Archive for the ‘Current Events’ Category

Amam Feisal  Abdul Rauf by Tom A. Peter / The Christian Science Monitor / Getty ImagesRadio talk show host Michael Medved got it right when he urged President Obama to “welcome conversation to replace confrontation” in the debate about plans to build a mosque in lower Manhattan near ground zero (the Park51 project).

“If leaders on all sides managed to address the dispute in a broader perspective, it ought to become obvious that Americans actually agree on both of the key issues in the debate,” Medved wrote in “Time for a Mosque Beer Summit?

Issue one:  Muslims have the right to harassment-free worship.  Issue two:  The proposed location is a lightening rod for America’s concern or fear surround Muslims.  Medved asks, “What prevents the various parties to this battle from cutting through the multiple misrepresentations and misunderstandings to reach a meeting of the minds that would benefit everyone?”

That’s a good question, particularly since government officials including the likes of New York Gov. David Paterson has offered to help find a less controversial location for the mosque.

Sometimes a solution that seems so simple to third parties doesn’t even address the heart of a conflict.  Many Americans are still angry about Sept. 11, 2001.  Muslims don’t feel welcome in much of America, and holding on to one address in New York may be largely symbolic of their greater battle to win acceptance in this country.  If any situation could use a good mediator, this is it.

When two sides become as entrenched as those we see here, they need to talk in a neutral setting with an accomplished mediator who has the capacity to recognize the emotions behind the conflict, to ensure that each party listens to and acknowledges his opponent’s position, then to help them move beyond to a workable solution.  We call this a “win-win,” when both parties end up with what they essentially wanted in the first place.

It’s hard to get there, though, when people keep shouting at one another, clinging to their rights and refusing to come to the table where a meeting of the minds can occur.

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Am I the only one who is tired of political rhetoric?  Am I the only one tired of turning on the TV and radio only to hear Rush Limbaugh, Keith Olberman, Bill O’Reilly, Randi Rhodes, Glenn Beck and Rachel Maddow earning big bucks for doing nothing more than repeating sound bites, talking points and arguing extreme perspectives on every issue?  How did we get to the point where political debates were so politically correct that our leaders are afraid to say anything that their base might disagree?  How did “We the people” allow our politicians to become puppets to special interest groups and lobbyists with the largest budgets?

It really is time for a change.  In a time where more mediators are running for office, bringing with them the skills that conflict resolvers use, and where for a recent judge seat in Los Angeles County, four mediators were among those running, I think the change is more one of process than of ideals.  While most will agree that President Obama has certainly been a change from his preceding President Bush, many would also say that policy change has not solved the problems we face.  What is needed instead is process change.  Until we change the way we do leadership, in government, big business and in every organization, whether a massive homeowner’s association or a small non-profit board, we will continue to face the same frustrations, the same failures, the same disenfranchising, and the same power struggles.

John KavanaghKyrsten SinemaThis is why I decided to hold our Immigration Dialogue 2010 at the Skirball Cultural Center in Los Angeles on July 23rd.  Sponsored by the American Institute of Mediation, this will be a discussion of a different kind.  Rather than hosting a debate, where each side slings sound bites and talking points at the other, and the result is that each audience member becomes even more galvanized behind the position they carried with them into the debate hall, we are putting on a facilitated dialogue, essentially a mediation, featuring Arizona Representatives John Kavanagh (R) and Kyrsten Sinema (D).  We will discuss the immigration issues facing our nation, and have some discussion about Arizona’s controversial SB 1070, which is due to become law on July 28 of this year.

These two lawmakers, both intelligent and articulate, along with their constituents, have lived with these issues up close and personally in recent years.  Because of their experiences and their perspectives on the immigration issues we all face today (the fact that there are somewhere between 11 and 12 million illegal immigrants living in this country), we can delve into the underlying interests that they and their constituents hold, that are driving their positions on the solution.

In hosting this event, the American Institute of Mediation is hoping to commence a change in the way we all talk about the critical issues that face our society, and to become more collaborative and a little less competitive; to listen more and argue less; and to explain, describe and attempt to understand, rather than simply repeating sound bites and talking points.

We will attempt to find the underlying interests that they have in common, and build from there because we believe that solutions that are derived from people’s interests are generally strong and long lasting, and we hope to demonstrate this by moving this discussion in that direction using the same skills that mediators use on a daily basis.

If a mere 120-minute dialogue about immigration among stakeholder representatives could curtail protests, boycotts and protracted litigation, wouldn’t you welcome the opportunity to watch such a conversation live and in person?  We expect to fill a 300-seat neutral venue in Los Angeles with members of the public, government, law enforcement and of course the media who would witness how parties interested in the controversial immigration question might come together to have a facilitated dialogue from which every state, not just Arizona, could benefit.

We will do all that we are able to provide a safe, protest-free venue, a respectful audience, media coverage and the opportunity for our guests to speak about their issues freely and fully.

I am donating my time and resources to this project because in my 16-year career as a mediator, I have never encountered a conflict that could not benefit from a structured mediative approach when the parties so need to have their interests understood.  I believe the immigration dilemma has been minimized to sound-bites and protests and is no exception to this rule. Our guests, as thought leaders on this topic deserve to be better heard and understood by those who disagree with them, and we are able to provide that forum.

We invite you to join us for this AIM Institute Special Event. Only 200 tickets will be sold, so register now before it sells out. Advance registration is required, and parking is free.  Video highlights will be available online at the AIM Institute site following the event.

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Saying Goodbye to The Great Teachers

Author: Lee Jay Berman

John R. WoodenJust one week ago, members of the mediation community gathered in Los Angeles to celebrate the life of our dear friend and mentor Richard Millen (see Mediation World Loses a Patriarch).  My friend Phyllis Pollack wrote a wonderful summary of that night in her blog.

Today, we lost the great teacher and coach John R. Wooden, long time and legendary UCLA basketball coach.

I’m wondering with these teachers now gone, will we continue to follow their lessons?  I’m wondering with them now gone, the Dalai Lama turning 75 and Nelson Mandella turning 92 next month, I’m wondering who will be our next great teachers?  Who will walk the talk and live a life that embodies both greatness and goodness?

Wondering this makes me proud to have been in the company of Ken Cloke last week.  Ken was a co-founder of Mediators Beyond Borders and has published prolifically.  Ken is a great teacher who lives a life of compassion and grace.  Erica Ariel Fox is another.  She founded the Global Negotiation Insight Institute and is working on her first book.  I see many other great mediator friends doing incredible work – teaching conflict resolution skills in prisons, or to children.  Most of them are growing and preparing into our next great generation of teachers.

Sports might offer us Coach K at Duke basketball or Phil Jackson and his blend of Native American,  Zen and Christian learnings, known for giving his multi-millionaire players books on philosophy, spirituality and balance.

I don’t think we’re going to see teachers of the caliber of Richard Millen and John Wooden any time soon.  They had so much in common, not the least of which was, to quote Kareen Abdul Jabbar on Coach Wooden, “he sent a lot of good people into this world.”

Coach Wooden had said that his proudest accomplishment as a player was being named Scholar Athlete of the Year at Purdue.  Richard Millen, a humble young man from Tennessee  became a Harvard Law graduate.  The national college basketball players of the year (man and woman) receives the John R. Wooden Award; the Southern California Mediation Association’s peacemaker of the year receives the Cloke-Millen Award.  Both men were selfless – Coach Wooden was paid $32,500 in his final year at UCLA in 1975; Richard Millen also made a small fraction of those mediators who he mentored.  Coach lived by, “Success is the peace of mind which is a direct result of self-satisfaction in knowing you did your best to become the best you are capable of being.”  While Richard Millen would agree, perhaps his favorite was, “A leader is best when people barely know he exists, when his work is done, his aim fulfilled, they will say:  ‘we did it ourselves’.”

Who will lead us next?  Who will be our next great teacher?  Who will be worthy of us learning from?  Will it be you?

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Lindsay_LohanLindsay Lohan is in trouble again.  She’s in trouble with a certain judge in the Los Angeles Superior Court… again.  This time, she may have gone too far.

Lohan is stuck in Paris with an allegedly lost/stolen passport and her attorney, Shawn Chapman Holley says Lohan will not be able to appear in court Thursday morning, May 20, as ordered.  Lohan’s hearing is to determine whether the actress-singer has complied with the terms of her probation order for her 2007 conviction for driving under the influence.  See:  “Lawyer:  Lindsay Lohan will miss court date“.

Los Angeles Superior Court Judge Marsha Revel extended Lohan’s probation hearing from a year ago in order to allow Lohan to complete her mandated alcohol abuse education.  Upon granting Lohan the extension last October, after first issuing a warrant for Lohan’s arrest for failing to comply with the requirements of her sentence, Judge Revel warned Lohan not to “thumb your nose” at the court, saying, “This is the last time we are going to be talking about re-enrolling and doing what you need to do.”

If she fails to appear, she will have violated her parole two times:  once for the failure to appear as ordered by the court, and a second time because Lohan was to have completed her alcohol abuse education program by this date, and according to Holly, Lohan has, “been in substantial compliance” but has apparently not been perfect in her ordered attendance.

Upon being notified that Lohan was unable to fly back from the Cannes film festival in time for her hearing, the judge indicated that she expected Lohan to effort all means and expense possible in order to appear.  Lohan’s father is expected to appear to plead with the judge to send his daughter back to rehab.

This is when I wish that there was an opportunity for a mediator to intervene in the process.  If that were possible, a mediator might first sit with the judge alone and ask her if she was able to allow for the possibility that Lohan’s passport might have actually been stolen.  The mediator could ask her if she could be open minded to the possibility of Lohan’s true innocence.  And that mediator might ask her what, if anything, Lohan could do to make it better with the judge – what proof would satisfy her, or what apology would trigger her forgiveness.  The mediator could remind judge Revel about her choices and about her goals and her moral compass, and about her career and her integrity, all to make sure she is making her ultimate decision with an open mind and with a clear view of all of her important perspectives, rather than out of frustration or indignation.

Then that mediator could sit with Lohan and do the same, asking her if she realizes the gravity of what has happened and whether she can see how this looks on tabloid TV when they show her partying in Cannes and then missing her court date immediately after.  The mediator might ask her to consider how the judge would look if she were lenient with Lohan, and ask Lohan how she thought she could take responsibility for her actions in a way that would convey real remorse and contrition.  By reminding her of the choices that she has – choices about what to do and how she goes about doing it, and walking her quickly through the likely outcome of each of her choices, the mediator could assist her in focusing on her big picture life goals and help her to avoid focusing just on this hearing and this ruling and miss the forest for the trees.

Individual coaching with each side in an escalating dispute is often helpful to keep them balanced and to try to help them keep their emotions from driving their decision making.

Eventually, a mediator could bring the judge together with Lohan and Holley and let them talk.  The judge might want to make it clear to Lohan that she had violated the court’s order and that there were a range of options at the judge’s disposal, including jail time.  Lohan would likely try to explain clearly the events that led to her passport’s disappearance and to come armed with a police report about the theft and a copy of the affidavit and request filed with the U.S. Consulate in Paris, and for Lohan to genuflect deeply and sincerely and apologize for putting the court in such a position.

From there, the judge would do as she saw fit.  She could find Lohan in contempt of court and order jail time, fines, or rehab, or she could believe her story and proceed with the hearing.  But whatever she chose, she would do so having had a sincere dialogue and from a place of being informed.  And Lohan, even if ordered to prison for a week or two, would at least feel like she had her opportunity to be heard.  But making a rash decision without looking into her eyes and seeking the truth would be unwise.

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Larry King + Shawn Southwick E! entertainmentOne of this week’s most talked about legal issues is whether or not Larry King will divorce his wife Shaun Southwick.  See “Larry King Divorce ‘Full Steam Ahead”.  Last week the media speculated about the state of Tiger and Elin Woods’ marriage.  The week before it was all about Sandra Bullock and Jesse James, and the week before that Charlie Sheen and Brooke Mueller.  Next week another couple with a marriage in crisis will take the spotlight amid accusations of cheating, disclosures of prenuptial agreements, divisions of millions in assets and child-custody battles.  Like many failed marriages, however, when the focus goes away the discussion about those matters will remain toxic.

Every day, famous and unknown families are torn apart by divorce.  Here’s a story that didn’t make headlines.  While it did not have a happy ending, the couple involved are still speaking to each other and making joint decisions about their children’s care.

He was a professor, she was a surgery nurse, and their girls were three and five.  Just like most folks in their forties, they had a house, individual retirement accounts, some stocks, some love and some anger.

This couple chose co-mediation, where they met with a pair of mediators:  she was a family law attorney and he was trained in psychology.  After the mediators facilitated rational conversation and give-and-take, the couple agreed on everything from dividing their belongings and support issues to a collaborative parenting plan for the girls.  They spent less than $2000 for the entire process, and more importantly, they remain civil and friendly to each other.  And they decided the outcome.  They retained control of their own lives.

Some people still choose to get divorced the old-fashioned way – where they let their emotions overtake their logic.  They fight over everything, including things they don’t even care about.  All they really care about is hurting the other one as the conflict escalates.  This method requires lawyers and judges.  One such young couple had $30,000 in community property and no kids.  When they finished fighting, her legal bill alone was $40,000.

Couples with children who choose to fight do damage in another way, too.  Their kids are watching and learning how to engage in conflict from their parents’ example.  These kids will grow up thinking it’s normal to have parents who don’t have the skills to get along and who have to be carefully seated separately at graduations and weddings (stealing the spotlight at their kids’ events).

Some may say that a couple’s approach to divorcing depends on whether it ends by mutual agreement or by deceit and betrayal.  I submit that it’s the other way around – that the way they approach divorce depends on their choice of process.  Maybe like other contracts, there should be a marriage contract with a pre-dispute mediation clause in it, meaning, “We love each other now, let’s agree now that if anything ever goes wrong, we’ll use mediation to sort it out civilly.”

It’s a mediator’s job to keep a divorcing couple on the civil path, where it’s a lawyer’s job to advocate for their client’s interest above all others.   The only thing divorcing couples have to do – celebrities or not – is make the choice to go the more civil path, and then let their mediator help them keep it there.  They should make this decision for themselves and for their children.

Nobody knows how many celebrities use mediation to divorce, mostly because mediation is confidential, but judging by the magazine covers in the supermarket, far too few consider it.  Maybe it’s because the financial cost of the divorce isn’t as daunting to them.  Maybe it’s because they have an ulterior motive for having their names on the front pages for an entire week.  Most of the couples in the news lately, however, have small children who are going to have to live for years with the consequences of their parents’ decisions about their break-ups.  I hope at least one of them reads this post and looks into mediation.  As you read this, you may know a couple who is in need of this advice.  It could save them a lifetime’s worth of regret.

What do you think about the viability of a prenuptial mediation agreement?

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ABC.com file photo of facebook front pageLane New, a 16-year-old Arkansas boy, convinced a local prosecutor to file misdemeanor harassment charges against his mother Denise for allegedly changing his Facebook password without his permission and posting personal information about him on his Facebook page.  Denise explained that she was exercising her parental rights because some of her son’s posting reflected what she believed was reckless behavior, including driving 95 miles-per-hour one night after a fight with a girl.  Denise is going to court on May 12.  See:  “Arkansas Teen Accuses Mom of Facebook Harassment

As always, there is a story behind this conflict, although the facts are few.  Denise went through a divorce five years ago and after she wrestled with mental health problems, Lane moved in with is grandmother with Denise declaring that she could not adequately supervise him at the time.

After reading and being shocked by her son’s Facebook posts, Denise evidently decided to take strong measures by locking him out and impersonating him, including posting some things of her own and conversing with his friends.

Clearly this is a mother and son who suffer from a difficult relationship and little, if any, ability to communicate.  But there were many choices available to Denise.  When faced with choices, we have an opportunity to pause and consider, not just the short term relief we may feel by venting our own frustration, but the long term effects of our actions in this moment.  Upon discovering the disturbing posts, Denise had time to consider her actions.  Unfortunately, instead of pausing to allow herself a moment to think strategically, it looks like she reacted emotionally and probably drove a wedge between her son and her that will be very difficult to heal.

In this conflict, Mom’s real interest seems to be the safe care and protection of her son.  Her son seems concerned about his privacy, independence, and the respect he wants to be afforded as a young adult.  Mediation would help them address these issues, matters the criminal court would consider irrelevant.  And it would result in an agreement born from their better understanding each other and from their realization that the others’ motives aren’t as evil as they first feared.

Ironically, Facebook’s slogan, “Facebook helps you connect and share with the people in your life” in this case was the opposite.  Lane and his mother turned to facebook precisely because they were unable to connect and share with each other.  While I believe that Facebook and other social media outlets have many advantages and are excellent communication tools, they are, unfortunately, a poor conflict-resolution forum.

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oprah winfrey courtesy afro.comOprah Winfrey last week settled the defamation case brought by Nomnuyo Mzamane, the former headmistress of Winfrey’s girl’s school in South Africa.  “Winfrey made certain remarks following a 2007 sex-abuse scandal at the Oprah Winfrey Leadership Academy for Girls in South Africa.  Mzamane’s lawyers claimed that, because of Winfrey’s visibility and popularity, she could easily sway the public to believe that her statements were fact rather than allegations.” said Afro.com.  However, “Winfrey’s defense for her statements was that she was exercising her right to free speech and she was just voicing her opinion about the incident.”  See “Oprah Winfrey Settles Defamation Lawsuit”.

What’s remarkable about their settlement is that Winfrey and Mzamane met together on the eve of trial without their lawyers to craft what their representatives described as a peaceful resolution to their mutual satisfaction.

Once a lawsuit is filed, litigants don’t usually meet together without their lawyers to try to reach a settlement.  Few lawyers would even advise it, and that’s not because the lawyers are always anxious to display their courtroom skills.  Normally, by the time a dispute makes it to trial, the parties have exhausted their own abilities to settle the controversy.  “According to the suit, there were several comments which drew the ire of Mzamane.” said Afro.com.  What it takes is someone who hears a statement like that and understands that the parties need to come together face to face, and it takes a person such as Oprah Winfrey with above average communication skills to accomplish what few can do on their own.

This is not to say that litigants meeting to talk about their cases isn’t wise.  But after months of litigation, people tend to become even more polarized, which is why having an experienced mediator there to facilitate the communication, keeping them on track as they talk about settlement, is often a good idea.  That’s the main reason mediation exists.  But most people need a skilled communicator who is not emotionally involved to facilitate the kind of peaceful conversation Winfrey and Mzamane had.

Mediation is the process of sitting down with the person or company with whom you have a dispute and talking about possible solutions.  Successful mediation involves brainstorming, negotiating, talking about the problem with the goal of resolving the dispute cooperatively, collaboratively, with the help of a professional, unbiased third party who brings experience and creativity.  And here’s the best part: the litigants retain control of the outcome, instead of turning it over to a judge or jury.  It is the peaceful way to resolve a dispute, the civil way, and I would argue, the new American way.

From all indications, I believe that Oprah would agree with me.

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“I don’t care if it’s Tiger Woods, Bernie Madoff, or Toyota, if an apology comes late it’s going to be seen as phony,” Atlanta lawyer Jimmy Faircloth told the Los Angeles Times recently.  Faircloth is among a number of litigators representing plaintiffs suing Toyota for alleged acceleration incidents involving its automobiles.  Most lawyers agree the Toyota acceleration litigation will be long, complex, involve multiple jurisdictions and reach “historic proportions.”  See “Lawyers Circle Toyota

I beg to differ with Faircloth, because I believe it is never too late for a sincere apology.

Here’s the dilemma:  Most product manufacturers that allegedly cause injury are advised against apologizing because it could be viewed as an admission of wrongdoing.  Most injured parties require something more than an apology to be made whole.  Defendants realize that no matter what, they are still on the hook for monetary damages, so why bother.  Besides, they think that no matter what they say, it won’t ever be enough.  Just ask Faircloth.

So why apologize?  I submit that it is almost always the right thing to do – both ethically and strategically.  From a strategic perspective, people (plaintiffs) will fight longer and harder in the absence of an apology.  And why is that?  Because absent expressions of real remorse or empathy from the alleged wrongdoer, the aggrieved person has no choice but to fill that vacuum with his or her own worst imagination.  Couple that with the frustration of not having expectations of an apology or empathy met, and you have a recipe for explosion.

Wouldn’t a sincere apology from the Pope regarding the Catholic Church sex abuse scandal ease a good deal of the public’s outrage about the Church’s handling of the incidents?  Without that, people fill that void by assigning to the Church feelings of apathy, indifference, even tacit acceptance, and it is that array of feelings to which people are reacting.

Akio Toyoda Apology from knx1070.comIn Toyota’s case, company President Akia Toyoda apologized publicly.  He said the important words, “I am sorry for any accident Toyota drivers have experienced … and I will do everything in my power to ensure such a tragedy never happens again.”  You can listen to his entire apology here:  http://aiminst.com/toyoda.

Is he sincere?  Only time will tell, but the world will be watching Toyota’s production quality very closely, and skeptically, to see.

Litigants don’t have the opportunity to offer or hear apologies such as the one Toyoda made to Congress and the world.  In civil litigation for monetary damages where lawyers and witnesses do all the talking, apologies are almost never a part of the equation (except sometimes on TV dramas).

Mediation is different, however.  In mediation, litigants come together for the express purpose of talking about their disputes in an environment that both encourages and facilitates apologies as part of resolution.  For some parties, hearing the words “I’m sorry” is part of being made whole.  For defendants, having the opportunity to say and mean those words can lift a burden they may have carried for years.

I have seen apologies work wonders for all involved in sexual harassment and discrimination cases, medical malpractice cases, product liability and personal injury cases.

Once, in a sexual harassment suit I mediated, after the plaintiff told how the harassment had affected her entire life, the defendant shocked us all when he literally confessed. “I did it,” he said.  “I did everything she just described.”  He could only do that because of the protections provided by mediation.  He went on to apologize, explaining that he thought they were all just goofing around, that everyone in their workplace flirted with everyone, that he never dreamed his actions affected her the way they had  and that if someone had ever made his wife feel the way she was describing, he would want to strangle the guy.  He apologized sincerely, asked for her forgiveness, and wanted to know what he could do to make it better.  Those are the three components of a real apology.  More important, his words gave that plaintiff exactly what she needed.  The modest amount of money she accepted meant less to her than the apology.

In a medical malpractice case, when the plaintiff talked of losing her elderly mother, the hospital’s risk manager answered, not by denying liability, but by telling her own story of loss – her elderly father in a hospital.  Upon hearing that, the plaintiff felt she had someone on the other side who understood her.  We were able to resolve that case in about 30 minutes with just one monetary offer.  Read more about this at http://aiminst.com/advopen.

So, my advice to Faircloth — and all who are skeptical about the motives behind apologies — is that the words “I’m sorry” mean something, no matter how long you have to wait to give or receive them.

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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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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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