As 2010 draws to a close, year-end reviews become popular.
- We’re all told to take a cold, hard look at where we are and where we need to go.
- Businesses are encouraged to examine where they can make marginal changes to improve their bottom line.
- Individuals are urged to pick one, small change that they can implement to reduce stress and enjoy life more.
What about the big picture: the essential things you already know you must do, but somehow don’t get done?
- You know that your family business needs to create a succession plan, but you don’t know how to start the discussion, in the family or in the business.
- You know that you need to have a conversation with your family about your estate planning priorities and decisions.
- You know that you need to talk with your elderly parents about challenging topics related to aging.
I can help you with these conversations. Ask me how. Always a complimentary, confidential, initial consultation.
There are certain truths about conflict, conflict resolution, and mediation that we know are timeless. Yet they don’t always rise to the top of our consciousness. This month, repeatedly, I have found myself discussing the merits of business mediation with business owners who really “get it”. In particular, they are looking for a dispute resolution process that will serve their own interests in a far-reaching and essential way.
These business partners have accepted that their current business structure cannot continue. They also recognize that all those involved are going to continue working in the field that their business is in. Most important from the conflict resolution (and even conflict prevention) perspective is the focus on ending the business relationship in a way that preserves both business capital and personal capital.
These savvy businesspeople understand that talk (a/k/a gossip) about their business divorce is inevitable. So, not only do they want to handle the business assets in a way that reflects well in the bottom line. They also want to behave, corporately and personally, in a way that reflects well on them as individuals who will continue doing business in their field. That’s where mediation can help.
I’ve written before about Kenneth Feinberg and and his work involving the BP Gulf oil spill. In today’s New York Times, an article by John Schwartz, “Comments By Overseer of BP Fund Irk Lawyers,” talks about a lawsuit filed by plaintiffs’ attorneys over statements Feinberg has made that encourage claimants to apply for compensation through the fund instead of filing suit.
I have been watching the description of Feinberg and his work over the years and I am pleased to see that the word “mediator” is being used less frequently. Few would question (well, obviously plaintiffs’ attorneys do) the value of his work with regard to various mass tort situations. But it’s inaccurate to call it “mediation”. Administration of the BP fund is a more accurate description.
Today’s article mentions that the Department of Justice has urged Feinberg to process claims faster and to provide more transparency. Mediation does provide faster resolution than many other forms of dispute resolution. But confidentially is a hallmark, not public transparency. The article goes on to say that the federal government has not questioned Feinberg’s independence. If we equate independence with impartiality in this context, that’s one characteristic that this “administrator” and every competent “mediator” share.
When parties find themselves in conflict and begin to think about resolution of that conflict, they may be just starting to view the dispute with more input from their reason than their emotions. When we are caught up in a conflict for some time,we can fall into demonizing the other side and we can become ever more convinced of the rightness of our own position.
In reality, it is hard for any of us to look at a situation where we need to get to conflict resolution with objectivity. That’s the whole point of mediation: the mediator has no stake in the outcome. The challenge for parties can be in recognizing that almost any dispute has some middle ground, at least one area where it’s not so clear that one party is completely right and another is completely wrong.
Parties to a dispute need to use their heads to find those areas and appreciate the reality in them: parties in conflict need use their gray matter to see those gray areas. Mediators can help.
As I wrote last time, ten days ago, Joe Nocera wrote an article for the New York Times Business section titled “Justice, Without The System.” In it, he described an interview he had with Kenneth R. Feinberg about Feinberg’s work related to the BP oil spill in the Gulf and claims made against the company for damages.
The article describes Feinberg’s work as coming up with “solutions that prevent large national traumas … from tying up the courts for years on end in litigation that winds up frustrating everyone except the lawyers.” An especially pertinent example was cited: the Exxon Valdez case. It took over 20 years to complete, some 20% of victims had died by the time that claims were paid, and it was reported that the average payment to victims was $15,000. In other cases, plaintiffs may feel that they have a strong case and still end up with nothing. As Mr. Nocera summed it up: “To put it bluntly, litigation is a crapshoot.”
Although these disasters involve a certain of loss and lawsuit, the risks of litigation are real with respect to any type of claim. Time, expense, uncertainty, and stress are important costs that are often overlooked in the zeal to pursue a lawsuit. Mediation can help potential court adversaries rationally consider these costs and allow parties to make a more reasoned decision about their own self-interest.
Ten days ago, Joe Nocera wrote an article for the New York Times Business section titled “Justice, Without The System.” In it, he described an interview he had with Kenneth R. Feinberg about Feinberg’s work related to the BP oil spill in the Gulf and claims made against the company for damages. Over and over again, news reports and commentaries have referred to Feinberg as a “mediator.” I have taken issue with that description before: whatever his role is, it is not a mediator as we normally understand the mediation process. This time around, he is described as “the former pay czar” and the administrator of the 9/11 fund and, currently, of BP’s $2o million compensation fund but not as a “mediator” . It might have no significance at all, but I would like to think that a better understanding of mediation is developing. Once more: it’s a process in which a neutral third party helps parties in conflict to reach resolution that fits their situation. Feinberg’s work, whatever you think of it, isn’t mediating the dispute between BP and each claimant. It’s administrating.
It’s easy to Talk the Talk about Thanksgiving and family:
“I am so thankful for my family.”
“I love my family and I would do anything for them.”
“Family comes first.”
But do you Walk the Walk?
Have you had those important conversations about estate planning?
Have your parents told you their wishes about end-of-life care?
Have you told your children your wishes?
I can help you to Walk the Walk and show your family how grateful you are for them.
I can help you have those difficult, but essential, conversations.
Contact me for a free and confidential consultation.
Last week, I had the pleasure of speaking on “Holidays and Tough Conversations” at The Hearth at Tuxis Pond in Madison, CT. It’s a timely topic: when families gather for the holidays they may find that family situations have changed since they last gathered: a loved one may be more frail, a caregiving plan in place may no longer be adequate, or siblings may see the situation through very different perspectives. I talked about how elder mediation can help, as well as some practical tips that families can use themselves to handle these tough — but essential — conversations. The group had some insightful questions that provided helpful scenarios for putting these tips to work.
This week, on Thursday, November 18, 2010, I will be speaking again on this topic at The Hearth at Gardenside, from 5:30 to 7:00, and the public is welcome to attend.
Today’s New York Times ran a front-page article titled, “Money Woes Can Be Early Clue to Alzheimer’s,” by Gina Kolata. In particular, the article focused on the impact of the beginning of dementia on families, financial advisors, and lawyers. Families struggle to keep their loved ones from becoming victims of fraud or simply failing to meet their financial obligations. Financial advisors reported that, although they suspected that they had clients who have Alzheimer’s or are developing it, they feel ill-equipped to deal with those clients. Attorneys have a duty to protect their clients, but how best to honor that obligation can be difficult to determine when an attorney see signs of developing dementia.
As a mediator, I see potential for conflict for families and aging loved ones. As they face the challenges presented by dementia, they will see no easy answers and many opportunities to disagree about how to proceed. If the family can find a way to keep lines of communication open and work together, they will have one common “enemy” — the disease itself — instead of fighting each other as well. A mediator can help families faced with these tough times.
Earlier this month, I had the pleasure of giving a talk on meditation to the New Haven (CT) County Bar Association’s Trusts, Estates, and Probate Committee. The group included attorneys at every level, from those new to the bar to those who had been in practice for many years. The presentation covered two areas. First, I covered some practical tips for conflict prevention, reduction, and resolution in estate planning and estate settlement. Then, I described scenarios (many of them very familiar to the lawyers present) where a mediator could help their clients in ways that the attorney could not easily do. I attend these NHCBA Committee meetings often and know the group to be engaged and thoughtful in their discussions. So, it was very enjoyable to give them some useful information about mediation and conflict, as applied to the work that they do.