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!

Maria, Irma, Harvey and Rule 108

“Catastrophic”, “Extraordinary”, “Disastrous”, and unfortunately “Fatal” aptly have been used to describe the monumental hurricanes of 2017. As the lives of those impacted are slowly placed back together, we must not lose our spirit of involvement to assist as possible. Even with this utter devastation, I am constantly (pleasantly) amazed by the images of help when most needed. In a word, these chaotic, life threatening situations bring out civility. Do we need Harvey, Irma and Maria to remind us to be civil toward each other?

You know the videos: a man trudging through chest deep water pulling a row boat rescuing a 75 year old grandmother and her cat; ten strangers locked arm in arm to reach passengers in a car stuck in three feet of water; and the tenant from a second story apartment opening her place to all displaced, former strangers who live on the flooded first floor apartments. These people took absolutely no time to think about their actions. The comments are always along the lines of: “Gee, they needed some help and I was there.”

Those in the videos are of all races, religions, socio-economics and walks of life. Hurricanes do not discriminate. Those affected are all “people” in need of help. Period.

If civility comes through at the most dire moments, why does civility appear to be absent (or extinct) in matters of public discourse? Lives are not threatened. Property is not about to be washed away. Yet, points of view almost have to be “left” or “right”. The more extreme and louder the voice, the more it appears to gain coverage — to the exclusion of rational, genuine debate.

I get it. The more outrageous the view, the better for ratings. The 24 hour news cycle monster must be constantly fueled. In fact, ratings for all categories on television are in decline except the 24 hour news stations where everyone on any panel interrupts for air time so that they can yell at another panelist. It should not be lost on us that so many of these “expert” panelists are attorneys.

Do not misunderstand. We need public discourse in our democracy. We need opposing views for consideration. We also need civility. As attorneys, do we need Harvey, Irma and Maria to remind us to be civil.

Actually, even without hurricanes, we have obligations to be leaders in society when it comes to civility. We can point to many rules of court mandating civility in litigation. In addition, as lawyers, we have obligations of civility beyond the mere confines of litigation and legal dealings. The 2011 ABA House of Delegates Rule 108 (“Rule 108”) directs lawyers “to set a high standard for civil discourse as an example for others in resolving differences constructively and without disparagement of others.” The ABA Section of Dispute Resolution proposed Rule 108 which passed unanimously (who would vote against civility?). Rule 108 further urges all lawyers “to take meaningful steps to enhance the constructive role of lawyers in promoting a more civil and deliberative public discourse.”

Rule 108 acknowledged that in 2011, public discourse had become “increasingly sour and contentious” while it was “getting worse”. The 2016 election cycle proved the ABA correct about that trend. However, Rule 108 further noted that lawyers are uniquely situated to change this direction. We hold leadership roles in politics, the legislative process, businesses, and the media. Rule 108 recognizes that we have “the gravitas, and often the platform, to be heard.”

Candidly, prior to conducting research for this article, I was not aware of Rule 108 and its mandates. I canvassed a number of attorneys in an exceedingly informal and less than scientific poll finding no one else with knowledge of Rule 108 or the general obligations to lead society in matters of civility.

Rule 108 goes well beyond relationships between and among lawyers. The obligations flow to how we conduct ourselves in society and provide leadership in our communities. We should carefully review Rule 108 and give serious thought to the “meaningful steps” we must take to enhance civility in public discourse. We should not await the next Maria, Irma or Harvey to provide examples of civility under conditions of duress when the obligation of civility rests with us daily with Rule 108.

I continue to learn from my four legged friend, Louie, and you can too!

The last few months for me could best be described as transformative. After 28 years of practicing law in established, formal settings (court system, large law firms, and in-house), I have started my own Alternative Dispute Resolution (ADR) practice. While exciting in now helping people settle disputes rather than fight, the transition has been eye-opening. To be candid, I had little idea of the detailed work necessary to set up my own shop (from business formalities, tax concerns, and regulatory filings to website design, marketing, and learning not to be fearful of social media). The one constant of this temporary at home arrangement has been my canine pal, Louie.

Louie is an inquisitive, friendly, semi-neurotic Golden Doodle. No squirrel, leaf or vehicle dare pass our house absent a good, terror-inducing barking fit. Yet, start a lawn mower nearby or hear a clap of thunder, and brave Louie dives below the nearest bed.

In this transition, Louie has been my constant companion. I cannot move room to room without Louie as my shadow. Trading in co-workers for a co-canine has surprisingly taught me much in these few short months. Perhaps it took leaving the more structured business environs to see what has always been in front of me. Here are some highlights of lessons learned from Louie.

You May Not Need the Next Big Thing

I admit it. We spoil our dogs. Louie regularly receives new toys. However, Louie routinely pulls from his basket his old, stuffed hedgehog. That poor toy has been sewn more than the Scarecrow from the Wizard of Oz. Time and again, Louie will search for this toy out of the abundance of options.

The latest and greatest squeaking octopus as well as the innovative monkey with rope arms and legs are each passed up for the well worn hedgehog. For Louie, the hedgehog is like a pair of comfortable jeans. New toys may not impress and certainly may not be necessary. Similarly, for us, we should be reminded that which works may be just fine. We do not always “need” the latest squeaky octopus.

Be Excited About What Life Gives You

At rare times, Louie will dig deep in his basket and arise with a bone which has not seen daylight in months. Louie will strut around with the bone proudly in his mouth. He will come to me to show off his find. He then takes a break from gnawing on the bone only to look at me, look back at the bone and wag his tail.

Rediscovery of this simple object makes Louie’s day. He lets everyone around know of his happiness. Louie sharing his joy is infectious and I feel better as well. In the same way, we should feel good about our own small victories. Be happy about earning that free drink at the coffee shop. Get excited about the little things, at least for a short while. Others will recognize it and may feel better too.

Show Affection to Those You Care About

Upon my return home from an errand or meeting, Louie greets me as if I had been away at war for years. The ritual includes licking, whining, and running between my legs multiple times. Louie wears his affection on his hairy sleeve.

Societal norms may not permit the type of greeting among us as so freely shown by Louie. Nonetheless, Louie teaches us not to be afraid to say I missed you and I care about you when we greet those important to us.

All these small things in front of me every day make me feel happy and better about myself. Just take a moment to recognize them in your own day.

Editor’s Note: Michael’s Blog is generally dedicated to ADR practice tips and insights. At times, Michael will write on more general topics which, hopefully, you will find of interest as does he.

Few issues evoke more passionate responses from mediation participants than whether a mere apology should be offered. One line of thinking is that an apology signals weakness, or worse, represents an admission of wrongdoing. To avoid that risk, an apology should never be given. Another approach is that an apology acknowledges that the other side has confronted challenges or suffering. With this recognition, the parties can begin to move beyond those circumstances and work toward a resolution. Each position can be defended rationally and reasonably. Just as the mediation process is flexible, mediation practitioners should remain open-minded to the role and power of an apology.

Years ago, as in-house counsel in charge of litigation, I served on a panel which included the attorney responsible for global litigation at a Fortune 100 company. When the topic of an apology arose, my colleague opined that she has never given an apology to an adversary in mediation and instructed every attorney on her staff to never apologize. This attorney advised that the apology would likely be misconstrued by the opponent as an admission of liability. The adversary would then “dig in” on extreme settlement positions grounded in the position that wrongdoing has been conceded with compensation then surely to follow. The underlying litigation process is adversarial with that dynamic not lost in mediation. No advantage was ever to be freely given to an opponent.

My view was that an apology remained an important resource to assist in various mediation settings, especially cases involving, but not limited to, personal injury and employment claims. An apology, carefully timed and certainly not qualified, illustrates an understanding of the position of the other party. I need not agree with the positions being advanced by the opponent, but the apology itself acknowledges that the other side has faced difficulties. Moreover, every apology offered to every adversary cost nothing.

Nationally renowned therapist, Beverly Engel, described the concept of apology as:

“Apology is not just a social nicety. It is an important ritual, a way of showing respect and empathy for the wronged person. It is also a way of acknowledging an act that, if otherwise left unnoticed, might compromise the relationship. Apology has the ability to disarm others of their anger and to prevent further misunderstandings. While an apology cannot undo harmful past actions, if done sincerely and effectively, it can undo the negative effects of those actions.”

The following examples are taken from mediations in which I served as the company representative where I offered an apology. First, a plaintiff-truck operator suffered serious injuries while he assisted in unloading his truck at a job site. Multiple defendants included the truck manufacturer, equipment manufacturer of material being hauled, and job site contractor/operator. At a joint session in mediation, plaintiff’s counsel presented the theories against all and counsel for each defendant explained that his client could not be at fault. Before breaking to individual sessions, I apologized to the plaintiff for suffering such traumatic injuries. No one expects to go through all he endured and I offered my sympathies. In the first individual session with the mediator, the mediator advised that the apology “took the air out of the sails” of the plaintiff with the plaintiff now viewing my client as least culpable among the defendants (“disarm others of their anger”).

Second, in a commercial dispute, plaintiff-company served as an agent. Unfortunately, the plaintiff was a small business which essentially folded when the fairly young founder suddenly died. His wife addressed all wrap-up issues for the agency. In this contract dispute, at mediation, I offered an apology to the wife for her loss and the position in which she unexpectedly found herself. I could not begin to appreciate all she must have gone through and must continue to address. In private session, the mediator explained that the apology humanized a previously faceless corporate entity (“showing respect”) and provided the basis to quickly move to closure.

These apologies provided the breakthroughs which fostered settlement. Neither apology addressed the merits. Neither apology related to the legal claims or disputes. Both apologies personalized or humanized the mediation process.

But what if the former view is accurate and that one party takes an apology as admission of responsibility. What are the consequences in mediation? Foremost, the mediator as a professional listener should pick up on any apology of circumstances as not any legal admission. The mediator should be able to explain that dynamic to the participant, if necessary. The same message can be relayed through the party who offered the apology if the intent was not correctly perceived. Perhaps most fundamentally, the offers and proposals will clearly establish perceived case worth as the negotiation process plays out. At most, an apology taken as an admission of responsibility should cause but a bump in the mediation road and not serve to undermine the entire the process.

An apology is a potentially powerful resource for mediation participants. It may not be necessary or effective in every situation. Nonetheless, the apology should remain readily available in the “tool box” of each practitioner.