Lee Jay Berman's EYE ON CONFLICT

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.

This 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.

Tags: 2010, Arizona, Bill O'Reilly, Dialogue, Glenn Beck, Immigration, Keith Olberman, law makers, legislators, Mediation, politics, Rachel Maddow, Randi Rhodes, Rep. John Kavanagh, Rep. Kyrsten Sinema, Rush Limbaugh, SB 1070, Skirball Cultural Center, state representatives
Posted in Current Events, leadership, Mediation Skills, Politics & World Events | 20 Comments »

One 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?

Tags: Brooke Mueller, celebrities, Charlie Sheen, child custody, children of divorce, co-mediation, divorce, Elin Woods, family mediation, Jesse James, Larry King, legal bills, Mediation, parenting plan, prenuptial, Sandra Bullock, Shaun Southwick, Tiger Woods
Posted in Celebrities, Entertainment & Sports | 10 Comments »

Lane 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.

Tags: "connect and share with the people in your life", communication, conflict, Denise New, Facebook, family group counselling, harassment, interests, Lane New, Mediation
Posted in Current Events | 2 Comments »

“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.

In 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.

Tags: apology, Bernie Madoff, Catholic Church, Jimmy Faircloth, Los Angeles Times, Mediation, medical malpractice, product liability, sexual abuse, sexual harassment, Tiger Woods, Toyoda, Toyota
Posted in Celebrities, Entertainment & Sports, Current Events, Politics & World Events | 35 Comments »

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!

Tags: ADR Section, California, Chief Justice Ronald M. George, Cross Cultural Conflict, Doug Noll, Jan Schau, Judge Frank Ochoa, Judge Kim Dunning, Judicial Council, Kelly Lazerson, Kern County Bar, Mari Frank, Mediation, Mediation Week, Orange County Bar, State Bar of California, The New Invisible, Therese Gray, Vickie Pynchon
Posted in Mediation Field | 2 Comments »

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

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

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

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

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

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

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

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

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

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

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

Tags: Alan Watts, Blaise Pascal, CSUDH, David Bohm, Dialogue, DRS, Ken Cloke, Krishnamurti, LA County Bar, Los Angeles Superior Court, Mediation, Neighborhood Justice Center, Pepperdine, Pepperdine Law School, richard millen, SCMA, State Bar ADR Committee, Straus Institute of Dispute Resolution
Posted in Uncategorized | 34 Comments »

Pink 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.

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.

Tags: Collaborative, Competitive, Compromise, conflict, Conflict Revolution, Dark Side of the Moon, EMI, entertainment, iTunes, Ken Cloke, Lee Jay Berman, Los Angeles, Mediation, Mediator, music, music business, Pink Floyd, record label, royalties, The Wall
Posted in Celebrities, Entertainment & Sports | 5 Comments »

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.

Tags: apology, Armenian Genocide, Brian Knowlton, conflict, defining success, Foreign Minister Ahmet Davutoglu, forgiveness, Lee Jay Berman, Mediation, Mediator, neighbors, New York Times, peace, Sebnem Arsu, Turkey, U.S. House Foreign Affairs Committee, underlying conflict
Posted in Current Events, Politics & World Events | 17 Comments »

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.

Tags: CEO Salary, conflict, extremist, federal contracts, leadership, Lee Jay Berman, Mediation, middle class, New York Times, Obama administration, politics, power struggles, Stven Greenhouse, U.S. Contracts, wage lever
Posted in Current Events, Politics & World Events | 3 Comments »

The controversy surrounding the tragic death this week of SeaWorld trainer Dawn Brancheau reminded me of one of the foremost rules of conflict resolution:  You must listen to the other side’s argument with the goal of  understanding the opposing perspective.

Brancheau drowned when one of the Orcas, or “killer whales” held her underwater.  Eyewitness accounts say the whale jumped from the water, grabbed Brancheau and shook her violently before submerging.  See “SeaWorld Trainer Killed by Killer Whale”.

Some say that wild animals should never be in captivity because they will almost always respond to the less-than-ideal conditions in ways that will harm or kill their human caretakers.  Others argue that for scientific reasons, and to gain information about how to care for populations in the wild, the animals held in captivity contribute to the greater good of their species.  The benefits are worth the risks caretakers knowingly assume, they say.

When most people are in a dispute, the first thing they do is stop listening, or only listen with a view toward formulating arguments to prove their point.  While that might help win an argument (and possibly lose a friend), it won’t resolve the conflict.  The only way to settle a dispute or solve a problem of any kind is to listen carefully and with an open mind to what the other person is saying.  Perhaps his or her point is actually true or has a valid basis.

In mediation, I learn people’s underlying interests by encouraging them to tell their perspective until they disclose what is really keeping them from resolution.  That’s what listening accomplishes:  a better understanding of what your opponent believes you are doing wrong and how he or she wants you to help fix the situation.   If you listen the way a mediator does, you can also uncover a surprising number of commonalities and points of agreement.

If both sides of the whales-in-captivity argument would stop talking and start hearing, they might discover they have the same goal:  the assurance that whale populations in the wild remain healthy and safe from extinction.  Beginning from that point might allow them to resolve together the peripheral issues of how to provide the most natural and welcoming accommodations for whales in captivity and exacting safety measures for their trainers.

Tags: conflict, death, killer whale, listen, mediaotr, Mediation, orca, SeaWorld, tragedy, whale captivity
Posted in Current Events | 6 Comments »