In the first episode of the new season of Stories Mediators Tell, mediator and scholar Ellen Waldman tells the story of an unusual breach-of-contract case involving a young couple, a failed kink magazine, and a lawyer determined to convince a jury to “run them out of town.” As the mediation unfolds, Ellen confronts the powerful emotions in the room and shares the technique she used to resolve the case. The story raises difficult questions about mediator neutrality, the hidden forces that shape settlement, and the enormous influence mediators can have over the outcome.
What happens when a mediator finds one of the lawyers in the room truly loathsome—and realizes that her own feelings may affect the outcome?
In this episode, mediator and scholar Ellen Waldman tells the story of an unusual breach-of-contract case involving a young couple, a failed kink magazine, and a lawyer determined to convince a jury to “run them out of town.” As the mediation unfolds, Ellen confronts the powerful emotions in the room and shares the technique she used to resolve the case.
The case stayed with Ellen for years, raising difficult questions about mediator neutrality, the hidden forces that shape settlement, and the enormous influence mediators can have, even when they don't intend to.
Lela Love
Welcome to season two of Stories Mediators Tell. This is Lela Love, and I'm here with Robyn Weinstein for this new season. Robyn and I are mediators, professors, and trainers in the field of mediation. Robyn, how are you feeling about this new season?
Robyn Weinstein
I am super excited. We have a lot of wonderful guests and mediators coming on to the podcast. We have mediators who are from all over the world, including as far away as Singapore, and we have a repeat visitor this season in Eric Galton. I'm also excited about our guest for today's episode, Ellen Waldman.
Lela Love
So, do you wanna say a bit about mediation, Robyn?
Robyn Weinstein
Sure. So, you know, part of our hope in creating this podcast is really to broaden the way people understand mediation. Most people know about mediation in the context of a divorce or a workplace, but mediation is happening in local communities, in courts, and even in the largest geo-political contexts. The role of a mediator is to increase understanding among parties in conflict and to engage them in building a resolution that meets their needs. At its best, mediation can also help address the harm, loss, and pain caused by conflict.
Lela Love
That's interesting, but you may be asking, why stories? Well, stories are the number one connector between human beings, transporting us to other cultures, introducing us to new people, offering religious insights and wisdom. Stories take us into other worlds. But mediation is confidential and private. The world needs it, we think. A light shone on what happens in mediation. So we can better understand, not only what mediators do, but what we might do to bring more harmony and resolution to disputes, particularly in this era of bitter, polarized, vicious disputes and conflicts. So we're here to shine that light.
Robyn Weinstein
So the other thing we want to tell you is that confidentiality is an important part of mediation. And the storytellers have either changed the identity of the parties or obtained their permission to tell these stories.
Lela Love
So I'm gonna introduce our wonderful guest, Ellen Waldman. She's a mediator and a thought leader in the field of dispute resolution. For many years, she was a faculty member at Thomas Jefferson School of Law in California, where she founded and supervised the school's mediation program and clinic. Like Robyn and I, she taught and learned on the ground with real cases, taking her students right into the heat of disputes. Ellen has taught mediation-related courses nationally and internationally, including a professorship in China.
She's published over 25 articles and book chapters in the areas of alternative dispute resolution and bioethics. Her book, "Mediation Ethics, Case and Commentaries," provides the go-to in-depth treatment of ethical issues in many hard cases that can arise in mediation practice. More recently, she has been vice president of advocacy and educational outreach for the International Center for Conflict Prevention and Resolution, a think tank for dispute resolution. Ellen is an amazing writer, sensitive to the nuances of situations and to capturing complexities. We're lucky to have her here to tell you a story.
Ellen Waldman
So thank you so much, Lela and Robyn. I'm so happy to be here. I want to start by quoting an excerpt of an article from an alternative newspaper published in San Diego. The newspaper is called "The Reader," and it sets the stage for the mediation that I want to talk about.
It's an empty middle of the week hump night, Wednesday two hundred thirty AM. The moon is full. The uncommonly illuminated sky is azure and clear, bright as it most often is a half hour before sun up. University Avenue looks broader at night, quiet and wide open and still. Any sound is amplified tenfold. Each car that passes cannot disguise quivers from loose bolts, shudders from worn belts, gasps from wounded mufflers or radiators. A few blocks east of college, next to the Salvation Army rotunda, squats the Jolar Adult Theater, promising triple X videos and parking in the rear. A red neon sign blazing in the front window proclaims always Live Girls. Inside, staring out across the counter, the bored nightclerk observes a clean, well dressed young man browsing timidly through shelves of videotapes, piles of sealed magazines, racks of sleazy tabloid newspapers, stacks of creams, ointments, salves and gels, and row upon row of prepackaged rubber genitalia.
This 1990 article described a part of San Diego, my adopted city from 1992 to 2019, that I did not know. When I arrived in the early 1990s, what jumped out at me was its Republican political tilt, its many military bases, and the social and cultural conservatism of the public-facing media and officials.
But underneath this buttoned up exterior throbbed a thriving sex industry—adult bookstores, peep shows, and a publishing powerhouse called Greenleaf Classics, which had been churning out racy paperbacks since 1958 with names like "Hot for Her Uncle," "The Chief Sex Deductive," and "Front Page Lust."
As a young law professor and recent transplant to the West Coast, my goal in joining the San Diego Superior Court's roster of mediators, so let me assure listeners, this was not a case that my students did, but my goal in joining the San Diego roster was primarily to ensure that my teaching was enlivened by practical experience. If I was going to teach introductory and advanced courses in mediation, I wanted to stay fresh and alive to the complexity of human experience that lies at the core of most conflicts. And of course students and apparently everyone as this podcast attests love stories, and I wanted to keep my wellspring evergreen. The mediation I want to describe stands out for three reasons. First, it serves as a reminder that people sue for many reasons, and what a judge or jury would do with a claim is only one factor among many for deciding to settle or unfurl one's case in court. Second, it challenged my impartiality because one of the lawyers was truly loathsome. And three, it reminded me that despite what we might wish and with all our talk of party empowerment and mediator modesty, what we say carries tremendous weight.
We have huge influence whether we like it or not. So from all outward appearances, the case was a straightforward breach of contract. According to the plaintiffs, defendants had promised to lend money to them, and then reneged on the promise. But the nature of the plaintiff's business and the damages being claimed added significant complications. Plaintiffs, a young, exceedingly attractive couple, let's call them Johan and Olga, had started a magazine in San Diego devoted to kink, specifically bondage and light SNM activity. Defendants had brought a glossy copy of a past issue so I could see the contents. Johan was the business guy. Olga, as it turned out, sometimes appeared as a model in the magazine's pages. Without the financial backing allegedly promised by the defendants, the magazine folded.
This left Johan out of a job and the couple with no immediate source of income. This upheaval all occurred while Olga was in the early stages of pregnancy. According to Olga, the stress of the financial peril, defendant's loan not appearing, the magazine's fortunes plummeting led her to miscarry. In addition to an aggressive lost profits claim, Olga was anticipating an award for the for the pain and suffering of losing her baby.
We started off the mediation and joint session. Defendants were represented by two attorneys, a partner and a younger associate. They pointed out that both the lost profit and emotional distress claims lacked specificity and suffered from causation problems. In caucus, they told me in unvarnished language that a San Diego jury would not look kindly upon the plaintiff's vocation and that they were planning to quote unquote crucify the couple in court. The line that I remember was the elder attorney noting, When we get done with them, forget the money. The jury is gonna want these people run out of town. In caucus, Olga was tearful and highly emotional.
Johan, I remember, was silent and morose. I had a feeling Olga was the engine behind the lawsuit, but was constitutionally not built for the rigors of litigation. She felt the defendant's contempt and it weighed on her. Along with the financial and very personal losses that had characterized the last few months, I did not see her weathering additional stress with success.
The defendants were not offering much, but along with their threats they did actually put some money on the table. Johann was willing to take what was offered. Olga, who seemed to be mourning the miscarriage more than the lost magazine, was focused on making the defendants understand what she and her husband had been through. I was not able to get the defendants to show much care or concern, but I was able to convey my own sadness that she'd had such a bad time of it.
And that seemed to loosen her grip on the outcome she believed was due to her. Over the course of the next few hours the defendants came up, plaintiffs came down, and they both asked, "Mediator, what range do you think we should settle in?"
Listeners, I am going to be honest, I had no idea. If the trier of fact was tolerant of idiosyncratic bedroom practices, the plaintiffs might have survived what I felt to be serious causation problems, and I didn't think the pregnancy loss would enter into the damage calculation at all. If the trier of fact was disgusted by the plaintiff's business, things would go differently. After the usual disclaimers as to how I was no mind reader and had no crystal ball and explaining the factors that could lead a trier of fact to go either which way, I offered up a number, which both sides seized upon like a tree branch jutting out of a swift flowing river. I found it surprising, bordering on shocking that the case settled so quickly, on a number that seemed to me, its author, pretty arbitrary.
The case stayed with me over the years, a cautionary tale, reminding me of the pain the parties bring to us, the plethora of non legal factors at play when considering options in mediation, and the authority parties cloak us with for better or for worse.
Lela Love
Whoa, that's pretty racy, Ellen. An exciting story.
Ellen Waldman
Well, that's why I needed to explain that this was not a mediation clinic case. This was a court case.
Lela Love
Well, you say that one of the first cases I took a group of students to in somebody's home because they were invalid. The parties were naked. Of course it was shocking to me too.
Ellen Waldman
And how was enrollment next semester?
Lela Love
I did insist we get a towel or something to put over the privates of of the complaining party. Anyway, I think you described well the impact of the content of this, but how did it make you feel? Is this story unfolded? What the what it was really about or did you just do your mediator thing and it didn't matter what the content was?
Ellen Waldman
Yeah. I don't remember having any reaction to the content. I'll tell you, and the reason we remember the things that have an emotional impact, I remember feeling so sorry for Olga. I mean that it's not her name, but for that character, I remember just feeling this has been terrible and if we don't settle here, this is gonna get so much more terrible.
Like that that thought stayed with me. And I remember hating the defendants counsel, the the kind of ease with which they were going to use the, you know, whatever you want to call it, the prudishness of a San Diego audience to kind of bludgeon this couple and threaten them. I just felt that that is that is not a legal argument. That is an argument based on bringing your own kind of, kind of sense of sexual propriety to make a judgment on what they were doing.
Robyn Weinstein
Ellen, you know, when you started the story, you've said you found that lawyer loathsome. And I kind of loved that you are able to like admit that as a mediator. Because I think one of the challenges of the role is staying neutral, regardless of how you feel about the people. So how did you manage those interactions when you're having such a negative feeling about the advocacy, the attorney in the process?
Ellen Waldman
I think this is one of the biggest challenges that the process presents. And sometimes I think if you're just aware, self aware of your emotional reactions, then you can very self consciously and deliberately school oneself to exercise a lot of of self restraint. I do remember coming out of the defendant's room and like walking around a little bit before going into the plaintiff's room just sort of *breathes* It was an education for me, you know, that of the the coarseness of that the adversary process can bring out in its players. That's sort of w why we do this work is is to protect people from that.
Lela Love
A question about the the final assessment you gave, the number you gave to resolve that case and how everybody gravitated to it once it was there. In thinking about it afterwards, you suggested you found it was arbitrary your number. Did that impress people that you, even you, found your own number arbitrary? Or they just trusted it because of your role?
Ellen Waldman
Yeah, I mean for starters I did not advertise my own feelings and assessment. You know, I just said here's a number, you know, this could this could work. I think the defendants realized that if I found aspects of this couple sympathetic, maybe their assessment of how a San Diego jury would view them was not so ironclad. And, then I think the plaintiffs, you know, they were pro se. They were without representation, a condition that mediators hate, but is not super uncommon. And I had talked to them about the difficulties of proving the elements of the legal claims they were asserting. So, they were ready to, you know, take a bird in the hand as opposed to continuing to to to gamble in court.
Robyn Weinstein
Thank you for joining us for this episode of Stories Mediators Tell. We are grateful to Ellen Waldman for sharing her story.
Lela Love
Signing off here, I'm Lela Love and Robyn. We're really hoping you'll join us for the rest of season two as we move through Stories Mediators Tell.
Robyn Weinstein
Thank you for joining us for this episode of Stories Mediators Tell.
Lela Love
Whether you are listening as someone involved in a conflict, or as a mediator, or an advocate, or just because you're curious, we hope you will take away from this story and others featured on this podcast that great things are possible in mediation, and when people sit down to talk and work things out.
Robyn Weinstein
And if you'd like to hear more stories and conversations like this one, be sure to follow the podcast and explore additional stories in the Stories Mediators Tell books.
Lela Love
I'm Lela Love.
Robyn Weinstein
And I'm Robyn Weinstein. Thanks for listening, and we look forward to being with you next time on Stories Mediators Tell.
Lela Love
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