This month’s story involves two Filipino businessmen. Originally, they
came from adjacent villages in the Phillipines, but did not meet until in
the United States. They agreed to form a partnership to open a retail store.
They planned to sell electronic goods they would import from Asia.
Each partner invested $50,000 in the business. When the business opened,
both men were happy and optimistic. As time went on, however, the optimism
faltered and with it their trust. Eventually, the business failed.
Unfortunately, the finances were not well-documented and no systematic bookkeeping
system had been used. One of the partners, Guillermo, was responsible for
the bookkeeping and maintained the business checking account in his name.
The bookkeeping was literally in a shoebox with notations on scraps of paper,
along with the checking account. To say the least, this was an unsophisticated
enterprise.
Guillermo took the records, such as they were, to a specialist touting
himself as being an expert in accounting matters. The specialist was
neither a CPA nor an attorney. He rendered accounting after accounting,
such that the final numbers became a moving target. As the successive
accountings were produced, the other partner, Jose became ever more distrustful.
On the advice of relatives, he hired an attorney. The attorney listened
to the story, analyzed the matter as involving fraud and breach of partnership
duties, and filed a complaint for damages. Guillermo hired his lawyer,
who answered.
Eventually, the matter was assigned to mediation and a peacemaker was
appointed to see what could be done. As the peacemaker entered the
office where the mediation was to take place, one of the lawyers cornered
him and said, “This case is impossible and will never settle. The
stories are just too different.”
The peacemaker responded, “Well, we have three hours set aside for this.
Let’s give it a shot and see what happens.”
Since Guillermo had not arrived, the lawyers took the peacemaker into
the conference room and alternately began explain their client’s respective
position. After an hour, the peacemaker could tell that the lawyers,
as good hearted and well-meaning as they were, were too much into their
roles as advocates to be of much assistance.
“Is Guillermo here yet,” asked the peacemaker. Just at that moment,
Guillermo followed by Jose, came into the conference room. Introductions
were made and everyone sat down. The peacemaker explained the peacemaking
process carefully. Neither man’s English skills were strong so the
peacemaker wanted absolute clarity. Then the peacemaker invited the
two men to, one at a time, tell their stories. As each finished, the
peacemaker summarized back what had been said to make certain the speaker
knew he had been heard.
When everyone had shared their perspectives, the peacemaker asked each
to write on a piece of paper what he needed to make things right.
When they finished, the peacemaker asked Guillermo and Jose to read
their notes. Guillermo said, “I want to be treated fairly and I want
a fair accounting. I am willing to pay my share of losses if there
are any, but I want to be paid my share of profits if any.”
Jose said, “I want peace between myself and Guillermo and I want a fair
accounting.”
This was interesting. They both wanted the same things.
The peacemaker paused for a moment and asked, “In the villages where you
grew up, how would a dispute like this be handled?” Both men replied
that a respected elder would be consulted and more elders would join the
discussion until the problems were resolved. The peacemaker said,
“So the process would something like what we are doing today, except an
elder would sit in my chair?” It was as if we had been transported
back the villages. Now the two men saw the peacemaker as an elder
and understood their obligation to respect each other.
Discussions continued for another 30 minutes. Finally, the peacemaker
offered a suggestion. “What would happen if we took all of these records
and gave them to an independent certified public accountant to compile?
Whatever the accountant determined to be the account would be final.
Could you agree to that?” The lawyers thought about it and saw that
it was the solution. They each turned to their clients and re-asked
the question. The clients clearly understood the proposition.
After some further discussion involving details, a deal was struck.
The case had settled in less than 3 hours.
The principal reason for the success of this mediation was the peacemaker’s
sensitivity to the cultural traditions of the disputants. The lawyers,
although excellent and well-meaning, had cast the conflict in terms of American
law. The partners were confused by this process, but rightfully relied
on their advisors. The peacemaker listened to them attentively and
respectfully. When he asked how they might have solved this in their country
of origin, they immediately saw the parallels to the current process.
The process became natural, not alien. Finally, the lawyers, to their
great credit, saw the transformation and stepped back from their roles as
advocates. As counselors, they worked with their clients to craft a
sound, fair, and workable solution to the problem.
Douglas E. Noll, Esq. is a lawyer specializing in peacemaking and mediation
of difficult and intractable conflicts throughout California. His firm,
Douglas E. Noll and Associates is based in Central California. He may
be reached through his website
and email at doug@nollassociates.com