Monday, August 31, 2009

Smokey the Mediator

There often comes a stage in a successful mediation where the process is moving towards settlement and a friendly, chatty mood comes over the participants as small-talk is bantered while settlement documents are being drafted. During one such personable moment a few days ago a participant’s lawyer confided to me that he had told his client that he had used my services in the past and that I was like a “Superman of mediation”. He then said that he had revised his thinking and he now saw me as the “Smokey the Bear of mediation”. He said that the way that I moved from hot spot to hot spot, pouring water, cutting back fuel, forging fire-breaks, was more the work of an expert firefighter than a cartoon superhero. To my mind, this was high praise indeed. I gratefully accepted the acclaim and the analogy.

The really funny part of this moniker is that it’s not the first time I earned the title. As a young lawyer I worked for an older attorney who was very smart, but not all that kindly. He had a compelling way of heaping praise while mercilessly overworking his young associate.

I’ll never forget one time when he had dumped a particularly nasty problem on my desk I complained to him that my current caseload was huge, I was stretched too thin and wasn’t sure I could manage to successfully resolve the matter for the client. He gave me his piercing look and said, “Stein, you’re going to do what you always do. You’re going to give it the David Stein as “Smokey the Bear” treatment”.

I must have given him a blank – I don’t understand look – because he went on to explain. He said, “You are going to pour water all over this problem until it goes out. You are then going to shovel sand and dirt on the problem to make sure it stays out. You are then going to take your shovel and stir the sand and dirt that you shoveled on the problem. You are then going to pour more water, shovel more sand and dirt on the problem, stir it again and then tamp it flat with your shovel. You are then going to sit down and rest for anywhere up to 90 seconds. Enjoy the break you earned it. Before you get up, you are going to remove your shoes and socks and walk barefoot over where the problem used to rage until you are satisfied that the client’s problem which was once burning out of control is now not even a warm memory to your bare tootsies. Take care of this David. No one else in this office can manage a problem like you can.”

So there I am, maybe 29 years old, being praised by a name partner in the firm who was a respected, formidable lawyer of wide renown. Having this assignment meant late nights and no weekend for the foreseeable future, but after that setup all I wanted to say was, “Thank you sir, may I have another?”

At any rate, that was my early experience in the proper technique of problem management. Such training serves well in my current role as a mediator. Not only do you learn how to put out the fires, you learn how to foresee potential “hotspots”. How to anticipate that certain terms will cause friction that leads to sparks and how to create “backfires” that allow carefully controlled smaller fires to deny energy to a bigger fire and lead to a quicker overall managed situation.

Thinking about learning the old “Smokey the Bear treatment” reminds me of two other terms my mentor used which will be the subject of my next two essays.

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