Lee Jay Berman's EYE ON CONFLICT

Oprah 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.

Tags: communication skills, defamation, face to face, Harpo Productions, lawsuit, listening, litigation, Mediator, Nomnuyo Mzamane, Oprah Winfrey, Oprah Winfrey Leadership Academy for Girls, settlement, South Africa
Posted in Celebrities, Entertainment & Sports, Current Events | 4 Comments »

As 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.

Tags: accountability, David Herszenhorn, G.O.P. Healthcare Proposals, Healthcare, job creation, litigation, Mediator, Neutral, New York Times, NY Times, Obama, Obama administration, President
Posted in Current Events, Politics & World Events | 12 Comments »