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Mary Culbert’s ABCs of Mediation (Part 1 of 3)

Mary B. Culbert is a Bilingual Certified Mediator, an Associate Clinical Professor at Loyola Law School, and the president of The Loyola Law School Center for Conflict Resolution.  She is also a Loyola Law School graduate.  A giant in the Southern California Mediation community, she attributes her family history and a background in theatre as having helped pave the path to her career as a mediator.

In part one of this three part series, Mary talks about how and why she became a full time peacemaker.

For more information about Mary Culbert, visit www.LLS.edu/academics/faculty/culbert.html.
For more about The Center for Conflict Resolution, visit www.lls.edu/academics/candp/ccr.html.

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Orange You Happy?

Two children were in the kitchen fighting over an orange. Their father walked in, saw what was going on and decided to put an end to it. He grabbed the orange from their hands, put it on the chopping block, cut it in half, and gave half to his son and half to his daughter.

Both children burst into tears. Astonished, the father turned to his son and said, “Johnny, why are you crying?”

“I wanted the whole orange!” Johnny answered, sobbing.

“You can’t have the whole orange, there’s only one orange. You have to share it with your sister. Stop crying.” Then he turned to his daughter and asked, “Suzy, why are you crying?”

Suzy sniffled and said, “Daddy, I didn’t want the orange at all.”

“What? What are you talking about?”

“I only wanted the peel. I need it for an icing recipe for a cake I just baked. But I have to have the whole peel.”

The father scratched his beard, thoughtfully. “You only wanted the outside of the orange?”

Suzy nodded her head sadly, a fat tear dripping from her chin. “Yes.”

“Can Johnny have the inside of the orange?”

Her eyes widened and she bounced on her toes. “Yes!”

“Johnny? Will you give your sister the orange peel if she lets you have the inside of the orange?”

Little Johnny’s face brightened and he clasped his hands together. “Yes! Of course! I didn’t even want the crummy old peel!”

***

The truth about litigated divorce is that the judge doesn’t have the time, the inclination or the imagination to find out what your interests are. When you get a traditional, litigated divorce, you get distributive bargaining. The judge is following the law. He’s lead by the rules and the statutes.

With Collaborative Divorce, as well as with mediation or The Kitchen Table Divorce, there is creativity and imagination. Your wants, your needs, and your fears are heard, acknowledged, and understood. Your spouse’s wants and needs and fears are heard, acknowledged, and understood. It’s impossible to be angry or hateful towards someone you understand.

You went into your marriage with love. If you’re getting a divorce, you have the opportunity to reorganize your life with love. It’s your choice.

How much does a divorce cost?

Very often the first question a divorce lawyer hears is, “How much is this going to cost?” It’s an important question, and Certified Family Law Specialist Ron Supancic answers it in this short informative video.

Conflict Revolution

Last week I returned from Italy, where members of Mediators Beyond Borders presented to the new Italian chapters in Florence and Rome. I wanted to share with you one of the talks I gave in Florence. Thank you for reading.

Photo courtesy of FreeFoto.com

When I was a little boy growing up in Seattle, Washington, I studied the life of an extraordinary Italian man. Three days ago I had the privilege of kneeling and praying at the tomb of Francis of Assisi. He lived during a time of dissonance, distress, and hostility, amid a crisis of violence and bloodshed. He had been a soldier. He was taken as a prisoner and spent a year in a dungeon. Through his suffering he came to an awareness that violence does not end violence. He came to the conviction that there had to be another way. He realized that he must give his life as the example of this new and different way. In so doing he founded the Franciscan Order based on poverty, charity, and good works.

We also live in a time of crisis, conflict, violence, and bloodshed. Innocent people are dying in unprecedented numbers in many places around the globe. Our leaders only fuel the flames with their failed efforts to force peace through war. It is again time for a new and different way.

Not long ago, Ken Cloke, a mediator from Santa Monica, watched paratroopers dropping into Bosnia with machine guns and grenade launchers.  He wondered what the outcome would be if they came bearing tools of peacemaking, rather than weapons of destruction.  If the paratroopers were facilitators of dialogue and mediators of conflict, carrying only the skills and technology of dispute resolution. What if their message elicited and encouraged disputants to stop, listen, and reflect in a mindful way that promoted understanding and invited participation? His musing was the birth of Mediators Beyond Borders. Still in its infancy, but engaged in eleven countries around the world, it is helping to build indigenous capacity with tools for dispute resolution wherever requested and invited.

My own journey is similar. A scorch-and-burn litigator for over thirty years, I knew my training in traditional methods of dispute resolution left wreckage and chaos in its wake. Mediation opened the door to consciousness and collaboration, and underscored the need for signed agreements to avoid litigation by both parties and counsel. First I used the services of a court mediator. Then I became a court mediator. Now I am a member of a Collaborative Law Firm that, first and foremost, promotes consciousness, awareness, discernment, and litigation avoidance whenever and wherever possible.

Having known Ken Cloke for several decades, and as impressed as I was with his intelligence and empathic peacemaking skills, I was immediately drawn to the vision and mission of MBB. Attending the Annual Congress, serving on Committees, and becoming familiar with the caliber and the talent of my professional colleagues among MBB members has confirmed my belief that this organization, by virtue of its values and the quality of its aspirational intentions, would only attract the best of the best.

If you only read one book about Mediation, it must be Conflict Revolutionby Ken Cloke.  It paints a picture both breathtaking and inspirational of the possibility of peacemaking on a global basis. It deserves to be translated into all languages and shared with all people who seek to peacefully change the world. The information is essential to the present task we face together.

When I was a little boy growing up in Seattle, I read, “Blessed are the Peacemakers, for they shall be called the children of God.” I still believe that. I believe you do as well. Welcome to the Revolution.

Interview With A Superior Court Judge (Part 4 of 4)

“Clients should listen to their lawyers more, and the people they know at Starbucks less.” – the Honorable Judge Thomas Trent Lewis

Family Court does not get adequate resources. There aren’t enough judges, there aren’t enough clerks, there aren’t enough courtrooms. Family law makes up a huge percentage of judicial filings, but it receives a very small percentage of judicial resources. Additional judicial resources is just one of the recommendations made by the Elkins Committee, a two-year taskforce study that came out last October because of concerns regarding access and fairness that came about in the case of Elkins v Superior Court.

Judge Thomas Trent Lewis, a sitting Superior Court Judge with over twenty-eight years of experience as a Certified Family Law Specialist, is one of the advisors to the people on the Elkins Committee. Listen in as he talks with Ron and Robert about the Elkins Report, case management, early neutral evaluation, mediation, how divorcing families can save resources, why litigation is the wrong path to divorce, and who should try marriage counseling before filing.

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Missed Judge Lewis’ earlier episodes?
Part 1
Part 2
Part 3
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Using Court As A Last Resort: Advocacy Without Adversaries

By Jan Frankel Schau and Ronald Supancic

Just as you were getting used to the concept of Arbitration and Mediation as the common alternatives for resolving legal disputes, along comes “Collaborative Law.” Is it the talisman of future dispute resolution in America?

“Collaborative Law” is being widely used, particularly in Family Law settings globally. In fact, in many European countries, the Court system is only the last resort after all other so-called “Appropriate Dispute Resolution” alternatives are fully exploited. Like any new system, it will undoubtedly be met with some resistance from the Courts and the Bar. This article will explore the concept of “collaborative law” and other “appropriate” dispute resolution processes applicable to the civil case in Los Angeles County .

Ideally, most civil disputes could be resolved, (as they sometimes are in the family law arena) around the kitchen table. That is, the parties sit down together, break bread and make peace. They work out their disputes without the need for outside intervention. This is the first step in “Appropriate Dispute Resolution” – an earnest attempt for the parties to meet and resolve their differences informally.

Failing that, parties could and should retain a neutral dispute facilitator or manager: someone whom both parties could agree to hire to oversee collection and exchange of all the necessary facts in order to fairly evaluate and resolve the dispute. This individual would oversee depositions, collect documents and screen them for confidentiality claims, and keep the parties on a schedule for responding to one another’s requests and demands. This approach is not entirely novel: under the California Civil Code all new actions for defects in real estate construction by a Homeowner’s Association require retaining and using a Dispute Facilitator before filing a lawsuit.

Once the facts have been fully submitted and explored, a “conventional” mediation might be appropriate. There, each side would be able to present their version of the incident or claim, based upon the stipulated facts and exchanged evidence, and a neutral intermediary could actively engage the two sides in collaborating towards a resolution.

Read more…

Why Mediate?

Dear Friends of the Law Collaborative,

Why Mediate?

What’s in it for me? That is the question that a client usually asks when mediation is suggested. Ideally, mediation of a divorce case will save people; will save them angst, alienation, and money. Mediation requires that both lawyer and client clearly and specifically identify their ideal solution to the dispute, and both are advised to carefully consider the other party’s desired outcome as well. Mediation can be a Win-Win proposition if those involved really want it to work. From the outset, The Law Collaborative’s goal is to design a settlement agreement that will realistically fulfill the basic needs of all of the parties to the mediation. We happily and readily employ the word, “compromise.” To compromise, cooperate, concede – in other words, to find the middle ground and occupy it. This is the place from which people are able to negotiate their way through dispute to agreement.

Learn more about Collaborative Law:

Many lawyers consider that they are competent to practice collaborative family law because they believe in settling cases and resolving disputes outside of court. However, a willingness to settle is not the only requirement. The attorney who wishes to employ collaborative law in his practice must have a thorough knowledge of negotiation skills, and understand the underlying theories and strategies of negotiation. Minimum standards for collaborative family law practice are continually expanding, as the work continues to attract more followers throughout the country. The Law Collaborative is pleased to provide education for attorneys and other collaborative professionals, making available new tools, technology, and information generated by professionals successfully engaged in the practice. To those professionals interested in learning more about collaborative practice, consider attendance at our 3 day workshop coming in November!

We also invite you to our next Second Saturday Divorce Workshop, which will take place on August 14th at our Woodland Hills Office. Attorney Robert Borsky of The Law Collaborative will address the legal issues in divorce. Irene Smith, Certified Divorce Financial Analyst, will discuss the financial issues associated with divorce. A marriage and family therapist will also address emotional issues in divorce situations. This workshop is beneficial to anyone contemplating divorce, or curious about their options. Pre-registration cost is $45, or $50 at the door. Breakfast will be served. Please call our office at (888) 852-9961 for registration and additional information. We are here to serve you.

Best,

Ron Supancic and Robert Borsky

“Bringing peace to the legal process.”

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Secrets of Power Negotiating

From the latest LACBA Negotiation Tips Newsletter:

Whenever others confront us with a viewpoint we totally oppose, we easily start arguing about the veracity of that position. What is the problem with this approach, or more to the point, this reaction? It leads to an argument. When we start pushing others, they push back as if by instinct. The more we argue with others, the more they feel forced into proving they are right.

So how do we overcome this natural tendency to try to prove we are right? Let’s consider a playbook that enables us to disagree without being confrontational and that give us time to think. A master negotiator, author, and trainer, Roger Dawson* has come up with a basic formula: “feel, felt, found.”

Take a phrase we often hear in legal negotiations and mediations: “That is a ridiculous and insulting offer.” Armed with Dawson’s “feel, felt, found” formula, you can respond as follows:

1. FEEL: “Please help me understand why you feel that way.” Or “I understand how you would feel that way.”

2. FELT: “I have been in your position and have often felt that way too.”

3. FOUND: “And, what I have found is that taking a step back to listen to what the other side has to say about why this is so insulting, often opens the door to other possibilities that might satisfy your interests.”

The bottom line: instead of arguing, get into the habit of agreeing with them and then turning it around to your favor.

*Secrets of Power Negotiating, Roger Dawson, The Career Press, Inc 2001

Difficult Conversations

Photo by Dopey LaRue on Flickr

Article from Peace Talks Mediation Services May Newsletter

Difficult Conversations

Sooner or later, you’ll need to have a difficult conversation. Whether it’s “I turned my back for a minute and now we’re in the emergency room” or “this relationship isn’t working for me anymore” or even “I feel like I can’t talk to you because all you do is shut me down,” it’s going to happen.

Here are some tips for making your next difficult conversation as smooth as possible.

1. Plan ahead: What is your purpose for having the conversation? What do you hope to accomplish? What would be an ideal outcome? How can you word your opening sentences so that they are supportive, and not critical or condescending? Write out your goals on a piece of paper if you’ll need a prompt.

2. Don’t assume: What assumptions are you making about the other person’s intentions? Although you may feel intimidated, ignored, disrespected, or worse, are you sure they meant it that way? It’s easy to misinterpret what someone says, particularly when it’s via e-mail or voice mail.

3. Watch for triggers: Is the situation pushing your buttons? If you step back for a moment, are you more emotional than the situation warrants? Are you having a reaction that has more to do with your personal history than with the actual situation? You may still need to have the conversation, but you’ll go into it acknowledging that some of the heightened emotional state has to do with you.

4. Check your attitude: Your attitude influences the outcome. If you think the conversation will go poorly, it probably will. If you believe that the conversation, even though it’s difficult, will result in some good, then it probably will. Adjust your attitude for maximum effectiveness.

5. Put yourself in their place: Think about the other person. What might they be thinking about this situation? Are they even aware of the problem? If so, how do you think they perceive it? What will be their main concerns? What solution do you think they would suggest? Use some empathy to see the topic from a different perspective.

6. Look for commonalities: Is the situation you’re addressing something that may also be troubling the other person? Are there any common concerns? Could there be? Sometimes a difficult problem has a wider impact than just you, even though no one else may have brought it up yet because they dread having this difficult conversation.

7. Own your part: How have you contributed to the problem? It’s easy to figure out how the other person contributed. But what was your role in what happened? Are you ready to take responsibility for your part, even if you feel the other person is mostly to blame?

© 2010 Diana Mercer and Katie Jane Wennechuk. Excerpted from Making Divorce Work: 8 Essential Keys for Resolving Conflict and Rebuilding Your Life (Perigee, December 2010). Contact: diana1159@aol.com

The Third Wednesday

Although it may be one of the best kept secrets of the Los Angeles Superior Court, the LACBA/SFVBA-sponsored Third Wednesday Voluntary Settlement Conference Program is designed to turn the misfortune of the current budget crisis into an opportunity to settle cases.  Each family law department in Los Angeles County may assign up to two cases each month to the VSC program, which provides three hours of free mediation on the third Wednesday of each month in the private office of an experienced family law attorney serving as a voluntary settlement officer.

In the event that a case has not been resolved after three hours of free mediation, counsel is encouraged to retain the services of the volunteer mediator to resolve any remaining issues. The program, which commenced in February 2010, had incredible success in March.  Five out of seven assigned cases were completely settled, and a sixth is still engaged in peaceful mediation with a volunteer mediator.

If you’re going through a divorce in Los Angeles County and you’re afraid you’re headed to trial, ask your attorney about having your case assigned to the VSC program.  You’ll be glad you did.