Negotiation Law Blog

(still photo from The Meaning of Life)

When I was eleven years old (or so) and trying to figure out the world, the heavens, the existence of God, eternity and the theory of relativity along with the impedimentia of puberty -- then including garter belts, curlers, braces, nylons and the strange and frightening rituals of social class based upon the speed with which you were able to migrate from jacks and jump-rope to Seventeen Magazine -- I had a major ephiphany about what heaven was..

Being the major geek I was (and obviously still am) the answer was as follows:

Heaven Is Complete Knowledge; In Heaven, I'd Know and Understand Everything from the Origin of the Universe to Why My Dad Kept Getting Fired.

Little could I know that I was describing my own actual, nearly achievable Wikipedian, LinkedIn, Google-Knowledge-Based Future.

Today, courtesy of Concurring Opinions (and my fractured-rib housebound "might as well blog" state, I found Shaming Shirkers or Shunning the Sickest with a link to the Stanford Philsophy Encyclopedia online.  More particularly, I found this essay on incommensurability, which I could have used while writing my masters thesis on The Subjective Meaning of Money.

Why should negotiators care about incommensurability?  Because litigators and business people deal with it every day of the week, every week of the month and every month of the year.  

The problem that most bedevils litigators the most when attempting to settle a lawsuit, for example, is how to value losses that cannot easily be measured in quantifiable terms.  And more difficult than that -- how to convince a jury that they should reduce personal, emotional losses to monetary terms -- a task that many people find not just difficult, but odious and immoral.

The Incommensurability of Injuries for Which Parties Seek Monetary Compensation

As I note in my thesis:

Difficult as it may be to reach a verdict that finds the defendant liable or not liable for a negligently caused injury, it pales in comparison to the nearly impossible mental and emotional work of assigning monetary value to non-economic harms such as humiliation, unresolved physical or emotional pain, or the loss of a loved one.

When presented with that task, the idea of value itself begins to collapse under the weight of its own first principles. Why does anyone pay $1,000 for a pair of Jimmy Choo shoes? $10 million for an early Hockney? $10,000 for the fresh ova ‘harvested’ from the womb of an Ivy League college girl of suitable parentage and social class willing to trade her fertility for help with her tuition?

Such matters are generally considered incommensurable, i.e., one cannot be substituted for the other nor any two incommensurables treated as part of a single category to permit assignment of value and potential rational exchange.

Attempting to value incommensurables creates great discomfort and cognitive dissonance at a minimum and defies valuation at a maximum. Social, cultural, political, legal, artistic
and professional communities are often responsible for creating and defending boundaries between commensurables and incommensurables.

These include 

art critics and museum professionals who certify some objects are masterworks...; attending physicians who invoke clinical wisdom and professional privilege to designate some medical cases extraordinary...[;]intimate others [such as] the others and fathers of premature newborns...who are encouraged by hospital staff to name their babies, dress them in clothes brought from home, personalise their ward cribs with toys and photographs, and otherwise mark their infants as unique [; and,] organisations...that designate official historic sites, landmark neighbourhoods, nd wildlife habitats... Whether they are priceless artworks, national treasures, or precious children, incommensurable things are often regarded as somehow sacred, and like all sacred objects, their distinctiveness is defined through symbols and ritual [such as] the sequestering of certain cash…[that] define[s] it as money for distinctive purposes and thus incommensurable with other savings.

For the complete article, click here.

Stanford Wisdom on Incommensurabilty to the Rescue

The Stanford Encyclopedia entry directly addresses the difficulty of the law's project of compensating people for harms that are not readily reducable to quantative or monetary values:

Value incommensurability also has been considered with respect to the law. Matthew Adler discusses the variety of ways in which legal scholars have engaged the topic of value incommensurability. One question is whether the possibility of value incommensurability poses a problem for evaluating government policy options and laws, more generally. Some authors respond that it does not.

Cass Sunstein, for example, argues that recognition of value incommensurability helps “to reveal what is at stake in many areas of the law.”  According to Sunstein, important commitments of a well-functioning legal system are reflected in recognizing value incommensurability.

More generally, a number of scholars have focused on the relation between value incommensurability and the structure of social and political institutions. John Finnis, for example, takes the open-endedness of social life to render it impossible to treat legal or policy choices as involving commensurable alternatives. Michael Walzer’s account of distributive justice also relates value incommensurability to the structure of social and political institutions.

According to Walzer, different social goods occupy different “spheres,” each one governed by a distinct set of distributive norms. What is unjust is to convert the accumulation of goods in one sphere into the accumulation of goods in another sphere without regard for that second sphere’s distributive norms.

Underlying Walzer’s account, it seems, is a commitment to a kind of constitutive incommensurability. Given its connection to the possibility of plural and incompatible ways of life, the concept of value incommensurability also plays a role in many accounts of political liberalism, including Joseph Raz’s account and Isaiah Berlin’s account. It is the latter’s inquiry into the relation between incommensurable values and political institutions that can be credited with motivating much of the contemporary inquiry into value incommensurability.

How to accomplish this task (and understand these principles in lay terms) next week.

In recommending Bargaining for Advantage: Negotiation Strategies for Reasonable People by G. Richard Shell; Negotiate to Win: The 21 Rules for Successful Negotiating by Jim Thomas; and, my favorite Beyond Reason by Fisher and Shapiro as the three Best Business Books [on] Negotiation to arrive on our commercial shore in 2006, reviewer Nikos Mourkogiannis  of Strategy + Business outlined the three essential elements of every negotiation -- art, science and wisdom.

We reprint an excerpt below and link to the full article above.  

E]very negotiation involves three fundamental elements: art, science, and wisdom.

Artistry is always involved, because negotiations can never be fully planned; the circumstances vary too much. At the heart of even the most mutually beneficial negotiation, there is always a haggle between two conflicting positions. A creative solution can clear a stalemate and produce agreement, but not by eliminating or resolving the conflict; rather, by suggesting new, acceptable concessions that make the conflict less intense. Making this happen is the art of negotiation.

The second element is science. Why would one person ever concede anything to another? Because the first person judges that without that concession, the second person will walk away from the deal. The leverage held by each of them can be determined analytically: It can be expressed as the difference between the expected cost of the concessions and the cost of a failure to reach agreement. The science of negotiation is the process of maximizing leverage — what strategists call advantage — by analyzing this difference in cost (which is subject to change at any moment).

The third fundamental element is wisdom. Every negotiation entails some wisdom. Otherwise, we would just have open conflict. Wisdom is the ability to observe the negotiation as it evolves, so that one can seize the opportune moment just as Prince William did. Wisdom also involves the ability to anticipate the negotiation’s most likely results after the deal is struck. A skilled and ruthless negotiator may win every last demand, but never again be invited to the table. A cultivated sense of timing helps any negotiator reach his or her most important goals: to win the most critical concessions, or possibly to negotiate a change in the rules that will provide winnings forever without any more negotiations being necessary.

I'm lifting this post in its entirety from the Better than Misery blog out of Jerusalem.  This post is from a lecture by Robert Baruch Bush who wrote the ground-breaking book, The Promise of Mediation, with my former professor Joe Folger.  (for my interview with both men on the use of transformative mediation in commercial litigation, click here).

This simple formulation (extremely well summarized here) is pretty much the entire philosophical basis of my mediation practice -- even when it looks like I'm being a hard-#$% directive, evaluative, attorney-mediator. 

 

Something else that I learned at this conference, which I’m finding very valuable despite it only having ended today:

Professor Bush spoke deeply about the theory of transformative mediation. At the core of the theory is a set of cycles involving Empowerment and Recognition, the two elements that make the world of transformative mediation go ’round.

When we find ourselves in a conflict, whether we realize this or not, we experience two things:

1. Self experience: We first feel weakened, fearful, unsettled, unsure of ourselves - no more how strong and confident we may have been before the conflict.

2. Experience of the Other: We then move on to a self-absorption stage that involves discrediting the other party - because we are cloudy and unclear about ourselves, we can’t trust the other side at all. We totally alienate them.

It’s a very negative experience, clearly. It gets worse as the conflict intensifies. That’s the negative conflict spiral, and it’s a cycle of disempowerment and distance.

The interest here is to change the experience of the interaction. Right now, the interaction deteriorates because of the lack of competency and connection.

What needs to be done is two things:

1. The Empowerment Shift: We go back from weak to strong, from unsettled to calm. Confused to clear. Fearful to confident and inarticulate to articulate. We are changing the interaction from the point of the Self.

2. The Recognition Shift: Only once the Self has experienced the Empowerment Shift, then the Other can be taken care of. We go from self-absorbed to attentive. Defensive to open, hostile to civil. Suspicious to trusting and closed to open.

And that is when the interaction can become a positive experience, with the potential for resolving the conflict.

(photo by Jackie)

Every year on September 11, the Los Angeles County Bar Association sends teams of attorneys and judges to local area high schools to talk about the tensions between freedom and liberty.

I've participated in the Dialogues on Freedom program for the past three years and will participate again this year.  One year, my LACBA team's presence at a local area high school led to a textbook drive that put books in the hands of students who were using xeroxed copies of the "Street Law" text that their instructors, the amazing former attorneys the Kennedys are using for their Small Learning Community at Lincoln High School.  

Here's the flyer.  Join us! 

(right -- the wet part of the ocean -- photo by beglib at morguefile)

As we noted yesterday, some members of the insurance policy holder bar suggest that coverage counsel hold non-confidential "mediations," either by calling them settlement conferences or by agreeing that no party will subsequently assert the mediation privilege.    

Why?  Because policy holder counsel is concerned that the insurance carrier will commit acts of bad faith during the mediation without having to answer for its wrongful conduct due to the protections of the mediation privilege.

I propose here that talking about the confidential part of mediation is like talking about the wet part of the ocean.

Why?  Because confidentiality is what makes mediation possible.  It is what permits the parties to take a time out on the battlefield where everything we say and every move we make can and will be used against us. Private, confidential mediation time is a time when the parties can come together as people rather than as combatants.  And this is true no matter how many zeros follow the first number at issue nor how "fictitious" the "people" are.  Legal entities like corporations, after all, can and do work only through people who have personal interests at stake in, and genuinely felt emotions in response to, the litigation. 

Mediation time is a time when the law allows people to recognize that they share a mutual problem, one that yokes them together. It is a time when they can give up carrying the burden and cost of the dispute alone; a time when they are given the opportunity to realize that by drilling a hole in the other guy's side of the boat, they will sink their own.

But What About the Unremediated Bad Faith?

Mediation commences and ends on dates certain.  If the insurance carrier commits bad faith in refusing to accept a settlement offer during the mediation, you can rest assured that it will continue to commit bad faith thereafter.  So what if you can't reveal the offer and counter (or refusal to deal) that occurred during the mediation.  Make the same offer again after the mediation is over.  The carrier will once again respond with the same bad faith counter or the same refusal to deal.  Or, to your vast surprise, act in good faith and pay the claim and all damages associated with its earlier refusal to be accountable for the policy terms.

I cannot think of a circumstance in which acts of bad faith that take place during a mediation session couldn't or wouldn't be replicated both before or after that mediation session.  The carrier has 365 days of the year, 24-hours in the day and seven days every week in which to commit bad faith.  And the plaintiff may gather evidence of that continuing wrongful conduct on every single one of those days other than the day the parties mediate their dispute.  

All we're asking -- the alternative dispute resolution squad -- is one day -- a single day -- to assist you in the resolution of your lawsuit according to mediation principles and practices.  I don't think that's too much to ask, is it?

(left:  the talented Mr. Pasich)

A very very long time ago, I defended my first coverage deposition at a firm named Troop Meisinger. 

I'd just joined the Buchalter firm and was struggling to learn both the law of coverage and the folkways of the new practice, which were considerably more genteel than I'd previously experienced representing garment industry and entertainment clients.  Which is a low-key way of saying that I'd developed a fairly obstreperous defense style before joining the coverage bar.  

The morning of the first deposition day, the questioner was a young -- and extremely frustrated -- associate.  After lunch, the highly experienced policyholder litigator  Kirk Pasich appeared and more or less put me in my place.  

The years flew by and that old coverage gang of mine -- both prosecution and defense -- drifted to other law firms.  Still, most of them continue to handle coverage cases, including the prolific Mr. Pasich who subsequently founded the Los Angeles office of Dickstein Shapiro.

My husband (also counsel for policy holders) recently brought home Kirk's article, California's Mediation Confidentiality and Insurance Bad Faith, which I'm providing to you here.

Though I take issue with Mr. Pasich's conclusion (excerpted below) the article exhaustively and concisely summarizes every important mediation privilege case in California, a great boon for California practitioners in any field.  And for which I thank Kirk.  For this and for that early kick in the pants of which I was then in need. 

Here's his conclusion.

The California Evidence Code provisions regarding mediation clearly place restrictions on the ability to use mediation documents and communications outside the context of the mediation. Those restrictions must be considered. Parties should take practical approaches to ensure that if they need to use any mediation communications and documents, they can do so. Otherwise, parties should engage in a settlement approach that all participants agree or acknowledge is not a mediation or is not subject to Evidence Code section 1119 et seq. However, even in the absence of statutory exceptions or the required waivers, there is a possibility that an insured may be able to use mediation communications and records as evidence of a carrier’s bad faith.

My thoughts on the matter tomorrow.

Yesterday I wrote a pretty lengthy piece on theIP ADR Blog about the joke-theft controversy raging in Los Angeles (Funny, that was my joke) as covered by L.A. Times staff writer Robert W. Welkos. 

(MAJOR ASIDE:  You may be getting your news on the 'net, but remember that quality journalism continues to flow from the keyboards of dynamite reporters like Welkos, who, with co-writer Joel Sappell, gave us the brilliant six-part Scientology series in 1990, to the considerable risk of both men. Without newspapers, the blogosphere would pretty much fold itself up around yesterday's virtual fish and die there). 

Having now buried the lede, I give you the burning ADR-Internet question of the day that concluded the IP ADR Blog's post, Disputing Humor:  Comedy, Folkways and the Internet. .

A Conflict Resolution Process for the Future

Can we bring collaborative, value-creating dispute resolution norms and processes to this new culture? In other words, given the opportunity to create an entirely new way of resolving conflict in an entirely new culture, could we devise a system that is more self-determined, faster, cheaper, easier and softer on the people but just as hard on the problem as the old system was?

Could we abandon the adversarial paradigm because it's too expensive and cumbersome for the size and type of disputes that arise on the internet?

Could we build into that system the principles of accountability, forgiveness and reconciliation that are lacking in the present system -- a system that too often leaves people feeling so unresolved, so angry or bitter or frustrated?

I have no idea.

It feels good, though, to have finally formulated something of a question out of the chaos.

Please come on by and scrawl grafitti on our wall.

Here's one of those stories (Judge Criticizes Fee in Lawsuits) that people cite as good reason to hate lawyers (someone, by the way, recently said, you love your own lawyer and hate everyone elses').

This article, by Joseph Neff at McClatchy Newspapers, recounts a harshly criticized class action settlement that netted the attorneys nearly one million dollars in fees and the "injured consumers" $2,402.

Now, I've both prosecuted and defended class actions in my own legal career -- enough to do so competently, but not enough to know what I can't do.  I settled one of the few class-actions I defended for injunctive relief only (promises never to do the alleged bad deed again) together with a few hundred thousand dollars in attorney fees.

The Judge who approved this settlement is notorious for his refusal to approve class compromises that excessively reward the attorneys and inadequately compensate the class.  He is, for instance, a harsh critic of "coupon-only" settlements, i.e., settlements giving the class coupons to purchase the offenders' goods - settlements that act more as free advertising for the product than compensation for the plaintiffs.

Still . . . . if the class action is only marginally viable, it makes sense for the defendant (and the Court) to satisfy the attorneys with  an award of fees without making the defendant spend millions of dollars to compensate a class whose injuries or right to proceed is highly questionable.

Why the below referenced settlement met with the court's scathing criticism, we'll probably never know.  The big disparity in numbers coupled with the court's "outrage" (it's amazing how easily "outrage" comes to attorneys and judges, by the way) makes headlines.  The eventual resolution of the matter rarely does.

Link to the story and excerpt below:

RALEIGH, N.C. --An N.C. judge has harshly criticized the settlement of a class action lawsuit in which a Wilmington lawyer and colleagues received $950,000 in fees while injured consumers across the country were reimbursed a total of $2,402.

Superior Court Judge Ben Tennille decried the excessive fees and the lack of effort made to reach customers who had been overcharged for wheel alignments at Sears automotive centers. Tennille, who specializes in complex business cases, criticized Sears and the lawyers for trying to hide the settlement results from him.

"Their efforts to keep the results secret are understandable," Tennille wrote in his May decision. "The shocking incongruity between class benefit and the fees ... leave the appearance of collusion and cannot help but to tarnish the public perception of the legal profession."

Sears is appealing Tennille's decision and declined to discuss the case.

Gary Shipman, a Wilmington lawyer who led the class action lawsuit, attacked Tennille's order as wrong on the law and filled with factual errors. Shipman complained that Tennille issued his ruling out of the blue, two years after the last hearing in the case. And Shipman said the judge did not have jurisdiction and therefore did not have the power to make decisions in the case.

Read remainder of story here.

(photo:  Cohdra at MorgueFile)

Friday the thirteenth was (temporary) bad luck for Canadian consumers.  I say temporary because Ontario and Quebec have forbidden mandatory arbitration clauses and class action waivers.  The Canadian Supreme Court in the two cases discussed below held that in the cases before it those statutes could not be applied retroactively.

Though no Canadian Law expert (I was hipped to the Dell opinion by my Canadian buddy Michael Webster of the Due Diligence and Misleading Advertising Blog) it appears that a Dell mandatory arbitration and class action waiver clause is not against Canadian public policy (referred to by the Court as not against "public order.")  See the Canadian "The Court" Blog's article, "Is the Class Action a Public Order Institution," excerpted below.

Ironically, when the Dell and Rogers cases are placed in a larger social context, the public’s interest in securing the class action as a vital aspect of the public justice system could hardly have been rendered clearer. The Rogers case received much less of the court’s attention, having been carried through on Dell’s slipstream; however it is the features of Rogers’ mandatory arbitration/class action waivers on its consumer contracts that highlight the hollowness of off-the-bench judicial laments about access to justice for ordinary Canadians.

Both cases turned on the sublimely procedural question of whether an arbitrator or a Quebec superior court judge should have first kick at the can in deciding whether a mandatory arbitration clause on a consumer contract was enforceable or not. Such clauses preclude consumers from pursuing corporations in any kind of court action, including class action.

In both Ontario and Quebec the question has been rendered moot by amendments to consumer protection legislation which prohibit such clauses, underlining the public order aspect of the class action.

Read the rest of the article here (emphasis added).

Click on the image to see the article.

Don't get us wrong. 

We like arbitration when the parties have genuinely contracted for it. 

We're not great fans of adhesion contracts, however. 

Never have been. 

Never will be.

from Slash Dot we learn that the Washington Supreme Court has held that

[c]lass action waivers included in cell phone companies' contracts with customers are invalid in Washington State because they violate the state's Consumer Protection Act . . . .

Five plaintiffs accused Cingular of overcharging customers between $1 and $40 per month in roaming and hidden charges.

Cingular had an arbitration clause that required individual arbitration and prohibited class action litigation or class action arbitration.

We keep track of these class action waivers in consumer contracts because they are always coupled with an arbitration clause and must therefore overcome the strong federal preference for arbitration and the Federal Arbitration Act's preemption of most state laws that might restrict a party's "right" to compel private binding dispute resolution. 

See our previous posts on Sprint's arbitration clause here and here.

Because I recently invited a number of my professional and personal "contacts" to connect with my linked in network, I thought I'd post this YouTube video on how an internet networking service works.  I would give a tip of the hat to the blogger-friend who first posted this but I can't remember who it was. I'm not certain how it works, but here is how quickly your network expands.

This morning I had 31 "first degree" contacts; 600+ "second degree" contacts and 63,200 "third degree" contacts. By this afternoon, these contacts increased as follows:  41 "first degree" contacts, 1500+ "second degree" contacts and 110,000 "third degree" contacts.  Best of all, I exchanged emails with people I really shouldn't have lost track of.

No, I don't know what it means for my professional and business development.  I'll let you know.  In the meantime, run the video &/or view my linked in profile while deciding how you want to upgrade yours.

If you're not already acquainted with Harvard Business School's free weekly "Working Knowledge" newsletter, do let me introduce you here.  There's no better negotiation advice on the internet and when it's all too much reading, skim the concise "Executive Summaries" or, what the heck, check here from time to time and I'll alert you to the most interesting articles posted there. 

This week, Harvard professors John Davis and Deepak Malhotra give us Five Steps to Better Family Negotiations which, I must say, applies to every settlement negotiation that I help facilitate.

My own "executive summary" with excerpts below.  

1. Analyze the negotiation space:  this is a fancy way of saying identify all parties who have an interest in the matter being negotiated.  This seems obvious until you sit down with pen and paper (or keyboard and screen) and diagram not just the decision makers but also those, for instance, who will be called upon to put the terms of the agreement into action.  As Davis and Malhotra advise

 many of the parties affected by a negotiation, or able to affect it, will be around for a long time. It is dangerous to negotiate only considering the interests of those at the bargaining table when those who are not at the table will be affected by what is negotiated and can assert their rights or power in the future.

This doesn't mean that you should bring all of these people to the table, but that you are far more likely to achieve a durable settlement agreement if everyone's interests have been vetted prior to sending company representatives to the bargaining table.

2. Don't try to beat the other side

As Davis and Malhotra note, "most successful negotiations entail the possibility of mutual value creation, compatible if not aligned interests, and cooperation."  Although this advice also helps insure that an agreement will be durable, it also fosters an atmosphere in which the greatest degree of innovative "value creating"  problem solving can take place.

3. Understand the other party's interests, constraints, and perspective

If you think this applies only to family business negotiations, think again.  Robert McNamara (defense secretary under Kennedy and Johnson) lists "empathize with the enemy" as his first rule of war.  (for the illustrative story, follow this link and click on 1962, where you'll hear McNamara discuss (or where you can read a description of)  the negotiations that averted nuclear war with the Soviets during the Cuban Missle Crisis).  

Close to home, Davis and Malhotra advise: 

[T]o get what you want in negotiation, you often need to understand the other side's needs and interests so that you can "give a little to get a little (or a lot)." Even if the other side is entirely willing to help and is ready to give you what you want, it may be critical that you understand the constraints that he or she faces in meeting your demands. In other words, effective negotiation requires that you understand the other side's interests and constraints, and that the other party understands your interests and constraints. 

4. Avoid single-issue negotiations: identify and negotiate multiple issues simultaneously

Davis and Malhotra again:

Negotiators who negotiate multiple issues simultaneously are more easily able to recognize value-creating tradeoffs. . . . While any multi-issue negotiation is going to be complicated, the likely outcome is considerably worsened when negotiators become overly focused on a single issue or dimension. The far superior approach is for all parties involved to work together to identify all of the issues that are relevant in the current negotiation, and then identify which issues are most important to each person (and which issues each person can concede on).

5. Negotiate over interests, not positions

As Davis and Malhotra note, while the negotiating parties' positions may be irreconcialble and non-negotiable, often their interests can be satisfied without requiring them to compromise their positions.  For a lengthier discussion of interest-based bargaining, click here.

Ascertaining All of the Terms and Conditions of Your Cell Phone Service

(I'm using Sprint as an example only because the question posed to me related to Sprint -- I'm assuming most cell phone service agreements are the same, or at least substantially similar)

Because a reader asked, I learned today that the Sprint Cell Phone Service Agreement contains an arbitration provision. 

How did I gain this valuable knowledge?  Read on.  

A Trip to the Grocery Store   

On my way to the grocery store this morning , I drove by a Sprint outlet.  So I stopped, ran in, and had the following conversation with the Sprint representative.

"Can I get a copy of Sprint's service contract?"

"Huhhhhhhhhhh?????????"

"You know, the terms and conditions of the Sprint cell phone service plan."

"Uhhhhhhhhhhhhhh -- you mean the, uh, Plan Brochure?"

"Does it have all of the plans' terms in it?"

"Terms?"

"You know, the FINE PRINT?  the contract?  the parties' agreement if I sign up for service."

Smiling, "sure," she replies, handing me the brochure and graciously validating my parking ticket (the one with the waiver of the car park's legal responsibilities to me or my car printed on the back in 3-point type).    

Now that I've Read ALL the fine print in the Sprint brochure, I can tell ou that there is nary a mention, hint, suggestion or covert reference to "dispute resolution" or court or jury trials or arbitration. 

Nothing, Nada, Nichts.

I Should Have Gone On-line in the First Place to Find the Sprint "Terms and Conditions" of Service

At the very bottom (left hand corner) of Sprint's Plan Page you will find a link titled "Terms and Conditions." 

That's where you'll find your Sprint Cell Phone Service Agreement -- that adhesion contract I was talking about in my last post.  It is here where you will find that by signing up with Sprint (and likely all other cell phone providers) you agree to waive your Constitutional right to a jury trial [except in  California where the Supreme Court has refused to enforce pre-dispute jury trial waivers such as that required by Sprint here] and your Constitutional right of access to the courts. 

You also consent to submit any dispute you have with Sprint to binding arbitration under the authority of the Federal Arbitration Act and the rules of the National Arbitration Forum.  

The Arbitration Agreement Verbatim 

Your Agreement with Sprint Solutions, Inc. . . . includes terms of your service plan . . . and the most recent Sprint Nextel Terms and Conditions of Service . . . carefully read these all terms which include, among other things, a MANDATORY ARBITRATION of disputes provision.

The dispute resolution clauses are at the end of the Terms and Conditions (T&C's).  They provide as follows:

Continue Reading

(photo by Kim Sobanski) 

In apportioning wrongful death settlement proceeds among the plaintiffs under CCP 377.61, the Court is not limited to the evidence produced in the action nor that upon which defendant relied in caluclating the settlement sum.  The evidence in this case, however, did not  justify an allocation of settlement proceeds 90 percent to the daughter and 10 percent to her step-mother even though the daughter's witnesses testified that her father intended to divorce his wife.   

Corder v. Corder   2007 SOS 4351 

I recently had the distinct pleasure of interviewing IP litigator and mediator Jay Gordon Taylor about the arbitration and mediation of intellectual property disputes, the first part of which follows Jay's short bio below.

Mr. Taylor is a partner with the Indianapolis, Indiana law firm of Ice Miller.  His primary practice area is intellectual property law with a focus on patent, trademark, copyright, and trade secret litigation and mediation.

He also concentrates in business aspects of intellectual property law such as acquisition, sale and licensing of intellectual property assets, and computer hardware and software sale and licensing. 
  

Part I:  Arbitration of Intellectual Property Disputes 

MS. PYNCHON: Do you find that IP cases benefit from arbitration or is arbitration becoming so burdened with discovery, motion practice and the like that it’s little better than litigation?

MR. TAYLOR: I have never been a big fan of arbitration except in the case of international disputes. In my experience, arbitration has been only slightly less costly and time consuming. The absence of a right to appeal if the result is erroneous would caution me against arbitrating a patent infringement dispute again.

I once had a client who faced a potential $450 million infringement exposure after an arbitrator reached a very dubious interpretation of a license clause. Because the arbitral award was binding, there was no way to challenge the opinion. Luckily, we ultimately won by proving a combination of non-infringement and invalidity. That, however, came after years of litigation and tremendous cost, most of which could probably have been avoided if there had been an appellate process after the arbitral decision.

MS PYNCHON:   Do you believe the parties would likely have agreed to an appeal by one or more arbitrators before the arbitration commenced? 

MR. TAYLOR: No, the license clause which had been negotiated years before required binding arbitration. The parties were locked into that clause. 

MS. PYNCHON:  Would arbitration be more attractive to you today if your opponent would agree to arbitral "appellate" review?

MR. TAYLOR:  No.  I do not think arbitration with an appeal is appreciably more appealing (quicker, less disruptive and less costly) than litigation in federal court.

MS. PYNCHON: Would you arbitrate any patent infringement cases today?

MR. TAYLOR: I think arbitration can be beneficial in international disputes. Most foreign companies distrust the US court system and are accustomed to resolving disputes without litigation. There is the additional problem of enforcing a judgment against a foreign entity. If the foreign entity has no US presence or assets, the judgment can only be enforced only by initiating an action in the courts of the country where the entity is located. Courts of most industrial countries will enforce an arbitration decision without question whereas they might not enforce a foreign court decision.

In tomorrow's post, we'll continue our interview with Jay Taylor about the mediation of IP disputes.

(Fireworks by Lisataime)  

There's a nice article on those situations in which attorney-mediators might serve litigants as well, or better, than former jurists in the July 2 edition of Lawyers Weekly ADR (give them your name, rank and serial number and you'll get a free 6-week trial to see whether a subscription is worth the price).

The article is entitled Advantages Flow Both Ways When Attorneys Become Mediators and it is written by attorney-mediator F. Peter Blake /*.  

Except below:     

 

A lawyer with extensive courtroom experience is able, as a mediator, to understand and communicate the risks of mixed-blessing jury findings that give with one decision about a monetary award and take back with another that slashes the amount because contributory negligence was perceived.

To be sure, in court, even when you win, you don't always come away with what you thought you had won.

In the ADR process, parties often hear the "other side" of the case for the first time. It reinforces a humbling truth worth remembering: Very rarely does one side have a monopoly on valid arguments.

Just as important is the mediator's ability to avoid undercutting attorney-client relationships or compromising legal strategies. A knowledgeable lawyer is well positioned to navigate that sensitive course, respecting each side's need to avoid feeling coerced or backed into a corner.

The ADR process provides an open forum conducive to helping the parties involved in a dispute address the issues in good faith, explore acceptable remedies and shape the outcome. That sense of self-determination and of having a timely "day in court"— without gambling on six jurors unfamiliar with the issues — greatly increases the likelihood of satisfaction in the end.

When lawsuit adversaries emerge with an acceptable agreement they shaped after being heard by a dispassionate observer retained at their shared expense, justice is served. Sometimes the deal goes beyond dollars and cents to include an apology or expression of regret — a meaningful gesture no jury can provide.

Though I agree with Blake's analysis of the benefits of hiring an attorney-mediator, he writes primarily from an evaluative rather than a facilitative viewpoint.  I would therefore add the following to his list, particularly where the settlement being negotiated is one necessary to settle commercial litigation.  

• because most attorneys have run their own businesses (or at least participated in the management of their law firms) they are able to understand the business needs, desires, interests and fears of the commercial adversaries, i.e., they can speak the litigants' language
• former commercial mediator litigators, particularly when hired in a specialty industry such as the garment, manufacturing, professional services, and software  businesses (to name a few) also understand the complex relationships between counsel and client, as well as the communication gaps that can occur over time during the litigation of any commercial case. 
• the experienced attorney mediator not only knows how the lawyer views the case, having now mediated hundreds of commercial cases, s/he also knows how the clients continue to view the dispute (as a commercial, not necessarily a legal, problem) and how wide the gap between those two points of view can be. 
• because the attorney-mediator first made his living in private practice based upon his continued beneficial relationship with his clients and his reputation in the community, s/he is not only attuned to the way in which lawyer-client communication gaps can be bridged, but also how to leave both parties with their sense of justice, dignity, professionalism and humanity intact.
• perhaps most importantly, a commercial litigator-mediator knows how to plan, execute and close a deal.

There are more, but I must leave you to begin my holiday.

Happy 4th of July to you all!

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/*  Blake is a certified general civil mediator and founding partner at Detroit-based Blake, Kirchner, Symonds, Larson, Kennedy & Smith, P.C. His more than 25 years of experience includes mediations, facilitations, arbitrations and special case evaluations as well as representing plaintiffs and defendants in a range of civil litigation matters.

(photo from Millzero Photography)

I've got several streams of thought going about diversity this weekend. 

First of course is Parents Involved in Community Schools v. Seattle School District in which the new five-justice majority 

held that the consideration of race by school districts in assigning students to public schools in order to promote racial diversity violates the Equal Protection Clause, even though the Court had unanimously declared more than thirty-five years ago that such a policy "is within the broad discretionary authority of school authorities." 

Roberts, Alito and the Rule of Law by Geoffrey R. Stone, University of Chicago Law School professor and most recently the author of War and Liberty: An American Dilemma.

The New York Times tried to put a good face on the case this morning by quoting law professor Michael J. Klarman who argues that Brown v. Board of Education didn't really end desegregation -- the Johnson administration did when it committed itself to enforcing the Civil Rights Act of 1964 and H.E.W. threatened to cut off financing to segregated schools.  See Jeffrey Rosen's Can a Law Change a Society?   

Professor Klarman concluded by opining that "we're headed toward an ambiguous place where we're committed both to color-blindness and to diversity in public life" and that Seattle School District wouldn't "make much difference either way."

I guess that's as rosy as a liberal can get about the demise of the most important Supreme Court opinion in race relations in the country's history -- whether it delivered de-segregation "with all deliberate speed or not."  Brown v. Board has its own U.S. government National Historic Site for goodness sakes!  Are they going to dismantle it?

Being an optimist, I was recounting Professor Klarman's view to my husband on our way to today's Dodger game (how All American is that?). I suggested that American business itself had learned the value of diversity (see Professor Leigh Thompson's Making the Team) so maybe Klarman was right and Seattle School District wasn't as bleak a moment in U.S. Constitutional history as we'd been assuming.  None of which convinced him of anything other than to confirm his view of my unfortunate tendency to tear a silver lining from every dark cloud.

Bio-DIVERSITY, Get It?

Then I remembered our neighbor, Tony  -- the astral-orbital engineer -- you know, a guy who throws satellites up into space.  The one who wears a t-shirt that says "Yes, I AM a Rocket Scientist." 

Tony and I were talking about diversity in business one afternoon while he was fixing something or other -- the plumbing or the electricity (oh, the luxury of having a rocket scientist next door).  Finally, he turned to me, wrench in hand and said "BIO-DIVERSITY, get it?" /*

All of which takes me to the ADR Diversity Blog, which seems so full of any number of great things that I can hardly get my brain around it.  I'm certain to spend some considerable amount of time poking around its corners when I'm not about to sit down for my Sunday evening's guilty pleasure -- Entourage.

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*  Tony's point?  In the absence of biological diversity, life on earth would be quite impossible and we (humans) have repeatedly shown ourselves incapable of mimicking it ourselves.  See Wikipedia's entry, Biodiversity.

Biodiversity provides many ecosystem services that are often not readily visible. It plays a part in regulating the chemistry of our atmosphere and water supply. Biodiversity is directly involved in recycling nutrients and providing fertile soils. Experiments with controlled environments have shown that humans cannot easily build ecosystems to support human needs; for example insect pollination cannot be mimicked by man-made construction, and that activity alone represents tens of billions of dollars in ecosystem services per annum to mankind.