Gibson spoke movingly of McWethy’s commitment to objective reporting and to uncovering the facts: “Jack believed that the most important word, the most powerful word, in the English language is why.”
Those words queued up a film clip of McWethy speaking at a DePauw University graduation ceremony:
All institutions, all endeavors, all relationships, are improved by a good scrubbing, using the word “why”. In democracy it is the question we must all constantly be asking our government and our leaders. It is not unpatriotic to question the government. It is unpatriotic not to.
Just when you think that mandatory arbitration clauses, cropping up ever more frequently in consumer agreements and employment contracts, can’t get any more outrageous, along comes a business that stoops to a new low.
[T]he owner of an East Texas Whataburger has apparently taken arbitration mania to a new level. Every public entrance to the burger franchise displays a sign informing people that simply setting foot on the premises means that they are giving up their right to sue the company for any reason, even if, for instance, they get a little e coli along with their fries. Instead, customers will be forced to arbitrate their claims before the American Mediation Association, an organization that seems to consist of three lawyers in Dallas hired by the Whataburger (part of a 58-year-old fast food chain deemed a “Texas treasure” by the state legislature).
I will remember always the pride I felt the day I was sworn in as a member of the bar.
I was the first woman in my family to go to college, to get an advanced degree, and now, to become a lawyer. It was an important achievement for me and for my whole family.
It meant a great deal, this formal commitment to the courts and to the law that courts serve — to become a member of a profession dedicated to principles so lofty that when you speak their names out loud, you can hear the capital letters ring out:
Justice. Liberty. Equality. Rights.
Such is the romanticism of youth.
A week or so after the ceremony, something unexpected happened to crush my youthful idealism.
I can no longer remember what mission the partner who was supervising me had sent me on, but for the first time I walked into a courtroom as a lawyer. I wore a brand-new suit and carried a leather briefcase (also new). I walked past the gleaming wood rail that marked the area where the general public waited, entered the lawyers’ bullpen, and proudly sat down.
A few minutes later, two attorneys, men in their late sixties, approached my row, caught sight of me, and then glared at me. They stood for a moment, and I had the impression that they were about to ask me to move. Instead, they glanced meaningfully at each other and then sat down directly behind me.
They began whispering to each other, just loudly enough that I could hear every word. “It’s an outrage what’s happened to the legal profession. People these days evidently don’t know their place,” said one. “Looks like anyone can be a lawyer these days,” said the other, “they’ve certainly lowered the bar.” There was more along those lines.
Nothing in my law school career had prepared me for that. I had no idea what to do. I could feel my face burning. I felt sick to my stomach. And really, really angry. The attorney sitting next to me rolled his eyes in disgust. “Ignore it,” he whispered, “and don’t let it get to you. Dinosaurs like that are on their way out.”
I would pose a far more interesting question: what might that attire be concealing?
We mediators are keepers of secrets. People trust us with sensitive information. We know their vulnerabilities, their self-doubt, their long-nursed wrongs, their secretly nurtured hopes. We have seen the hiding places of the human heart.
Yet it’s not only mediators to whom confidences are trusted. Designer and corporate lawyer David Kimelberg is the creator of Inked Inc., a photography project and book exploring the intersection of corporate and alternative culture, in which professionals roll up their sleeves and reveal the tattoos beneath the pinstripes.
An online gallery of photos of lawyers, doctors, and other professionals shows us images of these individuals in work clothes as well as of the body art they keep hidden from their colleagues. (There are, alas, no mediators, in case you were wondering.) It provides a candid look at individuals straddling the line between the professional and the personal, the corporate and the countercultural, as they proclaim their individuality in a conventional world.
It’s been such a busy month that my third anniversary of blogging, January 10, 2008, passed unnoticed. I completely forgot until now.
That is partly due to the attention that my blog’s move to a new home required, as well as the demands of work. And among the tasks involved in that move was the slow sorting-through and creation of categories for over 650 posts, the product of 36 months of blogging.
Among my archives I discovered several posts that reminded me why I continue to blog — some thoughts I’d like to share with you as I look back on three years.
Blogging of course is an effective marketing tool, one reason why many businesses and entrepreneurs are drawn to it, as my friend and fellow New Englander, Tammy Lenski, reminds readers today in asking an important question, “Is blogging a good mediation marketing strategy?”
Successful blogging requires research. So bloggers surf the web, cruising for news. We’re Internet blood-hounds, tracking down the elusive scent of stories that will pique the curiosity of our readers. That constant prowling alerts us to stories, trends, breaking news in our field—and even in fields that have nothing whatsoever to do with our blog’s focus, which, I would argue, makes us well-rounded individuals.
Although I have made many contacts the old-fashioned way—through personal introductions, conference attendance, and committee work–nothing has connected me to the world around me faster or more dramatically than blogging has succeeded in doing.
Blogs bring people together like no conference or convention can. It allows for conversation in a multitude of ways.
Here’s one: Publish a post and instantly the whole world hears your message. But this is no one-way conversation–because most blogs permit reader comments, the world can talk back.
Here’s another: Another blogger reads your post. Intrigued by the viewpoint or links you shared, he or she riffs on what you’ve written and links back to you, amplifying the conversation. Suddenly your voice is joined by someone else’s. Other bloggers chime in and the chorus of voices grows.
Here’s another: Someone discovers your blog. One of your posts has sparked their imagination or triggered questions. They email you to tell you. Or they email you a link to an article they think you’d find interesting. Or they email you just to say hello.
With a little encouragement, these conversations can ultimately give rise to meaningful connections–to collegiality, to inspiration, to collaboration. These connections, as I have happily discovered, can produce discoveries, insights, and, most rewardingly, friendships.
Contrary to popular belief, blogging is not a solitary activity. It is joyfully, boldly public.
You can shout into the canyon and hear your own voice echo back.
But wait and shout again, and you will hear other voices rise in greeting.
That, more than any other reason, is why blogging remains such an essential part of my professional life. It is the collegiality, the friendships that have sprung up across geographic distances. It is the pleasure of mutual discovery, of interests shared. It is the sparks struck and the ideas that ignite when viewpoints collide.
Here on the web, what matters most: Only connect.
Thanks to all of you for sharing some or all of those three years with me. I’m glad you were here.
There is no greater insult in America today than “flip-flopper”, a label anyone with political ambitions is eager to avoid. It’s as if the act of changing one’s mind as the result of reasoned self-reflection is somehow as shameful, as, say, lying about sex with an intern, rather than a mark of maturity and character.
Certainly anyone who changes their views with the prevailing wind as a matter of political expediency deserves our condemnation, as do those who fail to keep their promises, both political and otherwise.
But as a mediator I have to ask, what’s so great about consistency anyway? If you’re going in the wrong direction, what’s the problem with heading in a better one? When exactly did it get to be a bad thing to change your mind?
When a politician changes his mind, he is a ‘flip-flopper.’ Politicians will do almost anything to disown the virtue — as some of us might see it — of flexibility. Margaret Thatcher said, “The lady is not for turning.” Tony Blair said, “I don’t have a reverse gear.” Leading Democratic Presidential candidates, whose original decision to vote in favour of invading Iraq had been based on information believed in good faith but now known to be false, still stand by their earlier error for fear of the dread accusation: ‘flip-flopper’. How very different is the world of science. Scientists actually gain kudos through changing their minds. If a scientist cannot come up with an example where he has changed his mind during his career, he is hidebound, rigid, inflexible, dogmatic! It is not really all that paradoxical, when you think about it further, that prestige in politics and science should push in opposite directions.
What about you? Are you ready to exercise your reverse gear? Or, like Blair, do you deny owning one?
If you don’t like American football or live outside the United States, you’re probably not aware (or even care) that the undefeated New England Patriots are squaring off against the San Diego Chargers this Sunday in the battle for the AFC Championship and the right to play in the Super Bowl, that most sacred of American sports events. The top-seeded Pats, 17-0, are considered the odds-on favorites.
What do you say Diane are the Pats going to trounce the Chargers? Do the underdogs have a chance?
I confess that I’m torn. How to respond? The superstitious sports fan in me never makes public predictions about my team’s likelihood of victory (a superstition borne of a lifetime as a Red Sox supporter). Yet the pulse-pounding excitement of the 2007 football season has gone to my head.
This must surely apply to the dispute resolution field. Consider this:
Exhibit 1: Action.
Family lawyers in Massachusetts, including esteemed family mediation pioneer John Fiske, are currently working to replace references in state law to “custody” and “visitation” — words laden with negative associations for parents facing divorce — with the terms “parental rights and responsibilities” and “parenting plans” — language which is far less inflammatory and likely to provoke conflict. If Massachusetts takes this step, it will join other states like its neighbor New Hampshire which have already incorporated such changes into law. I have seen first-hand how destructive the traditional language can be and how much anxiety it arouses; those who work with families and couples in conflict as I have will no doubt welcome this change.
Exhibit 2: Equal and Opposite Reaction.
Every year I take the last week in December off and enjoy some of that time catching up on my reading. One of the books I added to my library is the tremendously entertaining pocket reference, William Drennan’s Advocacy Words: A Thesaurus. From the preface:
Effective word use is vital for anyone active in the law. For the attorney arguing a case or preparing a brief, for the jurist writing an opinion, even for the law student, words are the ammunition needed to make the point.
If you are a litigator, Advocacy Words can help you decimate opposing counsel’s position. If you are writing a brief, it can help you compose a convincing argument. If you are a jurist, it can help your opinions ring with the strength of your legal judgment. And if you are a law student, Advocacy Words can help you to hone your combative legal skills. Use the verbal dynamite in Advocacy Words to promote your position effectively. Let it be your companion in painting the verbal picture you want. Keep it handy to help you move others to your point of view.
The book is organized into two parts. Part one provides favorable words in one column with critical synonyms suggested in another; part two reverses it, with critical words in one column, with their favorable synonyms in the second.
For example, in part one, the critical “conspiracy, deal” are suggested substitutes for the favorable “agreement”; “confused, indecisive” for “considering alternative opinions”; and “manipulable, docile, meek, pliant, compliant, collaborative, toadying” for “cooperative”. Meanwhile, in part two, the favorable “frank exchange of ideas, frank discussion” is offered for the critical “argument”, and “flexible negotiator” for “soft-liner”.
Which countries are among the 20 happiest? They include Denmark in the #1 slot; Canada, #10; and New Zealand, #18. The U.S. ranks 23rd, while the U.K. is #41 and India #125.
Guilt can push us to say yes when all our instincts say no. Or we worry that “no” will harm a good relationship. Or we are convinced that saying no to them today will make them less willing to say yes to us tomorrow.
In saying No positively, we are giving ourselves a gift. We are creating time and space for what we want. We are protecting what we value. We are changing the situation for the better — and all the while keeping our friends, colleagues, and customers. In short, we are being true to ourselves…
No is no longer a negation but an affirmation of the honesty that good relationships depend upon:
Your No can be a gift to the other as well. “Tell me Yes, tell me No, but tell me now” is a refrain I have often heard from those on the receiving end. The other often much prefers a clear answer, even if it is No, than continued indecision and waffling. A No allows them to go ahead and make their own decisions.
Indeed, a Positive No can bring us closer to the other, into a more authentic relationship. If we do not speak our truth — our No — we may in fact distance ourselves from the other, as there will always be something important that lies unspoken between us.
We need to gain greater comfort in saying yes to No.
Those of you who are teachers or students of negotiation are no doubt familiar with one of the field’s best known texts, Negotiation: Readings, Exercises, and Cases, by Roy Lewicki et al.
One of its exercises, “Collecting Nos”, is designed to aid students in confronting and overcoming what is for many an overpowering fear and a mighty stumbling block to effective negotiation: the anxiety associated with asking for stuff.
Asking is hard for obvious reasons. We worry that our request will be denied — rejection is tough. Or we’re concerned that we’ll be perceived as pushy or demanding. Or we’ve been taught that it’s rude. But that kind of thinking can get in your way of getting what you need — and keep you from being a good negotiator.
To complete the “Collecting Nos” exercise, you must make requests of others until you have collected 10 nos. My partner Moshe Cohen, who uses this exercise with his students at Boston University School of Management, further specifies that you are limited to one request per person and that the person you make the request of must have the power to grant it.
To vary the exercise slightly, if you get a “no”, ask that person again later on a second time. If they still say no, ask, “What would have to happen for you to say yes?”
In completing this exercise, people make two surprising discoveries: first, how difficult collecting 10 nos turns out to be — people are often much more willing to say yes to requests; and second, good things happen when you ask. Clients I have assigned this exercise to have reported negotiating better fee agreements with their own clients, salary increases, and even job interviews.
It just goes to show you that it never hurts to ask. So why not try the “Collecting Nos” exercise for yourself? Who knows what might happen.
Anais Nin once said, “We don’t see things as they are. We see them as we are.”
Indeed, numerous studies have demonstrated how easily our senses can be fooled. We are susceptible to influences of which we are unaware, which can shape our perception and judgments. Consider, for example, the extraordinary optical illusion in a BBC video, “The Mind’s Eye”. As the narrator says,
It’s an astonishing example of how much our visual memories, our imaginations, can influence what is right in front of our eyes.
However, knowing our propensity for making these errors, we can be alert for them. Are you ready?
On days when routine is followed, food arrives at regular intervals, you enjoy long naps, and humans take you for walks and rub your belly. On days that depart from the routine, you end up at the groomer’s or, worse, at the vet’s getting neutered.
Even among humans, change has gotten a bad rap, and understandably so. When it comes, we’re often not ready for it. We may be powerless to stop it. We have no control over it. Or no one consults us in advance, even if we may be directly affected by it. We have no say in it.
It’s easy to forget that change can be fun. Or exciting.
It can inspire us. It can give us a new sense of purpose. It can help us find new meaning in our work or our lives.
When was the last time you diverted from your own routine? Tried something new? Saw a problem from someone else’s side? Reconsidered a long-held opinion? Tried to do something in a different way? Changed your mind about something?
Memes are ideas or units of cultural information transmitted, as viruses are, from one individual to the next. Blogs provide a rich medium for memes to flourish in, as bloggers invite (or incite) each other to comment on and disseminate them.
Stephanie West Allen, who publishes Idealawg, a blog that honors the creative spirit within the practice of law, and Julie Fleming Brown of Life at the Bar, have announced the second annual celebration of Lawyers Appreciate…, a legal meme in which bloggers are invited to express appreciation for the things that matter most to them about the practice of law in a 10-day countdown to the start of the new year.
As for me? Of all the images from 2007, among the most enduring are those of lawyers protesting in the streets of Pakistan. As I contemplated those images in November, I asked, “Is it time for a Nobel Prize in law?”
What do I appreciate about the law? You can find my answer there.
I have a confession. The obituaries are perhaps the part of the newspaper I enjoy reading most.
Why? I can think of many reasons. Obituaries celebrate a life well lived. They return history to a human scale, reminding us that history is not shaped by emperors, generals, or queens alone, but also by ordinary people against the backdrop of large-scale events. Most importantly, for me, obituaries tell stories — stories of human experience, of triumphs over personal tragedy, of love.
“A child says, ‘It’s my toy.’ That’s property law,” he said. “A child says, ‘You promised me.’ That’s contract law. A child says, ‘He hit me first.’ That’s criminal law. A child says, ‘Daddy said I could.’ That’s constitutional law.”
(To which I would add, a child says, “Let’s take turns.” That’s dispute resolution.)
I remain haunted by last week’s images of lawyers protesting in the streets of Lahore. Their defiant response to Musharraf’s declaration of martial law reminds us of how integral the rule of law is to a functioning democracy.
How might we honor law’s place in delivering justice and safeguarding human rights? How can we recognize the importance of law and its institutions?
For a stirring reminder of why the rule of law matters, read the text of the 1958 radio address by then American Bar Association president Charles Rhyne announcing the enactment of Law Day, a “day of national dedication to the principle of government under law”. May 1, 2008, incidentally, marks Law Day’s 50th anniversary.
If public opinion is anything to go by, conflict resolution is for sissies. If that’s the case, then maybe it’s time to give the public what it really wants: advice on how to escalate conflict.
I therefore offer 5 steps guaranteed to transform any molehill into a mountain:
1. Ignore facts. Disregard or suppress all evidence that undermines your position. In fact, facts can be trouble — they might raise doubt among your supporters, or, even worse, persuade them or even you that your opponent just might have a point. Take precautions by surrounding yourself with servile bootlickers who will tell you only what you want to hear.
2. Make stuff up. If you can’t find facts to support your position, just invent some. Rumor and innuendo are your friends. Remember, appeals to emotion, with no basis in reason, work best.
3. Make assumptions — lots of them. This is important. Assume first that you’re right and they’re wrong. Assume you need no further information (see Step #1 above). In addition, assume you know what they’re thinking. Attribute malicious motives to your opponent especially if there is no evidence to support that assumption. It’s fun to make them have to prove a negative.
4. Exaggerate the harm. Draw false analogies — the more improbable and exaggerated the better. Even if the issue concerns something minor (and admittedly most interpersonal problems are), compare your opponents to Nazis and the impact of their actions on you to the Holocaust. Accuracy isn’t important here — conveying your sense of injustice and wounded pride is the effect you’re going for.
5. Get personal. Attack your opponent’s character or physical appearance, not his or her arguments. Seek out every opportunity to impugn their credibility, their intelligence, their grasp of facts, their patriotism, or all four for extra bonus points. If possible, insult their parents, spouses, children, or pets, along with their social status, religion, and dietary habits.
These proven methods get results with family, co-workers, neighbors, bloggers, political opponents, or anyone you can’t stand. Try them today and you’ll be “getting to no” in no time!
Tonight ABC news anchor Charles Gibson eulogized a colleague and friend, retired journalist John McWethy, who died yesterday in a ski accident.
Before kids become as scared of dispute resolution professionals 
Just when you think that mandatory arbitration clauses, cropping up ever more frequently in consumer agreements and employment contracts, can’t get any more outrageous, along comes 
I will remember always the pride I felt the day I was sworn in as a member of the bar.
At 
