allow the amount of credit to remain as is. The vendor, back against the wall, often feels that it has no choice but to accept. The agreement in place, the retailer then orders as much product as possible from the vendor over the next few months while making the minimum agreed payments, then never pays another dime. The upshot is that the retailer finds another vendor immediately, and the original vendor can either quietly go out of business or try to finance a lawsuit and deal with the inevitable stalling tactics that will follow. Welcome to the exciting world of business litigation!

These sorts of cases are very tough to mediate for several reasons. First, the playing field is hugely unbalanced; here, the retailer has all the economic strength. Second, the vendor will typically not be aware of the problem until it is likely too late. Third, the retailer clearly does not value a continuing relationship. And fourth, and most importantly, the retailer is not bargaining in good faith.

I use this example to segue into an area where the landscape is very different: divorce mediation. In California, where I practice, divorce is a matter of right. A spouse cannot successfully contest a Petition for Dissolution. There are three general ways in which divorce is accomplished: (1) through negotiation, whether by mediation or collaborative law; (2) through adversarial negotiation and settlement between attorneys; and (3) by court trial. Let's discuss the issue of spousal support in light of each of these.

Consider a case in which the husband makes a good living and the wife has limited earning capacity in a marriage in excess of twenty years in which there are young children. In a case like this, it would be fair to assume that child support is automatic and that spousal support is highly likely with a long duration, possibly even lifetime.

In a trial setting, a judge will order the support amounts and duration. It is not surprising that many husbands feel "jobbed." They feel that the judge (especially if the judge is a woman) is unfairly biased towards wives, or that their attorney did a poor job, or that the bad weather that day had something to do with it. Bottom line: the husband feels that he's being bled dry. Given the customary awards here in Los Angeles, if his attorney hasn't done a good job of educating his client, the husband is in for a rude awakening. All of this sets the stage for the stereotypical husband who does everything he can to avoid paying the alimony. Unfortunately, the line between the spousal and the child support is too often blurred and the entire matter devolves into a lifetime of orders to show cause, contempt hearings, even jail time, and two very affluent attorneys.

An adversarial settlement is somewhat better, since the husband and wife must agree to the terms of the contract. But even in these cases, there's a lot of pressure on them to agree. For one thing, the soaring costs of litigating divorce may have placed them in a position of financial exhaustion, where they feel compelled to settle so that there's something left to divide. And at the same time, each attorney, if he/she is doing his/her job, is putting pressure on their client, through hard reality checks, to accept terms that are anathema to them. While there may be a greater personal investment by the parties in this settlement, there is still a pretty high rate of husbands in the case I've outlined who walk out with steam coming out of their ears, itching to get even.

Finally, we have the mediated settlement. In a mediated settlement, both sides are required to be transparent; all information regarding the marital estate must be provided for the mediator to be able to work with the couple. In addition, part of the mediator's job is to see that the playing field is balanced. The mediator will also ensure that before either party agrees to anything, that party is fully informed of all possibilities and makes the wisest decision in light of the entire picture. In this way, if a party makes a concession, that party will understand why the concession is necessary and what will be gained in return for that concession. Every step of the way, the mediator will empower the parties to make their own decisions and to really agree on how they are going to terminate their marriage. Studies have shown that people who mediate their divorce are far more likely to respect the terms of an agreement that they crafted themselves, albeit with the assistance of a professional.

The lesson to be taken from this is: when parties can invest in the creation of an agreement, they are far more likely to honor that agreement and the settlement made by that agreement is far more likely to endure.

Another Day, Another Marvin

Tue, 22 Sep 2009 01:49:07 -0500

Today, I conducted a very contentious six hour mediation. The rubric of the case was legal malpractice. The underlying case involved a suit by the live-in girlfriend of a deceased celebrity, under Marvin, for quasi-contractual recovery of as much as $2 million dollars. The malpractice itself was, as I saw it, clear. The damages, though, as is the usual case, were very slippery. The case was either going to be a home run for the Plaintiff, with a recovery of as much as half the proceeds from a very successful album, as well as live performances, or, on the other hand, a defense home run, with a Marvin case, bereft of the music adn of minimal value.

In this case, there was no middle ground. The value was either de minimus or substantial. To exacerbate things further, defense counsel had to answer to an insurance adjuster in the Midwest. On the face of it, this was precisely the sort of case that might scream "impasse" to a less experienced mediator.

Fortunately, the two attorneys had a collegial relationship. I took a huge risk and, after doing a lot of groundwork with each side, decided that further incremental bargaining would not be fruitful. Instead, I caucused with both attorneys and did something very unusual. I told them the range of what I thought the case was worth and that I would make a mediator's proposal in that range if I had no tools left. But I suggested that if counsel would cooperate with me, I wanted to structure the negotiation to land there or thereabouts. Under this circumstance, both sides agreed to openly discuss where the negotiations were at that time. This was made somewhat easier by the fact that each side had already gone way out of what they believed their settlement range to be.

The case then moved forward. I continued to work at softening up the Plaintiff in terms of the number itself, while defense counsel worked on her adjuster. By mid-afternoon, she told me that the adjuster had made a serious move, but had then hardened his position. Again, I conferred with both attorneys, obtained helpful information from both, and suggested that I make a proposal, given the relatively narrow gap that we had before us. I told them that I would give them the rest of the week to respond to the proposal.

My proposal did several things. First, it was in an area that defense counsel could not have possibly broached without the extreme likelihood of completely losing her adjuster. Second, it was not so far away from the number I'd been working on with Plaintiff that it was likely to cause an end to the negotiation. Finally, and most importantly, I calculated that the number would cause an equal amount of choking and indigestion for each side.

We adjourned after six hours. I felt that I had gone the extra mile and produced a result. Both attorneys thanked me profusely (and separately). This didn't surprise me, since neither of them gave this case much, if any, chance of settling. The gap had been well over $1 million dollars once I got started. We ended with a gap of no more than $50-60,000 by the time we adjourned.

This story is just another illustration of my prime credo: impasse is just an excuse for not going all out. I don't believe in impasse, save for the rare exception.

Alec

Mediation Happens When You Least Expect It

Thu, 10 Sep 2009 16:31:52 -0500

From Conflict To Closure

Mediation Happens When You Least Expect It

By Alec Wisner - September 10, 2009

Because many of you reading this newsletter are professionals in the ADR field, professionals who utilize ADR and/or people who have a personal interest in mediation, it becomes habitual to think of mediation as a process by which a trained professional sits down with two disputing parties, typically in the framework of litigation, a divorce, or some sort of legal-based conflict, and tries to move the two sides to resolution without recourse to the lengthy, expensive and, often, anguishing process of litigation.

I propose that mediation is a far more basic process than that.

The simplest level of mediation lies within ourselves. Each of us has our own competing interests. For a high school student, for example, the conflict may be between getting homework done comfortably ahead of a deadline or going partying with friends. For an adult, it could be between staying up late working on that project or spending quality time with your wife and kids.

Each of these interests creates its own baggage. "What will happen to my grade if I wait until the last minute?" "Will my friends think I'm a geek if I don't go out with them?" Will my job be in jeopardy if I don't produce the goods?" "What kind of mother and wife doesn't give her family her undivided attention?" And each of these conflicts requires a mediation within one's self in order to move forward. Nobody said that taking a step forward is always automatic.

Even on this simple level of mediation within one's self, there is often a need for an external mediator. Sometimes that mediator takes the form of a parent, a spouse, a clergyman, a co-worker, a therapist, or one of countless other people whom one is willing to confide in and listen to. And, of course, these problems haven't a thing to do with a court of law or any other public forum. They have to do with sorting out our own values and applying them to the simple day-to-day decisions that we all have to make.

Sometimes we seek help in groups. There are spiritual groups, 12-step groups, and all kinds of other groups that people join in order to discuss things of mutual interest with other people. This is also a form of mediated discussion in which each person operates under clearly understood rules of conduct. And, again, each person is free to take any advice offered and apply it to his or her own internal conflicts.

So you see, mediation and conflict resolution can be a far broader topic than just the mediation of divorces and litigated cases. I'll have a lot to say about those areas in future newsletters and blog posts, but that's a wrap for today.