Posts Tagged ‘Lee Jay Berman’

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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Please join me at the Los Angeles County Bar Association’s Solocon 2010 on June 18 at the Pasadena Convention Center.  I am honored to be the luncheon keynote speaker, presenting “Adaptive Negotiation for Lawyers,” strategies to became a more effective negotiator.

Most lawyers negotiate very successfully, but generally have one style that you use in all circumstances—with opposing counsel, with clients, with partners, etc.  We find that a more refined approach can benefit lawyers most by understanding the different schools of negotiation that lead to different styles and methods.  Adaptive Negotiation for Lawyers is a program that illustrates these different approaches.  In 45 short minutes you can enhance your negotiation style from one that has always worked for you before and been most comfortable—because it is most consistent with your personality and your tolerance for risk and conflict.  It calibrates your negotiation style instead to be more strategic, reacting to what the situation before you requires, and making you an immediately more effective negotiator.

LACBA Solo LogoSolocon, co-sponsored by the Bar Associations of Pasadena, Santa Clarita Valley, Century City and Glendale, focuses on how to run a small or solo practice like a business and make it thrive.  Panels include:

  • Technology for Law Firms
  • Tips for Opening & Running a Law Firm
  • Rainmaking for Smalls & Solos
  • Building Your Social Media Strategy
  • Implementing a Solo Business Plan
  • Attracting the Clients You Want
  • When Solo Practice is NOT Solo
  • Credit Cards & Compliance Issues
  • Negotiation Tips

In today’s legal environment, when lawyers are being displaced, firms are merging, imploding and evaporating, new lawyers are having trouble finding employment, and lawyers are seeking a greater quality of life, practicing solo or forming new, vibrant, lean and efficient small firms is an important option.  For these reasons, Small and Solo Bar Sections are thriving.  I can say that this conference impressed me last year, in how it was run, how cutting edge it was, and with the quality of speakers.  I can hardly wait for this year’s conference next Friday!

For more information, visit http://aiminst.com/solocon.

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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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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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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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