Spoiler alert: this will ramble, so anyone who wants a quick shot of mediation or negotiation advice, do come back soon.
The Back Story
When I first dipped my big toe into mediation’s waters by taking Mediating the Litigated Case in a downtown hotel ballroom back in the Spring of 2004, generous attorney-mediators like Jeff Kichaven, Laurel Kaufer, Bob Steinberg, Jan Frankel Schau, Steve Cerveris, and Deborah Rothman all arrived on the beachhead of my new profession with advice, support, empathy, and warnings. Starting a new profession, particularly one that is entrepreneurial, is just like moving into a new neighborhood and these wonderful mediators were my Welcome Wagon (for which I will always be grateful).
It didn’t take me long to learn where the landmines were buried. And a lot of them surrounded the perimeter of the downtown Los Angeles Superior Court. There’s a mediation pro bono panel there where new mediators can first practice their new trade, learning the skills, picking up best practices, and, beginning to build a reputation for excellence among the litigation and trial bar. This was all good and I was grateful for the opportunity to have cases referred to me to test my new-found mediation knowledge and growing skill-set. Never mind that I was paid to practice my new legal trade as soon as I’d passed the Bar. I understood that this was a kind of internship and I was happy for the opportunity to serve.
My new mentors, however, as well as pretty much everyone else I met, had some dire warnings about conflict between panel mediators and the Superior Court. Conflict?!? By May of 2004 (a month after I’d finished my first mediation class) I’d enrolled in the Master of Laws program at the Straus Institute for Dispute Resolution, not because I thought it would give me a necessary credential, but because I was on fire for this new field of study.
How could there be simmering conflict in a community of conflict resolvers, I repeatedly asked, long before I realized (once again) that people chose their occupations at least in part to work on improving their ability to handle situations that baffle them. Yes, we conflict resolvers were, like therapists, “wounded healers.” We had conflict issues!
The problem that existed when I entered the mediation profession was this – the pro bono panel had been providing free mediation services to Los Angeles lawyers for years. There are a set of understandable and complex reasons for the initial “decision” to ask L.A. citizens (panel members are not necessarily lawyers) to provide free mediation services on behalf of the Court to the organized bar. Those reasons, and the unresolved conflict that existed in 2004, are the same today as they were then – witness Jeff Kichaven’s recent Daily Journal article excoriating the maintenance of this free service once again, this time on behalf of women and minorities.
Here’s the intro to Jeff’s article:
August 13, 2010 DIVERSITY IN MEDIATION:HERE’S HOW By Jeff Kichaven
There’s a problem with mediation. The profession is almost lily-white, and about as male as the Green Bay Packers. In our age of diversity, this has to change. Here’s how it won’t, and also how it can.
Most importantly, it won’t change by itself. In mediation, as in other professions, women and minorities are concentrated at the entry and junior levels. In these economic times, it’s harder for these newer mediators to break in. The market is shrinking, not growing. Many of the law firms that hire mediators have shrunk. Others have closed. We are not in an economy where a rising tide of demand can lift all mediators’ boats.
Worse, these newer mediators are increasingly being asked to work for free. Court-annexed mediation programs – in which newer mediators work for free, or for below-market rates in order to develop their reputations – are growing. For example, on May 3, 2010, the Central District of California announced: “The ADR ‘Pilot Program’ is no more. We have made the long overdue change of deleting the ‘pilot’ designation. You will notice that the website and all forms now simply reference the ‘ADR Program.’…any civil case assigned to any judge may be referred to the program, either at the discretion of the assigned judge or at the request of the parties, pursuant to Local Rule 16-15.
My Panel Service
As I said, I was grateful for the opportunities the pro bono panel offered me and for several years worked with the Court (and around it) as well as with the organized bar to find a solution with which everyone could be satisfied (the golden fleece of the mediation profession, after all, solutions by which my needs and your needs can be satisfied simultaneously). But the problem had reached the intractable, autistic hostility stage by the time I’d come on the scene and only band-aid solutions were entertained with any degree of seriousness by the Court and the organized bar.
Who wants to give up a free service?
After a couple of years of panel service, I quit because I found myself becoming, well, bitter and irritable, that my services were taken for granted by attorneys and clients alike. More importantly for the “build your business through the pro bono panel” crowd, lawyers who use the pro bono panel don’t tend to hire mediators. They tend to use the pro bono panel. And their expectation of the caliber of mediators in Los Angeles is predictably low, the entire system having reached the self-fulfilling prophecy stage – the pro bono panel is filled with mediators who do not know their trade well; the LASC “customers” conclude that mediation is not worth the paper it’s written on; and, their use of the pro bono panel confirms their existing low opinion of the profession, which supports their unwillingness to pay mediators for services they believe to be worth . . . . well . . . . nothing.
In the meantime, I built a relatively healthy commercial mediation practice, which has suffered, along with all the professions, the effects of the recession. So I returned to the pro bono panel because I needed the eggs. I, like many mediators, love my trade. And I, like all trial lawyers, can’t retain my great chops without practice. So here I am, once again serving the L.A. Superior Court and providing my services to local (and out of state) attorneys and their clients free.
The Canary in the Mineshaft
The Canary in the Mineshaft – Everyone has heard this phrase but not everyone knows its origins. Miners used to actually bring a canary into the mineshaft with them. The canary, a delicate creature, would perish from toxic fumes before the miners had a hint that they were in danger. The miners didn’t look at the canary’s dead carcass and mutter beneath their breath about how weak the canary was – “damn canary; couldn’t take it; weak sister; let’s muster on guys.”
No, the miners got the hell out of the mineshaft.
My Mineshaft Moment
So I’m pretty busy now. I write two columns for Forbes.com – well, I blog for one (On the Docket) and write for another, the Forbes Woman, She Negotiates Column. And I have a new business with a new business partner, Lisa Gates, teaching women how to negotiate. I have a thriving consulting practice; am being hired to keynote conferences (rather than simply speaking to promote my mediation practice); and, have a book ready for publication (September I’m told) called A is for Asshole, the Grownups’ ABC’s of Conflict Resolution, which I actually believe will make me a little change. I’m also the new Chair of the first ADR Committee the Women Lawyers of Los Angeles has ever had; will also be the new chair of the Federal Bar Association’s ADR Section in the fall of this year; and, have, for several years, sat by appointment on the State Bar’s Standing Committee for Alternative Dispute Resolution.
I’m not bragging. I’m just saying – in a down economy when your mediation and arbitration practice isn’t filling your plate full-time, you enter what former New Yorker editor Tina Brown calls the “gig economy.” And I’m very very busy even though my busy-ness does not always mean that I am making money. My pro bono activities are now mostly confined to representing the interests of my fellow ADR practitioners and spreading the holy grail of interest-based collaborative negotiation, particularly for women, who I encourage to stop undervaluing their services.
This is going to explain why I finally voiced my irritation at well-heeled attorneys (my market for goodness sakes) to whom I was assigned by the pro bono panel to help them settle a $10+ million complex multi-party anti-trust dispute (the details of which will be altered in their superficial detail to protect mediation confidentiality). None of these attorneys, by the way, knew that the pro bono panel is filled not only with attorneys, but also with non-attorneys who were highly unlikely to grasp the complex and sophisticated legal and factual issues in the case they asked asked a pro bono mediator to handle. This, I believe, should be a sign to the Superior Court that their attempts to educate the Bar about the panel need improvement.
If you’ve gotten this far, you’ll likely be happy to wait for the conclusion tomorrow.
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