Negotiation Law Blog

(image from and links to HOA Issues Solved in Five Steps)

I've recently been covering mediation confidentiality from an attorney's point of view.  Because my statistics page reminds me that clients also read this blog, I sometimes direct posts to the people with the problem -- clients.  

This morning I notice that someone landed on my site seeking an answer to this question:

What can you do if your HOA Board member breaks the mediation confidentiality agreement.

The lawyerlike answer to this question is  -- "it depends upon what the agreement says." 

But let's assume the question is covered by California law.  

The Scope and Effect of Mediation Confidentiality in the Hands of Clients

Nearly every mediator begins every mediation session by explaining how and why information exchanged in mediations is confidential.  I know from my community mediation work that the people usually want to know something lawyers rarely ask -- whether they'll be able to discuss what happened in the mediation with friends or family.

In the absence of a more restrictive agreement among the parties, under California law today, the answer is "yes, they can."

What's confidential?  The California Evidence Code (section 1119) says that everythng said or done during a mediation is confidential   

But what does "confidential" mean?  .

Under the California Evidence Code, statements made in a mediation are 

• not admissible in evidence; and,
• cannot be "discovered," i.e., you cannot be compelled to disclose those communications in answers to interrogatories, in deposition testimony and the like. 

Those are the only restrictions on the disclosure of confidences exchanged in a mediation held in California in the absence of a more restrictive agreement. Unless a California court broadens the scope of mediation confidentiality, an HOA Board Member who runs around the complex or neighborhood talking about who said what during a mediation is not "breaking" (breaching) the California's protections for mediation confidences.  

The Parties Can and Do, However, Agree to Limit the Communication of Mediation Confidences to the Participants in the Mediation.

A contract is an agreement that creates private law governing the parties' relationship with one another.  If you enter into a Confidentiality Agreement in mediation, you should understand that you are creating obligations that bind you as well as rights that protect you.  A google search turned up Confidentiality Agreements that provide remedies for their breach.  This one for instance provides two poential consequences for breach: 

1. any party to the agreement is entitled to ask the court to stop (enjoin) any other party from disclosing confidential communications; and,
2. the party who wrongfully discloses mediation confidences will be liable in damages (including the expense hiring attorneys) for any damages caused by his or her breach of the confidentiality agreement.  

The California-based ADR Services has a similar term in its Confidentiality Agreement (here). 

Failure to obey an Injunction can be enforced by contempt, but this remedy is expensive, would require multiple trips to the courthouse, is difficult to obtain and would not likely make up for the harm caused by disclosure.  The second remedy - damages -- would require you to file a lawsuit and your monetary losses are highly unlikely to be worth the expense of litigation.

Here's another Confidentiality Agreement that expressly incorporates the  provisions of the California Evidence Code.  This agreement prevents the parties from:

disclos[ing confidential information] to anyone [who is] not involved in any existing litigation, or any litigation that may arise, concerning the subject matter of this mediation session . . . . 

The term "involved in . . . litigation . . . concerning the subject matter of this mediation" is broad and ill-defined. All homeowners might be said to be "involved in" the litigation subject of the mediation.  If you read the contract language broadly, you might convince your HOA Board member that talking about the medaition around the condominium complex or in the neighborhood violates the Confidentiality Agreement.

There's nothing in this agreement, however, that states what the consequences of breach might be.  Nevertheless, if you suffered monetary harm as the result of the breach, you might well be able to file suit for damages in a breach of contract action.  Off the top of my head, I can't think of any harm that might flow from the Board Member's indiscretions that would cause sufficient economic harm to justify the cost of a lawsuit.

The commercial ADR panel on which I serve, Judicate West, makes a form Confidentiality Agreement available to the parties (here) which merely restates the controlling principles of confidentiality law in the State of California.  In light of the recent Thottam opinion in California, I would hesitate before asking parties to sign any agreement that:

1. expands the scope of confidentiality beyond that provided by the Evidence Code, while at the same time,
2. carves out an exception for the enforcement of the agreement.

For my analysis of that opinion and the problems it creates for mediators drafting confidentiality agreements, click here and here.  

Orange County Bar Association Alternative Dispute Resolution Section Meeting Reminder

Thursday, September 4, 2008
Noon to 1:30 p.m.
Wyndham Hotel
3350 Avenue of the Arts, Costa Mesa

Speaker:

Victoria Pynchon
Attorney at Law, Mediator
Author of the Settle It Now Negotiation Blog
Judicate West
 

Using and Losing Cognitive Biases to Win Your Next Negotiation

• How common biases prevent us from influencing others, interfere with case analysis, and confound attempts to learn true needs of others
• Learn how to identify specific biases to negotiate better deals for clients

For more information or to register:  Call FastFax at (949) 440-6700, x4 and request document 2279.   Register ONLINE using the OCBA’s online calendar at OCBar.org
 

(while we're walking down memory lane anyway, "Have It Your Way" from 1976) 

When I ask litigators why they don't choose arbitration over litigation before unpredictable judges in a crowded court, their answer invariably is "because I can't appeal the ruling."   We cling to appellate review even though we appeal fewer cases than we try -- which is a very small percentage of our case load as it is. 

Not surprising, however, we litigators, as Max Kennerly recently noted, tend to be risk-averse, not risk-embracing (h/t Blawg Review # 174).  To give up that one last chance for our client to be vindicated and for us to be triumphant is generally just too much for us. 

Now we can have our arbitration cake and and follow it up with appellate ice cream.  Yesterday, the California Supreme Court in Cable Connection, Inc. v. DirecTV  held that arbitrating parties' agreement to seek appellate review of legal errors is enforceable in California State Courts despite its uneforceability in federal court.  As the Supreme Court explained:

On the first question, the United States Supreme Court has held that the Federal Arbitration Act (FAA; 9 U.S.C. § 1 et seq.) does not permit the parties to expand the scope of review by agreement. (Hall Street Associates, L.L.C. v. Mattel, Inc. (2008) __ U.S. __ [128 S.Ct. 1396, 1404-1405] (Hall Street).)

However, the high court went on to say that federal law does not preclude “more searching review based on authority outside the [federal] statute,” including “state statutory or common law.” (Id. at p. __ [128 S.Ct. at p. 1406].) In Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1 (Moncharsh), this court reviewed the history of the California Arbitration Act (CAA; Code Civ. Proc., § 1280 et seq.).

We adhere to our holding in Moncharsh, recognizing that contractual limitations may  alter the usual scope of review.

The California rule is that the parties may obtain judicial review of the merits by express agreement. There is a statutory as well as a contractual basis for this rule; one of the grounds for review of an arbitration award is that “[t]he arbitrators  exceeded their powers.”  (§§ 1286.2, subd. (a)(4), 1286.6, subd. (b).)

Here, the parties agreed that “[t]he arbitrators shall not have the power to commit errors of law or legal reasoning, and the award may be vacated or corrected on appeal to a court of competent jurisdiction for any such error.” This contract provision is enforceable under state law, and we reverse the contrary ruling of the Court of Appeal.

In honor of which, I'm excerpting and directing you to mediator Ken Cloke's article Thoughts on Mediation, Barack Obama and Our Political Future.

[T]ere are four fundamental issues underlying this Presidential campaign, though they are somewhat broader in scope than what the candidates and pundits have been discussing:

1. What will the future relationship be between the United States and the rest of the world in addressing global problems, from global warming and environmental devastation to war, hunger, and disease?

2. Will it be possible for us to significantly reduce the worst forms of prejudice, based on race, gender, sexual orientation, and national origin?

3. Will it be possible to shift our economic priorities from maximizing corporate profitability to universal health care, debt relief, and taking care of people?

4. Can we shift the political process away from character assassination, domination of campaign financing by the wealthy, dirty tricks, and the posturing, greed, ambition, and dishonesty that undermine its democratic purposes?

What do these issues have to do with conflict resolution? My view, [elaborated in my new book, Conflict Revolution: Mediating Evil, War, Injustice and Terrorism – How Mediators Can Help Save the Planet (Janis Publications, 2008)], is that these issues reveal an underlying source of chronic conflict that not only impacts each of us as individuals, but is perpetuated by social, economic and political systems that form the invisible backdrop, context, and environment within which all of our conflicts take place.

The Meta-Sources of Chronic Conflict

Over the broad sweep of history, we can identify three over-arching “meta-sources” of chronic conflict. These, in my view, are social inequality, economic inequity, and political autocracy. To these we can add a fourth, which is the environment within which they occur, be it natural selection, organizational systems, or the political institutions that reinforce these chronic meta-sources of conflict and constrict our ability to resolve them.

These meta-sources of chronic conflict, in combination, generate a “culture” of conflict, which consists of the ways we think about, address, and resolve our conflicts. This allows us to combine the four issues outlined above, naturally giving rise to a fifth:

5. Will we be able to transform our culture of conflict from one that is destructive and adversarial to one that is creative and collaborative?

These are obviously questions of enormous importance. Why should we think that mediators could have an impact on how they are decided? As an illustration, consider a key element in the Obama campaign and one of the key questions for many voters – should the US negotiate with its enemies?

To read on, click here.

AUGUST 25, 2008 | FORUM

If You Know the Case Law, Litigation Doesn't Have to be Robotic

By Victoria Pynchon 

Here in California, there's no stronger rule of confidentiality than that applied to a mediation. It cannot be impliedly waived like most privileges, including the near-sacred attorney-client privilege. Simmons v. Ghaderi, 2008 DJDAR 11107. You cannot be estopped from relying on it. Eisendrath v. Superior Court, 109 Cal.App.4th 351 (2003). And if you want your mediated settlement agreement enforced, you must strictly comply with the requirements of Evidence Code Section 1123. Fair v. Bakhtiari, 40 Cal.4th 189 (2006).

Insurance policy-holder counsel Kirk Pasich of Dickstein Shapiro has criticized nearly all recent interpretations of mediation confidentiality by the California Supreme Court on the ground that they permit insurance carriers to use mediation proceedings to engage in acts of bad faith.

"Why should a carrier get a license to act in bad faith in mediation," Pasich asked, adding, "Cases settled, and still settle, in mandatory settlement conferences without that same shield. I don't think a process should exist that encourages, rather than discourages, a party from acting in bad faith."

Why, indeed?

If you do not understand the differences between settlement conferences and mediations, you are not alone. My informal surveys indicate that litigators believe there's no difference whatsoever between the two and few mediators are able to distinguish between them despite their training in the field. Nor have California's courts been of any real assistance.

What's in a name? Here, plenty. The application of California's Rules of Evidence to mediations has such significant potential economic consequences that mediator and litigator malpractice actions are surely looming on the horizon.

What type of misbehavior can occur in a mediation? Here are just a few examples: One party can make a misrepresentation of material fact on which the other relies in entering into a settlement agreement; as Pasich notes, an insurance carrier can act in bad faith; one mediating party could tortiously interfere with a third party's contract or prospective economic advantage; or the mediating parties can enter into a collusive settlement agreement, depriving the settling parties' co-defendants from learning facts necessary to challenge the settlement in a "good faith" hearing.

Even if all parties have expressed complete agreement during the mediation, which they then memorialize in a term sheet, absent strict compliance with the requirements of Evidence Code Section 1123, no evidence probative of that agreement will be admissible in a California court.
If the mediating parties are engaged in a settlement conference, none of this potentially bad behavior would be protected.

Given the potentially significant adverse economic consequences that can flow from a mediation, California's courts have clarified the differences between the two procedures, right?

Not so much.

If you have a DJ subscription, continue reading here.

Enforcement of Mediated Settlement Agreements in California - Get more Legal Forms

Thanks to Kevin's Remarkable Learning Blog (a fellow Forbes Blog Network member) for his  Seven Steps for Mending Broken Business Relationships. 

Each of the seven steps can help litigators de-escalate the conflict inherent in litigation before all-important settlement negotiations, whether they are conducted with the assistance of a third party neutral or not. 

One or more of them might also help ease tension in the law firm -- a very tense place these days given the recession, lay-off's, the de-equitization of partners and the shedding of non-productive practice groups or of those that might conflict with the law firm your firm is about to merge with. 

It's a rough time.  Let's all be a little more careful of our social capital there. 

We're going to need it.

Decide. The first step is you must decide that you want to improve the relationship. The precursor to this step is recognition - recognizing that the relationship needs improving - but the heart of this is the decision that this relationship matters enough for you to make the effort required to improve it. Without this decision, nothing else matters.

Forgive or let it go. If you feel the other person has done something to cause the rift or break-down, you must either forgive them or let go of your issues with it. Without this step, the steps that follow may help some, but will be limited in their success.

Take ownership. Recognize your role in the relationship, and take ownership and responsibility for it. Yes, deciding and forgiving are accountability actions; but being clear that regardless of the situation you have played a role in the change to the relationship is critical to your success in repairing any damage. Otherwise you are only blaming the other person - which cripples your chance for improvement.

Make your intention clear. Once you have decided to take actions to improve the relationship, your behaviors will change. Take the time to explain your decision and your intention to improve the relationship. Let the other person know that both the situation and the person matter to you, and you want a better relationship. This cements your commitment and communicates your intention to the other person.

Assume positive intent. While I have long believed this concept in a variety of situations, a colleague recently expressed it this way and it makes the idea completely clear. Assume the other person was - and is - acting in good faith. Will you be wrong sometimes? Perhaps. But by starting from this assumption you will immediately change your perception and therefore your behaviors toward that person.

Listen more. We all know how important listening is and how good it makes us feel when we are truly being listened to. Grant that gift to the other person. Listen intently, carefully and actively. Not only will you understand them (and their perspective) better, but they will trust you more and the relationship will build from their perspective.

Make an effort. Deciding is one thing. Doing is quite another. If you want better relationships, you must make the effort - it will seldom, if ever, happen automatically.

For the full post (well worth reading) click here.

In some cases -- complex construction litigation comes to mind -- fees for a referee can be one of the most substantial costs of litigation.  Yesterday, the Fifth District California Court of Appeal held that a stipulated judicial reference agreement under CCP 638 precludes recovery of prevailing party's fifty percent share of the referee's fees as an item of costs if the parties have agreed in the reference stipulation to split the referee fees.

Solution?  Include in your agreement a provision indicating that the prevailing party in the litigation will be entitled to recover its half of the referee's fees.

See Carr Business Enterprises, Inc. v. City of Chowchilla with gratitude to the Met News for briefing these cases for us and to LACBA for putting them in our in-box every evening.

Check out today's post at the IP ADR Blog on the Supreme Court's mediation confidentiality decisions and ways to protect your client from the resulting pitfalls -- Malpractice Alert:  Is it a Settlement Conference or a Mediation? 

Why you should care about the answer and what you can do to protect your client and yourself.

The guys at Drug and Device Law Blog in Random Thoughts on Randomness have gone stark raving sane.  Please send medical assistance.  Western medicine.  With their stats, this could turn into a pandemic.

We admit it: We're as crazy as the next guy.

Heck -- given that we spend nights and weekends feeding this blog, there's a pretty strong argument that we're crazier than the next guy.

We fret about whether each and every one of the ten million documents has been reviewed and coded correctly, and we change commas into dashes -- and back again -- in footnote nine on page thirty of the brief.

We believe that our clients are more likely to win if we do our jobs right, and we devote an awful lot of energy to that cause.

And then the system kicks in.

Courts make utterly unpredictable procedural rulings that dramatically change the value of our cases. The MDL Panel, for example, may decide to consolidate a set of cases in a jurisdiction that previously had nothing to do with the litigation -- like sending Breast Implants to Alabama or Albuterol to Wyoming -- and all of a sudden an unanticipated body of local appellate law governs your federal issues, and your cases are either won or lost for reasons beyond your control. (See In re Korean Airlines, 829 F.2d 1171 (D.C. Cir. 1987).)

Or you tee up a legal issue in front of a judge, and you can't predict the result, because the cases are breaking fifty/fifty in that area. The judge might grant summary judgment, or he might deny it. Or, as happened in Tucker v. SmithKline Beecham recently, he might grant the motion in September and reconsider the following July. Your lawyering skills presumably had nothing to do with it.

One judge grants a Daubert motion, holding that the evidence linking Accutane to inflammatory bowel disease is junk science, inadmissible in a court of law. But, a couple of weeks earlier, a New Jersey jury had awarded millions of dollars of damages based on that same evidence.

One judge holds that a claim accrued on the day the plaintiff was diagnosed with a disease, and another holds that the identical claim -- on identical facts -- didn't accrue until the plaintiff "discovered" his claim based on press coverage or an article in the scientific literature. The statute of limitations bars the first claim; the second one goes forward.

You're a hero or a goat, and you had nothing to do with it.

One judge holds that the warnings on your client's product are adequate as a matter of law. Another holds that the question of adequacy is one of fact, to be decided by a jury.

One jury then finds in your client's favor, but a second jury -- looking at precisely the same warnings -- finds the opposite.

We're not complaining about this, really.

They're our lives, after all, and we picked this profession, and it can be awfully exciting and challenging and, yes, fun.

But doesn't it sometimes feel a tad random?

More to the point, our system sinks tens of millions of dollars into massive discovery to ensure that every last fact is known -- presumably in pursuit of an accurate result. But those carefully honed inputs then yield results that are both unpredictable and flatly inconsistent with each other (which means that at least one was wrong).

If the system ultimately values cases wildly inconsistently, just why does society invest massive resources into trying to ensure accuracy? Aren't there better things to do with our collective wealth?

But we digress.

We have to go back to scrutinizing the footnotes in all of the drug and device precedents, to pry out of them every last ounce of utility for our clients.

If we didn't, then a brief might not be perfect, and we might be more likely to lose.

This just in from Sydney,  Australia. 

I imagine the results are as good or better here in the States, particularly in Los Angeles where mediation practice is both broad and deep.

Couples, families choosing mediation in battle of wills

DE FACTO couples disputing about property after splitting up, and siblings fighting over their parents' wills, are increasingly using mediation rather than dragging their battles through the court system.

The latest figures show that NSW Supreme Court registrars had done as many mediations in the first half of this year as they had done in total last year as people realised they could sort out their disputes on their own terms, in privacy, rather than in front of a judge, the Attorney-General, John Hatzistergos, said.

Most disputes were resolved without going any further, freeing up courts and judges for other matters, he said. "It is very encouraging that so far this year 59 per cent of the mediation sessions have concluded with the litigants resolving their dispute," Mr Hatzistergos said.

"Mediation ensures cases . . . . continue reading here.

The new Estate of Thottham case on the enforcement of mediated settlement agreements is troublesome because

• it appears to contravene the holding of the Supreme Court in Fair v. Bahktiari (full opinion here)
• it turns upon the interpretation of one ambiguous sentence in the parties' confidentiality agreement which I'm almost certain was not meant to create an exception to (or satisfy the requirements of) Evidence Code section 1123(c)
• it shows a remarkable persistence in the trial and appellate courts of the desire to enforce term sheets in non-compliance with the Evidence Code, privileging finality over the the parties' reasonable expectations that all the proclamations about confidentiality will be honored.  
• it creates uncertainty in the law, making it difficult for attorneys to guide their clients before, during and after mediation proceedings.

This is a ripe area for malpractice actions -- binding parties to agreements they later claim were not reached.  The Supreme Court keeps saying -- we mean what we say (Simmons v. Ghaderi) -- no exceptions to the requirements of 1123(c).  Nevertheless, the trial and appellate courts find enforcing skeletal mediation term sheets (this one was a chart) nearly irrisistable.  They just can't seem to get their minds around the idea that the point of mediation -- a non-legal process -- is to create a durable agreement that the parties all want to enforce.

If a mediated agreement were a consumer contract, there'd be a cooling down period during which the "buyers" could re-think a decision made in the heat of the moment with mediators and attorneys leaning on them to settle or else . . . . you know . . . whatever the parade of horribles is.   

Are parties bullied into settlement by mediators and even by their counsel?  Let's look again at the definition of bullying:  the repeated and deliberate abuse of power by one person or group of people over another person or group.

I'm not suggesting that mediators and attorneys know they are abusing the power of their position and authority to "persuade" the parties to accept a settlement that leaves the taste of injustice in their mouths.  We just sometimes forget how much power we possess and how overwhelming our importuning can feel to someone unfamiliar with the legal system.  Think about how helpless you feel trying to communicate with someone who speaks another language.

I've observed mediations in which the mediator -- repeatedly and, it can only be said, deliberately -- abuses his or her authority to gain the consent of parties who are clearly not comfortable with settling their case on the terms proposed and are certainly not satisified with the "deal."

Keep 'em in the room; wear them out; highlight their fears; diminish their hopes and then, when they're at their weakest, put a pen in their hand, ask them to sign and then elevate that signed agreement above all else because what we're after here is efficiency, brother, not justice -- a term too many mediators feel forced to put in quotes.  "Justice."  As if it could possibly be anything other than a cynical joke.

OK.  I misused this post to rant.

I'm going to come back and "brief" this case for you next, highlighting the traps for the unwary and commenting on the form agreement used by the Los Angeles Superior Court ADR panel -- a form that is now mandatory.

HEAD'S UP FOR THE NEXT POST NEW LAW STUDENTS -- THIS IS WHY IT'S IMPORTANT TO LEARN HOW TO DE-CONSTRUCT A LEGAL DECISION AND TEASE OUT THE HOLDING FROM THE RATIONALE, THE RULES AND THE DICTA. 

This Met News report, accurate as it is, doesn't do justice to the traps and troubles lurking here.

Evidence Code Sec. 1123(c)'s exception to mediation confidentiality--providing that a written settlement agreement prepared in mediation is not made inadmissible or protected from disclosure if signed by parties, and all parties expressly agree in writing to disclosure--applied in appellant's civil action to enforce chart prepared during mediation and signed by all parties which appellant claimed was a settlement agreement because estate beneficiaries, in agreement to mediate dispute over distribution of assets, agreed all matters discussed or agreed to in mediation would be kept confidential and not used in any litigation among them "except as may be necessary to enforce any agreements resulting from" mediation, and because chart--setting forth material terms which were sufficiently certain to provide a basis for determining what obligations to which parties had agreed--was a "settlement agreement."

Estate of Thottam - filed August 13, 2008, Second District, Div. Four Cite as 2008 SOS 4917
 

(right, more fabulous Fincher)

Thanks to mediator Tom Matychowiak for alerting me to "Managing Expectations in Mediation," by Dan L. Stanford (under "Expert Advice" in this month's California Lawyer).  

Tom noted that while most of the article addresses the management of client and adversary expectations, it concludes with these paragraphs:

Once you know who the mediator will be, always contact him or her and try to meet in advance of the mediation. If that is not possible, have a pre-mediation telephone conference. Focus only on the strengths of your case: If you represent a plaintiff, talk about the clear liability evidence, significant damages, your client's expectations of a big award, problems with the credibility of the defendant, and your willingness to try the case. Set the bar high. If you represent a defendant, focus on the strengths of your defense, including technical defenses, any persuasive evidence, and any credibility issues the plaintiff might have. Set the bar low. From both perspectives, provide the mediator with everything that serves your interests. [emphasis in the original]

At the mediation, continue this effort and work even harder at it. If the other side convinces the mediator that you will accept a lesser result than advertised, your chance of success will plummet (and you may end up facing a very unhappy client). On the other hand, if you convince the mediator that your adversary is willing to give more to settle than is on the table, you may well be on the way to having a successful outcome and a satisfied client.

Comments?

There's now a genuine reason for summertime dancing in the streets.  Charles Fincher of Law Comix has started a new blog here!!

Today's ADR offering below:

Why hasn’t the American Lawyer syndicated Fincher’s work for a nice little bundle of cash?

Hey!! AmLaw Editor!! Are you seeing these cartoons? Are you hearing the laughter in the hallways breaking the stress of daily practice? Are you understanding how many more pairs of eyes Fincher's work will deliver to you and your advertisers?  

Maybe you need to see this one:

Maybe Fincher just won't let his work appear there?  Or is he holding out for syndication in the New York Times?  The Wall Street Journal?  My small reader pool LOVES these and now they can subscribe via RSS feed over at the LawComix Blog. 

Thanks Charles!

Thanks to the Daily Kos for citing us to A Possible Mediation/Peace Proposal for Georgian Conflict from Mirror on America.

Here are the first four suggestions, click on the highlighted article for the full discussion.

Efforts Should Focus on the Following:

1. Establishing a ceasefire to allow for the treatment & evacuation of the wounded and to establish a safe humanitarian corridor for civilians to evacuate. Establish access for Red Cross & other NGO’s.

2. Get all military forces to pull back either completely or partially to establish a demilitarized buffer zone. Deweaponize the area. This will reduce the number of clashes.

3. Establish a more permanent ceasefire and begin negotiations on the long-term status of South Ossetia.

4. Make sure rebel groups stand down and are part of negotiations.

If you don't think armed conflict can be negotiated, check out Arbitrating Armed Conflict by Adir Waldman

Employment attorneys are among the biggest users of ADR, particularly mediation.  So it's with great pleasure that we connect our readers to Blawg Review #172 over at the Ohio Employers Law Blog which has fittingly given its summary of the week's best law blog posts an Olympic theme.

To host a future Blawg Review, read the guidelines here!

We've been having a blog-versation about joint sessions this past week thanks to attorney Gavin Craig, workplace conflict mediation trainer Guy Harris (see also An Attitude of Curiosity - continued) and Pennsylvania litigator and blogger Max Kennerly.

Kennerly says:

sometimes I don't want to discuss the case. Sometimes either we're at the end of the road or you're not even on our road, and I'm not going to humor you and your insufficient offers and your attempt to use social influence on me. Indeed, many of my best offers come after cancelling settlement conferences before they happen.

Just something to keep in mind. Every trick you know is a trick that can be played on you and/or your client.

While Craig recalls a mediation in which a joint session hardened the parties' positions as follows:

The mediator decided at the last minute that it would be nice to see if we could all meet and agree in a joint session.

In his defense, he had the advantage of reviewing the positions of both parties in their submittals. There was no warning that the mediator was going to try to help the parties come to an agreement in a joint session.

What I remember most was my client getting so incensed by the positions of the other party in the joint session. Unfortunately my client hardened his position – not helpful in mediation – and apparently the other party did the same. I think the theory about eye-to-eye meeting and negotiations is absolutely correct.

The problem is that parties bring so much emotion into a settlement discussion that I think they need to stay separate from the people creating the emotion before they can calmly assess the best course of action.

What interests me most about Craig's comment is this:

I think the theory about eye-to-eye meeting and negotiations is absolutely correct. The problem is that parties bring so much emotion into a settlement discussion that I think they need to stay separate from the people creating the emotion before they can calmly assess the best course of action.

I'm going to be writing about this conversation all week and invite others to please comment.

Right now, I'd like anyone interested in the resolution of conflict close to home (the neighbors; the  PTA President; the woman sitting in the cubicle next to you stripping laquer from her nails with industrial strength polish remover; the entire HR department; your boss, etc.) to read It Took a Villain to Save Our Marriage in the Style section of this Sunday's New York Times.

Here's the "money shot" for anyone who has ever mediated neighborhood disputes in a community mediation center as I do pro bono.

Then while the rest of the block kissed goodnight, I stomped down the street in the dark to Blocker’s house and pounded on his door.

He opened it, shirtless and calm; it unnerved me. I’m sure I looked crazed. I felt my face puff up. “Stop taking our signs!” I said.

There was a shift. It was he who had the advantage now — I was on his porch, and drunk.

But Blocker didn’t say anything mean. He didn’t seem angry, as he should have been, that I had bothered him late at night; he didn’t threaten to call the police. We stood close, inches away. There was an intimacy in our strange hate.

“I didn’t take them,” he said. “Seriously. The city picks them up sometimes. I know where they put them. I could check if you want.”

No, I didn’t want. But I thanked him, and walked home both shaken and comforted, and thinking Anthony would kill me if he knew I had crossed enemy lines like that, alone. I didn’t tell him.

There was one more encounter. Blocker drove by me in his car. He slowed and rolled down his window, and instead of grunting or sneering, he said, “Did you find your signs?”

“No. I didn’t look.”

We exchanged a few more words — about the weather, his dogs — but it was quick. He drove off, and a few weeks later we moved.

A trained and skilled mediator would take advantage of these two fleeting moments of concern on the part of "Blocker" who is the bully in this story with a heart-rending conclusion. 

Read it?

Now assume that these people -- all three of them and maybe a few additional neighbors as well -- belong to a homeowners' association with the power to fine the HOA "outlaw," making the fines a lien against his property.  Now its a legal dispute.

Ask yourself, what do the parties' legal positions have to do with the resolution of the conflict?

Leave your thoughts here -- down in the comments section -- and I'll be back soon to discuss the New York Times conflict resolution hypothetical based not only on my experience mediating the resolution of litigated commercial disputes, but also based on my pro bono community mediation experience and on the studies that earned me an LL.M that's purportedly not worth the paper its printed on (a judgment that could be just as easily applied to my Bachelors Degree in English Literature were it not for its transmogrification into a ticket to practice law).

Bonus Question:  do we really want to dedicate our lives to the satisfactory resolution of conflict -- which is what the law, after all, is all about -- or would we rather, like the author of It Took A Villain, take the pleasure to be had in the state of high dudgeon, self-righteousness, and passionate engagement with someone who is an easy target to blame for our own unhappy life circumstances?

Double Bonus Question for Lawyers Practicing in Los Angeles:  Would you let the Los Angeles Superior Court choose your trial attorney or your marriage and family counselor from a panel of people who have had 28 hours of training in their "professional" field of practice just because the first three hours are free?  

In the actual news (the New York Times) are the results of a new study finding that

most . . . plaintiffs who decided to pass up a settlement offer and went to trial ended up getting less money than if they had taken that offer . . . 

Plaintiffs, however, are not the only ones who made the "wrong" decision -- defendants were mistaken in 24% of the cases.  Defense errors, however, were far more costly. 

getting it wrong cost plaintiffs . . . about $43,000 . . . For defendants, who were less often wrong about going to trial, the cost was . . . . $1.1 million.  

What to do?

It's no answer to say " take the last best settlement offer,"  though one party or the other will 80 to 90 percent of the time and often on the courthouse steps, i.e., at the point of a gun when decision-making is at its most flawed. 

Nor, I must concede, is the answer simply mediation, which is, after all, pretty much a pig in a poke.  Why?  Because mediation practice ranges all the way from

• a retired judge bullying an "injured, situationally-weakened client with no negotiation skills" (cf. Max Kennerly's recent post at  the Litigation and Trial Blog) or disrespecting a marginalized defendant (cf. Dr. Ghaderi)  
• to a mediator who knows only how to repeat "trial is expensive and the result uncertain"
• to a settlement officer who does nothing more than shuttle numbers back and forth between two rooms
• to a "transformative" mediator who allows the parties free reign to "vent" their "feelings" without helping them get a grip on the very real and serious consequences of the negotiated resolution that has been proposed to them.  

A friend of mine who is a psychoanalyst once told me that patients get better in therapy despite their analysts' "technique."  It's the relationship that's curative, she told me.  A patient in need will find the water of healing in the desert of a therapist's theory.  If the same can be said of mediation -- that it's the relationship that's curative -- the question that naturally arises is whose relationship?  

Why the disputants of course, which is why I recommend joint sessions.  Not stylized adversarial position-based, chest-thumping, shoe-banging joint sessions ("we will bury you") but interest-based, inquisitive, collaborative, reality-testing mediator-and-attorney directed negotiation sessions. 

Before talking about joint sessions, however, let's look at the problem every litigator faces when advising his/her client whether to accept, make, or reject a settlement offer.  

The Problem in Bullet-Points

• we can't predict the future (darn)
• we think so much like lawyers that we've fogotten how to talk to juries like normal people (cf. Gerry Spence)
• too few of us get to try enough cases to be any good at predicting results based on experience
• we're subject to all the cognitive biases every other human being is, including,
  • self-serving bias -- the tendency to evaluate ambiguous information in a way that "fits" our existing view of the world
  • egocentric bias --  recalling the past in a self-serving manner
  • hind-sight bias -- filtering memory of past events through present knowledge
  • bias blind spot -- the tendency not to compensate for our biases 
  • optimism bias — the systematic tendency to be over-optimistic about the outcome of planned actions
  • overconfidence effect -- when we say we're 99% certain, we're wrong 40% of the time
  •  fundamental attribution error -- the tendency to over-emphasize personality-based explanations for behaviors observed in others while under-emphasizing the role and power of situational influences and reversing this error when the behavior at issue is our own.
  • Just-world phenomenon — the tendency for people to believe that the world is "just" and therefore people "get what they deserve"
• We get so stuck in our positions that we fail to ask diagnostic questions that have been proven to result in significantly better negotiated outcomes for both parties.
• We're so averse to leaving money on the table that we walk away from negotiations without having learned that our respective "bottom lines" actually overlap

Joint Sessions

My friend Judge Alexander Williams -- the soon to retire full-time settlement Judge in the downtown Los Angeles Superior Court -- has the following poster hanging in his jury room.

The surface is what the lawyers know.

The depth and breath; the texture and particularity; the details of the dispute and the desire for justice that exists on both sides, is known only to the litigants.  And they haven't (and won't) tell you what they know or want.

Why you should never leave a mediation or settlement conference without letting a skilled mediator facilitate a joint session in which the litigants can explore their joint interests and conflicting goals will be the subject of my next post.

See also Nuts and Boalts (You Had Me at Your Initial Offer) which directs us to Prospect Theory as a good explanation for our settlement errors.

(image:  Le Silence O Redon)

In today's Daily Journal, reporter Greg Katz writes  that DESPITE RULES, NEUTRALS ARE RARELY BLAMED WHEN THEY MEDIATE AND TELL.

"What happens," asks Katz, "when a mediator is accused of breaking mediation confidentiality, the thing many mediators say is essential to their craft?"

The answer: probably nothing.

As Katz reports, the Simmons v. Ghaderi opinion that made mediation confidentiality iron-clad, arose from a mediation in which the neutral provided a sworn declaration to the Court reciting "details about [his attempt] to persuade Ghaderi to sign her consent," among other things.  

Ron Kelly, an architect of the state's confidentiality statutes, opined that the Declaration filed by the mediator in the Simmons case breached "Evidence Code Section 1121, which forbids mediators, in most instances, from reporting to the courts anything that takes place in their mediations."  Kelly concluded by saying,

If you were going to go after a mediator for malpractice, it seems like an open-and-shut case of violating the law would be a good start, don't you think?

Yes I do.  Yet local attorneys and mediators seem unconcerned.  Lucie Baron of ADR Services told Katz that her panel of neutrals had no policy on the matter because the mediators -- after all -- are attorneys and independent contractors to boot.  They don't, she noted, ask her for legal advice. 

Not a bad call on Baron's part.  But what about the neutrals? 

Their lack of attention to the spectre of "open-and-shut" malpractice litigation is perplexing.  Though the Simmons mediator could colorably claim that the law of confidentiality was unsettled at the time he submitted his declaration -- or that the factual scenario before him permitted the disclosures made -- in a post-Simmons environment, neutrals cannot be so sanguine.  Any disclosure of any communications during a mediation by the neutral would likely be actionable so long as it caused one of the litigants appreciable harm.     

When someone is unhappy with a result -- as too many litigants of mediated settlements are /* -- they search the field for people to blame. 

So far, mediators haven't been among the potential culprits.   

I wouldn't count on that situation lasting much longer.

_____________________

*/  More on this topic soon.

I'm just back from a Judicate West retreat where we discussed the legal, practical and ethical issues of "neutrality."  So it is with no small amount of interest that I read Concurring Opinions provocative post I Trust NFL Officials More than I Do Federal Judges (h/t Quizlaw).  

Here's what Erik Lillquist has to say about the NFL official/federal judge comparative neutrality quotient:

My motivation for the title of the post is that I think NFL officials are actually better than judges on a number of these scores. For instance, NFL officials do not have the repeat-player problem. Furthermore, NFL officials are graded on all their calls, from every game, ensuring that the same calls are being made in all situations (and these days, they have to contend with the possibility of instant replay review on every call). And unlike federal judges and (to a certain extent) major league umpires, NFL officials are subject to the real possibility of termination for poor performance, something that cannot happen to Article III judges and rarely happens with major league umpires. As this LA Times article notes, between 2004 and 2007, there was actually more new Supreme Court justices than new (full-time, I assume) major league baseball umpires. In the NFL, on the other hand, turnover is more common. Because being a NFL official is so relentlessly competitive, the result is that (I think) NFL officials are more likely to get the call right than your typical judge (or umpire). 

To say neutrality is not precisely defined in mediation theory and practice is a vast understatement.    Consider these definitions of neutrality as reported in a "Knowledge Base Essay" on Neutrality at Beyond Intractability.

According to experienced mediator Robert Benjamin, neutral mediators:

• will not intervene in the substance of the dispute;
• are indifferent to clients' welfare;
• have no relationship with the parties outside of the mediation;
• will not attempt to alter perceived power balance differences;
• are disinterested in the outcome; and
• are unconcerned with the impact of the settlement on unrepresented parties. 

In contrast, Kevin Gibson, Leigh Thompson, and Max Bazerman (1996) identify three distinct conceptions of neutrality.

• Neutrality as impartiality, which holds that the mediator should be free of bias and should set aside his or her opinions, feelings, and agendas.
• Neutrality as equidistance, which focuses on the idea that mediators should try to give equal consideration to each side.
• Neutrality as a practice in discourse. Mediators are supposed to shape problems in ways that give all speakers a chance to tell their story in a way that does not contribute to their own de-legitimization or marginalization.
• The mediator gives each side a chance to talk about their positions and concerns, and then reframes these issues in a more neutral way so that parties are more likely to listen to and understand the other side's viewpoint. 
• Then the mediator helps the parties to explore settlement options and to move toward a solution that all can agree on. Neutrality means that the mediator who facilitates this discussion should not have an interest in advancing the goals and positions of any party involved.

Similarly, Rachel Field (2000) points out that the term 'neutrality' encompasses "issues such as

• a lack of interest in the outcome of the dispute,
• a lack of bias towards one of the parties,
• a lack of prior knowledge of the dispute and/or the parties,
• the absence of the mediator making a judgment about the parties and their dispute, and
• the idea that the mediator will be fair and even-handed." 

Thoughts from our readers?

There's been some salacious commentary (such as WAC's Like a Vixen) about Blawg Review # 171.  I just want to say to anyone who missed the sexual revolution -- on either side of the generation gap -- we're sorry to have started it all.  We just never really left high school.

We've also heard some complaints that the most recent Blawg Review is just too darn long.  In honor of our sister blog and those attorneys who are still billing 2400 hours/year, we give you the IP Executive Summary of the Virgin Blawg Review #171 below. 

Isaac Newton.  The Straight Dope thinks the virginity of this octogenerian scientist and mathematician is less surprising that the fact that the math gene somehow keeps perpetuating itself.   We consecrate Newton's virginity to this week's best IP and IT posts.  William ("I am virginal") Patry is asking questions about the government's engagement in copyright infringement  but it is  Patry's final blog post that we celebrate as a true virginal moment.  Pause here.  

My late mother, aleha ha-shalom, told me repeatedly that I had a religious obligation to learn every day, and I have honored her memory by doing exactly that. Learning also involves changing how you think about things; it doesn't only mean reinforcing the existing views you already have. In this respect, Second Circuit Judge Pierre Leval once said that the best way to know you have a mind is to change it, and I have tried to live by that wisdom too. There are positions I have taken in the past I no longer hold, and some that I continue to hold. I have tried to be honest with myself: if you are not genuinely honest with yourself, you can't learn, and if you worry about what others think of you, you will be living their version of your life and not yours.

Other IP bloggers have, of course, reflected on Patry's Final Blog Words here and here. 

Back in the worldly word, Patently O -- which promiscuously shares itself with millions of readers every year -- turns its pen over to David McGowan who discusses why we should not interpret the recent Quanta decision too broadly.  Lou Michels suggests we be the masters of our own domains, using the the recent San Francisco IT fiasco as a cautionary tale -- don't let a single person have control of all the keys to your kingdom.

We've heard tell that reading your iPhone has replaced the cigarette for post-coital bliss, in which case you'll be glad to hear Brett Trout at BlawgIT suggest that you might soon be watching television from that device.  Protection, protection, protection.  In a software license, boilerplate integration and non-reliance terms might not insulate a firm from claims based upon its salesfolks "over"promises.  Elsewhere, at least one IP Blogger wonders whether blog content licensing might be dying for lack of buyers? (people pay for Blog content while I give it away for free?????)

The IP Dispute of the Week, of course, is Hasbro's suit against Rajat and Jayant Agarwalla for their Facebook hit Scrabulous.  Scrabble itself was invented during the Depression by Alfred Mosher Butts, an out-of-work architect.  How did he do it?  As the New York Times explained in its review of Steve Fastis book, Word Freak (Zo. Qi. Doh. Hoo. Qursh) Scrabble's inventor assumed that the game would work best if the game letters  "appear[ed] in the same frequency as in the language itself."  So he

counted letters in The New York Times, The New York Herald Tribune and The Saturday Evening Post to calculate letter frequencies for various word lengths. Playing the game with his wife, Nina, and experimenting as he went along, Butts carefully worked out the size of the playing grid (225 squares, or 15 by 15), the number of tiles (100), point values for the letters, the placement of double- and triple-score squares, the distribution of vowels and consonants, and so on.

In response to the Hasbro lawsuit Ron Coleman at Likelihood of Confusion asks "How Many Points is Infringement?" -- one of those rare legal questions that actually has an answer rather than 20 more questions.     

If Player 1 opens with "fringe" (double word) for 24 points; Player 2 follows by slapping an "i" on the triple word score followed by an "n" for "infringe" and 33 points; and, Player 1 responds with "ment" for 19 points, the combined score for "infringement" is 75 points. Our readers can do the math and moves on "trademark" and copyright." 

On the matter of greater moment --  Will the ax fall on Scrabulous -- Jonathan Zittrain at The Future of the Internet answers his own question in the affirmative based on the name alone, opining that by calling it "rainbows and buttercups” instead of “Scrabulous” there’d be little claim of brand confusion but noting the "residual claim that the Scrabulous game board infringes the copyright held in the Scrabble game board."  More on Scrabulous and its replacement with Word Scraper at the Video Game Law Blog here. (Mr. Thrifty's and my first game of Word Scraper here!) 

Has anyone recently said God bless the best IP aggregator in the universe -- the IP Think Tank's Global Week in Review?  This week IPTT points to the following posts on the Hasbro Scrabble debacle -- (Spicy IP), (Techdirt), (The Trademark Blog), (Out-Law), (Law360).  While we're talking IP aggregation, check out Patent Baristas' regular Friday IP Round-up.  All around aggregators include Anne Reed's (Deliberations) reading list and Kevin O'Keefe's LexMonitor.

Both Geoff Sharp and I picked up 8 impediments to settling patent cases on appeal (a desire for "justice" is not an impediment but a means to settlement).  While we're taking an ADR angle, Virtually Blind's post Second Life Lawsuit Avoided; Law is Cool's Love, Actionable; and,    Slashdot's recommend reading of the week (The Pragmatic CSO) are all well worth a look.  

Slashdot also reminds us that IP prevention is worth a pound of IP litigation with the post WB Took Pains to "Delay" Pirating of the Dark Knight as follows: 

"a new studio tactic [is] not to prevent piracy, but to delay it . . . Warner Bros. executives said [they] prevent[ed] camcorded copies of the reported $180-million [Dark Knight] film from reaching Internet file-sharing sites for about 38 hours. Although that doesn't sound like much progress, it was enough time to keep bootleg DVDs off the streets as the film racked up a record-breaking $158.4 million on opening weekend. .  . The success of an anti-piracy campaign is measured in the number of hours it buys before the digital dam breaks.'"

If you're sufficiently virginal to believe in magic, check out the Law and Magic Law Blog's announcement of the dismissal of a defamation lawsuit against Magic Mag as protected opinion while Ernie the Attorney has at least one more make to make your iPhone magic here.

Meanwhile, the Legal Talk Network gathers together bloggers and co-hosts, J. Craig Williams and Bob Ambrogi to welcome Attorney Kevin A. Thompson from the firm Davis McGrath LLC, and Lauren Gelman, Executive Director of Stanford Law School's Center for Internet and Society to discuss Viacom's suit against Google's YouTube for the violation of its copyrights in a $1 billion lawsuit.

Because I used to type patent applications for Uniroyal (IBM Selectric - 5 carbon copies) I get a sweet whiff of nostalgia from Wiki Patents -- like this one -- Flexible Row Redundancy System 7404113 -- a row redundancy system is provided for replacing faulty wordlines of a memory array having a plurality of banks. The row redundancy system includes a remote fuse bay storing at least one faulty address corresponding to a faulty wordline of the memory array . . . .  Another available data base for the engineering-attorney crowd is the subject of  Securing Innovations post IBM Technical Disclosures' Prior Art Data Base.  Concurring Opinions covers IP in the News this week, Peter Zura's 271 Patent Blog considers a patent that was a "Colossal Waste of Time" and  IP Kat curls up with Small and Sole.  

Next week, the Blawg Review will be hosted by the Ohio Employer's Law Blog which we expect will be far more respectful of BR's readers' political, religious and sexual sensitivities than this one was.  Thanks for letting us play.  And a very, very, very good night!

but Blawg Review # 171 is designed to wake you up!