Lee Jay Berman's EYE ON CONFLICT

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Mari Frank and I discuss mediation and conflict resolution techniques on how to deal with loved ones during the holidays.

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Holding the middle, especially this week, is hard work.

The middle is not a compromise.  It’s not a lack of opinion or feeling.  It’s also not a passive place.  It’s a very active role in holding center while others around you get pulled (sometimes manipulated) to the extremes.

The middle doesn’t hate. It neither puts itself above anyone, nor is it a victim to anyone else.  It’s not a place where people are looking to win over someone else.

In the middle, people understand that conflict is inevitable, and that how we deal with conflict is sometimes even more important than the conflict itself.  Being in the middle requires reaching across the aisle, or the dinner table, and showing respect, and seeking understanding.  In the middle, disagreement is an opportunity for learning, and that dialogue and discourse are the way toward being a peaceful, informed society.  In the middle, we find shared values, interests, and goals.  The middle is the only place where collaboration and synergy can exist – where 2 plus 2 can equal 5.

The middle is quiet, and right now, that is part of why it is at risk.  It’s intelligent and sexy, but in a quiet way.  Not unlike Trump supporters in blue states, those in the middle are increasingly quiet about their position because it’s not popular, and holding it is sometimes seen as a failure to support friends and loved ones.  That quiet means we have to work harder to hold it.

And right now, the middle isn’t very popular.  Those in the middle are being pulled by those on the ends to join in.  When waves of euphoria, or rage, or entitlement sweep people up into a movement, saying to them, “No, thank you.” can be seen as oppositional.

Meanwhile, the ends are seductive.  It’s liberating to yell and vent, whether one is in a position of power or feeling oppressed.  It releases chemicals into the brain that are as powerful and exhilarating as a walk-off grand slam in the bottom of the ninth inning in your home ballpark, or a third encore of your favorite artist’s concert.

But, not unlike an eye for an eye, when we fight and yell and try to overpower, the other just regroups and comes back to yell even louder, or show their power or their teeth to win the next time.  Witness America’s pendulum-like swings from Kennedy to Nixon/Ford to Carter to Reagan/Bush to Clinton to Bush to Obama to Trump.  If the pendulum were slowing and calming, and our swings as a nation becoming less pronounced and adversarial, we would be working our way toward a more sustainable middle.  But our swings have held or increased in their wildness between some people and the other people; between us and them.  So, in fifty years, is it working?  Some might say that this is how democracy is supposed to work.  I believe that we can do better.

This week, I had people I with whom I’m very close at both the Presidential Inauguration of Donald Trump and the Women’s March on Washington, and in various cities.  The middle was hard to hold this week.  Next week, I invite you to join me.  As a country, I think we could use some more people holding the middle right now.  I’ll hope to see you there.

Tags: Bush, Clinton, Inaugural, march, middle, Obama, Trump, Washington, women, Women's March on Washington
Posted in Current Events, leadership, Politics & World Events | 2 Comments »

As a mediator and leadership coach, I have to say this:  While generally I don’t disagree with most of what Meryl Streep said during her acceptance speech for the Hollywood Foreign Press’s Lifetime Achievement Award at tonight’s Golden Globe awards, she did miss an incredible opportunity.

First, she used her audience, her station, and her status the same way she accuses President-Elect Trump of using his.  Then, by attacking him, all she did was up the ante and unify his supporters (half of our country), while ensuring that Newton’s third law of physics persists:  For every action, there is an equal and opposite reaction.  As long as any of us advocate for one “side” over another, or argue over who/what is right/wrong, and frame it as “us and them”, we simply continue volleying in the same game.  The only way to unify us as a people, and appeal to the vast middle of the bell curve, is instead to catch the ball, stop the game, walk to the middle of the court and have real dialogue, with listening, understanding, and acknowledgement.

If you were cheering her speech, you may be caught up in the game, too.  We call it confirmation bias, where you seek out what you agree with because it feels good.  If you are booing it, maybe you should listen again and hear her words.  The fact that she delivered them in advocacy doesn’t mean that they are wrong; it only means she said them in a way that some couldn’t hear them.  And perhaps with a little too much judgment.

As a mediator, I know that telling people they are wrong doesn’t change their minds.  And as one who regularly mediates with the biggest celebrities in “Hollywood”, I know that even the ballroom before her was divided.  I also know that her talk made it unsafe for any who disagreed to speak up.  That’s why the election polls were so inaccurate.

We should be seeking to make people stop and scratch their heads and think in a new way about things they hadn’t before considered, rather than seeking to make the majority cheer and raise a fist.  As long as both sides persist in the latter, we are trapped in this volley for the unforeseeable future.

I call upon my mediator and leadership colleagues, and on all of you reading this, to help change the game and create dialogue, modeling more inquiry and active listening than advocacy.  It is up to all of us.

Tags: celebrities, Dialogue, Golden Globes, leadership, Mediation, Meryl Streep, politics
Posted in Celebrities, Entertainment & Sports, Current Events, leadership, Mediation Field, Mediation Skills, Politics & World Events | 1 Comment »

Years ago, I mediated a case involving alleged police brutality. I’ve mediated several of them, but this one stood out from the rest. The plaintiff (the alleged victim) was African American and fairly muscular. The two officers, the defendants, along with the department, were Caucasian.

His story was that they took him to be a burglar, coming out of an apartment building late at night. They were sitting in their patrol car, when he came out the front door. When he turned to walk away from them toward his car, right away he heard their rapid footsteps coming down the sidewalk behind him. Anticipating what was coming, he dropped to his knees, and still facing away from them, he put his arms up, then laced his fingers behind his head, into what he called the international position of submission. He said he didn’t want to cause the officers any more alarm than he felt they were already feeling.

The rest of his story was that they took a billy club to his shoulders, back, and back of his head, cuffed his hands where they were behind his head, and dragged him backwards down the sidewalk by the handcuffs, and intentionally slammed his head against the patrol car when shoving him into the back seat.

The officers’ story, I’ll never know. They didn’t come to the mediation. Their commanding officer and someone from internal affairs or human resources was there, and perhaps a union representative (it’s been many years now). Their story was that the arrest was done by the book, and that the plaintiff was faking his injuries. They insisted that his injuries were consistent with self-inflicted wounds, though after his release, the hospital report was inconclusive.

At the mediation, we learned two significant facts. First, that there had been a history of racial strife in that neighborhood for a couple of years between the largely Caucasian police division, and the largely African American population. And second, that the plaintiff owned a healing clinic, and had devoted his life to helping people reduce stress and anxiety and find more inner peace through everything from meditation to counseling to somatic techniques like yoga, massage, and reiki.

When I asked him what he’d like to see happen that day at the mediation, he said that he felt very sorry for the officers. When I reminded him that he was the victim, he agreed, but said that he had been meditating on it, and couldn’t imagine the huge amount of fear, stress, and anxiety that these two officers must be under on a constant basis, in order for them to have treated him the way that they did.

Being a mediator, it’s not my job to determine who I think is telling the truth, or who is right or wrong. It’s my job to help them find the best possible mutually agreeable solution. My personal take on it is that in every case, I try my best to dig as deep as the participants will let me, in order to uncover their deepest interests or needs, and be as creative as I can to help them get those resolved, often in a way that money alone can’t.

In this case, he offered to accept enough money to pay his lawyer for having to file the case (because the department hadn’t been responsive when he tried to reach out to them directly), and then to offer to treat the two officers in his center. He wanted to prove to them, and to the department, that he and his team of professionals could so significantly reduce the stress level of these officers, that it would change their lives. Then, being an entrepreneur, he added that if he could do that, maybe the department would send more of the officers from that division, which could, in turn, reduce tensions in the entire neighborhood.

We could never get the department’s brass to sign off on the proposal, mostly saying that they couldn’t agree to anything that would single out the two officers and create the perception that they did anything wrong. I used all of my persuasiveness, and so did the plaintiff’s counsel, who was himself incredibly enlightened and collaborative. He explained that absent such a creative solution, the price to settle the case would multiply, given the risk that a jury might side with his client. But we could not overcome the department’s strong interest in defending and protecting their own. They saw that as their job, and it’s hard to argue with that.

In hindsight, I feel like we missed a turning point back then. Obviously, this week’s recent events bring this all to light again. But when I look at the rash of civilian killings by police, and the barbaric targeting of the Dallas police officers, I see an opening. I see tragic events that might create just enough public outcry and awareness, to allow people in important positions to see the overriding need for healing and decompression and creating a bridge of peace in our communities.

Fortunately, I am not alone. In Los Angeles, a group called the Institute for Nonviolence in Los Angeles, in concert with Mediators Beyond Borders and the Southern California Mediation Association, have been holding very successful meetings throughout the city called, Days of Dialogue – the Future of Policing in Los Angeles. Every city should have such a program. And those in Los Angeles, should pick one out and attend it.

We need to take back ownership of our country, and that begins one city at a time. And by ownership, I don’t mean government control, police power, or civil disobedience. I mean that We The People need to step in and help each other to have dialogue. Please think about what you can do for your part. I certainly know what my role is.

Tags: brutality, community, Dialogue, litigation, mediators, neighborhood, police, violence
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[This blog post was originally written on August 9, 2015]   Something needs to be said about yesterday’s NFL Hall of Fame Induction Ceremony.  There was one very important person missing:  Former All-Everything Linebacker Junior Seau.  He is missing because he took his own life in 2012, between the time he retired after 20 NFL seasons, and the date of his induction into the Hall of Fame.  He took his life by pointing a gun at his heart and putting a bullet through it, allegedly so as to not do damage to his brain, and to leave it to be studied by doctors to assess the impact of repeated concussions from playing the sport.

Seau was one of several to take their own lives in this way, presumably to prove to the NFL and others that they needed to study Chronic Traumatic Encephalopathy (CTE, chronic brain damage that is said to make people feel crazy, like they’ve lost their minds, and also known for leading to severe depression), and because he could no longer live with the symptoms of the disease.  Seau did not leave a note, but the year before Seau’s suicide, Dave Duerson committed suicide in the same fashion and did leave a note requesting that his brain be studied for CTE.  To date, 18 players have been diagnosed with CTE, and 8 more are suspected to have had it.  Currently, 32 living former NFL players have been diagnosed with CTE or ALS, presumed to have come from repeated concussions.  These are names you know, including Brett Farve, Tony Dorsett, and Jim McMahon.

As you know, this space is not one for advocacy of one side or another on an issue, but rather to advocate for the discussions we should be having about difficult issues.  Neither side can stick their heads in the sand on such an important issue, but on this one, both sides did.  Players, ceding for the moment to the macho, jock stereotype, were not the most likely to step forward and admit a medical weakness from playing the game.  And the NFL owners likely looked at this as a risk of potential liability, so they went into denial mode until these suicides began, almost as a trend.

Eventually, the players filed a lawsuit, and there was a 2013 settlement, though it is still in conflict, with players opting out.  What’s wrong with this picture?  Isn’t this how our society works?  One side or both on an issue put their heads into the sand, refusing to acknowledge a problem, forcing the hand of the other to file a lawsuit in order to get the other side’s attention, and after each side has spent unheard of amounts of money fighting in our adversarial system, only then do they begin to have discussions.

What would happen if at the beginning of the problem, the very genesis of it, they brought in a mediator to serve as a neutral party and help them exchange information, discuss options, and look toward solutions and resolutions?  As a mediator, I can say that there is a huge difference in the options available to us early on in a dispute, as opposed to later, after litigation and discovery have entrenched everyone.  In the early stages, we talk about collaborating on a resolution, in the late stages, we talk about accepting a monetary settlement, often from an insurance policy that covers the defendant.

Until insurance companies, corporations, and individuals begin to decide to talk it over in the early stages of a conflict, we are going to keep going down this same path.  And what should be glorious celebrations of sport and victory will continue to be marred by death, sadness, and whispers of what would have been, and how it could have been different.

Read the rest of this entry »

Tags: brain, Chronic Traumatic Encephalopathy, concussion, CTE, football, injury, Junior Seau, Mediation, NFL, sports
Posted in Celebrities, Entertainment & Sports, Current Events | 1 Comment »

Judgment is a tool that actually impairs a mediator. While it’s human nature to judge people as dangerous or not, the notion of good or bad is one that only makes us feel superior in our ability to pass judgment on them. As the quote says, it does nothing for us.

As mediators, listing to people tell their stories, the trained human response is to decide which story we believe, or which seems right, or more credible. The mediator’s job, in contrast to those things is to understand. To understand that the story we’ve just heard is that person’s offering, their truth. And what they need from us is to understand it and to honor it as such. We don’t have to agree with it, or validate it, or ratify it, we simply need to accept it as their truth, and make sure they understand that we have done so.

The challenge to one being a really complete mediator is their ability to hold two separate truths simultaneously. Can you? Can you hear to stories that sound 180 degrees different and hold them both, and still be of value to them in helping them reach an agreement that allows them to put the dispute behind them without scratching the itch of needing to know who is right? Or whose truth is closest to the real truth? If so, then you may be cut out to be a mediator. If not, you may just need more practice at suspending judgment and really, deeply listening to people, while quieting the chatter in your mind that’s busy judging. If you can learn to do that, then you will see the world in a different light. That is the light of the mediator.

Tags: Judges, Judging, Judgment, Mediation, Mediator
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“Seek first to understand, then to be understood.” – Stephen R. Covey

We are once again in the wake of a tragedy.  News outlets are filled with coverage, details are slowly emerging, and the cover of Time Magazine shows a frightened child in the aftermath of the Boston Marathon bombing.  Many runners were running in memory of the Newtown, Connecticut victims, meeting tragedy with tragedy.

It is so difficult to find the words to express thoughts and feelings when there are infinitely more questions.  How could someone do this?  Why would someone do this?  Am I at risk?  We’ve even caught one of the suspected bombers alive, but still the unfortunate reality is that the answers to these questions may never be known and will certainly never be satisfying, certainly not to a daughter-less mother, a son-less father or a victim missing a limb.

So, how did we get here?   Simply put, someone wasn’t listening and someone wasn’t being heard.  As of this writing, we don’t know much about why this horrendous act was perpetrated.  But what we do know is that it was a statement – a political statement from a disenfranchised party, be it a person or a group, during the busiest area of a highly visible race on a highly visible day.

When people lash out, whether it’s in line at the dry cleaner, via road rage or in acts of terrorism like school shootings or the occurrences at the Boston Marathon, they usually do so because nobody has listened to them.  People get stifled, ignored, pushed down, or just out shouted, and not enough of us are listening.  So, feeling unheard and misunderstood, they scream louder, through social media or any other outlet they can find, until they finally lash out with anger or violence, so that someone will be forced to pay attention and listen to them.

To be clear, it is not anyone’s fault when someone resorts to violence, other than the person who cannot or does not contain their own emotions.  But when we ask ourselves, what could we have done, perhaps there is one answer that may have helped.

As a society, we are so connected by technology: email, news feeds, Facebook, Twitter, Skype. There is so much talk. So much chatter and noise.  But nobody listens.  Most people are merely waiting their turn to chime in with their own woes.  As human beings we all want to be understood, we want to have that moment of satisfaction and that feeling that someone actually understands us, maybe even cares.  As adults, as citizens in our communities, and in our schools, it is incumbent on us to actively choose to listen, to show empathy and compassion, and to give to others the feeling of being understood.  We don’t have to agree with everything others are saying, but by listening and letting them know that they’ve been heard, we may remove their need to shout louder.  Otherwise, a tool of communication becomes a tool of separation.

Mediators do not have magic wands.  All we really do is convince people to come in for a day, disconnect from technology, and allow us to listen to them and address their concerns.  We ask them to do this for each other. We let them know we hear them and that they are understood, thereby hopefully reducing or eliminating conflict.  School counselors, therapists, human resource professionals and others in the mental health and services professions are trained to do the same thing.  But every person reading this can make a difference, too.

In the coming days, weeks, and months, I implore people to take a moment to truly listen.  Listen to a friend.  Listen to a colleague.  Listen to your children.  Check in.  Ask questions and seek first to understand as we are all trying to understand.  Maybe that will be the difference between conflict and resolution.  And maybe even it will be the difference between violence and satisfaction.

Tags: bombing, Boston, captured, conflict, listening, marathon, motivation, reason, resolution, suspect, violence, what made him do it
Posted in Current Events, Mediation Skills, Politics & World Events | 2 Comments »

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights that, among these are Life, Liberty and the pursuit of Happiness.”   Sound familiar?  Having flashbacks to 7^th grade history?  Me too.  The Declaration of Independence contains one of the most recognizable and quotable lines in history and it has a nice ring to it – life, liberty, and the pursuit of happiness.

Regardless of your political affiliation, polls have shown most Americans are unhappy with the job performance of our representatives on Capitol Hill.  It is hard to turn on a news program without hearing the constant arguing that seems to be the new normal in D.C.  It is as exhausting to watch as it is, I am sure, to participate in, and it is not making anyone happy.  Take a good look at John Boehner’s face on any given day and tell me that man is not miserable.  So, where is the happiness?  It is missing in government.

There is another part of The Declaration of Independence that reads, “…whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government…”  Bear with me, I am not suggesting a massive overhaul, nor am I suggesting we abolish anything.  Perhaps simply alter government:  put Mediators in Congress, not as members, but simply as neutral parties armed with conflict resolution skills that will allow both sides of the aisle to compromise.

The issues plaguing our government are so polarizing that, no matter where you turn, someone feels like they are going to lose.    So often the idea of conflict in our society is resolved in a way in which one party is right and “wins” and one party is deemed wrong and “loses.”  It happens most of the time in our court systems.  This is not always the most productive path to conflict resolution and it certainly is not the most effective way to govern.  We have all, in our lives, gotten to a point of diminishing returns in a conflict – be it with a spouse, a friend, or a co-worker.  Such a point occurs when neither side is listening and everyone feels like they have something to lose if they budge from their position or, better yet, they disagree with an issue simply because the other side agrees with it.  In government this is referred to as political gridlock and it happens all the time.  Let’s take away that option but allow everyone the ability to save face.  A mediator’s skill lies in allowing parties the ability to compromise without looking weak.  A mediator gives the issue space to breath and offers a third option:  a solution instead of more conflict.  Imagine, both sides of the aisle given the ability and tools to govern effectively.  At the very least I think the House and Senate could use a class in conflict resolution techniques.

Consider this a Declaration of Resolution: somebody please put mediators in Congress!

Posted in Current Events, Mediation Field, Politics & World Events | 2 Comments »

I approached SCMA with the idea of doing a Town Hall in 2003 when the mediation community was divided like the red sea over the Rojas v. Superior Court Case.  That case pitted the confidentiality of the mediation process (and the evidence of mold discovered during a mediation, and its eventual remediation) against the needs of the families who had mold spores in their lungs and no way to prove liability, short of breaking the confidentiality of the underlying mediation.  That year, SCMA and CDRC, the two largest mediation groups in California wrote opposing amicus briefs to the State Supreme Court.  As a commercial mediator, I could see both sides of the issue having merit and thought that the best thing for the mediation community to do was to practice what they preach and come together to have a facilitated dialogue about the issue of the extent to which mediation confidentiality should extend.  After leading two years of public hearings on the state Senate Bill regarding mediator credentialing during the mid-90’s, I was very comfortable leading this kind of discussion and thought it would be good for everyone.  Since that time, SCMA has hosted a Town Hall most every summer.

This year, the reported closing of the Los Angeles Superior Court’s ADR program is a huge issue in the legal and ADR world, so a Town Hall style dialogue among mediators and advocates alike is really important.  The LASC mediation program was the largest in the world, and by administering some 25,000 mediations per year, was the envy of most other legal communities.  One of the largest benefits that the program provided, in addition to the obvious docket clearing benefit of a 50% resolution rate, was that it took the pressure off of counsel to risk appearing weak if they suggested mediation to opposing counsel by having the court order cases into the program so that counsel could save face.  One can only wonder how many of the cases that would actually benefit from a good private mediation will have that opportunity, as trial counsel simultaneously need to be zealous advocates for their clients in an adversarial proceeding.  I believe that proposing a mediation – an attempt to settle – is one of the hardest things to do for a trial lawyer. And the more their style leans toward intimidating, the harder it is for them to be congenial or appear open to settlement.

The reason that the local mediation community is divided over this is that at different stages in a mediator’s career, the program can be really helpful, almost a saving grace, or it can be the evil, undermining effect that keeps them from making a living.  You see, the LASC mediation program operated with a collection of some 2,000 trained mediators willing to mediate cases under $50,000 for the court on a volunteer basis for the first three hours.  The problem was that the court never respected the $50,000 cut-off intended by the original deal, which became SB 401, and eventually CCP 1775. As a result, the court deemed it fair game that ALL general civil cases were eligible for “free” mediation (for the first two hours of mediation time in every case, which quickly morphed into 3 hours by the late 1990’s).  This meant that for beginning mediators who were fresh out of training, the court was a great place to go and volunteer and get experience mediating with represented parties.  For intermediate level mediators, it was a great opportunity, and still one worth volunteering for, to raise their number of cases mediated and begin to develop relationships with trial lawyers on both sides of the aisle, as well as institutional parties, like insurance companies and corporate counsel.  But for more advanced mediators, looking to build a practice and pay the mortgage and feed their families, the court program soon became unfair competition, building on the backs of volunteer mediators, and by sending cases over $50,000 into this free program, potentially taking cases that would otherwise go to the private sector into the court’s jurisdiction by offering them free mediation. Today’s Tea Party should have had a fit over this.

As we look at it today, the possibility that this program appears to be going away on June 30, the only certainties we have is that the legal and ADR communities likely won’t have the court’s help in getting parties to the mediation table, and the likelihood of finding volunteer mediators for litigated cases will be little or none.  What we won’t know until this evening at the Town Hall being hosted by the Southern California Mediation Association is how the mediators and the bar will react to these changes.  Undoubtedly, some mediators will applaud them and say it’s about time, where others will mourn them and say that they feel like the mediators who are “in” practice already will have an even greater advantage over those trying to break into the profession.

In the end, I look forward to moderating a civil and productive dialogue will help generate creative ideas for continuing to promote mediation in litigated matters, and that as a community of peacemakers, we will find a way to serve those cases that might otherwise go un-served.  As a room full of mediators, I am certain we will find a way.

Tags: ADR, civil, Closing, litigation, Los Angeles, Mediation, Superior Court
Posted in Mediation Field | 3 Comments »

December 20, 2012

The membership of the Association for Conflict Resolution mourns the tragedy in Newtown, Connecticut, along with all those shaken by it across the United States and around the world. We and many of our other colleagues stand ready to lend the full range of our professional expertise and devotion to processes that support healing, as well as those sustained efforts that will be required to facilitate dialogue, build consensus, and take action to address the deep rooted structural issues that contribute to this tragic pattern. Our membership includes thousands of dedicated and seasoned conflict resolution practitioners with a variety of specializations committed to the work that lies ahead.

Many ACR members, particularly those who are mediators, are also following a developing side story relevant to our field. News reports have disclosed some details of the mediated divorce of the perpetrator’s parents and provided comments alleged to have come from the couple’s mediator. ACR would like to make clear to the public that confidentiality is one of the basic principles of mediation, and that any mediator belonging to an organization, such as ACR, which has approved the Model Standards of Conduct for Mediators, is bound by that standard of confidentiality (http://www.acrnet.org/Educator.aspx?id=971). In addition, ACR endorses both the ACR Ethical Principles and the Model Standards of Practice for Family and Divorce Mediators which state “A family mediator shall maintain the confidentiality of all information acquired in the mediation process, unless the mediator is permitted or required to reveal the information by law or agreement of the participants.”

Each year in the United States, there are thousands of divorcing couples who choose to work together in mediation to find an outcome that is mutually satisfactory. ACR is committed to seeing that they and all mediation clients can be assured that they are protected from breach of confidentiality except where permitted by law or agreement of the parties.

ACR leadership and members continue to offer whatever support and care we can to the community of Newtown, the surrounding area, and the affected families, for whom we grieve.

Association for Conflict Resolution
12100 Sunset Hills Road, Suite 130, Reston, VA 20190
www.acrnet.org

Tags: ACR, association, confidentiality, conflict, Connecticut, divorce, Mediation, mediators, Newton, privacy, resolution
Posted in Current Events, Mediation Field | 2 Comments »