Archive for the ‘Mediation Field’ Category

As a mediator and leadership coach, I have to say this:  While generally I don’t disagree with most of what Meryl Streep said during her acceptance speech for the Hollywood Foreign Press’s Lifetime Achievement Award at tonight’s Golden Globe awards, she did miss an incredible opportunity.

First, she used her audience, her station, and her status the same way she accuses President-Elect Trump of using his.  Then, by attacking him, all she did was up the ante and unify his supporters (half of our country), while ensuring that Newton’s third law of physics persists:  For every action, there is an equal and opposite reaction.  As long as any of us advocate for one “side” over another, or argue over who/what is right/wrong, and frame it as “us and them”, we simply continue volleying in the same game.  The only way to unify us as a people, and appeal to the vast middle of the bell curve, is instead to catch the ball, stop the game, walk to the middle of the court and have real dialogue, with listening, understanding, and acknowledgement.

If you were cheering her speech, you may be caught up in the game, too.  We call it confirmation bias, where you seek out what you agree with because it feels good.  If you are booing it, maybe you should listen again and hear her words.  The fact that she delivered them in advocacy doesn’t mean that they are wrong; it only means she said them in a way that some couldn’t hear them.  And perhaps with a little too much judgment.

As a mediator, I know that telling people they are wrong doesn’t change their minds.  And as one who regularly mediates with the biggest celebrities in “Hollywood”, I know that even the ballroom before her was divided.  I also know that her talk made it unsafe for any who disagreed to speak up.  That’s why the election polls were so inaccurate.

We should be seeking to make people stop and scratch their heads and think in a new way about things they hadn’t before considered, rather than seeking to make the majority cheer and raise a fist.  As long as both sides persist in the latter, we are trapped in this volley for the unforeseeable future.

I call upon my mediator and leadership colleagues, and on all of you reading this, to help change the game and create dialogue, modeling more inquiry and active listening than advocacy.  It is up to all of us.

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Senator John Boehner and President Barack Obama“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights that, among these are Life, Liberty and the pursuit of Happiness.”   Sound familiar?  Having flashbacks to 7th grade history?  Me too.  The Declaration of Independence contains one of the most recognizable and quotable lines in history and it has a nice ring to it – life, liberty, and the pursuit of happiness.

Regardless of your political affiliation, polls have shown most Americans are unhappy with the job performance of our representatives on Capitol Hill.  It is hard to turn on a news program without hearing the constant arguing that seems to be the new normal in D.C.  It is as exhausting to watch as it is, I am sure, to participate in, and it is not making anyone happy.  Take a good look at John Boehner’s face on any given day and tell me that man is not miserable.  So, where is the happiness?  It is missing in government.

There is another part of The Declaration of Independence that reads, “…whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government”  Bear with me, I am not suggesting a massive overhaul, nor am I suggesting we abolish anything.  Perhaps simply alter government:  put Mediators in Congress, not as members, but simply as neutral parties armed with conflict resolution skills that will allow both sides of the aisle to compromise.

The issues plaguing our government are so polarizing that, no matter where you turn, someone feels like they are going to lose.    So often the idea of conflict in our society is resolved in a way in which one party is right and “wins” and one party is deemed wrong and “loses.”  It happens most of the time in our court systems.  This is not always the most productive path to conflict resolution and it certainly is not the most effective way to govern.  We have all, in our lives, gotten to a point of diminishing returns in a conflict – be it with a spouse, a friend, or a co-worker.  Such a point occurs when neither side is listening and everyone feels like they have something to lose if they budge from their position or, better yet, they disagree with an issue simply because the other side agrees with it.  In government this is referred to as political gridlock and it happens all the time.  Let’s take away that option but allow everyone the ability to save face.  A mediator’s skill lies in allowing parties the ability to compromise without looking weak.  A mediator gives the issue space to breath and offers a third option:  a solution instead of more conflict.  Imagine, both sides of the aisle given the ability and tools to govern effectively.  At the very least I think the House and Senate could use a class in conflict resolution techniques.

Consider this a Declaration of Resolution: somebody please put mediators in Congress!

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Court closes ADR ProgramI approached SCMA with the idea of doing a Town Hall in 2003 when the mediation community was divided like the red sea over the Rojas v. Superior Court Case.  That case pitted the confidentiality of the mediation process (and the evidence of mold discovered during a mediation, and its eventual remediation) against the needs of the families who had mold spores in their lungs and no way to prove liability, short of breaking the confidentiality of the underlying mediation.  That year, SCMA and CDRC, the two largest mediation groups in California wrote opposing amicus briefs to the State Supreme Court.  As a commercial mediator, I could see both sides of the issue having merit and thought that the best thing for the mediation community to do was to practice what they preach and come together to have a facilitated dialogue about the issue of the extent to which mediation confidentiality should extend.  After leading two years of public hearings on the state Senate Bill regarding mediator credentialing during the mid-90’s, I was very comfortable leading this kind of discussion and thought it would be good for everyone.  Since that time, SCMA has hosted a Town Hall most every summer.

This year, the reported closing of the Los Angeles Superior Court’s ADR program is a huge issue in the legal and ADR world, so a Town Hall style dialogue among mediators and advocates alike is really important.  The LASC mediation program was the largest in the world, and by administering some 25,000 mediations per year, was the envy of most other legal communities.  One of the largest benefits that the program provided, in addition to the obvious docket clearing benefit of a 50% resolution rate, was that it took the pressure off of counsel to risk appearing weak if they suggested mediation to opposing counsel by having the court order cases into the program so that counsel could save face.  One can only wonder how many of the cases that would actually benefit from a good private mediation will have that opportunity, as trial counsel simultaneously need to be zealous advocates for their clients in an adversarial proceeding.  I believe that proposing a mediation – an attempt to settle – is one of the hardest things to do for a trial lawyer. And the more their style leans toward intimidating, the harder it is for them to be congenial or appear open to settlement.

The reason that the local mediation community is divided over this is that at different stages in a mediator’s career, the program can be really helpful, almost a saving grace, or it can be the evil, undermining effect that keeps them from making a living.  You see, the LASC mediation program operated with a collection of some 2,000 trained mediators willing to mediate cases under $50,000 for the court on a volunteer basis for the first three hours.  The problem was that the court never respected the $50,000 cut-off intended by the original deal, which became SB 401, and eventually CCP 1775. As a result, the court deemed it fair game that ALL general civil cases were eligible for “free” mediation (for the first two hours of mediation time in every case, which quickly morphed into 3 hours by the late 1990’s).  This meant that for beginning mediators who were fresh out of training, the court was a great place to go and volunteer and get experience mediating with represented parties.  For intermediate level mediators, it was a great opportunity, and still one worth volunteering for, to raise their number of cases mediated and begin to develop relationships with trial lawyers on both sides of the aisle, as well as institutional parties, like insurance companies and corporate counsel.  But for more advanced mediators, looking to build a practice and pay the mortgage and feed their families, the court program soon became unfair competition, building on the backs of volunteer mediators, and by sending cases over $50,000 into this free program, potentially taking cases that would otherwise go to the private sector into the court’s jurisdiction by offering them free mediation. Today’s Tea Party should have had a fit over this.

As we look at it today, the possibility that this program appears to be going away on June 30, the only certainties we have is that the legal and ADR communities likely won’t have the court’s help in getting parties to the mediation table, and the likelihood of finding volunteer mediators for litigated cases will be little or none.  What we won’t know until this evening at the Town Hall being hosted by the Southern California Mediation Association is how the mediators and the bar will react to these changes.  Undoubtedly, some mediators will applaud them and say it’s about time, where others will mourn them and say that they feel like the mediators who are “in” practice already will have an even greater advantage over those trying to break into the profession.

In the end, I look forward to moderating a civil and productive dialogue will help generate creative ideas for continuing to promote mediation in litigated matters, and that as a community of peacemakers, we will find a way to serve those cases that might otherwise go un-served.  As a room full of mediators, I am certain we will find a way.

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December 20, 2012ACR Logo

The membership of the Association for Conflict Resolution mourns the tragedy in Newtown, Connecticut, along with all those shaken by it across the United States and around the world. We and many of our other colleagues stand ready to lend the full range of our professional expertise and devotion to processes that support healing, as well as those sustained efforts that will be required to facilitate dialogue, build consensus, and take action to address the deep rooted structural issues that contribute to this tragic pattern. Our membership includes thousands of dedicated and seasoned conflict resolution practitioners with a variety of specializations committed to the work that lies ahead.

Many ACR members, particularly those who are mediators, are also following a developing side story relevant to our field. News reports have disclosed some details of the mediated divorce of the perpetrator’s parents and provided comments alleged to have come from the couple’s mediator. ACR would like to make clear to the public that confidentiality is one of the basic principles of mediation, and that any mediator belonging to an organization, such as ACR, which has approved the Model Standards of Conduct for Mediators, is bound by that standard of confidentiality (http://www.acrnet.org/Educator.aspx?id=971). In addition, ACR endorses both the ACR Ethical Principles and the Model Standards of Practice for Family and Divorce Mediators which state “A family mediator shall maintain the confidentiality of all information acquired in the mediation process, unless the mediator is permitted or required to reveal the information by law or agreement of the participants.”

Each year in the United States, there are thousands of divorcing couples who choose to work together in mediation to find an outcome that is mutually satisfactory. ACR is committed to seeing that they and all mediation clients can be assured that they are protected from breach of confidentiality except where permitted by law or agreement of the parties.

ACR leadership and members continue to offer whatever support and care we can to the community of Newtown, the surrounding area, and the affected families, for whom we grieve.

Association for Conflict Resolution
12100 Sunset Hills Road, Suite 130, Reston, VA 20190
www.acrnet.org

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SCMA LogoThis year’s 22nd Annual Southern California Mediation Association (SCMA) Conference had an emotional start to the day.  The morning began with a Moment of Silence for our dear departed friend Richard Millen that included his son Jeff saying a few words on his behalf, followed by the awarding of the new SCMA-sponsored Richard Millen scholarship at the Western Justice Center in Pasadena, where the bright and promising recipient used his acceptance speech to quote some of Richard’s articles.  It was odd hearing the words of our 89 year old Zen guru mediator being channeled through the voice of a young man in his early 20’s, and with almost equal passion.

As if that wasn’t enough, Laurel Kaufer spoke next about this year’s Cloke-Millen Peacemaker of the Year award recipients – the women who carry life sentences in Valley State Prison for Women in Chowchilla, California, who wrote to Laurel and asked her to come and teach them conflict resolution and peacemaking skills, just as Laurel had done in Mississippi after Hurricane Katrina with the residents on the ground there.  We all watched tearful women talk about being murders, with life sentences, and learning for the first time in their lives to listen deeply, reflect back, ask open-ended questions, and how to create peace.  Chilling.

It was no wonder to me that when they awarded me the L. Randolph Lowry Award for education and learning in the field, and I began to talk about what it meant to me, especially being named for my friend, mentor and partner in traveling-the-country-teaching-mediation-and-negotiation, Randy Lowry.  To give you a clearer picture, Randy and I have taught side-by-side, from the gorgeous Pepperdine Law School in Malibu, to  to a group of franchisees San Francisco, a law firm in Chicago, a legal department in Cincinnati, nurses at a huge Dallas Hospital,  for a university in Jackson, Mississippi and Hilton Head, South Carolina, at Randy’s new home at Lipscomb University in Nashville, and to insurance adjusters in 15 states over 18 months.  We have sat side by side telling stories in the airport at 1am as our flight is delayed, knowing we’ll be up teaching at 8am.  We have been through a lot together.  He was there for me when my father passed away five years ago, and he and Rhonda have had me to their home, here in L.A. and also after they moved to Nashville.  Randy trusted me to mentor his son, when John entered the training and consulting business with us.  And Randy was the one who believed in me, that as a non-attorney mediator, I had something to teach to lawyers and judges at Pepperdine Law School and for the California Center for Judicial Education and Research.  He named me Director of Pepperdine’s Mediating the Litigated Case program, a position I held for 7 years, until he had left the University.

So, nobody blamed me when I choked up while accepting the award.  It was the proudest moment of my professional life (so far).

In order to save repeating what others have already done today, I’m going to point you to two very kind and thoughtful summaries of what yesterday’s conference meant to these folks:

Jan Schau’s Mediation Insights:   The Wisdom of My Mentors

Joe Markowitz’s Mediation’s Place:  The Funnel

There is also some thoughtful commentary here from Joe on attorney, judge and non-attorney mediators and what each brings to the table (and a candid assessment on what they don’t).

A final thought, for mediators, attending conferences and training courses is important – not just for what you learn, but for the opportunity to share the experience with other colleagues.  As I said in my keynote yesterday, our profession is an individual one where we are all, as my freind Alex Williams like to say, in our own foxhole fighting our own battle.  Coming to conferences and training courses refreshes us, keeps us tuned up with new tools and refreshing old ones, and keeps us in touch with those around us who share the burden of sitting between two or more people who are in an intractable fight, and thinking that we can do something to help them.  It can be lonely work.  I find it’s always good to get together with friends and colleagues who are doing this work, and share our stories, our challenges, and our learnings.  Just food for thought…

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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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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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Lee Jay Berman - med-150Hello and Welcome.  Please allow me to introduce to you my new blog:  Eye On Conflict.  I’m not the first mediator to blog, and I won’t be the last.  But like everything a good mediator does, this choice was well thought out and thoroughly researched before I embarked.

Beginning with the environment.  What you are seeing around this environment represents to me a lot about what I do as a commercial mediator.  At the top, the feather represents the light touch a mediator sometimes needs, as mediation is a lot about nuances, subtleties and a delicate touch.  And yet the coins represent the thing people are generally fighting over.  The pen indicates to me the ceremonious signing of the mediated agreement, which represents a person’s consent and their bond to adhere to the commitments made in that agreement.  The stone will always remind me of my dear friend Erica Ariel Fox’s Global Negotiation Insight Institute (GNII), as she uses it in her picture logo, and her teachings stay with me where ever I go, but especially in the mediation room.  The leaves relate to the acorn at the bottom of the page, where every great settlement – simple or complex – grows from the tiny acorn of an idea that often other people said would not work.  Kind of like a non-lawyer being a successful mediator working in the world of litigated cases.  Notice at the top how one is younger and rich in color, and the other is older and looks about to turn.  It is always my goal to mediate with the energy, stamina, wit and being the quick study of a young soul, but with the wisdom of a person seasoned with the years of a life in business, negotiating complex deals way beyond my years.  Given that when I began 15 years ago, I was a young-looking 32 year old, the first part wasn’t ever in doubt.  But I have always lived my live through the eyes of an 80 year old me, rocking on the front porch with a glass of iced tea in hand, looking back with the perspective of how my work this day, and the deal we reach, will be judged by me and others from that retrospect.

The dark wood represents the solid backing I have always had from my family, my friends, and from my loyal clients – often the lawyers who have trusted me with their clients most difficult disputes.  And the coffee stains at the bottom represent to me the many, many hours of hard work that have gone into creating my mediation practice, and that in a single day to any meaningful resolution.

This blog is intended to be a discussion, a dialogue with you, about mediation, conflict resolution, dispute resolution, conflict management and negotiation in settings from neighborhoods to workplaces to litigated cases to current events and global issues.  I welcome and look forward to your input, comments, additions, and disagreements.  Let’s talk!

My two themes, which you will find me repeating often throughout this site are:  There is no substitute for experience. And:  Tough issues call for masterful solutions.  I urge you not to underestimate either one.  And I hope, through the words that will follow in the days, months and years ahead, to provide both.

I will, from time to time, mention the training institute I founded in 2008, the American Institute of Mediation (the AIM Institute), and my radio talk show called Talk It Over.  I will do my best to avoid shameless plugs and only refer to them when there is a learning point or a resource that can be derived from them.  But I do hope you’ll check them both out.

One last thing, while I think my writing is conversational and easy to read, and grammar is generally OK, I’ll confess right now that just like when I drive my car, there are some rules I choose to follow and others I choose not to.  Case in point:  in writing, I choose to end sentences with prepositions, when it feels right to me.  There, I’ve said it.

I’m glad we could get a little better acquainted.  I hope you’ll stop by and visit again some time soon.

Until then,

Lee Jay

Lee Jay Berman
The Mediation Offices of Lee Jay Berman
Founder & President, American Institute of Mediation
Co-Host “Talk It Over” radio show
Complete C.V. and info at www.LeeJayBerman.com
More in mediation at www.MediationTools.com

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