Negotiation Law Blog

Negotiations of the type I mediate on a regular basis are rarely the subject of appellate opinions -- at least not the part of negotiations we call the "dance." 

Having stumbled across this opinion while searching for something else, I couldn't resist the pulll of posting it here -- both for my readers' enjoyment and, frankly, using the blog as my own personal filing cabinet for some of my favorite appellate opinions (yes, I am a geek!). 

The prose below is from Judge Barbara Johnson's dissent in a transactional legal malpractice case that made its way up to and then back down from the California Supreme Court. 

Enjoy!

From Viner v. Sweet (2004) 117 Cal.App.4th 1218, 1251-1252.

Contract negotiations are fluid events. Offers and counteroffers, and counter-counter offers, and counter-counter-counteroffers, etc., typically flow back and forth across the table. It is a sophisticated ballet often ending in mid-pirouette or even mid-leap-when the contract is finally signed. But if one side of the negotiations stops the dance too soon, only because their lawyer promises them they have the very terms they told him they wanted despite the fact they don't, that side should not be foreclosed from suing their lawyer for his malpractice. It is one thing if the lawyer only misjudges when the deal is at the optimum for his clients. It is entirely different when the lawyer misrepresents the terms of the deal-as the evidence indicates happened here-and thus leads his clients to sign a bad contract. 


Under this third scenario, whether the plaintiff would or would not have been better off with “no deal” than the deal they got is simply irrelevant. Also irrelevant is whether they could have obtained the exact deal they wanted and thought they had. The real question is whether they could have gained a better deal than they ended up with, had the negotiations continued. In most instances under this third scenario, it will not prove to be quite as good a deal as they thought they had. That is, to gain some favorable contract language important to them, they may well have to give somewhat on other contract terms. But almost certainly it will be a “better net deal” than the one they mistakenly signed.


If juries are capable of deciding Lightstone would or would not have accepted terms more favorable to the Viners, they certainly can be entrusted with the determination whether Lightstone would have accepted those terms if the Viners had offered new terms on other issues, which terms were more favorable to him. Cross-examination often would prove especially revealing-as someone in Lightstone's position was exposed to a succession of questions about what changes in the Viners' position on certain contract terms might have caused him to alter his position on other terms.

For instance, had the Viners offered to reduce the price of purchasing their stock by $250,000, would Lightstone have been willing to modify the ambiguous language in 1.10 that arguably prevented them from pursuing movie and television deals with Dove authors and readers? How about if they cut the price by $500,000? How much did Dove's earnings increase because of the existence of that language in 1.10? Furthermore, beyond cross-examination of this nature, other testimony and circumstances also could point in the same direction. If the negotiations had not stopped in mid-stream because Sweet erroneously told the Viners they had already “won,” further negotiations would have been possible and would have led to a more favorable contract (perhaps to both sides) than the one they signed.

(right, me and Geoff -- not the most flattering photo of either of us but proof that we blogging mediators do in fact get together in "real time" and geographical space from time to time)

Thanks to Geoff Sharp for posting Dwight Golann's and Ellen Waldman's Power Point on Commercial Mediation Ethics, courtesy of Professor Michael Moffit at the ADR Prof Blog here.

Here's Geoff's post with commentary and here's the Power Point.

Help me... help you. Help me, help you.  Jerry Mcguire

Two short-short stories.  Both to acquaint you with who I was as a litigator and how I can help you as a mediator.

A Born Moralist

I was on the telephone with my client talking about a Rand Corp. statistical study that was originally prepared as answers to contention interrogatories (!!) but eventually became the centerpiece of Plaintiff's proof that my client had engaged in a massive conspiracy to drive the Plaintiff out of business.  Claimed damages soaking wet:  $250 million.

I was talking about how wrong the opposition was on so many levels -- evidentiarily, practically, legally and, yes, morally.

My client said, "I've finally figured out what you are."

"Yes?"

"You, Vickie, are a born moralist."

And I took that to be a compliment. 

Anything You Can Get Away With

Toward the end of my career all my cases seemed to hover around the quarter-billion dollar mark.  This one was an environmental coverage suit for a major petroleum company's potential liablities for 500 + toxic waste sites in every Canadian province.  This is one of the few cases in which the insurance carrier can wear a "white hat."  My client -- Lloyds of London.

This stuff is complicated.  It involves coverage across a couple of decades and up the ladder of excess policies to the billion dollar mark.  We use "coverage charts" -- often color coded -- to understand the policy profile at a glance.

At every oral argument in the trial court -- up to the winning summary judgment motion -- I arrived with a clutch of color-coded coverage charts that  supported my client's position.  On every occasion, plaintiff's counsel complained about the charts.  But he never brought competing charts with him.  The Judge -- one of the best on the Superior Court bench -- really wanted to understand the issues and get it right.  So she spent each oral argument listening to both parties while scrutinizing my coverage charts.

I genuninely believe that this is why I won.

What Does This Have to Do with Mediation Advocacy? 

Two things.

First, if you believe in the very depths of your soul that your client is right -- as I always did -- your mediation advocacy will improve if you begin to understand the principles of mediation advocacy.  It's banal, already, to say that these principles are non-adversarial.  Yet few litigators are able to shift from a litigation to a mediation model in circumstances in which making the shift would dramatically improve their mediation outcome.     

Second, hellloooooooooooooooo!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!  BRING VISUAL AIDS. 

Most attorneys are likely to settle this case at the mediation if they've brought the right stakeholders, properly prepared their strategic and tactical moves, and counseled their clients appropriately.  Yet they take their summary judgment briefs or demurrers or complaints, change the title to "Confidential Mediation Brief," make a few editorial changes -- primarily by removing references to the Judge granting their motion or providing them with relief -- send these briefs to the mediator, arrive with one (or more) bottom lines and, too often, a "prove you can settle this case" attitude toward the mediator.

This is not an indictment of the litigation bar nor even a complaint from a mediator.  This is the beginning of a series of posts about helping me help you help your client help you win the mediation.

Stay tuned.  Really.  Your mediation practice is about to go thermo-nuclear.  Take it from the "born moralist" who did whatever was (ethically) necessary to win.  Usually with pretty darn good results.

The Daily Kos speculates on Hillary and Barack's different negotiation styles as being attributable to the lack of negotiation classes in the law schools of Hillary's and my era and the presence of those classes in Barack's era here.

Maybe that's why Obama appeals to me so. 

The Hindu News Update Service reports on the emergence of online dispute resolution in India here. 

Let me just say this.  There cannot be too many people practicing mediation. 

There can only be too few.

Excerpt below.

Online Dispute Resolution involving mediation and arbitration with the help of technology, was emerging as a branch of dispute resolution, Chief Justice of Kerala, H L Dattu said on Saturday.

In India, this method is in its infancy stage and is gaining prominence day by day, he said after inaugurating the National Conference on 'court annexed mediation and role of institutional arbitration' here.

With the enactment of Information Technology Act, 2000, e-commerce and e-governance have been given a formal and legal recognition. Even the traditional arbitration law of India has been reformulated and 'Arbitration and Conciliation Act, 1996' was enacted, he said.

For remainder of article, click here.

. . . the Honorable Sam Cianchetti, Los Angeles Superior Court Judge (ret.) for his decision awarding $8.4 million in punitive damages, for a total $9 million award, against Health Net In the Arbitration between Patsy Bates and Health Net, et al. 

Los Angeles Times article here and the opinion itself here.

UPDATE:  For coverage of this case within the industry see The National Underwriter post here.

What does the decision in Riegel v. Medtronic have to do with dispute resolution?  A lot if we collectively pause to commit ourselves to using this calamity/victory as an opportunity to benefit both industry and the public at the same time.  

Is that possible?  I'm a mediator for goodness sakes.  If I didn't believe that to be possible, I'd serve the world better by getting a real estate license.  

Re:  what follows:  I rarely see anyone representing a narrow set of industry interests respond to a victory of any magnitude with the humility and vision expressed by Mark Herrmann in his post from Drug and Device Law -- Much is Given, Much is Expected, excerpted below. 

The medical device industry, or at least the most innovative part of it, received major relief from product liability litigation yesterday in Riegel v. Medtronic (now online at 2008 WL 440744). As long as our clients with PMA-approved devices comply with federal law, they’re not going to be subject to much in the way of product liability. Not only that, as we pointed out only two weeks ago, so-called “parallel” (or “violation”) claims have their own conceptual problems, given the exclusive grant of enforcement authority to the FDA.

That’s not what we’re talking about right now, though. We’re stone, cold sober.

We won. What does that mean? At bottom, it means that, just as Riegel gives some of our clients the opportunity for a more litigation-free existence, that increased freedom carries with it a correspondingly increased responsibility.

Plaintiffs lawyers like to say (at least when they’re not piously denying the “regulatory effect” of tort law in briefs opposing preemption) that product liability litigation serves as an incentive to make safer products.

We defense lawyers retort that product liability litigation is horribly ineffective (given the influence of so many non-merits issues), inefficient (plaintiffs’ lawyers take 33% or more of most recoveries, and that’s not even counting defense costs), and downright counterproductive (deterring innovation, and punishing manufacturers for doing the right thing when they discover problems) compared to governmental regulation as a means of ensuring product safety.

Well, now we’re going to find out who’s really right.

In other words, the PMA medical device field is going to determine in practice whether a high regulation, low litigation environment is as effective a method of ensuring the safety of the public as we think it is – or if it’s as lousy a way of ensuring safe medical devices as the other side claims.

So, to the medical device industry – to the regulators at the FDA – and to our colleagues who practice FDCA regulatory law…. Don’t let us down, please.

I know I've steered pretty wide of negotiation recently.  But I worry about the preservation of the Rule of Law against the forces of benevolent conflict management on the one hand (see yesterday's post on harmony vs. justice here) and the stated enemies of the Rule of Law on the other (see Lawfare:  Peace without Justice is Tyranny here)

You can't negotiate with in a dictatorship.  Nor can you negotiate if you lack access to institutions of power such as Courts of Law.

I'm no academic, but I'd like to draw your attention to a recent Balkinization post on this topic -- A New Generation of Critical Legal Studies, particularly the following excerpt:  

If one takes the . . . coldly realistic view that powerful interests generally get their way (in the end), then the fact that law serves powerful interests is merely one manifestation of the ordinary course of things.

The key question is not whether law serves power (of course it does), but rather, are there any effective ways to temper or limit power? Other than the presence of competing sources of power serving to limit one another’s ambitions, our most effective social invention for constraining power is law. This is the side of law that “shapes, channels and restrains power,” . . . 

This effect is achieved by the relative autonomy of law . . . To obtain credibility with the populace, the law must regularly live up to (or appear to live up to) its claims to be just and to apply to the powerful and weak alike, and this is how law comes to restrain power, even as it also serves power. Moreover, over generations, owing to the effect of legal ideals, people (including government officials) come to genuinely believe in the law, and this belief has a constraining effect on actions.

The process by which law works is almost magical: belief in and commitment to law and to legal ideals creates a reality in which law matters.

In situations where people are pervasively cynical about the law, this magical effect does not work. Law and legal interpretation, then, are manipulated (exploiting the indeterminacy of law) without restraint to do whatever one wants with a legal imprimatur; like, for example, coming up with a twisted legal interpretation of “torture” that purports to exclude waterboarding 

. . . . . [I]f you don’t believe in the rule of law, or if you believe that supporting the rule of law tightens the chains that secure an unjust social order, then it’s hard to come to the defense of the rule of law in times like this. 

                                                  *                 *               * .  

This does not mean that one should not expose the ways in which rhetoric about the neutrality of the law conceals a particular bent and bias. . . .  

                                                   *               *               *. 

The rule of law is an essential political ideal. When confronted with bad things accomplished in the name of the law, the best response is not to undermine law as a fraud. The best response is to demonstrate that these offensive applications betray the ideals about right and justice that law espouses and claims to represent.

This is a time honored (agonizingly slow) way of advancing the state of the law. And it’s the best we have.

The elided material has to do with leftism -- which survives here primarily in academic institutions -- and Critical Legal Studies -- neither of which is of much interest to me.  If either topic is of interest to you, follow the link above to read the full Balkinization post.

I return from the Mediators Beyond Borders Founding Congress in Colorado with much to think, and write, about.

Let me begin today by telling you a story drawn from my community mediation practice. 

The Parties vs. The Lawyers

Crystal and Keith /* are the unmarried parents of a seven year old girl, Taniyah.  They have sought the services of the West Hollywood community mediation center because they want to discuss the resolution of their custody dispute outside the presence of their attorneys.  

After introductions, Keith and Crystal push a proposed settlement agreement across the conference table.  They are shy with one another but united in their desire to reach agreement without any pressure from "The Attorneys."  

Two hours later, we are at item no. 23 -- "neither Parent nor either set of grandparents shall physically strike The Child at any time."   

"Is this a provision you agree with?" I ask.  "It means you can never slap Taniyah's hand," I add.  "Is that something you want to agree to?"

"We don't have a choice," says Crystal.  Keith nods in assent.   

I let the word "choice" hang in the air for a moment as I begin to understand why these two bright, well-educated and articulate young parents have so reluctantly given their meek and mutual approval to every previous item they said they came to the mediation center to discuss.    

The Shadow Conflict 

I put the "proposed" agreement aside.   

"Why don't you have a choice?" 

"Because Taniyah's attorney put this into the agreement," says Keith as Crystal nods in agreement, repeating Keith's remark "we don't have any choice." 

Taniyah has an attorney, I learn,  because Keith's mother -- one of Taniyah's primary caretakers -- left Taniyah at home with her nine-year old cousin, Arabelle to run an errand.  Arabelle, a curious child, led Taniyah on an expedition to her grandparents' bedroom where the two found a stash of light porn -- Playboy and the like.  That,  I'm told, is the only reason Taniyah has an attorney.   

It quickly becomes apparent that Crystal and Keith simply assume that Taniyah's attorney is a decision-maker.  I'm still considering how to approach this problem when Keith asks the question that leads to the resolution of the "shadow" dispute between the parents and Taniyah's attorney.

"How do we get our power back?"   

Justice, Mediation and the Rule of Law

I tell this lengthy story as preface to another from this weekend's Mediators Beyond Borders Founding Congress.  Yesterday, someone suggested from the podium that we should include mediation and arbitration agreements in our own contracts with our own clients.

I raised my hand. 

"Why," I asked, "do you want to restrict our clients' access to the justice system?" once again demonstrating a fractious lack of diplomacy that makes some people wonder how I could possibly be an effective mediator. /**

It wasn't a well-placed question but it is of a type I often find myself more or less compelled to shoe-horn into any conversation that assumes mediation is best for other people. 

Here's what I wish I could have said in a more diplomatic way at some more appropriate time -- taken from Conflict Resolution, Enforcement of Social Link and Substantive Justice. 

I invite comment!!!

A number of scholars have pointed out the danger lying in an ideology of harmony related to ADR where agreement is seen as the panacea in every conflict.

They have argued that mediation was essentially supported by [the] middle upper class and social scientists whereas people . . . involved in conflicts[, including the] working class were expecting law and rights to protect them.

Emphasizing free choice, individualism, autonomy and advantage, and assuming instrumental rather than normative and religious orientations of social action, the concept [of mediation as an ideal form of dispute resolution] seems to describe the culture of professional elites rather than of residents of these urban/ethnic neighborhoods.

As Abel has stated, "there is considerable evidence that people want authority rather than informality. They want the leverage of state power to obtain the redress they believe is theirs by right, not a compromise that purports to restore a social peace that never existed."

According to those scholars, ADR could serve as a means of control and domination in keeping and reinforcing power relations. For instance, Milner Ball has defined ADR as "another form of the deregulation movement, one that permits private actors with powerful economic interests to pursue self-interest free of community norms. "

They argue that in traditional societies . . . mediation is used [when] there is no danger of retaliation from the weaker party. The[] . . . focus on relationships [diminishes the parties' focus on] justice[;] individual satisfaction has become the main purpose of conflict resolution.

Although they are conscious of the paradoxes of Law which can either "symbolize justice or conceal repression, reduce exploitation or facilitate it, prohibit the abuse of power or disguise abuse in procedural forms, promote equality, or sustain inequality, they argue that "Without legal power, the imbalance between aggrieved individuals and corporations or government agencies cannot be redressed".

_______________________

*  I have changed the parents' names and merged two separate mediations in the interest of  confidentiality.

**  The answer to this question is as follows:  I am not mediating when I am engaged in discussion with friends and colleagues.  Just as I do not observe the rules nor use the language of the courtroom at a dinner party, I do not observe the niceties of mediation in public discourse.  It would be better if I did.  I know that.  I'm working on it and will post some insights about constructive public conversations on difficult and divisive topics in my next post. 

Report on Day Two of the Mediators Beyond Borders Conference later this evening.  Now, because Jens Thang from the Negotiation Guru dropped by to comment on Ken Cloke's list of ways we resist change, I'm linking to a recent N.G. article on power.  Go to Negotiation Guru here to read about each of the eight power principles identified by Jens below. 

1. Power of Reward 
2. Power of Punishment 
3. Power of Competition 
4. Power of Consistency 
5. Power of Expertise 
6. Power of Legitimacy 
7. Power of Situation 
8. Power of Information

 , , , , to achieve the highest level power is to have the power and not use it.

I've never actually met  Kevin O'Keefe, the founder of LexBlog, but I owe him a great debt of gratitude for dropping by my old blogger site one day to say he liked a post of mine.  

The rule of reciprocity and -- more importantly -- of curiosity, made me click on Kevin's Real Lawyers Have Blogs.  The rest is my own LexBlog personal history.  First this Blog -- designed and maintained by Kevin -- and then the IP ADR Blog with my IP buddies Les Weinstein, Michael Young, John Wagner, Eric van Ginkel and coming next (!) the brilliant and talented Jay McCauley.

How Kevin Changed My Life

Listen, Kevin is one of those people whose brain is so active you have to put those nuclear material warnings around it.

What Kevin does for a living, however, is not designing and maintaining blogs for lawyers. 

What Kevin does for a living is to build communities, jump-start dialogue, inspire lawyers and those who serve them to reach for the higher value and the deeper meaning, and to guide and maximize entrepreneurial effort. 

THE ABSOLUTE TRUTH

A fellow blogger told me today was Kevin's birthday (thanks Stephanie!)  I only remember my own husband's day of birth because it is the same as mine.   I "penned" this post before I knew that Kevin had kindly complimented by blogging today.

Synchronicity.  Which is not surprising because Kevin's spirit now pervades the legal blogosphere.  He taught me the deep rules of blog road.  And every time a new LexBlog blog hits the runway, I can see Kevin's influence there -- his injunction to not just "join the high level conversation" going on in the blogosphere and in more journalistic venues, but to maximize every opportunity that someone else's insight presents to extend that conversation into your own niche and raise the stakes at least one level upward.

WHY KEVIN

If you want to get an idea of why Kevin is so meaningful to his bloggers, read his mission statement -- the following is an excerpt from it -- Why I Do LexBlog:

To help lawyers. A significant percentage of lawyers became a lawyer because of some principle they held - some burning light inside of them, some cause. Law school, student loans, and the practicalities of working long hours to make money and achieve what others have defined as success have just about drowned out that burning light. Blogging about something that you are passionate about, getting positive feedback from others about your blogging, and getting legal work in the area of law you are passionate about sparks that flame inside. Lawyers start to feel good about themselves. 
 

Thanks Kevin!  You're the best! 

HAPPY BIRTHDAY!!!

O.K., they're not exactly articles.  They're posts.  It's much much easier to write a post than it is to write an article (N.B. IP ADR BLOGGERS!!!) 

Maybe it's just me, but I get more miles per gallon out of reading a blog post than an article. 

Why? 

First, I'm just generally more interested in people's subjective experience than I am in people's opinions about how things are or should be. 

This is the primary difference between an article and a blog post.  An article is usually filled with facts and opinions.  Period.  If a post contains facts and opinions, it expresses them through the writer's unique set of experiences -- through the writer's subjectivity.  

You don't have to be convinced by a poster's opinion -- you get to experience it.  Then you can accept or reject it on its own terms.  As an old Lit major, that's pretty much how I live in the world -- subjectively. 

As the poet Galway Kinnell once explained, if you express your personal, unique, individual experience truly enough, you become the voice of a creature on the planet speaking.  The more subjective your experience, the more universal it is.  

This is why I blog.  If you want to know why other lawyers blog, take a look at What About Clients? here and Ohio Practical Business Law Counsel here.

I'm writing this post because I'm celebrating 100 blog posts over at Mediate.com. 

I'm celebrating 100 because I like round numbers, birthdays, anniversaries and turning points. 

This year, for example, I want to net six figures.  It's nice and round and substantial.  And because I'm doing what I love to do (mediating) instead of simply what I'm good at (practicing law) six figures will be quite enough for me until I'm shuffled off to the old folks' home.  Where I'm hoping, by the way, to reach 100 in good health so I can blog about whatever it is that holds the attention and sparks the passion of someone at the century mark.

Thanks for reading.  There are about 80,000 of you a year now.  I know that's not much on an internet where Lonely Girl 15 gets 25,000 "hits" a day, but it's a lot of people interested in my little niche -- negotiating the settlement of commercial litigation -- not to mention my experience of that niche.  

Which reminds me of one of my favorite Robert Creeley poems, a lagniappe for you on my 100-Mediate.com-Posts Day.

The Conspiracy

You send me your poems,
I'll send you mine.

Things tend to awaken
even through random communication.

Let us suddenly
proclaim spring. And jeer

at the others,
all the others.

I will send a picture too
if you will send me one of you

O.K.  Big confession.  In 25 years of legal practice, I never developed a book a business.  Not one page.  Not even a post-it note.  Which puts me in mind of a Hugh (Gaping Void) McLeod drawing.

Other than to urge you to run right out and buy Dr. Tammy Lenski's new book Making Mediation Your Day Job I parrot once again Mr. McLeod's platinum advice for making your own rain (which, shhhhhhhhhhh, the rain maker's big secret -- it's often way more fun than practicing law!)  

Review of Making Mediation Your Day Job next.

So you want to be more creative, in art, in business, whatever. Here are some tips that have worked for me over the years:


1. Ignore everybody.

2. The idea doesn't have to be big. It just has to be yours.

3. Put the hours in.

4. If your biz plan depends on you suddenly being "discovered" by some big shot, your plan will probably fail.

5. You are responsible for your own experience.

6. Everyone is born creative; everyone is given a box of crayons in kindergarten.

7. Keep your day job.

8. Companies that squelch creativity can no longer compete with companies that champion creativity.

9. Everybody has their own private Mount Everest they were put on this earth to climb.

10. The more talented somebody is, the less they need the props.

11. Don't try to stand out from the crowd; avoid crowds altogether.

12. If you accept the pain, it cannot hurt you.

13. Never compare your inside with somebody else's outside.

14. Dying young is overrated.

15. The most important thing a creative person can learn professionally is where to draw the red line that separates what you are willing to do, and what you are not.

16. The world is changing.

17. Merit can be bought. Passion can't.

18. Avoid the Watercooler Gang.

19. Sing in your own voice.

20. The choice of media is irrelevant.

21. Selling out is harder than it looks.

22. Nobody cares. Do it for yourself.

23. Worrying about "Commercial vs. Artistic" is a complete waste of time.

24. Don't worry about finding inspiration. It comes eventually.

25. You have to find your own schtick.

26. Write from the heart.

27. The best way to get approval is not to need it.

28. Power is never given. Power is taken.

29. Whatever choice you make, The Devil gets his due eventually.

30. The hardest part of being creative is getting used to it.

31. Remain frugal.

32. Allow your work to age with you.

33. Being Poor Sucks.

34. Beware of turning hobbies into jobs.

35. Savor obscurity while it lasts.

36. Start blogging. [see Why Every Client Should Want an Attorney Who Blogs here and the advice to "keep it quiet!" here)

The entire "must read" blog post can be found by  clicking here (pdf) or here.

Thanks to Tulane Law School Professor Alan Childress over at the Legal Profession Blog for alerting us to this item No Bias on Encouraging Settlement about a Rhode Island Supreme Court ruling that a Judge needn't recuse himself for bias if he encourages the parties to settle. 

As Georgetown Adjunct and Legal Profession Blogger Michael Frisch reports,

the plaintiff [in that case] argued that the judge's encouragement of settlement talks demonstrated bias; the court strongly disagreed. It is entirely appropriate for a judge to suggest that parties resolve their claims through mediation. . . "No less renowned a figure than Abraham Lincoln recognized the desirability of settlement when possible...it borders on the offensive for a party to claim that a justice should be recused for adhering to this policy [of encouraging settlement]."

As "amusing" as this might first be to lawyers, I don't want to let it pass us by without pausing a moment to consider the possible communication gap between Judges and lawyers -- on the one hand -- and people seeking justice -- our clients -- on the other.

People Seek the Services of Lawyers to Solve a Justice Problem

Having recently earned my LL.M and taught a semester of ADR theory and practice to law students, I can report back from the law school trenches that cynicism about justice is not limited to old dogs like me.  By their second year in law school, most aspiring attorneys have narrowed their view of justice/injustice to those wrongs the law will remedy.  See Writing on a Piece of Rice in a World of Injustice.  More troubling, they've narrowed to a vanishing point their former hopes, if any, to be part of a system that delivers justice.

When I ask defense attorneys in settlement conferences why they think their opponent filed the lawsuit against their client they answer with a single voice:  MONEY! 

"But why do you think they hired a lawyer," I persist. 

"Money," they respond again, as if I'd suddenly lost all reason.

"But why did Mr. X even think of seeking resolution in Court . . . under the law . . . why did he turn to the justice system?"

"For justice?"

Losses the Law Will Redress

People suffer losses every day of the week.  They lose their luggage in Madrid.  They don't get a raise or a year-end bonus.  They slice off the tip of their finger while chopping onions for Sunday dinner.  If they are lawyers of my generation, they got a 610, instead of a 700 on their LSAT -- thereby losing any hope of attending an Ivy League law school.  

The cynical persist.  "People have been known to sue for those losses too," they say.  

True, but they are among the very very very few.  Most people who undertake the considerable effort to find an attorney willing to take their case do so because they believe they have been treated unfairly.  They believe themselves to be victims of an injustice.  

And attorneys, not clients, are the first ones who monetize injustice for their clients.  Still, years after that injustice has been monetized, right before trial when most mediations and settlement conferences take place, the clients continue to long for justice. 

A Monetary Solution to a Justice Problem

So we should pause before we give in to the temptation to make light of the client who must have urged his lawyer to recuse the Judge for even suggesting that he not immediately be given access to justice -- a jury trial.  A client who likely feared he'd be strong-armed into accepting injustice in a Court suggested mediation.    

Our clients are speaking and we are not listening.  We are in danger of processing monetary claims rather than helping our clients come to terms with the justice issues they brought to us to resolve. 

As a mediator, I can tell you that most clients need to have monetary resolutions framed as "fair" or "just" results.  And if that is impossible, they need -- at a minimum -- to have the injustice they are suffering acknowledged by the mediator.  

As to those Judges who "encourage" mediation, I suggest that the directive be framed as an attempt to achieve, through settlement, that which it may not be possible to achieve in Court.  I would, in all events, assure the people seeking justice who appear before me, that I will be there, ready and able to try their case -- happy to serve their justice needs -- if the mediation I suggest they pursue fails to deliver the fair result they are seeking.

Thanks to the ABA Journal for giving me the opportunity to use the word "sex" in a negotiation blog.  Alas, our wayward human hearts -- and libidos -- will never stop leading us into endless acts of mischief.  See below from Judge Shines Light on Secret Pact to Settle, Hide Text Messages.

A Michigan judge has ordered the release of documents indicating that Detroit Mayor Kwame Kilpatrick settled a police whistle-blower lawsuit to try to hide text messages showing he lied about his [sexual] relationship with his chief of staff, the Detroit Free Press reports. . . . . 

An anonymous source told the Detroit News that the settlement was triggered by Stefani’s threats to file court documents referring to text messages pointing to an affair between Kilpatrick and his former chief of staff, Christine Beatty. Both had denied an affair when they testified in the officers’ lawsuit.

Legal experts told the Detroit Free Press in a separate story that the lawyers defending the city and the mayor could come under scrutiny if they knowingly used secret pacts to conceal the crime of perjury.

For full text click here. 

Trial attorneys, negotiators, mediators and settlement judges all share the same essential concern -- how to reach and persuade our audience.    

Trial lawyers have a product to sell -- their client's narrative -- which is always just one version of the "truth."  Negotiators are also selling -- a business proposition their bargaining partner will find attractive.  Settlement judges who have not been trained as mediators are generally selling fear -- the uncertainty!  the expense!  the delay! 

And mediators?  What's on display at our hot dog stand?  The needs and desires of the parties, certainly.  Many arrive at the mediation without having given any thought to their own true wishes at all.  We tend to go a little deeper than the negotiators, who are selling the future rather than also attempting to repair the past.  We try not to be fear mongers like some of the worst settlement head-bangers we remember from our own legal practice.  And, unlike trial lawyers, we straddle the "truth," attempting to harmonize the parties' narratives rather than selling one version as superior to the other. 

So what are we mediators really selling?  Reconciliation. Accountability. Understanding. Consensus.

And this Bears Upon Political Campaigns and Jury Trials in What Way?  

I don't subscribe to many blogs, diverting the few dozen that capture my interest to my news reader.  I do subscribe to Anne Read's Deliberations, however, because she really "gets" people's pre-dispositions -- the ones I need to understand for the purpose of helping my clients to comprehend -- appreciate even -- the other guy's point of view.     

Today, for instance, Anne reminds us that we are in the midst of a Great National Jury Seminar.  All we have to do is click on the campaign news. As usual, Anne is looking past the easy answers -- race, gender -- in favor of exploring the deeper reasons we might vote for someone of our own nationality or hair color -- shared stories.  Here, for example,

What do race and gender really mean? Most studies of jurors conclude that juror demographics don't directly affect verdicts -- with the important exception that jurors lean toward parties of their own ethnicity. (That's from Devine et al, Jury Decision Making: 45 Years of Empirical Research on Deliberating Groups, 7 Psychology, Law, & Public Policy 622 (2000)). But at the same time, we know that people of different races and genders often have shared experiences. Since experiences in turn shape attitudes, race and gender matter in ways that go beyond loyalty, but are difficult to define.

Trial lawyers have long wanted to understand this better -- and these days, so does every news organization in America. One fascinating piece of this is how individual one's group identity can be, as Newsweek explains in an article that's well worth reading in full:

Which candidate a voter identifies with is one of the most important gut-level heuristics, since it is tantamount to deciding that someone is enough like you to "understand the concerns of people like you," as pollsters put it. "If you feel a candidate is like you racially or by gender, you're more likely to believe that that candidate will support what you support," says [Harvard political scientist Pippa] Norris. But with a white woman and a black man vying for the Democratic nomination, where does that leave black women? Whom they most identify with depends on which aspect of their own identity dominates their self-image. . . . . 

Read on here (my emphasis)

We're in the People Business

So are we all just Willy Lomans, carrying our self-esteem, our hopes and dreams, our successes and failures in our sample cases -- to display -- or not -- when a customer calls?  I think we are.  And the mistake we make, when we make one, is to direct our customers' attention only to the glittering lures -- the "sales" talk -- the promises of a brighter future, a better marriage, a faster car.

If we take a deep breath from time to time and listen to ourselves instead of pontificating and persuading, we'll be reminded that we're all seeking the same thing.  Community.  Belonging.  Understanding.  Even shared sacrifice.  Every negotiation, every mediation, every trial represents a human relationship in crisis.  If we really get that, we can start working together again, in the same general direction, even when our ideas about how to accomplish that differ.  

An Unpaid Political Stream of Consciousness

Listen.  No one will gasp in surprise when I say I'm a lifelong Democrat.  Nor will my readers likely be surprised to hear me articulate my fondest election year desire -- that Hillary and Barack -- sooner rather than later -- will find a way to join experience with vision for the purpose of leading this country out of the long season of division that, let's be frank, began in the sixties and has never healed.  That they will together lead this country back to what it's truly best at -- uniting a diverse, fractious, irritable, needy, greedy, fearful, hopeful people into a single nation with a higher purpose than our own individual and narrow interests.  The United States.

If both candidates could put their campaigns -- their money; their volunteers; their momentum -- together for the purpose of healing discord and revealing a new national consensus -- we would not simply feel great about our country again, we'd actually be great again.  

Check out last November's post on Negotiation Guru, How to Be a Classy Negotiator.  Excerpt below:

Classy negotiator?! Is there such a thing? I believe there is. A negotiator is not always about being competitive, collaborative, avoiding and the whatnot. Whichever type of negotiating styles you have, you can still be a classy negotiator.

What’s a classy negotiator? Someone with class. Simple as that.

This does not mean that you have to put on your Hugo Boss suit that is tastefully designed and tailored. It means that you always maintain refined grace.

Being a classy negotiator means that you do not speak ill of the other party (before and after the negotiation). Instead, speak well of them in public.

For full article, click here.

I received more Machiavellian advice from my first law mentors a zillion years ago -- never dismiss your opponent's abilities to anyone -- your victory will look far better if everyone believes you beat a master rather than an idiot.