Negotiation Law Blog

Go back to the Mother Country for your Fourth of July Blawg Festivities.

Image from John Cole's Toon Blog Here

It's Sunday . . . and since I inadvertently celebrated my own little Brain Week here, I thought I'd give you something extraordinary to watch . . . it has ABSOLUTELY NOTHING to do with negotiation!

UPDATE:  As you can see from the link in my friend Stephanie West Allen's comment below (she blogs on neuroscience and the law at Brains on Purpose) there's considerable controversy about the brain science recounted in this arresting presentation. 

This presentation caused me a little cognitive dissonance because my own experiences (1969-1971 -- I'm sure the statute of limitations has run) with psychedelics as well as those described by others (see Aldous Huxley's Doors of Perception */) duplicate Bolte-Taylor's to a T.  As I watched this with the friend who introduced it to me yesterday I kept thinking "psychedelics don't act only on the right or left part of the brain, so what's the deal here?"  

I'll take the left-brain/right-brain description metaphorically.  Since I'm not a brain scientist, the science described, right or wrong, doesn't get in the way of my appreciation for the described experience. 

Once you open this particular "door of perception" you can find your way back to it by way of meditation.  As Huxley wrote:

The man who comes back through the Door in the Wall will never be quite the same as the man who went out. He will be wiser but less sure, happier but less self-satisfied, humbler in acknowledging his ignorance yet better equipped to understand the relationship of words to things, of systematic reasoning to the unfathomable mystery which it tries, forever vainly, to comprehend.

From the TED site:

One morning, a blood vessel in Jill Bolte Taylor's brain exploded. As a brain scientist, she realized she had a ringside seat to her own stroke. She watched as her brain functions shut down one by one: motion, speech, memory, self-awareness ...

Amazed to find herself alive, Taylor spent eight years recovering her ability to think, walk and talk. She has become a spokesperson for stroke recovery and for the possibility of coming back from brain injury stronger than before. In her case, although the stroke damaged the left side of her brain, her recovery unleashed a torrent of creative energy from her right. From her home base in Indiana, she now travels the country on behalf of the Harvard Brain Bank as the "Singin' Scientist."

"How many brain scientists have been able to study the brain from the inside out? I've gotten as much out of this experience of losing my left mind as I have in my entire academic career."   Jill Bolte Taylor

________________

*/  The title comes from William Blake's The Marriage of Heaven and Hell:

If the doors of perception were cleansed every thing would appear to man as it is, infinite. For man has closed himself up, till he sees all things through narrow chinks of his cavern.

Thanks to Slashdot for picking up an item from the Wall Street Journal -- Get Out of Your Way -- showing that we make up our minds 10 seconds before we let ourselves know it.

Experiments with the usual brood of university undergraduates (read about them here) revealed that

our best reasons for some choices we make are understood only by our cells. The findings lend credence to researchers who argue that many important decisions may be best made by going with our gut -- not by thinking about them too much.

Trial lawyers know this, right?  Anne Reed?  You there?

Mom always said I thought too much.  And Dutch researchers are proving her right (another one for you, mom!)

Dutch researchers . . . recently found that people struggling to make relatively complicated consumer choices -- which car to buy, apartment to rent or vacation to take -- appeared to make sounder decisions when they were distracted and unable to focus consciously on the problem.

Moreover, the more factors to be considered in a decision, the more likely the unconscious brain handled it all better, they reported in the peer-reviewed journal Science in 2006. "The idea that conscious deliberation before making a decision is always good is simply one of those illusions consciousness creates for us," Dr. Dijksterhuis said.

Here's another lesson I learned nearly thirty years ago in law school that the researchers are only now proving -- you just have to feed your brain the information and then, literally or figuratively go to sleep.  Start writing and you will write your way into the solution that your brain already knew.

(I also used this technique preparing the depositions of technical expert witnesses -- petrochemical engineers, statisticians and the like)

The Take Away for Negotiators?

Prepare.  Ask questions.  Have a firm bottom line (or, better yet, fool yourself into believing your bottom line is less or more than it already is). 

Then rock and roll! 

The more you negotiate (try it at your local retail store) the better your mind will become at improvising the moves necessary -- in the commpletely unpredictable present -- to get what your brain already knows you really want.

Given simply the transmissions along the optic nerve from the light entering the eye one would not be able to reconstruct the three-dimensionality, or the distance, or the detail of the bark -- attributes that we perceive instantly. 

In other words, perception is not merely reception.  "Objective reality" is just the brain's "best guess" about what the eyes observe, the ears hear and the fingers touch.

(image:  Phantom Limb #2 by Lynn Hershman) 

"The images in our mind," Gawande explains, "are extraordinarily rich."

We can tell if something is liquid or solid, heavy or light, dead or alive. But the information we work from is poor -- a distorted, two-dimensional transmission with entire spots missing. So the mind fills in most of the picture. You can get a sense of this from brain-anatomy studies. If visual sensations were primarily received rather than constructed by the brain, you'd expect that most of the fibres going to the brain's primary visual cortex would come from the retina. Instead, scientists have found that only twenty per cent do; eighty per cent come downward from regions of the brain governing functions like memory. Richard Gregory, a prominent British neuropsychologist, estimates that visual perception is more than ninety per cent memory and less than ten per cent sensory nerve signals.

Gawande doesn't explain how we manage to agree on anything with such impoverished perceptual abilities and richly imagined constructs of "objective reality."   I suspect that our insatiable urge to tell one another stories is the primary way we create the collective memories that allow us to agree upon such simple "facts" as "the apple is red and somewhat round," if not necessarily that "the blue Kia entered the intersection after the traffic light turned red."  

What strikes me about Gawande's article is not so much the pure science described there, but the way in which opposing parties in litigation resemble "phantom limbs" and joint sessions the mirrors used by physicians to treat the pain "felt" in them.       

Recent research demonstrates that amputees' phantom limb pain can be reduced or eliminated by "fooling" the brain into believing that the missing limb is "well."  When researchers asked amputees to put their surviving arm through a hole in the side of a box with a mirror inside and to then move "both" arms, 

[t]he patients had the sense that they had two arms again. Even though they knew it was an illusion, it provided immediate relief. People who for years had been unable to unclench their phantom fist suddenly felt their hand open; phantom arms in painfully contorted positions could relax. With daily use of the mirror box over weeks, patients sensed their phantom limbs actually shrink into their stumps and, in several instances, completely vanish. . . .

. . . here’s what the new theory suggests is going on: when your arm is amputated, nerve transmissions are shut off, and the brain’s best guess often seems to be that the arm is still there, but paralyzed, or clenched, or beginning to cramp up. Things can stay like this for years. The mirror box, however, provides the brain with new visual input—however illusory—suggesting motion in the absent arm. The brain has to incorporate the new information into its sensory map of what’s happening. Therefore, it guesses again, and the pain goes away.     

Litigation separates the parties from one another as radically as an amputation, often under circumstances where the law suit is all they have in common.  Like amputees, the parties cannot massage the missing muscle, scratch the irritating itch, or ease the frustrating pain.           

When physicians give their patients mirrors and instruct them to move their one remaining arm in concert with its physically re-imagined partner, they conduct a silent concert of healing.  With "new" information (hey! there's my other arm and it's not all cramped up!) the brain readjusts and stops sending false signals.  The muscle relaxes.  The itch is scratched.  The pain is relieved.  

Joint sessions can be used as mirrors to make missing disputants appear again./*  The mediator -- who is trained in this art -- creates an environment (the "box") in which the parties are able to adjust the mis-impressions and correct the mis-communications that make the conflict so difficult to resolve. After a brief period of discomfort and incoordination, the disputants begin to tell their stories of injustice in concert, spontaneously harmonizing the points on which there is little disagreement and resolving those parts of the tale where the greatest differences lie. 

Those parts of the story that have grown wildly distorted in the absence of any corrective influence, are shrunk back to their appropriate size.  Freed from the tyranny of their phantom "others,"  the parties begin to work collaboratively to solve the problem that they now understand is mutual.  

Though this is surely metaphor, the process is not just theory.  When parties consent to a joint session orchestrated by the mediator in collaboration with their attorneys, this type of reconciliation happens more often than not.  

Don't, however, confuse this joint session with those in which attorneys  give one another presentations proving their entitlement to victory as if there were a phantom "decider"  -- a missing arbitrator or judge -- somewhere behind a curtain.  These are the type of "joint sessions" that have given joint sessions a bad name because counsel well know their opponents' "positions"and the parties tend to become less rather than more amenable to settlement when their opponents' point of view is once again argued to them -- this time in quarters that are far too close for most lawyers, let alone their clients. 

We'll keep exploring this issue.  For now, more of the Gawande article below.  

A new scientific understanding of perception has emerged in the past few decades, and it has overturned classical, centuries-long beliefs about how our brains work—though it has apparently not penetrated the medical world yet. The old understanding of perception is what neuroscientists call “the naïve view,” and it is the view that most people, in or out of medicine, still have. We’re inclined to think that people normally perceive things in the world directly. We believe that the hardness of a rock, the coldness of an ice cube, the itchiness of a sweater are picked up by our nerve endings, transmitted through the spinal cord like a message through a wire, and decoded by the brain. . . .

[There are] some serious flaws in the direct-perception theory—in the notion that when we see, hear, or feel we are just taking in the sights, sounds, and textures of the world. For one thing, it cannot explain how we experience things that seem physically real but aren’t: sensations of itching that arise from nothing more than itchy thoughts; dreams that can seem indistinguishable from reality; phantom sensations that amputees have in their missing limbs. And, the more we examine the actual nerve transmissions we receive from the world outside, the more inadequate they seem.

Our assumption had been that the sensory data we receive from our eyes, ears, nose, fingers, and so on contain all the information that we need for perception, and that perception must work something like a radio. It’s hard to conceive that a Boston Symphony Orchestra concert is in a radio wave. But it is. So you might think that it’s the same with the signals we receive—that if you hooked up someone’s nerves to a monitor you could watch what the person is experiencing as if it were a television show.

Yet, as scientists set about analyzing the signals, they found them to be radically impoverished  . . .

________________________

*/   I don't know if any of this relates to mirror neurons, but I am certainly led to think about them.  See Stephanie West Allen's post Mirror Neurons, Some Resources here.  Whenever I see the word "mirror" I'm also always moved to think of my friend, the artist and mediator Dorit Cypis.  For more on her work, click here.

Check out When Collaborative Law Makes Sense in the most recent issue of the American Bar Association Journal. 

Collaboration may be most amenable in areas where there is a need for ongoing relationships, like dissolving marriages that produced children, said Pauline Noe of Cambridge, a past president of the Massachusetts Collaborative Law Council. Noe suggested that discovery is often more fruitful in collaborations than in litigation, since collaboration requires full, prompt, honest and open disclosure of all relevant information, and vigorous good faith negotiation with full participation of all parties in an open forum.

Taking the long view as I'm now prone to do (by virtue of age and the fact that I generally only see litigation's end game) I continue to say that we're all involved in on-going relationships -- not just those people whose disputes are more personal than commercial.

As Joseph Campbell, the great student of world mythology taught us:

Schopenhauer, in his splendid essay called "On an Apparent Intention in the Fate of the Individual," points out that when you reach an advanced age and look back over your lifetime, it can seem to have had a consistent order and plan, as though composed by some novelist. Events that when they occurred had seemed accidental and of little moment turn out to have been indispensable factors in the composition of a consistent plot. So who composed that plot? Schopenhauer suggests that just as your dreams are composed by an aspect of yourself of which your consciousness is unaware, so, too, your whole life is composed by the will within you. And just as people whom you will have met apparently by mere chance became leading agents in the structuring of your life, so, too, will you have served unknowingly as an agent, giving meaning to the lives of others, The whole thing gears together like one big symphony, with everything unconsciously structuring everything else. And Schopenhauer concludes that it is as though our lives were the features of the one great dream of a single dreamer in which all the dream characters dream, too; so that everything links to everything else, moved by the one will to life which is the universal will in nature.

It’s a magnificent idea – an idea that appears in India in the mythic image of the Net of Indra, which is a net of gems, where at every crossing of one thread over another there is a gem reflecting all the other reflective gems. Everything arises in mutual relation to everything else, so you can’t blame anybody for anything. It is even as though there were a single intention behind it all, which always makes some kind of sense, though none of us knows what the sense might be, or has lived the life that he quite intended.

A classic example of combative litigation -- YOU ARE NOT THE BOSS OF ME!

There is no principle I hold more dear than the rule of law.  I've written before about some critics' contention that our own government has turned away from the rule of law here.  Some of those  critics go so far as to accuse our government of waging war on the rule of law -- calling its strategy "lawfare."

I've also written before about critcisms levelled against ADR practices as threats to the principle that all men, women, and institutions will be judged by the same gender-blind, color-blind, nationality-blind, disability-blind (etc.) rules of law. 

There are those who believe that mediation -- which is practiced without rules, best practices or even a common theoretical basis --  permits mediators -- who are primarily over-40 white men -- to unfairly pressure litigants to settle their lawsuits against their better judgment.  There are further charges that mediation re-injects favortism and prejudice back into a system that spent most of the latter half of the 20th century ridding itself of.  

I take these criticisms very very seriously, repeating throughout any mediation session my opening assertion that my role is to present the parties with choices and to faciliate a settlement if they believe it may be better alternative to continued litigation, not to hustle them away from their right to a jury trial.  

I would be far more successful in being "neutral" about proceeding to a jury trial if there were an easier, less costly, and speedier way to bring a dispute before a jury.  We have, lamentably, permitted our cherished rule of law to become so procedurally encrusted that it sometimes seems like no option at all -- at least not an option available to all but the wealthy or those represented by lawyers willing to accept a contingent fee.

All of this troubles me.  I invite comment at the same time that I provide the thoughts of some of our greatest statesmen and jurists about the right to trial by jury.      

George Washington

"There was not a member of the Constitutional Convention who had the least objection to what is contended for by the advocates for a Bill of Rights and trial by jury." (1788)

John Adams 

"Representative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle and fed and clothed like swine and hounds." (1774)

Thomas Jefferson 

"I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." (1788)

"Trial by jury is part of that bright constellation which has gone before us and guided our steps through an age of revolution and reformation." (1801)

"The wisdom of our sages and the blood of our heroes has been devoted to the attainment of trial by jury. It should be the creed of our political faith." (1801)

James Madison 
"Trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature." (1789)

John Quincy Adams 

"The struggle for American independence was for chartered rights, for English liberties, for trial by jury, habeas corpus and Magna Carta." (1839)

Patrick Henry of Virginia [Patriot who said "Give me liberty or give me death!"]
"Trial by jury is the best appendage of freedom by which our ancestors have secured their lives and property. I hope we shall never be induced to part with that excellent mode of trial." (1788)

Alexander Hamilton 

"The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government." (1788)

Daniel Webster

"The protection of life and property, habeas corpus, trial by jury, the right of an open trial, these are principles of public liberty existing in the best form in the republican institutions of this country." (1848)

Judge Stephen Reinhardt 

"Our constitutional right to trial by jury does not turn on the political mood of the moment, the outcome of cost/benefit analyses or the results of economic or fiscal calculations. There is no price tag on the continued existence of the civil jury system, or any other constitutionally-provided right." (1986)

David Hume 

"Trial by jury is the best institution calculated for the preservation of liberty and the administration of justice that was ever devised by the wit of man." (1762)

Judge William Bryant [First African-American federal district court judge in D.C]

"If it weren't for lawyers, I'd still be three-fifths of a man." (2004)

Justice William O. Douglas

"The Massachusetts Body of Liberties was a new Magna Carta. It contained many of the seeds of the civil liberties which today distinguish us from the totalitarian systems, including the right to trial by jury." (1954)

Justice Hugo Black

"Our duty to preserve the Seventh Amendment is a matter of high Constitutional importance. The founders of our country thought that trial by civil jury was an essential bulwark of civil liberty and it must be scrupulously safeguarded." (1939, 1943)

Justice Ward Hunt

"Twelve jurors know more of the common affairs of life than does one man, and they can draw wiser and safer conclusions than a single judge." (1873)

Quotations excerpted from In Defense of Trial by Jury: Vols. I and II by the American Jury Trial Foundation (1993) and copied verbatim and in their entirety from the web site of the American Association of Justice (i.e., the American Trial Lawyers Association).

You know, I've been reading the Daily Journal my entire legal career.  I never gave much thought to the men and women whose job it is to report the daily legal news.  Now I have.

There's a reporter at the DJ named Noah Barron who not only reported my dad's passing, but talked on the telephone with me for more than an hour at a time when I really needed to talk about my dad to someone who makes his living being curious about people's personal lives.  It made a huge difference in my experience of my father's passing.

You see.  We make these differences in one another's lives all the time.  We just usually fail to acknowledge one another for it. 

So I want to thank Noah for the article carrying his by-line published in the DJ today.  

And I want to thank Dad for following his own best advice from our river rafting adventures:  keep your oar in the water (for balance) and paddle through your fear.  I would never have had the courage to go to law school were it not for the example he set -- which you can read about in Noah's fine article below. 

DAILY JOURNAL NEWSWIRE ARTICLE
© 2008 The Daily Journal Corporation.
All rights reserved.
-------------------------------------------

June 17, 2008

JURIST FOUGHT FOR GAY RIGHTS BEFORE IT WAS POPULAR
By Noah Barron
Daily Journal Staff Writer
This article appears on Page 2

LOS ANGELES - Superior Court Commissioner Donald W. Pike was a self-made millionaire, a self-taught thinker who went to law school but never college, an adventurer and a legal pioneer who broke ground on gay marriage rights three decades before it was fashionable. He died in his Los Angeles home on his 84th birthday on June 9 from complications from Parkinson's disease.

Back in 1982, the Daily Journal profiled Pike, setting down in print many of the stories that came to form the man: his impoverished beginnings in Nebraska, the fifth of nine children, his family's "Grapes of Wrath"-esque exodus to California and his early jobs as a child of 14 working as a farm laborer.

Before he was appointed commissioner to the Los Angeles County Superior Court bench, he was a milkman, an insurance salesman, a merchant marine in World War II and a lawyer, and then in his 60s became a millionaire through his real estate investments.

"I am ridiculously proud of my father," Pike's daughter, Victoria Pike Pynchon, said. "He took every opportunity to improve his station in life and improve the future of his children. But he didn't accomplish these things alone. No one does."

Pike's marriage collapsed in 1962 and he moved from Los Angeles to Sacramento to start a new life.

Later, presiding over domestic cases in Los Angeles, he would say that his failed marriage gave him special insight into family woes.

"Having had two marriages helps me understand family law," he said in a 1982 Daily Journal profile.

Pynchon said she was deeply hurt when Pike left home but reconnected with him as an adult, becoming a lawyer herself and watching him on the bench. She said he sometimes grew emotional during custody battles.

"He would call a recess whenever he was going to burst into tears," she said. In describing his leaving his family, Pike said, "I was terribly guilty."

Pike was 35 before he earned his high school equivalency. When he set out to start over in his 30s, he visited a a psychologist whose IQ test told him for the first time that he was intelligent.

"I thought the rich were smart and the poor were dumb," he said in a 1982 interview.

"He lived in fear of poverty," his daughter said.

Pike wasted no time, passing a college equivalency test offered by the State Bar and then attending McGeorge School of Law by night while delivering Dad's Root Beer by day, sending support checks home all the while. He passed the Bar Exam on his first attempt.

Gary Pike, the commissioner's nephew, said that while Pike was practicing civil law, he drafted contracts for gay men and women that emulated the rights of married couples.

The work reflected a legal sensibility decades ahead of its time, Gary Pike said.

Retired Los Angeles County Superior Court Judge Eli Chernow worked with Pike when Pike was a commissioner, from 1973 to the mid-1990s.

"He was a good friend and great colleague. He left a big hole when he left the bench," Chernow said.

Pike is survived by his wife, Juanita; his two daughters Sharon Lawrence and Victoria Pynchon; and two grandchildren. Four of his nine siblings are still alive, Oscar, Lois, Dorothy and Kenneth Pike.

Private memorial services will be held in Pynchon's Los Angeles home. Instead of flowers, the family asks donations be made in Pike's memory to the Alliance for Children's Rights at http://www.kids-alliance.org

noah_barron@dailyjournal.com

I'm tempted to just import Geoff Sharp's entire post on joint session vs. separate caucus mediation or, as Joe McMahon positions the split in current mediation practice in Moving Mediation Back to Its Historic Roots, "dialogue-based" v. "separation-based" practice.

That seems silly when I can simply link you to Geoff's post The Legal Community Has Learned to Accept Low Functioning Mediation.  

I will give you a few excerpts, though, both Geoff's own thoughts and those of McMahon quoted by him (thanks to our mutual friend Stephanie West Allen at Idealawg).

If denial and avoidance are thought to be the most universal responses to conflict, it is important to consider whether separation-based mediation merely plays into and enables such a response to conflict. If so, it is time to evaluate whether mediation and facilitation were really intended to provide support for such denial...

Support for the market model of mediation ("the market knows what it needs and what it needs is the settlement conference") is claimed in the high settlement rates in commercial settlement conferences. However, a high percentage of civil cases always have settled, even long before mediation was in vogue...

McMahon asks of mediators; 'are you fully satisfied with the quality of dialogue among conflicting parties in the mediations in which you participate?'

What a wonderful question! In my case however, only occasionally.

As McMahon says, 'By broadly considering conflict and mediation, it may be possible... to move these processes back toward their historic roots—that being processes based on parties telling their stories in face-to-face dialogue aided by a mediator who can guide them to more effective communications.'

And though it is, as Geoff says, about the "timbre and tone of resolution," it is also about obtaining more satisfactory resolutions -- resolutions that not only satisfy more party needs, interests and desires but which invariably leave less value lying unused on the table when all parties leave the room.  

I'll grill Geoff about this over dinner tomorrow night and get back to you on all of this.

My own previous posts on joint sessions below:

Small Talk and Separate Caucuses.  Excerpt:

Here, then, is the weakness of shuttle negotiation. The parties' attention is fixated on money. A fixation that neuroscientists tell us makes us ungenerous and anti-social -- the worst possible context for a successful settlement.

The next time you're facing a difficult negotiation or mediation, remember the salutary effect of small talk in helping yourself and your opponent focus on the commercial and human situation that has brought you to the table so that you can more easily resolve the business and the people problem at the heart of the litigation.

Negotiating Justice in Community Mediation.  Excerpt:

Whether justice and fairness are, at some level, hard-wired into us (see Brain reacts to fairness as it does to money and chocolate) or culturally controlled, it seems that Rawls' conception of "justice and fairness" based upon reasonableness and enlightened self-interest might flow more or less naturally from a mediated dispute resolution forum where the parties, rather than the mediator, are in control.

Long Live the Death of the Reasonable Man

Emotions in litigation -- and at the negotiation table -- often run extremely high. It is for this reason that so many lawyers want to avoid joint sessions altogether and conduct their entire bargaining session in separate caucus with a "shuttle" mediator.

What I can tell you from three years of full-time mediation practice, however, is this -- when business people -- properly coached -- are finally willing to sit down and speak to one another, to explain their circumstances rather than their legal and factual position -- cases get settled rather quickly. (See Geoff Sharp's In Praise of Joint Sessions here)

Why?

Because they have more in common with one another -- including most particularly the dispute -- than with anyone else.

I've linked to Negotiating:  Thinking it Through from the Business Growth Blog before, but haven't quoted the Eight Preparation Questions listed there.  The more I mediate (yes, one's practice does grow) the more I'm reminded that litigators resist interest-based bargaining techniques. 

I get stuck in position-based negotiations as well.  It remains a challenge for me, after 25 years of litigation practice, not to be sucked into the attorneys' arguments about why they are right.  To help all of us in the mediation room . . .

[h]ere is a list of 8 questions you can ask yourself when you suddenly realize that you have to prepare for a negotiation. Use these to generate quick preparation for any negotiation.

1. What are my intended outcomes and interests?

This is about having your goal in mind but also about thinking about the bigger picture at the same time - if you're goal is to get to work on time, speeding to get there might seem like the right choice until the cop pulls you over.

2. What are their possible interests and outcomes?

Look at the negotiaion from their point of view. What do they really want from this?

3. What are some of the options of agreement?

Where are the points of agreement? Focusing on this beforehand will set a tone of reaching agreement rather than a tone of conflict.

4. What is my Plan B?

Once you've thought through the first three questions, what's your fall back position? Having your Plan B in mind gives you a feeling of options so if the deal goes to far against you, you are comfortable with your option B.

5. What is my worst case scenario?

Answering this question sets your "don't cross" line. You've predetermined what you're willing to give up and more than that is a deal breaker… that means you can negotiate confidently, since you know your direction.

6. What are some possible external standards?

External standard are outside measures that can move the negotiation away from personal stakes to measures from an outside authority. Examples might be interest rates, rate of exchange or time frame.

7. What is or are my reserve price / terms / limits?

Knowing what your limits are and then not not going past them results in more useful and enjoyable negotiation.

8. What is my game plan?

Map it out. What do you want and how are you going to get there?

Lexis-Nexis isn't just about legal research anymore.  L-N is posting a broad array of practice development materials for new lawyers at its New Attorney Hub site here.  And you don't have to be an L-N subscriber to benefit.  All of the materials provided are free.

Though there aren't yet a lot of ADR skill development materials at Hub, I'm proud to say that they've included my posts Ten Settlement Conference/Mediation Traps for the Unwary and On the Job Deposition Training with their other Skill Building Materials. 

You can find Professional Skills, Practice Area Skills and Research and Writing Skills there.

The editors of these materials are combing the internet to provide the most up-to-date materials from some of the oldest hands in the business.  They contacted me, after all, and the one thing I do know myself is that I'm an old --- er, make that experienced -- litigator.

If the Lexis-Nexis people are tracking mentions of their Hub site in the blogosphere, I refer them to my link page here for additional materials -- particularly those included in the blogs listed in the ADR and Intellectual Property sections on that page.

"No," to question no 1 says Clarke Ching of the software blog More Chili Please who is hosting this week's Carnival of Trust.  (Hat Tip to Chicago IP Litigation Blog)  And "yes" say I to question no. 2.

Ching cites us to Davis Anderson's post, "Stop Negotiating, Start Collaborating" in the Agile Management Blog, an article that was first published in the Cutter Journal. Ching says,

It's a very good article - important to anyone working in project work, software related or otherwise. I wonder if David was ... perhaps ... being a little deliberately provocative with his title. Can we ever stop negotiating while we've got people involved? I prefer to think that there are two different ways of negotiating: as adversaries or as collaborators.

I agree with Ching but Anderson's post is not just a great read, but a provocative and stimulating one so I suggest you click on it and run right over there.  Not convinced?  Here's an excerpt:

Stop Negotiating! No really! Cut it out! Banish it from your thoughts, your actions and your organization. Refuse to negotiate. When you need to work with another department, group or team inside your organization, and you find yourself in negotiations to get what you need, just say “Enough!” And refuse to negotiate.

What is so bad about negotiation?

Negotiation implies that you have an internal market and a market implies that you need a contract between a supplier and a consumer of a product or service (usually a service in an IT or technology product company context). Markets and their contracts carry transaction costs [1] – one of those costs is negotiation. If you can replace your internal market with a collaborative network, you’ll gain an economic boost from what are known as the network externalities [2] of being in the network. Collaborative networks do away with the transaction costs associated with marketplaces - specifically in this case, the cost of negotiation.

Negotiation also implies that information is being hidden. The supplier is hiding their availability, or the cost of the job, or some information that might give the consumer an advantage. Our 20th Century education taught us that “information is power” and business schools teach negotiation emphasizing that leverage involves hiding information. It’s become second nature in business to assume hidden information and to probe for it during negotiations. Hence, consumers of your IT service naturally distrust your estimates or resource requests.

Let’s pause for a moment and reflect on that word advantage. Within your organization, why would any one group or team require an advantage over another? Doesn’t the organization have a set of common goals? And isn’t the organization supposed to be collaborating to realize those goals? What can obtaining an advantage over another group possibly have to do with collaboration?

If you are beginning to think that there ought not to be a position of advantage in a truly collaborative organization, you’re thinking along the right lines. Having an advantage and collaboration are incompatible. By implication then, information hiding is incompatible with collaboration. And negotiation ought to be unnecessary.

Trust is the essence of a highly collaborative organization.

My attorney readers, particularly the litigators will say -- sure, sure -- it's one thing to stop 'taking advantage' internally - but we are fighting a just cause here.   

Not to join the kum-by-ya crowd or anything like that, but if you can hold this thought in your mind for just a couple of minutes before rejecting it completely, it might take root and grow a small shoot of hope and desire inside of you.

Here it is:  we are all within the same "organization" -- that Big Blue Ball whose larger mammals happen to be threatened with extinction right now.  Being those larger mammals, don't we have a set of common goals?  And doesn't that set of common goals include maximizing the well-being of everyone on the economic food chain? 

We need workers to create the stuff business produces, both to create it while we brainstorm and to purchase it after the workers make it. That's at the bottom of the food chain.  Closer to the middle, we need higher paid workers to have disposable income to invest in business, either directly as partners or indirectly as shareholders.  At the top of the food chain, we need "competitors" to solve some of the complex business, manufacturing and information technology problems that our business -- be we MicroSoft or Apple or SmallTech just getting started in the garage down the street -- cannot solve. 

But what about people who infringe our patents, who steal our customers, who try to gobble up the market for themselves.  What about people who breach their contractual obligations?  What about the people who lie and cheat and steal?  We need to fight them in the civilized way we do now.  We need power to force them to disgorge the profits that rightfully belong to us and to pay for the damage our business has suffered as a result of their civil wrongdoing.

O.K.  Listen.  I just said -- hold this thought in your head for a minute before rejecting it out of hand. 

I'll be back to address that last set of questions soon.

Dad -- former Los Angeles Superior Court Commissioner Donald Wayne Pike -- passed away on his 84th birthday:  9 June 2008.  

I keep thinking I'll work and then I can't so, not knowing what else to do, am making my father a memorial blog.

Before taking the whole dad-thing over there --  http://donaldpike.blogspot.com/ -- I want to say a couple of things.

Thank you to everyone for your love and support.  If I haven't responded to you it's because I am completely unreliable at the moment.  I know you'll forgive me.  As will my readers AND the wonderful Kevin O'Keefe whose voice-in-my-head keeps telling me to STAY ON TOPIC!!

On Dad's behalf, I have this to say to as much of the world who might stumble across this message in a bottle:  

What a great country where a kid from a Nebraska farm, uprooted by the dust bowl, driven into poverty with the rest of the country during the Great Depression, who left home at 14 or 15, earned his high school diploma in night school while driving a milk truck, married to my mother with two kids, and, who never spent a single day in college -- can go to law school; become an attorney; and ascend to the bench of the largest state trial court system in the world.  A man who -- for all his flaws -- inspired his daughter to go to law school when it was still not a common career goal for women.

Thanks Dad.  And thanks America.  For all your flaws.  For all our flaws.  Given the opportunity, we can still do great things.

I do hope you'll pick up Ken Cloke's new book Conflict Revolution.  Keep it on your night stand.  Dip into it when you feel angry, hopeless, and grief-stricken at a local, national, or international act of violence.  

Here's a little good news from Ken's book to cheer myself and my readers up after the last lengthy post on the Robert F. Kennedy assassination.  

It is possible, as has been demonstrated in Northern Ireland, for former combatants to recognize that nothing can be gained through military methods that is worth the cost; that their mutual slaughter has been a gigantic, tragic, absurd, pointless waste; and that they can reach out at any time to each other without glossing over their differences.

It is possible, even for the most battle-hardened opponents, to learn that there are no differences they cannot solve through dialogue, negotiation, and conflict resolution, or are worth the damage created by their assumptions of evil; that they can engage in open, honest, collaborative negotiations over ongoing issues of justice and equality; cooperate in strengthening their political, economic, and social democracies; develop interest-based conflict resolution skills; and elicit heartfelt communications that invite truth and reconciliation. To do so, they need to penetrate beneath the layer of moral rationalization they have erected to solidify and buttress these cycles of internecine conflict.

Remember Détente?  Take a Look at the June 2 NY Times "Backgrounder" on Negotiating with Hostile States.  Campaign rhetoric aside, all U.S. Presidents do it; the only questions being when and who and under what circumstances and how.  Excerpt below:  

Republican President Richard M. Nixon accelerated contacts with Soviet leaders in the early 1970s. Nixon and his national security adviser, Henry Kissinger, introduced a policy of détente that aimed to establish new linkages on issues ranging from arms control to improved trade terms. The goal was to lessen superpower tensions as well as induce positive changes in Soviet international behavior. Kissinger writes in his book Diplomacy that Nixon's advisers "saw no contradiction in treating the communist world as both adversary and collaborator: adversary in fundamental ideology and in the need to prevent communism from upsetting the global equilibrium; collaborator in keeping the ideological conflict from exploding into a nuclear war."

The new contacts bore fruit in the signing of the Strategic Arms Limitation Treaty (SALT I) in 1972 by Nixon and Soviet leader Leonid Brezhnev. But within a year, tensions related to the October 1973 Arab-Israeli War showed superpower competition remained vigorous, at one point prompting a heightened nuclear alert for U.S. forces. In 1974, congressional critics of détente, led by Democratic Sen. Henry M. Jackson, sidelined a U.S.-Soviet trade agreement with the Jackson-Vanik amendment, which linked trade to emigration of Soviet Jews. Writing in Foreign Affairs, historian John Lewis Gaddis called détente a "sophisticated and far-sighted strategy" that Nixon and Kissinger failed to put across to their "own bureaucracies, the Congress, or the public as a whole." Robert S. Litwak, director of international security studies at the Woodrow Wilson Center, writes in his book Rogue States and U.S. Foreign Policy that the détente policy was hampered by the "Soviet leadership's ability to compartmentalize relations and frustrate the Nixon administration's efforts to establish linkages."

Some Cold War analysts say more effective as a counterweight to Soviet ambitions was the Nixon administration's simultaneous diplomacy with China, which led to the formal establishment of a dialogue with the 1972 Shanghai Communique. While not posing the direct threat that the Soviet Union represented, Communist China was viewed as no less odious by critics of the Nixon negotiations due to its intervention on North Korea's side in the Korean War, and because of massive human rights abuses, especially in the 1966-1976 Cultural Revolution. Despite such concerns, Nixon saw value in ending China's isolation. He wrote in an October 1967 Foreign Affairs article: "We simply cannot afford to leave China forever outside the family of nations, there to nurture its fantasies, cherish its hates and threaten its neighbors."

In the years that followed, U.S. administrations held a number of adversarial states at arm's length, diplomatically. These states included Fidel Castro's Cuba, Vietnam, North Korea, Libya, Nicaragua, Syria, and Sudan. In some cases, like Vietnam, diplomatic ties have been fully restored. In others, such as North Korea, dialogue has resumed over the issue of the country's denuclearization. Relations with Iran were severed after the 1979 seizure of the U.S. embassy, and diplomatic contacts have occurred only sporadically since then. High-level contacts with Cuba remained a remote prospect in 2008 as an economic embargo continued over U.S. concern at political repression.

President Ronald Reagan took office signaling a tough posture toward the Soviet Union and an intention to stanch communist support for rebellions in Central America. But Reagan also stepped up negotiations on nuclear arms control and participated in summits with Soviet leader Mikhail Gorbachev, a practice continued by George H.W. Bush until the Soviet Union's collapse. In the 1990s, the Clinton administration pursued dialogue with Pyongyang and normalized relations with Vietnam, while seeking to contain and isolate Saddam Hussein's regime in Iraq, and Afghanistan's Taliban leadership.

One of the reasons I began this series was to explore the type of professional behavior that tends to trigger professional malpractice litigation -- and how that litigation might be avoided.   

As you may recall, my first post cited a study finding that the top three reasons for filing litigation against a medical provider were:  

so that it would not happen to anyone else . . . 91%

I wanted an explanation . . . 91%

I wanted the doctors to realize what they’d done . . . 90%

In that same study, only 66% of respondents said they'd brought suit because they wanted money.   

Other studies have found that the failure to health care professionals to effectively communicate with patients and their families give rise to more litigation than negligence or bad results in treatment.  As reported in the March/April issue of Patient Safety and Quality Healthcare

ineffective communication with patients and families, rather than quality of care, was the underlying cause of patients' and families' decisions to file suit against their caregivers (Vincent et al., 1994; Hickson et al., 1992). Other researchers found that most patients would be less angry and less likely to sue if physicians honestly and compassionately disclosed medical errors that occurred, admitted responsibility, took steps to reduce the chances of repeat errors in the future, and offered sincere apologies for the suffering that may have resulted because of the bad outcomes (Gallagher et al., 2003). Similarly, research on apologies suggests that individuals receiving a full apology that both expresses sympathy and takes responsibility by the person who wronged them are more likely to accept settlement offers and negotiate towards a resolution rather than going to trial (Robbennolt, 2003). 

See Conflict Management From the Heart:  A Day in the Life of a Medical Ombuds/Mediator by Carole S. Houk, JD, LLM, and Leigh Ana Amerson, BA here.


In Why People Sue Hospitals and Health Care Professionals in Heatlh Industry Online we learn that 40% of respondents answered "yes" to the question whether anything could have been done to prevent litigation after an adverse medical incident.  Those pre-litigation interventions were reported as follows:  

Conflict Associated with End-of-Life Decisions

Someone once told me that a divorce is a hologram of the marriage -- that all of the marital dynamics that have never been resolved -- or even surfaced -- by the divorcing couple -- take shape and form in one way or another in the course of the divorce.  Not surprisingly, the "weapons" of marital dissolution are its most precious assets -- relationship and children -- and its most symbolic -- money. /*

So it is that historic family dynamics (rife with unresolved conflict) will more or less naturally play themselves out around the bed of a loved one who is -- or may  be -- dying.  

How much conflict is there?

One recent study found that conflict associated with decisions about life-sustaining treatment were rife with conflict between medical staff and the families of dying patients.  An abstract of an Conflict associated with decisions to limit life-sustaining treatment in intensive care units reported: 

MAIN RESULTS:  At least 1 health care provider in 78% of the cases described a situation coded as conflict. Conflict occurred between the staff and family members in 48% of the cases, among staff members in 48%, and among family members in 24%. In 63% of the cases, conflict arose over the decision about life-sustaining treatment itself. In 45% of the cases, conflict occurred over other tasks such as communication and pain control. Social issues caused conflict in 19% of the cases.

CONCLUSIONS: Conflict is more prevalent in the setting of intensive care decision making than has previously been demonstrated. While conflict over the treatment decision itself is most common, conflict over other issues, including social issues, is also significant. By identifying conflict and by recognizing that the treatment decision may not be the only conflict present, or even the main one, clinicians may address conflict more constructively.

It's Not About Money But it Will Become About Money if Conflict is Not Treated at the Source

I have much more to say about this but I need to get out to the Valley to see my dad who is -- amazingly (to me at any rate) -- surviving without food or water into Day Nine.

For now, I will simply remind my readers of the following:

• the law monetizes injustice -- people don't
• it's about respect more than it is about money
• the recognition that the individual with whom you are in conflict is acting from moral rather than venal motivations is often the first patch of common ground
• when people focus on money rather than relationship, they universally respond by becoming less generous
• our brains reward us for cooperative behavior, i.e., we're hard-wired for understanding, compassion, forgiveness and reconciliation
• even monkeys (our fellow primates) protest if they believe they are being treated unfairly

Why the Coming Crisis and Likelihood of Litigation?

The parents' of the baby-boom are dying.  Extraordinarily high levels of conflict in health care settings are associated with dying.  Hospitals and health care professionals are not yet up to par in resolving conflict at its source.  In the absence of programs to assist the families of the dying negotiate their way through this traumatic experience, people will seek out attorneys; attorneys will, as the law does, monetize pain, suffering, and injustice. 

The research is in.  The solutions are available.

It's up to us.  

______________________________________

*/   Money is symbolic?  Yes it is.  As my longer article on the many meanings people give to money notes:

It is money’s nearly infinite plasticity that makes exchange of unlike things not only possible, but nearly effortless. Unlike barter, which famously requires a “double coincidence of wants,”  money creates a bridge to the future; permits trade at a distance; allows the exchange of durable objects for perishable goods; and, is capable of reducing nearly every human activity into a quantitative monetary value. 

Although contemporary money seems to have shed all of its qualities except its quantity,  “its oneness or fiveness or fiftyness,” we do not in fact use money as if it were fungible. We experience the value of a dollar earned differently from the way we experience one that is stolen or given to us as a gift and we spend it differently as well. 

See The Cost of a Thing is Your Life here

Evil is not initially a grand thing, but begins innocuously with a constriction of empathy and compassion, creating . . . . the “smallest piece of evil.” This is simply the inability to find the other within the self. This smallest piece of evil can expand rapidly, replacing empathy with antipathy, love with hate, trust with suspicion, and confidence with fear. . . . A potential for evil is thus created every time we draw a line that separates self from other inside ourselves.  Kenneth Cloke, Conflict Revolution, Mediating Evil, War, Injustice, and Terrorism

We shall not cease from exploration
And the end of all our exploring
Will be to arrive where we started
And know the place for the first time

T.S. Eliot, The Four Quartets, Little Gidding

(photo:  Dad on our first rafting adventure in the Grand Canyon, 1990)

I re-connected with the father I'd idolized since childhood in 1984 when I moved from Northern California to Los Angeles.  By that time, Dad had taken up professional residence in the law and motion department in the downtown Los Angeles Superior Court.  Between my move to Los Angeles and Dad's retirement in the early 1990's, we met for lunch at least once a week, where we slowly replaced our idealized versions of one another with the flesh of blood reality of us in our all fallibility, complexity and texture.  After Dad retired, lunch morphed into early-morning hikes in the low lying Santa Monica mountain range that separates the San Fernando Valley from the Los Angeles Basin. 

Though I was never welcomed into Dad's second family, we formed a largely collegial adult relationship which eventually came to include extended-family "adventures" planned and underwritten by Dad -- rafting; mountaineering; canoeing; boating; kayaking; and, scuba diving.

This was not the father of my fantasies.  He did not show much interest in my life, my loves, my fears, or my difficulties, although he very much enjoyed hearing about my successes.  He liked money and status -- for its own sake -- and was pleased when I could deliver stories with big round numbers associated with the names of well-known law firms.

I can most easily communicate the chasm that yawned between us by telling you the following story.

I'm Not Interested in People's Personal Lives

Dad and I, along with my step-siblings, were flying home from a rafting trip on the Salmon River in the early '90s.  By that time, I'd begun taking fiction-writing classes through UCLA extension and had once again become a voracious reader of novels and short stories. Dad, whose reading material consisted primarily of World War II chronicles and biographies of great generals, had uncharacteristically failed to pull a book out of his luggage before we boarded the plane. I'd just finished reading my then-writing professor Bernard Cooper's haunting memoir Truth Serum (title story here) which was still in my carry-on. 

I handed Bernard's memoir to Dad, saying "try this" before losing myself in whatever book that had captured my attention.  As the plane touched down at LAX, Dad handed the memoir back to me even though he'd only read the first couple of chapters.

"Keep it," I said.  "You can give it back to me after you've finished it."  But dad pressed it on me nevertheless saying, "You know, I'm not really much interested in people's personal lives."

Not only did I finally and instantaneously "get" the two of us, I suddenly realized it was  O.K. with me.  By that time, I'd come to deeply appreciate the gifts Dad had given me -- in early childhood, genetically and by way of example -- his clamorous appetite for adventure; his soaring ambition; and, his appetite for life at its most dizzying edges.  He was not fearless.  But he conducted his life  as if he were.  

I was finally able to find dad within myself.  My heart expanded correspondingly. 

Morphine

My father has had a Filipino caretaker -- Jungao -- for several years now.  I don't think anyone loves dad more deeply or knows him better.  Jungao was a dentist in the Philippines and is now the likely bearer of the greatest number of dad's treasure of tales -- war stories; farm stories; fruit picking stories; childhood tales; chronicles of wine, women, song and other wild confabulations of memory and desire.   

Last Thursday, Dad was released to home hospice care.  He hasn't been fed or "hydrated" since then.  Seven full days. 

Jungao hovers attentively when I am present, reassuring me that my father knows I am there and  hears what I'm saying.  He interprets the meaning of Dad's eye movements and facial expressions.  The furrowed brow, the way Dad soundlessly opens and closes his mouth; his occasional startled physical movements; and, what might even be translated into a smile.  

I tell my friend Jay at my morning meeting that it feels as if Dad is trying to tell me something but I don't know what it is.  He says, "listen with your heart and you'll probably hear it."

Juanita and Jungao have had words about the morphine.  Juanita believes Jungao disapproves because of his religion, but she hasn't actually asked him why or what his religion might be.  She's merely instructed him to follow her orders.  She tells me Junagao insists Dad talks to him when the morphine begins to wear off.  She thinks Junagao is lying.    

I have surrendered control to Juanita even though the manner in which my father is dying continues to disturb me. 

This is what I know.  When Dad married Juanita, he'd already experienced some of Parkinson's most debilitating effects.  Juanita promised Dad she wouldn't put him into a nursing home.  They had years together to talk about when and how he wanted his life to end.  She knows more than I could possibly understand.  More importantly, when Dad was cogent, he had entrusted Juanita -- not me -- with the obligation, the right and the power to make these end-of-life decisions for him. 

This is his choice playing itself out in his life.  It is not my place to interfere.

Memories

I am sitting by Dad's bedside chattering about my fondest father-daughter memories -- sitting on his lap at five steering his Volkswagen down the sidewalk in front of our house.  The day he taught me to ride my first two-wheeler.  The ill-fated adventures from which we'd return home drenched, "play clothes" torn,  limbs scratched, knees bruised and faces dirty.  

Here's the best one:  When Dad lived with us, he was a milkman in a white milkman's suit, carrying a wire basket filled with milk, eggs, cream, and butter for delivery to suburban San Diego families.  For those of you too young to remember, this is what milkmen looked like.

If my sister and I successfully completed our weekly chores, our parents pasted gold or silver paper stars on our "chore chart." If we had enough of these by week's end, Dad would take us on a "surprise ride." On one particular Saturday when I was six, Dad took us to his dairy; introduced us to the ruminating cows, gave us a ride in his truck and -- BEST OF ALL -- slipped us into milk crates sitting motionless on a circular conveyor belt, flicked the "on" switch and let us ride, ride, ride, ride.

Blue Eyes

Dad has been gazing into my eyes for one full hour and I have run out of things to say.  I have no recollection of Dad ever before making eye contact with me.  I sit still, breathing, and we gaze into each others eyes for two more hours.  

Finally, when it is time to go, I admit that to him I have been struggling.  "I think you want to tell me something," I say, "but I don't know what it is."  His mouth opens and closes and his clear blue eyes shine more brightly than before.  "Can you tell me what it is?" I ask, leaning my head down to his open mouth.  But the only sound is that of his breath.  In, out, in, out, in, out.   

I remember what Jay said about listening with my heart.  Still, I can't hear anything.

Finally, I admit that I am completely at a loss.  I don't think.  I just begin to speak.

"I can't imagine what else there could possibly be for us to tell one another," I say, "except this:   

I love you and I know you love me.  I . . . . . love . . . . . YOU . . . . and . . . . I . . . . KNOW . . . YOU . . . . love . . . ME.   I love you.  And I know you love me.

And then I slip out the door, saying I'll return tomorrow.

(Dad with his One True Love -- the Boat -- July 4, 1976) 

We tell ourselves stories in order to live.  . . . . We look for the sermon in the suicide, for the social or moral lesson in the murder of five. We interpret what we see, select the most workable of the multiple choices. We live entirely, especially if we are writers, by the imposition of a narrative line upon disparate images, by the "ideas" with which we have learned to freeze the shifting phantasmagoria which is our actual experience. Joan Didion, The White Album

The poem, then, is not a transcription of an already known world, but a process of discovery, and the act of writing . . . is one that demands personal risks.  [The poet does] not write solely in order to express himself, but to orient himself within his own life and take his stand in the world and it is this feeling of necessity that communicates itself to a reader.  [P]oems are more than literary artifacts.  They are a means of staying alive.  Paul Auster, The Poetry of Exile, from The Art of Hunger.

[T]he process of revising a poem is no arbitrary tinkering, but a continued honing of the self at the deepest level.  Jane Hirshfield, Nine Gates - Entering the Mind of Poetry.

[T]o safeguard what little equilibrium I still possessed, I chose to sit as I have been sitting all my life, in a chair, at a desk, under a lamp, substantiating my peculiar existing in the most consolidating way I know, taming temporarily with a string of words the unruly tyranny of my incoherence.  Philip Roth, Operating Shylock. 

Palliative and Hospice Care

"You can't tell families that their only choices are surgically attached feeding tubes or starvation," my friend Jay the hospice director is saying on the morning after my run-in with Dr. X. 

Jay and I are standing on the steps of the West Hollywood Kiwanis Club, where I attend a regular morning meeting with people whose history and spiritual values are similar to my own.  Although we're on a major urban thoroughfare undergoing reconstruction of the jack-hammer kind, the scent of night-blooming jasmine still lingers in the cool morning air. 

"We express love with food," Jay continues, "and care-taking.  When a child skins his knee, mom doesn't just put a band-aid on it, she offers cookies and milk 'to make it better.'"  

I relax for the first time since Juanita's call.  Jay gets it.  It's not just about the mechanics, the diagnosis, the prognosis, or the treatment plan.  It's about love.

Holding my hand while tears stream down my face, Jay tells me how to feed a man who can't swallow.  "The little honey bear," he's saying, "you tip it into your father's gum where the ball players keep their chewing tobacco.  Rub it into his gums.  Not only will it provide instant nourishment, it crosses the blood-brain barrier.  It will improve his cognitive functions as well." 

Jay pulls a clutch of business cards from his pocket -- cards he has gathered from every hospital in the greater Los Angeles area.  He scribbles the name of the hospital's palliative care nurse on the back of his own card.  

"Tell her I gave you her name," Jay says, knowing how irresistible it is for us to pay more attention to people we believe to be "inside" our circle of friends and colleagues.  "Call her on your way to the hospital," he says, giving me one more squeeze for courage before I go.

"It's Not Your Decision"

The palliative care nurse has already arrived in Dad's room by the time I make my way out into the deep reaches of the San Fernando Valley.  She and my step-mother are going over the details of a plan for home-hospice care.  Dr. X will confirm that dad has less than six months to live.  Once he delivers that verdict and signs the order releasing dad, the hospice people will arrange everything -- delivering a hospital bed; medication and equipment; assessing medical and nursing needs, even providing pastoral care.

"What about the new medication," I ask.  "And the new diagnosis?" 

"That's not the direction we're going in," says Juanita as I listen to my father struggle for breath behind her.  "We talked about this, your dad and I.  I'm sorry I let them put the feeding tube in.  I know what he wants and I'm the one he chose to make this decision for him."

"Will he be fed?  Hydrated?" I ask. 

"No honey," my step-mother responds.  "There's no quality of life here.  There's nothing left for your father to live for.  He's dying.  He's suffering.  It's time to let him go."

There's Nothing for Me to Negotiate Here

I've been trained to wrest control from the uncontrollable since law school.  Define goals.  Frame questions.  Information gather.  Brainstorm.  Plan strategically.  Marshal resources.  Make demands.  Couple them with consequences.  Be supple, flexible, responsive, but firm.  Stay "on message."  Negotiate on my terms and preferably on my turf.  Prepare, prepare, prepare.  Move, move, move.     

I'd been in crisis mode since Juanita's telephone call.  But I'd never stopped to ask myself the first question any advocate or negotiator should ask.  

What was my role here?  And if I had one, what were the scope of my duties?  What did my father -- my "client" want?  And if I didn't know the answer to that question, where could I look to ascertain it?

Dr. X had actually provided me with the answer to these central questions the first afternoon I'd arrived at the hospital.  But I wasn't ready to hear it.  And he wasn't trained to deliver it.

In one of those small waiting rooms where families await the fate the their loved ones, I'd sat with the hospital social worker later that same afternoon.   

"Don't they teach these doctors active listening?" I'd asked after recounting the Dr. X catastrophe to her.   

The social worker put her hand on my knee and said, "you're not the mediator here.  And you're not responsible for the result.  Your step mother has the power of attorney.  She's the one who will make the decision.  The only thing you have to be is be the daughter."

But I wasn't ready to hear it then either, even though the social worker was ever so much better at expressing it.

Next . . .