Negotiation Law Blog

I was a commercial, antitrust, IP and securities litigator long before I devoted nearly a decade of my practice to environmental coverage litigation.  In the process, I learned enough about Comprehensive General Liability ("CGL") coverage to make me worry about how well I'd served my commercial clients in regard to the insurance coverage potentially available to them.  

If you are a commercial litigator -- or any type of litigator who defends your clients against claims for damages or for injunctive or other equitable relief -- you must

1. ask your clients for all of their insurance policies, even those that seem unlikely to provide coverage; 
2. carefully review the precise wording of the insuring agreements and research the case law in the relevant jurisdiction to determine how the courts have interpreted those insuring agreements under facts similar to those your client's case presents;
3. except for some narrow additional protections provided to insureds, be aware that there is no such thing as "the law" of coverage under any particular type of policy -- all coverage flows directly from the precise language of the insuring agreement
   1. in most jurisdictions, that language -- if ambiguous -- is interpreted in favor of the insured's objectively reasonable expectations; and, 
   2. in most jurisdictions the rule of contra proferendum will require a court to construe any ambiguity in an insurance policy against the insurance carrier
4. carefully review the exclusions contained in those policies and research the relevant state's case law (as well as federal cases applying state laws) interpreting those exclusions; 
5. before concluding that there is no coverage, read available treatises as well as recent law review articles that may well suggest creative ways of distinguishing adverse authority or extending existing principles to bring your client's claims within the terms of the policy or outside of pertinent exclusions;
6. if you have any doubt whatsoever about the existence of coverage, tender the claim to your client's carrier and let the carrier do the analysis;
7. if the carrier denies coverage, read the reasons for denial critically and respond with any reasonable interpretation of the policy that will support a claim of coverage;
8. if the carrier continues to deny coverage, keep the carrier informed of the progress of the litigation and invite the carrier to respond to all settlement demands and to attend all mediations and settlement conferences.

If the cost of the lawsuit is beyond your client's means or will deprive it of capital necessary to meet its business goals for the next few years, retain coverage counsel for a second opinion. 

Have I mentioned that my beloved husband is one of the best coverage attorneys in the country -- having litigated the World Trade Center coverage action on behalf of Larry Silverstein's lender GMAC?  And that I formed my opinion about his brilliance while I was representing the London Market Insurance Carriers and he was representing the policy holder?  Even if your case does not justify hiring someone like my husband to give you a second opinion, there are lots of good coverage attorneys out there who can so that you can complete your coverage "due diligence" for your client.

At last, to the 2007 Fifty State Environment Coverage Analysis

I ran across this great resource while doing a little online research.  It's a comprehensive review of the law pertaining to the interpretation and application of insurance policies to potential or actual environmental liabilities entitled Environmental Insurance Litigation 2007   --  A State by State Case Law Survey by Michael F. Aylward, Esq. of Morrison Mahoney LLP.

If your clients have been hit with demands to clean up toxic waste, this is an invaluable resource.  A specialist in the field, however, should be consulted to maximize the chances that coverage will be provided.

Have I mentioned that I'm on the Insurance Coverage Mediation Panel of Neutrals with the  International Institute of Conflict Prevention and Resolution ("CPR")?  And since I'm a former defense coverage attorney currently married to policy holder counsel, you're unlikely to find many other mediators who are both extremely knowledgeable about the law of coverage and deeply neutral!

Because a reader recently suggested that "facilitative" mediators "tell the parties what to do," I decided it was time to revisit our terminology.   

Mediators!  Litigators!  Please feel free to weigh in!

FIRST, LET'S JUST GO AHEAD AND ADMIT UP FRONT THAT NEGOTIATION IS A COMPETITIVE SPORT -- the goal of which is to take the largest part of the delta between the two parties' real bottom lines.

EVALUATIVE MEDIATION

Evaluative mediators provide the parties with an evaluation of the strength and weaknesses of their legal positions, usually in separate caucus. If asked, the evaluative mediator will give his/her opinion about what verdict a jury would likely deliver.  Though I've co-mediated with sitting Judges quite a lot (the paradigm of evaluative settlement officers or mediators) I rarely see them tell the parties what to do -- see DIRECTIVE MEDIATION below.

Evaluative mediators often end a session with a mediator's proposal, i.e., the mediator chooses a number he/she believes would be acceptable to all parties (not necessarily what he/she believes the case is "worth") and tells the parties. If both parties accept, the deal is done. If either rejects, neither will know if the other party accepted.

I rarely make a mediator's proposal -- preferring to help the parties move toward resolution so long as no one is walking out.  They really do feel better making their own decisions.  That's why they've come to mediation and not arbitration.  So long as I believe the parties' differing "bottom lines" might overlap, I encourage continued discussion even when the parties are feeling exhausted and cranky. Persistence and optimism about resolution in equal measure. Sometimes the process just needs a cheerleader.

FACILIATIVE MEDIATION OR FACILITATED NEGOTIATION

Faciliatative mediators assist the parties, again often in separate caucus, to decide how the bargaining session will proceed, i.e., how high a first offer or demand should be; which party might benefit the most from making the initial offer; how many concessions the parties should consider making during the course of the negotiation; and, what reasoning might spur their opponent to make another concession.  Once again, I rarely see the mediator, settlement officer or Judge tell the parties what to do. But see DIRECTIVE MEDIATION.

TRANSFORMATIVE MEDIATION

Transformative mediators strive to empower the parties to express their true needs and desires; to shift from self-concern to understanding of the other and to move from entitlement and blame to accountability.  Transformative mediators do not direct the process of the mediation, which is always held in joint session.

Transformative mediators encourage the parties to set their own ground rules; state what their own desires and interests are; and, express themselves as fully as they wish, even if that includes persisting through angry outbursts, tears, recriminations, and the like.  

In its pure form, the mediator acts something like a therapist. Uh, huh, uh huh, anything else? Have you said everything to Jim or Julie that you want to say? Uh, huh, uh huh? Jim/Julie, what do you want to say back to Julie/Jim about that?  The purpose of transformational mediation is to resolve the conflict completely to the parties' mutual satisfaction even if that does not settle the actual dispute. See Bush and Folger, The Promise of Mediation.

DIRECTIVE MEDIATION -- Once again, I've never see Judge or mediator tell the parties to do anything other than to bring all the stakeholders and their insurance carrier representatives. I have, however, seen and done the following:  

I need $X from you to settle the case -- $Y is not going to do it. Please talk to you client/carrier and bring me back that number if you want to settle the case today.

This directive usually occurs very late in the proceeding and most often in a multi-party mediation in which a dozen or more defendants are contributing to the settlement. I also call this type of mediation FUND RAISING MEDIATION. I've never seen anyone do this better than Judge Victoria Chaney in the Complex Court in Central Civil West, Los Angeles.

My own "directive" suggestions to the parties generally concern the need for at least one party to step up to the line of impasse. If I believe the parties are bargaining in the nano-and stratospheres and are not getting within a hundred yards of where they'd really settle the case, I'll generally tell them so -- i.e.,

someone needs to step up to the line of impasse for this case to settle. If you don't do it, you'll likely lose your opportunity to resolve the matter today.

That's about as "directive" as I get, although I have been known to say I need $5,000 or $500,000 or $1 million more NOW. Or, I need you to drop your demand by $10K or $500K or $50 million NOW.

You can only do this if you have established a strong relationship of trust and confidence with both sides. Each side needs to know that you are not simply carrying the other side's bluff to them with your extra weight behind it. So directive and evaluative techniques -- I don't know their bottom line but I believe we're getting pretty close to it -- go hand-in-glove.  

INTEREST-BASED OR INTEGRATIVE MEDIATION

Ideologies aside, here's the real reason to probe party interests -- i.e., their genuine desires, expectations, fears, business needs, financial situation, lines of authority, reserves, reporting relationships, etc. -- it's the only way you can offer, with any credibility, your opinion about the "temperature" in the "other room" and the likelihood that party A might settle the case somewhere in the range of $X and party B somewhere in the range of $Y.

But as I tell my litigants -- "You only truly know what their bottom line is by negotiating in its direction."   I am often as shocked as the other side when the case settles for a number that one side said they would not accept. "As long as they are not walking out," I say, "they are willing to continue moving in your direction. Let's see where that takes us, shall we?"

DESPERATION MEDIATION:  ANYTHING THAT WORKS!!! 

• get the Plaintiff to concretize his monetary expectations, i.e., what he might do with the money to take the Court-as-Gambling-Casino element out of the process;
• ask the Plaintiff to imagine the offered sum sitting on the table before him -- to see it as a stack of cash or a thing or services or an improved quality of life he might purchase with it -- this makes the money real and more difficult to literally "leave on the table;"
• assist the defendant to:
  • subtract "sunk costs" from his/her/its calculations when considering the "body blow"  that paying money to their opponent will be;
  • brain-storm about business interests that could be satisfied by using the litigation as an opportunity to make a business deal;
  • come to grips with the loss that settling the litigation will inevitably entail, dealing directly and honestly about the issues of unfairness and injustice that must often be accepted to justify paying even a reasonable sum.
• don't let the parties leave until they've had principal-to-principal discussions -- the parties are often able to resolve a matter that their lawyers cannot because their lawyers are acting on instruction (I don't have the authority to settle for that) whereas the principals have more flexibility on often arbitrary "bottom lines" -- this also helps humanize the opponent who has been thoroughly demonized by the process of adversarial litigation (see autistic hostility)
• LISTEN, ELICIT, EMPATHIZE, REFRAME, HARMONIZE, and  APPEAL TO MUTUALLY SHARED HIGHER PRINCIPLES

Questions?

The Negotiation Law Blog's dear good friend, Mark Robbins, pauses in his work to make sure we didn't miss the President's reference -- in his State of the Union address -- to the work Mark is doing in Al-Hillah, Iraq.

And they saw our troops, along with Provincial Reconstruction Teams that include Foreign Service officers and other skilled public servants, coming in to ensure that improved security was followed by improvements in daily life. Our military and civilians in Iraq are performing with courage and distinction, and they have the gratitude of our whole nation.

MARK A. ROBBINS
Rule of Law Advisor
Babil PRT, Al-Hillah, Iraq 

File this post in 101-Things-to-Do-with-Your-Law-Degree and Restoring-the-Rule-of-Law-Everywhere!

Thanks, Mark.   God Speed!

If you haven't checked out our blog roll page lately, you might want to take a look here.  These are the blogs we actually read both here and over at the IP ADR BLOG.

We just this morning added the new "Legal Frontier" blog, whose author describes himself and his blog as follows:

My name is Andrew Mitton and am the author of Legal Frontier. This blog is about the future of the legal profession. What are the trends? What are the predictions? What new technology is changing the profession? And more.

So here is a little bit about me:

Went to law school and learned how to think like a lawyer.

Clerked for a judge, worked for a law firm, worked for some large corporations.

Reviewed, negotiated, and drafted many contracts.

Arbitrated, litigated, and settled many cases.

I’ve since learned that it’s better to think like a human than to think like a lawyer.

He also said nice things about us here, which we appreciate a lot.  Thanks Andrew!

The ethic of reciprocity at work.

This one is Lowden v. T-Mobile USA decided today by the Ninth Circuit.

We conclude that the Washington State Supreme Court’s decision in Scott v. Cingular Wireless, 161 P.3d 1000 (Wash. 2007), establishes that T-Mobile’s arbitration provision is substantively unconscionable and unenforceable under Washington state law, and that there is no federal preemption in light of our decision in Shroyer v. New Cingular Wireless Servs., Inc., 498 F.3d 976 (9th Cir. 2007).

I'm in the middle of reading two books, both of which should be on every mediator's night table -- Final Exam, A Surgeon's Reflections on Mortality by Pauline W. Chen and Faith-Based Reconciliation:  A Moral Vision that Transforms People and Society by Canon Brian Cox.

Why should a commercial mediator read these books?  For the same reason your business clients should -- they address the most important technology for making business effective and efficient -- do it yourself dispute resolution.

Maximizing Profit by Negotiating Peace

As my dear friend attorney-mediator Richard Millen says, "people don't have legal problems; only lawyers have legal problems; people have people problems."

I've adopted Richard's mantra for commercial litigation -- businesses don't have legal problems; businesses have business problems and most of those business problems are people problems. 

Organizing teams of people into efficient working groups -- whether it be your Board of Directors; your research scientists; your associate attorneys; your sales staff; or, your physicians -- is the greatest challenge of every business -- making inventing the cure for cancer look like child's play. 

We are a fractious, competitive, grudge-bearing, insecure, angry, difficult bunch.  And yet everything we have ever accomplished by way of creating civilization and insuring our own survival as a species has resulted from our ability to communicate with one another for the purpose of engaging in a team effort. 

As the author of The Brain Rules, John Medina has written of the course of evolutionary human events,

Suppose you are not the biggest person on the block, but you have thousands of years to become one.  What do you do?  If you are an animal, the most straightforward approach is becoming physically bigger, like the alpha male in a dog pack, with selection favoring muscle and bone.  But there is another way to double your biomass.  It's not be creating a body but by creating an ally.  If you could establish cooperative agreements with some of your neighbors, you could double your power even if you did not personally double your strength.  You could dominate the world.  Trying to fight off a woolly mammoth?  Alone, and the fight might look like Bambi vs. Godzilla.  Two or three of you however, coordinating your  behaviors and establishing the concept of teamwork, and you present a formidable challenge:  You can figure out how to compel the mammoth to tumble over a cliff.  There is ample evidence that this is exactly what we did.

Did I say I'm also in the middle of reading The Brain Rules and you should be too?

So, here's the thing.  I'm starting a new category on the negotiation blog -- Do It Yourself Dispute Resolution.  The next several posts are going to talk about what we need to understand to do that, jettisoning our attorneys for most of the business and people problems that end up in court so that we can reserve the attorneys to plan a better, more profitable future instead of fighting over the unprofitable past.

And the litigators?  There will always be matters of principle; new law; new problems; and, new conflicts to resolve that require the process of an adversarial proceeding.  I'm just looking to notch up your legal work a bit -- make it more interesting, satisfying and people-problem free.

Ready?  Let's roll!

(image:  Avi dancing by Tamar Factor)

Because I cannot say it any better than this, I am simply excerpting the Conflict Research Consortium's article on Principled Negotiation. 

 You don't have to be an expert in this -- your mediator is. 

 To the degree you "get" this, you will form a far better negotiation team with your mediator to obtain the best deal possible for your client in any settlement or commercial negotiation. 

Promise!  

Principled negotiation is the name given to the interest-based approach to negotiation set out in the best-known conflict resolution book, Getting to Yes, first published in 1981 by Roger Fisher and William Ury.

The book advocates four fundamental principles of negotiation: 1) separate the people from the problem; 2) focus on interests, not positions; 3) invent options for mutual gain; and 4) insist on objective criteria.

Separating the people from the problem means separating relationship issues (or "people problems") from substantive issues, and dealing with them independently. People problems, Fisher, Ury and Patton observe, tend to involve problems of perception, emotion, and communication. 

Perceptions are important because they define the problem and the solution. While there is an "objective reality," that reality is interpreted differently by different people in different situations. When different parties have different understandings of their dispute effective negotiation may be very difficult to achieve. (This is what we have been calling framing problems.) Fisher, Ury and Patton suggest seven basic strategies for handling problems of perception. [go to linked article for further explanation] 

People problems also often involve difficult emotions — fear, anger, distrust and anxiety for example. These emotions get intertwined with the substantive issues in the dispute and make both harder to deal with. Fisher, Ury and Patton suggest five tactics for disentangling and defusing emotional problems in the negotiation process. [Click on the link for further explanation] 

Fisher, Ury and Patton consider communication problems to be "people problems" as well. They list three types of communication problems.

• First, disputants may not be talking to each other. While their comments are formally addressed to the opponent, they are actually addressing some outside audience. They are grandstanding, or playing to the crowd.
• A second communication problem arises when parties are not listening to each other. Rather than listening attentively to the opponent, parties may instead be planning their own response, or listening to their own constituency.
• Finally, even when parties are both listening and talking to each other, misunderstandings and misinterpretations may occur. Fisher, Ury and Patton suggest techniques for minimizing communication problems. [Click on the link for a description of these techniques.]

Negotiating about interests means negotiating about things that people really want and need, not what they say that want or need. Often, these are not the same. People tend to take extreme positions that are designed to counter their opponents’ positions. If asked why they are taking that position, it often turns out that the underlying reasons--their true interests and needs--are actually compatible, not mutually exclusive.

By focusing on interests, disputing parties can more easily fulfill the third principle--invent options for mutual gain. This means negotiators should look for new solutions to the problem that will allow both sides to win, not just fight over the original positions which assume that for one side to win, the other side must lose.

The fourth rule is to insist on objective criteria for decisions. While not always available, if some outside, objective criteria for fairness can be found, this can greatly simplify the negotiation process. If union and management are struggling over a contract, they can look to see what other similar companies have agreed to use as an outside objective criteria. If people are negotiating over the price of a car or a house, they can look at what similar houses or cars have sold for. This gives both sides more guidance as to what is "fair," and makes it hard to oppose offers in this range.

We will continue with this series:  What Mediators Wish Lawyers Knew in subsequent posts and encourage our lawyer-readers to please let us know what they wish mediators knew.

The ABA Ethics Committee has given the green light to collaborative law agreements -- considered unethical in Colorado -- so long as the clients give their informed consent.  See Putting a Kinder Face on Litigation.  Excerpt below:  

“When a client has given informed consent to a representation limited to col­laborative negotiation toward settlement, the lawyer’s agreement to withdraw if the collaboration fails is not an agreement that impairs her ability to represent the client, but rather is consistent with the client’s limited goals for the representation.”

The oxymoron?  Litigation is definitionally a "contentious tactic" pursued for the purpose of making someone else behave in a way they do not wish to behave == to pay money they do not want to pay; to accept less money than they are demanding for the injuries they claim to have suffered; to refrain from trespassing on your land or demonstrating on the street in front of your house or performing on a contract they contend does not require them to obey.

Why is litigation a "contentious" tactic?  Because its entire purpose is to overcome the will of another.  It is not an invitation to dinner to discuss the dispute in an attempt to find common ground.  Does litigation  sometimes lead to collaboration?  Most certainly, as do other contentious tactics such as persuasive argumentation, ingratiation, and violence -- all of which can serve to bring the parties to the bargaining table.

I am all in favor of collaborative processes for the resolution of disputes.  It's what I do for a living for heaven's sake.  But I am also an advocate for the preservation of meaning in the English language.  Collaborative litigation is a contradiction in terms.  And if you want your client's informed consent to anything, it would be best to remember that the "litigation" part of collaboration remains the iron fist inside the velvet glove.

Director's guild press release below.  Analysis will follow.

LOS ANGELES - The Directors Guild of America (DGA) announced today that it has concluded a tentative agreement on the terms of a new 3-year collective bargaining agreement with the Alliance of Motion Picture and Television Producers (AMPTP).

Highlights of the new agreement include:

• Increases both wages and residual bases for each year of the contract.
• Establishes DGA jurisdiction over programs produced for distribution on the Internet.
• Establishes new residuals formula for paid Internet downloads (electronic sell-through) that essentially doubles the rate currently paid by employers.
• Establishes residual rates for ad-supported streaming and use of clips on the Internet.

“Two words describe this agreement - groundbreaking and substantial,” said Gil Cates, chair of the DGA's Negotiations Committee, in announcing the terms of the new agreement.

“The gains in this contract for directors and their teams are extraordinary – and there are no rollbacks of any kind.”

Formal negotiations between the DGA’s 50-member Negotiations Committee and the AMPTP began Saturday, January 12, and were concluded today. Talks were led by Cates and DGA National Executive Director Jay D. Roth. They were preceded by months of informal discussions and nearly two years of preparation and research by Guild staff and consultants.

“This was a very difficult negotiation that required real give and take on both sides,” said DGA president Michael Apted. “Nonetheless, we managed to produce an agreement that enshrines the two fundamental principles we regard as absolutely crucial to any employment and compensation agreement in this digital age:

First, jurisdiction is essential. Without secure jurisdiction over new-media production—both derivative and original—compensation formulas are meaningless.

Second, the Internet is not free. We must receive fair compensation for the use and reuse of our work on the Internet, whether it was originally created for other media platforms or expressly for online distribution.”

The agreement includes the following gains in New Media:

• Jurisdiction: The new agreement ensures that programming produced for the Internet (both original and derivative) will be directed by DGA members and their teams. The only exceptions are low-budget original shows on which production costs are less than $15,000 per minute, $300,000 per program, or $500,000 per series—whichever is lowest.
• Electronic Sell-Through: EST is the paid download of features and TV programming. The agreement more than doubles the EST residual for television and increases the feature film residual by 80% over the rate currently paid by the employers.
  
  Specifically, the EST residual rates will be

• 70% for television downloads and
• 65% for film downloads, above a certain number of units downloaded. Below that, residuals will be based on formula employers currently pay.
  

Payments for EST will be based on distributor’s gross, which is the amount received by the entity responsible for distributing the film or television program on the Internet. Having distributor’s gross as the residuals basis was a key point in our negotiations.

The companies are now contractually obligated to give us unfettered access to their deals and data. This access is new and unprecedented and creates a transparency that has never existed before. Additionally, if the exhibitor or retailer is part of the producer’s corporate family, we have improved provisions for challenging any suspect transactions.

Ad-Supported Streaming: After an initial 17-day window for free promotional streaming of Internet programs, companies must pay 3% of the residual base (approximately $600 for network prime time 1-hour drama) for 26 weeks of streaming. They can continue to stream for an additional 26-week period by paying an additional 3% -- or a total of $1,200 for one year’s worth of streaming. (During a program's first season, the 17-day window is expanded to 24 days to help build audience.)


Sunset Provision: Allows both sides to revisit new media when agreement expires.

 
“Our fundamental goal in these negotiations was to protect our interests in the present while laying the groundwork for a future whose outlines are not yet clear,” said Cates. “We knew that gaining jurisdiction over new-media production and winning fair compensation for the reuse of our work on the Internet were the key issues for setting a framework for the future, but we also had to secure real gains for our members in today’s world.”

The new tentative agreement includes the following:

• Annual wage increases of 3% for primetime dramatic shows and daytime serials and 3.5% for all other covered programming.
• Outsized increase in director’s compensation on high-budget basic cable for series in the second and subsequent seasons.
• Annual residual increases of 3% for primetime shows and 3.5% for all other covered programming.
• Specific advances that pertain to members of the director’s team. 

Details of the new agreement will be submitted to the Guild's National Board for approval at its regularly scheduled meeting on Saturday, January 26, 2008. The DGA’s current contracts expire on June 30, 2008. 

Kearns & West, a mediation and communications firm specializing in water, energy, natural resources and environmental mediation, collaboration and public involvement, seeks: 

• A seasoned mediator/facilitator or public involvement expert to join the firm’s San Francisco office, or 
• A mediation/collaboration/public involvement firm or 2-5 person group that is interested in joining K&W, and/or 
• A seasoned mediator/facilitator or public involvement expert or small firm interested in joining the firm in other locations. (We currently have offices in San Francisco, Washington DC, Portland, Denver, Sacramento, and have interest in Southern California and other locations in the east as well).

For more details, click here.

Welcome back from vacation Geoff!  We do miss your voice.

Readers -- here's Geoff's slightly edited vacation story coupled with a mediation puzzler! 

there we were - just after Christmas - on a main highway at the bottom of the South Island of New Zealand and crossing a one-way road/rail bridge. .  .  a one-way bridge on the main trunk road and the train goes over the top!

As we pulled up to the bridge I saw a number of cars in line . . . . 

I got out to investigate wishing I was a doctor. The cry rarely goes out for a mediator at roadside emergencies, although we probably see about as much blood on the floor as they do.

I eventually got to the head of the line of rubber-neckers half way over the bridge, only to observe two beefy looking high context campers facing each other off, both red from the sun and the conflict - one with his belly protruding under his dirty white singlet, the other in a terry towling hat known to be extinct since the seventies.

They were at a stand off. They had entered the bridge at the same time from opposite ends and neither was willing to select reverse gear. As onlookers enjoyed the sport, it was clear they were growing restless in the heat of the day.

What was to be done?

A couple of people were making half-hearted interventions to make both men see sense, but they were ineffectual.

I diagnosed the situation...nothing, nada, a blank - hey! I was on holiday.

Then, as I stood there, on that old creaking wooden bridge, I had my new year's eureka moment.

FACE!

That was the problem. Both men had got themselves into a corner, neither knew a way to put themselves and their overloaded old cars into reverse without backing down.

I was a doctor after all!  But how to address this prickly barrier to resolution in the hot midday sun so far from a whiteboard?

So I hesitated - well they were big, fat and angry - and I was only one of those after my Christmas day.

Then I did what any reader of this blog would do... I acted in a decisive and professionally appropriate way.

And that's my question to you, my dear reader: What did I do to get the traffic moving?

As you can imagine, I have a lot to say about the resolution of conflict -- and the negotiation of solutions -- where moral beliefs are implicated and non-negotiable.  Because I don't have time, I'm leaving you with the end of an excellent, must-read Sunday New York Times Magazine article by scholar Steven Pinker -- author of How the Mind Works -- entitled The Moral Instinct.

But in any conflict in which a meeting of the minds is not completely hopeless, a recognition that the other guy is acting from moral rather than venal reasons can be a first patch of common ground. One side can acknowledge the other’s concern for community or stability or fairness or dignity, even while arguing that some other value should trump it in that instance. With affirmative action, for example, the opponents can be seen as arguing from a sense of fairness, not racism, and the defenders can be seen as acting from a concern with community, not bureaucratic power. Liberals can ratify conservatives’ concern with families while noting that gay marriage is perfectly consistent with that concern.

The science of the moral sense also alerts us to ways in which our psychological makeup can get in the way of our arriving at the most defensible moral conclusions. The moral sense, we are learning, is as vulnerable to illusions as the other senses. It is apt to confuse morality per se with purity, status and conformity. It tends to reframe practical problems as moral crusades and thus see their solution in punitive aggression. It imposes taboos that make certain ideas indiscussible. And it has the nasty habit of always putting the self on the side of the angels.  .  .  . 

There are many [] issues for which we are too quick to hit the moralization button and look for villains rather than bug fixes. What should we do when a hospital patient is killed by a nurse who administers the wrong drug in a patient’s intravenous line? Should we make it easier to sue the hospital for damages? Or should we redesign the IV fittings so that it’s physically impossible to connect the wrong bottle to the line?

. . . . . . Our habit of moralizing problems, merging them with intuitions of purity and contamination, and resting content when we feel the right feelings, can get in the way of doing the right thing.

I've long been saying it will take a tragedy following services provided by unqualified mediators before the States will move in to set standards and require licensing.  Here's the first breath that will stir the leaves of change in Sacramento.

Unqualified mediators prey on broken families by Linda Diebelof the Toronto Star.
 
When Miriam and Andrew Grenville's 20-year marriage ended in 2006, they agreed on one thing – protecting their children from collateral damage was their utmost priority.

A Toronto-area family's problems with the mediator they'd hired to work on their daughter's messy divorce reached a nadir when her 6-year-old son came home with a bizarre story.

During a supervised visit with his father in a restaurant, the mediator told the waitress she was the little boy's "mommy."

"He was very distressed, very, because he didn't know what was going on," said a female family member, asking to remain anonymous because their case is still before the courts.

The family was aghast but initially didn't complain. They were afraid to fire the mediator, whom they paid more than $15,000, because they feared a negative report in family court.

"Everybody told us, `Don't make the mediator mad'," she said.

When they finally did try to file a complaint they found they had nowhere to turn: mediators aren't regulated in Ontario.

Instead, anybody can hang a shingle and plunge into a highly sensitive area of working with divorcing couples and their children at a time when most are financially and emotionally vulnerable.

For the remainder of the article, click here.

Listen, this is an access to justice issue, not simply a problem that the legal profession -- particularly those legal professionals who are mediators -- can ignore. 

"I don't do family law" or "I don't work with the kind of mid- to low-income people who can be taken advantage of in this manner," is no excuse.

This is an issue that we must now all join together in an attempt to vigorously address, retaining flexibility and creativity in the profession while at the same time preventing the practice of mediation by the unscrupulous.

I ask my readers to please weigh in on this issue.  I do not have the time to spearhead this effort but will offer my services as a team member to immediately begin addressing the ways in which we can impose standards and retain independence.

Fellow bloggers? 

Geoff?  (welcome back!)  Diane?  Stephanie?  Gini?  Colm (pre-blogger)?  Les?  Mike?  John? Eric? Phyllis? Jan?  Carrie?  Paula?  Kristina?  Josh?  Dina?  Christopher?  John?  Tammy? Colin?  Leo? the Indisputably bloggers?

For responses from other bloggers that are not included in the comments below, see the following:

Chris Annunziata's Thoughtful Opposition to Licensing here -- primarily arguing that licensure would not prevent abuse; and, would bring the weight of inefficient and intrusive state bureaucracies into the process.  (But don't trust my summary; click on the link to get it direct from the horse's mouth)

My brilliant and talented step-son who is beginning legal practice this coming Monday is worried about career satisfaction.  When I suggested that he read my "Why Lawyers are Unhappy" article, he said, "I'd far prefer to read an article about why lawyers are happy."

Since we've been unhappy-lawyered to death recently, and because I don't want Adam to be unhappy just because everyone says he should be, this post is dedicated to him -- Adam Goldberg, Esq.  

The Pursuit of Happiness

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. 

We all read this in the fifth grade, right?  Again in high school History and Civics, one more time in college history, philosophy or political science and, if we took the sparsely attended jurisprudence course in law school, we read it again there.

I have to admit, however, that I never knew what it meant until I listened to one of those Teaching Company courses on American History.  

Eudaimonia

We know that the founders didn't have week-end spa retreats, golfing getaways, or new BMW's in mind when they included in the preamble to the Declaration of Independence the right of all "men" to pursue happiness.  So what did these men of the American Enlightenment mean?

They meant eudaimonia, an Aristotelian concept defined "not by honor, or wealth, or power,

but by rational activity in accordance with virtue over a complete life.

This type of activity

manifests the virtues of character, including, honesty, pride, friendliness, and wittiness; the intellectual virtues, such as rationality in judgment; and non-sacrificial (i.e. mutually beneficial) friendships and scientific knowledge (knowledge of things that are fundamental and/or unchanging is the best).

Eustress

You don't need to be a workaholic or stress adrenaline addict to understand the concept of "good stress."

The term eustress was coined by the neuroimmune biologist Hans Selye in the early 1970's.  This type of stress is a happily adaptive response to what some people call "problems" and others call "challenges."  In response to "challenging" problems -- difficulties or barriers people believe they have the freedom and power to address -- 

the body releases adrenaline and noradrenaline. Both of these hormones result in heightened perception, increased motivation and even increased physical strength. Eustress extends the person's capacity to function (intellectually, physically, emotionally and behaviourally). 

This "good stress" acts both as a motivator to creative problem-solving and as its bio-chemical reward.  Eustress is simply the scientific-biological explanation for the Aristotelian value and goal of "eudaimonia," which the founding fathers wrote into the Declaration of Independence. 

As the "Happy Mind" web site suggests in its post on Eudaimonia and The Pursuit of Happiness:

If we can rediscover the concept of eudaimonia, and adapt it to suit our modern values, perhaps we can find a way to achieve longer-term happiness. A modern concept of eudaimonia, for example, might include the need to take account of the effect of one’s actions on the environment, as well as on other people in one’s community. It might take the form of political engagement, or artistic creativity, or volunteer work. By focussing on the effect of our actions on those around us and on the world in general, rather than on our own happiness, perhaps we can learn to be eudaimon, and to be happy.

Eudaimonious Lawyers

At last, we come to the point.  What makes of legal practice a fulfilling, creative, generous, happy -- even exhilarating -- life.

• if you're understandably anxious about any of the following, you are about to experience eudaimonia because you will be meeting and managing a great challenge
  • answering, by way of legal research and strategic thinking, a difficult legal question that will benefit your client
  • drafting your first motion asking a Judge to make the other side do something that will achieve a greater degree of justice for your client
  • standing in front of a Judge (or panel of Justices!) delivering your first oral argument in pursuit of something your client needs or in opposition to something that will impede your client's progress toward a just resolution of his dispute
  • taking your first deposition in an effort to learn what you need to know to further your client's interests
  • defending your first deposition in an effort to prevent your client from being brow-beaten, manipulated, or, misunderstood
  • advising your first client (or mom or dad or sister) about their legal rights knowing that without your advice they could easily be taken advantage of or prevented from doing something that they are entitled -- indeed, have a right -- to do
• when you experience the following, you will also be experiencing eudaiomonia.
  • providing pro bono legal services to someone who has never had access to the American system of justice; never experienced the feeling of protection and support that a legal advocate can provide
  • pursuing a moral or political cause of great importance to you and millions of others by using your knowledge of the legal system to accomplish a small or large objective on the path toward the vindication of, say, universal human rights
  • being called "counselor" for the first time by people in positions of power, at which point you may well realize that you have been placed in a privileged position in human society and political life whereby you will automatically be accorded respect both by your peers and by anyone who presumes to be better than you
  • hearing a client say "thank you so much, I wouldn't have known what to do or what my future might be or how badly I might have been harmed without you"
• The happy activities that are latticed into legal practice every bit as much as fear and frustration
  • the pure sport of the legal research treasure hunt -- an endeavor that allows you to exercise your god-given intelligence and creativity to solve the puzzle, detect the crime, negotiate the deal, or actually win the entire case  
  • the moment the factual and legal strategy finally comes together 
  • the thrill of victory -- which would be no thrill at all unless there was a genuine chance of failure
  • the privilege of spending your working life among people who are bright, talented, creative, vital, ambitious, seemingly fearless and therefore a lot of fun to be around
  • the opportunity to match your wits against those of the smartest guys in the room
  • the opportunity to exercise nearly every strength and overcome almost every weakness of character you have -- including the challenges of speaking up for yourself and your clients; adhering to your principles when your clients or superiors ask you to engage in activities you believe to be unprofessional, unethical, or even illegal; finding the balance between fearful and over-bearing; learning grace under pressure; developing leadership skills; exercising your inner-entrepreneur; negotiating the best deal available with some of the most powerful companies and  prestigious attorneys in the land
  • ending your working day tired but knowing you've done a good to great job in a  profession never lets you sleep on your laurels or turn in less than your best effort

And perhaps last but not least, never being bored for long.

This is not a job. It's not even a career. It's a calling. You will push yourself harder than you can imagine. In the near term, your victories will be more internal than external; more a process of learning your trade than of setting the world afire. Eventually, however, you will count yourself as one of the lucky ones who are clued in early to society's temple secrets. With a blank screen of life to be filled, you could hardly be better prepared to achieve your dreams while helping others to achieve theirs.   

I wouldn't trade a single disappointment, failure, momentary loss of courage or even a lengthy period of lost purpose to have been part of any other professional practice.  I am proud of what I have accomplished and grateful for what I have learned.

Welcome to the profession!  Do well.  Do good.  Be happy.

 I'm finally here in Al Hillah, Babil Province, Iraq.

The journey went from DC through London, included a night in Amman, Jordan and one week at the U.S. embassy in the Green Zone in Baghdad.

I took a C17 between Amman and Baghdad and a Blackhawk between Baghdad and Hillah.

The two footlockers I shipped from DC were waiting for me when I got here.

Yes, I told him not to go but his mom said, "if that's what makes you happy dear."

God speed!

(pictured, Professor Carrie Menkel-Meadow)

Let's face it.  There is not a lot of seriously thoughtful, informed and scholarly discussion of mediation going on. 

But now there's some really really good news.  One of the most sophisticated scholars in the discipline -- Professor Carrie Menkel-Meadow -- will be a Concurring Opinions Guest Blogger during the month of January.

I'm hoping Professor Menkel-Meadow will contract the Blog Bug and start her own -- thus raising to credibly scholarly heights the blog-versation concerning the social and economic justice issues raised by all ADR practices.

Welcome welcome welcome to the bloggerhood!!

Take a look at the answers Colm Brannigan has gotten on LinkedIn to his New Year's question:  What Qualities Do Counsel Look for in a Mediator here.

This is a topic about which there should be an on-going conversation between lawyers and mediators.  We have the identical goal -- to maximize the value available to all parties to settle intractable litigation.  Collaborating on the best ways to reach that goal is in all of our best interests.  Let's keep the conversation going and thanks to Colm for beginning the new year in this fashion.

Excerpt from one of the fine answers to this question -- by Sheppard Mullin attorney Jim Burgess below and link to Colm's website here.

First, a good mediator will be tenacious in pursuit of a final settlement. Such tenacity entails thorough preparation, spending sufficient time during mediation (even going over if necessary) and scheduling follow up if the case does not settle during the mediation session. I had a mediation once that started in the morning, lasted all night and ended (successfully) the next morning.

Second, a good mediator must be intelligent and able to learn. Technical knowledge may be needed in certain cases, but it is not essential in most cases. I assume that whatever knowledge the mediator needs I can provide. So, another quality is that I need a mediator who is intelligent and able to adapt to new information.

Third, a good mediator must have significant experience with the litigation and settlement process. Such real world experience enables the mediator to read people in terms of what is driving the litigation. But, there is no substitute for understanding that the settlement process is a little like the grieving process (denial, anger, bargaining, depression and acceptance). The process must play out for both sides and a good mediator will steward the parties through that process. There is nothing worse than having a mediator try to short circuit the process by jumping to a discussion of money. I have found that former judges often have the experience needed to be successful mediators.

Fourth, the mediator must be honest. I do not appreciate having the mediator regurgitate the other side's position if it is patently ridiculous. By the time I get to mediation, I will understand the strengths and weaknesses in my case. But, I need to trust the mediator. My clients will not trust a mediator who does not give an honest or intelligent evaluation. Also, a mediator must be careful not to give an evaluation either too soon or which is overly negative. By the time the mediator actually expresses an opinion (if at all), the mediator should fully understand the mood of the room and how that opinion will be received. The only point of giving an evaluation is to facilitate settlement.

Finally, the main advantage of mediation is that it allows the attorney to preserve his or her integrity and relationship with his client while the client makes a decision to settle. A good mediator will not embarass either counsel, will not undermine the attorney-client relationship and will work with counsel to get a final result (since that is the whole point of participating in mediation in the first place). Joint meetings and opening statements are rarely productive and often make settlement more difficult.

Thanks for taking the time to share these insights with Colm and the rest of the LinkedIn legal community Jim!

I don't purport to have been around longer than Moses, but I have been pretty actively engaged in the interpretation of contracts since the early 1980's.  So it comes as a little bit of a surprise to hear of a contract construction doctrine -- even one from out-of-state -- that I've never heard of before.  Particularly one with as compelling a name as the "forthright negotiator doctrine."

The Private Equity Law Review Blog brings this doctrine to our attention here as follows:

. . . under the forthright negotiator principle, “the subjective understanding of one party to a contract may bind the other party when the other party knows or has reason to know of that understanding. Because the evidence in this case shows that defendants understood this Agreement to preclude the remedy of specific performance and that plaintiff knew or should have known of this understanding, I conclude that plaintiff has failed to meet its burden and find in favor of defendants.”

“The forthright negotiator principle provides that, in cases where the extrinsic evidence does not lead to a single, commonly held understanding of a contract’s meaning, a court may consider the subjective understanding of one party that has been objectively manifested and is known or should be known by the other party.”

The only support for this principle cited by the court was a section of the Restatement of Contracts.

Without the feel-good moniker, this rule turns out to be pretty much the same as that codified in California Civil Code section 1649.

If the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it.

Calfornia case law supplies the remainder of the "forthright negotiator rule," i.e., that the Court may -- where the contract is ambiguous -- consider evidence demonstrating the parties' "objective manifestations" of their intent.  See e.g. De Anza Enterprises v. Johnson (2002) 104 Cal.App.4th 1307, 1315.)

I cannot intuit why the Restatement calls this the "forthright negotiator rule," though I bet Ken Adams knows!

I can tell you this:  I recently mediated a contract case with a lots and lots of lots of zeros following the first number at issue where the enforcement question hinged on what one contracting party believed the other contracting party did not know at the time of contracting. 

And though it's easy to say -- in 20-20 hindsight -- that party A should have included -- perhaps in a WHEREAS clause -- its understanding of the other party's understanding -- no one can ever predict the way in which the parties' deal could actually come to pieces.  

And you could "WHEREAS" yourself to death over matters that the bargaining parties believe to be important at the time, not to mention the fact that they are rarely, if ever, actually forthright with one another about all of the value to be exploited in the present, let alone in the future. 

So what's a careful but not paranoid negotiator to do?  Include in your contract -- at least in the WHEREAS clauses -- any central assumption you are making about the state of your bargaining partner's knowledge.  And when I say "central," I meean any assumption you're making that is key to your willingness to enter into the bargain in the first place. 

Better to consult someone like Ken Adams in the first instance than to find yourself picking up the telephone to call your outside litigation counsel, no?  

Both the Wall Street Journal Law Blog (Do Looks Matter in the Law?) and the ABA Journal (Good-Looking Lawyers Make More Money) are reporting -- the WSJ beside a photo of the none-too-beautiful but apparently universally "sexy" Matt Damon -- that good looking people -- even those in the legal profession -- make more money than their less comely peers. 

One of my favorite blogs, Deliberations, also covered this topic from the angle of jury persuasion in How to Be Better Looking here.

We've also covered this topic as thoroughly as we believe it deserves in the Power of Beauty here.

The executive summary?

Physical beauty creates a "halo effect" that leads us to believe that our better looking peers are smarter and more talented, generous and good-natured than the rest of us.  

The Lesson?

If we live life joyously and authentically, we will possess the qualities people automatically ascribe to the "beautiful" among us.  More imporatantly, we will have become beautiful by being the kind of person people imagine -- say -- Angelina Jolie or Matt Damon to be.

If I were allowed to give only two pieces of gratuitous advice to every lawyer and business person in 2008, they would have to be as follows:

1.  if you think an insurance policy * will not  indemnify you or your client against a particular loss or provide a defense to a legal action, you haven't thought deeply enough unless you have, at a minimum:

• researched the law pertaining to the pertinent policy language in the jurisdiction in which the loss occurred or suit was brought;
• painstakingly compared the law in that jurisdiction to the precise language contained in the insurance policy;
• researched the most recent case law in that jurisdiction pertaining to burdens of proof on potentially applicable exclusions and exceptions thereto; 
• distinguished apparently negative case law that is actually dictum;
• creatively considered all of the ways in which you might bring the loss or potential liability within the terms of the policy, focusing on the fact that nearly every jurisdiction will require the court to interpret the policy broadly in favor of the "insured's objectively reasonable expectations of coverage" and will -- unless you have the bargaining power of Exxon -- construe all ambiguities against the carrier;  
• investigated and determined whether you or your client are named as "additional insureds" by the policy of another; and,
• consulted with a policy holder insurance recovery specialist -- I understand that this attorney  -- Stephen N. Goldberg of Heller Ehrman -- who represented GMAC in the World Trade Center coverage action is one of the best in the country.   

2.  treat others as you would expect to be treated yourself (this is the conflict avoidance part)

OBJECT LESSON OF THE DAY

In yesterday's Kingman Daily Miner (Northern Arizona) we read City settles e-mail suit for $40K. 

Two points worth noting for the health of any small city's fisc.

First, as Kingman resident and Plaintiff Travin Pennington is reported to have said, "communication and accountability, could have prevented a bill for [] attorneys' fees that exceeded $40,000 following a seven-month battle with the city for e-mail records."

The Back Story?

In June, Pennington filed public records requests for thousands of pages of e-mail from then-City Manager Paul Beecher and two other employees. He said Beecher took him into the city hall parking lot, and instead of asking how to resolve the issue, Beecher allegedly made some comments that pushed Pennington to "the tipping point."

"I said, 'this guy's out of control. I'm going to take this guy to task,'" Pennington told the Miner. And he did. After the city failed to disclose more than 8,000 pages of e-mail whose contents the city claimed were personal, Pennington filed a lawsuit in the Mohave County Superior Court.

The Conflict Avoidance Point?  Be civil; be responsible; be accountable; and if you fail, be willing to course correct.

But when civility, responsibility and accountability haven't worked, check your insurance coverage. 

The Kingman story continues:

The city's insurance policy will cover much of the costs of the lawsuit, including the city's own attorneys' fees, which topped $32,000, according to City Attorney Carl Cooper.

Good work on the City's part in tracking down the necessary insurance coverage!

Resolution:  Cutting the baby in half.

Pennington's attorneys offered $48,337.65 - 75 percent of the $64,448.50 in the plaintiff's total fees. The city came back with a $32,225 offer, and the two parties settled in the middle, at $40,281.30.

We mediators do try to generate solutions other than the one arising from the descriptive (not prescriptive) rule that any zero-sum negotiation will resolve half way between the first two reasonable offers.

The good news:  you don't need a mediator to achieve this result.  Even your fifth grader is capable of adding two numbers and dividing them by two.
_________________________

Types of insurance include Automobile; Aviation; Boiler; Builder's risk; Business; Casualty; Credit; Mortgage; Crime; Crop; Workers'compensation; Directors and Officers Liability; Disability; Errors and Omissions; Expatriate; Fraternal; Financial loss; Fire; Hazard; Health; Kidnap and Ransom; Homeowners; Renters; Environmental Liability; Professional Liability; Locked Funds; Marine; Nuclear Incident; Pet; Political risk; Pollution; Prize Indemnity; Property; Protected Self-Insurance; Purchase Insurance; Stop-loss; Surety Bond; Terrorism; Title; Travel; Volcano; and, Workers' Compensation. 

Thanks to Wikipedia for this ridiculously comprehensive list (see lay explanations there; always consult an attorney -- and if you are one -- always consult a coverage specialist).

Nobody will be offended if I say that Diane Levin is my favorite ADR Blogger of them all. 

Why?

Because she's everyone's favorite ADR blogger.  And not just because she writes the best; has the most eclectically "on message" posts; is the most responsible member of the ADR Blog Possee (yes, she's the ADR Blog Neighborhood Watch Captain); always finds the most apt images to illustrate any point she's making; and, is a mediator's mediator.  No, it's genuinely because she's just so darn nice!!

So it is with great pleasure (and a surprising lack of envy!) that I direct you to Diane's terrific new blog site -- The Mediation Channel -- that looks ridiculously easy to navigate and slick without being, you know, all shark-skin suit-ish.