[By mediating,]I regained everything I'd ever loved – people, story, drama, recovery – yet was allowed to retain the intellectual puzzle, strategic problem-solving job I'd enjoyed so much.It was like the farmer says at the county fair – he uses “every part of the pig except the squeal.”I too was now using every part of myself, including a squeal of delight.The mediation career I've carved out for myself include negotiation training (so I get to teach, which I love); writing (blogging and the book that's grown out of it); and, helping people resolve business disputes burdened with justice issues in a way that is far more efficient, effective and creative than the litigation process affords.
UPDATE: Thanks to the many great comments I’ve gotten here, at LinkedIn, on the book's Facebook Fan Page, and on the book's website I’ve shifted my focus from trying to depict the Asshole on the cover to depicting the Asshole’s victim/s. Along those lines, I’m considering using an image somewhat like this cartoon by the great legal cartoonist, Charles Fincher of LawComix. I might even ask Charles if I can use this very cartoon. What do you think?
With Charles’ hilarious caption above and as the cover of the book below.
Thanks Roger! This didn't just make my day; it made my year!
Plaintiff’s Motion to Compel Acceptance of Lunch Invitation
The Court has rarely seen a motion with more merit. The motion will be granted.
The Court has searched in vain in the Arizona Rules of Civil Procedure and cases, as well as the leading treatises on federal and Arizona procedure, to find specific support for Plaintiff’s motion. Finding none, the Court concludes that motions of this type are so clearly within the inherent powers of the Court and have been so routinely granted that they are non-controversial and require no precedential support.
The writers support the concept. Conversation has been called “the socializing instrument par excellence” (Jose Ortega y Gasset, Invertebrate Spain) and “one of the greatest pleasures in life” (Somerset Maugham, The Moon and Sixpence). John Dryden referred to“Sweet discourse, the banquet of the mind” (The Flower and the Leaf).
Plaintiff’s counsel extended a lunch invitation to Defendant’s counsel “to have a discussion regarding discovery and other matters.” Plaintiff’s counsel offered to “pay for lunch.” Defendant’s counsel failed to respond until the motion was filed.
Defendant’s counsel distrusts Plaintiff’s counsel’s motives and fears that Plaintiff’s counsel’s purpose is to persuade Defendant’s counsel of the lack of merit in the defense case.
The Court has no doubt of Defendant’s counsel’s ability to withstand Plaintiff’s counsel’s blandishments and to respond sally for sally and barb for barb. Defendant’s counsel now makes what may be an illusory acceptance of Plaintiff’s counsel’s invitation by saying, “We would love to have lunch at Ruth’s Chris with/on . . .” Plaintiff’s counsel. 1
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1 Everyone knows that Ruth’s Chris, while open for dinner, is not open for lunch. This is a matter of which the Court may take judicial notice.
Read on by clicking on the .pdf above.
And how could I resist adding the "will you go to lunch!" scene from David Mamet's Glengarry Glen Ross.
If you're following this blog but not Diane Levin's Blog The Mediation Channel, I have good news for you. Diane is an extremely focused, disciplined and lively writer. She's also one of the brightest and most canny negotiators, mediators and negotiation trainers I know.
With the goal of promoting clearheaded and reasoned debate and improving discourse, each month I skewer a different fallacy.
Before giving you entree to this excellent series, let me first note that these arguments do not justify any movement in your negotiation position. Remember - you need a new number and a new reason to counter that new number. If your mediator or negotiating partner expects you to give up something, he'd better have a darn good reason for you to do so. If you're a lawyer representing a party, you can feel your client figuratively or literally tugging on your sleeve when you offer more or agree to accept less in the absence of a justification that makes business sense.
The Misleading Ellipsis (to which I add this caution ~~> the quickest path from respected advocate to deceitful scoundrel is the misleading ellipsis - Judge, Arbitrator, Mediator and Opponent will all distrust your bona fides from that date forward; if you can't think of a better argument, fall on your sword on this issue and create a better one just over the next hill).
Diane adds one new fallacious argument every month. I'll endeavor to keep up with her. But more reliably, get her RSS feed, add it to your google reader and never again be without the wisdom of this brilliant mediator and negotiation trainer and consultant. That's her smiling face at top. Visit her often! at The Mediation Channel.
Conflict is in the house. The evil fairy surrounded the castle with deadly thorns. The "good" fairy put everyone in the castle to sleep. Will you be the valiant Prince in your own dispute story? Or are you the prize? The beautiful one who would prefer to remain unconscious rather than address the great battle between good and evil represented here? Did you hire a lawyer to resolve your dispute for you? Will he make it to the castle in time? Or will he spend the bulk of his energy erecting more obstacles to prevent your adversary from reaching you. By the time both champions reach the castle, will everyone be too bloodied and broke to rise from your bed and put your house back in order?
We bargain with toddlers, haggle with street vendors, negotiate legislation, make deals with car salesmen, craft golden parachutes for failed "Tonight Show" hosts, use friendship as a bargaining chip, cut deals with the bartender, negotiate the complexities of culture through story-telling, seek to raise our salaries during a recession, and, wheel and deal on rookie wage scales, all in a matter of hours as chronicled by twitter. Below.
Search term: "negotiation"
@mikemyatt: Why negotiation is a flawed business practice: http://bit.ly/F6SeA #Leadership -> specifically, lawyers kill trust
@meatbeat i dont want an american car but my former salesman fren says they have up to a 25% bigger negotiation window over imports.
@The_News_Herald Police union concessions might not be enough, city says: PANAMA CITY — A nearly yearlong negotiation process crept... http://bit.ly/5NAryW
@JacksMomMarie 3 hours later the preschooler relentless negotiation of EVERY part of the day not as cute but still cool. Feel free 2 whisper a prayer tho
Search term: "Negotiate"
@gilscorner You don't get what you deserve, you get what you negotiate. - Stephen Pollard, British journalist
@Congeniality08 @javierabrown I remember when "I'll be your best friend" was the most effective bargaining tactic. THAT was brilliant.
@karaffaunel Tough bargaining still ahead at UN climate talks 88P0wR cop15 copenhagen !
@ciensoong 5 phases of breakup .. Denial, anger, bargaining, sorrow, and acceptance .. Hmm
@MattRichWarren RT @andysimms: http://bit.ly/77yM4s NFL and NFLPA Bargaining Sessions include proposals to change rookie wage scale for THIS season.
@yoloneco810 Kankakee teachers go back to the bargaining table. http://r2u.at/LugWd
@Aubreysomething A promise is not a bargaining chip or something you say just to shut the other person up. - You only say it when you really mean it.
@thegipperreview RT @JimDeMint: My post on @RedState: Collective bargaining has hurt border patrol, TSA shouldn’t make same mistake http://bit.ly/8uniV9
Search Term: Haggling
@heathrrrr Sitting in a car dealership haggling over prices. What a way to celebrate a birthday.
@travelworld101 Haggling a tradition in Guatemala - Daily Oklahoman: Guatemalans prepare for the opening of the outdoor textile ma... http://bit.ly/8jGX6S
@BaybiiAyo09 #whyyouintheclub haggling with the bartender?
@EricRobertson Interesting. My warm beverage cost $0.44 more today, despite any amounts of haggling.
@nyaasu I'm all for haggling, I honestly don't mind lowering the price, but don't scam me out of it, geez. All I had to do was wait overnight! /o/
@adirferreira @markitecht Street vendors have a hard time haggling in English ... so cool!
@south_dakotaBNN Dakota Voice: Haggling Over Price: No matter how he tries to spin it, the legislation that Senator Nelson voted fo... http://bit.ly/89973Q
@markitecht Epic street haggling by @adirferreira last night. Started at R$30, ended R$0 (plus a line of credit. no kidding.)
Check out reporter Kevin Fogarty's article How to Turn a Job Offer into a Raise over at The Ladders, an Executive Search company for the six-figure set. Kevin recently interviewed me about negotiation strategies with a current employer when an eager new suitor comes a'calling. I have to admit that I didn't suggest hooking up with Mr. Greener Grass before ascertaining whether you could negotiate your dream job just where you are. An excerpt from the article below; full text at the link above.
Before you ask a current employer or future employer to entertain a competitive offer, you should sit down and figure out what exactly you're hoping to gain or change through negotiations.
What’s at the top of the list? “The answer to that, by the way, is never, ever, ever, ‘more money,’ ” Pynchon said. “More often it’s a change in the associates you work with, the kinds of projects you work on or your career path. When you make a list of things to negotiate, don’t go in thinking about the money; list the other things first.”
Not only will your goal in the negotiation be one that’s more likely to make you happier and more effective in your job, a list of other potential changes gives your boss things to take off the table without stopping the conversation completely.
“Every piece of research has shown that the more you give up in a negotiation, the happier your negotiating partner is,” Pynchon said. “So having some things you can give up without too much pain will do a lot to help maintain that relationship.”
Be prepared for a conversation that may not go your way, however, and don’t invest so much of your ego in the numbers that you end up declining the offer out of spite.
Finally, don’t forget that if you’re doing well in your current position, your security might be more valuable than an incremental increase in compensation. “It’s almost always the case that you can (perform) better in a current job than a new one, anyway, so most of the time it’s smarter not to take the other offer,” Pynchon said. “But it’s hard for overachievers to say ‘no’ to another $100,000.”
The not so secret opinion among mediators is that attorneys make settlement more difficult. Just as lawyers are heard to say that "litigation would be great if it just weren't for the clients" (a "problem" only class action plaintiffs' lawyers have actually resolved), mediators tend to say "mediation would great if it weren't for the lawyers."
Esteeming the rule of law in America as I do (especially in the recent era of its greatest peril) I have never seen lawyers as a problem in facilitating settlement of the lawsuits they have been eating, drinking, sleeping and, dating for years longer than I've spent reading their briefs and engaging in some pre-mediation telephone discussions.
I can't say lawyers are a problem because: (1) they're my job; and, (2) they're "my people" in the "tribal" sense. A few bad apples aside, lawyers are among the hardest working, most ethical, creative, multi-talented professionals I know. And they are pretty much solely responsible for fighting the battle, on every common weekday, to preserve the rule of law as a bulwark against tyranny on the right and anarchy on the left.
Let's start with this particularly widespread canard from the article:
Attorneys may delay the settlement of a dispute through mediation for financial reasons. For example, the payment of professional fees on the basis of hours worked could motivate the attorney to delay the settlement of the dispute to increase the number of hours billed to the client (citations omitted). Such non financial reasons as a desire to build or preserve a reputation for “hardball negotiating” in highly publicized cases could also motivate an attorney to delay settlement of the dispute [which the authors don't mention often results in a far better outcome for the client]. In addition, attorneys’ (or their clients’) commitment to or belief in their case based on questions of justice or other principles [which are worth, in my opinion, greater attention that purely monetary outcomes] could also delay settlement until “defending the principle becomes too costly” (citation omitted). Finally, attorneys may wish to justify both their role and their fees with unnecessary interactions./1
Are we mendacious, self-serving, parasites of the "justice system," feathering our own comfortable nests as we attempt to preserve the "outdated" notion that the justice system is capable of delivering justice? I don't believe so, but let's not get all anecdotal about these questions when we have cold, hard statistics within reach. What were the results of this study on the way in which attorneys might "get in the way of" a successful mediation?
Here's the bottom line assessment (please read the article yourself to draw your own conclusions).
The empirical data we collected in this study indicate that the presence of an attorney in a mediation does not significantly affect the settlement rate, the time needed to reach an agreement, the perceived fairness of the process, the parties’ level of satisfaction with the agreement, or the parties’ level of trust that the agreement will be honored. These results indicate that attorneys have much less impact than is claimed by those mediators who do not welcome their involvement in the mediation process.
Nevertheless, the results also demonstrate that the presence of an attorney does affect mediation outcomes in at least two ways: by reducing the parties’ level of satisfaction with the mediator’s performance and by reducing the level of reconciliation between parties.
So the Myth Busters of this study conclude that attorneys:
don't "significantly affect the settlement rate" /2
don't significantly affect "the perceived fairness of the process";
don't significantly affect "the parties' level of satisfaction with the agreement; and,
don't significantly affect the "parties' level of trust that the agreement will be honored."
This is the subjective viewpoint of the litigants, mind you, in a dynamic where the mediator often openly attributes the success of the mediation to the clients' attorney - an observation which is more deeply true than most mediators would care to admit with all their white horse hi-ho silver, magic bullet off-to the-rescue enthusiasm.
What did litigants report to the authors of this article? They indicated that attorneys adversely affected mediation outcomes in two ways: (1) they reduced the parties' "level of satisfaction with the mediator's performance"; and, (2) they "reduced the level of reconciliation between the parties."
Of all of the purported effects of attorneys' presence at mediation - without whom, it must be noted, the parties would not likely be induced to sit down and mediate at all -- the only significant perceived difference is the failure of the mediation process to reconcile the parties - something in which the legal system has little to no interest.
Please read the article for proposed solutions to the reconciliation issue. As to the remainder of the study's findings, I have this to say:
whenever two or more people are gathered together, the dynamics of the group more profoundly affect the outcome than do the contributions of any individual member of the group. Our "reality," especially as it appears in a group setting, is "co-created." See the New York Times must-read article on the Psychology of Terrorism and Retail Marketing at Google Books (the latter noting that because people live in a social world which is co-created in social interaction with others . . . . [they] can be thought of as both products and producers of the social world." Id. at 218.)
try as you may, you will never be able to untangle the threads that create the intricate tapestry of a settlement; every member contributes something invaluable without which the precise result could not possibly have been achieved.
who is therefore responsible for the good and who responsible for the purportedly bad results of mediation? That's easy: EVERYONE IS.
That being the case, we are all responsible for our outcomes - whether our contribution is "negative," i.e., resisting settlement, for instance, or "positive," i.e., problem solving the reasons given by Mr. Negative that the case simply can't settle on terms acceptable to all. Remember your University philosophy class? Thesis, Antithesis, Synthesis. We need people willing to state the negative to problem solve it positively. The relationships cause the outcome, not one member of a group unless that member is a tyrant with loyal troops at his command.
If you'll allow me a literary reference that justifies my own collegiate career and says far more eloquently than I ever could why we're all accountable, I first give you one of my favorite authors, Paul Auster (who you may remember as the screenwriter of the movie Smoke).
The world can never be assumed to exist. It comes into being only in the act of moving towards it. Ese est percipii. Nothing can be taken for granted: we do not find ourselves in the midst of an already established world, we do not, as if by preordained birthright, automatically take possession of our surroundings. Each moment,each thing, must be earned, wrested away from the confusion of inert matter, by a steadiness of gaze, a purity of perception so intense that the effort, in itself, takes on the value of a religious act. The slate has been wiped clean. It is up to [us] to write [our] own book.Paul Auster,The Decisive MomentfromThe Art of Hunger.
The second excerpt I will leave for your thoughtful consideration is by the greatest scholar of comparative religions to ever inhabit the planet - Joseph Campbell (skip the intro with the new age music).
Schopenhauer, in his splendid essay called "On an Apparent Intention in the Fate of the Individual," points out that when you reach an advanced age and look back over your lifetime, it can seem to have had a consistent order and plan, as though composed by some novelist. Events that when they occurred had seemed accidental and of little moment turn out to have been indispensable factors in the composition of a consistent plot. So who composed that plot? Schopenhauer suggests that just as your dreams are composed by an aspect of yourself of which your consciousness is unaware, so, too, your whole life is composed by the will within you. And just as people whom you will have met apparently by mere chance became leading agents in the structuring of your life, so, too, will you have served unknowingly as an agent, giving meaning to the lives of others, The whole thing gears together like one big symphony, with everything unconsciously structuring everything else. And Schopenhauer concludes that it is as though our lives were the features of the one great dream of a single dreamer in which all the dream characters dream, too; so that everything links to everything else, moved by the one will to life which is the universal will in nature.
It’s a magnificent idea – an idea that appears in India in the mythic image of the Net of Indra, which is a net of gems, where at every crossing of one thread over another there is a gem reflecting all the other reflective gems. Everything arises in mutual relation to everything else, so you can’t blame anybody for anything. It is even as though there were a single intention behind it all, which always makes some kind of sense, though none of us knows what the sense might be, or has lived the life that he quite intended.
Lawyers, mediators, clients, experts, consultants, legal assistants, and, yes, even your spouse with whom you consulted before today's mediation, every one of them is part of the "net of gems, where at every crossing of one thread over another there is a gem reflecting all the other reflective gems [so that] [e]verything arises in mutual relation to everything else, so you can't blame anybody for anything" and, by the way, we can't credit credit nor bear all the responsibility for anything. We are all capable. We are all accountable. And we all contribute something to the whole.
So we can stop pretending to be better than we are now. We can all put down the burden and shame of our own entirely human fallibility; the myth that we ever do anything without the contribution of others; and, the pretense that we don't behave as badly, or as well, as other people do. We're part of the team. We're in it together. Isn't that good news for the New Year?
And to give you a treat from having gotten this far, a scene that is all about seeing, from Paul Auster's Smoke.
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1/ I'd be interested, of course, in what the authors consider to be "unnecessary interactions."
2/ This is a particularly interesting finding since mediators have also been found not to improve the settlement rate but only greater party satisfaction in several studies.
Don Philbin, the author of this must-read article (click on the image for the .pdf) on the reasons you walk away from negotiations fearing you've either left money on the table or paid too much for what you receive in exchange, is an attorney-mediator, negotiation consultant and trainer, and arbitrator.
Don is listed in The Best Lawyers in America (Dispute Resolution), The Best Lawyers in San Antonio, and the Bar Register of Preeminent Lawyers.
Don's ADR Toolbox where this article can also be found is an indispensable resource for all attorneys negotiating the settlement of a lawsuit or a business deal (wait a minute! the negotiation of a settlement is a business deal!)
And, it's not inconsequential that Don is one of the nicest guys I know. If you're going to spend a day or a week or a month with a mediator or an arbitrator, you deserve not only the brightest, most wise and best prepared arbitrator or mediator, you also deserve to have a little fun in the process because . . . you know . . . the money simply isn't worth the unhappiness that comes when dealing with . . . . the other sort too often.
Once again, I'll be posting about general commercial ADR issues over at the Commercial ADR Blog and limiting the Negotiation Blog to (surprise!) negotiation strategy and tactics.
For readers interested in IP ADR, I'm passing that baton onto the brilliant and talented international mediator and arbitrator Eric Van Ginkel as announced here.
From Diana Skaggs'
Louisville Divorce Law Journal -
"In browsing [Victoria's ADR blogs] you'll no doubt stumble upon some
information that will make you wonder how you could have practiced law
without it. Subscribe to the feeds and you'll regularly receive some of the
best CLE on the net. I wish it were required reading for all mediators."
I'm an attorney who is currently a Masters Degree candidate in
Mediation and Conflict Studies. I do not have much time to read
blogs. Thanks to the Settle It Now Negotiation Blog, I do not need
to. Your posts possess the perfect blend of thought-provoking
content and practical tools for anyone working in the trenches of
dispute resolution. I look forward to reading the blog because I
know its content will always be highly relevant to the issues I
grapple with, both as an attorney and as a mediator. Thank you for
providing us with such a great free resource. - Juliana Hoyt,
attorney and mediation student, Vermont.
We bargain with toddlers, haggle with street vendors, negotiate legislation, make deals with car salesmen, craft golden parachutes for failed "Tonight Show" hosts, use friendship as a bargaining chip, cut deals with the bartender, negotiate the complexities of culture through story-telling, seek to raise our salaries during a recession, and, wheel and deal on rookie wage scales, all in a matter of hours as chronicled by twitter. Below.
The not so secret opinion among mediators is that attorneys make settlement more difficult. Just as lawyers are heard to say that "litigation would be great if it just weren't for the clients" (a "problem" only class action plaintiffs' lawyers have actually resolved), mediators tend to say "mediation would great if it weren't for the lawyers." 
It appears I'm not the only blogger to 