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By Steven G. Mehta

I recently saw an interview with Francis Ford Coppola that talked about collaboration, his career, choices,  and other topics.  I thought the interview was fascinating and had some appeal to mediation.  Here are some excerpts.  The interview is in italics.

Why did you choose not to teach a master class?

For me in cinema there are few masters. I have met some masters – Kurosawa, Polanski – but I am a student.

I just finished a film a few days ago, and I came home and said I learned so much today. So if I can come home from working on a little film after doing it for 45 years and say, “I learned so much today,” that shows something about the cinema. Because the cinema is very young. It’s only 100 years old.

As a mediator, Coppola’s words ring true.  Despite the fact that we may have done thousands of mediations, we are still studying this art.  In addition, unlike cinema, the commercial concept of mediation is still very young.  Indeed, commercial mediation was not commonly accepted 15-20 years ago.  It is important to understand that as a young field, there is a lot to learn.

The cinema language happened by experimentation – by people not knowing what to do. But unfortunately, after 15-20 years, it became a commercial industry. People made money in the cinema, and then they began to say to the pioneers, “Don’t experiment. We want to make money. We don’t want to take chances.”

An essential element of any art is risk. If you don’t take a risk then how are you going to make something really beautiful, that hasn’t been seen before? I always like to say that cinema without risk is like having no sex and expecting to have a baby. You have to take a risk.

The tools used in mediation also happened by experiment.   Each time I do a mediation, I think after the mediation, what worked and what didn’t.  One time, I tried an entire mediation without the exchange of a single number between the parties.  The case required it because had numbers been exchanged, the parties would have left.  The case settled.  Without that experimentation, I would not have been able to resolve the case.  Mediation, just like cinema, is experimentation.

What’s the greatest challenge of a screenwriter?
A screenplay has to be like a haiku. It has to be very concise and very clear, minimal. When you go to make it as a film, you have the suggestions of the actors, which are going to be available to you, right? You’re going to listen to the actors because they have great ideas. You’re going to listen to the photographer because he will have a great idea.

You must never be the kind of director, I think maybe I was when I was 18, “No, no, no, I know best.” That’s not good. You can make the decision that you feel is best, but listen to everyone, because cinema is collaboration. I always like to say that collaboration is the sex of art because you take from everyone you’re working with.

As a former litigator, I attended mediations where the mediator (name will not be mentioned) said, “this is my mediation, and we will do it my way.” I always thought to myself.  “Hey, this is my mediation, not the mediator’s.”  The mediator is simply the collaborator, but this is my case.  As a mediator, I have honored that thought process by allowing myself to be completely open to the parties, their suggestions, their requests, and their suggestions.  I often hear the comment, “I don’t want to tell you how to do you job…”  This statement is intended out of deference to the mediator’s ego and skill.  But I usually answer back, “Actually, I appreciate when you make suggestions.  I don’t have the monopoly on creative ideas to settle the case; and you know the case a lot better than I do.”  As a negotiator and mediator, you have to listen to everyone and their suggestions.  You never know where the next great idea will come from.

What’s the best piece of advice you’ve given to your children, inside and outside of the industry?

Always make your work be personal.

And, you never have to lie. If you lie, you will only trip yourself up. You will always get caught in a lie. It is very important for an artist not to lie, and most important is not to lie to yourself. There are some questions that are inappropriate to ask, and rather than lie, I will not answer them because it’s not a question I accept. So many times we are asked things in our work or in life that you want to lie, and all you have to do is say, “No, that is an improper question.”

So when you get into a habit of not lying when you are writing, directing, or making a film, that will carry your personal conviction into your work. And, in a society where you say you are very free but you’re not entirely free, you have to try. There is something we know that’s connected with beauty and truth. There is something ancient. We know that art is about beauty, and therefore it has to be about truth.

Wow.  Coppola knew about mediation.  There are many mediators that will lie to get ahead or to have a short cut in a single mediation.  That lie will only catch up with you.  As a mediator, tell the truth, the same truth, to both sides.  If causation is going to be hard to prove, tell both sides.  Don’t try to tell one side it is hard, and the other that there is no problem with causation.  You will just caught in a lie, and the lie will be you.

You now have all the resources to do your own production, writing, directing. What’s the biggest barrier to being an artist?
Self-confidence always. The artist always battles his own/her own feeling of inadequacy.

Mediation is a tough business.  You have to have the self confidence to know that you are doing it right.  Too many good people didn’t have the confidence in themselves to give up what they do, go into mediation full time, and simply know that it will work.

The interview with Coppola was found at the 99 percent solution.

By Steven G. Mehta

Many times in mediation, the question or issue arises as to whether a party is making an apology because it genuinely feels remorse or whether the party is simply saying it to gain some form of economic advantage.  As you will see, those same apologies, when done wrong can backfire terribly.

This issue has been raised in two different forums in the world recently.  First, the issue has come about with regards to Toyota’s apology to the world.  Indeed, in Japan when parties express regret they are (by culture) required to bow deeply.  Toyota’s C.E.O. has apologized for his company’s massive recall, but questions have risen whether his apology and bow were sufficient and genuine.  See Los Angeles Times article, A Ritualistic Bow From Toyota Chief.

Some say that C.E.O. Toyoda’s bow was not deep enough and was simply a ritualistic act.  Others also comment that a true apology would be used against Toyota in litigation.  Do these issues sound familiar?  They sure do to me.  This is a common theme in mediation. Whether to apologize?  How?  And whether it is genuine?

Another theme common in mediation is the following scene:  A person has committed a wrong several years ago.  Perhaps the person apologized “formally” at the time.  It was, however, unclear as to whether the apology at that time was genuine.  Enter the mediation.  Issues are being raised about the conduct several years ago and its ramifications.   How does the repenting person act.  Well, Mel Gibson gives us a great example of how not to act in that situation.

Here, Mel Gibson is asked about his anti-semitic remarks several years ago.  At first he appears remorseful.  But as you see in the video his conduct now is clearly not that.  There are several non-verbal and in between the message signs.  First, he states that he is the same person as he was then.  Clearly he is not distancing himself from that terrible event.  Second, he laughs at the question that he clearly understands in a nervous laugh when he asks for clarification.  Third, he states he has gotten over this “but clearly you haven’t.”

Further, he then states that he has done the “necessary mea culpas” as if there is a certain amount of apologies that can be made and then all is good.  This comment alone reflects his lack of remorse.  One of the things about violating people’s trust and then giving an apology, you cannot simply act as if the apology is ritualistic.  Take the same action and put it into other violations of trust.  For example, “Honey, I know I cheated on you several years ago, but I have said my necessary apologies.  You shouldn’t feel hurt today.”  His comment appears to reflect his true belief that he is not in fact sorry for his actions and that the apologies were simply formalities required to move on and keep selling movies.

Mel’s next action is also telling.  He picks up the cup of coffee and holds it in between himself and the camera as if to distance himself.  (How many times in T.V. interviews for movie promotions do you see someone drinking coffee while on camera?  Never).  Then, he turns away, and raises his thumb in a “yeah, yeah, whatever,” manner.

Then, the piece de resistance is Mel’s comment at the end.

Mel Gibson appears to the classic example of lack of remorse being shown for his indiscretions.  In mediation, many times a genuine apology can make the difference.  However, take Mel Gibson as an example of what not to do.

By the way, here is another interview with Mel Gibson by another reporter.  Does he appear remorseful to you?

By Steven G. MehtaSteve Mehta

The saga of Carrie Prejean, the Miss California contestant for the Miss USA pageant who came out against gay marriage, had a picture of her breasts “accidentally” exposed during a photo shoot, and who sued the Pageant, which then countersued to get back their money for her breast implants, and who then settled the case when a sex tape was discovered of her, is still in the news.  But this time, she took on Larry “Inappropriate” King for the ultimate fight about mediation confidentiality. 

Here is a brief discussion of her interview in the Examiner….

Carrie Prejean nearly walked out of the Larry King show after calling Larry King inappropriate. Larry King asked Carrie Prejean about the sex tape that she made for her boyfriend.

“All right, let’s get to an embarrassing part for you and how you are handling it. You recently confirmed that when you were 17, you made what you call a private video, a sexual-type tape that you sent to your boyfriend. Have you seen the video?” Larry King asked.

Apparently, Carrie Prejean wasn’t interested in speaking about the sex tape and answered Larry by saying, “You know, I don’t think that’s the important issue, Larry. I think that, you know, there’s a video out there of me that I sent to my boyfriend at the time. And it was for private use. But does that justify my actions? No. And I take complete responsibility for the decisions that I made when I was a teenager. And I’ve learned a lot from it.”

Larry King asked Carrie Prejean if she told anyone at the Miss USA pageant about the video, she answered no and reminded the public that she wasn’t fired for any moral clause. Larry then asked Carrie Prejean if she planned to pursue legal action to block the video from being made public, especially since she was underage when the video was made. It was at this point that the ‘inappropriate’ behavior began.

Carrie Prejean answered,” You know, everything that was discussed, Larry, in mediation is completely confidential. And it seems as though I’m the only one holding up to that contract. So, if that’s the case, then I will stand by that contract, and abide by it.”

Larry King continued to press further, “Did you get a settlement?”

Again, Carrie Prejean answered, “That’s completely confidential. There was a confidential mediation. And I don’t think that needs to be discussed right now.”

Larry King broke for a commercial break but picked the topic back up shortly after Carrie Prejean called Sarah Palin her hero.

Larry King asked Carrie Prejean, “We’re back with Carrie Prejean. She’s the author of “Still Standing.” That book is available everywhere. We’ll take a call or two for Carrie in a moment. You sued the pageant after they fired you. They counter-sued. And then you accused them of a number of things including religious discrimination, clearly an issue very important to you. Why did you settle? You don’t have to tell me the terms of the settlement. But why settle, since you had a fight to carry on?”

To see the remainder of the interview, click here.

This interview, however, brings up the issue of what is confidential and what is not in mediation.

First, not everything about mediation is confidential.  It is not like in the Movie or show Get Smart where once something involves mediation, there is a cone of silence.  However, the question, did you get a settlement would remain confidential assuming the settlement agreement had a confidentiality clause.  If there was no confidentiality clause in the settlement agreement, then the fact of the settlement and the amount would not be confidential.  This is because the check, the release, and other documents would exist outside of the mediation process.

Ms. Prejean’s answer to the question of why settle is not covered by confidentiality.  Her own thought process exists outside of the mediation.  The terms of the settlement remain confidential due to the confidentiality clause in the settlement agreement, but the reasons do not.  She would be free to explain her reasons for settling.

Other things associated with the mediation would also not be confidential.  Anything that was in existence before the mediation, such as the sex tape would not be confidential.  Any comments that Ms. Prejean made before the mediation would also not be confidential.  What was said in the mediation, however, would remain confidential. 

If, however, a document or piece of evidence was created solely for the mediation such as a compilation of her sex tape, then that might be considered confidential. 

Obviously, confidentiality differs with each state and the issues discussed are simply general discussions.  But contrary to Ms. Prejean’s view, not everything arising from mediation is confidential. 

What are your thoughts about Ms. Prejean’s comments or about confidentiality?

By Steven G. MehtaSteve Mehta

 

I am pleased to announce that I was recently interviewed by the Central Valley Business Times regarding negotiations and regarding my book.  The interview includes an audio and written part.  Here is a brief excerpt.  I hope you like it.

It’s part of the fabric of life, but when it comes to negotiating, few people do it well, says Steven Mehta.

“Whether we’re negotiating the sale of a product or whether we’re negotiating with our spouse … everything becomes a negotiation in life,” says Mr. Mehta, a Valencia-based attorney and mediator who specializes in negotiations. Becoming a better negotiator is a skill that can be learned, he says. “One of the biggest problems that happens for small businesses as well as other negotiators is the failure to properly prepare for the negotiation,” says Mr. Mehta. “Superior negotiators prepare approximately 400 percent more than average negotiators.”

To get the full interview, click here.

 

Steve’s Book

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