Negotiation Law Blog

Among the benefits of the "meme tag" game is cross-disciplinary learning.  See Switch! - Cross-Disciplinary Learning at the Eide Neurolearning Blog, the one degree of separation between us and the Thinking Blogger Award. 

And check out the Creative Generalist while you're at it.

First, the excerpt from Eide Neurolearning:

The best way to have fun in science is to do something you are not trained for. - Seymour Benzer

Any student of creativity or innovation knows that changing disciplines seems to be a way of keeping 'fresh' and getting new ideas. Louis Pasteur got his start in crystallography, but then started solving problems in fermentation when a student of his brought him a factory problem. When a devastation of silkworms happened in Europe, they called Pasteur who exclaimed, "But I know nothing of silkworms." Nevertheless, he ended up solving the problem of silkworms by crossing over into the fields of microbiology and immunology.

In Root-Berstein's study of innovators, he found '[i]n every case that I have been able to examine, researchers who continued to be productive past middle age changed fields regularly. In effect they periodically returned to the state of a novice by taking up a new subject. They broke out of the patterns of work and thought to which they had become accustomed.'

For the remainder of the Eide's post, scroll down to Switch! here.

A Brief Comment on the Era of Legal Specialization

Attorneys entered the realm of specialization about twenty years ago.  Because novel legal problems are generally resolved for entire industries in fifteen or twenty years (i.e., how a Comprehensive General Liability Policy should be interpreted in response to a claim against an oil company for production-related environmental contamination) attorney-specialists are forced to change specialties at least once, if not two or three times during their working lives.

At one of the intersections between the end of one specialty (environmental insurance coverage) and my search for another, I began defending consumer class actions.  Although I'd once prosecuted a  commercial class action against a Japanese car manufacturer, that one case was the only experience I had in litigating class actions.      

In addition to not knowing what I should do in negotiating a settlement of my client's "fair share" of potential liability I also had no idea what I shouldn't do.  As a result, the settlement I negotiated was better than any achieved by the dozens of other similar companies who were my co-defendants.  

One afternoon, I received a call from senior counsel to the defendant who'd had the greatest potential liability exposure and who likely paid the most to settle the case. 

"How in the world did you get them to agree to an injunction-only settlement?" she asked.  "I've never seen anybody do that before."

"Thanks," I said.  "I guess I managed to do it because I didn't know that I couldn't."  

What Does Being a Generalist Have to Do with Negotiation and Mediation?

As I recently said in a moment of naked self-promotion, it's good to have a mediator who is "inside the other guy's decision cycle," i.e., someone familiar with the industry and the legal specialty involved.     

"The day of the generalist mediator is over," I'm told, just as I was told the "day of the legal generalist is over" sometime in the late '80s. 

But here's the exception to the rule.  Negotiator or mediator, the parties will teach you the critical facts and the lawyers will hip you to the law necessary to resolve the dispute even if you don't know bupkus about either.   

Often, the more you know, the less likely you will be open to innovative solutions to intractable problems.

I suppose the best of both worlds would be to practice (and negotiate) in your specialty while at the same time maintaining what Buddhists call a "beginner's mind." 

"In the beginner's mind there are many possibilities, but in the expert's there are few." - Shunryo Suzuki-Roshi from the Beginners Mind Blog.

No matter how much you know or think you know, set aside your pre-conceptions and pre-judgments as much as you are able.  Avoid "we've always done it this way" thinking.  Then, whether you're in a new field or an old one, you will surprise yourself and your bargaining partner with the high degree of creativity you are able to bring to the same old problems.

Did I also say it's lots more fun to do something new everyday?  And that conflict resolution -- whether you're judge or jury, advocate or negotiator, mediator or arbitrator -- is waaayyyyyyyyyyyyyy too hard unless you're having fun doing it.

We're proud to say that our friend Stephanie West Allen was recently awarded the Thinking Blogger Award by the Eide Neurolearning Blog and that she passed it along to us.

 Hey listen!!  If Hollywood and the music industry can award themselves tens of thousands of real gold-plated statuettes a thousand times a year, why can't we give ourselves gold and silver virtual awards for contributing more "genuis" to the thinking world in any single day than the entire entertainment industry does in any decade you might want to name?

(Cf. Jerry Seinfeld's hilarious bit on award-giving during his speech accepting HBO's first "annual" HBO Comedy Award -- "you don't give awards to comedians," says he). 

 Stephanie has graciously asked me to play this meme tag game under the following rules:

1. If, and only if, you get tagged, write a post with links to 5 blogs that make you think,

2. Link to this post so that people can easily find the exact origin of the meme,

3. Optional: Proudly display the 'Thinking Blogger Award' with a link to the post that you wrote (here is an alternative silver version if gold doesn't fit your blog).

Stephanie asks that we "tag blogs with real merits, i.e. relative content, and above all - blogs that really get you thinking!" rather than those, say, with the highest first weekend box office gross (i.e., X-Men). 

The following blogs make me think:  

1. Geoff Sharp's Mediator Blah Blah, who writes like a truly great comedian; he makes it look easy; it hits your insight-center before you have a chance to self-censor; and, it's way deeper than you think; 
2. the Electronic Intifada (which may not actually be a blog but which I read as if it were one),
3. Lawrence Solum's Legal Theory Blog,  for the truly geeky wanna-be academics in the crowd like me;
4. George Wallace's cultural blog A Fool in the Forest (the blog equivalent of Finnegan's Wake); and,
5. Gini Nelson's Engaging Conflicts Blog for its audacious eclecticism. 

And because the Electronic Intifada may not actually be a blog, I'll add

Hugh ("we don't need no stinkin' awards") McLeod's Gaping Void (the blog equivalent of Kingsley Amis' Lucky Jim).

Vonage Takes Its Patent Fight to Internet Street with

Can You Patent an Orange?

We express no opinion whatsoever but like the video and its goofy country music.

Check out the low-tech YouTube customer testimonials while you're there.

Thanks to the Wall Street Journal Law Blog for hipping us to this.

Slight digression for moment of nostalgia and copyright notice. 

This (right) is my favorite Firesign theater album.  I heard it for the first time on FM radio in high school while vacuuming the living room floor (yes, young people used to do these chores). 

It led to harder comedy.  

Note to subsequent generations of young people -- FT's comedy remains hilarious and does not age with time.   

From Wikipedia:  this image is of a music album . . . and the copyright for it is most likely owned by either the publisher of the album or the artist(s) which produced the music or artwork in question. It is believed that the use of low-resolution images of album . . . solely to illustrate the album . . .  in question . . . qualifies as fair use under United States copyright law. Any other uses of this image, on Wikipedia or elsewhere, may be copyright infringement. See Wikipedia:Fair use for more information.

OK, I blew the entire post on that.

Part III (3) Three on Step IV (4) Four from the Lax & Sebenius article, The Art of the Best Deal follows.

From the ABC's of Beginning Your Blog by Karen Klein at  Business Week with a hat tip to Kevin O'Keefe at LexBlog.

1. position yourself as an expert and demonstrate your experience.
2. the information in your blog should directly help your market solve a problem or address their wants and needs
3. read other peoples' blogs and get a handle on what they're doing
4. reading blogs within your industry will give you a sense of what niches are underserved and will help get your own creative juices flowing so you can write authoritatively when it's your turn.
5. initiate conversations with other bloggers by commenting on their blog entries
6. when you set up your own blog, [they will be] more likely to link to you, and send their readers
7. you need to blog regularly, under your real identity with an authentic voice
8. be sure that you have something personal and interesting to write about.
9. cross-promote 
10. consider adding a blog to your existing Web site
11. for experimenting with a blog, there's nothing more simple than setting up one on Blogger.com, operated by Google 
12. use a "tagging" service, such as that provided by Technorati.com, to help advertise your blog
13. a tag is basically a label you give your blog -- say 'professional services.'
14. anyone who uses Technorati and has subscribed to that tag will receive a notification of your new blog entry on that subject
15. encourage your customers to subscribe to your blog's RSS feed. 

(for more of the brilliant Charles Fincher, Jr., see LawComix.com)

When I hear from my old litigation buddies that "all mediators do is divide by two" I am tempted to wander into the "hard sell" marketing zone I usually avoid.  Last night at the Los Angeles ABTL dinner, for instance, I runined my record of never overtly marketing my services by nakedly promoting myself in response to one such complaint.

For those litigators disappointed by the mediation services they receive, I'm supplying an executive summary (with commentary) of Harvard negotiation gurus Lax and Sebenius excellent article, "The Art of Getting the Best Deal."  

Don't Say "Yes, Yes, Yes," When You Really Mean "No, No, No, No, No."

As Lax and Sebenius stress, business people should only say "yes" to a deal that "meets [their] real interests better than [their] best no-deal option."  Mediators call the "no-deal" option your BATNA -- a Better Alternative to a Negotiated Agreement.

Let me reiterate:  there is no reason to say "yes" to any deal that is worse than no deal.  Ever.  Period.

Tell that to the mediator the next time you're feeling pressured to accept an offer or meet a demand that makes your client really really really unhappy.  Say, "I can do better at trial."  Say, "I can negotiate a better deal than that."  Say, "if I can't negotiate a better deal that that today, I'll approach the matter differently tomorrow."  Say, "I don't believe the best settlement is one that leaves everyone unhappy."  Say, "that's not what I promise my clients when they hire me."  Say, "I've read Lax and Sebenius."  Say, "good luck with your mediation career" and pack your bag.  Bow out nicely but firmly. 

Find the Deciders and Draw a Deal Diagram

A deal diagram is not a decision tree.  Decision trees are about legal strategy.  Business decisions are not driven by legal strategy.  Business decisions are driven by finance, markets, business needs, and, commercial realities.  Only lawyers are kept awake at night by legal dilemmas.  CEO's are concerned with mergers and acquisitions, S.E.C. reporting requirements and how a settlement with a competitor might affect stock prices.

So what's a "deal diagram"?  I'll let Lax and Sebenius explain:

Continue Reading

If you're searching for answers to perplexing questions like "what is justice?" the Legal Theory Lexicon has the answers.   

"Why," you ask, "would anyone but first year law students, law professors or professional philosophers even care?"  The issue of "justice" is an academic question, you think, or one of those  3 a.m. dorm room inquiries, best answered with clouds of sweet herbal smoke hanging in the air.  There's no "real world" application for it, is there?

Well, yes. 

Those of us who are mediators are constantly grappling with and explaining issues of fairness, justice, and equity to people who feel:  (a)  they've been horribly injured, betrayed, bloodied, rejected, abandoned and generally %$#^&%'ed up by litigation -- we call these people plaintiffs; or who believe (b) they're being extorted, black-mailed, manipulated, stripped, disrespected and generally %$^&*#$'ed up by lawsuits -- we call these people defendants.

Problem solving, negotiating and integrative bargaining are all well and good, but until the parties gain some understanding of the principles operating the system in whose gears and levers they have become enmeshed, they will not be free to craft a meaningful resolution to their litigated disputes. 

And if you think this applies less to senior executives, owners, inventors, CEO's and the like than it does to the archetypal "man on the street," think again.  Only lawyers and judges feel comfortable in the legal system.  Everyone else feels damaged by it.

I've described elsewhere my attempts to acquaint litigants with the vagaries, inconsistencies, delays, burdens and costs of a legal system that has become their personal perfect storm of ill luck.  I probably don't need the arcane legal theory that goes with my plain talk about "justice."  Nevertheless, I am always searching for new ways to describe it  to myself if not necessarily to the parties whose dispute I help resolve.  

So for my edification and that of anyone else in the business of explaining THE LAW to those in its grip, I offer the following short essay on procedural justice from the Legal Theory Lexicon.  

Slicing a Cake Our approach to the idea of procedural justice may be made easier by using a simple example. Consider the familiar procedure for dividing a cake: the person who slices the cake picks last. What makes this a fair procedure? One answer to this question might be the following: there is an independent criterion of what constitutes a fair outcome, equal slices for all, and the slicer-picks-last rule assures that we will get to this outcome.

Slicer-picks-last is fair because guarantees accuracy. Or does it? If we really wanted to assure perfectly equal slices, then we could use a compass and the principles of plane geometry, with equal shares as a more reliable result. But this strikes us as an undue amount of fuss to go through when slicing a cake. Perhaps, the reason we believe that the slicer-picks-last rule is a fair procedure is that it strikes a fair balance between the importance of the outcome and the cost of getting there: the rule gets us close to equal shares most of the time at a reasonable price. Slicer-picks last might be considered fair, because does a good job of balancing. Or is there something more to the idea that the slicer-picks-last rule is fair?

Maybe the reason we believe that the slicer gets a fair share is because the slicer was the one who did the cutting; the slicer's participation in the cutting validates the outcome, even if the slicer ends up with a smaller slice (or among the calorie conscious, a bigger slice). Slicer-picks-last could be a fair rule, because of process independently of outcome.

Practical examples next.

 (the incomparable Charles Fincher at LawComix.com)

I tell people to hell with charity, the only thing you'll get is what you're strong enough to get.   -- Saul Alinsky, labor and social activist 

This step by step guide is pretty much taken verbatim from MIT's Negotiation Basic's Web Page.  I do not differentiate between "distributive" and "integrative" techniques as does the MIT site; I have added links to key terms; and, I have added warnings flowing from my own negotiating history and mediation practice.   

Italicized text is my own.

A more lengthy and sophisticated guide, The Art of Getting the Best Deal by Harvard gurus Lax and Sebenuis can be accessed here.  Order their "must read" 3-D Negotiation NOW.

Step One

Figure out your own interests and reservation point (bottom line) by assessing your Best (and Worst) Alternatives to a Negotiated Agreement (BATNA and WATNA). 

Keep reviewing these points while you negotiate.

Step Two

Figure out the interests and reservation point of the Other, remembering that a negotiator's belief about the other side's bottom line is a powerful driver of settlement, i.e., do not be fooled into believing you have hit the other party's bottom line until (and sometimes after) they begin packing up their briefcases to leave the negotiation.  

Be alert to new data while you negotiate, remembering that the attorneys representing the parties have organized the facts around their legal positions while the parties have organized the facts around their business needs. 

Business needs will always drive settlement more than legal positions will.  You may be hearing them for the first time.  If you are negotiating with the mediator, make sure the mediator is making the effort to ascertain the parties' interests and is not stuck on the parties' legal positions.  

Step Three :  Ascertaining the Zone of Possible Agreement

Seek to move the reservation point of the Other to widen the bargaining range especially if there is a negative range. (This process is often begun by "sowing doubt")  

However, if necessary for a settlement that you must achieve, move your own reservation point. 

Do, however, beware of thinking you "must achieve" a settlement above or below your "bottom line" whenever you are hungry, angry, lonely (i.e., feeling isolated) or tired (H.A.L.T.) 

Sticking to your bottom line is the best means of insuring you do not leave the negotiation believing you have put too much money or left too much money on the table. 

Sometimes you're better off not getting to "yes."  

Through judiciously shared information and brainstorming, seek to expand the pie so that each side may get as much as possible of what it would like.

Explore moving the reservation points of each side.

Step Four

Seek a settlement as close as possible to the reservation point of the Other so that you win the maximum profit.

Decide on fair principles and objective criteria to determine how to divide the pie.

Step Five

Do what you can to see that both you and the Other come to see this settlement as the best possible one under the circumstances. 


MIXED MOTIVE BARGAINING

In almost all negotiating situations you will have "mixed motives," where you wish to create values with your Other, and then to claim your share. In these situations you may use tactics common to both distributive and integrative strategies, or switch at least a little from one strategy to the other.

For example one would show respect at all times and be cautiously forthcoming about one's interests, share information as trust grows, be truthful and consistent, seek common ground and agreement on principle, generate as many options as possible, and in general pursue the integrative path as long as possible, while explicitly safeguarding you own interests. In many situations you will be able to expand the pie before having to divide it.

These ideas are drawn from the experience of the author and from Walton and McKersie, A Behavioral Theory of Labor Negotiations, McGraw-Hill, 1965. They also owe much to the work of Roger Fisher and William Ury.

Though the April 30, 2007 BUSINESS WEEK doesn't say much new on the old "vanishing trial" issue, I found the comment in the final paragraph amusing . . .

As court battles become more rare, some experts fear the effects on the law David Berg, a longtime Houston trial lawyer, sees a future devoid of the courtroom dramas that have long captured the American imagination. In a manual on trial technique that he published last year, Berg wrote that he feared that "the great war stories of the next generation of trial lawyers would begin, 'And then, I looked that mediator in the eyes and I said....'"

Thanks to the Los Angeles Arbitration and Mediation Group for passing this along.

I'm posting I'm Billing Time Again along with an excerpt from Chuck Newton's Third Wave Law Firm Blog, Happiness Equals Reality Divided by Expectations

According to the New York Bar Association, turnover rates among mid-level associates in this city’s law firms is 36 percent. The whole system is predicated on burnout.

In 1981, Maslach, now vice-provost at the University of California, Berkeley, famously co-developed a detailed survey, known as the Maslach Burnout Inventory, to measure the syndrome. Her theory is that any one of the following six problems can fry us to a crisp: working too much; working in an unjust environment; working with little social support; working with little agency or control; working in the service of values we loathe; working for insufficient reward (whether the currency is money, prestige, or positive feedback).

It seems to me the first two of the six problems will most probably result in burnout in big law leading some to try a Third Wave practice. However, the working with little social support, little agency or control is probably more conducive for Third Wave burnout.

Farber often calls burnout “the gap between expectation and reward." I can tell you that in a Third Wave practice this gap is greatly cut.

"The great paradox of efficiency is that the more we speed up, the more acute our frustrations when we’re forced to slow down. Is it not possible that these ambient frustrations function as chronic stressors, and—in some subtle but crucial way—contribute to feeling worn out? Americans, Gleick writes, spend an estimated 3 billion minutes a year waiting on hold with the software industry; they race to airports only to wait for hours; they start to jitter inside elevators if the doors take more than four seconds to close. (Elevator engineers even have a term for how long it takes—door dwell—before people start jamming their fingers on the door close button, which is usually a placebo, a function already disabled by litigation-conscious building managers.)

'Gridlocked and tarmacked are metonyms of our era,” Gleick writes. “To be gridlocked or tarmacked is to be stuck in place, our fastest engines idling all around us, as time passes and blood pressures rise.

If one of the surest recipes for burnout, as Michael Leiter has said, is the sensation of inefficiency—particularly if we’re still expending energy and seeing little in return—then there may be something about the modern office that conspires to burn us out. In 2005, a psychiatrist at King’s College London did a study in which one group was asked to take an IQ test while doing nothing, and a second group to take an IQ test while distracted by e-mails and ringing telephones. The uninterrupted group did better by an average of ten points, which wasn’t much of a surprise. What was a surprise is that the e-mailers also did worse, by an average of six points, than a group in a similar study that had been tested while stoned."

While Joe Francis sits in jail for misbehaving during a mediation, we take a moment to contemplate mediation's first principles:  voluntariness and self-determination.  

In their exhaustive review of appellate mediation case law Disputing Irony:  A Systematic Look at Litigation about Mediation (Spring 2006) 11 Harv. Negot. L. Rev. 43, James R. Coben and Peter N. Thompson discuss the law to date on duress and undue influence.

As Coben and Thompson stress, 

To make a successful duress defense the proponent must establish that a wrongful threat by the adverse party deprived the proponent of free choice, resulting in an unfair agreement benefiting the adverse party. As with other contractual defenses, the standard is quite difficult to meet in a mediation context. A mediation party was successful in claiming duress in only one of the thirty-six opinions [reported during the prior five year period].

That as many as seven of the thirty-six cases reviewed were directed at alleged mediator coercion is troubling, particularly in light of Magistrate Brazil's opinion in Olam v. Congress Mortgage Co. * which makes pursuing any claim of duress or undue influence seem a foolhardy mission.  As Coben and Thompson note, although the plaintiff in Olam

was sixty-five years old, suffered from high blood pressure, headaches and abdominal pains, and testified that she was in pain, weak and dizzy, and that she was pressured by her lawyer, the defendants and their counsel, the court found that this agreement obtained at 1:00 A.M. after fifteen hours of mediation was not obtained by undue influence. 

Coben and Thompson revisited the issue of duress under the rubric of mediator misconduct, citing ten opinions where a party charged the mediator with exerting undue pressure to obtain agreement.  Most of these charges will look familiar to lawyers, who might ask themselves what they look like to the man or woman on the street:

• the gist of the complaint in several cases was the mediator's recitation of a list of "horribles" that the parties would suffer if they did not settle and had to experience the dreaded civil trial (called "reality-testing" by the authors)
• one claim was based upon the alleged coercive statement by the mediator that if the party  "didn't sign the agreement [he] would ruin [the mediator's] record of being always able to settle the case."
• another claim (this one successful) was based upon the mediator's alleged threat "to tell the judge that she was the cause of the settlement failure, speculat[ion] that the court would rule against her, and [pr]offered opinions about the potential legal costs[, as well as] how refusing to settle would affect her pensions.

We are bound to see more claims of mediator misconduct, duress and coercion.  The problem is clear.  We'll discuss potential solutions in future posts.     

* Note that the District Court's order requiring the mediator to testify would likely not stand up under the current law in California.  See In re Marriage of Kieturakis (2006) 138 Cal.App.4th 56. 

The noisiest, most opinionated people in the world, Bloggers, will be observing a Day of Blog Silence on April 30, 2007, for the victims at Virginia Tech.  We invite our fellow bloggers to join in (thank you Tammy Lenski of Mediator Tech for the head's up). 

Before then, we noisily give you the following for your thoughtful consideration:

The Brady Campaign to Prevent Gun Violence

You've seen her interviewed by the network news about the tragedy at Virginia Tech.  Now buy my friend Princeton Professor Katherine Newman's book, Rampage, the Social Roots of School Shottings.  

Thanks to Michael D. Young of Judicate West and Weston Benshoof Rochefort Rubalcava & MacCuish for passing along a mediation story so improbable that you'd expect to see it appear on a mediator's bar exam.   

Young apparently reviewed the entire court file (!!) to supply the following tale of woe, ending in Joe Francis' jail sentence for mediation misconduct.  

Huh???? 

Read on, my friends, read on.

The Claimed Mediation Misconduct

In October of last year, defendant Joe (Girls Gone Wild) Francis was ordered to private mediation in a Florida civil action.  That mediation, to say the least, went badly.  

Florida's mediation confidentiality protections apparently include an exception for threats of physical violence.  It was this exception upon which Plaintiffs relied in telling the following tale out of mediation "school."      

Francis [arrived at the mediation] wearing sweat shorts, a backwards baseball cap, and was barefoot. He was playing [with an] electronic device. As [plaintiffs' counsel] began his presentation, Francis put his bare, dirty feet up on the table, facing plaintiffs' counsel.

[Plaintiffs' counsel] said four words, "Plaintiffs were minor girls,"  when Francis barked, "are the girls minors now?"  Continuing, [Plaintiffs' counsel] said, "plaintiffs are minor girls who were severely harmed by Defendant."

Francis then erupted. "Don't expect to get a fucking dime -- not one fucking dime!" This was Francis' mantra which he repeated, about fifteen times, during his tantrum that ensued. "I hold the purse strings. I will not settle this case, at all. I am only here because the court is making me be here!" 

As plaintiffs' attorneys were leaving, Francis' threats escalated. "We will bury you and your clients!" Francis threatened. As [Plaintiffs' counsel] walk[ed] out of the room, Francis got up and faced off with [him] . . . bark[ing], "I'm going to ruin you, your clients, and all of your ambulance chasing partners!"

Francis' aggressive move and threats to "bury" and "ruin" [Plaintiffs' counsel] were clearly an assault . . . intended to . . . prevent the mediation from ever beginning. As a result of Francis' assault . . . no mediation as to Francis as an individual defendant ever occurred.

Francis then made the only offer he was to make that day.  "Suck my dick," Francis shouted repeatedly, as plaintiffs' counsel left the mediation room.

Plaintiffs sought an order from the court requiring Francis to behave civilly and pay sanctions.  

Continue Reading

We've talked before about complaints that mediators sometimes use time- authority- and fear-pressure tactics to wrest agreement from the parties. 

If a client can prove she was coerced into settling a Title VII case, the Federal District Court for the Northern District of California has a remedy for her -- rescission.  

As reported last year by the National Arbitration Forum, the Court In Ryles v. Palace Hotel, rescinded a mediated settlement agreement as violative of federal law governing the release of Title VII claims.  The release of such claims must be “voluntary, deliberate, and informed.”

As the National Arbitration Forum article explained

In applying that standard, courts must consider the “totality of the circumstances.” The factors to be considered include the clarity of the agreement, the claimant’s education and business experience, whether the atmosphere for the execution of the agreement was coercive, and whether the plaintiff had the benefit of counsel.

All but one of those factors favored enforcement. However, one of the factors – whether the atmosphere for the execution of the agreement was coercive – weighed heavily against enforcement because of the “intense pressure” applied by Ryles’ attorney. Based on that factor, the Court held that Ryles could rescind the settlement agreement.

In reaching its holding, the Court cited Ryles’ letter to the Court as bolstering her credibility. Moreover, the Court rejected Palace Hotel’s argument that California law required coercion by the other party to the contract, noting that the release of Title VII claims is governed by federal law.

More on mediation "duress" soon.

Thirty years ago (more or less) my law school trial advocacy professor taught me this:

Trial is not about ascertaining the truth.  Nor is it about justice.  It is simply one way to finally resolve a dispute.

I have to admit that my legal career was probably more marked than others by the belief that I was working on the side of truth and justice.  

But then, I was working small. 

Did the word "sudden" mean "quick" or only "gradual" and "unexpected" within the meaning of the pollution exclusion contained in a policy of comprehensive general liability insurance? 

Was it misleading to omit the exchange rate from advertising for the transmission of money to foreign countries? 

Could you negligently conspire to drive a medical provider out of business? (answered affirmatively, believe it or not, by the trial court).

Now that my view of the adversarial system is one of mediator and sometimes arbitrator,  what the "truth" is seems murky again, the way it did when I was clerking for a federal district court judge during law school.

So this post is the beginning of a series of posts about "justice" and fact-finding.  A series that will follow the path of my interest and discovery.  A series that raises questions that might never be answered.

To begin the exploration, I borrow freely from the excellent article by Professor Lisa Blomgren Bingham  When We Hold No Truths to Be Self-Evident:  Truth, Belief, Trust and the Decline in Trials.  This article, from a 2006 Symposium Issue for the Journal of Dispute Resolution, can be found on Westlaw and Lexis-Nexis and likely elsewhere on the internet.  I do not, unfortunately, have a free link to the article itself. 

We start with JUSTICE.

Distributive Justice

Distributive justice has its roots in social equity theory. It posits that social behavior occurs in response to the distribution of outcomes. Distributive justice emphasizes fairness in the allocation of outcomes. Thus, in mediation research, distributive justice suggests that satisfaction is a function of outcome, specifically the fact and content of a settlement or resolution. In theory, participants are more satisfied when they believe that the settlement is fair and favorable. There is a substantial body of empirical research that supports the distributive justice model as an explanation of satisfaction. The research suggests that distributive justice is a better explanation for satisfaction related to conflicts over resource allocation, such as wage disputes than other cases in which fairness matters. 


Procedural Justice

Procedural justice refers to participants' perceptions about the fairness of the rules and procedures that regulate a process. In contrast to distributive justice, which suggests that satisfaction is a function of outcome (the content of the decision or resolution), procedural justice suggests that satisfaction is a function of the process (the steps taken to reach that decision). Among the traditional principles of procedural justice are impartiality, voice or opportunity to be heard, and grounds for decisions. 

Procedural issues such as neutrality of the process and decision-maker, treatment of the participants with dignity and respect, and the trustworthiness of the decision-making authority are important to enhancing perceptions of procedural justice. Extensive literature supports procedural justice theories of satisfaction in a variety of contexts involving both courts and dispute resolution. In general, research suggests that if organizational processes and procedures are perceived to be fair, participants will be more satisfied, more willing to accept the resolution of that procedure, and more likely to form positive attitudes about the organization.

Interactional Justice

Beginning in the 1980s, organizational justice researchers developed the notion of interactional justice, defined as the quality of interpersonal treatment received during the enactment of organizational procedures. In general, interactional justice reflects concerns about the fairness of the non-procedurally dictated aspects of interaction. Research has identified two components of interactional justice: interpersonal justice and informational justice. These two components overlap considerably. However, empirical research suggests that they should be considered separately as each has differential and independent effects upon perceptions of justice. 

Informational Justice

Informational justice focuses on the enactment of decision-making procedures. Research suggests that explanations about the procedures used to determine outcomes enhance perceptions of informational justice. Explanations provide the information needed to evaluate the structural aspects of the process and how it is enacted. However, for explanations to be perceived as fair they must be recognized as sincere and communicated without ulterior motives, be based on sound reasoning with logically relevant information, and be determined by legitimate rather than arbitrary factors.  

Interpersonal Justice

Interpersonal justice reflects the degree to which people are treated with politeness, dignity, and respect by authorities. The experience of interpersonal justice can alter reactions to decisions, because sensitivity can make people feel better about an unfavorable outcome. Interpersonal treatment includes interpersonal communication,  truthfulness, respect, propriety of questions, and justification, and honesty, courtesy, timely feedback, and respect for rights. 

What all of this means in the "lay" terms of this blog, will be the subject of later posts, all labeled, "Truth, Justice and the American Way"  if the topic is of interest to you and you'd like to follow it (and comment upon it!)

Mr. Thrifty, always alert to the potential that business might arrive on our doorstep in response to my blog postings says "huh?" 

It's not just that he doesn't share my quirky sense of humor, it's that he doesn't follow the blog.  For others who don't, the YouTube Kodak commercial below is an example of the opportunities available to "old" industry in Web 2.0 advertising sources. 

Look!  I've become a shill for Kodak!  So stop grumbling; have a little fun; play along & even this edged-out camera company may live to revive the "Kodak moment" as a provider of digital technology.  

And, for my own weird reasons, this CRACKS ME UP! 

 Below, Paul Simon's Kodachrome from the YouTube Archive of YesMan46.   And, if you're a boomer still nostalgic about the way Simon & Garfunkel moved you in Junior High (now "Middle") School, check out his new album here.  Walking down memory lane, I provide you with Kodachrome.

The SCMA Newsletter, missing in action for more than a year, will soon find its way into the mailbox of all SCMA members.  

For this we owe thanks to Board Members and/or authors Lisa Klerman, Phyllis G. Pollack, Dorit Cypis, Nikki Tolt, Ed Davis, President Jan Frankel Schau and the invaluable administrative skills of Linda Cain.

I provide here a teaser from Phyllis Pollack's and my article A Mediator's Dilemma, exploring mediation ethics in the context of an illegal counterfeiting operation.  

How many of us have been in this situation? We’re mediating a fairly run-of-the-mill business case – a fight over the sale of an import business. During the course of the mediation, it slowly begins to dawn on us that the parties are bargaining over the value of a business that trades in counterfeit Louis Vuitton and Gucci handbags. Is this the moment when we ask ourselves, if I’m carrying a pricey Prada, should I push the parties out of my pad?

But that’s the Carrie Bradshaw question.

The mediator’s questions go more like this: as a neutral mediator, do I have a duty to: (a) chastise the parties for engaging in illegal conduct; (b) recuse myself to avoid participating in the creation of an illegal agreement; or (c) inform the parties that any settlement reached might not be enforced?

Before answering these difficult questions, consider the recent case of Hye Young Yoo v. Sue Jho (Calif. Court of Appeal, 2nd Dist).

Yoo, the purchaser of a counterfeit handbag business, sued the seller after investigators confiscated the counterfeit goods, which naturally caused the business to fail. Yoo wanted some or all of her money back and the trial Court (wearing black polyester) agreed -- to the tune of $103,250.

Not surprisingly, the appellate court, slightly more Manolo Blahnik but nevertheless also sporting Ace Uniforms, reversed, holding that when it comes to illegal contracts “the law will leave the parties as it finds them.” Id. In Yoo, leaving the parties the way the Court found them meant some pretty good times for the defendant. She stole Gucci and LV designs, sold them to (unsuspecting?) customers and made a cool $400K at a time when she was likely looking over her shoulder for the law to close in.

So, what’s a neutral mediator to do?

For the tentative resolution, click here.

As a follow-up to yesterday's post on collaboration and cooperation, we recommend a recent article in the Harvard Business School's invaluable online resource "Working Knowledge" -- The Value of Openness in Scientific Problem Solving, by Karim R. Lakhani, Lars Bo Jeppesen, Peter A. Lohse, and Jill A. Panetta.

The HBS Executive Summary below; link to full article above. 
  

Scientists are generally rewarded for discoveries they make as individuals or in small teams. While the sharing of information in science is an ideal, it is seldom practiced. In this research, Lakhani et al. used an approach common to open source software communities—which rely intensely on collaboration—and opened up a set of 166 scientific problems from the research laboratories of twenty-six firms to over 80,000 independent scientists. The outside scientists were able to solve one-third of the problems that the research laboratories were unable to solve internally.

Key concepts include:

Opening up problem information to a large group of outsiders can yield innovative technical solutions, increase the probability of success in science programs, and ultimately boost research productivity.

Open source software communities provide a model for improving the process of solving scientific problems.

Outsiders can see problems with fresh eyes; in this study, problems were solved by independent scientists with expertise at the boundary of or even outside their field.

Achieving true openness and collaboration will require change in the mindsets of both scientists and lab leadership.

A timely post for solving the problems of WORLD 3.0. 

I took an urban hike with my good friend the composer, lyricist and novelist Kathleen Wakefield yesterday.  I live at the base of the Santa Monica mountain range, making for a good hour's hike from the Los Angeles Basin to the range's crest on Mulholland Drive and back (even if we only made it to Fountain) (yes, the Fountain of Bette Davis' famous response to the question "how do you get to Hollywood?"  -  "take Fountain") .

Because Kathleen makes her living selling her intellectual property, we were talking about the challenges raised by and opportunities presented to artists as their work becomes more and more their own property and less and less the business of those who "discover" it (A&R), produce it (Viacom, MGM, Capitol Records, etc.), sell it (Madison Avenue) and protect it (ASCAP, entertainment lawyers).

Our conversation naturally ranged to Web 2.0; a world without borders; and, global warming, all of which took me back to the book my friend Ken Cloke is writing called "Mediators Can Save the Planet."

Why mediators?  Because WORLD 3.0 will require that we supercharge our natural cooperative and altruistic natures while dampening our competitive drive without thereby discarding our ambition. 

What will it take?  A shift from competition to collaboration.  

Can we do it?  "Yes we can," says Al Gore in An Inconvenient Truth when his audience begins to move from denial to despair.

How?  At least one way to get the global cooperation ball rolling will be to school ourselves in empathy, a necessary prerequisite to tackling the problem of collaborative solutions to worldwide  problems. 

All of which leads us to an old but timely article Empathy, Morality and Otherness by Dr. Douglas Chismar.  Before proceeding to suggest art as one of the ways we can increase our ability to identify the injustices done to and suffering endured by "foreign" others, Dr. Chismar identifies three types of empathy triggers:  (1)  empathizer specificity; (2) situation specificity; and, (3) recipient specificity.  He writes:  

Empathizer specificity refers to the manner in which individual empathizers vary in their general level of empathic responsiveness as a personality trait. Some people empathize quite often and intensively, others rarely and only weakly.

Situation specificity refers to how empathizers respond selectively to a variety of different empathy opportunity situations. Certain circumstances, for example the Challenger disaster, have evoked widespread empathy, while others, such as the civil war in Rwanda, evoked little response.

Recipient specificity speaks of how empathizers respond differently to particular kinds of individuals. A neighboring family left homeless by fire may evoke considerable empathy while a wino on a street corner may stimulate little concern.

After discussing the many reasons why we understandably misread the injustices visited upon and fail to respond to the suffering of distant and foreign "others,"  Dr. Chrismar suggests that we nourish our natural empathy impulses with art.  "We need to find a way to take the initial impulse to empathize and nourish it," he argues,

 rather than letting it slide, as it is prone to do, into the rut of selectivity. Humans have discovered at least two strategies for increasing the frequency and intensity of empathy, and overcoming its partiality.

The first strategy is the largely cognitive operation of what is commonly referred to as “universalizability.” This consists of abstracting from one’s particular situation and viewing oneself as one among many. It takes various forms, including reversibility (placing oneself on the imaginary receiving end of an action) and a kind of stripping away of what makes one particular (“judging a man by the content of his character rather than the color of his skin)”.

 A second strategy appeals to the arts . . . Through drama, poetry, film, and other arts, imaginative participation in others’ experience is enabled where it would otherwise fail to occur. The arts, through creating a mock reality, thrive upon the sense of fascination with the different while creating situations in which empathy is powerfully and irresistibly generated.

Human tendencies towards curiosity and exploration are harnessed to project the emotions into alien situations. The accepted suspension of cultural norms, which has tended to characterize the artworld throughout its history, permits the feeling and expression of unconventional emotions, unloosing a stream of feelings otherwise bottled up in a business-like society.

There's much more of interest in this article to anyone engaged in the project of preparing ourselves for the challenges of the coming century, including the mass relocation of people due to the rise in the sea level and the potential for catastrophic species extinction -- neither of which is science fiction anywhere but in the Bush White House.

Check it out.

See Diane Levin's interesting post about "Civil Gideon" rights and the charge that Judges and mediators strong-arm unrepresented litigants to settle their cases when they would prefer to proceed to trial.

This is not a new charge.  Nor is it a false one.  I continue to hear stories about strong-arm tactics in our local halls of justice.  And these tactics are not applied only to the pro per litigant.  I have seen attorneys deliver up their clients to court-annexed mediators as living sacrifices to bad legal advice or a simple lack of courage to deliver bad news about the course a case has taken.   

There is a difference between seeking the mediator's help with adjusting a party's overly optimistic expectations and ambushing your own client in court-annexed mediation proceedings.  I can hear the wails of my friends Joe Folger and Baruch Bush from Temple University and Hofstra Law School (respectively) (authors of The Promise of Mediation) now.

A snippet from Diane's post quoting and link to the longer, must-read post:

Russell Engler, a Professor at New England School of Law. In his 2006 article, "Shaping a Context-Based Civil Gideon from the Dynamics of Social Change," Professor Engler describes the actions of those standing in the way of progress thus:

In the courtroom, court personnel, including the judges, will likely encourage the unrepresented litigant to settle the case. That, in turn, may require the litigant to go to the hallway to negotiate with the lawyer, or to resort to some form of court-based mediation. The hallway negotiations are rife with instances of overreaching and unethical behavior by lawyers, unmonitored and unpunished by a legal system that depends on a high settlement rate. Where the litigants resist settlement, strong words from the judges, mediators or lawyers eventually induce litigants to settle. Few civil cases are tried, and most settlements involving the unrepresented poor occur with a minimum of judicial involvement. [Id. at 2.]

For the remainder of the article, click here.

Both Diane and I invite responses from our readers.

Pull out that divining rod and begin prospecting for rainwater in your own backyard with marketing guru Sara Holtz's Women Rainmakers Blog.

Start with Your Mother Was Right Part II to get an idea of the ample marketing resources you already possess.  Resources that you need only begin to use.  It's EASY, say I, who developed not a LICK of business in 25 years of practice and am now a business development queen (since I only eat what I can kill). 

But it's not desperation that made me realize I had what it took to develop business.  It was simple necessity.  Everything else followed, without having to change my personality or do or say stuff that wasn't "me."  I'm not golfing or talking about the Final Four or pushing myself on the attorneys who have become my market.  But, this isn't about me.  This is about you.  Here's Sara Holtz's advice on that subject from "Your Mother was Right."  

Your mother told you that when others inquired about you, it was polite to reciprocate and ask about them. What she didn't tell you is it is also good for business development.

I was reminded of this during two recent conversations.

I was speaking with a (male) client. He is a funny, personable sort. In the course of our conversation, I asked him a number of questions - What was new with him? What were his plans for the holidays? What were his kids up to?

He didn't ask me a single question in return.

Least you think this is a "guy thing", I had a similar experience when having dinner with a (female) classmate from Law School. We had an entire dinner in which she failed to ask me a single question about myself or my family, even though that had been the focus of our conversation about her.

I was a bit puzzled in both situations. What do I make of this?  

That it was a missed opportunity to enhance their relationships with me. Carried over to the business development context, don't make the same mistake. Make a point to ask appropriate questions, learn about the other person, let them know that you are interested in them. It will strengthen your relationships. And strong relationships are good for business.

I'll add to this that both lawyers and neutrals are problem solvers.  You don't need to know what complicated antitrust problem your dinner companion is wrestling with (unless she's dying to talk about it).  Casual conversation over a relaxing meal will inevitably reveal some challenge your dinner companion is facing.

Be a problem solver.  I can now do this in minutes, holding a glass of soda water at any bar function anywhere anytime.  I do not tell people I am a mediator.  It tends to make them start looking over my shoulder for someone else to talk to.  They're afraid I'm going to try to sell them my services.  I simply ask lots and lots and lots of questions about them.  How's your practice?  Are you progressing as you want to?  How's the firm doing?  Are your associates getting the training they need, etc., etc.  At some point, I begin helping my new bar association friend with one or more of these challenges.  

Eventually they look at me with real interest and say "what is it that you do anyway?"  That's when I tell them, "I'm a professional problem-solver -- a mediator."  We exchange cards.  The business does not come directly and sometimes not at all.  But at the next bar association function, I often see my new old friend, ask how he's rising to the challenge we discussed when last we met.  He introduces me to someone else with kind words about how I helped him with, say, the paper clip supply in the mailroom.  Really, any  problem solving whatsoever will do.

This is how you build a network, a reputation and a business. If I'd known it was this easy, I'd have had a book of business before I was made (a non-equity) partner.  You can build yours too.  Starting now.

In response to my over-50 peers' dire predictions that the internet will make books with covers and typeset lines obsolete, I chortle back, "but I love the internet.  I love wikipedia. I love Youtube and Flickr and Google." 

They look at me like I'm nuts. 

"But what about newspapers," they say, "and reading and poetry?  What about sitting in an easy chair with a new novel in your hands and a cup of coffee by your side?"

"Books and newspapers don't hyperlink," I respond.  "Nor do they give me access to thousands of libraries.  With search capacity." 

"Here's the thing," I continue.  "I can sit on the couch in my L.A. Spanish stucco house -- built in 1928, at the very beginning of electricity and motorized mobility -- with my Dell computer on my lap, looking up occasionally at the vase of spring flowers on my coffee table, the bird of paradise just beyond my curtained window and the palm trees in the neighbors' yard across the street while I browse the Library of Congress for an article on the history of Islam." 

"And if books with covers become artifacts like 78-rpm records?  I'll have my artifacts here, in the bookcase behind me and on shelves in my office.  Perhaps we'll have public newspaper like we now have public television and radio, for the old folks among us.  No need to worry about someone acquiring monopoly control over the news.  The bloggers will continue to newscast and the ordinary citizen to upload to YouTube scenes of the local police tazering citizens.  And we won't have to cut down any more trees to make the paper on which to hold the words."

Does it get any better than that?

The point of this post?   I am once again burying the lede is favor of the aimless morning ramble before I jump back in to my real work -- the work they pay me to do. 

The point of this post is to ask you to go RIGHT NOW over to wikipedia's entry on mediation and make it better as suggested by John Helie in There Goes That Internet Thingy Again! in mediate.com this month.

Thanks John!

below, 360 degrees of l.a. subway by Masumi Hayashi

I've told my own hard lesson about projecting a positive professional image before here and here. 

There's nothing like a 360 review to get you thinking about why you're (pick one) not getting the plum assignments; being passed over for partnership; or, not winning the corporate "beauty contest."  There's a great Q&A over at HBS Working Knowledge with Laura Roberts, Assistant Professor of Organizational Behavior at the Harvard Business School on Creating a Positive Professional Image (before others do it for you).  Here's an excerpt and a link.  

Most people want to be described as technically competent, socially skilled, of strong character and integrity, and committed to your work, your team, and your company. Research shows that the most favorably regarded traits are trustworthiness, caring, humility, and capability.

Ask yourself the question: What do I want my key constituents to say about me when I'm not in the room? This description is your desired professional image. Likewise, you might ask yourself the question: What am I concerned that my key constituents might say about me when I'm not in the room? The answer to this question represents your undesired professional image.

My old friend and former legal associate, environmental attorney James Dragna at Bingham McCutheon, the best client developer in the business, used to say, "if people have the choice between someone competent they want to hang out with and someone they don't, they'll choose the guy [or gal] they trust and like."

Yes, you can improve your technical capability, but those other three qualities -- trustworthiness, caring and humility -- are choices we can make on any given day.  That's the good news.  Even if you never could get the punch-line to a joke right and don't care who the final four might be.  

Research shows that how we perceive a particular offer's value is highly influenced by any relevant number that enters the negotiation environment -- an anchor.

The greater the ambiguity and uncertainty, the stronger the anchoring effect of the first offer, which will exert a strong pull throughout the rest of the negotiation.

researchers had real estate agents inspect a house and estimate its appraisal value and its purchase price 

• then they manipulated the house's list price, providing high and low anchors

• all of the agents' estimates were influenced by the list price, even though they denied factoring the list price into their decisions

• when they explained the basis for their estimates, they cited features of the property that would justify those estimates

in another study, researchers sent customers to mechanics to obtain estimates on the value of a car

• after the customer offered his own opinion of the car's value, he asked the mechanic for an estimate
• half the mechanics were given a low anchor and half were given a high anchor
• the mechanics estimated the car to be worth a thousand dollars more when they were given the high-anchor value

a Northwestern busienss law school professor explained the phenomenon this way

• items being negotiated have both positive and negative qualities—qualities that suggest a higher price and qualities that suggest a lower price
• high anchors selectively direct our attention toward an item's positive attributes; low anchors direct our attention to its flaws
• a high list price directed real estate agents' attention to the house's positive features (such as spacious rooms or a new roof) while pushing negative features (such as a small yard or an old furnace) to the back recesses of their minds
• similarly, a low anchor led mechanics to focus on a car's worn belts and ailing clutch rather than its low mileage and pristine interior 

making the first offer anchors the negotiation in favor of the offeror

• the author of the article from which these insights were gleaned found that when a seller makes the first offer, the final settlement price tends to be higher than when the buyer makes the first offer 
• the amount of the first offer affects the outcome, with more aggressive or extreme first offers leading to a better outcome for the person who made the offer
• Initial offers predict final settlement prices better than subsequent concessionary behaviors do

how extreme should your first offer be?

• this author's research suggests that first offers should be quite aggressive but not absurdly so 
• the fear that an aggressive first offer will scare or annoy the other side and perhaps even cause him to walk away in disgust is typically exaggerated
• most negotiators make first offers that are not aggressive enough
• a nonaggressive first offer requires small concessions or a decision to stand by the original demand
• one of the best predictors of negotiator satisfaction with an outcome is the number and size of the concessions extracted from an opponent
• by making an aggressive first offer your opponent is able to "extract" concessions from you
• in that case, you'll not only get a better outcome, but you'll also increase the other side's satisfaction

from "Should You Make the First Offer?"  by Adam D. Galinsky, an assistant professor at Northwestern University's Kellogg Graduate School of Management, in Evanston, Illinois.