1 PerspectiveFebruary 23, 2013
As a longtime participant in the mediation process my primary focus has been its impact on my clients’ litigation — it’s one way cases get resolved, which saves us all money, time, risk, and more. But yesterday I got another perspective on mediation, and I was reminded that it is, truly, Something Bigger. My perspective came from Gene Roberts at North Texas Negotiations who, along with Adam McGough, chairs this year’s Annual Conference for the Texas Association of Mediators.
Gene’s remarks begin with the traditional perspective of a conference chair, but the message he gets to is unmistakable:
The conference is run by volunteers. There’s no paid staff. We’ve done our best and we ask for your indulgence if something unexpected happens. It’s not for want of planning or trying. Life has not afforded Adam and me the necessary reprieve to handle everything perfectly, but we’ve done our best and will continue to do so. Please know that we’ve put every bit of time, energy, and effort to make this conference one that will benefit you and ultimately, the public we serve. We’ve done everything we can to provide you with the most inspiring, genuine, and dedicated people we know. We especially want to thank two members of your board of directors, Meg Walker and Toylaine Spencer for their hard work, behind the scenes, in putting this conference together.
Adam and I want to think some people who have put up with us for the last year and while they are not members of TAM, they have played a crucial role in this conference’s success: our wives, Lacy McGough and Celeste Roberts, and our children Noah, Cooper, Eli, and Jackson. They’ve spent nights and weekends without us while we’ve worked on this conference. Lacy and I spent Valentine’s Day of 2012 looking at hotel properties. She’s spent a lot of time helping to plan the conference and managed to have Eli last month in a complicated delivery. Celeste spent time stuffing your conference bags, allowing swag to cover our living room floor, and putting up with me. Celeste joked with me on Sunday that she’ll be happy when this conference is over because she’d like to have her husband back. This may be an example of being careful what you wish for. Both of our families have sacrificed in many ways over the last year. But they do so with great joy because they believe in us, they believe in the mission of this organization, and they believe in this profession. So to Lacy, Celeste, Noah, Cooper, Eli, and Jackson, “thanks so much.”
This conference is the most important conference in the history of TAM. This conference is the most important in your professional career. Mediation is at a tipping point in Texas and time is short: will we go over the cliff, or can we continue this wonderful public service called mediation. We hope this conference will help prepare all of us for the next leg of this journey.
When Adam and I started to put this conference together over a year ago, one of our first questions what “what’s our theme.” Adam conceived of this theme of something bigger. The thought was, at that time, that we needed to take the good things that mediators do and try to expand it to places outside of the courthouse. So that a new graduate of a mediation program doesn’t thinks that the first step in their business plan is to go to the courthouse, drop off some resumes, and wait for the work to come rolling in. We needed to think bigger. Our skills, our passion, our abilities are bigger than just the courthouse.
But things were percolating in the background, even before we were planning.
On August 25, 2011, a group of prominent attorneys representing plaintiffs, defendants, and distinguished trial lawyers—people who usually agree on absolutely nothing— signed their names to this statement in a letter to the Texas Supreme Court:
“Finally, mediation has become viewed by many as expensive, time consuming and inefficient. This is antithetical to the letter and spirit of House Bill 274. We propose, as an additional incentive to parties to use the expedited trial procedure, that mediation will not be required in cases submitted to the procedure.”
As a result of that letter, and very little deliberation and no empirical evidence, the Texas Supreme Court issued a proposed rule in December that would have prohibited trial court judges from ordering civil cases under $100,000 to mediation. There were four exceptions: family law, probate, tax, and medical liability. Which leads to the question if mediation is “expensive, time consuming, and inefficient” why impose it upon families, those going through the probate process, tax disputes, and medical liability claims? Why is mediation okay for them, but not for everyone else?
What a contrast to 1987 when mediation was formally codified in Texas, and people were writing that mediation was an “Innovative Approach to Solving Problems Efficiently.” And that ADR “serves as a vital complement to our formal justice system.” What a difference 25 years makes.
Through a lot of hard work in a small window of time, the mediation community, along with others in the legal and business community came together, wrote over 300 letters to the Texas Supreme Court, and the court changed the proposed rule, allowing these expedited cases to go to mediation, but limiting the time of the mediation to 4 hours and capping the fees that the mediator can charge to two times the filing fee.
Since that letter of August 25, 2011, we’ve learned that we have no natural allies. No one stands up and says “What about the mediators?” And most importantly, no one stood up and said “What about the parties.”
Why did some people who are the leaders in civil litigation in Texas say to the Supreme Court that mediation is “expensive, time consuming, and inefficient.” Why do they have that opinion? Why are they willing to say it in writing to the highest court in this state? Why are they willing to sign their names—and their reputations—to such a statement?
I’ve been told that when you point a finger at someone else, you’ve got three more pointing back at you.
The events of August 25, 2011, and since then, should be a wakeup call to us individually and to us as a profession. Very smart people, at the top of their games and the top of their professions, were willing to say that what we’ve been preaching for 25 years—that we are less expensive, quicker, and more efficient—isn’t true.
So we must change our thinking. We must be thinking about Something Bigger. And we must start that change that right now.
This is the reason that we’re going to physically share the same space for most of our time together. It was Benjamin Franklin who said “We must all hang together, or assuredly we shall all hang separately.” We’ve got to hang together to protect and promote this thing that we all cherish called mediation. There is no better time for us to start hanging together than right now.
We’ve designed this conference to push you. Some of our talks will be uncomfortable. We don’t have a lot of long, leisurely breaks because our profession can’t afford that. We’re not going to have short days with lots of “fellowship” opportunities because we can’t afford that. We’ve got to be adding tools to our toolboxes, sharpening the tools that we currently have, and we’ve got to be about Something Bigger.
The environment that we now find ourselves—economically and now structurally—is why we must have Peter Robinson from Pepperdine and Randy Lowry from Lipscomb here, to provide a foundational look of how we can shape our future. We must have Doug Noll here to talk to us about decisional errors that folks make in mediations. We must have Jim Melamed here to talk to us about how to use technology. We must have Lee Jay Berman show us how to use our personal power in mediations. We must hear from John DeGroote about the importance of decision-trees as a tool to help our clients. Eric Galton must tell us the stories of the transformative power of mediation. We must listen to Justice Thomas’ experience about how to mediate the family law case. We must hear from Jean Whyte about how to mitigate disputes before they turn into litigation. We must hear from Ken Burdin, Chris Nolland, Melanie Grimes, Will Pryor, and Doug Skierski about how to practice this craft called mediation in this brave new world. And we must hear from Max Glauben, Bernard Nguyen, and Celestin Musekura who’ve experienced the horrific extremes of conflict yet still manage to live lives of peace and peacemaking. We must hear from Ken Cloke about how we as mediators can help people to have the difficult conversations. We must hear from the very best in our profession so that we can better ourselves and more importantly, help those we serve. We must be thinking about Something Bigger.
And we must hear from Karen Blessen. Less than a month ago, there was an early morning shooting at an apartment complex here in Dallas. It barely made the news. Two people allegedly killed by their downstairs neighbor. 5 children spared. 4 of them were at their local elementary school at the time of the shooting. Karen, a Pulitzer prize winning graphic artist, now teaches peacemaking to school children here in Dallas. She shows children that there is a role for peacemakers and that society will honor you if you choose to be a peacemaker—a very different philosophy than what we’ve recently seen with our others in position of leadership. Karen’s taught peacemaking at Hotchkiss Elementary school, the school where four of those children attend and where my wife is the school’s nurse. Our community now has five children, one of whom was 2 months old, no longer have a mother because of a neighbor on neighbor conflict escalated to murder. What if they had known about mediation? Who says that small matters don’t deserve mediation? Even those so-called small matters deserve Something Bigger.
So, for the next two days, Adam and I will push you. We want you to think about mediation in new and exciting ways. Think about this: professionally, we want to get involved in other people’s disputes. We are mediators. We are the ones who want to meet people at one of their lowest points in their lives. We are mediators. We are the ones in the room who are the optimists. We are mediators. We say that there is a better way. We are mediators. We say there is a silver lining. We are mediators. We say there is a creative solution to the problem. We are mediators. We say don’t focus on the past but look to the future. We are mediators. We say tomorrow is better than today and can be better than yesterday. We are mediators.
It’s about time that we start listen to ourselves and talking to other people. Our profession, according to some, was dead if the proposed rule 169 passed as originally envisioned. A lot of people performed CPR and resurrected the body. We’ve been given a second chance.
But we can’t sit back and rest on this victory. The people who believe that we are not efficient, effective, or less expensive are still out there and still hold positions of power. Our word is that this was not a one-time shot by the Supreme Court. We must continue to be vigilant and to think in bigger ways about our mediations, our business practices, and our profession. We have to think about how to help these folks realize that mediation is a valuable public service and an excellent return on investment.
But I don’t practice civil mediations, or court appointed mediations, you say, so why should I care? These rules aren’t affecting me.
Because once the civil mediations, the court appointed mediations go away, it sets a precedent. The slippery slope has been greased and you are the next one to try to stop the avalanche. Talk to those folks in California who will see the entire court-annexed mediation system erased as of June 30 of this year. Talk to the folks in New York who are seeing community based mediation centers cut. California, New York, and now Texas—the three largest states in our country—have discussed eliminating aspects of mediation. That ought to scare the beejeebers out of everyone in this room as well as all of the people and businesses that depend upon mediation for the peaceful resolution of their disputes.
Dietrich Bonhoeffer said that “Not to speak is to speak. Not to act is to act.” We must speak, we must act, and we must view mediation, our roles, and our profession as something bigger than what we have for the last 25 years.
23 years ago, Steve Brutsche, a man who helped bring mediation to Dallas and to Texas, stood before an audience and gave a speech entitled “Rediscovering Professional Purpose and Service.” He said “when I look at the group of people that are attending this seminar today, it is with humility and pride mixed, an odd mix, but when I look at you I see the cream of our profession.” That most of us went into our profession “with a desire to have our lives be a contribution, with the desire to do something positive with our education and the opportunities given us….If you’ve gone through mediation, just one time, it shifts your view of what is possible forever. And I promise it’s addictive. The more you experience the opportunity to be of service, the more you want to be of service.”
A quarter of a century later, Adam and I stand before you, looking out to the cream of our profession. Seeing the experience of those who have mediated for a long time and those who are starting out on this professional journey and everyone in between. We stand before you with that odd mix of humility and pride. It is with humility that we ask those experienced mediators in the room to find the younger mediators and tutor them. It is with humility that we ask those new mediators to find the experienced mediators and latch on to them. It is with humility that we ask you to learn from each other, to help each other, and starting today, that we all recommit ourselves to our professional purpose and service. It is with humility, as Brutsche said, that we take this opportunity that’s been given to us—a second chance at life—to transform our profession and to give something back to it and to the public, by how we practice. It is with humility that we ask you to be Something Bigger.