Negotiation Law Blog

See Marginal Revolution's post today The problem is that both of you are right citing David Brooks for the proposition that the "failure to pass the bailout represents a massive failure of American governance and leadership, most of all at the Congressional level. That's true even if you think, for other reasons, that the bailout was a bad idea. (Can any hero be cited in this debacle?)"

There are no heroes in this crisis -- only leaders and representatives of the people, many of whom are now being seriously burned, most particularly in their retirement accounts.  

If inaction is the answer (which I doubt -- see the Harvard Working Knowledge round-up of solutions from the smartest people in the room, here) our representatives should say so.  If they're afraid of looking bad, we should get rid of the bums.  If they're angry at Nancy Pelosi, they should get over it.  Though Pelosi's speech is an example of the way that being hard on the people rather than on the problem can cause negotiations to break down, surely our elected representatives realize they can't pout their way through this crisis.

We need in Congress what every negotiation requires:  preparation, communication, collaborative problem solving and, in this particular bargaining session -- courage, which Webster's defines as

"the attitude of facing and dealing with anything recognized as dangerous, difficult or painful instead of withdrawing from it; quality of being fearless or brave; valor. The courage of one's convictions or the courage to do what one thinks is right."

Come to think of it, all negotiations require courage.

So get back up on the donkey, Congress; be prepared; be principled; be brave.  We're counting on you.

And for those who aren't afraid to admit that they don't know the difference between a strategy and a tactic, here's a brief tutorial.

Here's more from Harvard (link here to full article)

If ever there was a time for resonant leadership, it's now. We need to rise above panic. Panic kills. Really, it does. If you're caught in a riptide (which we are) and you freak out, flail, fight it, you will die. If you smell smoke in the house and run wildly around gathering things you will die. If you freeze in your bed and hope the smoke is outside, not inside, you'll die.

This is not a time to give in to panic. Of course we are scared. It would be stupid not to acknowledge that the economic world as we know it -- knew it -- has changed fundamentally and forever. Actually it probably changed a while ago. We just ignored it, covered it up. So we are justifiably terrified. Now what?

Let's do something with our feelings, rather than let our emotions do something to us. Fear has its place -- it gets our attention. But we can't let it paralyze us. This is a time to breathe deeply. To think about what is most important -- family, life, health, love, purpose. And for my countrymen and women -- let's think about who we are as Americans. We can move beyond fear. What's beyond fear? Hope. Creativity. Resilience. Compassion. Courage.

Back to my daughter Sarah for a minute. She's at work today, in good spirits and having fun helping to create an awesome TV special about an inspiring American hero. My brother --also at work, creating. That's what he does--he creates new solutions for new problems. And me? I'm at work too. I spent the day with my team, a group of incredible people who dedicate their lives to others.

No, it won't be easy. But yes, we can make it, and we can make a better world too. That is not a noble goal, it is a necessary goal.

A final word. Common wisdom, backed up by research: hope, optimism, good humor and compassion (among other positive emotions and experiences) can literally free us from the deadly psychological traps of panic and anger. It takes tremendous self-management. But we can do it.

Courage quotes to remind all of us who we are:

Winston Churchill:

Courage is going from failure to failure without losing enthusiasm

Theodore Roosevelt:

It is not the critic who counts, not the man who points out how the strong man stumbled, or where the doer of deeds could have done better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood, who strives valiantly, who errs and comes short again and again, who knows the great enthusiasms, the great devotions, and spends himself in a worthy cause, who at best knows achievement and who at the worst if he fails at least fails while daring greatly so that his place shall never be with those cold and timid souls who know neither victory nor defeat.

Theodore H. White:

To go against the dominant thinking of your friends, of most of the people you see every day, is perhaps the most difficult act of heroism you can perform

Soren Kierkegaard:

To dare is to lose one's footing momentarily. To not dare is to lose oneself.

Maya Angelou:

History, despite its wrenching pain, cannot be unlived, but if faced with courage, need not be lived again.

Margaret Chase Smith:

Moral cowardice that keeps us from speaking our minds is as dangerous to this country as irresponsible talk. The right way is not always the popular and easy way. Standing for right when it is unpopular is a true test of moral character.

Aristotle:

Moral excellence comes about as a result of habit. We become just by doing just acts, temperate by doing temperate acts, brave by doing brave act.

Charles DuBois:

The important thing is this: To be able at any moment to sacrifice what we are for what we could become.

 

Clare Booth Luce:

Courage is the ladder on which all the other virtues mount.

Dorothy Thompson:

Only when we are no longer afraid do we begin to live

Eleanor Roosevelt:

You gain strength, courage, and confidence by every experience in which you really stop to look fear in the face. You must do the thing which you think you cannot do.

How do California's Courts protect mediation confidentiality?  Let me count the ways. You can't impliedly waive the protections of Evidence Code section 1115 et seq. nor be estopped from raising them.  Their walls will not be breached by allegations of fraud or any lesser form of bad faith. 

Still, litigants keep on trying.

The same week during which a Petition for Review of the recent Thottam opinion went up to the California Supreme Court ("the big print giveth, the small print taketh away) yet another appellate opinion came down telling us that you cannot be judicially estopped from asserting mediation confidentiality -- this time in connection with a party's request for an award of attorneys' fees under Civil Code section 1717.  The case is  Rael v. Davis, yet another estate dispute not entirely unlike Thottam.

(here, by the way, is the Thottam Petition for Review)

I continue to find that 90% of the attorneys whose cases I mediate do not know:

1. how to protect their mediated deal by complying with the requirements of Evidence code section 1123; or
2. just how strong the confidentiality protections are in California, both before and after the Supreme Court's Simmons v. Ghaderi opinion.

I will say it again:  litigators settle cases at mediation at their peril if they do not stay current with the torrent of cases coming down from the Supreme Court and Courts of Appeal on the issues of enforcement and confidentiality.  Fail to properly document the settlement agreement, have it blow up in the parties' faces, follow it with litigation over the agreement that was supposed to settle the underlying litigation and you've got an explosive mixture leading straight to your malpractice carrier's front door.

Hey!  Be careful out there!

Because I'm heading for a swing state to campaign after the State Bar Convention and a brief vacation, I am starting a string of posts on talking about politics with your colleagues, friends and families.  There is a way to do this without harming your relationships.  In fact, understanding the stories, needs, desires and interests that drive one anothers' political positions is as fruitful to a personal relationship as an understanding of our negotiation partners' interests is to our business relationships.  

I had one of these conversations over dinner with a good friend recently whose judgment, wisdom, education and skill as a lawyer I respect highly.  And yet she did not seem to have been gathering any information in the past 7+ years about the issues that make my candidate the obvious choice for me -- the occupation of Iraq; our use of waterboarding to gather intelligence; extraordinary rendition; detainee rights at Guantanamo (see Detainees' rights subverted at Guantánamo, their lawyers say; A federal judge asks for statements from two guards accused of threatening a detainee here); education; health care; and, the economics of poverty, gender and race ("there is no racism in America").

We left that lengthy dinner as friends -- maybe even better friends that we commenced it -- even though I violated all of the first rules of productive communication, negotiation and mediation during the course of dinner -- create an atmosphere of hope and safety; be hard on the problem and soft on the people; ask questions about party interests, fears, needs and desires; and, share personal stories that have led to interests that too often mask themselves as hardened positions.

While reading the Guantanamo piece (above) this morning, I was reminded of an experience I don't spend much time thinking about -- my second year, second semester externship with the United States District Court for the Eastern District of California.  

I was the assistant to the District Judge's "Writ Clerk" who handled all petitions for writs of habeas corpus and prisoner's civil rights cases that crossed our Judge's desk.  Most of these petitions were handwritten by prisoners, who had (too much) access to a law library, causing their filings to be adorned with and obfuscated by 19th century legalese.  

"If you see a potential cause of action," the Judge instructed me, "deny the government's motion to dismiss and if you think I should grant a Petition for a Writ, bring it to me right away."

This was Sacramento.  I was suprised that this Republican-appointee was such a "liberal."  He wasn't.  He was simply and fiercely and unequivocably devoted to the rule of law.  

As I read the accusations of the detainees at Guantanamo -- who have only recently been granted the right to file Petitions for Writs of Habeas Corpus -- the pencil-scrawled papers I read day after day spring immediately to mind -- how hard I worked to make sense of them, repeatedly asking myself whether I could suspend my disbelief of the charges made by the prisoners against their guards, and doing what I'd been instructed to do, lean ever so slightly toward the conclusion that those in charge could possibly  be abusing the power that has been conferred upon them. 

Grant the Petition or deny the motion to dismiss, and eventually the truth, or something close to it, will appear.  Deny the Petiition or grant the motion to dismiss from the first and deprive ourselves of that which we have guaranteed to all of us -- the right to be charged with a crime (whether allegedly committed on the "battlefields" of the streets of Bahgdad or in the mountains of Afghanistan or at the liquor store down the street); the right to have the evidence arrayed against us presented to us; the right to legal counsel; the right to be heard; and, the right to have a neutral third-party decide whether we have been justly imprisoned.

The prisoner accusations recited in the Christian Science Monitor article have the ring of truth to me because they are so similar to those I recall being made by the prisoners who had unknowingly delivered their pleas into my young and inexperienced hands back in my Spring Semester of law school in 1979.  These are the experiences that shape us.  

Rules for having political conversations will follow. 

If you believe that law blogging is not only informative and entertaining, but capable of transforming our lives, our society, our culture and our legal system as well, run don't walk over to Peter Black's Freedom to Differ which not only rocks, it twitters, on One Web Day.  Surely this will be the BlawgReview of the year!

. . . .one recurring theme on this blog has always been a recognition of the value in a strong and free internet.  Therefore it is an honour to be able to host Blawg Review on Monday September 22, 2008, which is One Web Day 2008.  One Web Day was founded three years ago by Professor Susan Crawford from the University of Michigan, and she describes it as an "Earth Day for the internet".  The One Web Day website describes the day in the following terms:

The idea behind OneWebDay is to focus attention on a key internet value (this year, online participation in democracy), focus attention on local internet concerns (connectivity, censorship, individual skills), and create a global constituency that cares about protecting and defending the internet.  So, think of OneWebDay as an environmental movement for the Internet ecosystem. It’s a platform for people to educate and activate others about issues that are important for the Internet’s future.

If you'd like to host BlawgReview or submit to it, click here.  All future BlawgReview hosts please note -- THE BAR HAS BEEN RAISED!

Are you spending too much time surfing channels or cruising YouTube for quality documentary film? 

Absent my NetFlix picks, I'd be wailing 600 channels and there's NOTHING to see!

Now there's KobreGuide with its own law channel here.

The Guide takes its name from its publisher and editor  Ken Kobré whose textbook (right) has been  widest-selling text on photojournalism in the world for nearly thirty years.  

I'd be excited about this new way to find quality moving journalism on the 'net whether or not my good friend journalist-mediator Jerry Lazar wasn't serving as Editorial Director -- a guy with some of the best instincts for quality journalism in the country.  Here's how the Kobre Guide describes itself:

This project is an antidote to comprehensive Web video portals, such as YouTube and MetaCafe... We're focusing instead on handpicked, high-quality documentary-style journalism that is being produced primarily by major media outlets -- and frustratingly difficult for consumers to find...

We're a "curated" site (to use the latest buzzword, now that "edited" seems to have lost favor), which means that we're relying on discerning eyes and ears of people like YOU (and not search engines or web bots) to help alert and point us to the creme de la creme ...

We've already located scores of prizeworthy multimedia gems to showcase at launch, and now we're soliciting input from smart folks like you, who are in a position to know about and share the good stuff out there...

Criteria? ... Think "60 Minutes" TV newsmagazine-style journalism (NOT daily news or event coverage) -- but geared for the Web... Mainly video, but also compelling audio-slideshows, or a hybrid thereof...

In short: True (nonfiction) journalism Web multimedia stories of the highest professional quality...

John DeGroote of Settlement Perspectives soon to appear at Mediate.com Featured Blogs.  The missing link between mediators and litigators. 

The client!!

Now we just need a blogging claims adjuster and we can bring peace to the Middle East.

Below are John's impressive credentials.  We meant to meet for a "quick" cup of coffee.  We talked negotiation strategy and tactics for nearly three hours.

As I review websites I often wonder about the experiences of the authors and the biases they bring, so I feel I should disclose mine for those who want to know more. I have been fortunate to work with two “hands on” in-house legal teams, with settlement negotiations handled primarily by employed lawyers rather than their law firms. I am also lucky to have practiced in law firms with true trial lawyers who generated genuine negotiating leverage whether settlement was their objective or not. Through these experiences I have settled cases threatened, pending or mediated in about 20 states - from Montana to Florida and from New Hampshire to California - and have managed the resolution of disputes around the world. Working with and against some very good lawyers and employing some of the truly legendary mediators, I feel fortunate to have seen a real cross-section of styles and approaches. In almost all of these cases I have had the opportunity to work behind closed doors with the people who really decide when cases settle - CEOs, CFOs, General Counsel, COOs, individual plaintiffs, insurers, board members, auditors, and more.

Check out Geoff Sharp's review of Harvard Law School Professor Peter Murray's article The Privatization of Civil Justice recently published in the summer issue of Judicature magazine.  

The bottom line? 

1. because mediators are people we must naturally place our own self-interest above that of the people we serve; and,
2. because insurance companies are ADR "repeat players," we mediators will naturally favor them because . . . you got it . . .we can't help but serve our own selfish economic interests.

(below:  the Harvard Law School diploma that will be earned Professor Murray's students before they go on to serve the justice needs of "the people" against the corporate interests we mediators are presumably serving) 

Granted, I haven't read the entire article because it is apparently in Professor Murray's economic self-interest to publish his condemnation of mediators in a journal we can't read without subscribing to it (yes, thanks, Professor, I'd love a .pdf of the article so I can share it with my readers).  

If I could induce the good Professor into a dialogue with the mediation community, I'd start with these questions:  

1. do you know that the non-repeat plaintiffs who you assume are victims of my bias  are represented by competent attorneys who are as much repeat players in litigation as are insurance carriers;
2. do you know that both repeat-player attorneys in the type of litigation your article concerns (personal injury and employment) choose the mediator who will assist them in negotiating settlement;
3. do you know that JAMS -- who you single out for opproprium -- is not in the personal injury  business, but rather provides mediators to well-heeled, repeat-player corporate disputants who cannot be shoe-horned into any easy victim-victimizer role;  
4. do you have any data suggesting that mediators can and do exercise such a great degree of systematic undue influence on personal injury and employment plaintiffs' attorneys that they voluntarily enter into settlement agreements that favor their opponent;
5. do you have any comparative data suggesting that the more well-heeled repeat player -- the dastardly insurance carriers -- will achieve more just results for their clients before a jury than they would have by negotiating a settlement agreement with the assistance of the (presumably dastardly) mediator; and, finally,
6. have you ever actually represented either half of this particular justice coin in litigation; tried any case to a jury; lost any case to a pre-trial ruling; or settled any case with the assistance of a mediator?

 

Let's be clear about one thing.  Mediators are not human Switzerlands. 

We have opinions, often strong ones, about issues like the rule of law in America, negotiated resolutions to intractable conflicts, the proper role of force against another sovereign nation and whether torture is a tool Americans ought to be using in the name of national security.  

Because we mediators spend so much time listening to litigants' competing stories of right and wrong, I don't think I'm going out on a limb to say that we "get" the great gray expanses that separate fear from understanding, anger from compassion and "the truth" from one's subjective experience of it.

What motivated this post was a recent challenge to a mediator's "right" to express his political beliefs in a mediation forum.  "You're supposed to be neutral," said the challenger.  "It's wrong and unprofessional to express your political beliefs here."

As the Presidential election nears, I want to clarify my own views on mediation neutrality, particularly my belief that we mediators do and should leave our neutrality when we close the mediation room door. Neither I, nor this blog, is "neutral" about the upcoming election.  I am actively campaigning to elect Barack Obama because I believe he is best suited to withdraw our troops from Iraq, reconcile ourselves with the world community, respond to conflict as a negotiator rather than as a conquerer would, and restore the damage done by the Bush administration to the rule of law in America.  If I cannot say this because I am fearful of offending some of my readers or concerned that some potential clients will choose not to use my services, I would count myself unworthy of the freedoms fought for by those who came before us.    

What it Means to Be an ADR "Neutral"   

Though there is disagreement among scholars about the precise nature of "mediation neutrality," a recent article on the subject at BeyondIntractability.com expresses my own view.  That article quotes negotiation gurus Kevin Gibson, Leigh Thompson, and Max Bazerman on the three distinct types of neutrality that mediators can and do practice.    

• 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; and, 

• Neutrality as a practice in discourse.

These theorists believe, as do I, that it is part of a mediator's job to assist the parties in framing the problems and to lend guidance in expressing their tales of injustice to one another.   The mediator, say these scholars,  

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[, t]hne helps the parties . . . explore settlement options and to move toward a solution that all can agree on.

Neutrality from this viewpoint "means that the mediator who facilitates this discussion should not have an interest in advancing the goals and positions of any party involved." 

Leaving One's Neutrality at the Mediation Room Door 

To help people resolve conflict requires a mediator to develop certain ways of listening; particular ways of communicating; and, specific ways of thinking about the malleability of "objective reality" in our subjectively experienced lives.  The practice of mediation is also revelatory of the raw power of people's affiliative desires -- their persistent urge to reconcile differences and settle accounts.  

When I leave the mediation room, I remain a mediator in spirit -- one who has seen the value of negotiated resolutions over the useof brute force and the power of collaboration over deference to an authoritarian decision-maker. 

I cannot express my preference for  Barack Obama any better than my friend and mentor Ken Cloke did in the electronic pages of mediate.com this spring.  As he concluded,

[c]apable international diplomacy requires open and committed listening, informal problem solving, prejudice reduction, collaborative negotiation, public dialogue, mediation, arbitration, ombudsmen’s offices, conflict resolution initiatives, and a panoply of proactive, adequately-funded resources that can be brought to bear on any problem. Positive examples can be found in every successful mediation and collaborative negotiation. Ideally, peace-making should receive the lion’s share of our national budget, allowing us to train every diplomat, and international representative in the most advanced mediation skills, include mediation in every treaty, and form an international corps of conflict resolvers, capable of building conflict resolution capacity globally, including in the US.

As mediators, we need to recognize that we also are global citizens, and responsible by virtue of our knowledge and experience for helping to save the planet. We need to weigh in on the important issues of the day that directly touch on our expertise, including not just who we negotiate with, but how we negotiate and why. Without it, Obama and the perspective he represents may succumb to those who think patriotism requires war and the slaughter of innocents. The time to speak up is now.

In electing a new President to lead us into a productive future, I believe, as do many of my mediator friends and colleagues, that Barack Obama is the clear choice.  If our political future is important to us, we will not hesitate to publicly lend him our support.

 

It's been a long while since any of us have received a “five things” meme! Jordan Furlong of Law 21 tagged Susan Carter Liebel of Build a Solo Practice who tagged me, as did Diane Levin at the Mediation Channel (tagged by anonymous Ed. at Blawg Review).

As Susan explains:

The idea is to post links to five great blogs (other than law blogs) on your blawg and tag five of your favorite blawgers to do the same under the post title ‘5 Blogs & 5 Blawgers.'

I'm tagging the following 20-something law bloggers to pick up the meme before I fulfill my own meme-blagations: 

 Brett McKay at The Frugal Law Student, Erin Morgan at Life of a Law Student, any of several bloggers in their 20's at Fight the Hypo; The Anonymous Deaf Law Student; and Bekki at Nuts and Boalts.

I'm in New York City

where labor unions still celebrate Labor Day (above)

My meme delay is largely to to the fact that my computer crashed (below).  The screen wouldn't even go on.  Sigh. 

(note my new diet)

So I wrote this post on napkins at the Cafe Europa at 6th and 46th, just two blocks from the office building where I typed in a typing pool '75-'76 and then worked as a paralegal (Shepardizing the old way) '76-'77.  

The City is a crystalline container of my youth.

It makes me think of my first husband, the social worker and his friends the community organizers and my days in the "New" Left , which retreated into our universities and was granted tenure during the Reagan Revolution ("drug store truck drivin' man")

where it irrirtated or enraged subsequent generations of "fiscally conservative, socially liberal" University students.  American Universities - the mausoleum of the "New" Left.

(the German voice over stops when Baez begins to sing).

I don't want to send you to blogs.  I want to send you to the very few magazines of general circulation that not only recall phrases like "activism," "community organizing," "grass roots" and the grimly prescient "military industrial complex."  (President, War Hero and General Dwight D. Eisenhower) but still actually use them (don't worry, I'm not sending you to Mother Jones or In These Times). 

I'm going to tag five 20-someting bloggers in an attempt to break through my own habits of mind and ask them to send me to five new places that represent progress or change or simply another way of looking at the same old issues at depth.

(above:  my Central Park flag lapel pin so you won't think I don't love America)

Here are the Five (non)Blogs If You Want to Skip the Overly Long NYC Windup

Harpers, particularly Lewis Lapham's rants against business-as-usual and things-as-they-are.  There's in-depth investigative reporting on the Bush Administration's war on the rule of law or the privatization of the public schools.  It's always a little depressing because it generally reminds you how little you know no matter how you try to stay tuned in and how little power the electorate has.  Readings, from the surreal to the truly terrifying, sometimes both at once (sorry, but these require a subscription, well worth the investment).

The New Yorker.  I know.  Thisis predictable but you have to read the foreign policy articles to know what's really going on.  And this is from the point of view of the "establishment."  Like this one about Abu Ghraib that went beyond the photos and the headlines.  This 2003 article on the occupation of Iraq is one of those pieces of journalism that made me realize just how little I knew and how much more I needed to.  The only way to deal with the relentlessness of a weekly New Yorker subscription.  Throw the magazine out when the next one comes whether you've read it or not.

The LA Weekly.  I'm sure you have a journal like this in your town. The local entertainment scene.  Personal ads.  And admirably decent political reporting performed by what we used to call the "alternative press."  (maybe they still do).

The London Review of Books.  If you're looking for a little anti-Americanism, this journal is for you.  I tired of it after 9/11, but it was and is a tonic to navel gazing Americans who can't imagine what the rest of the world is thinking about us.  The other problem with this journal is that you have to have been smart enough to have actually understood the entire Joyce oeuvre to grasp it, Finnegan's Wake.  I was a LIT-TRA-CHUR major at a fine University and I just never understood most of what was printed here.  Still, it's worth recommending to anyone who might.

Granta.  It's a quarterly literary journal out of Britain but it's not, you know, difficult.  The issue titled What We Think of America (self-described below) made me angry, sad, joyful, perplexed and grateful.  And Granta accomplishes this nearly every issue.  Check out the issue on Factories, particularly the Isabel Hilton's article Made in China and the View from Africa.  Granta makes me think things I haven't thought before.  And when you're 50+ that's more than a plus.  It's a revelation.

 

A lessee of commercial office space complains that the common areas are not being properly maintained. The local high school has just banned Catcher in the Rye. Again.  A prestigious law firm fires a first year associate because he refuses to remove his new “tongue stud.” These seemingly disparate disputes have one quite obvious but ill understood characteristic in common – they are all examples of unresolved conflicts that have ripened into discrete disputes.

Pretend for a moment that you never went to law school.  I know.  It's hard.  But give it a shot.

Lawyers (those other people who went to law school) are are trained to understand, manage and remedy all disputes, no matter however different they might be, in a single, highly controlled manner.  

To help their clients deal with the problems mentioned here, lawyers will read the lease; research the latest Supreme Court rulings ("Fuck the draft"); and, study the statutes. Once they understand the facts that are relevant to the law, they “think like lawyers.”

How do they do that?  "Think" like lawyers?

First, they subject the facts and the law to as much scrutiny as any idea can bear before it disintegrates into the dust of first principles. They create a chronology of events, highlighting and tailoring the "story" of the conflict that "fits" the available "causes of action" giving rise to "rights" in their client, obligations in their "opponent" and remedies for the harm suffered.  

This "legal" dispute was once about a relationship between people.   Now it is an "actionable" claim in an extremely controlled process in which one of the parties will "win." 

That, of course, rarely happens because the legal system has become too expensive and the law too uncertain for most people to risk what used to be it's goal -- a jury trial.  

Lawyers recognize frivolous or baseless or "defendable" claims by observing just how uncomfortably the “facts” sit inside their opponent's “causes of action.” When called upon to justify their entitlement to get their client's claim before a jury (demurrers, motions for judgment on the pleadings, summary judgment motions, non-suits) the Plaintiff's attorneys can and will simply change the way the story is told.  They make the facts fit the law.  There's nothing wrong with that.  That's their job.  If the facts won't "fit" the law, lawyers apply themselves to the law's creative expansion. 

What attorneys do not learn in law school is how and why conflict develops into a dispute and then predictably evolves, usually getting more acrimonious and difficult to resolve.

My friends who are lawyers (I never went to law school, remember? and neither did you) tell me that they know how to escalate conflict but not how to de-escalate it.  They also tell me that they see a lot of injustice.  Sometimes the injustice arises because the laws themselves are unjust.  Sometimes the tragic and unfair consequences of human interactions just don't have any legal remedy.  And sometimes the legal process itself makes disputes worse -- more protracted, frustrating and expensive -- rather than better.  

In common law countries, like ours, where the law is forged in the fire of conflict, shouldn't attorneys be taught not only how to "win the case" but also how to dampen the flame?  Most litigators I know would respond with a resounding "no!"   

Conflict resolution that is not "handled" as litigation or arbitration is for some other professional to deal with.  Therapists come to mind.  Don't they help the parties deal with that most uncontrollable aspect of any dispute -- something not only lawyers but the law itself exclude from the legal action?

 Feelings.  Not just sad or mad feelings.  But the type of feelings that make teenagers shoot other teenagers on the streets of Los Angeles.  Feelings of loss, tragically unfair outcomes, powerlessness, rage and despair.

The purpose of this post and the new thread that it is meant to begin?  To start something radical.

If you're not aware of what I'm about to tell you, you should be.

Once a year, 1000 people are invited to the TED Conference in Monterey, California, to exchange something of incalculable value: their ideas. TED's mission statement is as simple as it gets:  

TED is devoted to giving millions of knowledge-seekers around the globe direct access to the world's greatest thinkers and teachers.

You can cruise the jaw-dropping results here.

(image links to the Photography site of Lars Kirchhoff)

I was just talking to a friend over coffee the other day about how we're using 18th Century technology (the jury trial) to solve 21st Century problems.  

Here's the idea.  A legal TED Conference. 

If you'll look at what TED accomplishes, you'll know what I don't mean.  I don't mean a conference to trot out any new/old "ADR" ideas -- mediate this, arbitrate that, create new rules and forms for the lawyers to use. 

No.

I mean creating the highest level think tank we can to first envision and then implement a dispute resolution technology that incorporates what we've learned since we first enshrined the jury trial in our Constitution more than 200 years ago.

I have one man in mind -- Larry Lessig.  But surely there are others.  The first step would be to suggest names for the coordinating committee.

Why do I think of TED?  Because what it envisions cannot be accomplished.  It cannot even be envisioned.  It's a fool's errand.  One I'd be willing to spend the rest of my own life working on.

Would anyone care to join me?