Negotiation Law Blog

A friend of mine once told me that "the most successful learning dyad in the history of the world" is the mother-infant/child relationship.  Contemporary psychologists who have studied that relationship have discovered that toddlers whose caretakers help them "repair" the loving relationship that existed before the moment shame is elicited, learn guilt and apology instead of chronic shame and denial or withdrawal.  

The explanation below (from my article Shame by Any Other Name) is largely drawn from the work of two scholars --  ALLAN N. SCHORE, particularly his book AFFECT REGULATION AND THE ORIGIN OF THE SELF: THE NEUROBIOLOGY OF EMOTIONAL DEVELOPMENT (1994) and D.L. NATHANSON, particularly his book SHAME AND PRIDE: AFFECT, SEX AND THE BIRTH OF THE SELF (1992).

Distinguishing Guilt from Shame 

By age two, children develop the ability to empathize with the feelings of another and by age three to evaluate their own conduct against objective behavioral standards. As soon as we are able to experience shame and guilt, we instinctively attempt to regulate our emotional state by engaging in spontaneous acts of confession and reparation. . . . .

Shame . . . "acts as a powerful modulator of interpersonal relatedness and . . . ruptures the dynamic attachment bond between individuals."   When an individual has broken this bond, he wishes to recapture the relationship as it existed before it turned problematic.

Toddlers shamed by their mothers, for instance, naturally initiate appeals to repair the momentary break in the emotional bond resulting from the shame-inducing behavior. This process is called self-righting. It is natural and universal. The shamed toddler reflexively looks up at and reaches toward his mother. Even a preverbal child will spontaneously express this need to be held in an attempt to reaffirm both self and the ruptured relationship, to feel restored and secure.

A healthy and responsive mother accepts and assuages the child's painful feelings of shame, enabling the toddler to return to a normal emotional state, one in which love and trust are ascendant. If the caregiver is "sensitive, responsive, and emotionally approachable," especially if she uses soothing sounds, gaze and touch, mother and child are "psychobiologically reattuned," the "interpersonal bridge" is rebuilt, the "attachment bond" is reconnected, and the experience of shame is regulated to a tolerable emotional state.

This series of events between child and care-giver has been termed the "positive socialization of shame." It permits the infant to "develop an internal representation of himself as effective, of his interactions as reparable, and of his caregiver as reliable." . . . Importantly, when shame goes unacknowledged, "it is almost impossible to mend the bond." The natural resulting inclination to hide one's misdeeds "creates further shame, which creates a further sense of isolation."

Thus, while shame in the absence of a consistently repaired interpersonal bridge creates pathology, repair teaches emotional self-regulation, creates "secure attachments" and leads to the development of empathy and conscience.

Tomorrow, How to Make the Apology that is Most Likely to Result in Reconciliation 

(thanks to Beyond Intractability for the graphic)

We talk a lot about apology as a means of descalating conflict for the purpose of engaging in successfully mediated settlement conferences and non-mediated commercial negotiations alike. 

You can bargain with someone who is enraged at (or even merely irritable with) you, but your negotiation will be derailed over and over again as feelings interfere with business judgment. 

Although you can't have one without the other (judgment without emotion) some emotions are conducive to successful negotiations and some are corrosive. 

APOLOGY:  I'm writing a book and my blog-job is interfering with my deadline.  So I'm stealing my own material, for which I aplogize to myself and to any reader who has already read my published article on Restorative Justice -- Shame by Any Other Name Lessons for Restorative Justice from the Principles, Traditions and Practices of Alcoholics Anonymous (2005) 5 Pepp. Disp. Resol. L.J. 299 (2005). 

If you're interested in what shame and guilt have to do with moral development as a preclude to recognizing the difference between guilt-ridden and shame-infused apologies, read on.  (and yes Janis, I'm working on it!)

A SHORT PRIMER ON SHAME, GUILT AND MORAL EDUCATION

A. The Origins and Effects of Shame.

The word shame is derived from the Indo-European skem which means "to hide." Shame makes us want to hide - from ourselves, our God and our peers - making shame an existentially isolating state of mind. Feeling shame makes a person "dejection-based, passive, or helpless," causing the "ashamed person [to focus] more on devaluing or condemning his entire self" than upon his behavior. He sees himself "as fundamentally flawed, feels self-conscious about the visibility of his actions, fears scorn, and thus avoids or hides from others."

The shamed individual wants "to undo aspects of the self" whereas the guilt-ridden one wishes to undo aspects of his behavior. It is therefore not surprising that guilt tends to motivate restitution, confession, and apology, whereas shame tends to result in avoidance or anger.

The psycho-biology of the constellation of emotions we call "shame" is innate. It produces a sudden loss of muscle tone in the neck and upper body; increases skin temperature on the face, frequently resulting in a blush and causes a brief period of incoordination and apparent disorganization. No matter what behavior is in progress when shame affect is triggered, it will be made momentarily impossible. Shame interrupts, halts, takes over, inconveniences, trips up, makes incompetent anything that had previously been interesting or enjoyable. 

A state of cognitive shame follows this initial cluster of feelings. After the painful jolt of shame, we begin to search our "life scripts" for some way to integrate the shameful experience with our prior experiences, to make sense of the pain and disorientation caused by the sudden upset of a positive emotional state.

Because our earliest experiences of helplessness relate to our size, strength and intelligence, only anger and its explosive cousin, rage, allow us to prove to ourselves and others that we are powerful instead of weak, competent rather than stupid, large rather than small. Thus do many shame-suffused individuals respond to chronic shame in an attack mode, particularly those who feel "endangered" by the depths to which their self-esteem has been reduced. Such individuals experience shame as a threat to their physical well-being and lack the ability to trust and rely upon others.

Shame thus serves as a barrier to one's capacity to achieve empathy and develop conscience.

Distinguishing guilt from shame tomorrow.

You just slip out the back, Jack
Make a new plan, Stan
You don’t need to be coy, Roy
Just get yourself free
Hop on the bus, Gus
You don’t need to discuss much
Just drop off the key, Lee
And get yourself free 
  

Where matchmaking service moved to compel arbitration of clients’ action alleging that  "consulting agreements" were fraudulently induced, and agreements were [within a] class of contracts regulated by state law expressly rendering nonconforming contracts void and unenforceable, agreements’ failure to expressly set forth language required under dating service statutes--Civil Code Sec. 1694, et seq.--rendered [them] and [the] arbitration provisions [contained in them] unenforceable. Duffens v. Valenti - filed March 27, 2008, Fourth District, Div. One Cite as 2008 SOS 1811

Click on the upper right hand corner and on "view full screen" at the bottom of the drop down menu that appears there. 
Breakthrough Business Negotiations - Get more free documents

Above:  Tony's last session with Dr. Melfi

I told you my feelings, every day is a gift...It's just - does it have to be a pair of socks?  Tony Soprano, Episode 74

I know what type of negotiation answers people are searching for because my blog's "back end" lists the search terms people use to find me (thanks LexBlog!)  This morning, someone was searching for an answer to the question "how do you negotiate with a sociopath?"  

One of the central "in" jokes of the hit and late lamented HBO series The Sopranos is that you cannot successfully love (Carmela) treat (Dr. Melfi) nor negotiate with (the entire cast) a sociopath (Tony).  You can only stop denying that you are dealing with one -- something it took even the psychologist Dr. Melfi six full seasons to accomplish.    

All I have to add to the injunction "don't" is that you not be too quick to label the people you don't like or understand as being unreachable, untreatable or unteachable.       

How do you recognize a sociopath?  Take a look at this article from damn interesting,The Unburdened Mind, by Christopher S. Putnam.

“I don’t think I feel things the same way you do.”

The man sits at the table in the well-fitted attire of success—charming, witty, and instantly likeable. He is a confident, animated speaker, but he seems to be struggling with this particular point.

“It’s like… at my first job,” he continues, “I was stealing maybe a thousand bucks a month from that place. And this kid, he was new, he got wise. And he was going to turn me in, but before he got the chance I went to the manager and pinned the whole thing on him.” Now he is grinning widely. “Kid lost his job, the cops got involved, I don’t know what happened to him. And I guess something like that is supposed to make me feel bad, right? It’s supposed to hurt, right? But instead, it’s like there’s nothing.” He smiles apologetically and shakes his head. “Nothing.”

His name is Frank, and he is a psychopath.

In the public imagination, a "psychopath" is a violent serial killer or an over-the-top movie villain, as one sometimes might suspect Frank to be. He is highly impulsive and has a callous disregard for the well-being of others that can be disquieting. But he is just as likely to be a next-door neighbor, a doctor, or an actor on TV—essentially no different from anyone else who holds these roles, except that Frank lacks the nagging little voice which so profoundly influences most of our lives. Frank has no conscience. And as much as we would like to think that people like him are a rare aberration, safely locked away, the truth is that they are more common than most would ever guess.

Continue reading here.

Yes you CAN pre order this book now!!  Right here.

  Not ready for the revolution?   Read this review by clicking on the upper right hand corner and hitting "view full screen" at the bottom of the menu.

Book Review of Conflict Revolution; Mediating Evil, War, Injustice and Terrorism: How Mediators Can Help Save the Planet by Kenneth Cloke reviewed by Victoria Pynchon - Get more free documents

  UPDATE:  TODAY THE LAUNCHING OF THE NETWORK WAS ANNOUNCED; I UNDERSTAND THAT THE ACTUAL LAUNCH DATE WILL OCCUR IN THE NEXT FOUR TO EIGHT WEEKS.

 Forbes.com to Launch Business and Finance Blog Network.  Excerpt below: 

Today Forbes.com, home page for the world's business leaders, announced the creation of a Business and Finance Blog Network, comprised of a community of pre-screened, influential business and financial blogs.

The Blog Network's content will focus on senior business decision makers and high-net-worth investors. Topics will be relevant to the banking, trading, hedge fund management, affluent investing, and senior business decision-making communities. Participation in the network is by invitation only, and all blogs are vetted by Forbes.com editors for appropriate content, and to ensure that they are in keeping with the Forbes editorial brand.

The network will allow advertisers to target a highly engaged, exclusive niche audience of senior business decision makers and affluent investors easily and effectively. Four hundred-plus blogs have already joined the network, with many more expected to sign on before the official launch in the next few weeks.

"There is no denying the growing importance and influence of blogs within the media landscape," said Forbes.com President and Chief Executive Officer Jim Spanfeller. "Forbes.com can ensure advertisers are reaching a hard-to-find and very desirable audience within safe, well-lit environments by exclusively inviting 'best of breed' business and investing bloggers to our new Business and Finance Blog Network."

Nick Ricci has been appointed General Manager, Sales. He will be responsible for overseeing the sales, marketing and promotion for the Blog Network as well as the Forbes Audience Network (FAN), which launched in November 2007. Nick joins Forbes.com from About.com, where he served as Senior Vice President, Sales and Ad Operations. He has also held senior sales management and marketing positions at Times Mirror Magazines, Cox Interactive Sales, and Hachette Filipacchi Media US. Nick is already in the process of hiring and building a dedicated network sales team.

"I'm thrilled that Nick has joined Forbes.com to oversee the sales efforts for the Blog Network," added Spanfeller. "He is a seasoned executive with several years of sales and marketing experience who will play a key role in driving the network's success."

Click here for the remainder of the article.

Thanks to the indefatigable Sharon Gitelle for her hard and dedicated work putting this network together.

Red and yellow black and white they are precious in his sight Jesus loves the little children of the world.  Lyrics C. Her­bert Wool­ston (1856-1927); Music: George F. Root (1820-1895) (MI­DI, score). Root orig­in­al­ly wrote this tune for the Amer­i­can civ­il war song Tramp, Tramp, Tramp.

Verily I say unto you, Whosoever shall not receive the kingdom of God as a little child shall in no wise enter therein.  Luke 8:17 

Easter is one of those holidays that resists secularization unless you have children, grandchildren, hard boiled eggs and a rainbow of pastel dyes. 

People don't casually say "Happy Easter" to one another, particularly in an urban American city and especially if half your family is Jewish.

Still, Easter reminds me that I used to be a practicing Protestant and that my values derive substantially from the liberal Christian teachings I was dipped into as a child -- first in Sunday School and then in church.

What did I learn?  Tolerance.  Compassion.  Empathy. Forgiveness.  Reconciliation. And perhaps most important of all, the genuine potential for every ordinary human spirit to experience a radical transformation -- so radical that one might say the individual had been reborn as a spiritual being. 

Listen, this is not light weight stuff. 

I like to write, but I'm no philosopher.  Nor am I writer with a huge brain, steadily empathic heart, encyclopedic knowledge, original thought or the courage to dream paradigm shifting dreams.  I do know that writer, however.  His name is Ken Cloke and I am steadily making my way through all 500 and something pages of his new book.  

These are the times to put our own individual highly personal spiritual or religious faith and a great deal of our material resources behind the transformation of human understanding necessary to save the species.  (as James Lovelock , author of Gaia instructed us, we have no need to worry about the persistence of the planet itself.  We are not necessary to its survival; we are merely its "spokesmodels.")  

As my personal Easter offering, I give you yet another excerpt from Ken's soon-to-be-released book Conflict Revolution - Mediating Evil, War, Injustice and Terrorism or How Mediators Can Help Save the Planet.

How Prejudice Works, and How to Oppose It

Prejudice is complex and operates on many levels. It can be found not only in insults and judgments, caricatures and stereotypes, but refusals to listen and communicate, stories of demonization and victimization, inability to experience empathy with others, and infinitesimal denials of humanity. It is reflected in personal selfishness and hostile relationships, bullying and aggressive behaviors, and ego compensations based on poor self-esteem. It is expressed through contempt, disregard, and domination, as well as through low status, inequitable pay, and autocratic power.

Prejudice commonly operates by stereotyping. People form stereotypes, in my experience, in eight easy steps:

1. Pick a characteristic
2. Blow it out of proportion
3. Collapse the person into the characteristic
4. Ignore individual differences and variations
5. Disregard subtleties and complexities
6. Overlook commonalities
7. Match it to your own worst fears
8. Make it cruel

If these steps routinely produce prejudice, it is possible to undo them, for example, by making people more complex than their stereotype permits, or distinguishing unique individuals within a group, or recognizing commonalities between people. It helps, in doing so, to acknowledge that everyone is equal, unique, and interesting; that everyone forms prejudices; that everyone can learn to overcome them through awareness, empathy, and communication; and that everyone can become more skillful in communicating across stereotypes and lines of separation created by fear.

It is common for people, when accused of prejudice, to respond defensively, but to confront other people’s prejudices aggressively, leveling accusations and instilling shame. These responses may initially succeed in suppressing the expression of prejudicial attitudes and undermining social permission and the cultures of discrimination that allow it to continue. But to root out the deep-seated biases that keep prejudice alive, it is necessary to dismantle it at a deeper level, in people’s hearts and minds.

Our principal goals in responding to prejudice are therefore not to castigate, blame, or point fingers at those who exhibit prejudicial attitudes, as shaming and blaming merely triggers defensiveness and counterattack. Instead, they are to defuse prejudice by assisting those in its grip (including ourselves) to:

1. develop a knowledgeable, confident self-identity, and appreciate who they are without needing to feel superior to others 
2. experience comfortable, empathetic interactions with diverse people and ideas 
3. be curious and unafraid of learning about differences and commonalities 
4. feel comfortable collaboratively solving problems and negotiating differences 
5. be aware of biases, stereotypes, and discrimination when they occur 
6. stand up for themselves and others in the face of prejudice, without becoming biased in turn 
7. experience diverse affectionate relationships that grow stronger as a result of differences
   

(image from Fixing Australia, the Blog)

My husband and I were watching part II of the John Adams series on HBO last night -- the part where Benjamin Franklin gives Adams (Paul Giamatti) some OJT on international diplomacy, beginning with -- and I paraphrase -- "you can't get a man to do what you want him to do by publicly humiliating him." 

Later, Abigail Adams (Laura Linney) gives essentially the same advice in a womanly way. 

"A man likes to make his own decisions," she says as she sends John off to the Continental Congress to seek men and arms (and help from the French) in  Massachusetts' recent violent confrontations with the British Army. 

Abigail takes a breath to make sure her head-strong husband can hear her. 

"Men," she concludes, "do not like to have their decisions made for them."  

Still, it wasn't until we reached the movie's scenes dramatizing the delegates' after-hours meetings in the local public house that my husband finally turned to me and said "they're mediating in separate caucus."   

The Unity Necessary for Political Change Requires Mutual Self-Interest and Common Ground

The unity necessary to make the agonizingly difficult 1776 decision for independence, revolution and war was not achieved by persuasive argumentation, but by the alignment of each state's self-interest with the self-interest of each other state.  This was Franklin's brilliance as international ambassador and as one of the founders of our unprecedented and improbable political enterprise - the united states.  

All of which takes me to Ken Cloke's new book Conflict Revolution -- Mediating Evil, War, Injustice, and Terrorism -- which I've been reading in draft but that you'll soon be reading in print --  pre-order now -- courtesy of Janis Publications. 

I want to tell you all about Ken's revolutionary shift from rights and power on the one hand to mutually beneficial interests on the other, but I've got work to do.  For now, I'll leave you with a snippet from his last chapter which should whet your appetite for more.

Political theorist John Schaar wrote:

“The future is not some place we are going, but one we are creating. The paths are not to be found, but made. And the activity of making them changes both the maker and their destination.”

Ultimately, we are the social, economic, political, and environmental impediments we are seeking to overcome. All the problems and conflicts we want others to resolve are already present within us. The systems, paradigms, cultures, and environments we regard as dysfunctional exist not just around and between, but within each of us. They are us, even if we have devoted our lives to changing them, and must be transformed both within and without.

Systemic, paradigmatic, transformational, revolutionary changes therefore require personal as well as social revolutions. These revolutions do not happen merely by participating in recycling efforts to reduce environmental pollution. At their deepest level, they require us to actually experience ourselves as no different from the plants and animals we are destroying and, more problematically, from the people who are doing the destroying. Only by accepting personal responsibility for global problems on this scale can we discover where they begin inside us, and identify the practical steps we can take to stop them at their source.

Consequently, we not only need to transform the dominating and coercive nature of social, economic, political, and environmental power, and dismantle them at their systemic source by expanding the use of interest-based alternatives and increasing the ability of civil society to solve problems collaboratively. We also need to refuse to participate in them personally, even when they are dedicated to achieving “good” ends. This is no easy matter, both because a great deal is at stake and because domination and coercion are not just large-scale events, but small, barely noticeable everyday behaviors whose origin lies in all of us.

I've got a series of guest posts about using conflict resolution skills to set partnership compensation over at the Connecticut Employment Law Blog while employment lawyer and blogger Daniel Schwartz is in trial.  So I've been thinking about law firm employment issues a lot lately. 

Two of the most important men in my life -- my step-son Adam Goldberg who is about to begin a law firm career -- and my husband, insurance recovery and complex commercial litigator Stephen Goldberg who just joined Dickstein Shapiro after nearly 35 years with Heller Ehrman -- keep me interested in the happiness quotient of BigLaw associates and partners.

So I'm always happy to read that lawyers somewhere are happier than they are in other places, like at Blackwell Sanders where the ABA online Journal tells us that the  Attrition Rate for Associates Has Been Cut in Half. (excerpt below).

Kansas City firm Husch Blackwell Sanders reports it has cut its attrition in half after it cut its lockstep evaluations of associates in 2001.

"It doesn't make a lot of sense to compensate, bill for and advance associates based on how many years they've shown up for work," partner Peter Sloan told the Los Angeles Times in a story about the student-led effort, Building a Better Legal Profession.

Sloan notes that the firm evaluates young lawyers based on learned skills. They also give credit for pro bono work and other initiatives. Clients are pleased with this system because they pay based on an associate's experience level rather than how many years it's been since graduation.

I'll be commenting on this in Part III of my guest column over at Connecticut Employment Law Blog in the next couple of weeks so keep an eye out for it there.   

See also How Big Law Firms Can Retain the ‘Lost Generation’ of Unhappy Associates here.

This case has been knocking around the Los Angeles Superior Court for some time. 

Though many mediators have tried to settle it, the case resisted resolution until it came into the full-time settlement court presided over by our friend and fellow Straus Institute-Adjunct Professor Judge Alexander Williams, III during California Mediation Week!

Good work Judge!  And if you've ever spent any time with Judge Williams, you too would be saying, as I am, "he has all the fun!"

Fun report below:  

While the lawyers were in chambers with Williams the first day, Jardine and Wilson sat in the audience and chatted, occasionally singing lines from "Help Me Rhonda" -- for which Jardine was the lead singer -- and "Tom Dooley," the Civil War-era folk song made famous in a version by The Kingston Trio.

Remainder of post here and video of Judge Williams describing his settlement and mediation process here.

If this YouTube Video Doesn't Work, Click Here for the Entire Speech

Why talk about achieving your heart's desire in a blog dedicated to negotiated resolutions of disputes?  Because you must know how you value a thing before you can even begin to think about negotiating a price for it.

This week, over at the Connecticut Employment Law Blog, Part II on my series of posts on negotiating  partnership compensation will appear.  (Part I is here).  If we don't know what we really want, we are more apt to accept in compensation for our life's work what one author has called "frozen desire" -- money -- even when money fails to satisfy.  (See Frozen Desire, The Meaning of Money here)

Because I made (and am continuing to make) a career transition and because my new career is truly  my own heart's desire, I offer the following advice from the middle of the road toward my own unique kind of success -- a success that includes but does not entirely rest upon money as a measure.  

• Give up whatever it is you are currently addicted to -- money, property, power, prestige, safety, drugs, alcohol, food, spending, cheating, clinging, worrying, or even simply saving against an uncertain future.
• Find your "bliss"
  • I didn't know what this was until I was ready
  • I wasn't "ready" until I conquered numerous other challenges 
  • Your "bliss" doesn't occur to you overnight and it changes over time
  • Your "bliss" generally takes more than one form
  • sometimes life has to rip out of your hands that which you already possess before you are ready to pick up the new thing and start working on it 
  • in other words, you can't do the new thing until you've pretty much completely finished with the old 
• Ignore "sunk costs."  In my case,
  • tuition for LL.M
  • cost of professional training other than LL.M
  • sweat equity
    • pro bono panels
    • writing
    • speaking
• Don't let people tell you that it cannot be done
  • there are a thousand, a million reasons why something cannot be accomplished and only one reason it can -- you are committed to doing it
  • people who say you can't are more frightened than you are about their own ability to alter their destiny -- be kind to them but do not let them deter you
• Don't give up when it -- whatever "it" may be -- doesn't happen right away
• Be flexible
• Fill in the lean times with stuff you already know how to do. 
  • I, for instance, write, legally and "technically"
    • I have a range of writing "rates" according to the task
    • I charge more for legal briefs
    • I charge less for the occasional odd job when someone who needs a little writing done thinks -- oh Vickie would be the perfect person to do this!
  • I'm not too good for anything that provides me with income
  • Nevertheless, I set my rates at "market" as soon as I believe I have the education, training and experience to justify it
• Give freely of yourself without expectation of reward
• That said, barter
  • what you used to do has more value than what you're now beginning to do
  • don't hesitate to barter your old services in service of the new
• Build a social and professional network
  • you are now in possession of plentiful seeds of your new venture
  • toss them everywhere; spread them promiscuously
  • don't let anyone tell you that so and so cannot give you work -- everyone can give you work, even people who others see as your competitors
  • you have no competitors -- your market is big enough for you
  • your network should be both online (LinkedIn, Face Book and the like) and off-line (Bar and industry associations)
• Be a program of attraction rather than promotion
  • be a problem solver
  • walk your ADR talk
  • let people wonder what you do and tell them only when they ask
• Market your own backyard
  • you know certain types of people, professions, industries and commercial enterprises better than others
  • market them
  • remember Colin Powell's advice -- the most important information to an international diplomatic negotiation is "being inside the other guy's decision cycle."
  • it's easier to market the people you know than those you don't
• Be passionately committed to your own success. 

Until one is committed, there is hesitancy, the chance to draw back-- Concerning all acts of initiative (and creation), there is one elementary truth the ignorance of which kills countless ideas and splendid plans: that the moment one definitely commits oneself, then Providence moves too. All sorts of things occur to help one that would never otherwise have occurred. A whole stream of events issues from the decision, raising in one's favor all manner of unforeseen incidents and meetings and material assistance, which no man could have dreamed would have come his way. Whatever you can do, or dream you can do, begin it. Boldness has genius, power, and magic in it. Begin it now. Goethe

The world comes into existence as you move toward it.  Paul Auster

Whatever happens. Whatever
what is is is what
I want. Only that. But that.

--Galway Kinnell 
New Selected Poems, Mariner Books, 2001

The prestigious Straus Institute for Dispute Resolution has a new web site -- HERE!!! -- and a few videos that the beginning mediation or settlement advocate shouldn't miss.

Here's Judge Williams, who sits in the downtown Los Angeles Superior Court as a full-time settlement judge.  In the first part of his video, Judge Williams talks about the differences between settlement and mediation as well as a few of his favorite topics -- CHOICE, RESPECT, JUDICIAL ECONOMY ACCESS TO JUSTICE and EFFICIENT CASE MANAGEMENT. 

In part 3 of the video, Judge Williams discusses basic mediation concepts such as interest-based and distributive bargaining; impasse-breakers; trust-building; shuttle negotiation diplomacy; mediators' proposals and the like. 

If I missed Judge Williams saying "you have to hang the meat low enough for the dog to smell it," I'll apologize to him for inattention the next time I see him.  If he didn't say it, I'll be looking for the next part of the video, where gems like that may be found. 

If you wonder "why the orange?" -- listen to part 3.

Judge Helen Bendix, the Chair of the Los Angeles Superior Court ADR Committee, talks about the contribution of the Court's ADR program to the administration of Justice.  That program has not only settled thousands of cases, but has served as the training ground for thousands of mediators in assisting litigants in negotiating the resolution of their lawsuits. 

Co-Directors of the Straus Institute, Tom Stipanowich and Peter Robinson address mediation issues for the first part of this video.  If you want to go directly to Judge Bendix's discussion, move the slide bar to the middle of part 1.  

What's the secret of a happy law-life? 

Being right? 

No!

Delegating responsibilities. 

That's what Connecticut employment lawyer and blogger, Daniel Schwartz, has done while he's trying one of those employment cases that resist negotiatied resolution. 

Not only is the delegation of Dan's blogging responsibilities smart, it's pie-expanding. 

Though Dan's readers are likely missing his voice with their daily coffee and eggs, he's turned their loss into other bloggers' gain by asking several of his colleagues to "guest blog" while he's gone.

Yesterday, for instance, Dan kicked off guest blogger week with the Evil HR Lady's commentary on Walmart and Blogging here.  As Dan explained . . . .

I should tell you that I do know [Evil's] first name; but she has told me that she'd hunt me down if I revealed her identity. So instead, I've asked her to provide a short blurb to introduce her; here was her candid response:

Evil HR Lady works for a Fortune 500 Company making sure that as many people as possible get fired. Hence, the Evil part of her name. She blogs and takes questions here.

Nothing like an HR person with a sense of humor, right? Well, she also has a very entertaining blog that is part Ask Amy, and part Jack and Suzy Welch. . . . 

Today, Dan graciously allowed me to introduce a few mediation principles into his blog with The Division of Chores and Partnership Compensation, Part I. 

Even though I do hate the term 'win-win' as far too redolent of marshmellows roasting over a camp fire ("say, pass the Hershey's chocolate, would you?") Dan is exemplifying the essence of integrative, interest-based "win-win" problem solving for his readers. 

While he rides off on his white stead to win win win win win his client's case at trial!

Thanks for the opportunity to meet your readers, Dan.  And go get 'em!

MediationWeek[2] - Get more free documents

Thanks to Kevin Forrester for the head's up here!

Being "neutral" does not mean we check our common human decency at the door. 

Do understand this however.  When we are feeling frightened and disoriented, anger and its explosive cousin rage, consolidates our sense of self.  This is one of the main reasons why aggression is so emotionally satisfying.  /**

Let's do continue to talk with one another about these matters -- whether we agree about them or not.  Understanding our own fallible human nature and forgiving ourselves for our momentary failures to rise above our baser instincts is the critical first step in living our values.  

Today, this morning, I must admit that my response to the headlines is anger. My own fear and anger, however, have not been transmogrified into national and international policy and practice.  I am sorry, very sorry, to say that the American administration's fear and anger has been. 

From the BBC News 

Bush vetoes interrogation limits 

US President George Bush says he has vetoed legislation that would stop the CIA using interrogation methods such as simulated drowning or "water-boarding".
He said he rejected the intelligence bill, passed by Senate and Congress, as it took "away one of the most valuable tools in the war on terror".  The president said the CIA needed "specialised interrogation procedures" that the military did not.  Water-boarding is condemned as torture by rights groups and many governments.  It is an interrogation method that puts the detainee in fear of drowning.

Continue reading here.

Despite the advice of mothers everywhere -- "you get more with honey than with vinegar" -- that renegade of international law, George Bush, has once again contravened this country's aspirational goal of serving as a model of human rights and liberties. 

Why mother was right -- and Bush wrong -- in my next post.

_________________________

/** Because our earliest experiences of helplessness relate to our size, strength and intelligence, only anger and its explosive cousin, rage, allow us to prove to ourselves and others that we are powerful instead of weak, competent rather than stupid, large rather than small. See See D.L. NATHANSON, SHAME AND PRIDE: AFFECT, SEX AND THE BIRTH OF THE SELF 209 (1992).
Thus do people who feel humiliated by another's aggression (such as the 9/11 attacks) respond in an attack mode, particularly those who feel "endangered" by the depths to which their self-esteem has been reduced by the assault on their sense of safety and self-determination.  Id. Such individuals experience humiliation as a threat to their physical well-being and lack the ability to trust and rely upon others. Id. 

Take a look at Geoff Sharp's Mediator Blah Blah post today about mediation coaching.  Here are five different ways in which a mediator can coach a party to achieve more from the negotiation than he might otherwise be able to achieve without assistance:

1. Talk[] to [the] parties about who is the best person in the group to make the offer to the other side and . . . . [which of their negotiating partners] they might want to look at when they do...

2. [P]resent[] a worst-case settlement offer first then contrast[] that with their present, and more favourable, offer.

3. [Make] their suggestion as if] they were planning . . . . 

4. Point[] out the hot buttons for the other side and assist[] a party to make symbolic offers that will have a favourable psychological impact . . . . 

5. Suggest[] and then assist[] one party to restate all the interests that have been identified in the mediation so far (with the other party's first) - then present a proposal and identify how it meets those interests [in a manner that is] mutually beneficial for all.

Thanks for the tips Geoff!

Sometimes reading my statistics page is the best way I have of taking the pulse of my readers and diagnosing the current actual rather than the aspirational state of settlement and mediation practice.

Listen.  Only the squeakiest client or party wheel will tell you that he is feeling coerced into settling the litigation that has become a millstone around your neck.

I'm talking to attorneys here -- but settlement officers, judges and mediators should pay attention as well.  Whether you're representing the CEO of a Fortune 500 Company or the 60-year old man who slipped on the iconic darkened bananna peel in the produce section of the local Ralphs, at some point during settlement negotiations your clients are going to suspect one or more of the following:

1. you're tired of his case and want to get rid of him
2. you're in cahoots with opposing counsel, with whom, frankly, you have a far more enduring if not affectionate relationship than with your client
3. you and your old buddy the mediator or settlement judge/officer have joined forces to to compel him to give up his legal rights in exchange for less money than you, his attorney, told him he was likely to recover two years ago
4. despite his protests, you, the mediator and opposing counsel keep saying the fact most important to his case  is "irrelevant" to his chances of recovery
5. when you talk to opposing counsel or the mediator about the case, he doesn't even recognize what you're talking about -- this is not the same case he brought to you to try two years ago
6. he feels extorted and no one is paying any attention to that
7. he feels like he's being sold down the river and no one is paying any attention to that
8. he paid his you and your law firm tens of thousands, hundreds of thousands, millions or tens of millions of dollars in attorneys fees and he thinks he could have settled the case for the sum that's being offered/demanded now before he paid you to litigate this case to the settlement conference.
9. he's really really irritated now -- angry even -- though he doesn't get angry; he gets even, and he'll have no trouble spending another few million on attorneys fees so show that lying, cheating so and so in the other caucus room a thing or two
10. he's a successful business man and he's never been treated with so little respect before.

Now let me tell you something else.  If these thoughts are some of those which race through your clients' minds during settlement conferences, your mediator should be sufficiently alert to the changing temperatures in the room to address them. 

Why?

Because the mediator's job is not to settle the case.

What??????????????????????????

The mediator's job is to:

1. assist you in helping your client understand the options available to him
2. assist you in delivering bad news to your client in a way your client can hear it
3. assist you in negotiating as good a settlement as possible for your client without making your client feel as if he has no other options
4. assist you in resolving for your client the justice issues that your client originally brought to you to resolve
5. assist you in helping your client recognize and set aside the emotional experience of the settlement conference for the purpose of doing a sober cost-benefit analysis
6. assist you in helping your client recognize that legal cases change over time; sometimes getting better and sometimes getting worse, usually both in the discovery process -- this is not the case your client originally brought to you -- untarnished by the harsh adversarial systems but puts "facts" to a more exacting test than any other process in business, political or social life
7. assist you in helping your client recognize his own fallibility, potential for error, and accountability for his part of the harm for which he is seeking recompense
8. assist you in helping your client recognize that the other side -- evil, destructive and hateful as it may well be -- also has a few items of "truth" and "justice" on its side of the balance sheet
9. assist you in helping your client make an informed decision without pressure from anyone whether he wishes to accept less than he wants to or would like to take his chances at trial
10. assist you in walking away from the mediation or settlement conference with your client clapping you on the back and saying, "great work, John.  If I'm ever in need of a litigator again, rest assured it's to you I will come.  I'll tell my friends on the block or on the Board of Directors that you're the man.

How do we accomplish these ten aspirational goals together -- attorney and mediator and client?  Stay tuned.

The Jerry McGuire video above is for our clients -- with whom we do not share just how hard we are working and what a toll it takes upon us because that's what they've paid us to do -- and paid us handsomely I might add.

If the political season(s) have gotten too serious for you, check out I've Got a Crush on Obama below.

 Moment of Nostalgia:  When I was in high school, I was too frightened to compete in the impromtu or extemporary speech categories and too lazy to prepare all those 3x5 cards for debate.  Therefore I competed in state-wide speech tournaments through the National Forensic League in three categories -- humorous and dramatic interpretation and oratorical analysis.  Drama and close-textual analysis.

The Real Purpose of this Post:  Now you have the chance to view a high-level oratorical analysis (a New York Times video) about  Obama's oratory with John McWhorter of the Manhattan Institute and Megan McArdle of The Atlantic.

The bottom line here on Barack vs. Hillary is Preacher vs. Policy Paper.

It's well worth your time to view the video because the Preacher is a trial attorney's style and Policy Paper the litigator's style.  We're good at both.  We just need to choose our style to fit our audience -- Judge or Jury?

And if you're in the business of persuading mediators or your bargainiing partner at a mediation?   A little bit of both.  Policy paper with the mediator and in attorney-to-attorney negotiations.  Preacher in joint session or in mediator-orchestrated meetings between parties and attorneys. 

Why do you think they call it recess?

When tempers flare to the boiling point, arbitrators who fail to prevent recess assaults are immune from suit according to the New Jersey appellate court, as detailed in this Law.com article, Arbitrator is Not Liable for Attorneys Alleged Assault here.  Excerpt below:

When fists fly at an arbitration proceeding, the arbitrator isn't liable for not averting the altercation, a New Jersey appeals court says in an interpretation of the model Arbitration Act.

The judges, in Malik v. Ruttenberg, A-6615-06, reversed a trial court's refusal to dismiss a suit charging an arbitrator knew of a lawyer's dangerous propensities yet did not remove him from the case, and an assault allegedly ensued when a recess was called.

The appeals court found that decisions relating to control of the arbitral forum are within the immunity accorded by the N.J. Arbitration Act, adopted from the model act devised by the National Conference of Commissioners on Uniform State Laws.

Eric Tuchman, the general counsel for the American Arbitration Association -- a defendant in the case -- says the ruling is the first in the nation to interpret the act's immunity provision.

The act has been adopted in 13 states, including New Jersey, and is under consideration in four others.

"Opinions like this really permit arbitrators and sponsoring organizations to preside over and administer cases in a way that is free and impartial," Tuchman says.

For remainder of article, click here.

The ABA Section of Dispute Resolution Presents The 10th Annual Spring Conference Pacific Currents: Sound Perspectives on ADR

April 3-5, 2008

Pacific Currents: Sound Perspectives on ADR is the premiere conference in the world for dispute resolution professionals and lawyers engaged in dispute resolution processes. This conference offers some of the best ADR CLE in the country presented by diverse and experienced faculty. With over 90 CLE programs planned, you can fulfill all of your CLE requirements over the course of a few short days.

This year’s conference also offers many dynamic and engaging plenaries.

The opening plenary entitled Hot Topics in Arbitration: The Fair Arbitration Act, Hall Street, and More will discuss the most recent developments in arbitration law, including cases pending in the Supreme Court, as well as potential arbitration-related legislation.

Linda Babcock will present the Friday morning plenary: Women Don't Ask: Negotiation and the Gender Divide. Ms. Babcock will speak about the four-phase collaborative problem-solving approach to negotiation and how lawyers and mediators can use this approach to manage the reactions and emotions that may arise on both sides of a dispute.

ABA President William Neukom will deliver a keynote speech and Tom Stipanowich, Academic Director Straus Institute for Dispute Resolution and Professor of Law, Pepperdine University, will present at the Friday Luncheon.

Saturday offers The Language Conflict: How Aggression and Violence Inform the Way We Speak presented by Kenneth Cloke and Joan Goldsmith of the Center of Dispute Resolution. This skills-building plenary will examine strategies on how to turn hostile denunciations and debates into appreciative disagreements and dialogues. Don’t miss out! Register today to attend these exciting plenaries.

I'll be presenting a seminar on Intellectual Property Mediation with the Hon. John Wagner (Fed. Magistrate, Ret.) and Christine Byrd of Irell & Manella.   

To review the conference brochure click here.

Book your hotel today! The negotiated conference room rate ends soon. Contact the Sheraton Seattle Hotel & Towers at 1-800-325-3535 or register online and reference the ABA Section of Dispute Resolution 10th Annual Conference to receive the discounted conference rate of $189.

This discounted rate is available until March 4th or until the block has been filled.