When nineteenth century American philosopher Ralph Waldo Emerson wrote these stirring words, he could not have anticipated that recent events would make such sentiment seem almost embarrassingly naive.

These days, trust is an increasingly scarce commodity. As I write this, investors reel from revelations concerning Bernard Madoff and his alleged Ponzi scheme. Illinois governor Rod Blagojevich was impeached and removed from office for allegedly trying to sell Obama’s vacated Senate seat. Legislators in my home state, Massachusetts, received a generous salary increase while a budget shortfall forced cutbacks in essential state services, provoking public outcry. Meanwhile, communities demand answers after utility companies failed to restore power quickly when a recent ice storm left several towns in the dark for two long, cold weeks. Local and national events like these erode our trust—in public officials, institutions, our fellow men and women.

In my own work as a mediator who shepherds negotiations, I bear witness to the fragility of trust. I see people struggling in the aftermath of failed business or personal relationships when trust lies shattered or hangs by a fraying thread. Trust is always the first and greatest casualty. And when you’re the one left standing in the aftermath, it can be hard indeed to heed Emerson’s advice.

Robert Bruner, Dean of the Darden School of Business at the University of Virginia, considered trust in a recent blog post. He reminded faculty and students that the most important legacy they can create is a reputation for integrity. “To incorporate ethics into our workplace mindset,” he wrote, “is to think about the kind of world that we would like to live in, and that succeeding generations will inherit.”

Against the backdrop of the headlines today, I consider Bruner’s and Emerson’s words together. What both these men invoke, writing centuries apart, is the duty that each of us has to inspire and lead others to greatness through our own conduct—to mentor others to honor a higher good. They lead me to think back on my own mentors, those people who lit the way ahead. The lessons they taught me by their own example are rooted in the ethos of trust that mattered to Emerson and matters still today. Among these lessons, three in particular stand out.

Lead By Example

The best mentors are those whose own example motivates those they lead. The CEO of Japan Airlines, Haruka Nishimatsu, takes public transportation, eats in the company cafeteria with his co-workers, and earned only $90,000 in 2007. When Japan Airlines had to make deep cuts and asked long-time employees to take early retirement, he cut every one of his corporate perks and slashed his salary because to do otherwise would have shown disrespect to JAL employees, many of whom were his age. Meanwhile, American auto executives nickel and dime workers while earning millions in salaries and bonuses despite their industry’s woeful performance. The actions of these executives and of Nishimatsu send potent but very different messages. As a mentor, what kind of message do you want to convey to those you lead?

Confront, Don’t Conceal Mistakes

In a job I took shortly after college, one of my early mentors discovered that she had missed a crucial deadline. Stunned and horrified, I asked her what she would do. Her answer: “The only thing: let’s get help.” She overcame her initial shock and embarrassment to notify her own boss and ask him for advice. By the following day, all had been set right thanks to her quick response. I have never forgotten her forthrightness and honesty in owning up to her mistake, asking for help, and then taking swift steps to fix it. In doing so, she gave me a great gift: an ethical template for handling the mistakes we all inevitably make.

Trust People To Be Great

I’ve heard some argue that trust must first be earned. Emerson, however, invites us to look at trust more magnanimously: giving trust inspires others to be great. In my first job after law school, I was fortunate to have a mentor who let me spread my wings. As I gained experience and confidence, she trusted me with matters of increasing complexity and importance, pushing me each time to reach further and higher. When I won a motion for summary judgment on a case for one of the firm’s biggest clients, she told me she was not surprised: she knew I could do it. Her belief in me let me believe in myself.

Despite the current headlines, I believe in the spirit of Emerson’s words: “Trust men and they will be true to you; treat them greatly, and they will show themselves great.” Anyone who leads, who mentors others, has the ability to influence the future for the good whether we are business leaders, teachers, parents, or simply human beings. What we do today can alter for the better the headlines in tomorrow’s paper. We must trust ourselves that we can do it. As Emerson wrote also, “Trust thyself: every heart vibrates to that iron string.”

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Victoria Pynchon: I Remember Five Principles During Tough Economic Times

These are hard times and none of us is immune. I’ve been here before. In the early 1990s, my law firm announced we would ride out the economic crisis by henceforth buying legal pads without our firm name embossed on the binding. Layoffs of partners, associates and staff quickly followed. Some caught life rafts to other law firms; some were not so lucky. Those who stepped on others going up the compensation ladder were not treated well on their way back down. The water was cold and filled with sharks.

It seemed then, and seems now, that the entire profession has forgotten two critical principles of legal practice: clients, not profits, come first; and, partners see one another through the tough years in the same manner in which they share the profitable ones. Because people (our clients, our colleagues and our staff) are our only assets, I have five people-centered tips for surviving, perhaps even flourishing, in this challenging economic environment.

1. Listen more than you talk. I learned this from the General Counsel of a major international petroleum company. Here’s what he said. “As a business man, I am not interested in the law. I am interested in my business. If you’re talking, you’re not learning what you need to know to help my business succeed. Here’s what too many lawyers do not understand. I do not have legal problems. I have business problems with legal issues. If you don’t understand my business, you cannot solve my problem and I will not hire your firm no matter how prestigious it might be.”

2. Use litigation as an opportunity to negotiate a business deal. In hard economic times, GC’s are not in the “millions for defense but not a penny in tribute” mood. Google’s GC Eric Schmidt famously said that litigation is “just a business negotiation being conducted in the courts.” The more working parts any potential business deal has, the easier it is to find solutions that benefit both parties in different ways. Before we can explore the most effective and efficient business solution to a commercial problem, we must shed our merits-based resolution blinders and explore the parties’ commercial interests. One of the swiftest means of doing so is bringing the decision-makers on both sides to the planning, problem-solving and bargaining table. If the parties agree that these brain-storming sessions can be considered “mediations” you can avail yourself of state or federal confidentiality protections. Then let the business people do what they do best: plan for a productive future rather than fighting about an unproductive past.

3. Innovate, don’t litigate. This, along with “don’t sue your own market” is the foundation of Sun MicroSystems’ dispute resolution strategy. Now that technology and the economy are moving faster than the adversarial process, it’s time for litigators to follow suit by creating something new through study and experimentation, which is the very definition of “innovate.”

4. The new economy is more about being nimble than it is about being “right.” Though there’s often more money in war than there is in peace, war destroys where peace builds. Take a deep breath, close your eyes and dare to pretend that you’ve already produced, collected and coded a million-plus documents, taken weeks of deposition testimony and confirmed it’s the view of your case that you had when suit was filed. Now what? It’s time to negotiate a durable resolution to a predictably expensive and protracted piece of litigation

5. Though often ascribed to Warren Buffet, it was Fairfax M. Cone, one of the pre-eminent advertising men of the last century, who famously said that our human capital goes down the elevator every night and must be given good reasons to come back the next morning.

There’s no greater object lesson for modern legal practice than the recent and sudden catastrophic collapse of Heller, Ehrman, which temporarily forgot the first law of all business enterprises—the top rests on the middle and the middle is supported by the bottom. As a college friend with eight brothers and sisters once explained family management—“the Bigs took care of the Middles and the Middles took care of the Littles.”

As that great purveyor of early American wisdom, Benjamin Franklin advised, “we must hang together, gentlemen…else, we shall most assuredly hang separately.”

Gini Nelson: Support Team Members By Giving Them What They Need To Be Successful

For most people, conflict is very stressful. We’ve heard the warning “stress kills.” Short of that, it also steals valuable time, money and energy away from both a productive business and a meaningful life. On your own office team, you probably devote valuable time heeding the “hidden costs of conflict,” mediating disputes, and dealing with absenteeism, unnecessary turnover, and grievance filing, which are the prime indicators of workplace conflict according to John Ford of John Ford & Associates, Oakland, California. Instead, we focus on conflict’s direct costs—legal fees paid when conflicts escalate, and increased insurance costs due to theft and sabotage.

When I first sat on the board of directors of a nonprofit organization, back in the early 1990s, we focused our energy on raising significant amounts of money. I’d never known many rich people and wasn’t experienced in or skilled at social networking. The discussion focused primarily on fundraising through conventional nonprofit activities and outreach. I was pretty sure I wouldn’t be very good at that. I’m still not. But I am good at systematically analyzing projects and developing creative options. I urged, in effect, the board to undertake an expenditures audit of the organization, including looking at energy conservation. How could we become more efficient, how could we save money, how could we reduce our costs? Clearly I did not advocate my position effectively because there was very little discussion and no one seconded my suggestions. The conventional efforts went forward. In the end, I’m sure my suggestions would not have freed up the quantities of resources needed for the Board’s project. At the same time, they might have freed up some resources; the process might have triggered other, creative options; and I might have felt more appreciated by the board and stayed on longer than I did.

What does this anecdote illustrate?

• Different people are good at different things
• People often achieve better results when they do what they are good at instead of what they are not good at
• People often want to do their work successfully
• People often feel bad if their work product is not good
• Most people want to be seen and appreciated
• People tend to leave an organization if they feel they are not good at what they are doing, their work product is not good, their ideas and efforts are not acknowledged and appreciated, and that they are not appreciated.

Put another way, people tend to leave an organization when they feel that they are not valued there.

Savvy lawyers value their human capital. Valuing people does not mean the firm fails to require people to do the work they’re hired to do, fails to supervise how well they do it, or fails to discipline where necessary. It means the firm supports all members of the team by giving them what they need to do a job they’re good at. If you require people to do what they are not good at, or if you cannot give them the tools they need to do it well, tell them you know you are sending them into the game with one hand tied behind their backs, and that you will appreciate their efforts no matter what the outcome. And mean it.

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Mary, who cared for her aging mother, was sued by her sister who claimed that Mary abused the older woman and stole her Social Security checks.

Noah, one of five siblings, wouldn’t let any of his brothers or sisters visit their elderly father: he was convinced they would “take advantage” of him.

It is amazing how quickly formerly cordial relationships between family members sour when the family has to care for elderly parents or deal with inheritance issues after their death. Sometimes the consequences can break families apart and create long-lasting animosity.
The National Care Planning Council has seen an increase in requests from care giving children for help in solving disputes with siblings. In many instances, these disputes devolve into a “she said, he said” impasse—with neither party really understanding what the elder person needs or wants.

Some family members find it hard to communicate with each other when their parent is in need of care. Perhaps they were not raised to work out problems together so that as adults they don’t have a family council strategy to rely on. Such a process may seem unnatural to them. But that is often exactly what is needed, especially in situations in which one child is caring for the parents and the others are left out of the loop.

Children all have a common bond to their parents and as a result a common obligation to each other. When disagreements arise, suspicions begin to grow. Suspicions or distrust often leads to anger which in turns causes people to sever the channels of communication between them. This can occur between parent and child, between siblings or between all of them.

This is when it’s often best for a neutral third party to enter the discussion to repair the damage that has been done and help correct the problems. A practitioner experienced in elder mediation is a perfect choice for these situations.

What Is Elder Mediation And Why Is It Advantageous?

Mediation is a non-adversarial approach to solving disputes. Mediation is a process of bringing two or more disputing parties together and having them mutually negotiate a solution to their disagreement. The mediator is not a judge and does not render a decision but is there to make sure that communication flows freely between the disputing parties. Elder Mediators are trained in the art of negotiating resolutions between elderly parents and family members.

Mediation can achieve results that the family by itself may not be capable of realizing or have the expertise to achieve. Elder Mediation is valuable because having a trained expert in communication:

• Gives the family a perspective it could not gain by meeting together on its own
• Allows all family members involved to meet and prevent problems from arising by anticipating situations that may cause disputes
• Can invite other experts, such as care managers or other care providers, to the meeting to educate the family and give them a new perspective
• Allows parents to focus on their abilities rather than their limitations
• Allows children to come up with and consider options not thought of previously
• Encourages uninvolved family members to become involved
• Allows parents to express wishes and desires that had previously gone unuttered
• Allows for a neutral third party to challenge family members and make them take responsibility for their actions
• Promotes consensus of all involved which in turn creates a much higher rate of compliance with the plan than with any other process (the success rate for compliance with elder mediation is estimated to be about 80% to 85%)
• Requires a written plan with specific responsibilities which makes compliance feasible.

Many national organizations and companies provide expertise in Elder Mediation to help seniors and their families. Many mediators often have many coincident professional accreditations such as Professional or Geriatric Care Manager, Elder Attorney, Clinical Social Worker or Certified Mediator.

In choosing a mediator, consider your needs. Does your parent require a medical assessment to determine the type of care? Are legal concerns at issue, whether over inheritance, family business or assigning the power of attorney? Or do you just need to bring the family together to decide what needs to be done and who will do it?

“Bringing a neutral person with a professional and compassionate attitude into our disputes was the best thing for all involved,” said Connie, a woman I know who struggled for months over health and safety issues before she enlisted the service of a professional care manager mediator. “My parents shared their concerns and listened with acceptance to mine. All of a sudden we could communicate and work out a plan that they could live with; then, I could relax knowing they were safe.”

How Do I Find An Elder Mediator?

You can find Elder Mediators by:

• Looking under “mediation” in your local phone book
• Contacting your local senior services agency
• Asking friends and neighbors
• Contacting a nearby college or university and asking for a mediation referral
• Contacting your state bar association

RESOURCES

You can also go online to Google “mediation” or visit The National Care Planning Council’s website that lists Professional Mediators throughout the United States.

For other helpful resources, contact The 4 Steps of Long Term Care Planning (National Care Planning Council).

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Umami reminds us of the degree to which culture shapes how we perceive our world. Cultures, and their differences, matter in the 21^st century. Once local or regional, our business networks are increasingly global thanks to digital technology, which has transformed the geography of our professional lives.

With these changes come challenges: what can we do to prepare ourselves to communicate, understand, and reach agreement across cultures? Some basic principles, borrowed from my work at the mediation table, can help as we engage our international counterparts.

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As someone who helps people negotiate for a living, I’ve seen how useful negotiation is for solving many of life’s dilemmas. Most of us are familiar with two ways to negotiate—gladiator-style, in which only one of us emerges victorious from the sand of the arena; or the split-the-difference approach in which we all give and get a little, leaving everyone equally unhappy. In both cases, we leave value on the negotiating table—and all too often enemies in our wake.

Others rely on a third way. Principled negotiation seeks ways for all parties to get their key interests met. This method of negotiation succeeds in part because it stresses both relationship and communication with our bargaining counterpart.

Although the notion of “relationship” is often derided because of its touch-feely connotations, relationships are what gets stuff done. Our ability to connect with others, gain their trust, influence and motivate them is the social lubricant that makes businesses thrive. In fact, Dan Hull, an attorney I admire for his focus on client service, once wrote, “Treat each co-worker like he or she is your best client.” He’s right—nurture relationships for a healthier law firm.

Good negotiators are communication experts: they ask questions and listen closely to the answers. Communication should be easy for lawyers because it’s our stock in trade. But communication is fraught with peril because our perceptions fool us. In a famous study, researchers showed subjects a video of two teams playing basketball, and instructed them to count the number of times the ball bounces. A person in a gorilla costume walks through the players, stops in front of the camera, thumps his chest, and then exits. Half the subjects failed to see the gorilla, so intent were they on following the ball. Life is like that—we miss the gorilla. Do what good negotiators do—use
communication to identify the gaps in perception—yours and mine.

Relationship building, like good communication, helps to keep peace in any workplace. But they work best in tandem. When things go wrong, when people screw up, when intergenerational or cultural differences manifest, you’ll need them both. Communication will produce solutions and the relationship will become more resilient and survive.

Re-spect: Look Again—Stephanie West Allen

Being a mediator has been like having both a challenging teacher and a caring guide. Although not always easy to learn, the lessons mediation has taught me have served me well in many of my life roles. Using my mediation eyes and ears has become a way of understanding many if not most people and interpersonal interactions, not just disputants and disputes.

Daily life presents us with many opportunities for give and take. How much we give and take is a function of the situation, as well as our values, interests, and personal styles. Each time the relationship and situation is new and unique.

To remember that uniqueness is one of the most important lessons I have learned from mediation. We tend to forget this as we become more seasoned in our practice of mediation, of law, and of life. Our brain likes to be fuel efficient; by discerning patterns, it saves energy. It studies the situations at hand, whether they are protracted mediations, playful exchanges with a partner, or steely verbal duels with opposing counsel, to see if they resemble a situation it has seen in the past. We then base our judgments on that unconscious notion of past—but we are not always fully aware of the present. Yesterday’s solutions do not always fit today’s problems.

As a mediator, my goal is to seek with focused attention, and value with fresh senses, the uniqueness of each interaction. I ask (or at least try to remember to ask), “What is new—right now—about this particular mix of values and interests and people?” I try to bring respect to the situation. Re-spect. Re-look. Look again. Fresh eyes and ears are two of the most valuable tools of a mediator. Our senses can be sharpened by experience or they can become jaded and aged. As the decades pass, I hope my mediation experience has kept my senses young.

Let’s Start Talking About What We Genuinely Value: Victoria Pynchon

If law firms are simply high schools with money, the varsity jocks and beauty queens of the profession are the members of the AmLaw 100. These are the attorneys who make $200,000+ as young associates; $500,000+ as mid-level partners; and $1 million+ as senior shareholders.

According to the Global Rich List, AmLaw 100 associates are among the top .01% richest people in the world. Mid-level AmLaw partners are in the top .001% and beyond that the GRL stops counting. Though of course we do not.

If a comparison of our salaries with these galactic levels of compensation make us unhappy, it is unlikely that the following knowledge will make us happy—three billion people live on less than $2 and 1.3 billion on less than $1 per day. Why does this knowledge leave us untouched? Because we don’t compare ourselves to the rest of the world. We compare ourselves to the guy sitting in the office next to us.

So how did we—some of the smartest, richest, most creative, energetic and best educated people in the world—get so unhappy about money? I personally blame it on the American Lawyer even though, like drug dealers and the paparazzi, legal journalists wouldn’t be concentrating on profits per partner unless we were all so avid to know them.

In 2006, for instance, the American Lawyer (and nearly every other legal journal) reported that the mean “profits per partner” of the AmLaw 100 was $1.2 million. Yet a far more compelling factoid recently found its way into Forbes magazine: the very very rich, like those in the Forbes 400, report virtually the same level of happiness as do the Maasai herdsman of East Africa.

So what’s the “human factor” solution to this problem? Should we deep six news of our fellow shareholders’ income? Pretend we don’t care? No. We do something far more radical than that.

We start talking together about what we genuinely value. We remind ourselves that money is at best a means to a goal and at worst a substitute for something we haven’t otherwise been able to achieve, like a feeling of being appreciated, understood, meaningfully occupied, even loved. When we look again at our group earnings, we can brain-storm ways to most happily distribute them.

Give the staff an across-the-board raise instead of increasing Al’s compensation from $1.2 to $1.5 million? Sponsor a local high school trial advocacy team? Buy goats for a small village in Africa? Purchase random appreciation gifts for staff and attorneys for jobs particularly well done? Give the same degree of “business origination” credit to the attorneys who keep the client as to those who snag the business in the first place?

Listen—and now I’m talking to my fellow boomers—we can do anything we want. We’re in charge now. We can kick out the jams, break down a couple of institutional walls, and shake things up a little. We could, if we wanted, even get back that lovin’ feelin’ . . . . yeah, yeah, yeah . . . .

Know How To “Do” Conflict: Gini Nelson

Lawyers, like most people, work with others and inevitably, conflict arises. When friends complain about these conflicts, I no longer tell them that one of the best things about being a home office solo is “no office politics” because they just tell me I’m bragging. Instead I give them this advice: (1) know yourself (how you tend to handle conflict); (2) know that others are legitimately different from you (and not just “dysfunctional”); and (3) know how to “do conflict” by using the skills you have and learning more skills.

Clients and friends have told me that talking with me about conflict is like talking with a counselor, not a lawyer or a friend. I listen well and give good counsel. They don’t know that in my personal life, and in dealing with professional colleagues outside of the specifics of a case, I’m a conflict avoider. Though I feel conflict and can draw judgments about conflict situations, I have a deeply-ingrained habit of remaining silent. While that helps me reduce my own stress, the other person can resent being ignored, and decisions can end up being made by default. Sometimes conflict avoidance is “deferred relationship maintenance,” which means that you hope a problem will not get worse before you get to it.

All the styles of handling conflict, according to the Thomas-Kilmann conflict modes, are helpful in some circumstances and not so helpful in others. Some people handle conflict by accommodating (“I like it the other way, but it’s your call”), compromising (“Let’s split the difference”), collaborating (“We are smart enough to have both high quality and low-cost. How can we do it?”), or by competing (“That’s my decision and I am your boss”). You probably use all the modes at least sometimes but have a preferred style, though you may not see its disadvantages. You also may not see the advantages of the other modes or respect their proper uses.

If your style is accommodating, be careful to avoid a pattern of
appeasement as you might be exploited by others. If your style is
compromising, be careful not to compromise on vital issues and remember that not all issues can be fully resolved. If collaboration is your preferred mode, don’t ignore the fact that this strategy takes a lot of time and effort. If you prefer to compete, don’t fight unfairly as others will feel resentful.

We hope you enjoyed our last group effort. From now on, we will alternate writing our own columns for successive issues.

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While in law school, I earned over half of a Master’s degree in Counseling Psychology. Although I’d invested too much in becoming a lawyer to switch vocations, I decided if I could not be a mental health professional, at least I could work with them. During this time, law professor Gary Neustadter and I organized a daylong meeting of over 100 mental health professionals and lawyers to look at ways for interdisciplinary collaboration, something many people in both fields desired.

At the conference, Gary Friedman spoke about mediation. I was intrigued and exhilarated. As soon as I got home, I wrote Gary a long letter thanking him for introducing me to a process that used both my lawyer skills and my desire and ability to assist people in resolving their disputes in a way that returned to them the right and responsibility for the resolution. Gary responded; I was soon signed up for his very first five-day mediation training. I vividly recall buying five pairs of socks. I knew we would be shoeless and I wanted my feet to look good. (Nobody wears shoes at trainings in Marin County.)

During the third dinner, I sat with Gary’s co-trainer Jack Himmelstein. He asked me why I was attending. I said, “This may sound crazy but it’s kind of an echo of the 60s spirit.” He asked if I was going to share that with others and I put that notion out of his head. I did not want to sound like some dreamy hippie. Jack said he thought my reasons might not be that deviant. I rolled my mind’s eyes.

That night the discussion was shocking. People began to talk about their hopes for practicing law and serving others by being a lawyer. Among those talking was me. Later I saw Jack as I walked back to my cabin. He smiled and said, “See?”

Yes, I saw. I have been a mediator ever since. Did I quit the adversarial practice? Not until several years later. Mediation is an attitude and a value system, and once I embraced its spirit, I changed how I practiced—and filled many other roles. How? Read the next edition of “The Human Factor.”

Gini Nelson’s Mediator Career Began By Mediating Her Friends’ Divorce

“How” I became a mediator is more important than “why.”

I was watching TV one night when a good friend called. He had big news, sad news—he and his wife, who were both friends and with whom my partner of earlier years and I had traveled and sailed, were getting a divorce. He paused. They wanted to retain me, he said, as their mediator.

I was a family law attorney at the time. As I explained, I had never mediated before and had never taken mediation training. Further, I advised, some people would say the mediator should not be a personal friend of the parties. He listened and calmly said they understood, and still wanted me to be their mediator. They trusted I would learn to do whatever was needed in order to help them. Would I please agree?

I honored their request, trusting their judgment about how they wanted to proceed in the divorce, which only one of them wanted. I did some checking online, bought Gary Friedman’s A Guide To Divorce Mediation, studied it and worked with my friends one step at a time over the course of a couple of months, meeting in my living room.

That’s how I became a mediator. I remained a mediator because of that experience. In their pain, my friends showed me that a much better outcome is possible with mediation, when the parties are willing to talk and have patience with the perspective and needs of the other.

It contrasted sharply with some of my worst experiences in contested family cases when opposing counsel were not wise or experienced enough to understand (or simply didn’t care) about their client’s dysfunctionality in such highly emotional, catastrophic times. At the worst, under the principle of “like attracts like,” emotionally unstable or immature clients tended to end up with attorneys who either shared or tolerated their dysfunctionalities uncritically. At best, even many well-intended attorneys simply were not comfortable dealing with the reality of their client’s emotions in these cases, and didn’t. Such counsel contributed, I felt, to tens of thousands of dollars of unnecessary attorney’s fees and unnecessary hatred and despair directed at us from our clients.

I resolved to be a great attorney mediator.

Diane Levin Offers Her “Rules Of The Road” For Career Change

Any journey requires four essentials: motivation to undertake the trip, time to plan and pack the right stuff, a willingness to ask for directions, and enough curiosity to leave your hotel room to mingle with the natives. The journey from practicing attorney to mediator is no different.

Motivating yourself: If not for an 18-month battle with a catastrophic illness at the end of my second year of law school, I may not have become a mediator. Illness with its attendant indignities was more gift than burden. It motivated me to consider how best to make my time on earth count. And it gave me the compassion for the human condition that mediators need.

Packing for the trip: In law school—and later—I was fortunate to work for inspiring role models. One of these mentors, a skilled trial lawyer, taught me enduring lessons about the value of the well-negotiated settlement to produce just results, create certainty, and provide closure. Understanding the realities of trial, she knew that settlement returned people sooner to the business of living.

Mediation was a natural extension of the work she and others prepared me to do. Her wisdom still travels with me.
Asking for directions: I received my initial training in community mediation. For the new mediator, it is baptism by fire as you wade into full-scale turf war between public housing tenants, local merchants confronting shoplifters, or desperate parents struggling with truant teens. Commercial disputes are cakewalks in comparison. Although I’ve had many more hours of training and experience since, I owe a debt to my early mentors for the road map they gave me.

Mingling with the natives: Taking part in the life of the ADR community was the most important step I took to becoming a mediator. I signed up for every advanced training course I could find (and still do). I continued to attend seminars and conferences to network and build my skills. I served on the boards of two community mediation programs and of a multi-state association for ADR professionals. I passed along the lessons I learned, becoming a trainer and mentor of mediators myself. “Be a joiner,” I tell them, mingle. Joining has brought me referrals and business, the wise counsel of colleagues when dilemmas arise, and many friendships, which nurture my work.

One last thing—the postcard home. Here’s mine to you—we’re having a great time and wish you were here.

Victoria Pynchon Learned To Think Like A Lawyer…Who’s Also A Mediator

My first day of mediation training progressed in somewhat the same fashion as my first few weeks in Civil Procedure. I remember struggling with the theoretical bases of jurisdiction in Pennoyer v. Neff one day one only to be told the following week that Pennoyer was no longer the law. “Why,” I remember thinking, “did we even bother with Pennoyer when this Buckeye case about an exploding boiler now seems to be the law? Or will it be replaced next week as well?”

Law school, which taught me to “think like a lawyer,” was the precise opposite of my new mediation studies. Now, it seemed, I was being trained to stop “thinking like a lawyer.” Still, mediation, like the law, was full of conflicting ideologies from which it appeared I was required to choose.

It was easy for me to be evaluative: I had 25 years of legal practice in my backpack. I learned Dr. Cialdini’s “Principles of Ethical Influence”—Reciprocation, Scarcity (the rule of the rare), Authority, Commitment, Empathy, and, Consensus. These power principles helped the mediator to “make the other side see reason” when called upon to do so.

But the evaluative style was not the only prescribed route to mediation mastery. There were many who favored facilitation. The facilitative mediator first creates an atmosphere of hope and safety before helping the parties locate areas of agreement and mutual benefit. Here, the mediator is a follower or helper on the path to resolution, like the protective figures who appear early in a hero’s journey to enlightenment.

You can’t immerse yourself in mediation for long before you hear the clamor of the transformative crowd. Facilitative mediators, say the transformative folks, too often present themselves as wizards who intrude upon the parties’ conflict with their own agenda—usually “resolution be damned, let’s settle this darn thing!” The transformative mediator lets the session wheel out of control if that is where it is eager to go. Conflict is not seen as a state to be avoided or suppressed. Like a loving mother following the course of her child’s flu, the transformative mediator provides the parties with encouragement, opportunities to rest, lots of fluids and a metaphoric place to lay their heads as the conflict runs its natural course.

When I first brought this tangle of methodologies to the few master mediators I know, they all made short work of it with the scalpel of experience. “You are the technique,” they instructed. “Just stay in the process. Don’t guess. Ask questions. Listen. Don’t give up before the miracle of mediation happens.”

Now, four years into a full-time ADR practice, I am still struggling to embrace the entire dispute—the business or people problem that found its way to an attorney because of the justice issues with which it was burdened. I often feel that I’m walking a razor’s edge. I will never stop “thinking like a lawyer.” Nor will I stop pursuing this new way of thinking—one that looks for the opportunity to finesse the legal impasse by using the problem itself as an opportunity to broker a deal.

Why mediation? For me, it’s simply a broader canvass on which to paint a new picture. How mediation? In baby steps, one after the other, in just the same way I learned to be a litigator and trial attorney. How can the Human Factor help with your own life and legal practice? Stick around. Miracles are common here. We think you’ll enjoy the ride.

Post from: The Complete Lawyer

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