In a hearing on December 1, 2017 lasting one hour beyond the scheduled end time, the California Law Revision Commission (“CLRC”) gave its final approval to the Tentative Recommendation issued in June 2017 to create certain exceptions to mediation confidentiality. Its final approval is subject to the chair and /or vice chair approving further language revisions to proposed Evidence Code Section 1120.5 that were discussed and approved during this four-hour meeting.
At the meeting, the Commissioners took up all of the suggestions and comments set out in Memorandum 2017-61. Initially, it agreed to a minor word change of “professional requirement” to “professional obligation” in proposed Evidence Code section 1120.5(a)(1) to be consistent with other statutes. It then launched into a major discussion lasting approximate ninety minutes whether the exception should apply ONLY to state bar disciplinary proceeding as was suggested at its last meeting. Ultimately, the Commissioners voted NOT to limit the exception to state bar disciplinary proceedings but rather to stay with its original inclination that the exception should apply to (1) a legal malpractice civil action; (2) a fee dispute brought under the Mandatory Fee Arbitration statue; and (3) a state bar disciplinary proceeding. Towards the end of the hearing, the Commissioners voted to include into the exception, a legal malpractice action that is arbitrated rather than filed in court.
One suggestion was to include “fraud” and “breach of fiduciary duty” into the exceptions but the Commissioners declined deciding that the language already in the statute was broad enough to cover these precise claims.
The Commissioners further declined to place into the statute itself language explaining about mediated settlement agreements now found in the Comment section as well as declined any further action to address the possible inconsistent evidentiary issue raised in an action involving both a complaint and cross-complaint. While the exception would apply to the complaint, it would not apply to the cross-complaint. The CLRC voted to leave this issue to the courts to adjudicate.
The CLRC also declined to address the issue of what, if any, impact, a successful malpractice action would have on a prior settlement agreement. Would it unravel the settlement? Again, under the belief that collateral estoppel would not apply, the Commissioners viewed it as a non-issue.
The Commissioners did agree to add language within the statute (Section 1120.5(a)(3)) reciting the same exceptions that now appear in Evidence Code 703.5: that while a mediator is generally incompetent to provide oral and written testimony, this incompetency is removed in matters giving rise to civil and criminal contempt, constitutes a crime, be the subject of investigation by the State Bar or Commission on Judicial Performance; and give rise to disqualification under certain provisions of CCP 170.1. But, the Commissioners declined to add a cross reference to the definition of “writing” as contained in Evidence Code 250 on the basis that such is not usually done.
Perhaps one of the most important issues taken up by the Commissioners was “notice”. When and to whom and how much notice should be given to the other parties to the mediation that one of the exceptions to mediation confidentiality given has been invoked? After much discussion lasting close to an hour, the Commissioners decided that not only would the notice requirement apply to all three categories of exceptions (The draft statute as presently worded requires notice ONLY when a civil action for legal malpractice is filed and NOT to state bar disciplinary actions or mandatory fee arbitration disputes.) but the party instituting one of these three proceedings must provide notice that (1) there is a dispute under the relevant subsection of proposed Evidence Code 1120.5, (2) mediation confidentiality is at issue in that confidential information may be disclosed, and (3) the notice includes a copy of the complaint. Reasonable notice is to be given prior to the invocation of the exception to mediation confidentiality.
Once again, the issue of awarding attorney fees to a mediation participant who is a non-party to the legal malpractice action, mandatory fee arbitration dispute or state bar disciplinary action who moves to protect his/her confidential information was discussed. As before, the Commissioners declined to include any cost shifting provisions, believing that existing statutes can resolve this issue.
The next to the last issue considered had been raised several times but never decided by the CLRC: contractual waivers. While the original legislative mandate in AB 2025 included the consideration of contractual waivers, the CLRC had up to now put aside addressing it. At this hearing, it definitively agreed to prohibit such waivers. The proposed statute will now include a subpart (h): “Any agreement purporting to override this section is null and void.”
Finally, the Commissioners again took up the issue of the possible obligation of either the attorneys or mediators to inform mediation participants about the exception. As on previous occasions, they demurred, declining to make any recommendations on this “informed consent” issue believing that if counsel is involved in a mediation, they have a duty of full disclosure under the California Rules of Professional Responsibility and if the participant is self-representing- the issue does not arise.
So- at a few minutes past 6:00 p.m., the Commissioners voted to approve the Tentative Recommendation subject to the revisions to be made in the proposed statute as just noted and approved by the Chair and/or Vice Chair. By taking the vote at this meeting rather than putting it over to its meeting in February 2018, the Commissioners realized that their Tentative Recommendation would make it into the upcoming legislative session in which all legislative bills must be submitted prior to its next meeting. In short, there would have been a delay of a year in submitting this to the Legislature had they waited until February 2018 to finish up.
To those who are interested in this subject with views one way or the other, I urge you to contact your state legislator.
On September 28, 2017, the California Law Revision Commission met to review the public comments it had received to its Tentative Recommendation (issued in June 2017) following its study to create an exception to mediation confidentiality (Study K-402). The clear majority of the comments opposed the Tentative Recommendation. Retired Judge David Long testified that he counted 23 organizations and 439 individuals (or total of 462) against the Tentative Recommendation and only 11 to 16 organizations and persons in favor of it.
Given the above, Chief Deputy Counsel Barbara Gaal listed five (5) possible options that the Commission could consider (Memo 2017-52): (1) Proceed with the current proposal; (2) Provide an informational report only to the legislature; (3) Limit the Exception to private attorney-Client Discussions in a mediation context (using the language of the original AB 2025 bill); (4) Develop an Informed Consent Approach and Circulate a Revised Tentative Recommendation; or (5) Revisit the Full range of Options Raised in This Study.
Bearing in mind that the Commission has been studying this matter since the Spring of 2013 and that more than 3500 pages have been generated in the many memoranda issued by Ms. Gaal, the “Sunk Cost “fallacy kicked in. That fallacy is defined as:
Individuals commit the sunk cost fallacy when they continue a behavior or endeavor as a result of previously invested resources (time, money or effort) (Arkes & Blumer, 1985). This fallacy, which is related to status quo bias, can also be viewed as bias resulting from an ongoing commitment. For example, individuals sometimes order too much food and then over-eat ‘just to get their money’s worth’. Similarly, a person may have a $20 ticket to a concert and then drive for hours through a blizzard, just because s/he feels that s/he has to attend due to having made the initial investment. If the costs outweigh the benefits, the extra costs incurred (inconvenience, time or even money) are held in a different mental account than the one associated with the ticket transaction (Thaler, 1999). (https://www.behavioraleconomics.com/mini-encyclopedia-of-be/sunk-cost-fallacy/)
After listening to members of the public testify for over two hours, the Commissioners, considering all the testimony they have heard both at this meeting and all prior meetings, acknowledged that much opposition exists to their Tentative Recommendation. Yet, at the same time, they felt duty bound to address the question that Justice Chen proposed in his concurring opinion in Cassel v. Superior Court (2011) 51 Cal 4th 113,139-140:
This case does not present the question of what happens if every participant in the mediation except the attorney waives confidentiality. Could the attorney even then prevent disclosure so as to be immune from a malpractice action? I can imagine no valid policy reason for the Legislature to shield attorneys even in that situation. I doubt greatly that one of the Legislature’s purposes in mandating confidentiality was to permit attorneys to commit malpractice without accountability. Interpreting the statute to require confidentiality even when everyone but the attorney has waived it might well result in absurd consequences that the Legislature did not intend. That question will have to await another case. But the Legislature might also want to consider this point.
So, they quickly decided that options 2, 4 and 5 were off the table: they were not going to take a fresh look at the whole matter again (after having spent 4 years on this (option 5)), and besides the notion of informed consent (option 4) had been voted on and vetoed several times previously. Nor were they going to provide merely an informational report (Option 2) given the time and effort put into this study.
This left Options 1 and 3 to consider. While some of the Commissioners were in favor of option 3- although, it, too, had its difficulties, the point was raised that this option (which was to limit the admissible communications as those directly between the attorney and client as set out in the original legislative bill AB 2025), had been vetted and vetoed by the Commission early on in this process.
The Commission was left with option 1—to proceed with the current proposal. But, one of the members of the audience had suggested that the exception be limited to allowing such evidence be introduced ONLY into state bar disciplinary proceedings. The Commissioners decided that this should be explored and requested its Chief Deputy Counsel to explore the notion of limiting the exception as applying ONLY in state bar disciplinary proceedings. The Commissioners also requested its Chief Deputy Counsel to review the various public comments suggesting minor changes in language to the proposed statute and to discuss these suggestions in a memorandum.
Consequently, the CLRC will meet again to discuss (1) limiting the exception to state bar disciplinary proceedings only; and (2) tweaking the language of the statute on December 1, 2017 in Sacramento.
One of the Commissioners noted that the CLRC should not really worry about what happens to its recommendations in the legislature. It should simply take on the task assigned, do the best job possible and report back to the legislature.
So, despite the extensive opposition to the proposed legislation, it appears that it will go forward to the legislature in some fashion. Another example of the Sunk Costs Fallacy in action.
Recall that the California Law Revision Commission has proposed that California law be amended to strip mediation communications of the confidentiality protection they now enjoy if the communications become “relevant” to a malpractice case in which a client sues his or her lawyer for misconduct during a mediation. The new statute would also subject mediators to subpoenas demanding production of documents received by the mediator from the mediating parties where such documents (in the possession of the mediator) are arguably relevant to the legal malpractice case.
The Staff of the Law Revision Commission has recently summarized the supporting and opposing submissions received by the CLRC during the public comment period that ended on September 1. Memorandum 2017-52 (www.clrc.ca.gov/pub/2017/MM17-52.pdf[‘.
In this Memorandum, the Commission Staff characterizes the public comment on the Commission’s legislative proposal as “decidedly negative” and “unfavorable”. Memorandum 2017-52, p. 1. Staff’s remarkably candid — even courageous — memorandum, notes that “the degree of opposition to the Commission’s proposal suggests that careful reexamination of the competing considerations is in order.” Emphasis original. Staff Memorandum 2017-52, p. 12.
In summarizing the opposition to the proposal, the Staff states that:
The 155 pages of comments include scattered words of praise or appreciation for the Commission, its staff, its process, and its work on this study. In general, however, they do not have much positive to say about the Commission’s proposal.
Ten stakeholder organizations submitted comments opposing the tentative recommendation or expressing serious concerns about it. Among those organizations was the Civil and Small Claims Advisory Committee of the Judicial Council of California (hereafter, “Civil and Small Claims Advisory Committee”), the key group responsible for expressing the position of the California court system on matters affecting civil cases. Also included were two other particularly important groups that had not previously spoken up in this study: the Consumer Attorneys of California (“CAOC”) and the California Defense Counsel (“CDC”), which took the unusual step of submitting a joint letter on the matter. . . .
In contrast, the only stakeholder organization expressing support for the tentative recommendation was the Conference of California Bar Associations (“CCBA”), which has championed the need for an attorney misconduct exception since well before this study began. . . . [Footnotes omitted. Memorandum 2017-52, pp. 6-8.]
In its final comments, the Staff also notes that:
the Commission should bear in mind that elected officials . . . will be understandably reluctant to do something that is firmly opposed by their constituents, as well as groups that speak for a sister branch of government (the Civil and Small Claims Advisory Committee and CJA). It might not even be possible to find a legislator willing to author a bill to implement the proposal. [Staff Memorandum 2017-52, pp. 33-34.]
It is fair to say that the Staff Memorandum summarizing the positive and negative comments on the proposed legislation candidly presents the case for and against the changes to mediation confidentiality the Commission has tentatively proposed. But the Staff Memorandum also carefully and forthrightly reminds the Commission that:
The opposition to the Commission’s tentative recommendation can only be described as overwhelming. It is not unanimous, but it is deep and widespread. California’s Mediation confidentiality statute may differ from those in other jurisdictions, providing greater protection in some respects, but a broad range of stakeholder organizations and many individuals appear to be well-satisfied with that approach and offer many reasons for their position. [Staff Memorandum 2017-52 at 33.]
The next meeting of the Commission is Thursday, September 28, 2017, in Sacramento. Details here. Comments on the Commission proposal may be directed to Barbara Gaal, Chief Deputy Counsel, California Law Revision Commission, either by mail, to 4000 Middlefield Road, Room D-2, Palo Alto, CA 94303; by fax, to 650-494-1335; or via email, to firstname.lastname@example.org.
The California Law Revision Commission’s proposed legislation — which would strip mediation communications of their confidentiality where they are relevant to a claim of legal malpractice arising out of a mediation — has been available for comment since June of this year. And it has drawn a great deal of comment, both pro and con.
Included is opposition from the Honorable Raymond M. Cadei, of the Civil and Small Claims Advisory Committee of the Judicial Council of California. In these Comments, this Committee of the California Judicial Council expresses concern that “there has not been a sufficient showing that attorney misconduct in mediation is frequent enough to justify the risks” that adoption of the proposal “could discourage both participation and candid discussions in mediation”; “could discourage individuals from serving as mediators, particularly in court-connected mediation programs; and might “increase the number of malpractice claims brought” as a “means of providing leverage to change settlement agreements reached in mediation”.
This was a special opportunity for networking at a beautiful USC Gould School of Law venue with h d’oeuvre on the outside patio as the sun set. The highlight of the evening was the presentation of the Cloke/Millen Peacemaker of the Year Award presented by Ken Cloke to recipient Forest Whitaker.
Ken Cloke introduces Forest Whitaker
In his presentation remarks Mr. Cloke commented that in addition to his exceptional career as an actor, Mr. Whitaker’s commitment as an activist is impressive. Not only did he create the Whitaker Peace and Development Initiative (WPDI)with projects in the US, Mexico, Uganda, and South Sudan, he is a UNESCO Special Envoy for Peace.
He next commented on the similarity of work of WPDI and Mediators Beyond Borders (MBBI). Both organizations are currently in Uganda and South Sudan, where the WPDI launched a sport center and a computer center in a strategy to promote peace-building at the local level and MBBI is brining Trauma Informed Peace Building Skills to the grass roots.
Cloke added “Having worked myself in Africa and other places around the world, these tiny little things we can do make an enormous difference.” “It’s a great honor to be identified with this award, and an even greater honor to have it bestowed upon someone whose work is so profound.”
He closed with this observation about the impact of individual efforts in peace building: “You can count the number of seeds in an orange, but you can’t count the number of oranges in a seed.
Forest Whitaker addresses
Mr. Whitaker shared that he grew up in South Central Los Angeles and saw many of the kids he knew “…drawn into lives of gangs and drugs and violence, and (he) saw how it robbed them of their futures.” He further observed that “to truly transform a conflict, change must come from within…you have to engage that person as an active partner in his or her own development.”
In creating WPDI he “wanted to build a network of youth peacemakers and mediators
SCMA Board of Directors and Award recipient, Forest Whitaker
who could act as positive transformers of their communities and countries…” Using the metaphor of working on his grandfather’s farm he reflected on how important it was to protect the seeds you plant to ensure their growth and development and by analogy if “we fail to engage our fellow citizens as partners and peacemakers and not nuture the seeds, then around them weeds will grow and take root…weeds of violence,
Lee Blackman, Ana Sambold and Anne Sawyer
extremism, racism and intolerance can sprout through cracks in an sidewalk..penetrate the walls of any seed and corrupt its very identity.
Chris Welch, Krystal Koros, Ryan Lui
Leonard Gross, Lizabeth Hasse, Ahmed Ellsisy, Rich Birke
Scott Martin and Carrie Ann Kiel
Jim Cameron, John McDowell, John Hanrahan, Lee Jay Berman
He quoted Desmond Tutu who said: “Do your little bits of good where you are. It’s those bits of good put together that overwhelm the world.” Then Mr. Whitaker closed by acknowledging the importance the work done by mediators stating that “…mediation can be fundamentally an act of goodness.
Through mediation, we can help individuals come together to find moments of human understanding.”
“Us and them. And after all we’re only ordinary men.
Me and you. God only knows it’s not what we would choose to do.
With, without. And who’ll deny that’s what the fighting’s all about.” Pink Floyd
Historically our civilization has evolved primarily as successful hunters and gatherers. This evolution has been largely shaped by our environment, which gives us new resources and technology to continue our journey. But make no mistake about it, we are and will always be hunters and gatherers. It is embedded in our DNA. In this role our instincts require us to do what prior generations did which is to take as much of the resources available that we can get at any given time because they might not be available in the future. This explains a lot about what has happened to cases that jump into early mediation without analyzing the readiness or actual value of a case. This piece will address those issues. The current thinking is that a lawsuit gets filed and the court encourages the parties to jump into mediated negotiations, whether or not discovery has taken place or legal issues have been sorted out through law and motion. This is contrary to our hunter and gatherer instinct and has contributed to some awkwardness on the part of trial lawyers engaged in early settlement discussions. While early negotiation does work in some instances and has been embraced institutionally in the past, it has led to a lethargic approach by some litigators to settlement. By this I mean that some folks simply show up and hope that their adversary comprehends the real value of their case without a proper exchange of data critical to an evaluation. This lethargy is due to what some commentators have described as the failure to consider the “intermediate steps between filing a case and mediating” that are critical to a successful mediated negotiation. The Conflict Continuum It is helpful to consider a dispute as a continuum of conflict where on one end is the “dispute” and the other end is “resolution”. In the middle are a number of signposts where the parties have real and substantive moments to reach closure. On the right end of the continuum is a jury trial, which is the most effective and elegant approach developed by our judicial system. It has succeeded for centuries and is the cornerstone for everything else that flows from the system. The real challenge with the jury trial is that it is only available for less than 3% of all cases. That means the civil justice system had to create other methods to deal with the 97% of cases that are in need of resolution. On the left end of the continuum is self-help. While it is not encouraged in the face of breaking the law, it is a common form of dispute resolution where parties take matters into their own hands. Early hunters and gatherers used this approach instinctively until it became illegal in most civilized countries. In the U.S. legal system we see it used in zero sum financial matters such as wage and hour class action cases where employers settle directly with their workforce (Chindarah v. Pick Up Stix, (2009)171 Cal App 4th 796) before the other side is aware of their action. It is also used in employment matters where offers of reemployment are offered, and in family matters particularly where children are involved. In between the two ends of the continuum lie the bulk of processes that are primarily designed to get cases settled. Following “self-help,” the parties absolutely need these two intermediate steps before engaging in Mediation:
1. Self Help – Explained above.
2. Communication – This is the part where lawyers are supposed to talk to the other side to gauge their desire for resolution. It might be a friendly exchange of data, a simple question about how their client feels about early resolution, or a firm “this case is going all the way.” In any event, some type of communication is warranted before taking the bait and going to mediation where bad news is expensive. 3. Negotiation – More often than not I am told by parties to mediation that there is no demand to settle and they have no sense of where the other party is coming from. Instead of pre-qualifying the case in advance, they use their best instincts and knowledge of the other lawyer’s leanings to surmise expectations. When they hear the first demand at the mediation that same hunter and gatherer instinct kicks in and they threaten to leave. We begin flailing to keep parties at the negotiation table. To say it is exhausting is an understatement. 4. Mediation – Trials are vetted way in advance because parties have exchanged substantial information about their case. The jury is now ready to hear the entire story and can make an informed decision on the outcome. Mediation, particularly early mediation, is often not vetted in this manner which is why it sometimes fails. That is not say that early mediation is not useful for settling cases. It’s just that our hunter and gatherer instinct forces us to ask for value that might not be present, or have more optimism in our position than we should if our case was fully vetted. How to properly appraise a case for mediation is similar to how you might vet a case for trial, but you have compressed all the time and expense into smaller arena.
5. Jury Trial (or Arbitration) – Explained above.
Here is a simple checklist when vetting a case for mediation that can be considered as a starting point that I suspect will be supplemented for by your firm.
Intermediate Step Checklist
a. Insurance – No matter the type of case, knowing the identity of the insurer, their policy limits, the deductible, whether there is a reservation of rights and their position on coverage is a basic first step. This applies across the board and could include class actions, business disputes and routine tort cases. Gathering intelligence about the insurer and it’s propensity to resolve cases early, who they use as counsel, whether they will attend a settlement conference in person or handle via phone are all critical considerations.
b. Ability to pay – In the employment litigation arena, particularly wage and hour class actions, having a great case with large penalties is not enough to save the day. Understanding the nature of the employer and their business, and whether they can respond to “reasonable” settlement proposal is just as important.
c. Company on the market to be sold – How often do we read in the Business section of the newspaper that certain companies are merging or being bought by other companies. This information is readily available on the internet, particularly when dealing with public companies. This information creates a dynamic that is sometimes useful for settlement, depending on the timing of the negotiation.
d. Claims administrator needs to move files – Surprisingly, many lines of disputes involve insurers have plenty of funds in reserve but are literally backed up in their claims department with files. These files are waiting to be settled but we often don’t know it. If a defense lawyer reaches out on a case, it might not be a bad idea to find out if the carrier is in a “run off” type business or simply needs to move files.
e. Mood of the marketplace – With the exchange of electronic information via listserv and other electronic bulletin boards, lawyers are able to gauge which lines of disputes are settling and the range of value. That being the case, consider where your case stands in the marketplace. It might be that your case is such a unique outlier that you would not want to negotiate early because the value will only come after certain damage depositions are taken. On the other hand, you might need to move the case quickly because of the many minefields it has such that you are more than willing to settle for market value or less.
f. Current state of legal defense – This is really a question of uncertainty in the law. In wage and hour class action litigation there are usually a number of areas where an employer simply can’t rely on a clear rule or approach in paying wages. The uncertainty opens the door to settlement opportunities, particularly where the plaintiff is reasonable. It does not give rise to settlement opportunities for hunters and gathers who want to eat all the vegetables they find in the garden.
g. Opposing counsel – Reasonable counsel usually means reasonable clients. Follow the cues when counsel opens the door to discussions about the case. It is hardly a sign of weakness to want to discuss settlement.
h. Case facts – Some facts speak for themselves and others require a lot of explanation. Most cases fall into the latter category. If your case speaks for itself, offer up transparency in providing whatever information your opposition requires to fully evaluate the merits.
i. Information needed to evaluate – Put yourself in the shoes of your opponent. What would they need to advise their client about the case? Imagine they are drafting a formal report that goes through the strengths and weaknesses, and provides a financial quantification of your dispute. It would certainly be in your best interest to arm your adversary with whatever information might lead to a fair evaluation that opens the door to a reasonable negotiation. In other words, tee it up for the other side so that they can be your champion with their client.
j. Future cases with adversary – Are you a frequent flyer with this defendant or law firm? If so, make sure they know that the case at hand is either an outlier or falls within the scope of what they are accustomed to getting from your firm. Failure to do so will result in an evaluation that is mediocre.
k. Symbols matter – The Confederate flag became a symbol of hate in our country. It stood in several government buildings in the south until people used “self-help” to eliminate the symbol. Your confederate flag consists of nasty emails, defamatory statements about lawyers and their clients on electronic bulletin boards and so on. These symbols inevitably get into the hands of your adversary so be forewarned. Communicating in a respectful and principled manner in writing is the only way to properly vet a case for mediation.
Terms of Engagement After considering the above checklist (which will no doubt be supplemented to adapt to your case), it’s now time to negotiate the terms of engagement to mediate. Here are a few quick things to remember:
a. Scheduling – Mediators who understand how to close deals are in high demand, meaning that getting a last minute case onto their calendar is challenging. Consider reserving a couple of dates which select mediators a year in advance with an understanding that those dates will be returned to the mediator with ample notice if not used. Take advantage of the administrator for the mediator who usually knows how to herd cats;
b. Who will attend the mediation – When insurance is involved, particularly carriers from geographic distances outside your jurisdiction, do you need them at the table or will telephonic availability be acceptable? In a commercial setting, is the Chief Executive Officer attending or is s/he sending a subordinate? Discuss the pros and cons with your adversary and make it work for them.
c. Where will this mediation occur? – Generally speaking, a mediator is more effective in his or her neutral space. Conducting the session in a law office does work but doesn’t utilize all the skills a mediator needs develop a proper settlement dynamic.
d. Costs – In most cases, the cost of a successful mediation shared by all parties is miniscule compared to the value obtained in settlement. Don’t be penny wise and pound foolish. You get what you pay for, no matter the size of the dispute.
e. Pre-Mediation Conference – In any case that is sizable, schedule a short call with the mediator in advance of the mediation to highlight the areas that might be an impediment.
f. Agreements – Consider exchanging either a formal Settlement Agreement and Release or Memorandum of Understanding before the session. While there are some terms that are subject to negotiation and can be left out, at least the key terms can be handled without wasting precious time at the conclusion of the mediation.
We are hunters and gatherers. A form of entrapment is built into the civil justice system since it cannot handle our desire to eat all the cherries that are picked in the forest. As a result, we have asked mediators and others to assist in our efforts. Mediators are often misled and used as pawn when they are put into a case where the parties haven’t considered the intermediate steps outlined above. This has led to wasted resources and time, which is contrary to why mediation was placed into the system in the first place.
Self-determination (volition), sometimes, means mediation participants get to make ‘bad’ decisions
There’s nothing else like mediation! Arbitration is not like mediation. In arbitration, like litigation, someone ultimately imposes a decision on you. In mediation, the participants own the outcome, specifically because they are the decision makers. That ownership creates the buy-in, which lends itself to the durability for which mediation is so famous. See: Defining Mediation
One of my more uncomfortable lessons, early in my studies of mediation, involved coming to grips with the reality that participants have the right and responsibility, within the confines of capacity and conscionability, to make their own choices, good or bad. I am not a mental health professional. My approach to capacity is that it is either obviously absent or it is not obviously absent.
Is taking a job for less money, but with a cooler boss a bad decision? Could you ever imagine a scenario where you would be willing to trade $10,000 for an apology, if you didn’t have to come up with the money? Is giving someone whom you wish you could love a better custody & visitation agreement a bad deal? Mediated agreements or the lack thereof send important signals.
Since my early days with mediation, I have seen some things that have helped put my mind at easy about bad choices. Accepting less visitation than is customary may not feel right to you or me; but who’s doing the giving? Not the mediators. Giving first right of refusal for all holidays to the other co-parent may not seem rational. Not being ready for the conflict to end, even when being offered an exceptional deal, may simply be a request for more processing time (think-time), or time for the conflict or evolve or ripen.
“There is no such thing as a neutral question.” – Gail Bingham, “Views from the Eye of the Storm” Video Interviews with Leading Mediators, mediate.com. The mediators’ opinions are the only ones in the room that don’t count. I try to hold these two thoughts in my head.
It’s okay for participants to leave with a frozen (managed) conflict, with new strategies and tools for coping, with new insights, with a memorandum. That too is mediation (conflict engagement – Bernie Mayer, ‘Beyond Neutrality’). It doesn’t mean mediation didn’t help them; and it doesn’t necessarily saddle them with an ever-unresolved dispute. Relational complexities may dictate that the conflict participants cross the finish line without the mediator.
You are here: HomeMediation InsightsMaxims of Mediation I learned from my Mother
Some say that Mediators are born, not trained. If I have good instincts as a mediator, I’ve got to attribute them to my Mother, Bette, seen here with her 8th great-grandchild (and my Dad) last week. Here are the important lessons in mediation that I learned from Mom.
1) Self-determination/empowerment. I know mom had an opinion on everything we three did or said, but she was always good about letting us make our own decisions. In the end, we all have Graduate Degrees, have had good careers and have been married, collectively for over 130 years! We all have healthy, intelligent, sensitive and sensible children. Significantly, despite whatever life’s challenges have been thrown our way, we all have a great deal of affection for one another and for both of our parents. Not a bad message to have been given.
2) Impartiality. My mom was the ultimate balance-maker. If Ronnie was a passion-emblazoned liberal, Rick was a “good eater” which made him a good wrestler. If I passed the Bar, Ronnie gave birth to a little boy that year. And so on. She went to great lengths to be “omni-partial”–a good lesson for mediators as well. Everybody sees themselves as her favorite child.
3) Fairness. Mom has been fastidiously even-handed with gifts, praise, time and efforts. One year we all got bread-makers for Chanukah, although I’m pretty sure only one of us ever baked bread. The grandchildren know exactly what each birthday gift will be. There is no more power in anyone’s hands than in any others. Life is as fair as she is capable of controlling for each of us–always.
4) Confidentiality. Mom loves to tell a good story–and loves to hear them more still–but she is amazingly capable of keeping secrets when asked–for the sake of the others. Hence, she is also someone we all can confide in. Safely. Confidently.
Mom has provided a lot more of life’s lessons than these, but for a mediator, having a mom like mine has served me well. Her own mother, Helen, used to boast proudly about our diverse family saying: “We’ve got the whole United Nations”. Both were good role models to which any decent mediator might aspire.
On April 28th, the SCMA Education Foundation, along with the Western Justice Center, presented a hugely successful program highlighting Peer Mediation. Approximately 50 people attended the truly inspirational program!
In the days following the program, at least $500 has already been generated in
SCMA President, Elect Jason Harper
new contributions to the Education Foundation — an amount which SCMA will match pursuant to its “challenge grant!”
Peer Mediators from Fremont and South Pasadena High Schools