Archive for March, 2010

elderly sisters lottery fight from The Hartford Courant via APTwo Connecticut sisters, 87-year-old Rose Bakaysa and 84-year-old Theresa Sokaitis, are involved in a lawsuit over a $500,000 lottery win.  Theresa filed suit after Rose ignored a written agreement between the two that stated they would split equally all lottery winnings.  After Rose hit the jackpot in 2005, she shared the winnings with her brother instead.  Theresa wants Rose to honor the contract.  See “Elderly Sisters Battle Over $500,000 Jackpot.

Like almost every dispute, the argument between Rose and Theresa has a back story.  After Rose’s 2004 heart surgery, and Theresa nursing Rose during her recovery, the sisters had a tiff over a few hundred dollars.  Theresa told Rose she didn’t want to be partners, and Rose tore up the contact.  Theresa kept her copy.  When Rose and her brother won the lottery the next year, Theresa showed up to collect.  Rose declined.  Theresa sued to enforce the contract and, as a result, the two sisters have not spoken for five years.

I knew I was meant to be a mediator when in my 20’s I instinctively reunited my grandmother and her sister, my great aunt, who hadn’t spoken in over 20 years.  That’s why this lawsuit – which never should have seen the inside of a courtroom – strikes a special note with me.  While it is unfortunate that their contract didn’t have a mediation clause, it is more unfortunate that the Sokaitis family didn’t know what mediation could do for them.

People like this don’t fight over money and contracts.  They fight over a lifetime of poor conflict resolution skills.  It sounds like “Five years ago, you took advantage of me.” and. “Twenty years ago, you told Dad that I said…”

There is almost always more underlying a dispute than appears on the surface.  Good mediators know that pride, acknowledgement of wrongful behavior, admission of guilt and apologies can play an important role in resolving a conflict.  Sometimes it is as simple as clearing up a misunderstanding, after which reaching an agreement is considerably easier.

Courts are not equipped to deal with issues such as these.  In court, attorneys speak in a language unfamiliar to the average person and make procedural motions that at times seem to have little to do with the dispute itself.  Only mediation gives people the chance to actively participate in their dispute resolution process and in creating a solution to their disputes with the assistance of a skilled mediator and the guidance of their legal counsel.

Mediation is the best dispute resolution mechanism for Rose and Theresa.  If their judge doesn’t refer them to mediation, and they don’t find a skilled mediator themselves, their trial will only determine who takes home the winnings, leaving the sisters to live their final days angry at each other and not speaking.  A skillful mediator will not only help Rose and Theresa determine who gets the money, but will also help them see the big picture – namely that their relationship, especially at this age, is more important than a tiff from years gone by or than an amount of money that is more than they could spend in their remaining days.

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In California, March 14-20 is a momentous occasion for mediators. The California courts, along with the state Judicial Council and the State Bar of California, adopted standing resolutions last March setting aside the third week of March each year to celebrate mediation. How do we celebrate Mediation Week?  With good champagne and dancing?  Maybe.  In this case, however, we will do what courts and bar associations do well – we have events and conferences!

“Mediation programs offer the public an important alternative to resolving disputes outside the traditional adjudication system,” stated Chief Justice Ronald M. George, chair of the Judicial Council.  “Mediation Week is an opportune occasion to educate the public about the availability and benefits of mediation programs, and to recognize the people who make those programs successful.”

The reasons mediation should be celebrated are too numerous to mention here, but at events throughout the state this week judges, lawyers, mediators, administrators, businesspeople and the general public are ensuring most of those reasons are acknowledged.  Below are two such events at which I will participate:

On Wednesday, March 17, Kern County is launching its new court-annexed mediation program with a day-long conference open to the general public.  The Kern County Superior Court, Kern County Bar Association and the county Better Business Bureau have brought in the American Institute of Mediation to coordinate the free public program targeted to the judges, attorneys, business leaders and general public called “Maximize Your Mediations!“.  This dynamic and interactive program will feature my keynote speech “Why Mediate,” after which a series of 45-minute panels led by area lawyers and mediators will discuss and explain various mediation aspects such as confidentiality and creative solutions.  The audience is encouraged to ask questions.  Featured speakers include Santa Barbara Superior Court Judge Frank Ochoa and noted peacemaker Doug Noll.  Thanks to Kelly Lazerson, the court’s ADR Coordinator for bringing this program together.  The day ends with a mixer at the Bell Tower Club, downtown Bakersfield.  Maybe that’s when we’ll have the champagne?

On Friday, March 19, Orange County mediators and the Orange County Bar Association’s Alternative Dispute Resolution Section host “OC Mediators Odyssey 2010“.  The event begins with keynote speaker Orange County Superior Court Presiding Judge Kim G. Dunning, who will explain the “State of the Orange County Superior Court and Mediation’s Positive Effect on the Local Court System and our Orange County Community.”  I will deliver the luncheon keynote, “The New, Invisible Cross Cultural Conflict,” a commentary about how all disputes are cross-cultural, even when the people may look the same.  Other workshop presenters that day include Vickie Pynchon, Jan Schau, Mari Frank, Wendy Kramer, Debra Dupree, Sam Konugres, and Rosemarie McElhaney.  This event would not have been possible without Therese Gray’s strong leadership.

For more information about times and locations, click on the links to the events’ web pages.  And remember, let’s celebrate mediation all week!

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Mediation World Loses a Patriarch

Author: Lee Jay Berman

Richard Millen

I am deeply saddened to announce that Richard Millen passed away today.  Most mediators in southern California knew and were touched by Richard, whether they knew it or not.  He was a motive power in forming the first court-annexed mediation program in California, in founding the now-mighty Southern California Mediation Association (SCMA), and served on boards and committees advising on mediation policy until his last months.

Richard was 89 years young and was one of those whose inspiration created organizations that have become pillars of the southern California mediation universe.  He was the motive power that helped to create the first court-annexed mediation program with the Los Angeles Superior Court (now the largest court and largest mediation program in the world).  He was a trainer with the Neighborhood Justice Center, now Dispute Resolution Services (DRS) and a division of the Los Angeles County Bar (an adoption he never sanctioned).  Richard trained under Bill Lincoln and was atop the training tree, training Bill Hobbs, who trained anyone who ever trained in Los Angeles outside of Pepperdine (me included).  Long before he taught at Pepperdine Law School’s Straus Institute of Dispute Resolution and California State Dominguez Hills’ Master’s program in Negotiation, Conflict Resolution and Peacebuilding, and with me at my Institute of Mediation Studies (previous incarnation of the American Institute of Mediation), he held mediator meetings in his pool house – meeting’s we’d probably call round tables or study groups today.

Richard also sat with Randy Lowry, Lauren Burton and others at a retreat that became the birthplace for the Southern California Mediation Association (SCMA) over 20 years ago, where leaves as a “Board Member In Perpetuity”.  He meant so much to SCMA that they named their annual Peacemaker of the Year award after him, along with Ken Cloke.  He served on about every organizational board in southern California, including DRS and the State Bar’s Standing Committee on ADR.

Many of us were trained by him, influenced by him, and heard him speak at conferences, as often from the audience as from the front of the room.  A deeply spiritual man, with vigorous energy and strong beliefs about how mediation should remain “pure” and uninstitutionalized, he continued to mediate cases at 88 years of age.

Richard was one of the first interdisciplinary-trained mediators.  A Harvard lawyer, his studies to become a more complete mediator began by reading books by Krishnamurti, Ken Wilbur, Ram Daas, Martin Buber, Alan Watts, Brugh Joy, Jerry Jampolsky, Eric Frohm, quantum physicists, such as Frejof Capra and Alan Wolf, and continued to include the Tibetan Book of the Dead, the Bhagavad Gita, and by Da Free John, the Knee of Listening, and by Gary Zuchav, the Seat of the Soul.  He then dove into reading about Buddhism, Zen, Dao, the Kabbalah, Christian mysticism, the Dali Lama, the occult, Freud, Jung, William James, Elizabeth Kubla Ross, and Virginia Satir.  When Richard was asked, “Isn’t that really more spirituality or philosophy than mediation?”, he would answer, “What’s the difference?  They’re all the same!”

Richard preached that mediation was “a new epistemology of thinking and speaking about conflict” and “Conflict emanates from a break down in relationship of the parties”.  He’d say that people didn’t have legal problems until they gave them to a lawyer.  He preached the fundamentals (some might say lost art) of mediation – active listening, reframing, I messages, neutral language and self-determination.  He often proudly quoted a poem by Tap Stephens that ended with “…and they did for themselves what they had come for the mediator to do.”  He believed strongly in “Dialogue” as defined and used by quantum physicist Dr. David Bohm.

Richard called himself a half-lawyer, half-entrepreneur, having served the majority of his professional years as a transactional lawyer “doing deals”.  He prided himself on being a trusted fiduciary, and loved when his clients would say, “Just ask Good Ol’ Dick Millen.  If it’s good enough for him, it’s good enough for me”.  He started in business at the  ripe age of 10 with a paper delivery route.  Living in Knoxville, he graduated from the University of Tennessee, and then it was off to the army where he prided himself on his days in the cavalry, stationed in Italy during World War II.  When he returned, he took full advantage of the GI Bill by attending Harvard Law School.  His stumbling into mediation some 25 years ago was more due to his spiritual enlightening and personal growth as a natural outgrowth of his business and legal backgrounds, than it was a career choice.  Mediation chose Richard, more than the other way around.

Richard is survived by his wife, Mary Alice, four adult children, several grandchildren, and a community of thousands of mediators scattered throughout southern California and well beyond.

Richard was my surrogate grandfather, my mentor and my dear friend.  When I last visited with him about three weeks ago, and he told me of the cancer, he said he was being “positive and creative” in his approach to dealing with it – being a mediator to the end.

Richard liked to quote Blaise Pascal, a colleague of Decartes, who wrote, “the heart has reasons that reason knows nothing of.”  This was Richard and his huge, knowing heart.  Teaching us until the end.

We have lost a great peacemaker, a passionate teacher, and a bright, glowing spirit.  His presence will be missed.

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Dark Side of the MoonPPink Floyd is suing its former record label EMI over how royalties are calculated on internet sales.  Among other things, the band is contesting whether its 1999 contract allows sales of individual tracks, as EMI contends, or mandates only complete album sales, which is how Pink Floyd interprets the contract.  “When Pink Floyd’s latest contract was crafted in 1999, iTunes didn’t even exist,” EMI attorney Elizabeth Jones sums up the label’s argument.  “Pink Floyd, EMI Brawl Over iTunes Royalties”.

Almost all contracts are ambiguous, and parties whose incentives cause them to interpret contract terms in their own favor will disagree about almost any contract.  Even the greatest transactional attorneys in the world can’t account for every contingency or every evolution of technology, biology or ecology.  This is why courts look at the intent of the contract.

Mediators bring disputing parties back to the contract’s original intent.  Really good mediators can bring parties all the way back to their relationship at the time of the agreement and the reasons behind their decision to do business together.  It’s not unlike reminding a divorcing couple about their courtship and their wedding to allow them to remember they didn’t always feel animosity toward each other.

In 1999, EMI no doubt courted Pink Floyd for its business.  Pink Floyd signed with EMI, even though the band likely had its pick of record label suitors.  Both of them would do well to remember their original motives and intentions that drove their choices.  In that light, they can view the disputed agreement (I find it ironic that people often fight over something called an “agreement”) with a less extreme interpretation, and each other as something less than the devil incarnate.

Ken Cloke wrote in his book Conflict Revolution that most people have to reduce the other to evil to sustain a fight at the high conflict or heavy litigation level.  Revisiting intent surrounding the original agreement can be a step toward humanizing the conflict.Pink Floyd's The Wall

In reality, these two entities (they are both businesses, after all) will necessarily have a long-term relationship for as long as EMI owns the Pink Floyd catalog.  What that means from a negotiation standpoint is that they can remain in a competitive state, they can settle the lawsuit with a compromise where each walks away still angry because they are anchored to their loss, or they can mediate collaboratively to a satisfactory resolution for both parties, thereby preserving their relationship.

Successful mediation in this case will require three elements:

1.)    Good lawyers capable of seeing the lawsuit as more than right or wrong litigation.  With all due respect to strict litigators, a creative deal-making lawyer at the mediation table is often helpful because transactional lawyers typically view negotiation very differently than a straight trial lawyer;

2.)    The right parties in the room.  We mediators are always making noise about why having all decision-makers in the room is important.  To have any kind of creative discussions, it’s required.

3.)    A mediator who can steer the discussion (often repeatedly) from destruction to a constructive business meeting where the parties explore all options.

For example, options in the Pink Floyd/EMI conflict could include exploring Pink Floyd buying back its catalog or allowing single-sales from all albums except the two top sellers, The Dark Side of the Moon and The Wall.  A monetary settlement amount could be funded with something other than cash, such as EMI stock, which would give Pink Floyd a greater stake in the label’s success and direction.  These conversations and other brainstorming around these issues can only take place when the table is set in a way that allows them to flourish.

Most settlement discussions in similar cases start with a sky-high demand and a nuisance-value offer, if any.  Where it goes from there depends on the lawyers and the mediator.  But contract disputes have the potential of becoming much more than just a compromise around the dollars.

Pink Floyd’s lawyer wants a finding determining what the contract says.  If every contract in the industry was written the same and a court ruling would set precedent, perhaps litigation is necessary.  But in the case of this unique contract, I submit that it’s not a verdict that is needed as much as a few creative minds.

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The U.S. House Foreign Affairs Committee passed a resolution on March 5 publicly acknowledging and condemning Turkey’s Ottoman army for their role in the Armenian Genocide almost 100 years ago.  According to New York Times reporters Sebnem Arsu and Brian Knowlton, “Turkey reacted sharply, recalling its ambassador to Washington, Namik Tan, in a display of annoyance.  Turkey is a critical United States ally in NATO, but the question of Armenian genocide taps deep veins of national pride.”  Turkey’s Foreign Minister Ahmet Davutoglu told the reporters, “Each interference by a third party will make this normalization impossible.”  See “Turkey Criticizes Committee Vote on Armenian Killings.

With all due respect to Minister Davutoglu because I know he means well, the U.S. government acknowledging the Armenian Genocide will not harm Turkey-Armenian relations and it should not add strain to Turkey’s relationship with the United States.

Minister Davutoglu doesn’t understand what mediators know to be true:  There are different levels of defining peace.  While many people, Americans mostly, define peace as a state of bliss where everything around us is good and everyone around us gets along, others, notably people in war torn countries, consider peace to be an absence of active war.

Mediators define peace (we call it “success”) differently, too.   One way is compromise that avoids expensive litigation through settlement, but doesn’t necessarily resolve the conflict.  The parties may still walk away believing their opponents are the enemies who intentionally injured them.  If the relationship continues, as it often must, the unaddressed, underlying conflicts resurface and manifest in a new dispute.  Take neighbors, for example, who dispute property lines or encroaching tree limbs.  Once the survey is done and the tree is trimmed, that immediate dispute is settled.  But unless the animosity and bad feelings between them are addressed, and the underlying conflict resolved for good, new disputes will likely erupt in a few months over parked cars, fertilized lawns, noise, lights or any other lever disgruntled neighbors can find to fight about.  That’s how unresolved, underlying conflict continues.

Turkey and Armenia are neighbors who will never have true peace until the travesties of the past are acknowledged, discussed and artfully apologized for.  My “Talk It Over” co-host Louise “Weezy” Palanker puts it this way:  Don’t just say “I’m sorry,” (or worse, “I’m sorry you feel that way”), you have to also say, “can you ever forgive me?” and “what can I do to make it up to you?”  The transgressor who asks these questions is taking responsibility for his or her actions and attempting to make things right.

Minister Davutoglu seems to believe that silence and a lack of unrest indicate that all is well when it fact, Armenians are merely tolerating the current situation while still holding a vey deep grudge, resulting in an unresolved underlying conflict.  Real peace between Turkey and Armenia will be achieved once Minister Davutoglu or another high-ranking Turkish leader delivers a public acknowledgement, complete with a responsible apology, and asks the “what can we do to make things right?” question.  Then, and only then, can discussions about forgiveness and peace begin.  And perhaps then, the world will have one fewer ticking time bomb ready to explode in that part of the world.  Permanently.

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Senator Max Baucus (D) of MontanaAs a mediator, I have a hard time watching how our country is operating right now, both internationally and domestically.  I see this every day in the micro context of my mediation cases and in the macro context of our headlines.  And yet people just keep trying to get ahead by attempting to suppress each other without recognizing that they are actually working against their own best interests.

For example, in “Obama Offers to Use Some G.O.P. Healthcare Proposals,” New York Times reporter David Herszenhorn writes, “Mr. Obama announced his plans to work on the Republican suggestions in a letter to Congressional leaders of both parties.  But his main point was one Republicans did not welcome:  that Democrats would press ahead with comprehensive legislation over the minority party’s objections.”

The reason we have so much litigation in America (especially in California) is that defendants so rarely understand that their actions often guarantee a lawsuit.  When one party suppresses another to the point of pain or powerlessness, the injured party feels he or she has little choice but to retaliate.  Plaintiffs choose litigation because it may be the only legal way to inflict suffering – loss of control, unfavorable publicity, monetary awards, punitive damages, etc. – of the caliber the defendant will understand and respond to.

As a result, defendants are often responsible for creating the emotional monster on the other side of the table. When plaintiffs believe every other door has been slammed in their faces, they become enraged enough to flex their muscles in the only remaining venue where they stand a chance of having a level playing field.  Of course, the same is true in the other direction, with plaintiffs sometimes overreaching, leaving the defense with no choice but to go to trial, and fight back with a vengeance.

What makes mediation work is the introduction of a neutral third party.  Having an unbiased person at the table can bring big picture perspective into the room when all others are mired in the fog of their power games and can’t or won’t see another approach.  Perspective is a mediator’s greatest qualification.

That’s why President Obama can’t be the mediator of all the controversial congressional reforms:  healthcare, job creation and financial system accountability, to name a few.  He has a dog in the fight and he’s one party’s (read: extreme’s) leader.  If he were serious about leading, he’d appoint a neutral person who could bring with them reason and perspective.  A real neutral, who wouldn’t be a politician campaigning for re-election, would turn off the cameras, close the door, and encourage everyone to disclose his or her needs, pressures and underlying interests in the privacy and confidentiality of the mediation process.

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Late last month, New York Times writer Steven Greenhouse reported that the Obama Administration will seek to “prod” companies to improve wages and benefits by altering how the federal government awards contracts.  Companies in violation of labor and environmental laws will be disqualified while those that offer “better” pay, pensions, health plans and other benefits will receive more favorable consideration.  The goal is “to lift more families into the middle class.”  See “Plan to Seek Use of U.S. Contracts as a Wage Lever.”

Isn’t that a pendulum swinging too far to the left in response to having swung too far right during the previous administration?

Any group who feels suppressed will eventually attempt to dominate its suppressors. Employees who felt their rights were neglected under Bush now will secure their immediate future by making business owners experience the same pain and frustration that workers did, ensuring that leadership rallies and flexes their muscles as soon as they regain power.  Today, the majority of our politicians perpetuate this “us vs. them” mentality through extreme rhetoric to ensure their own re-election, and what passes for the news media these days assists them because the conflict drives readership.

If management didn’t view laborers as nameless, faceless commodities, and if labor didn’t view management as greedy fat cats trying to amass wealth at the expense of the laborer’s health, security and dignity, then capitalism could actually thrive.  But when management exploits labor, causing — and I mean causing — labor to organize and elect a politician who is almost socialist-leaning whose followers believe that a CEO’s salary should be determined by a multiple of the average worker’s pay, then it’s no wonder we end up with lawmakers who believe restraints on commerce are good ideas if they can force business to conform to the latest political thought (and I use that term loosely).  It’s no surprise that management outsources work to third-world countries!

The problem is our leaders are trying to resolve conflict through power struggles, rather than collaboration (or even cooperation), using polarizing positions instead of reasonableness, and a process of trying to win over “them”, rather than trying to win them over.  This short-sighted self interest in taking back the hill just lost only ensures another battle over the same hill with renewed insurgency from the defeated.  But do our politicians recognize how entrenched they are?  No, they just know they need to take the hill, whether that hill is healthcare or taxes or a village in Iraq.

Operating this way without seeing the big picture guarantees that the pendulum will continue to swing wildly between extremes and that career politicians will continue to be extremists rather than leaders.  What we need is a leader who leads with reason, rather than one who simply turns the power of the position the opposite direction from his or her predecessor.  Perhaps then we will have less conflict (too often intentional) and more actual leadership.

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