Go to the Mountaintop

Fifty years ago this evening, 3 April 1968, Dr. Martin Luther King, Jr., gave his “I’ve Been to the Mountaintop” speech at the Mason Temple in Memphis, Tennessee. On a night with dire storm warnings, the church was packed to hear Dr. King speak about the Memphis Sanitation Workers’ strike. Unfortunately, this sermon was to be his last oratory masterpiece. Coincidentally, I pen this article precisely fifty years later on April 3, 2018 while Memphis is under dire storm warnings. Some things never change, including Memphis Spring storms and, more importantly, the relevance of Dr. King’s words.

With the 50th anniversary of the tragic killing of Dr. King, many articles and stories abound regarding the life and works of Dr. King, as well as his legacy. I have chosen to focus on one sliver of his incredible journey – one with a Memphis connection: Dr. King’s “I’ve Been to the Mountaintop” speech.

Foremost, the speech almost never took place. Dr. King was suffering from migraine headaches both before and during his trip to Memphis. He debated whether to make the trip from Atlanta. He suggested that then 26 year old Reverend Jesse Jackson should speak in his stead. He even discussed whether his speeches helped the underlying causes (we all have self-doubts!).

Dr. King himself addressed this initial concern in his Mountaintop sermon. Dr. King recited the Biblical story of the Good Samaritan. He noted how Jesus related that the priest and Levite in the parable passed by a man in distress in a dangerous area. The Samaritan, however, stopped and assisted where the men of religion and higher society would not. Dr. King speculated that the priest and Levite asked “If I stop to help this man, what will happen to me?” The Samaritan asked “If I do not stop to help this man, what will happen to him?”

If Dr. King did not involve himself with the Sanitation Workers, what would happen to them? Dr. King fought through his migraines and self-doubts to give his Mountaintop speech. Dr. King provided the same challenge to his audience at the Mason Temple: If you do not help the Sanitation Workers, what will happen to them? If we listen to these words today, we cannot merely rest on the sidelines when challenges present themselves.

Beyond migraines, the Memphis trip for Dr. King almost did not happen due to divide among some Civil Rights leaders. According to Jesse Jackson, by 1968, Dr. King saw the need for unity on causes as essential to achieving goals. Yet, many other religious leaders in the Civil Rights movement spoke of different approaches. Dr. King questioned whether he was a source of further divide rather than unity. Careful review of the Mountaintop speech reveals that he tackled that issue head on in his sermon.

As a mediator, I marvel at the approach of Dr. King in this regard. As to these leaders with whom he did not readily agree on key issues, Dr. King declared:

“And I want to commend the preachers, under the leadership of these noble men: James Lawson, one who has been in this struggle for many years; he’s been to jail for struggling; he has been kicked out of Vanderbilt University for this struggle, but he’s still going on, fighting for the rights of his people. Reverend Ralph Jackson, Billy Kiles; I could just go right on down the list, but time will not permit. But I want to thank all of them. And I want you to thank them . . .”.

Dr. King calls out these leaders by name and heaps praise on them and their efforts. Dr. King’s message of unity cannot possibly now be cast aside by these other leaders who Dr. King himself holds in such high esteem. Nicely done to marginalize these dissenting voices with acts of kindness, not criticisms!

As to the Mountaintop speech itself, it is masterful in structure and use of tools such as repetition. You can feel the cadence simply in reading the speech. Initially, Dr. King opines that if God would give him the ability to select any age to live in, Dr. King would reject the time God’s children escaped the bondage of Egypt with the phrase “But I would not stop there.” The time of ancient Greeks debating philosophy? “But I would not stop there.” The heyday of the Roman Empire? “But I would not stop there.” The birth of art masterpieces in the Renaissance? “But I would not stop there.” And so on throughout historical events until Dr. King selects his own time in the 1960s when Dr. King admits “the world is all messed up. The nation is sick. Trouble is in the land; confusion all around.”

Why would anyone select that time, especially a black preacher who confronted racism and hatred every day? For Dr. King, it was an easy call. Society was being forced to grapple with race and cultural challenges. He wanted in as part of this “human rights revolution”. It would not be easy but “only when it is dark enough can you see the stars.”

Dr. King made this selection knowing that his home had been shot, he had received numerous death threats, and he even was delayed on his trip from Atlanta to Memphis due to a bomb threat. His message of unity and non-violent protest was simply too important. He understood that the message was necessary at that moment and place in time. Would we choose an age with such challenges?

The Mountaintop speech provides almost endless stories and lessons in addition to the points made in the sermon. Yet, it is but a glimpse into the complex life and messages of Dr. King. He battled unjust laws and policies in society. He battled prejudices. He battled poverty. He battled divisions among Civil Rights leaders. All of these challenges are on display in some form in the Mountaintop speech.

On the eve of his assassination on April 3, 1968, Dr. King concluded the Mountaintop speech with the following which remains eerie these 50 years later:

“Well, I don’t know what will happen now. We’ve got some difficult days ahead. But it really doesn’t matter with me now, because I’ve been to the mountaintop.

And I don’t mind.

Like anybody, I would like to live a long life. Longevity has its place. But I am not concerned about that now. I just want to do God’s will. And He’s allowed me to go up to the mountain. And I’ve looked over. And I’ve seen the Promised Land. I may not get there with you. But I want you to know tonight, that we, as a people, will get to the Promised Land!

And so I’m happy tonight.

I’m not worried about anything.

I’m not fearing any man!”

Children Forcing Changes

Linda Brown, of Brown v. Board of Education fame, just passed away at the age of 76. When she was 9, in the early 1950s, Linda became the face of the desegregation battles in the U.S. with her family as the lead plaintiff in Brown v. Board of Education. Later in life, Linda recalled that in her middle class neighborhood in Topeka, Kansas, she played with children who were white, black and Latino. However, she could not attend the nearby grade school. Instead, her daily journey to the all black school included walking through a rail yard, crossing a busy road, and taking a bus. Topeka considered such circumstances for black grade school children as “separate but equal” to Linda’s neighborhood white friends who simply walked two blocks to school.

Through the courageous battle by Linda, her family, other black families and the dedication of lawyers such as Thurgood Marshall, Linda’s challenges resulted in the landmark Brown v. Board of Education Supreme Court decision which dealt a death blow to the Supreme Court’s 1896 Plessy v. Ferguson “separate but equal” doctrine. Unanimously, the Supreme Court rejected “separate but equal” as violative of the equal protection clause in the 14th Amendment to the U.S. Constitution. Declaring separate educational facilities “inherently unequal”, the Supreme Court stated in Brown:

“To separate [children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely to ever be undone.”

What becomes of a nine year old grade school student who was thrust into a national debate on a culturally divisive topic? First, Linda Brown was never able to attend her nearby public school as it remained segregated during the years’ long litigation process. Linda became an educational consultant and public speaker on issues associated with desegregation. She was quite active in her church. Despite her otherwise quiet and low-key lifestyle, in 1979, Linda answered the call again to serve as the lead plaintiff in Brown v. Board of Education II which challenged the sufficiency of actions by school districts to implement Brown v. Board of Education mandates. These very public litigations defined her life. As to her association with such a landmark case which fostered in a cultural change in America, Linda later stated, “Sometimes it’s a hassle, but it’s still an honor.”

Kansas Governor, Jeff Colyer, remarked at Linda’s passing: “Linda Brown’s life reminds us that sometimes the most unlikely people can have an incredible impact and that by serving our community we can truly change the world.”

Linda Brown and her family deserve all the credit for pushing uphill against the firmly established segregation systems. By the early 1950s, at least some in society could acknowledge that separate systems were far from providing equal opportunities. Yet many (i.e., the majority) were not ready for complete change. Many remained staunchly opposed to desegregation. The Brown family and other civil rights activists knew they would confront not merely opposition, but also threats and intimidation. With the image of nine year old Linda Brown at the forefront, they continued the battle. A child lead the way and changed the world.

Are the Parkland Teens simply a passing phase in the continuous news cycle or might they be a modern day Linda Brown? As you have seen the images by now, the Parkland Teens are the group of survivors from the tragic school shootings at Stoneman Douglas school in Parkland, Florida. Seemingly unlike the survivor groups at other horrific school shootings (unfortunately too many to list), the Parkland Teens have moved well beyond the raw, emotional, grief stricken friends and classmates into something much more.

The Parkland Teens demand changes to strengthen gun laws to better prevent future tragedies while providing safer schools. Linda Brown’s struggle sought changes through the court system. The Parkland Teens are using the political and legislative processes. Both approaches can achieve change in our democratic society. Just note the Parkland Teens accomplishments to date. Within a week of the massacre at their school, the group yet to be known as the Parkland Teens, held a nationally televised forum where 2 U.S. Senators and a U.S. Representative from Florida had to directly confront gun control issues as well as victim families. The Parkland teens forced immediate action by Florida law makers. This group then organized the national March for Our Lives rally in Washington, D.C. involving hundreds of thousands. The Parkland Teens put forward a 5 point plan demanding action for their cause. That 5 point plan cleverly includes elements which have already either legislatively or judicially been determined not to run afoul of the 2nd Amendment.

The Parkland Teens accomplished these actions in about one month’s time. We have heard “talk” from leaders of the need to do something after Columbine, Sandy Hook and all other school shootings. Nothing has ever materialized. Yet, the Parkland Teens have been able to gain traction on gun control where all other efforts stalled out. Frankly, I am not entirely certain as to why.

In the 1950s with Linda Brown, society was probably not aware that they were at an historic moment for desegregation and civil rights. We may be at an historic moment with the Parkland Teens. These concerted efforts may result in meaningful gun control measures and, as important, acceptance of gun control laws and regulations. The movement started by the Parkland Teens just feels different. The NRA, for all its political clout and bluster, appears a little on its heels for the first time in my memory. Politicians such as Marco Rubio, a staunch “guns rights” supporter, is “rethinking” his positions. The Republican governor of Florida signed into law gun control legislation passed by a Republican controlled state legislature.

Please note, for this article, I am not advocating in favor of or against gun rights or gun control measures. Linda Brown’s passing and reflection on her accomplishments has made me wonder whether we are at a cultural shift in our evolving and ever-changing democratic society when it comes to the issue of gun control. Genuine societal shifts on issues held so dear by so many are difficult to see in real time. Usually we need the space of time and historical perspective to pinpoint when these shifts take place.

In retrospect, we can identify societal shifts and associate them with events. Some events are fairly clear. The Boston Tea Party and signing of the Declaration of Independence let the Crown know that the arrangement had changed forever. The Emancipation Proclamation ended slavery. The passing of the 19th Amendment granted women the right to vote. Other events needed time before we recognized that we were at a point of change. Linda Brown’s lawsuit, when filed in the early 1950s was “just another” civil rights lawsuit but it became so much more. Instead of the 19th Amendment, perhaps it was Susan B. Anthony getting arrested for voting in 1872 which really lead to the suffrage movement for women.

The Parkland Teens fundamentally seek to start a movement to address gun control. In a few months time, when the endless news cycle focuses elsewhere, we may have difficulty recalling their name. But maybe, just maybe, the Parkland Teens have tapped into something deeper and they may be the engine which drives a national gun control debate. If so, then we should take time now to wonder at the societal seismic shift these children are placing in motion. Such events rarely happen in our society. Linda Brown was one such force. Let’s see if the Parkland Teens can have an “incredible impact” that can truly change the world. Let the children lead the way!

From PyeongChang, with Determination

With the Winter Olympics just concluded, we can all rest easy for another four years until we once again score a Triple Lutz from our armchairs. There did not seem to be great excitement leading up to these 2018 games. Perhaps there was no real controversy among U.S. figure skaters. Perhaps the Flying Tomato has simply ripened too much on the vine. Perhaps we still wanted to see Apolo Ohno on the speed skating ice rink instead of adding color commentary. Whatever the reason, when the Olympics began, they once more became almost addictive.

As always with the Olympics, incredible background stories of courage, dedication and heartache emerge. Those storylines are usually coupled with monumental Olympic performances by athletes at the pinnacle of their careers. Then there was Elizabeth Swaney.

Swaney, competing for Hungary in the Women’s Halfpipe Freestyle Skiing event, garnered more media attention than most. You might be among the almost 1.6 million viewers of Swaney’s Halfpipe run on NBC’s Olympic Twitter feed. You will recall that Swaney slowly swooshed from side to side on the halfpipe neither attempting nor performing any tricks. Her goal was merely to remain upright on the skis until she reached the end. You may have read some of the thousands of Twitter comments which characterized this Olympic performance as “shameful”, “pathetic”, or even “disrespectful”.

Was Swaney injured or ill and could not meaningfully compete? No. Did Swaney show up at the wrong event? No. Was Swaney capable of performing any tricks which all of her competitors attempted? No. Could Swaney reasonably compete for an Olympic medal? No. As it turns out, Swaney essentially found a loophole or weakness in the Olympic qualifying process and exploited it to reach PyeongChang as an Olympic “athlete”. How could this happen?

Swaney, a 33 year old U.S. citizen with a Masters Degree from Harvard, determined that Women’s Halfpipe Skiing was generally under-represented at the highest levels of the sport. Leading up to the Olympics, she strategically competed in World Cup qualifying events where fewer than 30 athletes competed. She represented Venezuela and eventually Hungary. She maintained her routine of the “slow and steady”, remain vertical approach with no tricks throughout. Inevitably, a few skiers would crash thereby ensuring that Swaney would end up placing around the 24th position, albeit with an extremely low score. Swaney then qualified for the Olympics among the top 24 women freestyle skiing athletes.

“Honored” and “humbled” to be an Olympian athlete, Swaney apparently has no regrets and fulfilled a personal goal. Not all viewed the situation in the same light. “We, the Hungarian Olympic Committee, have to learn the lessons from this case.” Changes to the World Cup quotas and qualifications to be eligible for Olympic consideration are being evaluated in response to Swaney’s achievements.

The vast majority of comments on social media have been negative toward Swaney and her Olympic participation (notably, the Olympics do not give out “Participation” medals). Informally, I inquired of lawyers and non-lawyers as to how they felt about Swaney’s efforts to reach the Olympic stage. The majority of lawyers were OK with Swaney competing. Swaney operated within established rules. She discovered an opportunity presented in the system. The process permitted the conduct and Swaney met the minimum qualifications. If the result is not desired, change the rules — do not penalize the crafty participant. Lawyers — good old rule followers even where unintended and absurd results flow.

For non-lawyers, the majority did NOT view Swaney’s conduct as OK. Even if Swaney met the letter of the rules, she completely abandoned the spirit and intent of the rules. The Olympics remain a special event which comes around once every four years for the athletes. They are designed to promote sportsmanship and showcase the best athletes in the world in each event. Swaney’s presence precluded one real competitor from participating in the Olympics. Swaney distracted from true competition. For non-lawyers, fairness carried the day.

As a mediator, I searched for any takeaways from Swaney’s controversial performance. Swaney knew she possessed no chance of medaling. Swaney knew she would come in last place or barely ahead of only those athletes who crashed on all halfpipe runs. She had to have known that she would be held up to public ridicule for the “scheme” to reach the Olympics in this fashion. She had to have known that her name would forever be connected with future trivia contests. Yet, with all these negatives, Swaney remained determined to reach PyeongChang and be able to forever declare herself an Olympic athlete.

Determination. For good or bad, Swaney showed us determination. It may not have been the rising at 4 a.m. to get in additional practices determination or the “one more run” to work on a new skiing trick determination, but yet Swaney determined that she would succeed within the established system.

Mediators should similarly be determined to move the mediation process forward especially when the optimism of the parties wanes. Mediation participants and their counsel way too quickly and way too often seek to claim impasse in mediation negotiations. A mediator must be determined to keep momentum. Here are a few examples of how to move issues and people forward when parties veer toward the abyss of impasse.

Compel the parties to think through the positions and interests of their adversaries (walk a mile in their shoes). First, have a participant create a list of what is believed to be needed and what is desired in any settlement. Then have the same participant list out what is believed that the adverse party needs and wants in settlement. These lists can be used to illustrate how much agreement has already been achieved, the key issues in dispute can be narrowed, and, perhaps, new areas where one party can compromise may be presented. There could be easy “gives” which become apparent (e.g., offering confidentiality of any settlement) which could rekindle negotiations.

Alternatively, the mediator can change the focus. If parties are hung up on monetary terms, have the parties work on settlement structure for any resolution. There may be non-economic terms which prove critical for one or more parties. Being able to address those matters provides a sense of accomplishment and progress. These non-economic terms may be new areas where parties can demonstrate further willingness to compromise.

Force the parties to confront the best alternatives and worst alternatives to settlement. The litigation process is replete with risks, only some of which can be quantified. The costs of proceeding with litigation are always steep. Finality may provide emotional or financial benefits. A settlement could permit re-establishment of business relations or an agreed upon end of such entanglements. Clearly place all such issues in play for consideration.

There are many other examples of steps to take to not get stuck in impasse (we can save those for further exploration in another article). The point remains that mediators and the participants should be determined to break through perceived impasses. Swaney remained dedicated to the process which she knew would result in her ability to achieve her goal.

As with Swaney, moving beyond supposed impasse will require work and some of those efforts may not be traditional. Some of the parties may not like to work harder. Some of the parties may resent that they are being encouraged to think beyond their comfort zones. Trust, and be determined, in the mediation process to achieve the goal of bringing the parties toward agreed upon, voluntary resolution, even if you receive some less than positive comments along the way.

St. Valentine, Geoffrey Chaucer and Mandated Mediation

Just who was St. Valentine and why do we celebrate courtly love every February 14? How does the 14th-century Geoffrey Chaucer connect with the 3rd-century Valentine and what could it possibly have to do with compulsory mediation? After researching St. Valentine to try to find the origins of Valentine’s Day celebrations, these historical figures and the current ADR hot topic of mandated mediation came together, at least for me. Let me try to connect the dots.

Surprisingly little is reliably known about St. Valentine of Rome. He was a 3rd-century Roman Catholic priest, and perhaps a bishop, who converted many to Christianity and secretly performed many marriages. These marriages of the recently converted Christians defied an edict of Emperor Claudius Gothic (Claudius II). Claudius II desperately needed young men to serve in the military on various Roman campaigns. The Romans enlisted unmarried men as they believed husbands would be too consumed with spouses and families to be effective soldiers. Valentine’s actions cut into the pool of available talent for Claudius II and protected the recently converted.

Claudius II had Valentine imprisoned in about the year 269. A daughter of one of Valentine’s jailers suffered blindness. Valentine laid hands on the girl who then recovered her vision. Claudius II, apparently impressed with this report, had Valentine transferred to Claudius II’s direct custody. Eventually, Valentine sought to convert Claudius II to Christianity. At that point, Claudius II ordered Valentine’s execution. On February 14, Valentine was beaten, stoned and then beheaded. Valentine left behind a note which read “Your Valentine.”

The Catholic Church recognized Valentine as a saint who was martyred for his faith. February 14 was set as the feast day for St. Valentine. For more than the next 1000 years, no special St. Valentine’s celebrations followed except the annual, spiritual recognition of his martyrdom on his feast day.

Enter Geoffrey Chaucer and his work, Parlement of Foules. Chaucer described an established tradition, posing as historical fact, about St. Valentine and February 14. No record exists of any courtly love celebrations on February 14 prior to the year 1375. Yet, at that time, Chaucer penned that both birds and people come together in courtship on February 14: “For this was sent on Seynt Valentyne’s day / When every Foul cometh ther to choose his mate.”

Thereafter, “scholars” documenting the lives of saints relied on the Chaucer historical reference to associate St. Valentine with lovers and February 14 as the day to celebrate romance. Chaucer’s charade has lead us to candy hearts, greeting cards, flowers, and long waits at any restaurant on February 14. The apparent sole remnant of actual tie between St. Valentine and Valentine’s Day is the February 14 sign off “Your Valentine”.

As Valentine’s Day has evolved, or morphed, into the current celebration of love and romance, it may not matter terribly much how we got here. Even if viewed as a “Hallmark Holiday”, Valentine’s Day can be approached with basic recognition for those we love and care about. If you receive a token with the tag line “Your Valentine”, perhaps you can marvel at the cottage industry which has blossomed from two poetic lines which flowed from Chaucer’s quill.

Nice story. How does it connect with mandatory mediation? As the mediation process matures, tribunals recognize it more and more as a fundamental resolution tool. In some jurisdictions, mediation has grown beyond commonplace to become mandated. The concept of forced mediation does not readily reconcile with the definition of mediation which starts with a voluntary process by willing participants.

In Vancouver, British Columbia, parties are obliged to mediate once one litigant requests mediation. A party may object to mediation, but that party must move for relief before the court and establish good cause to avoid mediation. Courts have found pessimism as to outcome, hostility between the parties and difficult international logistics as failing to qualify as proper grounds to refuse to mediate. See, Matsqui First Nation v. Canada (Attorney General), 2015 BC 1409; and Executive Inn Inc. v. Tan, 2008 BCCA 93.

The Civil Justice Council for England and Wales issued an Interim Report in late 2017 identifying the Pros and Cons of mandatory mediation as those jurisdictions are heading in that direction. Both Vancouver courts and this Civil Justice Council recognize the high success rates of mediation, the cost-effective nature of the mediation process, the ability of mediation to narrow issues in disputes even where the mediation does not fully succeed, and the flexibility offered in mediation to craft solutions beyond the legal claims.

These and other mandatory mediation programs appear at odds with the fundamental concept of mediation as an entirely voluntary process. Part of the reason for the voluntary nature is that the parties will trust the confidential process so as to more freely exchange information and positions, and be prepared to compromise. If parties are compelled to mediate, this psychological “buy in” may be absent. Mediators may initially be challenged simply to get parties to accept the process forced upon them.

Perhaps these reasons are why we do not have many mandatory mediation programs in the U.S. Or do we? Many local court rules and standing case management orders at both the federal and state levels include obligations for mediation or other forms of ADR prior to a case reaching trial. Numerous courts now include some form of Early Neutral Evaluation (ENE). Quite often, parties mediate to satisfy the ENE obligations.

In addition, as with many litigators, I have participated in numerous Cases Management Conferences where the judge declares that the case appears a good candidate for mediation and inquires if the parties agree. Uniformly, the lawyers respond: “Of course, Your Honor. We will get that scheduled right away.” These mediations are mandatory in every sense of the word. I always longed to hear a lawyer answer that judicial inquiry with: “No, Judge. That is a terrible idea. The parties can barely stand to be in the same room and we would rather fight it out in your courtroom.”

When analyzed fairly, numerous mediations in the U.S. systems have been and remain mandatory even if lacking that specific label. Frankly, by memory, I cannot distinguish success rates between truly voluntary mediations and those which initiated due to some obligation. While I admit that this recollection survey is both personal and not scientific, the rates of ultimate success are the same. Further, I cannot recall any meaningful objection to the process itself being raised by mediation participants based on the fact they felt obliged to be in attendance. At most, I recall one participant stating that he was at the mediation merely to check off a box. After that statement, the party became fully engaged in the mediation.

As with the current over-the-top Valentine’s Day celebrations, it does not meaningfully matter how we got here. Once parties become engaged in mediation, regardless of the source, it appears that the process takes over as guided by the skilled and trained mediator. Chaucer has made me rethink my initial negative response to the concept of mandatory mediation.

4 Women and a Garbage Strike

Place yourself in the late 1960s in Memphis, Tennessee not long after the assassination of Dr. Martin Luther King, Jr. The Memphis wounds had not even begun to heal and, indeed, no one knew what to make of the tragedy. The City had just suffered through race riots. Inequality and prejudices permeated all aspects of life. All local issues became “black and white” in a very real sense. A “City Divided” aptly described Memphis at that juncture.

Enter the newly formed Panel of American Women – Memphis Chapter. The Panel initially consisted of four women almost always described in reports as “a Jew, a Catholic, a Black and a White”. These women, armed with nothing more than an eagerness to learn what they did not know, spread out across the Memphis community holding panel discussions on racism, education inequity and unfair wages. The Panel members, with their varied backgrounds, discussed raising children in climates of fear and hate.

These women were housewives and mothers. The politicians, legislators, business leaders and church leaders were not among them. What could this Panel do except encourage a civil dialogue on the issues threatening to tear apart the fabric of society. And listen.

After the Panel began these forums, Memphis confronted a second possible sanitation workers’ strike. The City and sanitation workers had broken off negotiations over hours, wages and working conditions. The Human Relations Committee for the City turned to the Panel for help. The Panel organized the “Concerned Women of Memphis” where 3 busloads of women from all over the town visited the homes of sanitation workers and their families. These women, directly confronted with poverty, found workers in difficult positions, not men unwilling to work. They were fellow citizens. The Concerned Women of Memphis marched on the City Council demanding change and resolution to the conflict. That very day the City Council, denying that the Panel’s actions had any influence, voted to recognize the sanitation workers’ union with the strike then averted.

By listening to stories and viewpoints of others, by directing the dialogue on these issues, and by encouraging participation, the Panel accomplished things the civic leaders appeared too terrified to even address. Very much to their own surprise, the Panel found itself in the midst of a possible City-wide garbage strike. Without resolution conflict training, negotiation expertise, or knowledge of City workings, the Panel developed and implemented a plan resulting in a solution for a major municipal crisis which had threatened to blossom into further civil unrest.

Studies and articles could be dedicated to the courage demonstrated by these women on the Panel. They placed themselves in tense, racially charged settings knowing that they would be met with hostility simply to begin a discussion. Their defenses were only words. I admire the courage and leave that topic to those expert in such matters.

As a mediator, attorney and parent, I also have admiration for the Panel’s powerful use of civil and blunt discussion on emotionally filled topics combined with the ability to respectfully and carefully listen to opinions and beliefs of others. The Panel did not sidestep difficult issues. They placed the skunk on the table, said that it stinks, and forced all to address it. The Panel acknowledged varying points of view and welcomed input from all groups. That process provided a deeper understanding not only by the Panel members, but presumably also by participants in the discussions. I will seek to remind myself of this approach in my personal and professional life. It worked amazingly well under extreme conditions.

In the current divisive political environment, is it even possible to envision Bernie Sanders and Ted Cruz jointly attending a LGBTQ rally followed up with attendance at a NRA rally? After the events, the Senators could then stay to discuss the issues confronted by, and important to, each group. That scenario may appear remote. Ask yourself whether it is any more remote than 4 women with different religious, economic and racial backgrounds bonding together in a divisive time to plainly address the issues underlying such divisiveness.

Whether a U.S. Senator, local lawyer, mediator, parent or member of the current iteration of the Panel of American Women, we should strive to encourage civil discussion and be able to meaningfully listen to points of view. Perhaps we too, then, may be invited to help resolve the crisis of the day as was the Panel of American Women.

For any even modestly seasoned litigator, the mediation process is recognized as a staple element in the life of any litigation. Even where the parties may see little value in mediation, virtually all court rules now mandate mediation or some other form of ADR prior to trial. In other courts, judges strongly “encourage” litigants to mediate which in essence becomes a directive to mediate.

Practitioners appreciate that many civil cases resolve at or through the assistance of mediation. This dynamic, combined with the reality that mediation remains part of the fabric of the litigation process, would suggest that tremendous effort should be placed in the potentially dispositive process of mediation. Why does it remain, then, that a more than small percentage of attorneys remain underprepared for mediation?

Perhaps the perceived shortcomings in the area of preparation for mediation rest not in a lack of effort, but rather in a lack of proper focus. With one exception, the balance of this article evaluates topics lawyers should be addressing in preparing for mediation.

First, the exception. Whether in pre-mediaion submissions or in preparation for mediation presentations, attorneys earn the highest marks for pulling together the facts and the law for their cases. We, as a group, have been well-trained since the first year of law school to marshal facts and the law. Many pre-mediation submissions read like well-honed summary judgment briefs. Practitioners require no assistance or encouragement on this necessary and vital aspect of preparation. Kudos to counsel in these regards and we need not spend more time on that topic.

However, mediation preparation begins well before compiling facts and applying legal precedent. One fundamental consideration is selection of the appropriate mediator for the dispute. Factors to consider in selecting a mediator include the necessity of legal subject matter expertise; knowledge of the local court system or judge; understanding of business relationships; the need for an empathetic or finessed approach versus a heavy handed style; and even schedule and availability concerns. These factors are not exhaustive and are not mutually exclusive. Note that some considerations focus on the legal issues and litigation dynamics while some focus on the personalities involved. Regarding personality issues, consideration must be given to not only the clients, but also the participating lawyers. A candid evaluation of relationships, egos, and eccentricities will assist in securing the right mediator for your dispute.

The pre-mediation submission is essential as a tool to ensure that many topics are adequately addressed prior to the mediation itself. Any pre-mediation submission should be used to frame the essence of the dispute while conveying data to educate and guide the mediator. Most mediators request specific information in any pre-mediation submission. My standard request of attorneys is as follows:

“Pre-mediation submissions should be received by me at least two (2) business days prior to the mediation. Pre-mediation submissions shall remain confidential and should not be shared with the opposing party(ies). The pre-mediation submission should include: 1) summary of facts and issues; 2) candid evaluation of strengths and weaknesses in your client’s case; 3) calculations of damages and/or description of other relief sought/available; 4) estimated litigation costs through trial; 5) summary of settlement efforts and positions to date; and 6) other relevant information you believe may assist the mediator (e.g., client’s expectations, business needs, insurance issues, monetary concerns, etc.).”

Of these topics, let me focus on the the description of relief sought. Monetary damages are typically readily presented, and usually well supported. Yet, other relief may be viewed as critical. These issues should be called out for early consideration. A party may well seek or demand injunctive type relief even where such relief would not be available in court (e.g., party A agrees never to seek employment from party B or its affiliate organizations; a mutual press release must issue announcing resolution of the dispute; or the parties agree to re-establish or refrain from future business dealings). The attorney should be aware, before the mediation, if the client will demand or seek these extra-monetary resolution terms. Only then can the practitioner determine when and how to disclose these issues and control how they will be in play. If disclosed early in the process, stakeholders can fairly place value on such terms and be prepared to address them.

Similar to pre-mediation submissions, pre-mediation discussions between counsel and the mediator can only assist the mediation process. Not all mediators utilize pre-mediation discussions, but I suggest that virtually no mediator would refuse your pre-mediation call. I encourage the practice of pre-mediation discussions. There may well be sensitive factors an attorney does not wish to be disclosed in writing, but which may be more freely shared in a telephone call. A classic example of such information would be identifying the client with unreasonable expectations regarding case worth. There may be personality or safety concerns in bringing together stakeholders. There may be monetary or compensation concerns involving the attorney-client relationship. If such issues are raised through pre-mediation discussions, the mediator can better prepare to address such challenges. As a mediator, I universally learn information pertinent to securing settlement through these discussions.

Next, prepare your client. While the mediator will explain the process at the beginning of the mediation, it will assist if the client is generally knowledgeable. Please note that mediation is oft-times a day long process with periods of downtime for each side. The client needs to understand that the process is confidential and voluntary and that mediation requires compromise.

In preparing to mediate, also give thought to mediation participants. Most fundamentally, ensure that participants possess the authority to bind the client on both economic and non-economic terms. There should be some perceived balance of power among participants to avoid unnecessary ego issues. In some instances, remote attendance by telephone cannot be avoided. Attempt to best ensure the continued availability of the remote attendee. If any participant requires accommodation or possesses special needs, advise the mediator in advance so that proper arrangements can be secured.

Finally, anticipate the form of any settlement where more than simple economics terms may be at issue. For example, a party may “need” settlement sums to be issued quickly or even delayed until a new tax year. One party may demand payment through a continued business relationship. A party may demand confidentiality. Note: A subsequent article in this series will explore in greater detail these and other mediation settlement structure issues. The point for mediation preparation is simply that if such terms must be part of the resolution, they should be evaluated at the outset to allow the parties the opportunity to value them appropriately.

While there is no “one size fits all” approach for mediation preparation, as discussed, any preparatory steps should at least include:

* Selection of an appropriate mediator
* Development of the pre-mediation submission
* Pre-mediation confidential discussions with mediator
* Selection of client representative/decision makers
* Setting client expectations for the mediation process, and
* Consideration of non-economic settlement terms

Prepare well for your next mediation!