Negotiation Law Blog

(right:  Dad at 19; everthing about him was big -- not just the hair)

My step-mother's disembodied voice rose up from my answering machine last week with the words we're all afraid to hear: 

"Vickie, your Dad's in the hospital; his condition is not good;  please call me."

The last time I'd seen my dad, about two weeks earlier, he'd been sitting in his favorite chair with his eyes closed.  Part of him, the seeing part, wasn't much interested in being there.  

But dad was a talker; a spellbinding story-teller in the Irish tradition even though he liked to identify more with the Swedes in his lineage.  Vikings you know.  Warfare.  Being a manly man.   

Dad married the second time when I was in elementary school.  His first marriage to my mother having been a  failure of spectacular proportions, he took pains to begin my instruction in the basics of a happy marriage as soon as his second chance at marital bliss presented itself.  

"At the end of the day," he said when I was only 12 or 13, "the man gets to tell his stories first.  You can talk about your own day as much as you want.  But you have to make sure your husband goes first."    

Now, at 85, in the late stages of Parkinson's, Dad wasn't even having a day, let alone telling it, and certainly not telling it first.  

As dad sat immobile in his "easy" chair, you could hear the disease strangle the narrative out of him -- the mild dementia; the increasingly rigid muscles in his throat; the way he forgot the entire point of what he wanted to say by the third or fourth word he managed to slip past his captors.       

But he hadn't been anywhere near dying.

The Feeding Tube

As I drove out of the Los Angeles basin up through Laurel Canyon and down into the San Fernando Valley, Juanita, my father's third wife, was telling me by cell phone that Dad's Parkinson's was preventing him from swallowing.  He couldn't eat or drink.  He was choking.  The hospital was suggesting that a surgical feeding tube be attached and Juanita understandably wanted his children to help make the decision.

Dad, a life-long, semi-agnostic Protestant, was in a Catholic Hospital.  If his condition deteriorated badly -- if he entered a vegetative state -- I was worried about becoming immersed in a Terry Schiavo controversy.  I needed to know whether the hospital would later consent to the removal of a feeding tube.  That was my mission.  To find that out.  I called a friend in the healthcare industry who told me who I should talk to and what I should ask.  I was prepared.  

Your Father's on the Roof 

There's a old joke about friends -- we'll call them Bill and Jean -- who take care of the neighbor's cat while the neighbor -- we'll call him Phil -- is on vacation.  Upon his return, Phil rings his neighbors' doorbell only to have them immediately announce that Phil's cat is dead.  

Phil protests. 

'You're not supposed to come right out and say my cat is dead," says Phil.  "You're supposed to prepare me.  You're supposed to say something like, 'we were feeding the cat but he ran out the front door when we weren't looking.  He climbed up on the roof and couldn't get down.  We called the fire department and they raced over but the fire fighter who climbed up to the roof lost his footing on the way back down.  He managed to save himself but dropped the cat.  We rushed to the vet but there was nothing the vet could do.  We're terribly sorry but your cat had to be put to sleep.'"  

Everyone paused.  Finally, Bill said, "listen, we dropped by your mother's house last night and while we weren't looking she climbed up on the roof . . . . . . "

Dr. X Delivers Bad News

I arrived at my father's hospital room at the same time Dad's primary physician, Dr. X was making his rounds.  I introduced myself as Don Pike's daughter and asked about my Dad's condition.  For reasons I didn't understand, this seemed to irritate Dr. X.  

"What do you want to know?" he asked, eyeing me suspiciously.  "Your step-mother has already decided what will happen."

"And what is that?" I asked, not having yet had the opportunity to speak with my step-mother since our cell-phone conversation fifteen minutes earlier.  Something must have changed in the interim.

"It's quite simple," said the doctor, as if he were speaking to a child.  "Your father can't swallow.  His wife doesn't want the hospital to insert a feeding tube. We'll send him home with morphine to ease the pain.  Without food, he will quickly die of renal failure."

They say anxiety interferes with the functioning of the brain's higher "executive" functions.  So I wan't thinking very clearly.  

"You're going to let him die of starvation?" I asked.  "I mean," I was almost stuttering now, "you're gong to starve him?  Why?  What is his prognosis?"

Though the word "starvation" carried the most emotional wallop for me, it appeared to be my use of the word "prognosis" that disturbed Dr. X.

"Prognosis?" he asked, glaring at me now.  "Prognosis?  He's in the last stages of Parkinson's disease.  That's his PROG-NO-SIS."

My step-mother -- a member of a generation trained to accept whatever doctors say as holy writ  -- tried to intervene -- begging me not to "fight" with the doctor.  "Please, honey," she implored, "it's hard enough as it is; just do to what the doctor is telling you to do."

Throughout this debacle, my father was gurgling as if he were drowning.  Only when his moaning reached a certain pitch would the nurse come in to suction liquid from his throat, encourage him to cough up whatever fluid was in his lungs, and then suction that as well.  Like the dentist does, except you're generally not drowning when you're having a cavity filled.   

I didn't want to make trouble for my long-suffering step-mother, but I'd just heard that everyone had decided to starve my father to death in my absence because he was in the "last stages" of Parkinson's and I didn't know what that meant.

Information Gathering

"I don't know what end-stage Parkinson's means," I finally said, feeling dizzy and wishing I could sit down somewhere.  On my father's bed perhaps where I'd form a physical barrier between him and this angel of death in a white coat sporting his emblem of authority -- the ubiquitous hospital stethoscope.  

"I don't know what 'final stage' Parkinson's looks like," I muttered, feeling chastened but unwilling to simply "let the matter go."  

Perhaps he was emboldened in his anger by the way I was looking at my shoes, temporarily "unmanned" if a woman can use that term. For whatever reason, Dr. X took the opportunity to stride toward my father's bed and rip the sheet away from his frail, bruised and half-naked body, revealing not only a form that appeared to be entirely convulsed in uncontrollable spasms, but also exposing my father's one quiescent appendange -- his soft penis, curled passively just below the edge of his hospital gown.

"This," snarled Dr. X., sweeping his hand from the top of my father's head to the tip of his toes, "is what late-stage Parkinson's looks like.  Is this what you wanted to know?"  he asked, as if in the very asking I'd brought this agony upon myself and my exhausted step-mother.  That I'd just made myself complicit in my father's continued suffering.  That this pitiable wreckage of the man who taught me to raft Class Four rapids was somehow my fault.   

Mea culpa, mea culpa, mea maxima culpa. 

"This is not your decision," Dr. X continued, without having the decency to cover up my father's nakedness.  "You have nothing to do with this and nothing to say about this.  Your step-mother has the Power of Attorney and she has already made the decision."

Then all hell broke loose.  I began to shout and, I must admit, also to cry, as my step-mother lunged out of her chair to push me back against the wall, away from Dr. X and my father.  "I'm his daughter," I remember repeating and "Juanita asked for my help in making this decision." I'd also lashed out at Dr. X, saying something about improving his "bedside manner."  But nothing had any effect until I said two words. 

They were "informed consent."

"I don't think I have enough information to give my informed consent," I finally said.  Though this phrase came automatically, it arose from my legal training.  It is an unquestionable code term for "make one more move and you'd better check your malpractice policy.  Doctor."

And then I recall telling the doctor to leave.  "Get out," I think, is what I said, "just get out!" as I reached over to pull the covers back up over my father's thin and trembling body.  As Dr. X obeyed this command, as he slipped behind the hospital curtain and made his way to the nurse's station where my father's chart resided, I shouted behind him, "and send me the hospital social worker!!"

Next, the social worker, a palliative care nurse and hospice services.  

(right:  mediate this??)

Reporter Greg Katz reports in today's Daily Journal, that Two L.A. Mediators Are Shopping a TV Pilot That Would Showcase Their Art -- one of whom is Settle It Now's friend local mediator and magician Jerry Lazar of the Fight Nicely Blog.  Excerpt below.     

Jerry Lazar and Richard Klinger recently have been shopping around a pilot for "The Peacemaker," a show that would spotlight mediation.

"Its time has really come," Klinger said.

The idea for the show took shape after a speech Lazar made to the Southern California Mediation Association.

Lazar, a former host and producer for the E! television network, went on his usual rant: "The American public has a glut of judge shows. Why aren't there any mediation shows?"

After the speech, Klinger, executive producer of the "Jane Fonda's Workout" video series, approached Lazar and asked whether he had ever tried to put together a mediation television show himself.

They shot the pilot in December.

It opens with a host in suit-and-tie describing the mediation process and explaining that mediation offers a way out of conflict "without the expense and heartache of litigation."

The host then introduces the case of Javier and Elena, a young couple ending their "green card marriage," who are at odds over the jewelry and car Javier had given Elena as gifts.

In a conference room, the two hurl insults at each other, much to the chagrin of the mediator between them, who reminds them that "a bad settlement is better than a good judgment any day."

It doesn't ease Elena's mind.

"He makes me out to be nothing but a whore and liar," she says indignantly.

As the mediation goes on, it emerges that Javier is still living with his mother and that Elena has been cheating on him.

The situation is based on a case Klinger once mediated. Though the disputants in the pilot are actors, if the show makes it to the air, it will feature real-life disputants who will have to waive confidentiality, the producers said. . . . .

(right:  enemy?  ally?  victim? victimizer?)

Everyone's been talking about negotiating with our enemies and appeasement lately.  I've written several posts on it here and here, for instance.  I've also read dozens of news and magazine articles on the topic in the past few weeks, here and here, for instance.

Today, I highly recommend Ken Cloke's new article on the issue -- Thoughts on Mediation, Barack Obama and Our Political Future. 

Excerpt below.  Full article well worth reading.

[C]onsider . . . one of the key questions for many voters – should the US negotiate with its enemies?

Most mediators, I think, would immediately answer, “Yes.” We understand that negotiation is based on differences; that negotiating doesn’t mean agreeing; that negotiating draws people away from violent alternatives; and that negotiation is preferable to power-based solutions such as war and terrorism.

Notice, however, how use of the word “enemy” automatically builds into the question an assumption of implacable hostility and an implication that negotiation must fail. To reverse this assumption and consider not just whether, but how we should negotiate with our opponents, we need to answer a number of questions, posed nicely in an email I recently received from Jim Melamed. These include:

How does effective diplomacy and negotiation differ from "appeasement?"

The principal difference between constructive diplomacy, collaborative negotiation and conflict resolution on the one hand, and appeasement on the other, is that the former seek to satisfy both parties legitimate interests, i.e., those that do not refuse or deny the legitimate interests of others. What made the Munich meeting between Chamberlin and Hitler history’s classic case of appeasement were, among other elements:

• The absence of Czechoslovakia and other allies from the bargaining table and inability to participate in deciding their fate
• The lack of representation of Jews, Gypsies, homosexuals, and opposition parties, including socialists and communists, in a full negotiation of the chronic, systemic sources of conflict. 
• Reaching an agreement in spite of clear advance indication that Hitler had no intention whatsoever of abiding by it
• The absence of an unbiased mediator and assignment of that task to Mussolini who was an ally of Hitler
• Cowardice in avoiding principled, albeit unpleasant consequences by failing to reach an agreement A failure to address the earlier injustice and inequity of the Versaille Treaty on Germany

The phrase "non-attorney" mediator rankles some conflict resolution professionals.  They often point out that there are no "non-physician" health care workers -- only nurses, physicians' assistants, physical therapists, and the like. 

But just as doctors are not the only people with the education, training and experience necessary to deliver health care services, lawyers are not the only people capable of delivering justice. 

This is not a radical proposition.  It is a bedrock principle of Anglo-American jurisprudence that twelve "non-lawyers" will (in most cases) be the final arbiters of any litigated case.  They are a lawyer's BATNA -- the potentially Better Alternative to a Negotiated Agreement.

Lawyers Did Not Create "the Law" or "Justice"

In Disputing Humor:  Comedy, Folkways and the Internet over at the IP ADR Blog we noted that the academics do not define "law" as "just a set of rules, but a life condition in which [people] are carriers of rights and duties, privileges and immunities."

No formal structure supporting the system of law need be visible. . . Law can be found any place and any time that a group gathers together to pursue an objective. The rules, open or covert, by which they govern themselves, and the methods and techniques by which these rules are enforced is the law of the group. Judged by this broad standard, most law-making is too ephemeral to be even noticed. /*

In other words, we govern ourselves more or less naturally, until a conflict within the group arises. When that happens, the group is "forced to decide between conflicting claims [and the] law arises in an overt and relatively conspicuous fashion. The challenge forces decision, and decisions make law." /*

I've also recently noted that fairness, i.e., justice, is not only hardwired into us, it also governs the  behavior of other primates, particularly the much studied Capuchins.

"Non-Attorney" Mediation and the Law    

Most attorneys want their mediator to be educated and skilled in the law for the purpose of conducting position-based evaluative settlement conferences in which litigators do what we do best --  convince the mediator that we are more likely to "win" at trial than our opponent.  When I was practicing, I never found this mediation technique to provide tremendously satisfactory results.  I'm a pretty good lawyer.  And I know my case really well.  I've often spent years evaluating the risk of going forward and the possibility of settlement.  If I've done anything, you can be certain that I've done a cost-benefit analysis with and for my client. 

It will take you ____ years to get to trial, which will cost you $________.  You have ______% percent chance of winning and your (or your opponent's) potential monetary liability is in the range of $________ to $____________.  We have an unpredictable Judge and a downtown Los Angeles jury.  On the other hand, the plaintiff wants $50 million.

Unless I'm having trouble convincing my client to see reason (and I very rarely do) no mediator -- whatever his or her qualifications -- is likely to change my mind by giving my legal analysis a quick physical exam on the day of the mediation.  Listen, we're only litigating the darn thing because the questions are close ones.  Not to mention the cognitive biases that almost assure the evaluative mediator's inability to convince me that I'm wrong.  (see Michael Webster's recent post on Why Hoaxes Work -- citing some of the biases that will largely result in my rejecting the mediator's view of the merits of my case.)

If case evaluation is your only skill, absent water-boarding, I'll be in the same place at midnight as I was at 8 a.m.  

Interest-Based Facilitative Mediation 

No matter how sophisticated our clients, they come to us with stories of injustice -- not stories about the law.   We lawyers are skilled at solving "injustice" problems only when a right and a remedy exists.  If you don't have a right, there's no remedy.  You  might well be the victim of an injustice but, sorry pal, there's not much I can do for you unless you're prepared to pay me to make new law.  

So what do mediators -- particularly non-attorney mediators -- have to offer our clients when the best we can do is say "swallow the injustice and move on."

Quite a lot.  Mediators -- lawyers or not -- are trained to look for, capitalize on, and synergize the parties' mutual personal or commercial interests in an attempt to resolve disputes that we lawyers reduce to "legal cases."  Unfortunately, some of those interests include the parties' understandable desire to escape from the legal process itself.  I'd rather see some of these justice system issues resolved than capitalize on them to muscle parties into settlement, but the Courts are what they are and the system does what it does -- slowly, cumbersomely, expensively, distractingly, maddeningly, intrusively and unpredictably.

Resolving Contract Disputes with Non-Lawyer Mediators

Because I'm speaking to the Los Angeles Superior Court's "non-attorney" mediators about the law of contracts today, I'm focused on the settlement of contract litigation.  This type of litigation is extremely well suited to resolution by "non-lawyers" because the parties' interests have already largely been defined and the law is not -- really -- very complex.

The contract that ends in litigation began where mediation is supposed to conclude -- in agreement.  To reach the original agreement the parties spent days, weeks, sometimes years horse-trading one set of interests for another.  In the process, they invariably learned their bargaining partners' desires, fears, capacity for risk, and, business strategies, often at depth. 

The position-oriented evaluative mediator more or less ignores these interests, focusing instead upon the parties' right to enforce or avoid one or more of the contract's obligations; to prove or disprove breach; or, to enforce or annul contractual burdens based upon claims for and defenses against fraudulent inducement and the like.  This type of mediator has all kinds of interesting legal issues to understand and evaluate -- issues arising from the statute of frauds and parol evidence rule; canons of contract construction; and, the intersection of fundamental public policy with the parties' ability to contract for whatever and however they like. 

Juicy legal issues.  Fun for lawyer.  Bad for client.

Facilitating Interest-Based Resolutions

A facilitative interest-oriented mediator starts by asking what the parties were attempting to accomplish in the first instance; why they gave up certain rights or remedies at the time of contracting; and, what made the deal break down so spectacularly that they now have four attorneys and two expert witnesses each, all of whom are attempting to extricate them from or compel compliance with a contractual relationship with an equally well-heeled adversary. 

Unless they're facing bankruptcy (which often accounts for litigation) the business people are highly likely to have products, services, chains of distribution, networks, technology, information, and prospective commercial advantages that can be traded along with money paid to release one another from liability under the existing agreement.  When the parties "finesse impasse by using the litigation as an opportunity to enter into a business deal," they've usually only done so with the assistance of an interest-based mediator. 

I won't deny the importance of the mediator's ability to understand the parties' legal positions, which is the reason we teach basic contract law to our "non-attorney" mediators.  Nevertheless, case analysis is primarily useful for  keeping the parties at the bargaining table when their negotiation starts to run off the rails.  As my friend and Straus colleague Judge Alexander Williams likes to say -- "often the parties just need a little more litigation therapy before they're ready to settle."

Mediation is a Theory, a Practice, and a Profession All Its Own

This is not retirement.   And though we're not therapists in the justice delivery business, we're also not its lawyers or arbiters either.  We're negotiators and patient advocates.  We help conflict-ridden parties communicate with their dispute resolution physicians and with their fellow sufferer across the hall.  It's good for us to understand what the doctor means when she lapses into doctor-ese, but it's not necessary for us to understand the entire disease process to do our job.  We will never know your case as well as you do.  And you will never know your client's intrerests as well as it does.      

The purpose of the mediation is to bring all of these elements together to create something better than a litigated resolution can deliver.  

Why in Praise of Non-Attorney Mediators? 

First, let's remember that we owe mediation theory and practice to people who wouldn't know a legal remedy from a truck mounted bitumen sprayer -- sociologists, anthropologists, community activists, and, psychologists.  Then let's give credit where credit is due to those "non-attorney" mediators who put up with a huge amount of horse dung about their supposed inability to mediate "legal" disputes without attending law school.  

Back to Contract Disputes

Children make contracts and know who to ask for relief (someone in authority) when they're broken.  Adults have been entering into commercial contracts far longer than there's been a formal rule of law to "interpret" and enforce them.  So what does a "non-attorney" mediator need to know about the law of contracts?  Not much.

I make an offer.  You accept.  We both do what we say we agreed to do.  If we expressed ourselves ineffectively in writing, we try to understand what the heck it was we were thinking when we included some lame phrase in the contract.  If we take a look at the interests we were trying to satisfy at the time, and the circumstances in which the contract was drafted, we can usually make sense of those provisions.  If someone breached them, they pay for the resulting damage. 

If the parties have diametrically opposed interpretations of the contract and a few hundred million dollars hangs on the result, the case isn't ready to be mediated.  Instead, the parties should get the matter over to a complex court where the Judge can streamline discovery and move dispositive issues to the forefront for early resolution.  Here in Los Angeles, that place is Central Civil West.  If you don't have a Court like that in your jurisdiction, create one.

No mediator is going to get the parties to compromise a $500 million legal issue.  It's the Courts' job to make the process of resolving the legal issue sufficiently efficient that the parties can obtain the information or interim rulings they need to settle the darn thing or to try it.   

No matter how complex the case, at the end of the day, it mostly comes down to fairness -- to a resolution that would seem reasonable to . . . .twelve "non-attorney" adjudicators sitting in a jury box trying to stay alert while you explain the meaning of an "occurrence" clause in a policy of comprehensive general liability insurance.    

*/ See, Weyrauch and Bell, Autonomous Lawmaking: The Case of the "Gypsies" (1993) 103 Yale L.J. 323 (1993) quoting Thomas A. Cowan & Donald A. Strickland, The Legal Structure of a Confined Microsociety (University of California, Berkeley Working Paper No. 34, 1965). See the Weyrauch book on Gypsy Law here.

The Los Angeles Superior Court ADR Committee Presents

LEGAL-EASE FOR MEDIATORS  -- FLYER HERE

A panel presentation of legal definitions and terms of art in:

• Civil Litigation presented by Jan Schau
• Contracts presented by Victoria Pynchon 
• Employment presented by Nikki Tolt
• Personal Injury and Insurance presented by Sandy Gage
• Real Property presented by Mark Loeterman

Moderated by Peter H. Robinson, Esq.
Coordinated by Lee Jay Berman, Mediator

Tuesday, May 27, 2008
4:00 p.m. to 8:00 p.m.

The Mediation Offices of Lee Jay Berman
3055 Wilshire Blvd., Suite 550, Los Angeles, CA 

DESCRIPTION: For each of the above areas of law, an accomplished attorney-mediator specializing in that area of law will explain the nomenclature used in the context of court-annexed mediation. Understanding the terminology of an area of law can build credibility with the mediation participants and give the mediator more confidence when working in an unfamiliar area of practice.
WHO SHOULD ATTEND? Court mediators who need to meet the new three-hour nuts and bolts legal training requirement for non-attorneys and/or court mediators who would like an introduction to, or review of, the areas of law specified above. Only court mediators who have completed and submitted the new Application for Appointment to ADR Panel may register.

REGISTRATION IS LIMITED TO 70 PEOPLE, SO REGISTER TODAY!

This training is funded by a grant from the Administrative Office of the Courts (AOC) to enhance the skills of the Los Angeles Superior Court ADR Panel to meet the diverse needs of litigants

CLICK HERE FOR DIRECTIONS

In an Op-Ed piece in today's New York Times -- Kennedy Talked, Khrushchev Triumphed -- Nathan Thrall and Jesse James Wilkins suggest that John F. Kennedy's worst two days negotiating should be a lesson to Barack Obama. 

The lesson? 

That "sometimes there is good reason to fear to negotiate." 

Agreed.  But only if we add the word "badly." 

The Op-Ed piece itself describes JFK's ill-fated negotiations as follows:

Although Kennedy was keenly aware of some of the risks of . . . . meetings [with one's adversaries] . . . he embarked on a summit meeting with Khrushchev in Vienna in June 1961, a move that would be recorded as one of the more self-destructive American actions of the cold war, and one that contributed to the most dangerous crisis of the nuclear age.

Senior American statesmen like George Kennan advised Kennedy not to rush into a high-level meeting, arguing that Khrushchev had engaged in anti-American propaganda and that the issues at hand could as well be addressed by lower-level diplomats. Kennedy’s own secretary of state, Dean Rusk, had argued much the same in a Foreign Affairs article the previous year: “Is it wise to gamble so heavily? Are not these two men who should be kept apart until others have found a sure meeting ground of accommodation between them?”

But Kennedy went ahead, and for two days he was pummeled by the Soviet leader. Despite his eloquence, Kennedy was no match as a sparring partner, and offered only token resistance as Khrushchev lectured him on the hypocrisy of American foreign policy . . .  Khrushchev used the opportunity of a face-to-face meeting to warn Kennedy that his country could not be intimidated and that it was “very unwise” for the United States to surround the Soviet Union with military bases.

. . . American diplomats in attendance, including the ambassador to the Soviet Union, later said they were shocked that Kennedy had taken so much abuse. Paul Nitze, the assistant secretary of defense, said the meeting was “just a disaster.” Khrushchev’s aide, after the first day, said the American president seemed “very inexperienced, even immature.” Khrushchev agreed, noting that the youthful Kennedy was “too intelligent and too weak.” The Soviet leader left Vienna elated — and with a very low opinion of the leader of the free world.

Kennedy’s assessment of his own performance was no less severe. Only a few minutes after parting with Khrushchev, Kennedy, a World War II veteran, told James Reston of The New York Times that the summit meeting had been the “roughest thing in my life.” Kennedy went on: “He just beat the hell out of me. I’ve got a terrible problem if he thinks I’m inexperienced and have no guts. Until we remove those ideas we won’t get anywhere with him.”

Flawed Setups Make Negotiation Tactics at the Table Irrelevant or Dangerous

As the Times article states, at least one seasoned diplomat expressly opined that the issues Khrushchev was raising at the time of Kennedy's first diplomatic mission could as well (or better) be addressed by lower-level diplomats as by the President.  Kennedy's own Secretary of State  suggested that ground work needed to be laid before the leaders of the "free" and the Communist worlds met for the first time.  Kennedy ignored this sage advice and learned one of the most important lessons of his presidency -- to seem weak was as bad as being weak.  

As Lax and Sebenius caution in their excellent treatise 3-D Negotiation, the negotiation 'setup"

means acting to ensure that the right parties have been involved, in the right sequence to deal with the right issues that engage the right set of interests at the right table or tables at the right time under the right expectations and facing the right consequences of walking away if there is no deal.  Before worrying too much about tactics, the 3-D setup architect works hard to optimize these elements -- the scope, sequence, and choices about the process itself -- in which interpersonal dealing will play out.

If the setup at the table isn't promising, the 3-D negotiator doesn't merely resort to bullying . . . or turning up the empathy and personal charm . .  . Instead, he or she takes action away from the table to reset the table more favorably.  The 3-D Negotiator understands that a bad setup makes tactics at the table more or less irrelevant -- and that a great setup, conversely, makes good tactics all the more effective.  In fact, it can help the tactician achieve otherwise impossible results.

3-D Negotiation at 12-13.

“Let us never negotiate out of fear. But let us never fear to negotiate.”

This is the sentiment -- from JFK's inaugural address -- that Thrall and Wilkins suggest we question in light of Kennedy's ill-fated initial encounter with the far more experienced and cannier Nikita Khrushchev.  This caution, however, would unnecessarily throw out diplomacy's baby with negotiation's bath water.  If these wise words need any amending whatsoever, let them be:  Let us never negotiate out of fear.  But let us fear to negotiate badly. 

UPDATE:  IF YOU FOLLOW THIS LINK TO FORBES.COM COVERAGE OF THE FORECLOSURE CRISIS AND CLICK ON THE HIGHLIGHTED WORD "FORECLOSURE" YOU'LL FIND A WEALTH OF MATERIAL, INCLUDING VIDEOS, ON THE SUBJECT. 

See, for instance, this great post on "bailing out" homeowners at the Calculated Risk Blog here (found by clicking on the Lingo bubble on the Forbes.com site above.

In this morning's Los Angeles Times,  staff writer Maura Reynolds explains how -- and why -- the Senate has reached a deal on foreclosure legislation.  "Key senators" writes Ms. Reynolds,

announced Monday a bipartisan agreement on the broad elements of a plan to avoid foreclosures and speed the refinancing of mortgages for roughly 500,000 troubled homeowners without taxpayers footing the bill.

Political deal making showcases high-level bargaining skills at the intersection of interest- value- and rights-based negotiation paradigms.  No one files lawsuits against their Senators (well, no sane person).  But in the midst of an economic crisis, political representatives might just as well be defendants.  As Reynolds explains, the forclosure legislation "deal" reached in the U.S. Senate reflects the election-year pressure that lawmakers feel to find common ground on one of the most pressing issues facing the country.

The "Conflict"

Some theorists define conflict as a "crisis in human interaction" which the parties need help to overcome for the purpose of restoring constructive interaction.

Transformative mediation theorists and our little "d" democracy assumes that people have the capacity to solve their own conflicts over scarce resources, rights, interests and values.  (See MEDIATION STYLES AND TECHNIQUES prepared by the American Bar Association, Public Contract Law Section; Dispute Resolution Section; Center for Continuing Legal Education; and Interagency ADR Working Group; Contracts and Procurement Section at the Arnold & Porter Paul Porter Conference Center).

The Stakeholders

A stakeholder in a conflict is anyone who might be positively or negatively impacted by the crisis and its potential resolution.  In this case, the L.A. Times identifies the entire economy as a  "stakeholder." As Ms. Reynolds explains, the "housing collapse"

has inflicted pain on thousands of families, dealt the economy a major blow and ignited a fierce controversy over what -- if anything -- the government should do about it.

The stakeholders to whom elected representatives must answer are, of course, those who elect them -- voters and taxpayers -- as well as those corporate and individual contributors who fill their election coffers.  When selling a public good, however, it is best to acknowledge your allegiance to "the people."  As one Senator explained:

My primary consideration during negotiations on this package has been to protect the American taxpayer, and I believe we've made significant progress toward that goal.

National Resolution to Public Problems Must Reflect the Voters' Interests and Values

Unlike a lawsuit, where the parties are fighting over existing (or hoped for) rights and obligations, in economic, social or political crises the "fight" is not about "rights" but interests and values.  The right to declare bankruptcy aside, no one has a legal right to be "bailed out" of a financial crisis.  Nevertheless, a bail out may be necessary if elected officials are to serve the "interests" of their constituents according to those voters' "values."  

Values

As Reynolds explains, the lead Republican on the Senate Banking Committee, Sen. Richard C. Shelby, suggested that consensus among law makers could not be achieved if the proposed solution to the foreclosure crisis were seen as a "bail out" of "speculators" or of "borrowers and lenders who made bad decisions out of carelessness or greed." These are the "value" concerns that are part and parcel of any potential resolution of a community-wide conflict.      

Because we perceive money to be a scarce resource, we presume that its delivery to Interest Group A will deprive Interest Group B of funds necessary to serve Group B's needs or desires.  This is a  "zero sum" view of economics.  For individuals and many businesses, however, this is often not only perceived reality, but the actual fact of the matter.  

If mom and dad bail Billy out of jail for drunk driving, they may not have sufficient resources to pay his brother's room and board at Ivy League U.  Not wishing to "reward" bad behavior (a "value" metric) may be only part of the calculus, however.  If the family is capable of satisfying both brothers' interests, they may or may not decide to be guided by their "values."  They could act out of helpless parental love or simply compassion.  If the parents do not have sufficient resources to satisfy both brothers' needs at the same time, their decision about who to benefit will almost always reflect family values (little "F" little "V").     

How national problems should be solved within federal budgetary constraints is not so different from the family drama hypothesized above. 

Interests

The foreclosure crisis is not only about American values such as independence, thriftiness, caution, and hard work.  It is also about stakeholder interests.  As Reynolds reports:

Some Republicans have supported other versions of the legislation, citing the severity of the housing crisis and the escalating number of foreclosures in some regions of the country, including parts of California. They argued that the foreclosure crisis would damage entire communities and pull the economy toward recession. 

If larger societal interests -- like the economy itself /** -- are at risk, a "bail out" plan that "rewards" even the careless and greedy may be palatable to voters, particularly when, as Reynolds reports, "at the luxury end, home prices are falling."  In other words -- if this crisis is not addressed by our elected representatives (who are also stakeholders in this crisis) not only voters, but contributors to political campaigns might retaliate against them.   

Positively "Framing" the Proposed Legislative Solution to Meet Both Interests and Values    

In acknowledging the need for action, Senator Shelby positively "frames" the crisis as one affecting "struggling homeowners" who "should" be assisted so long as "American tax payers" don't have to foot the bill.  Others appeal to market and voter fears that the foreclosure crisis might "pull the economy toward recession" (if it has not already arrived there).  In all events, a majority of stakeholders in any democracy must feel satisfied that legislation addresses both their needs and their fears.   

The Proposed "Deal"

The proposed Senate "deal" to aid borrowers, lenders, and "the economy" is described by the  Times as follows:

The Senate plan announced by Shelby and Banking Committee Chairman Sen. Christopher J. Dodd (D-Conn.) is similar to the House-passed bill in that the centerpiece of each is an expansion of government mortgage insurance. Under both proposals, a borrower facing foreclosure could refinance into a government-guaranteed mortgage under certain conditions, including that the home is the owner's primary residence and that the holder of the existing mortgage accepts 85% of the home's current appraised value as payment in full.

The House bill calls for using about $1.7 billion from the federal budget to set up the program, which would be administered by the Federal Housing Administration.

Under the Senate deal, the start-up funds would come instead from an affordable-housing fund capitalized by mortgage giants Fannie Mae and Freddie Mac, which were created by the government but are owned by public stockholders.

This plan satisfies American "self-help" values by requiring borrowers to refinance.  It attempts to exclude "speculators" from the benefit created by requiring recipients of the government-guaranteed mortgages to affirm that the home is their primary residence.  And it "punishes" imprudent lenders by requiring them to accept 85% of the home's current appraised value as payment in full.  Finally, whereas the House would spend $1.7 billion in federal funds, the Senate hopes to tap the resources of Fannie Mae and Freddie-Mac, government created but privately owned lenders.   

Selling the Deal

Whatever deal is crafted to address a national financial crisis or to settle a piece of commercial litigation, it must be sold to all stakeholders.  Here's a classic "win-win" pitch based on interests and values.    

"This legislation is good news for both the markets and homeowners," [Senator] Dodd said. "The bill addresses the root of our current economic problems -- the foreclosure crisis -- by creating a voluntary initiative at no estimated cost to taxpayers, which will help Americans keep their homes."   Dodd told reporters the measure would speed the correction of housing prices to return stability to the market as soon as possible and prevent further damage to the broader economy.  "Obviously, we want to keep as many people as possible in their homes. But the second goal, as important as the first, is to get to the floor" of the housing correction, Dodd said in a conference call. "Until we get to the floor, none of this is going to get better."   "We have a lot of confidence that this is what the market is waiting for," Dodd said.

Deconstructing consensus-building in the political arena should help anyone who is making an effort to settle commercial litigation -- or simply a family dispute over the deployment of family resources.  

We thank Times staff writer Maura Reynolds for the depth and breadth of her reporting on this issue.   

For an analysis of the future of the Senate proposal, check out the Housing Chronicles Blog post Will President Bush Sign the Housing bill? here.  Housing Chronicles is a fellow Forbes Business and Financial Network blogger.

**/  For another look at what we mean when we use the term "economy" see this month's Harpers' article by Jonathan Rowe, Our Phony Economy. 

Thanks to Geoff Sharp over at mediator blah blah for citing us to Justice Trumps Peace: the Enduring Relevance of Owen Fiss’s Against Settlement by Don Ellinghausen, Jr.  Geoff Sharp's excellent post on the issues raised (again) is here and Ellinghusen's exhaustive treatment of mediation's limitations and overblown claims here.

Agree with Fiss, Ellinghausen, Laura Nader and Carrie Menkel-Meadow or not, there shouldn't be a mediator practicing who is unaware of these serious criticisms of the mediation process.  If we're not aware of them, we can't avoid the potential for "muscle" mediation to prevent even the aspirational goal of delivering justice without regard to gender, color, power, social status, wealth and all the rest of the social markers the law has been so careful to avoid paying obeisance to.

Check it out.

UPDATE:  Here's the California Supreme Court Opinion thanks to the American Constitutional Society Blog with Yale Law School Professor William N. Eskridge, Jr.'s short commentary. 

The June issue of Harpers has a good article on the issue from a religious point of view in Turning Away from Jesus:  Gay Rights and the War for the Episcopal Church by Garret Keizer, but it's not online yet.

There is a good 1996 article on the issue in Harpers here, however.

I must say there's something about the public debate that has always confused me.  Because we live in a secular society, all "marriages" performed by the state are "civil unions."  Only the churches are capable of blessing or sanctifying those unions.  

But I'm not interested in jumping into the gay marriage debate other than to say I'm happy for my gay friends who would like to marry their domestic partners, lovers, help-meets; and, life companions.  

What I'd like to do is to re-post an interview I conducted with one of my best friends who happens to be a gay rocket scientist and who is comfortably settled with his beloved companion -- also one of my husband's and my closest friends.  Tony talks here about why diversity and tolerance in the workplace is not only good for the people in it, but good for the business that supports and empowers them.

Here's New York Times reporter Adam Liptak's coverage of the California Supreme Court opinion here.

That's all.  Anyone debating the gay marriage thing can go back to it now.

I also cannot resist saying this in response to those who worry that the California Supreme Court's ruling is contrary to the will of the majority.  That's the whole point of the U.S. Constitution's Bill of Rights and the similar right-affirming Articles of the California Constitution -- they provide protections for the minority against the "tyranny of the majority."

My readers will recognize many of the tips included in this article published last week in the Los Angeles Daily Journal -- Bullying, Rigidity Are Surefire Negotiation Deal Breakers.  Read it by clicking on the link above or below -- to enlarge page on the document embedded below, click on right-hand arrow and scroll down to

Bullying, Rigidity Are Surefire Negotiation Deal Breakers - Get more documents

I've blogged several times about bullying, both here and over at the IP ADR Blog.  We learned from Forbes.com today that federal prosecutors are seeking an indictment against the mom we wrote about here for her alleged role in an online hoax that caused a 13-year old girl to commit suicide.  Here's the link with an excerpt below:  Indictment sought in MySpace cyberbullying case.

LOS ANGELES - Federal prosecutors are seeking an indictment against a Missouri mother for her alleged role in an online hoax played on a 13-year-old girl who committed suicide.

Two law enforcement officials, who spoke on the condition of anonymity because it was going to be announced shortly Thursday, told The Associated Press they are seeking four charges against Lori Drew, whose daughter was feuding with the victim.

Drew allegedly helped create a false MySpace account to contact Megan Meier who thought she was talking with a 16-year-old boy named "Josh Evans." Megan hanged herself in October 2006.

Drew has denied creating the account or sending messages to Megan.

See also Wired's warning that the basis for the indictment is shaky at best.  Below:

[T]he U.S. Attorney's Office in Los Angeles [is] charging Drew with "unauthorized access" to MySpace's computers, for allegedly violating the site's terms of service.

MySpace's user agreement requires registrants, among other things, to provide factual information about themselves and to refrain from soliciting personal information from minors or using information obtained from MySpace services to harass or harm other people. By allegedly violating that click-to-agree contract, Drew committed the same crime as any hacker. .  . .

In a statement, MySpace says it supports the prosecution. "MySpace does not tolerate cyberbullying and is cooperating fully with the U.S. attorney in this matter," a company spokeswoman said. The company declined to say what the precedent would mean for otherwise innocent users who, for example, misstate their age or ZIP code when setting up their MySpace profiles.

"Theoretically, it applies to any use of a service in violation of the terms of service," says EFF's Granick, who says the impact of the Drew prosecution could be far-reaching. . . .

Matwyshyn says the Drew case is an especially creative use of the Computer Fraud and Abuse Act, given that the aggrieved party in this case is not really MySpace, the putative victim, but Meier.

The case is being prosecuted only because there is so much pressure to see justice done in the Meier tragedy, but existing law doesn't provide an immediate solution, she says.

Matwyshyn says she understands the impulse, but is concerned that if successfully prosecuted the case could set a bad precedent for turning breach-of-contract civil cases into criminal ones.

"Terms of use have been progressively getting more Draconian and restrictive," she notes. "So as these provisions get drafted and users agree to them, we may find ourselves in a situation where a company that drafts one may try to leverage this kind of case law to take a breach-of-contract action and turn it into a computer-intrusion [case]."

Granick agrees. "The real problem is that something tragic happened, but the harm that occurred doesn't have anything to do with the way they've charged the offense," she says. . . 

"When asked if this is the kind of case Granick would want to litigate, she said, "If [Drew] calls me I'd be very interested in talking with her about this case. I think there is such an extreme reading here, and I do think it's dangerously flawed for other cases. I think it's scary and it's wrong and something should be done about it."

As the saying goes, hard facts make bad laws.  Why not a civil suit for intentional infliction of emotional distress?  Or a prosecution for the crime of impersonation to cause injury or commit fraud?

I just finished taking a two-day advanced mediation training offered gratis to settlement officers for the federal district court in the Central District of California.  The cross-cultural mediation training portion of the seminar was conducted by the dynamite, brilliant and entertaining mediator and trainer, Nina Meierding. 

There's much to say about this training (and much to thank the District Court, Dawn Osborne-Adams and the Straus Institute for).  

For now, I want to visit some of the issues Nina raised about misunderstandings between men and women.  Because my note taking skills suffer when I'm as engaged by a speaker as I was by Nina, I searched for material on the web that echoed her talking points.  I found this article --Gender Issues: Communication Differences in Interpersonal Relationships by Cynthia Burggraf Torppa, Ph.D., by googling two terms Nina used to explain the ways in which men and women tend to apologize differently -- "rapport" talk and "report" talk.  

Here are a few interesting observations from Professor Burggraf on gender differences, the knowledge of which may well help us negotiate better agreements across gender lines.

Women are typically the experts in "rapport talk" which refers to the types of communication that build, maintain, and strengthen relationships. Rapport talk reflects skills of talking, nurturing, emotional expression, empathy, and support.

Men are typically the experts in task accomplishment and addressing questions about facts. They are experts in "report talk," which refers to the types of communication that analyzes issues and solves problems. Report talk reflects skills of being competitive, lacking sentimentality, analyzing, and focusing aggressively on task accomplishment.

These differences can create specific, and commonly experienced, misunderstandings. Here are three examples:

Misunderstanding #1

He: I'm really tired. I have so much work to do—I don't know how I'm going to get it done!
She Me, too. There just aren't enough hours in the day!
He: There you go again! You never think my contributions to this marriage are good enough!

In this conversation, she is trying to communicate something like "We're partners and share similar experiences." Her intended "between the lines" message is: "I understand what you're going through; you're not alone." The "between the lines" message he hears emphasizes competition for status: "What are you complaining about? You aren't any better than I am!" or "Your contributions to our marriage aren't any more significant than mine!"

Misunderstanding #2

She: I'm really tired. I have so much work to do—I don't know how I'm going to get it done!
He Why don't you take a day off and rest, if you're so tired?
She: (sarcastically) Thanks a lot! You think my contribution to this household is so trivial that I can do nothing and the difference won't even be noticed?

Here, he is trying to communicate something like "Oh, you need advice and analysis? I'll focus on the details and facts, and offer a solution." His intended "between the lines" message is: "I will help you solve your problem because I think I know something that might help." The "between the lines" message she hears him saying: "I don't want to understand your feelings; I'm different from you and I know what you should do." 

Misunderstanding #3

She: I'm really tired. I have so much work to do—I don't know how I'm going to get it done!
He That's ridiculous! Nothing bad is going to happen, so just trust that I'll get there safely! If something bad does happen, I'm sure you'll hear about it!

In this final example, she is trying to communicate something like, "We're connected and I care about you and your safety." Her intended "between the lines" message is: "You are loved and important to me." The "between the lines" message he hears her saying is: "You had better check in with me! I want to know where you are, who you are with, and what you are doing at all times."

The misunderstandings in these examples probably result from differences in the ways that women and men show affection. It is more common for women to show affection through talking, but it is more common for men to show affection by doing things—either doing things together or doing separate things within the same physical space. Sometimes not talking—not having to talk—is a sign of trust and intimacy for men.

What does all this mean to us?

Understanding differences is the key to working them out. When we misunderstand one another, we often think that the other's motives are not reasonable, are mean spirited, or worse! But by knowing that women and men sometimes see—and hear!—things through different filters, we can begin to share with one other the distortions we experience, and thereby find our way to clarity.

So, the next time you feel surprised, disappointed, or angry with someone's response to something you have said, ask yourself if he or she may have "misheard" you. Is the other responding to your problems with a solution, when you wanted to receive sympathy? Is the other responding to your message of affection with a message of status? If so, you will be able to help the other to understand the source of your miscommunication, and avoid the hurt feelings and conflicts that sometimes follow.

Take a look at this summary of the article When Winning Is Everything by Deepak Malhotra, Gillian Ku, and J. Keith Murnighan, now available online here as well as in the May '08 Harvard Business Review.

Malhotra and colleagues suggest that an adrenaline-fueled emotional state [which they] call  competitive arousal, often leads to bad decisions.

Negotiating litigators may want to note that all of the conditions giving rise to "competitive arousal" are the day-to-day conditions in which litigation is conducted, i.e., intense rivalry, especially in the form of one-on-one competitions; time pressure . . . ; and being in the spotlight—that is, working in the presence of an audience.

Sound familiar?  Take a look at the consequences and the potential solutions below. 

Individually, these factors can seriously impair managerial decision making; together, their consequences can be dire, as evidenced by many high-profile business disasters. It's not possible to avoid destructive competitions and bidding wars completely.

But managers can help prevent competitive arousal by anticipating potentially harmful competitive dynamics and then restructuring the deal-making process. They can also stop irrational competitive behavior from escalating by addressing the causes of competitive arousal.

When rivalry is intense, for instance, managers can

• limit the roles of those who feel it most
• reduce time pressure by extending or eliminating arbitrary deadlines
• deflect the spotlight by spreading the responsibility for critical competitive decisions among team members.

Decision makers will be most successful when they focus on winning contests in which they have a real advantage—and take a step back from those in which winning exacts too high a cost.

Thanks to Geoff Sharp at mediator blah blah for directing us to this great U.K. Mediation resource, The Mediator Magazine which is great to poke around in a little when you're home for mother's day and mom's gone off to bed.  Here, for instance, are some well taken criticisms of mediation practice by in-house counsel from the article Where's the Magic?

Top of the list of issues which invite scorn is perceived weakness on the part of the mediator. Giving palpable nonsense and well documented fact equal air-time in the interests of appearing open-minded has backfired for a number of mediators. 'It can be frustrating where they [the mediator] can see the irrationality of the other party, how their claims and positions are unsubstantiated, and choose to ignore it,' says Frank Aghovia, legal adviser at Exel Plc. He continues, 'It's like saying, "I know he's talking out of his backside, but can you give him what he wants anyway." He concludes that 'steadfast neutrality is irritating and wastes time.'

One public sector lawyer, though generally more favourably disposed towards mediation, shares a sense of frustration with the purely facilitative model: 'If a mediator is too passive,' he says, 'there isn't going to be any realignment of expectations, there isn't going to be the refocusing of the parties on the strengths and weaknesses of their own and the other party's case. It's simply not going to happen. You're not going to facilitate the movement.'

Naturally it is all a question of degree, but frustration with a style perceived to be 'slow', 'wet', 'namby-pamby', or worse, 'like therapy' is real, and stands in the way of mediation increasing its meagre market share.

It is also evident that some mediators have failed to manage the process with sufficient vigour, fuelling comments like 'I've been at quite a few [mediations] and question what the mediator actually does.' No doubt they've had to spend all their time working with the other side, but if so, this needs to be communicated.

This lack of robustness which for many is synonymous with mediation has bred the widespread belief that mediation only works when both sides want to mediate. And where that's the case, without prejudice discussions will do the job. Until mediation's image hardens to the point where people realise that great mediators can deal with the shirty, dismissive and gratuitously rude types, mediation will remain in the shadows. . . .

These criticisms are real and require attention.  I'm uncertain of the state of "professional" mediation in the U.K., but here in California, its all over the board.  For the mediation advocate and his client, finding the right mediator for the right case at the right time is not only more art than science, it's often more guesswork than art. 

I'll be dealing with the issues raised by this U.K. article in the coming weeks.  For the full article, click on the link above.

I shouldn't be talking about collaboration and reciprocity without penning a short note of gratitude for the benefits bestowed upon me and my readers by the new Forbes.com Business and Financial Network.  

The BFNetwork has not only introduced me to many business blogs that otherwise wouldn't have come to my attention, my narcissistic perusal of my own posts listed there have drawn me into abundant Forbes.com resources that benefit my readers.  

I urge my fellow Forbes BFN Bloggers to poke around Forbe's  pages to unearth riches that can benefit their readers there.    

(right:  Forbes.com staff writer Tara Weiss)

That ridiculously lengthy introduction out of the way, here's a great article on how to negotiate a higher salary during a recession from Forbes.com staff writer Tara Weiss -- How to Ask  For A Raise When Times Are Hard.  Summary below:

• find out what people in your market and your position are making.
• once you know your market value, request a conversation with your manager about salary
• remind your manager of the strong contributions you've made.
• during an economic downturn, highlight new clients you've brought to the firm and cost-saving measures you've enacted. Include the key projects you've completed and goals you've met.
• prove you're vital to getting the company through a recession
• present your manager with the research you collected on what others in your market are making.
• consider perks outside of salary such as vacation time, health benefits, or reimbursement for commuting and professional training in a job-related skill.
• if you're rejected, ask what you can do in the next six months to make this conversation successful the next time. 

Thanks Tara!

Thanks to Commitment Matters:  Negotiation Practices in the Commodity World for pointing us to the U.K. Telegraph's provocative article Supermarkets & suppliers: Inside the price war by Jonathan Sibun and James Hall, discussing ruthless negotiation techniques employed by the big supermarket chains in the U.K.  -- like the "Flaming Lamborghini" described below.

My only response is this -- winning at any price isn't worth the price.  Whether you see your customer again makes little difference.  Tomorrow morning, it's your face in the mirror you're required to take a hard look at.  My suspicion?  The "bosses" who direct their staff to negotiate in this manner couldn't or wouldn't do it themselves and those who are doing it are either suffering wage slaves or sociopaths.   

The Flaming Lamborghini

Thought to derive its name from the restaurant in which it was coined - the same London eatery frequented by the infamous Flaming Ferrari City bankers - the Lamborghini is believed to be the model used by Tesco.

The Flaming Lamborghini is a grid-based negotiating tool in which the supermarket buyer takes the supplier on an emotional and psychological roller-coaster ride.

This is done be flip-flopping the salesperson between ‘complacency' and ‘war'.

One minute the buyer is their best friend, the next their worst enemy. This is essentially the clock-face model writ small.

The goal for the supermarket buyer is to make the suppliers feel that they are at the point of ‘maximum performance', while secretly making sure they don't stay there.

A Tesco spokesman said he was unfamiliar with the technique.

For the full article, click here. 

Brilliant piece on de-escalating conflict over at Tammy Lenski's Conflict Zen this morning.  Teaser and link below:  

The friendly bailiff unlocked the small courtroom. After telling me to make myself at home, he pointed to a small red button on the wall. “If you need me, just press that button and I’ll be in here faster than you can blink and eye. It’s an emergency button.”

“Ok, thanks,” I replied, and began to unpack my briefcase.

“I mean it,” he said. “Just press the button. Maybe you should set up your chair so you’re near it.”

I gave him a long look. “You seem to want me to know about that button. Is there something else you want to tell me?”

Continue reading here.

Today the Silicon Alley Insider in its post Google, Viacom: We Won't Settle YouTube Fight Out Of Court asked the same question about Google and Viacom that we've been asking about J.K. Rawling and a middle school teacher -- Whuzzup with the whole settlement thing?

As Alley reports, David Eun, VP in charge of Google content partnerships told Dow Jones Newswires ``we're going all the way to the Supreme Court.  We're very clear about it.''

In the law biz we call this "posturing," and that "all the way to the Supreme Court" comment we call laughable posturing.  Alley says:

Call us dreamers, but we still think both sides could kiss and make up before this gets to the Supremes. After all, the two sides were negotiating for months before going hostile. And Sumner Redstone's other media company -- CBS -- seems quite happy with YouTube. So while both sides can argue that there are important principles at play here, we're pretty sure they can get resolved with an appropriately sized check. 

Of course it might well not be the size of a check but some other set of commercial exchanges, concessions, or synergies that will eventually settle the thing.  

These are business people for goodness sakes.  And never was a business person born who wants to establish Supreme Court precedent.  Talk about giving away your power and control.  

We welcome comments from more knowledgeable readers!

Thanks to Geoff Sharp at mediator blah blah for alerting us to this truly excellent post over at The Consensus Building Institute:  Mediator as Juror:  A Day in Middlesex County Superior Court.  After recounting the facts of the case, CBI's Managing Director Patrick Field comments as follows:

[T]he case reminded me why mediators have such an important, but difficult, job in supporting justice, civil society and social capital. Many parties simply cannot find a way out of escalating conflict and assume that justice can only be served in the courts. This case was a perfect example of several time-tested conflict lessons.

Emotions get the better of us. Here were two well-educated, well-off individuals who let their anger, hurt, offense, and desire for revenge get the best of them.

Communicating is the hardest thing to do. A second phone call, an attempt to be conciliatory, or a short email asking to set a different tone didn’t happen. Somehow, the simplest thing to do—talk—became the hardest.

Sunk costs sink us further. Clearly, the plaintiff was trying to recover his sunk costs, but had passed the point of no return. From an economic standpoint, he had failed to get out when it made dollars and sense (pun intended) and was embarrassingly digging himself deeper and deeper.

Taking responsibility is harder than fighting over it. The facts, as we came to understand them, suggested that this dispute could and should have been resolved months earlier—to everyone’s benefit. Yet the parties chose to point fingers and relinquish their responsibility for resolving the dispute efficiently, fairly, and expeditiously.

Justice is sought but not necessarily served. The parties, both angry, both determined that they were right, decided to take their case all the way to jury. Each was going to get a verdict in his favor one way or another! But the reality was that several partial settlements were offered, winnowing the total amount down, and the judge retained the right to rule on legal fees. We, the jury, were left with a seemingly trivial case, wishing we could punish them both for being so foolhardy.

Serving on a jury reaffirmed to me that justice doesn’t simply emanate Solomon-style from on high. Here’s what I learned.

Justice is not divined; it is negotiated. As our jury deliberated, I realized that this was in fact a negotiation, constrained as it might be by our charge and the evidence. Was the contract valid? Did the defendant actually breach the contract? If so, how much were the damages really worth? When parties hand over their dispute to a jury, they are not avoiding a serious negotiation, they are simply leaving it in the hands of strangers.

Justice is blind. As jurors, we couldn’t ask questions. We couldn’t get at the parties’ deeper motivations, feelings, and emotions (like a mediator might). We did issue a verdict, but we did so blindly, due to our exceedingly limited information and understanding.

Juries deliver verdicts, not necessarily justice. I feel our verdict was fair and reasonable, given what we knew. My fellow jurors (all twelve) took the case seriously, considered the evidence, and did their best to arrive at logical conclusions.

However, we probably didn’t deliver much on the larger front of justice. We couldn’t help the parties find a resolution that left them better off in terms of lower costs, less bitterness, and greater self-respect. We couldn’t censure the lawyers for not doing a better job of restraining their clients’ emotions. We couldn’t issue an admonition against abusing the courts with cases that should be settled by reasonable people elsewhere. We couldn’t aid society by helping its citizens take responsibility for their actions, emotions, and disputes.

So, mediators, next time you sit with parties who are rearing to go to court, I encourage you to keep in mind that court is really settlement, formal as it may be, by other means. And to the future parties of such a suit, it would be well to remember that there is no certainty—and in fact much reason to doubt—that a judge and jury will issue a better verdict or clearer justice than you might arrive at by your own making.

Because I'm in this Forbes Business and Financial Blog Network, I figured I should finally take a look around to see what useful advice Forbes.com might have for my readers.  And sure enough, a Forbes.com search turned up How to Negotiate Like a Pro from the Entrepreneurs column by Lisa LaMotta.  Below an excerpt and the link here.

Life is one negotiation after another, though too few of us are equipped for battle. Formidable dealmakers like Warren Buffett, Bill Clinton and sports agent Scott Boras tend to be born, not made.

Yet talk to negotiating pros from the worlds of government, finance and media and they'll admit there is at least some science to this art. Winning every point is rarely an option, of course, but if you keep a few principles in mind, you can tilt things in your favor--whether you're signing a peace treaty or just angling for a raise.

If you remember one thing about negotiating, it should be this: It's not the maneuvering once you're in the trenches, but rather the preparation before sitting down at the table that counts.

That means taking the time to define what you want, what you are willing to accept and at what point you will walk away. It also means doing enough research to know what the other side wants--and how far they are willing to go to get it.

Want to know more?  Click here!

See Lawyers USA News Brief Employees may be at disadvantage in arbitration  by Correy E. Stephenson here.  Excerpt below.

State courts are reversing arbitration awards for employees at a "statistically significant" rate compared to reversing employer-friendly awards, according to a new study.

Professor Michael LeRoy of the University of Illinois College of Law, a professor of labor and employment, recently released his findings after analyzing arbitration awards from an appellate perspective.

The study, published as a paper, "Do Courts Create Moral Hazard? When Judges Nullify Employer Liability in Arbitrations: An Empirical Analysis," looked at 443 state and federal court rulings on arbitration awards from 1975 to 2007.

While federal courts upheld 85.7 percent of employer wins and 85 percent of awards for employees, LeRoy found markedly different results in the state court system.

There, lower level appellate courts affirmed employer awards 87.2 percent and employee wins 77.6 percent of the time, while the upper appellate courts were even more divergent, with 86.7 percent of employer awards affirmed and only 56.4 percent of employee victories upheld.

These findings suggest a "snowballing futility for employees," LeRoy writes, because the options after being reversed on appeal are limited. Either the employee must start over at the beginning of arbitration, "or worse, be stuck with a useless award and no other recourse."

LeRoy terms this trend a "moral hazard" which is "created by risk sharing contracts or public policies that discourage individuals from avoiding costly behaviors."

Continue reading here.

My Judicate West Video Profile here and, of course, Gloria Swanson in Sunset Blvd. below

My favorite lines:

Joe Gillis: You're Norma Desmond. You used to be in silent pictures. You used to be big.
Norma Desmond: I am big. It's the pictures that got small. 

Norma Desmond: We didn't need dialogue. We had faces!

I really need to do one of these for a real case soon.

(pictured, Harvard law School's winning Negotiation Team)

I could write an entire book on why law students should study negotiation as well as an entire chapter on why they should study texts written for MBA students rather than law students.  The latter topic I will cover in a future post.  The former has already been written succinctly as an article -- link and excerpts below.  

From Why Take ADR Courses In Law School by Cathy Cronin-Harris from the March 2008 issue of the Just Resolutions eNewsletter.

Cathy Cronin-Harris is Co-Chair of the Advocacy Committee of the ABA Section of Dispute Resolution. She's a Senior Consultant to the International Institute for Conflict Prevention & Resolution (CPR) and teaches Negotiation at Columbia Law School. She has taught at Georgetown and Fordham Law Schools, and has been an Administrative Law Judge and litigator. She can be reached at chadr5@aol.com.

Familiarity with Negotiation Approaches

[N]egotiation is a . . . . complicated process and demands a . . . . mind set that recognizes the inherent tension in negotiation: you must engage the other side in order to get to agreement while both sides are in a seeming struggle to achieve apparently conflicting objectives. That tension demands more subtlety than pushing [your opponent] into submission.

[E]xposure to negotiation theory and practice will help you understand "when to hold 'em," "when to fold 'em" and when and how to develop other feasible options and approaches beyond just holding out or giving in.

[Negotiation] courses stress the collaborative mode of negotiation or mutual gains bargaining popularized by Fisher and Ury in Getting to Yes. Its fundamental concepts stress objective standards, creativity, option development, respect for opponents and satisfying parties - genuine underlying interests rather than their positions.

Such exposure will expand your repertoire and allow you to negotiate with agility. You'll appreciate varying approaches people take to negotiation, discover ways to lessen competitive tendencies, become more conscious of options you can use rather than relying on raw intuition, appreciate the significant human elements impacting negotiation success, and learn the value of planning. As you become familiar with the broad brush approaches, you'll be enhancing the key skills below.

a. Expanded Communication Skills

In adversarial settings, assertion skills dominate: lawyers use logic, well-developed statement and presentation skills, tightly orchestrated cross-examination questions, and tools to connect with the trier-of-fact, such as compelling language, analogies and themes, to win the day. But when you negotiate, an additional set of communication tools comes into play along with asserting. Those skills focus on enhancing dialogue to solve the problem.

It's usually a challenge for lawyers to move from assertive statements to a wider band of communication skills. So negotiators learn to use better listening skills which includes confirming understanding of the other side's statements. They use open-ended questioning rather than restricted cross-examination formats to understand and dig out relevant information. They focus on body language and other signals embedded in communications that can provide information indirectly. They also refine assertion skills by ratcheting down the tone and format of statements to express needs compellingly without rancor. So negotiation will complement any communication skills learned in adversarial settings.

But beyond improving your negotiating ability in disputes, these skills will assist you in conducting your daily practice interactions including interviewing clients, unearthing their real needs and interests, advising them of your evaluations, enlarging their view of solution potential, calming them down, and in a host of other ways both professionally and personally.

b. Enhanced Persuasive Skills

The persuasion studied in most courses emphasizes logical rational analysis. Appellate judges apply it in every case based on the lawyers' logical presentations. Needed in negotiation? By all means. But persuasion to induce another to make a deal requires more. It includes your credibility, command of the subject, astute use of reasonable demands, varied questioning, and relationship building with the other side. We also persuade by showing our willingness to be persuaded: by meeting the other's needs and concerns and exploring a variety of options that might satisfy both entities rather than only pushing our agenda. And some psychological insights come into play about framing our requirements and anticipating likely reactions so we can make our offers more acceptable. While adversarial persuasion involves many of these tools, they are used to convince an outsider that you're right. Negotiation persuasion seeks to embrace your opponent, from whom you want something for yourself, and requires persuasive approaches we ordinarily don't consider.
c. Appreciation of the Role of Perceptions

Every trial lawyer knows that perception plays a role in the court room: it's not just about facts. Trial advocacy aims, in part, to shift the judge or juries' perceptions in your favor. In negotiation, we also deal with perception change efforts since negotiators, like everyone else, bring misperceptions to the negotiation table. They make assumptions, they suffer from partial or selective perception, and they tend to view the opposing side with suspicion. So, we seek to amplify those perceptions to remove the negative conclusions the other side draws from their misperceptions which impede willingness to find solutions. We clarify our intent that may have been misperceived; we demonstrate we're not just competing which they might have assumed; and, we suggest solutions to demonstrate regard for their concerns as well as our own. We explore hypothetical outcomes to induce a broader view of settlement potential. Even in making offers, we account for perception barriers in the way we state offers and use rationales to caste new light on their justifiability. We recognize that the way we use actual leverage or power can alter the other's perceptions toward or against us. Exploring these concepts underscores the important role that perceptual awareness plays in negotiation success.

d. Appreciation of the Human Dynamic

One can't effectively negotiate or help orchestrate it as a mediator without recognizing the human emotions at play in disputes. Emotions greatly affect receptivity to settlement proposals. Anger at past events, negative reactions to offers deemed insulting, absence of control over a situation or perceived lack of respect, attention or appreciation can derail deals. On the other hand, creating a positive emotional environment by building trust, building relationships across the table, and acknowledging the other's emotional state can alleviate some of the negative feelings in negotiation. These courses will highlight the need to consider the human element whenever you deal with clients or others in conflict.

e. Expanded Problem Solving Ability

Many lawyers went to law school to help people solve problems. Then, the adversarial adjudicatory system gets ingrained in their blood. That system and the rule of law it's built upon are still the best route to justice I know, when you can't settle matters. But, to function well as a twenty-first century lawyer, you need to complement your adversarial skills with problem solving abilities that support the mutual search for solutions when conflict exists. The negotiation skills you'll garner in the consensual ADR courses will prepare you to engage in collaborative problem-solving whenever possible and apply many of its tenets and skills even in extremely competitive situations.

While I've only touched on the key benefits of gaining negotiation training by enrolling in one of the consensual ADR courses, I hope I've helped you appreciate the need to treat those elective courses as part of your personnel core curriculum. Rounding out adversarial advocacy courses with vital settlement skills will pay vast dividends in every area of law practice despite your chosen field. You'll be more confident and prepared for the challenges ahead and more successful as you join us in the near future.

This just in from Christina Doucet of the National Arbitration Forum

Forthright Launches as Stand-Alone Company

New Company to Leverage Expertise and Leadership in Workflow System Based Transaction Processing and Resolution Solutions

MINNEAPOLIS, May 1, 2008—Forthright, a global provider of transaction processing and resolution solutions, today announced its formal entrance into the marketplace as an independent company. Spun off from the National Arbitration Forum in late 2007, Forthright is the nation’s premier provider of transaction processing and claims administration services in the dispute resolution market. The company serves businesses of varying sizes and structures who work across a variety of business-to-business and business-to-consumer audiences.

“In addition to our traditional areas of strength in dispute resolution program administration and design, we will explore new offerings and new markets within the broader transaction solution industry,” said Forthright Chief Executive Officer Michael Kelly.

Forthright offers clients a range of products and services, including:

• Transaction Processing: Forthright’s proven rules-based workflow technology platform offers clients the capability to process high volumes of transactions cost-effectively, efficiently and with exceptionally low error rates; 
• Resolution System Design: Forthright’s experts work with clients to design new systems, or optimize existing systems, to lower costs and enhance speed-to-resolution programs; 
• Program Administration: Forthright works with clients to administer existing programs and programs they design. Forthright’s proven capability in this space stems from its 22 years as the administrator of arbitration and mediation claims for the highest volume dispute resolution provider in the U.S., the National Arbitration Forum.

“As an independent company, we can best leverage our expertise not only to serve dispute resolution clients but also as an innovator in new areas of claims management and back-office business process outsourcing. Forthright solutions help clients with accuracy and speed, lower costs, greater transparency, and - most importantly - measurable results,” said Kelly.

Forthright’s executive team has decades of experience in both transaction processing and legal services, enhancing the company’s knowledgeable perspective and ability to deliver significant results on behalf of clients. CEO Michael Kelly brings a vision for applying Forthright’s unique capabilities derived from his industry experience, legal background and business acumen.

“Whether companies are building a ground-up system or are refining a legacy process, Forthright can collaborate to construct a solid solution that efficiently handles large volumes of transactions,” concluded Kelly.

About Forthright

Forthright is a global provider of transaction processing and resolution solutions. Clients of Forthright take advantage of our proven platform, innovative transaction processing expertise and exceptional service. Whether companies are building a ground-up system or refining a legacy process, we collaborate to construct a solid solution that efficiently handles large volumes of transactions. Our state of the art workflow solutions deliver improved accuracy, faster speed to resolution, reduced cost, greater transparency and – most importantly – measurable results. www.forthrightsolutions.com