Negotiation Law Blog

We don't often get to hear what jurors actually do and say during deliberations.  Even when you poll them after the verdict comes in, you often can't trust that you're getting the straight skinny.

I was talking to an old friend recently about the way jury verdicts can act as reparations of one sort or another if the issues raised by trial are racial or gender or nationality-based.  I've also written elsewhere about the effect of past racial injustices on the settlement of a wrongful cemetery practices case.

My friend was good enough to reduce his jury experience to writing.  I provide it here for you without commentary. 

I was chosen for jury duty while working for a Bank in corporate communications in San Francisco's financial district.  So I arrived at the courthouse in a suit and tie and probably looked and sounded pretty conservative.

I was chosen as one of the twelve jurors to decide a personal injury lawsuit.  The plaintiff was a wiry little black guy suing a big shipping corporation.  A restraining rope had snapped while he was loading cargo onto a ship at the docks somewhere along the Bay early one morning.  It caused him to slip and fall and badly hurt his hip.

On the witness stand, the Plaintiff revealed that he and his fellow workers were in the habit of taking a few healthy nips from a bottle of liquor as they drove to their 6 A.M. shifts.  It seemed that he and his fellows were generally somewhat drunk nearly every morning as work began.

The defense attorney made it pretty clear that though the snapping of this important rope hadn't been the Plaintiff's fault, that he wouldn't have injured himself, wouldn't have fallen at all, if he'd been sober.    

The jurors were almost all white and most were staunchly middle class.  During deliberations, two of the jurors harangued the rest of us about the contempt they held for anyone who got drunk in the morning.  A couple of other jurors were really down on the guy and talked about him as if he were just dirt.

(below:  Berkeley in the Sixties)

Now, I know it isn't cool to drink the way he did, and I wasn't a long-haired kid anymore, learning to play the blues and romanticizing the Black experience as I had during my days at Berkeley in the sixties.  But I couldn't help empathizing with the guy.

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(The Sound of Time (2003) by Dorit Cypis)

Conflict is . . . is simply the sound made by the cracks in a system, a boundary condition that can best be resolved by communicating across the many internal and external borders we have erected to keep ourselves safe, or exclude others.  --- Ken Cloke, President, Mediators without Borders, Committing Personally, Acting Globally.

(photo by Anton Raath)

We recently posted a brief discussion about "Winning" the Negotiation/ Mediation.  Though not statistically significant, I can nevertheless report that, aside from the all-time hands-down reader-favorite post I'm Billing Time, Winning the Mediation has had more "hits" than any other.  

Forget collaboration.  People want to win.  (a more serious post about this later).  And the reason most of us feel like such inadequate negotiators?  Because we buy retail.  As was pointed out to me in my very first mediation course, Americans typically bargain over only two purchases in their lifetimes:  new and used cars and real estate.  We're just not that into it.

That said, help is on the way from our good friend, mediator Linda Bulmash.  Text from the recent LACBA announcement below.  Reason alone to join LACBA.

Los Angeles County Bar Association Announces the Launch of a New E-Newsletter "One Minute Negotiation Tips"

Have you ever walked away from a good deal because an agreement could not be reached….or wondered whether you paid too much… or accepted too little…or felt so rattled by the other side’s hardball tactics that you lost sight of your main objectives? Have you ever negotiated a great deal but can’t figure out why you succeeded so that you can replicate the “win” again?

Now you can be a negotiation winner. Now you can stop yourself from paying too much, settling for too little, losing the deal you want or letting the other side get the upper hand. Never again will you show up at mediation or a negotiation wondering how to handle the mediator or the other side.

ALL ATTORNEYS negotiate on a regular basis: Litigators negotiate to settle cases; Real Property and Business Attorneys negotiate terms of the transaction; Tax Attorneys negotiate with taxing authorities; Family Law Attorneys negotiate when cases are sent to mediation. You get the idea. But who has time to take a negotiation class? LACBA is offering an alternative, “One Minute Negotiation Tips”, written and edited by Linda Bulmash, Esq. a full time professional mediator and ADR Services and a negotiation expert. This free member publication will be delivered to you by email, once a month.

One Minute Negotiation Tips will be more than just a newsletter; it will be a forum for discussion sharing of ideas and asking questions. If you have a negotiation tip that you would like to share, you will be able to submit it for future publication. If you have a question or a hypothetical you would like to pose, we encourage you to submit it.

For more information regarding this new service, please contact Joanne Williamson, LACBA’s Director of Internet Services at mailto:jwilliamson@lacba.org

Check out California Court Orders Preservation of RAM Data by Duane Morris' eDiscovery Team members Sharon L. Caffrey and Sandra A. Jeskie.  Excerpt below.

In early June, the federal court for the Central District of California, in Columbia Pictures Indus. v. Bunnell, Case No. CV 06-1093, issued a ruling requiring a company to store its random access memory ("RAM") data.

The ruling came during ongoing litigation stemming from a lawsuit filed by the Motion Picture Association of America ("MPAA"), alleging claims of contributory copyright infringement against TorrentSpy, a popular free file sharing service.

The RAM data preservation requirement appears to be an issue of first impression for the courts. The court's order requiring preservation and production of the transient contents of computer memory greatly expands the current legal duty to preserve electronic data.

Although the ruling is presently on appeal, if upheld, the effect of broad implementation of this ruling would not only result in e-discovery anarchy, but it could also result in serious computer performance deficiencies and increasing the already rising cost of doing business electronically.

The storage requirements necessary to meet the court's order would be extraordinary and therefore extremely expensive.

The ruling may also have a chilling effect on web users who now have even less comfort that personally identifiable information will remain private.

 

We recently posted a piece about mediators going "green."  Now that I've cruised my husband's law firm web site in connection with our last post on D&O coverage, I find that insurance coverage might go "green."

At least that's what policy holder counsel are saying about coverage for losses arising from global warming under CGL and other standard commercial policies.  As Heller's January, 2007 article Insurance Coverage for Global Warming notes:

Insurance may be available to cover losses faced by companies as a result of global warming issues. For example:

• A company’s existing portfolio of comprehensive general liability (CGL) policies may provide coverage for defending against and paying settlements or judgments in lawsuits brought against a company for causing property damage as a result of alleged contributions to global warming.
• Errors and Omissions (E&O) insurance may provide coverage for claims by governmental entities or individuals that a company or its management engaged in wrongful acts by allowing global warming emissions.
• Business interruption insurance may provide coverage for a company’s loss of profits stemming from an event linked to global warming. 

This is the first I've seen about potential coverage for global warming losses.    

Already, however, I can see the coverage complaint and envision the answer to it, followed by discovery, motion practice and decades of litigation.

Maybe this time we'll find a way for the lawyers to commence a collaborative process to resolve these claims early enough to avoid the hundreds of millions of dollars that get eaten up by attorneys, arbitrators, mediators, experts, accountants, engineers and the like. 

We're all ready and eager to serve if needed.  But if there is a colorable argument for coverage, wouldn't it be better for all of us who understand coverage to sit down and try to knock out agreements that will satisfy party interests better than the adversarial system is capable of providing.

If you want a referral to a member of the "global warming insurance recovery" team here in Los Angeles, you couldn't do any better than to contact the dynamic and brilliant Nancy Sher Cohen.

The Cost of Prevention and Cure

Since posting this brief note on global warming insurance, a reader called my attention to the following post on recent carrier research concerning potential losses from global warming.  See Josh Rosenau's Thoughts from Kansas post Global Warming Insurance from May of this year and the following excerpt below. (Mr. Rosenau is graduate student at the University of Kansas, in the department of Ecology and Evolutionary Biology).

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(photo by Maureen Flynn-Burhoe)

We follow high-level negotiations, as well as the small commercial dispute, here.  No matter the stakes, the dynamics are the same.  See, for example, today's AP article, Collapse of WTO Talks Puts Trade Deal in Limbo.

What's at stake? 

a new world trade pact aimed at adding billions of dollars to the global economy and lifting millions of out of poverty.

Who are the negotiating parties?  The United States, the European Union, Brazil and India. 

Are there feelings, i.e., emotions involved?  Have we mentioned recently neuroscientist Antonio Damasio's research on people whose brain injuries interfered with their ability to feel emotion?  They could make endless pro and con lists, but couldn't make decisions.  Why?  Because there is a pro and con to every choice we make.  Paper or plastic?  Fish or Meat?  Peace or warfare?  Settle the lawsuit or try it?  

In the absence of a feeling that makes us desire one outcome more than another, we are at a total loss.  

How does impasse feel?  If you'd been a WTO negotiator, your

emotions rang[ed] from anger to confusion [as they] left Potsdam on Friday knowing they had failed to break a six-year logjam between rich and poor countries over eliminating barriers to trade in farm produce and manufactured goods.

And the angry and confused government officials?  Do they think their own bargaining position is to blame or do they believe that their negotiating partners are acting in bad faith?  Let's see.

European and American officials questioned Brazil's intentions and wondered if it intentionally blocked progress to curry favor with developing countries, many of whom were unhappy with the private negotiations among the four powers.

Brazilians accused Washington and Brussels of agreeing beforehand to protect their agricultural interests.

Many officials criticized Indian Trade Minister Kamal Nath for arriving late on Tuesday after missing a flight and having a return scheduled ahead of the summit's end.

All sides said they negotiated in good faith.

Sound familiar?

The reasons for impasse and ways to break it will be the subject of a lengthy weekend post.

In the meantime, here are two prior posts on impasse -- Negotiating Past Impase and Breaking Impasse.  

by Michael D. Young, whose recently posted Mediation Gone Wild Document Repository Web Pages you absolutely MUST SEE!

Once again, the trial courts are trying to mess up mediation confidentiality by judicially creating (legislating?) exceptions to the confidentiality statutes. When faced with a public policy that competes with California's strong public policy favoring mediation confidentiality, the trial courts too often seem to tip the balance the wrong way by inventing unwritten exceptions to the law. Luckily, in the recently-penned decision in Wimsatt v. Superior Court (Kausch) (Cal. App. No. B196903), the appellate court fixed things up...although it was clearly not happy about it.

Wimsatt involves a legal malpractice action against a prominent plaintiff's personal injury firm. In the trial court, the former client and malpractice plaintiff claimed that the law firm "breached its fiduciary duty by significantly lowering [the client's] settlement demand without his knowledge or consent." The client claimed he first learned of this fact from the confidential mediation brief that was provided to the mediator. You can see the public policy conflict already, can't you?

In the malpractice action, the client reasonably enough wants to obtain and introduce the smoking gun mediation brief, the one on which his entire case rests. However, as California practitioners should know by now, there is a slight problem with the plaintiff's wish: Evidence Code Sections 1115 et seq., and in particular Section 1119. California is serious, and rightfully so, about protecting the very cornerstone of mediation -- confidentiality. Under Section 1119, no mediation communications, including mediation briefs, are admissible in court. This has been reaffirmed time and time again by the Supreme Court (go reread Foxgate and Rojas if you don't believe me).

So what happened in the Wimsatt case? According to the opinion, in the underlying personal injury lawsuit, the client's lawyer made a comment to the personal injury defense counsel that it might be more appropriate to discuss settlement in the $1.5 million range rather than the $3.5 million range they had been discussing before. Because of this comment, claimed the client, he was forced to settle his personal injury case at mediation for an amount that was much less than the case was worth. Despite agreeing to the mediated settlement, the client brought a malpractice claim against his attorneys claiming he could have done better if only....

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(Mermaid and Merman by James M. Thorne)

Dinah Lynch at Mediation Mensch has launched a meme tag Can Mediation Go Green? 

I could talk about the energy-efficient, compact fluorescent light bulb -- the CFL  -- that illuminates the desk on which I write this post or explore the (controversial) issue of carbon credits and taxes.

But I'm more interested in the paradigm shift necessary to survive the climate crisis. 

I earlier wrote about the book my friend and mentor Ken Cloke is writing called "Mediators Can Save the Planet" in Empathy, Evolution, Mediation and Global Warming.  

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 at the moment 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.

We Don't Have the Luxury to Cling to "Hot Button" Issues

I was talking to a young attorney in my husband's law firm last night at a fund-raiser for Public Counsel.  When I suggested Obama '08, he demurred on the ground that Barack's church-state separation position wasn't sufficiently clear and it was one of his "hot button" issues.

I said, "we can't afford any hot button issues in the coming election.  There's too much at stake."  I didn't need to say more. 

Denial and Despair:  The Parade of Horribles

Catastrophic species extinction, mass relocation of populations dispossessed by rising oceans, vast increases in wars fought over diminishing natural resources, and continued destruciton and  dispossession caused by increasingly severe weather conditions.  

There's more, but that should be enough for denial and despair to set in.

Hope:  What Mediators Can Do

Last week, I had the great pleasure of shaking Barack Obama's hand and asking him what an ordinary citizen like myself could do to help his campaign.  

"Talk," he said.  "Talk to your freinds and your family.  Talk to those who support me and those who don't.  Talk to Democrats and talk to Republicans.  Talk to those who agree with you and those who don't.  But first listen." 

The challenge of winning a presidential election in the most technologically advanced, economically strong, militarily mighty nation in the world pales in comparison with the work we must do to survive the twenty-first century with our freedoms intact. 

We cannot do it alone.  We cannot continue to avoid difficult conversations with our friends, families, and those who we perceive to be the enemies to good governance and thoughtful environmental stewardship.

I am voting for Barack because he is a conciliator.  I believe he has the heart to do the right thing and the intelligence to surround himself with the people necessary to accomplish it.  He is not a utopian nor an ideologue.  He is practical and progressive.  

But my hopes are not really pinned on Barack.  My hopes are pinned on the American people to awake from our long post-9/11 slumber.

My hope is that no matter who we put in charge of the White House in '08, we will begin working together, talking together, reaching consensus on those issues on which we can agree, forgiving one another for our inability to solve those we cannot; and, building coalitions of those willing to put aside their personal grievances so that we can rise to the unprecedented global challenges that face us.

Why Mediators?

What is the first step in a mediation?  The creation of hope and safety.  And after that?  Communication, reality-testing, and problem solving conducted by locating our mutual interests and finding ways to satisfy them.  Reconciliation, forgiveness.  Dare I say justice.

This is not work for the weak-willed.  It is not work for those with stars in their eyes.  It is not work for ideologues or utopians.  It is work for those, as Ken Cloke says, who are hopeful at heart and pessimistic of mind.  For those who combine a fine skepticism with the courage (and humility) to reach across the aisle, cross the political divide, listen to those with whom we most violently disagree and seek solutions.

In all of this, we must realize that we are not creating a world without borders.  We are simply recognizing it.  We are one, united, inseparable, inter-dependent, fragile and worthwhile.  Every one of us.

As James Agee wrote of our responsibilities in depression era America:

In every child who is born under no matter what circumstances and of no matter what parents, the potentiality of the human race is born again, and in him, too, once more, and each of us, our terrific responsibility toward human life: toward the utmost idea of goodness, of the horror of terrorism, and of God.

James Agee, Let Us Now Praise Famous Men

That's green.

I tag Justin Patten, Paula Lawhon, and Jan Schau.

Mediation vignette. 

CCP 1942 tenant v. landlord action. 

Pl: This is a no-brainer. 175k

Def: They must be (expletive deleted) joking, offer 5k

Pl: They don’t understand the law. 134k

Def: This has only nuisance value. 20k

Pl: We are certain to get an award of attorney fees. Atty fees are 75k and counting.

Def: They are liars. Atty fees cannot exceed 10k

Mediator: Let’s deal with atty fees separately.

Pl: OK. 50k plus atty fees. (At this point, fees not specified.)

Def: No, we won’t settle piecemeal. 30k total.

Mediator: Hmm.

Def: 45k is our absolute max.

Mediator: How about 50? It’s an emotional number.

Def: (Thinks deeply). We will never offer it. But if they demand it, we will accept. Offer good for 10 minutes.

Pl: Good grief. Must talk with client privately and call co-counsel.

Mediator: Takes break and contemplates universal peace.

Pl: OK, 50k

Def: OK, 50k

It's common to blame your lawyer when dispute management goes awry in the executive suite, even when the client is former Time, Inc. EOC, Norman Pearlstine (book here and Senate testimony here) and the attorney is "[o]ne of America's most ferocious defenders of the First Amendment, Floyd Abrams."

In today's NYTimes, Adam Liptak reviews Pearlstine's public charge that Abrams "gave [Time] less good advice than [it] deserved" in responding to subpoenas issued by the Special Prosecutor during his investigation into the disclosure of CIA operative Valerie Plame Wilson's identity.  (For the full article, see Editor’s Charge: His Lawyer Fell Short).

Though not agreeing with Pearlstine's evaluation of Abrams' motives -- that he was "more focused on overturning Norman Pearlstine Branzburg  v. Hayes . . . reject[ing] First Amendment protection for confidential sources, 'than on pragmatic ways in which [Time] might fashion a compromise'  - Liptak concurs with Pearlstine's "broader point" that  

Time, like The Times, seems to have misplayed its hand. While it is impossible to know if the two news organizations and their reporters could have found a way to respond to [congressional subpoenas] short of a constitutional battle royale, it seems pretty clear that they could have tried harder to look for a compromise. . . . Time’s fundamental misstep was its astonishing failure to approach Mr. Rove for permission to cooperate in the investigation."

Zealous Advocates and Negotiation Pros

No matter how complicated a game of football subject to Monday morning quarter-backing might be, it pales in comparison to the immensely complex and sophisticated commercial and legal strategies that must be planned, launched and managed in response to a Congressional subpoena (and yes we have grappled with the monster for our pro bono clients).  

But the purpose of this comment is not to call into question either Mr. Abrams' legal advice or Mr. Liptak's belief that the decision not to approach Mr. Rove for permission to cooperate in the investigation constituted an "astonishing failure."

Rather, we ask ourselves and our readers again whether there ought not be a representational "balance of powers" when the legal, professional, societal, political and commercial stakes are so high.

We lawyers do like to represent ourselves as Jacks of all trades -- negotiating a settlement here; drafting a compelling appellate brief there; cross-examining a witness within an inch of his life today and strategizing a long-term legal and commercial strategy in response to a thermo-nuclear patent infringement action the following week.

But, really.  We're just not all 100% top-of-the-class, flat-out brilliant at everything. 

When a client wants a zealous advocate, willing to burn the enemy's crops for a litigation advantage, he's not likely to also get Mr. International Diplomacy in the bargain.  One General Counsel once told me that her (Fortune 50) Company didn't let the litigators and trial attorneys "in" on the overall plan, particularly settlement strategy, because they wanted them to be combat-ready at all times.

The Interdisciplinary Approach to Bet-the-Company Litigation

Once again we're recommending an interdisciplinary response to litigation, particularly when the enterprise's survival or the survival of its fundamental principles are at stake.

Whether or not you'll want to hire an outside settlement team, you'll definitely need a strategic planning in-house negotiation guru to do that which "one of America's most ferocious defenders of the First Amendment" shouldn't be expected to do.

We will say it again and again.  Litigation is a business negotiation being conducted in the courts.  The litigators need to be focused on the law; the parties' positions; legal strategy; and, most importantly, that which they do supremely well for a living -- WINNING.

Business, however, is not a legal negotiation being conducted in commerce.  It is a multi-faceted enterprise with commercial (as well as societal and political) interests that can be advanced or deterred by the quality of its management.

When you need a negotiator to approach the likes of Carl Rove, you do not ask Floyd Abrams to do it.  You find a lawyer or a political ally who is skilled at working Washington relationships.  No matter how masterful the litigator, s/he is not in charge of the war, only one of its many battles.

CEO's who blame the lawyers on their watch for strategic missteps are missing the point.  Lawyers are commercial foot soldiers -- some skilled at flying B-52's; others at triaging the wounded; and a few, very few, at planning the grand strategy to take a City or withdraw from it with honor.

The lawyer, no matter his credentials, is a member of the team and should be deployed by the CEO as best suits his or her skill, education, experience, talent and drive.

As Sun Tzu instructs in The Art of War,

A sovereign of high character and intelligence must be able to know the right man, should place the responsibility on him, and expect results.

(photo by Christopher Chappalear)

Check out Bob Steinberg's article in the San Francisco Daily Journal, Influencing the Mediator. 

Bob's article -- the tip of a trend -- stresses "winning" the mediation by canny, savvy, sophisticated and sometimes just flat-out tricky negotiating tactics. 

Like what?   Like squeezing the mediator into a small room at a round table with your team to undermine his authority on your side while at the same time proffering a large rectangular table to the opposition in the hope that the mediator will sit at its head, thereby increasing his influence upon your opponent (assuming, that is, you decide you want the mediator influencing your opponent and aren't concerned that the buddy-buddy atmosphere you're creating won't lead to disclosures you'll later wish you hadn't made).

I know Bob and like him.  He's shrewd and frighteningly intelligent.  I wouldn't play poker with him or black jack because I know he's capable of actually counting the cards.  He probably knows more about negotiation than most litigators of similarly seasoned years because, as a transactional attorney, he surely negotiated and closed more deals in a single year than his adversarial counterparts did in a decade.  

And just as some clients choose their litigators to fit the fight (an unreasonable obstreperous fight-ready trial lawyer for case A and a cordial, collegial sort for case B) lawyers will want to choose their mediators to fit the type of work they believe that mediator will do best.     

Still, I have reservations about Bob's proposals (which are increasingly being made by many attorneys and mediators) including:

• the benefit that might be lost by continuing to treat your adversary like . . . . well . . . an adversary, rather than as someone with whom a creative business deal might be struck if the attorneys and the mediator would loosen up their control long enough to let the business people do what they do best -- plan for a successful future by drilling down into both parties' commercial interests in an innovative way (cf. Sun Microsystems' Jonathan Schwartz's motto -- Innovate, Don't Litigate); and, 
• the likely dreadful set of unanticipated consequences that too often flow from attempting to control an inherently unpredictable and multi-determined process -- one with so much greater depth, texture, nuance and possiblity than any poker game could ever possess.

There is certainly a time for measured responses, poker faces, cozying up to the mediator or letting him (or her!) know who's really the boss.  I don't believe, however, that flat-out game-playing and "psyching out" the other side will result in the type of agreements you and your clients are looking for -- not only creative ones, but also durable ones. 

Go ahead, let the client take the lead once in awhile.  Jim Smith didn't become the head of a division of Lockheed or Joe Richmond the President of Software, Inc. by changing the size of the conference table.  

And before abandoning this topic, let me leave you with a recent observation by Schwartz about leadership at Sun Microsystems from an interview entitled The Education of Jonathan Schwartz by Stephen Shankland of CNET News.com. 

[a] leader has courage, and courage is the courage to innovate, the courage to collaborate, the courage to act with integrity--because that actually does take some courage--and the courage to do so with pace. You've got to be willing to brook the criticism and the critique from those who don't see the world the way you do. When people look back at who is Sun, they are not looking me; they are looking at 35,000 people.

[As the leader of Sun Microsystems] I want to do a good job of building a leadership culture . . .  I don't want there to be one voice [from Sun] to the marketplace, but I want that somewhere in that cacophony [of other Sun voices] to be a very clear and consistent message: here is what we're all about, here is what we can do and here is how we are going to march forward.

Rock on.

LaTrobe U's Conflict Resolution e-Journal, Volume One (June '07) is just out with my article on the subjective experience of money -- "The Cost of a Thing is Your Life."

It's been a good day here.  

And tomorrow's my one year blog birthday, for which I've prematurely posted a cake.

Blog gratitude list tomorrow!

There are other good articles in the e-Journal too.  I'm just having a narcissistic day for which I hope you'll excuse me.

(photo by Miss Meshell)

If you're in need of authority to enforce an existing  (but perhaps ambiguous) settlement agreement, take a look at today's 2d DCA opinion, Osumi v. Sutton. 

In holding that the trial court had "the power to extend the deadline for the performance [of a real estate sales settlement contract] in favor of a party who was not at fault for the delay and against the party who was at fault," the Court relied upon the following general principles favoring the enforcement of settlement agreements under CCP section 664.6.

In determining whether a valid settlement agreement under section 664.6 exists, the trial court,

• acts as the trier of fact
• may consider oral testimony
• may determine the motion upon declarations alone
• may consult his [or her] own memory if s/he was the settlement officer presiding over the challenged settlement

More importantly, although "nothing in section 664.6 authorizes a judge to create the material terms of a settlement, as opposed to deciding what terms the parties themselves have previously agreed upon,"

[o]nce the parties have reached a settlement . . . they 'may not escape their obligations by refusing to sign a written agreement that conforms to the oral terms' [and] with our policy favoring settlements, we resolve all evidentiary conflicts and draw all reasonable inferences to support the trial court's finding that these parties entered into an enforceable settlement agreement and its order enforcing that agreement. The trial court here did not create a material term of the settlement.

Remember, however, that enforcing the oral terms of a mediated settlement agreement may be much more problematic than enforcing those of an agreement reached in a mandatory settlement conference before a Judge.

From Slate, a year of Blogging the Bible by David Plotz, comes to an end.  It all starts here.

And not a minute too soon to cure our national Biblical Illiteracy as reported by this Sunday's Book Review of Religious Literacy, described as "Stephen Prothero’s jeremiad about declining religious knowledge."

How does this relate to conflict resolution?

Read the headlines lately?

For an anthropologist on Mars look at reading the Bible, check out Julia Sweeney's hilarious and touching Letting Go of God.  And for a modern and deeply felt re-interpretation of the story of Cain and Abel, listen to Am I My Brother's Keeper, also a This American Life classic, by Jonathan Goldstein.

And finally, for a set of compelling audio programs on religion and dispute resolution, click here.

Last week, along with my extern, Pepperdine Law School and Straus ADR student Cameron Mitchell, and my friend, the actor, musician, and singer-songwriter Lisa Douglass, I presented an Improv Seminar on Peacemaking in a Tit for Tat World using Baz Luhrman's hypnotic Romeo + Juliet as a jumping off point. 

The Seminar was sponsored by the L.A. County Bar Association's Dispute Resolution Services and the SCMA's Salon Series.  Thanks to Kathryn Turk of the West Hollywood Community Mediation Center and Jan Schau, President of the SCMA for the opportunity and facilities to host the Salon.

This is one the scenes we used to demonstrate how dangerous peacemaking can be in the absence of conflict resolution skills, particularly in response to an intractable conflict where communication is non-existent or diminished, the conflict itself is ritualized and celebrated, and extreme positions encouraged, as we see here, resulting in Mercutio's death.

We used an excerpt of Ken Cloke's article Mediators Without Borders: A Proposal to Resolve Political Conflicts as a teaching tool and many in attendance asked for the text.  I've therefore summarized the important points we covered at the seminar and linked to the article above.

Five Strategies for Intervention in an Intractable Conflict

1. actively encourage the open expression of the rage and grief stirred up by the conflict in a context that is constructive and oriented to resolution and reconciliation, such as that used by the South African Truth and Reconciliation Commission. 
2. dismantle the prejudices and stereotypes of the “enemy” through a combination of bias awareness, storytelling, dialogue, collaborative negotiation, and strategic planning techniques.
3. develop skills within local neighborhoods and communities in group facilitation, public dialogue, strategic planning, collaborative negotiation, and peer mediation.
4. encourage forgiveness and reconciliation by creating openhearted communications and direct dialogues between former antagonists.
5.  institutionaliz[e] these skills so that future conflicts can be resolved without coercion or violence.

More on all of this later next week.

Attorneys routinely claim that their negotiating partners are acting in "bad faith."  But what does that mean?

In our recent Negotiation and Justice Survey, we asked our attorney, negotiator and mediator respondents (78 of them) to define bad faith in negotiations.  Having no authority to settle, refusing to listen to the other side, and failing to bring the decision makers to the negotiation are the most commonly cited instances of "bad faith" tactics in negotiation or mediation.

In response to our own formulations of potential bad faith negotiation tactics, the results were as follows:

A party lies about facts important to resolution                                      83%
A party lies about its "bottom line."                                                           23%
A party withholds information important to a "fair" deal.                      51%
A party refuses to compromise (with good reason)                              4.5%
A party refuses to compromise (without good reason)                       59.76%
A party doesn't compromise enough                                                        3.4% 

Here are all of the "unique" responses: 

1. stonewalling or frustrating the process unnecessarily 
2. acting out of a desire to punish the other or vindicate one's self
3. using the process for discovery
4. proceeding with no intention of exploring opportunities for settlement
5. taking advantage of a power imbalance which the mediator does not address and ameliorate
6. consciously taking advantage of the mediator's bias
7. negotiating unreasonably or intractably
8. prolonging the process by engaging in irrelevant conversation so that all parties are not given equal time
9. using hardball tactics meant to corner or trick the other party into submission
10. arriving unprepared and refusing to acknowledge it (2 separate comments)
11. threatening to engage in future unfair practices 
12. being unwilling to go through the entire process
13. asserting and maintaining an unreasonable position
14. failing to show up 
15. refusing to listen (5 separate comments)
16. refusing to provide necessary documents 
17. arriving with no settlement authority or without decision makers (6 separate responses) 
18. misrepresenting or mischaracterizing the client's case to one's own client
19. refusing to discuss interests
20. persisting in discussing positions
21. trying to bully the mediator or the other party

Thanks to Diana Skaggs of the Kentucky Divorce Law Journal for alerting us to the Kentucky Law Blog's post Court of Appeal Affirms Trial Court's Award of Mediation Fees for Party Failing to Attend

Here in California, and I suspect in many other states, the Court cannot sanction "bad faith" negotiations because all of the parties' communications at a mediation are confidential.

I've often had attorneys ask me, however, whether they can bring to the Court's attention the fact that a claims adjuster, for instance, did not "show" at the mediation.  Can't they seek sanctions for that "bad faith" they ask.    

This is the question the Ky Law Blog asks and answers today under Louisiana law as interpreted in a nonpublished appellate opinion, Sullivan v. Anderson.  In that case, writes attorney and blogger Michael Stevens,

the defendant's attorney . . . arranged for the date, time, location, and mediator and notifed the pro se litigant who did nothing.

[A]ffirming [the trial court] . . . a Jefferson Circuit Court . . . held that although a party was not obligated to attend the "agreed" upon mediation, he was obligated to notify the other side he would not attend so as not to waste the mediator's time. . . [The appellate court opined]

We agree with [the pro per plaintiff] Sullivan and the trial court that Sullivan was not obligated to attend the mediation since it was not ordered by the court. However, [defense counsel] did not have any reason to know that the parties had not agreed on mediation since Sullivan did not inform her that he did not agree to the arranged mediator and mediation date. [*]

 A Kentucky court “may invoke its inherent power to impose attorney's fees and related expenses on a party as a sanction for bad faith conduct, regardless of the existence of statutory authority or remedial rules.” (citations omitted).

The Parade of "Bad Faith" Mediation Horribles

Mr. Stevens justifiably marches out the following parade of horribles that this opinion could lead to, such as awards of sanctions when:   

• the insurance defense lawyer shows up at mediation without the adjuster or the insured and rel[ies] upon the adjuster's attendance by telephone[;]
• the adjuster in attendance . . . not hav[ing] settlement authority extending to the policy limits[;]
• the adjuster ha[ving] to leave early[; and,]
• the adjuster with higher authority [not being] available by phone, or . . . delays in contacting the adjuster by telephone[.]

Are Sanctions Available in California for "Bad Faith" Mediation Practices?

California's mediation privilege is codified in Evidence Code sections 1115 et seq.  As most California practitioners are well aware, our Supreme Court has strictly construed these provisions.     

Because Evidence Code section 1120 expressly exempts any "agreement to mediate a dispute" from the protections of section 1119, a California court could presumably sanction a party for failing to appear at an agreed upon (or court ordered) mediation.  

Here in California, however, an award of such sanctions presumably could not include all or part of the mediator's fee because our Supreme Court has held that a party may not be ordered to pay a private mediator in the first instance.     

Moreoever, a party''s mediation conduct, such as a defendant's failure to bring a claims adjuster or the plaintiff's attorneys failure to bring his client, would not likely subject either party to sanctions.  

Section  1119(c) prohibits a party from disclosing "[a]ll . . . negotiations . . by and between the participants in the course of a mediation or a mediation consultation."  Interpreting this section broadly and strictly as our Supreme Court requires would likely result in the denial of sanctions because the choice of individuals to represent party interests is an integral part of the "negotiation" between the parties.  **     

Finally, section 1119(a) most certainly forecloses an award of sanctions based upon offers made or not made during -- or authority possessed or not possessed at -- a mediation.  Those facts could only be learned as a result of something "said . . . for the purpose of, in the course of, or pursuant to a mediation" and therefore fall squarely within section 1119(a).    

_________________

**  We find this one of the strangest and most illogical formulations we've heard from any appellate court anytime, anywhere -- a dangerous one at that -- and contrary to the law of contracts.  Since when does an agreement exist when party A proposes X to party B, who does not respond?  Since when is an agreement formed when party B neither accepts nor rejects it?   

(photo by Ashley Dinges)

If you're entering the job market, you'll want to check out Forbes' Magazine's Tips for Negotiating Your First Salary.

If you do not negotiate your first salary, you stand to lose half a million dollars over your lifetime. 

Who says?  The women who brought you Women Don't Ask: Negotiation and the Gender Divide

And for women entering the job market, here are the grim statistics: 

• women's earnings relative to men's have stagnated at 73.2 percent.
• In surveys, 2.5 times more women than men said they feel "a great deal of apprehension" about negotiating.
• Men initiate negotiations about four times as often as women.
• When asked to pick metaphors for the process of negotiating, men picked "winning a ballgame" and a "wrestling match," while women picked "going to the dentist."
• Women will pay as much as $1,353 to avoid negotiating the price of a car, which may help explain why 63 percent of Saturn car buyers are women.
• Women are more pessimistic about the how much is available when they do negotiate and so they typically ask for and get less when they do negotiate—on average, 30 percent less than men.
• 20 percent of adult women (22 million people) say they never negotiate at all, even though they often recognize negotiation as appropriate and even necessary.

Women Suffer When They Don't Negotiate

• By not negotiating a first salary, an individual stands to lose more than $500,000 by age 60—and men are more than four times as likely as women to negotiate a first salary.
• In one study, eight times as many men as women graduating with master's degrees from Carnegie Mellon negotiated their salaries.
• The men who negotiated were able to increase their starting salaries by an average of 7.4 percent, or about $4,000.
• In the same study, men's starting salaries were about $4,000 higher than the women's on average, suggesting that the gender gap between men and women might have been closed if more of the women had negotiated their starting salaries.
• Another study calculated that women who consistently negotiate their salary increases earn at least $1 million more during their careers than women who don't.
• In 2001 in the U.S. women held only 2.5 percent of the top jobs at American companies and only 10.9 percent of the board of directors' seats at Fortune 1000 companies.
• Women own about 40 percent of all businesses in the U.S. but receive only 2.3 percent of the available equity capital needed for growth.
• Male-owned companies receive the other 97.7. percent.

Women Have Lower Expectations and Lack Knowledge of their Worth

• Many women are so grateful to be offered a job that they accept what they are offered and don't negotiate their salaries.
• Women often don't know the market value of their work: Women report salary expectations between 3 and 32 percent lower than those of men for the same jobs
• men expect to earn 13 percent more than women during their first year of full-time work and 32 percent more at their career peaks.

You Can Do It

It's not that we're not good negotiators.  A Harvard study (which I'll find & link to later) showed that women negotiated as successfully as men when they were negotiating for someone else!

So just pretend you represent yourslef and go for it.

Fear Factor:  Letting a Jury Decide Your Case

What drives the settlement of all cases involving personal injuries and even those opponent-neutral disputes between commercial competitors? 

Fear of juries, of course. 

Juries are the "better" (or "worse") alternatives to negotiated agreements that mediators talk about when they throw around the acronyms BATNA or WATNA (see mediator Jessica Notini's excellent primer Effective Alternatives Analysis In Mediation: “BATNA/WATNA” Analysis Demystified).  

The Elephant in the Settlement Room

Even though Adam Liptak's New York Times Select article, Oddity in Picking Jurors Opens Door to Racial Bias, concerns death penalty cases, the means of choosing the members of the final 12 (or six in federal court) also drives civil justice in America.    

The referenced "oddity" in American trial law?  The peremptory challenge that permits lawyers to exercise more or less control over the final composition of the jury than some believe is warranted in an aspirationally color-blind justice system.  As Adam Liptak reports,

Justice Thurgood Marshall wrote that . . . . “peremptories inject [racial discrimination] into the jury selection process[, the elimination of which] . . . “can be accomplished only by eliminating peremptory challenges entirely.”

Two years ago, in the Miller-El case, writes Liptak, "Justice Stephen G. Breyer appeared to endorse that view, saying that “peremptory challenges seem increasingly anomalous in our judicial system[,]”  writing that 

 England has eliminated peremptory challenges but “continues to administer fair trials based largely on random jury selection.

Liptak concludes by suggesting that

Peremptory strikes are an odd and arbitrary historical artifact. Unlike equal protection, they are not guaranteed by the Constitution, and in capital cases — where race matters most — they would not be missed.

The settlement angle on this?  You can see it coming. 

In American urban courtrooms throughout the country, settlement decisions are commonly based upon the probable racial, ethnic, gender, and socio-economic composition of a jury that will eventually give their thumbs up or down on the Plaintiff's case.  If settlement decisions are governed by audacity on the Plaintiffs' side and fear on the defense side, both are often pinned upon the presumed "passion and prejudice" the "have nots" will bring to decisions affecting the "haves."  

And as the gulf between these two groups widens, the fear on the defense side has become more palpable.  *

Is this any way to run a justice system in a racially polarized society?

The White Reaction to the Black Reaction to the O.J. Verdict

We talk about "race cards" in this country because of the O.J. Verdict.  It wasn't so much the result of the O.J. trial that shocked America, as it was was the white reaction to the black reaction to the verdict. 

As Harvard Professor Henry Louis Gates, Jr. wrote in the aftermath of that trial (Thirteen ways of looking at a black man’ (23 October 1995), the phrase 

’ “race card” … itself infuriates many blacks. [Federal Appellate Court] Judge Leon Higginbotham Jr. . . .[said of] charges that Johnnie Cochran played the race card. “This whole point is one hundred per cent inaccurate. . . . If you knew that the most important witness had a history of racism and hostility against black people, that should have been a relevant factor of inquiry even if the jury had been all white .. .

[Academic and activist] Angela Davis [says] ... “Race is not a card,” she says firmly. “The whole case was pervaded with issues of race.” ’

Is Race a Card?

This is too big a question for this post.  I grapple with this issue an upcoming article in the LaTrobe University Dispute Resolution Journal (Vol. No. 1, so you won't yet find it online) and will link to it when it is published.

Let's just say this.  The jury is, as it was meant to be, a microcosm of the society.  Though originally meant to be comprised of people who were witnesses or who could track down witnesses to directly learn about the events giving rise to the dispute, over time the jury became a presumably neutral body that would determine credibility, "find facts" and, with the Judge's instructions, apply the law to the facts the jury deems the more credible.  

In analyzing the potential pre-trial settlement of an action, the attorneys consider everthing to be a potential "card."  If the stakes are high enough, they hire jury consultants to advise them how to select a jury that favors their side because trial lawyers are advocates looking for a jury that will be prejudiced in their favor.

This is not news.  It is the judge and the jury that are supposed to be neutral, not the trial attorneys.  And if they can increase their chances of winning by leaving African Americans or Koreans or the marginally employed on a jury, they will do so.  If it helps their case to use their peremptories to empty the jury box of women or Gen-X'ers or engineers or African-Americans, they will do that too.

And This Has What To Do with Settlement?

For a negotiated agreement to do the job of resolving the dispute in a better way than its alternative -- trial -- the parties and the mediator will have to grapple with the racial and ethnic and gender elephants in the room.  

And it may just be that a mediator who is capable of setting aside his or her prejudices long enough to look past issues of race, ethnicity, nationality, obvious religious affiliation, and gender, might be the one who is most capable of helping the parties achieve something that resembles justice.  

_____________________________

*     By the 1980s the United States had become the most unequal industrialised country in terms of wealth. The top 1% of wealth holders (the ‘Super Rich’) controlled 39% of total household wealth in the United States in 1989, compared to 26% in France in 1986, about 25% in Canada in 1984, 18% in Great Britain, and 16% in Sweden in 1986. More than 46% of all outstanding stock, over half of financial securities, trusts, and unincorporated businesses, and 40% of investment real estate belong to the super rich. The bottom 90% are responsible for 70% of the indebtedness of American households. Wolff, How the pie is sliced: America's growing concentration of wealth’ (1995) 22 The American Prospect 58.

I've been reading Stephanie West Allen's Renaissance Woman Blog, Idealawg, ever since I began blogging myself just about a year ago.

Here's the really really really good news.  Stephanie has started a new blog, Brains On Purpose™ Neuroscience and Conflict Resolution in collaboration with Jeffrey M. Schwartz, MD.

Check out their upcoming seminar in January in San Francisco as well.  

The blog is brand spanking new and I, for one, am greatly looking forward to getting a large part of my ADR-Neuroscience reading from these two experts in the field.

Add them to your news reader today!