Negotiation Law Blog

Do check them out! 

And visit Blawg Review early and often.

From today's International Herald Tribune Article Egypt Delivers Arms to Moderate Palestinians with Israeli Approval.

One of the Palestinian militant groups holding a captured Israeli soldier said progress has been made toward a prisoner exchange.

Abu Mujahed, a spokesman for the Popular Resistance Committees, said Egyptian mediators are trying to finalize a deal. "We received positive signals from our Egyptian brothers, who are acting on this matter," he said. "Everything depends on the Israelis."

He declined to say when a prisoner swap might take place. The soldier was captured by Hamas-linked militants in June. Israel has agreed in principle to free Palestinian prisoners, but there are disagreements over numbers and timing.

Most attorneys do not like to begin their mediated negotiations with a joint session and neither do many mediators.  The reason most often given is everyone's desire to avoid a polarizing set of zealously adversarial presentations.  

Work done by our neighborhood neuroscientists, however, suggests that avoiding joint sessions may deprive us of the  "small talk" necessary to put the parties into a collaborative, even generous mood.  

First the Neuroscience  (from my favorite source for such insights, the Neuromarketing Blog) 

Recent research confirms that the miserly not only spend more time thinking about money than their more generous peers, they are also more socially withdrawn.  Although Dickens nailed the personality type on the head  when he created the friendless and miserly Scrooge, it seems that all of us are anti-social and penny-pinching when focusing primarily upon money. 

The confirming research?  Recruiting the usual cadre of beleaguered undergraduates, scientists at the University of Minnesota found that when students have their minds on money, they tend to be both selfish and withdrawn.  Those who were "primed" by money imagery before being asked to engage in (or imagine) solitary, group or "helping" activities  

waited nearly 70% longer to seek help than those who[se attention was not directed to money]; spent only half as much time . . . assisting []other[s] . . . [and] preferred working alone even if sharing the task with a co-worker resulted in substantially less work. 

The young people whose attention was focused on money also  

chose solitary leisure activities . . . preferring a private cooking lesson, for instance, over a dinner for four [and] when asked to set up two chairs for a get-to-know-you chat with another volunteer, . . . placed the chairs further apart than subjects [whose attention had been directed to non-monetary themes].

These findings, concluded the researchers, suggest that thinking of money puts people in a frame of mind in which they don’t want to depend on others and don’t want others to depend on them.  (see Thinking About Money from Neuromarketing here).  

Continue Reading

The AP reported yesterday that Egyptian negotiator, Omar Suleiman told Israeli officials he believes the Israeli soldier captured in June by Hamas-linked militants could be released within three weeks. 

I stumble across these things. 

Here's a law firm in Philadelphia, the Beasley Law Firm that showcases its lawyers and touts its services in short video clips on nearly every web page.

In light of the new generation's prediliction to obtain its news, products and entertainment on the web, the Beasley firm might just be ahead of the curve.

           If you're not awash in a web of legal referrals like most of us are, it might be nice to hear and see an attorney before you pick up the phone and call or get into your car to drive on over.

What do you think?  You might want to take at our earlier post on the Women's Law Network Blog concerning the young Pittsburgh bankruptcy lawyer -- legally blonde -- who's building her business on MySpace.

It's a new world folks!

 Me . . . uh . . . we . . . , no? 

It's YOU  . . . .  (see Tammy Lenski's post on the new "you generation."  We're collaborative and reciprocal.  Ground-breaking. Generous. Spirited. Passionate.)

Time's Person of the Year is Us; um, I mean, YOU!

But wasn't it always so?

Walt Whitman's Song of Myself (excerpts below)

I CELEBRATE myself, and sing myself,
And what I assume you shall assume,
For every atom belonging to me as good belongs to you.

I loafe and invite my soul,
I lean and loafe at my ease observing a spear of summer grass.

My tongue, every atom of my blood, form'd from this soil, this air,
Born here of parents born here from parents the same, and their
parents the same,
I, now thirty-seven years old in perfect health begin,
Hoping to cease not till death.

Creeds and schools in abeyance,
Retiring back a while sufficed at what they are, but never forgotten,
I harbor for good or bad, I permit to speak at every hazard,
Nature without check with original energy.

It is time to explain myself — let us stand up.

What is known I strip away,
I launch all men and women forward with me into the Unknown.

Listener up there! what have you to confide to me?
Look in my face while I snuff the sidle of evening,
(Talk honestly, no one else hears you, and I stay only a minute longer.)

Do I contradict myself?
Very well then I contradict myself,
(I am large, I contain multitudes.) 

I bequeath myself to the dirt to grow from the grass I love,
If you want me again look for me under your boot-soles.

You will hardly know who I am or what I mean,
But I shall be good health to you nevertheless,
And filter and fibre your blood.

Continue Reading

If your holiday shopping prevents you from reading Peter Singer's article "On Giving" in this Sunday's New York Times magazine, I'm here (suffering from a flu mild enough to catch up on my recreational reading) to give you the executive summary.

Saving Children from Drowning 

Peter Singer is a philosopher, one of those guys who we pay to keep asking the questions we generally stop asking at midnight after we move out of our college dorm rooms.  More particularly, he is the Ira W. DeCamp professor of bioethics at the Center for Human Values at Princeton University.

In an article Singer wrote more than thirty years ago, he used a hypothetical child drowning in shallow water to explore how we value our own material well-being when compared to the desperate circumstances of others.  

How desperate? 

A billion people who inhabit the planet with us live on less than the equivalent of one U.S. Dollar a day.  Their children, ten million of them to be precise, die every year of poverty-related causes. 

30,000 every day.  

Here's Singer's thought-experiment.  As you walk by a shallow pond,

you see a small child who has fallen in and appears to be in danger of drowning.  Even though we did nothing to cause the child to fall into the pond, almost eveyone agrees that if we can save the child at minimal inconvenience or trouble to ourselves, we ought to do so.  Anything else would be callous, indecent, in a word, wrong. 

The fact that in rescuing the child we may, for example, ruin a new pair of shoes is not a good reason for allowing the child to drown.  Similarly if for the cost of a pair of shoes we can contribute to a health program in a developing country that stands a good chance of saving the life of the child, we ought to to do.   

Simple enough, you say, but remember the statistics that preceded Singer's hypothetical.

Every single year there are one million children drowning. 

30,000 per day.  

Continue Reading

Change is Pain -- Recap

As Rock and Schwartz demonstrate in the Neuroscience of Leadership, change is pain. Just take a look at the expression of dismay on our cartoon mathematician's face when his colleague explains that he made a mistake in step two or three of his lenghy equation. Like the rest of us, he  experiences error in the "reptile" flight or fight part of his brain -- the amygdala.  

Because the amygdala's response is a hair-trigger reaction to danger -- timed to override any wasted cognitive activity at, for instance, our first detection of a black striped yellow creature softly padding toward us -- our mathemetician's discomfort is far more likely to be expressed in anger or petulant withdrawal than in any further rational argumentation.   

We're threfore extremely unlikely to change our minds when someone is vigorously asserting that we are wrong wrong wrong wrong WRONG!

[Slight Digression -- In the Absence of Information, We Make Stuff Up] 

Our brains are pattern-making organs.  They are always trying to fit the pieces of a puzzle together.  So strong is our desire to "make sense" of unrelated and disparate data that we tell ourselves absoutely sincere and compelling stories which are often completely and demonstratively untrue.  

Researchers have demonstrated our talent for creative narrative by studying people whose left and right brains have been severed by surgery or accident.  These people are perfect experimental subjects because their right (impressionistic, visual, creative) hemispheres have no way of communicating with their left (verbal, linear and logical) hemispheres.  What one hemisphere knows, the other cannot learn.    

In one of the most famous "split brain" studies, researchers presented each hemisphere with two images.  One of the two images presented to each hemisphere matched the picture presented to both hemispheres.  When asked to identify the related images, the subjects were easily able to point to related images with the hand controlled by the hemisphere capable of identifying the "match."    

Because only the left brain can 'talk," however, when asked why the right hemisphere had chosen the correct image, the subject could not accurately explain because his "talking brain" simply didn't know.  "Quick as a flash," said the researchers, the subject simply made up a wholly plausible and reasonable explanation, based upon the information at hand.  

Anyone who has ever watched a mock jury deliberate has seen this creative narrative principle at work.  Trials are not so much won or lost by what is demonstrated, but by some missing detail that the jury deems critical to the creation of a coherent narrative.  In the absence of information, juries, like everyone else, simply make stuff up.

(I learned these "split brain" theoretical and practical lessons by watching several episodes of a now-forgotten PBS series (probable sequels to which can be found here). An excellent article discussing the split brain experiments can be found here for those who wish to pursue it).  

If We Resist Change and Make Stuff Up to Avoid It, How Do We Ever Alter Our Thinking

Had Mother Nature left us without resource other than flight or fight, we likely would never have survived as a species.   Insight ("eureka," the "AHA moment") is our gift the from the gods.  

And it is insight, coupled with the brain's remarkable plasticity that allows us to change our minds and our behavior as well as to encourage others to join us. 

The third and final part of this three-part piece on Changing the Other Guy's Mind will appear tomorrow.

Promise.

I've gotta go finish decorating my Christmas tree now!

When I tell friends I'm a "commercial mediator" and they say "huh?" I say, "I rationalize numbers for a living."  

What I'm doing now, however, is procrastinating.  Since I promised you "Changing Minds, Part II," I've blogged about creativity, love, blogging/marketing, the Israeli Prisoner Exchange negotiations, and, Outsourcing Associate Jobs.  Then I posted The Miniature Earth Video.

It's a lot of work procrastinating, particularly since I'm writing Changing Minds, Part II to procrastinate finishing a Daily Journal article about drafting arbitration clauses.  Now there's work worthy of some  high-level procrastination.

Still, I think all that brain science from Changing Minds Part I got to me.  It made me want to post photos of small children playing on brightly colored floors (below) next to quotations by my favorite authors, like Don DeLillo. 

DeLillo wrote this blazing piece of prose about our addiction to statistics when he was in his thirties.  I can rationalize numbers but I still can't write a symphony about them so I think I'll just shut up now.  

America is a sanitarium for every kind of statistic. We take care of them. We try to understand them. We do what we can to make them well. Numbers are important because whatever fears we might have concerning the shattering of our minds are largely dispelled by the satisfaction of knowing precisely how we are being driven mad, at what decibel rating, what mach-ratio, what force of aerodynamic drag. So there is a transferred madness, a doubling, between the numbers themselves and those who make them and care for them. We need them badly ; there is no arguing that point. With numbers we are able to conceal doubt. Numbers render the present day endurable, herald the impressive excesses of the future and stocked with a fine deceptive configuration our memories, such as they are, of the past. We are all natural scientists. War or peace, we thrive on the body-count. If I were on my death-bed today, and did not know the date, my cells would probably refuse to surrender. Without a calendar, a stopwatch, a measuring cup on the night table, I couldn’t possibly know how to die.

Don Delillo, Americana

( see also Outsourcing law firm jobs) 

The angry associate response to Milbank Tweed's $30 to $65K year-end bonus announcement (see also Cravath complaints) has been followed by another BigLaw announcement that has the legal world reeling.

After the first of the year, the 650 member international law firm of Marley, Scrooge and Jones will begin outsourcing the work done by its first through third year associates.  See How Important is the Quality of Labor and How is it Achieved in the December 1 issue of Harvard Business School Working Knowledge.

"I don't know what took us so long," said managing partner Bertram Jones of MS&J.  "We've been in denial for years about the new reality -- associates simply don't stay with us for more than two or three years.  After you factor in recruiting trips, the cost of summer associate programs, signing bonuses for federal clerkships, full pay for "Bar Exam Summer" and the rising cost of bar exam courses for our first years, we don't really begin to recoup our investment until our associates are third years, at which point fifty percent of them have moved on."

But what about those high billing rates for BigLaw's young associates, don't they make up for the original investment?

"Not really," says Robert Marley, III.  "A first year associate's time is generally cut in half before it can go on a client's bill.  We also spend an enormous amount of our senior associates' and junior shareholders' (non-billable) time training these young people how to practice law.  You can't in good conscience charge the client $400 an hour for an attorney's OJT.  Even if we could, the clients just won't pay it anymore."

But outsourcing?

Ebenezer Scrooge, IV, partner in charge of associate training says, "listen, the menial tasks most of these young people perform -- document reviews, fly-specking thousands of pages of transactional documents, doing the occasional research memo can be done just as well in Bombay.  I mean, Mumbai."

So how will BigLaw re-populate its ranks?

Scrooge, a baby-boomer, says.  "Believe it or not, given our own life styles and the prep school and Ivy League educations we provided for our children, we won't be able to afford to retire until our late seventies.  That's another good fifteen to twenty-five years for many of us.  The term 're-populate' is not in our vocabulary."

When asked how the new outsourcing program will affect mid-level and senior associates, Jones smiled for the first time during our interview.

Continue Reading

The creative act is not an act of creation in the sense of the Old

Testament. It does not create something out of nothing: it uncovers,

selects, re-shuffles, combines, synthesizes already existing facts, ideas,

faculties, skills. The more familiar the parts, the more striking the new

whole.” 

Arthur Koestler

Fulfiling our promise to keep you up to date on these negotiations, we reprint here from IMEMC & Agencies, the article, Minister of detainees reveals information on prisoner swap with Israel by Saed Bannoura - Tuesday, 05 December 2006, 00:32

Palestinian Minister of Detainee, Wasfi Qabha, revealed on Monday during a meeting with parents of Palestinian detainees, in Bethlehem, information regarding a prisoners swap deal between Israel and Palestinian resistance factions holding an Israeli soldier captive.

Qabha said that the deal does not include the abducted ministers and legislators since they should be immediately freed without any preconditions.

Qabha stated that, according to the deal, Israel will release 400 detainees as the fighters hand the captured Israeli soldier, Gilad Shalit, to Egypt, after that Israel will release additional 400 detainees. The third stage of the deal will see the release of detainees sentenced to high terms.

He also said that the deal includes releasing children, women, elderly and sick detainees, and will also see the release of Palestinian leaders, including Marwan Barghouthi and Ahmad Sa'adat.

Also, the deal states that Israel should improve the living conditions of the Palestinian detainees.

Israeli Environment Minister, Gideon Ezra, told the Israel Radio on Monday that Israel should consider freeing jailed Palestinian leader Marwan Barghouthi in a prisoner exchange for captured soldier.

Ezra added that if the Palestinian Authority prevents arms smuggling into the Gaza Strip, then he will be in favor of releasing Barghouthi.

Over at the Legal Theory Blog we hear about the publication of Negotiation from a Near and Distant Time Perspective.

Translating from the academic into standard English , Psych Profs Marlone D. Henderson , Yaacov Trope and Peter Carnevale have apparently made the following research findings:

1.  parties are less likely to pursue piecemeal single issue resolutions and more likely to explore integrative, multi-issue solutions to a problem as the amount of time elapsing after a negotiation increases; 

2.  parties show an increased interest in conceding the lowest priority issues, but evidence less interest in conceding the highest priority issues as the amount of time elapsing after the event being negotiated increases; and,

3. parties make more multi-issue offers and are more likely to trade conessions on low priority issues for high priority issues as the amount of time elapsing after the event being negotiated increases.  

I'm happy to read that the article also discusses "implications for conflict resolution and construal level theory" since I don't much understand the three points mentioned above, let alone what "construal level theory" might be.  This is the point at which I mention the fact that I've earned not only my J.D., but also my LL.M.

Note to academics.  It's actually easier to write the way you speak.  And who knows, you might get some cross-disciplinary interest from outside the academy (the real world) if you try to make your work accessible to the rest of us poorly educated citizens. 

Remember that one of the smartest men in the world, physicist Stephen Hawking had this to say about time -- "it's what keeps everything from happening at once."

Thanks to Geoff Sharp at mediator blah blah . . . for turning us on to this Ohio State Journal of Dispute Resolution article entitled Will this Case Settle?  An Exploration of Mediators' Predictions.

Written by Harvard Law School Assistant Professor, Michael L. Moffitt, this is the best exploration of the perils of evaluative or "predictive" mediation practice I have ever seen. 

The most provocative issue addressed by Moffitt is the mediator's choice to send false signals. 

Moffitt gives four possible reasons a mediator would misrepresent his own evaluation of the likelihood of settlement:  (1)  a simple aversion to delivering unwelcome news; (2) desire for personal gain, i.e., by predicting settlement too early, the mediator could seek to extend the mediation when billing by the hour rather than the day; (3) desire to "do one's job" of being optimstic, i.e., the mediator who believes that his role is to be a "cheerleader" for resolution would predict settlement even if he thought the case were unlikely to settle; and, (4) belief that predicting success will influence the parties.

I have a lot to say about this but no time to say it today.  I invite comments from my readers on both "sides" of the medition table -- mediation advocates (litigators) and mediators.  Better yet, how about hearing from that too often silent or muffled party, the client.

When we tire of our own enthusiasms, we traipse over to the gaping void (right) where we gain a little perspective.

For more frivolity, go to the extended entry for a classic Burns & Allen Christmas.

Continue Reading

 What Makes a Muslim Radical from Common Ground News.

I'm providing you with the conclusion (and a link) to this fascinating study about the attitudes, religiosity, income, and, education of Muslim radicals.  A must-read for achieving a genuine understanding of the war we continue to fight, increasingly against the will of the American people.

What, then, separates a Muslim moderate from a Muslim radical? Although almost all Muslims believe the West should show more respect for Islam, radicals are more likely to feel that the West threatens and attempts to control their way of life. Moderates, on the other hand, are more eager to build ties with the West through economic development. This divergence of responses offers policymakers a key opportunity to develop strategies to prevent the moderate mainstream from sliding away, and to check the persuasive power of those who would do us harm.

Photo by Chris Hondros (Pakistan)

Because I've been building a new business for the past two years and do not have a money tree in my back yard, I've learned to appreciate the value of barter.   

In her ground-breaking legal memoir Alchemy of Race and Rights (Harvard Univ. Press 1992) Columbia Law School Professor Patricia Williams talks about lessons learned in a local "barter circle."

Once upon a time some neighbors of mine included me in their circle of barter. They were in the habit of exchanging eggs and driving lessons, hand-knit sweaters and computer programming, plumbing and calligraphy. I accepted the generosity of their inclusion with gratitude. At first, I felt that, as a lawyer, I had nothing to contribute. What I came to realize with time, however, was that my value to the group was not calculated by the physical items I brought to it. These people included me because they wanted me to be part of their circle, they valued my participation apart from the material things I could offer. So I gave of msyelf to them, and they gave me fruit cakes and dandelion wine and smoked salmon, and in their giving, their goods became provisions. Cradled in this community whose currency was a relational ethic, my stock in myself soared. My value depended on the glorious intangibility, the eloquent invisibility of my just being part of the collective; and in direct response I grew spacious and happy and gentle.

The Benefits of Bartering in Contemporary Commercial Transactions

Professor Williams' paen to barter doesn't sound merely cosy and homey, you say, it positively reeks of flower-child collectivism. What could Professor Williams' little barter circle possibly have to do with settling my $200 million unfair competition lawsuit?

A lot, actually. If you look past the smoked salmon and the dandelion wine, you'll find the phrase "currency [of] relational ethic." Williams is talking about the intangible value of relations as a means of exchange rather than (or in addition to) the numeric value of money.

Understanding Money

We've become so used to valuing most everything in monetary terms, we tend to forget that money is a representation of value rather than value itself. When negotiating a commercial dispute, we all benefit from reminding ourselves that money is simply one medium of exchange -- a good one, but not the only one.

Money is so good at serving as an objective measure of value; a standard of deferred payment, a store of wealth, a criterion for measuring worth and a “universal means to whatever ends are available in the market” (Ingham, Geoffrey MONEY IS A SOCIAL RELATION (2002) 54 Review of Social Economy 507) we often fail to look elsewhere for resources.

Integrative or interest-based negotiations flourish whenever the parties are able to identify tangible goods or services as well as the intangible benefits (apologies, recognition, respect, etc.) that might be available to sweeten a monetary exchange.  

Continue Reading