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Victoria Pynchon

I mediate and arbitrate complex commercial disputes, the former with ADR Services, Inc. in Century City and the latter with...

She Mediates

ADR Services, Inc.

She Negotiates

She Negotiates

The 33 cent wage and income gap is unacceptable and unnecessary. So is the cliché glass ceiling. Bottom line, our...

Make Sure Your Vote Counts with NPR-Twitter Vote Monitor Project

Help NPR Identify Voting Problems:  Entire NPR Post Below

If you have any voting problems, NPR wants to hear about them. As part of Twitter Vote Report – a project born out of a collaboration of volunteer software developers, bloggers and the NPR social media desk – we'll be monitoring voter irregularities, everything from long waits and broken voting machines to polling places with insufficient ballots.

An interactive map will track election problems reported by voters. The map will display eyewitness reports as they come in, so most of them will not be verified by NPR. As reporters look into some of them, you'll find stories in our voting problems page.

So, as you head out to vote, here's how to participate:

Text: Send a text message to 66937. Begin the message with the phrase #votereport, include your zip code and a very brief description of the problem.

Twitter: Send a tweet with the phrase #votereport making sure to include your zip and description.

iPhone and Google Phone: Download the iPhone app from the Education section of the iPhone app store. For the Google Phone go to the Android Market and search for "Vote Report."

YouTube:In conjunction with PBS and YouTube's Video Your Vote project, you can upload a video to report any problems you experience.

Also, if you need more detailed instructions, visit Twitter's help page and the project's homepage, where you will find a short video tutorial and lengthier explanation on how these tools are being used.

The Toughest Negotiation - Time to Build Your Practice

By Guest Blogger Renée Barrett aka AAARenee 

One of my favorite movie quotes is from Angelica Houston’s character in Ever After. As the wicked stepmother, she declares to her favorite daughter

Darling, nothing is final until you're dead, and even then, I'm sure God negotiates.

Although I cannot speak to the question whether God negotiates, I have found the first part of the formulation to hold quite true. I have learned that if I am persistent, passionate, and willing to see my challenges and opportunities from a variety of angles, I am usually able to find a creative solution to a problem and identify common ground with someone with whom I have a dispute.

Whether it’s getting a customer service agent to empathize with my situation, haggling to pay wholesale instead of retail, or building consensus amongst a range of strong personalities, there is always a way to state your case and persuade your audience to see the world through your eyes. 

There is one challenge that I have discovered to be most daunting for professionals to negotiate -- the management of their time. 

Time is our most precious nonrenewable resource and as such, we put a premium on it. We attempt to prioritize and guarantee a return on our investment. Often we are left feeling that an activity was either not worth our time or took so much time that we were unable to sustain the task's momentum.

Between work and life, we struggle to find balance and sanity.

My work with attorneys -- helping them to build their practices; assisting them in overcoming their own internalized judgments about marketing and business development -- requires me to help them re-negotiate the way in which they allocate their time.

I empathize.  It is a daunting task to find a comfortable balance between one's professional and personal lives when you are forced to measure it out in six minute increments.  Despite many attempts to eliminate or modify the present system by which we value legal word -- the billable hour remains the entrenched and painful lens through which a lawyer's daily practice is viewed. Given this historic approach, it’s no wonder than that Web 2.0 activities (blogging, online social networking, & wikis) are met with such resistance.

 

While it is true that there is no one size fits all solution for growing a legal practice,  there is one excellent way to refocus the discussion.

I've never worked with an attorney who didn't agree that the practice of law is a relationship-driven business. Relationships take time to develop and require nurturing, both of which can be streamlined with Web 2.0 tools. If used correctly, there are numerous opportunities online to have a "deep dive" conversation - one in which attorneys can quickly learn a potential client's business, current needs, and future risks.

When someone is in pain, there are opportunities to help them find a solution and be of value. Relationships that would take years to develop offline can accelerate faster online because -- for better or worse -- the internet encourages candor.

 

If you are struggling with how to do more with less in these tough economic times then reconsider making a small investment of your time in the mostly free Web 2.0 resources.  

The sense of community, collaboration and reciprocity that exists in online social networks can quickly translate into marketing opportunities that are speedily turned into new engagements. If you contribute positively and regularly to the online conversations at Q&As (LinkedIn), subject matter listserv forums, blogs, and, most recently, twitter, you are highly likely to improve your "know, like and trust" stock.  

In the end, professionals who are able to renegotiate their time priorities to set aside a few hours a week to invest in online-relationship-building, will be rewarded many times over by the ease with which your network can be immediately deployed for your benefit or that of your clients. 

If you find Web 2.0 daunting, ask a tech-savvy professional friend to advise you or, better yet, give me a call!

Renée Barrett is a business development & marketing consultant, specializing in change management, professional development, branding, social networking, and client relationship management.

Negotiating a Conflict-Resolved Workplace

Want a horror story for Halloween?

Remember that Heller Ehrman collapse?  Seems that you don't get COBRA benefits if the health plan your former employer maintained is kaput because it has gone out of business.

Now think, pending surgery, no health insurance, pre-existing condition. 

Why do I lead a post about resolving work-place conflict with bankruptcy and tragedy?  Because no 100-year old AmLaw100 firm fails so spectacularly without having made some conflict resolution mistakes.

Can you eliminate conflict in the law firm?  Hellllloooooooooooooooo???????????  We're lawyers who Anne Reed at Deliberations this morning reminds us have been characterized as . . . well . . . sharks with

skin that is tough and rough -- covered with thousands of tiny hard teeth call denticles that abrade any passerby made of softer stuff. Lawyers are also thick-skinned. Easily identified by their humorlessness and abrasive personalities, they are the bane of many social gatherings.

Ouch!

What to do?  Apologize when your "denticles" abrade passersby, but more importantly, ask yourself the most important Bob Sutton-inspired organizational wellness question noted over at The Non-Billable Hour this morning:

 What Happens When People Make a Mistake?

 

 

Negotiating a Better Health Care Plan for Your Employees

Check out Dan Schwartz's post - A New Approach to Health Care - at the Connecticut Employment Law Blog.  The focus on value rather than cost is what we've been preaching here at Settle It Now from the start.  Snippet below but click on over to Dan's place for the goods on win-win health care solutions.

At the CBIA Annual Meeting last night, I had the pleasure of hearing a keynote address by Elizabeth Teisberg, co-author of the book: Redefining Health Care: Creating a Value-Based Competition on Results.  Her presentation focused on the importance of taking a comprehensive approach to health care reform -- one that controls costs, improves patient outcomes and creates greater value for our health care dollars.

OMG!  I just had a non-political moment and it felt so good!

Down to the Wire: Making Your Vote Count: Justice Flourishes Only in a Healthy Democracy

UPDATE:  REPORT YOUR VOTE EXPERIENCES ON TWITTER VOTE REPORT HERE

Here's a helpful list from this morning's Today Show on how to insure that the vote you cast is counted thanks to LegalMaven at Twitter this morning:

  1. Confirm your registration before you go to the polls
    1. here in Nevada, the early vote poll workers will check for you if you drop by one of the hundreds of nearby polling places
    2. here in Nevada, you DO NOT NEED TO VOTE AT ANY PARTICULAR VOTING PLACE if you vote on or before October 31.  You can vote anywhere you see a polling place.  Many of them are mobile units conveniently parked at your local Vons or Albertsons; in front of your gym; and, just about anywhere your local shopping day takes you.
    3. here in Nevada, call 455-VOTE if you have any questions about when, where and how to cast your ballot
  2. On election day here in Nevada, you DO NEED TO VOTE AT YOUR DESIGNATED POLLING PLACE ON ELECTION DAY.  Call 455-VOTE to determine where that is.  Lines may be long even though Nevadans have been early voting for more than a week. 
  3. Have proper identification.Though you need only to give poll workers the month and day of your birth here in Nevada (if you are not a first time voter) to SPEED THE LINE bring your sample ballot.  It contains information that poll workers can scan & you and your neighbors will be on your way to vote and back to your daily activities more quickly.
  4. Don’t wear campaign t-shirts, buttons and the like.  They are prohibited at polling places here in Nevada because you cannot campaign within 100 feet of a polling place.  If you forget, pull a sweater over that t-shirt; turn it inside out; remove the button and you won't have any problems.
    1. I monitored the polls in early voting here in Nevada at three separate polling places before I begged to be put in the field.
    2. Campaign workers didn't turn anyone away on account of clothing.  There are McCain and Obama vote protection workers at most polling places in Nevada.  You cannot talk to them within 100 feet of the polling place but they will notice if you are turned away and will follow you out to make sure your problem is taken care of.

THE NATIONAL NUMBER TO CALL FOR QUESTIONS WITH VOTING IS 866-OUR-VOTE

THE NEVADA NUMBER TO CALL FOR QUESTIONS WITH VOTING IS 702-455-VOTE

The just resolution of disputes and freedom to negotiate your own contracts flourish in a democracy.  USE IT OR LOSE IT!

More voting resources in Nevada:

The Nevada Secretary of State (list of county clerks and voter registrars state-wide)

Election Information from the Nevada Women's League of Voters

Nevada Online Polling Place Finder

I'M ASKING LEGAL BLOGGERS IN EVERY STATE TO PLEASE POST THEIR STATE'S POLLING AND ELECTION INFORMATION:  PASS IT ON!

Nebraska Voting Info here courtesy of lindsycd at twitterHer Omaha law firm here!

Texas Voting Info here courtesy of madpoet at twitter. His website Mad Poets Anonymous here!

New York Voting Info here courtesy of Jeenaesq at twitter.  Her lawfirm website here!

Illinois Voting Info here courtesy of R. David Donoghue of Chicago IP Litigation who twitters here.  Thanks David!

Go to the Legal Maven Speaks for election Day tips for DC, Maryland and Virginia.  Legal Maven sez

I strongly urge any voter who encounters an issue at the polls to contact Election Protection at 1-866-OUR-VOTE. Attorneys will be manning the phone lines and will be able to quickly provide you with the information that you seek.

Also, if you happen to be an attorney who wants to protect the vote, consider volunteering at a polling place through Election Protection. You'll be there to help voters who have problems with voting, voting machine errors, accessibility problems and to report any voter intimidation going on at the polling place.

 

See Florida Voting Information at Collaborative Divorce Law of the Palm Beaches thanks to Pamela S. Wynn who twitters here.

California Voting Information at the IP ADR Blog which twitters here.

 

The Journey to Empathy Begins with Listening and is Nurtured by Meditation

by Guest Blogger Martin Golder

Empathy is not only a central tool In conflict resolution, but also a way of being.  And yet I remember that when I started in my first mediation course I was unsure of what it was. It even took a while to learn the difference between empathy and sympathy. In my search for a definition I encountered an old joke that I often now use to start a discussion on empathy.

There was a rich woman who wanted to have her portrait painted by a famous young artist.  She called the artist to her mansion and instructed him that she would like her portrait to be painted with empathy.  The young artist arranged for her sittings and commenced the work.  He would not let her see the painting until it was completed as he rejected any artistic intervention.  Finally the day came for the unveiling.  The family gathered round. The artist pulled back the cover.  And there was a gasp from the assembled group.  The portrait was magnificent, however there was a man standing behind the rich woman with his hand over her shoulder and stuck down the front of her dress.  The rich lady gasped, composed herself and said ’Young man, what is the meaning of this?’


The artist replied ‘Ma’am, I must confess that when you asked me to paint your portrait with empathy, I did not know what empathy was.  So I looked it up in the dictionary and the definition said ‘A fellow feeling in one’s bosom’.

Indeed!  A fellow feeling in one’s bosom is a fine definition of empathy if a little ambiguous.

Having come up with a definition I still then had a tremendous amount of difficulty learning how to actually achieve this ‘fellow feeling’. I would find myself at the mediation table with the parties whining at each other over some trivial matter (when compared to life, death and global warming) and I would be sitting there thinking ‘Get a life buddy. Stop whining’.  At the same time I would be saying  “That must have been really difficult for you to go through that experience” 


“Yeah! So right dude” would be the reply as the party felt heard.

It is amazing how the mechanical tools of mediation work even without the feeling.  I called it ‘mechanical empathy’. After each mediation I would write up a self evaluation and each time for several years I would comment to myself on my lack of empathy. After all if I had walked a mile in his shoes, maybe I would be whining just as much.  (Or as the old joke goes, I would at least have his shoes and he would be a mile away).  This was my burden (not a very heavy one, I give you), humour kept overcoming empathy.  It may be a British thing, my heritage I thought.  Crack a joke whenever an emotion looks like taking over.   

My mediation mentor once told me that I had the emotional development of a 2 year old.  When I recounted this to a group of women students they replied that they would have given me 12 years old and that’s about average for a guy!

So how to get from an EQ of a 2 year old to the ability to experience the real empathy that is the hallmark of a successful mediator and indeed a successful human being?

In a word ‘listen’.  That’s really the whole story. Just listen. Shut up and listen. Keep your opinions to yourself and just listen.  Gradually it becomes a habit.  Gradually you even understand what you hear.  Gradually as you really begin to hear, respect grows. This can be difficult at times especially if someone is shouting and using abusive language. However in the act of active listening the talker (or shouter) is calmed.

A few years ago during a mediation I experienced two parties transform from hissing in anger at each other to reconciliation in a moment. The trigger was an apology.  Much has been written on the power of apology and it is indeed one of the most powerful forces for transformational good.  The experience led me to look for other triggers that might cause transformation.  Silence and humour and tears all have power.

This search led me to explore some of the links between mediation and human spirituality. I learned to meditate using the Vipassana tecnique.  The ability of meditation to loosen the ego’s grip became a powerful tool to prepare myself for mediation sessions. The fact that a single letter separates meditation and mediation seemed somehow prophetic.  I learned an ancient learnable skill called Metta Bhavana.  This loosely translates as ‘Loving Kindness’ and is practiced by the conscious projection of good will.

One day as an unsuccessful mediation was winding up and I was preparing to send the parties out into the unresolved world with at least some encouragement about the good work that they had done in the mediation. I lent forward with good intent and focused body language and said

 

‘You know, I really feel for both of you.  This conflict does harm equally and I feel badly that you have been unable to come to a resolution today. I do however believe that both of you made significant efforts to get to a solution and that you each understand better what motivates the other.  And so as you leave please feel easy on yourselves and know that the work that you did here today was good work and may help you reach a solution soon.'



There was a silence. The energy between us all was real and intense. It was like a hug between warring relatives at a family funeral.   Then they sat back down and quickly settled.  I was amazed.

I tried the same kind of focused good will in other mediations and always found that it moved the parties forward. I continued my research into the roots and practice of the process.  The Magi who traveled to be at the birthplace Jesus did so saying “Peace on Earth and good will to all.”  They practiced this ancient skill of Metta Bhavana,  the conscious projection of good will, compassion and loving kindness.  The term ‘Pax Vobiscum’ in the Catholic liturgy is an expression of the practice.

Metta Bhavana is a five-stage skill that can be learned.  The first stage is to think of yourself in a kind and loving way.  This thought can then be extended to a person who  you like. The third stage is to think of a neutral person and the fourth and perhaps most difficult stage is to project loving kindness (peace and good will) to an enemy or difficult person.  The final stage is to expand the projection of good will to all.  There are many courses in the process often associated with Buddhism. There are even do it yourself web sites with exercises to teach Metta Bhavana.


The success I experienced with this technique made me want to share it with other mediators. I sent an abstract for a workshop to a conflict resolution conference and presented the technique to those who were interested.  The workshop was well received.  The same desire to share my experience led me to write this article.  I am beginning to believe that perhaps you need no other tools. If you can enter a space with absolutely zero judgment and project loving kindness the space will shift magically and to the benefit of those in it.  Indeed the word ‘magic’ is derived from the Magi.

The abstract for the course was Magic in Mediation

Role playing and case study of the use and impact of the transformational techniques that can literally move the participants through the looking glass into places that they never thought possible. There are many definitions of the nature of magic but I return to the techniques used by the followers of Zoroaster, the Magi, who were able to turn events to advantage by the conscious use of well intentioned will power. Compassion and Loving Kindness (Metta Bhavana) are the central tools. While these tools are useful to practitioners they are of course also central to a successful life.


This article has grown out of this workshop presented at the Conflict Resolution Network conference ‘Cultivating Peace’ in Winipeg, Canada in June 2006.

Martin Golder is a mediator, arbitrator and architect living in Victoria, British Columbia, Canada

 

Mediating? A Savvy Plaintiff's Attorney Tells You How

by Guest Blogger Brian Herrington


Don’t Agree To Mediate Too Soon In The Litigation

The mediation of litigated cases involving personal or economic injury should mainly be about money. Unless the issues of law and fact have been fully fleshed out, mediation sessions get bogged down in contentions about ultimate facts and conclusions of law that neither side can "win."

Let’s take a drug case in which the drug causes a signature disease that only has 3-4 causal connections.  Until the defendant knows my client’s medical history and definitively understands that the only causal connection present in my client’s case is the drug at issue, the defendant cannot fully appreciate the strengths of the plaintiff's case, leading to an unbridgeable divergence in the two sides' valuation.  On the other hand, if I’ve not yet conducted adequate discovery to learn that the drug didn’t contain the offending agent until after my client quit taking the drug, then I’m going to waste my time – and everyone else’s – by asking for 7 figures.

If the attorneys are making arguments that sound like summary judgment motions during a mediation, both parties are wasting their time. No one should proceed to mediate before they know what they  agree on and what they disagree.  Ideally, the parties should agree upon as many facts and legal issues as possible before sitting down to negotiate settlement. 

Make Sure The Money Person Is There

I will no longer attend a mediation unless the individual authorized to write the settlement check is present.   None of this, “We have to get on the phone and see what corporate says” for me. You do not want to mediate with defense counsel only.  It’s much easier for an adjuster or other money person to hold tight at a number when he/she doesn’t have a plane to catch. In fact, one of the first things I ask the corporate representative at a mediation is, What time is your flight?  This information usually tells me volumes.

Make Sure The Mediator Knows Who to Talk to Before the Mediation Begins

Assuming there’s only one plaintiff and one defendant, there are no less than four parties that the mediator may need to direct his/her attention to: (1) defense counsel (2) the corporate representative of the defendant (3) plaintiff’s counsel and (4) the plaintiff. In any given litigation, one or more of these parties could be the source of impasse. Usually my clients are very well-oriented on where we need to be money-wise heading into mediation. The occasion does arise, however, when I need the mediator to help me help my client understand that his or her expectations of recovery are unrealistic.  On those occasions, I instruct the mediator confidentially that my client needs a little reality testing if the case is going to settle. 

All of us sometimes have unrealistic expectations.  I certainly can, as can  defense counsel or the corporate representatives.  The point is the mediator needs to know who needs to be talked to a little more than the others. I encourage any mediator with whom I work to accept confidential settlement letters. In these letters, I mention which parties I think might be barriers to settlement.

If you have a mediator who only talks to the lawyers, you’re probably in for a long and unsuccessful day. Or, given the situation, it may be the clients who are being hard-headed. In these instances, the mediator needs to talk right past the lawyers and speak directly to the clients. As a plaintiff’s lawyer, I won’t deal with a mediator who won’t talk directly to my client or the corporate representative.

The lawyers' job is to represent their clients and the mediators job is to bring the lawyers together. If the lawyers are in the way, the mediator needs to ignore them for a while and deal directly with the clients.  Ensure that the mediator you’ve agreed to will do this.

Before The Mediation Set A Time Limit For Real Progress

This last point is something that I’ve only started employing in the last few years, and it’s worked wonders. In a courteous and professional tone, I inform defense counsel that if we’ve not made sufficient progress by a certain time or within a certain number of hours – usually 2-3 – then I will leave.  What constitutes “sufficient progress” is case-specific, and you’ll know it when you see it. I give this caveat to defense counsel so that there’s no misunderstanding at the mediation. If, by all reasonable measures, my case is worth 7 figures, I’m not going to spend 6 hours trying to get to 6 figures. I simply will not let that happen to me anymore.

By informing defense counsel ahead of time that I won’t stay more than a couple of hours unless I see real progress, I’ve managed to avoid many of the lowball offers that usually start the defense side of the mediation. Or, if I get a lowball offer, the numbers start increasing once I remind the mediator and defense counsel that I will leave if substantial progress isn’t made.

Of course, this point applies equally to plaintiff’s counsel. I can’t start off at $10 billion dollars like Dr. Evil with a law degree. I make sure that my offers are within reason so that I can be justifiably indignant if defense counsel starts playing games with the offers.

One Size Does Not Fit All

As I said at the beginning, there is no foolproof way for the plaintiff lawyer to approach mediation. There are numerous approaches and many depend on the parties involved. These are some of the broad categorical approaches that I take and they’ve worked for me.  I hope that you find them useful as well.  Happy mediating.

About The Author

Brian Herrington is the founding partner of Herrington Law, PA in Jackson, Mississippi. Licensed in Mississippi and Tennessee, Brian litigates consumer class actions, cases involving defective drugs and medical devices, and personal injury cases all over the country.

You can obtain more information about Brian's practice by going to Herrington Law PA’s main website here. Brian blogs on numerous issues relevant to litigation at Mississippi Consumer Lawyer here.  You can also follow Brian on twitter at twitter.com/brianherrington.

Why Common Sense, Compassion and Listening Twice As Much As You Talk Are The Best Negotiation Strategies In Law and Life

Guest Blogger - Susan Cartier Liebel

First, I'm honored to be guest blogging while Vickie is away campaigning her heart out until November 4. I'm also a little intimidated to be here as I can't speak on negotiation with the authority Vickie can, after all she's a distinguished and honored expert on the topic.

However, I can speak on negotiation as a lawyer and a human being dealing with every day life. So in this post I will speak to both the skill sets which lawyers must employ every day of their lives both professionally and personally and the strange phenomenon which exists when lawyers are 'off' the job but are still known to be, or deliberately make others aware of the fact, they are lawyers. 

A lawyer in many ways can never really step away from their professional reputation unless it remains hidden from those we are negotiating with.  And you know exactly what I'm talking about.  How many times have you negotiated with a vendor or customer service representative and when you feel you are losing ground or the other person is not taking you seriously you pull out your trump card, "Well, I'm a lawyer."  What are you expecting?  Be honest.  You are expecting them to take you seriously now with the unspoken threat of legal action if they don't some how immediately capitulate or offer some type of concession to your demand.  You've implied you have this superior intelligence and set of skills and you are not afraid to use it to threaten their job.  How many times have you subtly threatened the same in a letter for a personal situation simply by using your business letterhead?  Gotcha. 

Well, what happens when the reverse is true?  When someone you are negotiating with uses your status as a lawyer to escalate the situation?  They don't treat you in the manner they would a friend or neighbor because they  assume you will be aggressive and immovable on a matter precisely because you are a lawyer?   They fire the first volley and create a situation where you have to defend yourself first by saying, "I'm not here as a lawyer. Why are you threatening me with legal action?"  You are ultimately responsible for de-escalating a situation simply because they know you are a lawyer.

This very thing happened to me with a neighbor and I had to literally work backwards from the implied threat of a law suit simply because I am a lawyer. And in it are some valuable negotiation skills I want to share with you.

I've lived in my home six years.  Both my neighbors are original owners having been there for more than 35 years.  In between my home and my neighbor to the right are 40 foot pine trees and several 60 foot hickory trees which are quite old.  My neighbor approached my husband and said he was going to take down two of 'his' trees, one of which sits on the edge of my property in an 'island' of trees bordered with decorative brick.  When I heard he wanted to take down one of 'my' trees I went to his home and asked why he wanted to take down one of 'my' trees?  He proceeded to tell me it wasn't my tree.  "Then why is it in 'my' island?"  "Because I told the original owner I had no problem with her using her decorative brick around it for aesthetic purposes.  But now I want to take it down."

Well, while this neighbor is a friendly guy, I don't believe he gives away freely that which is his.  He didn't like the leaves blowing into his yard and thought he could get away with claiming it was his.  I asked him if he would show me the property card because I really wasn't sure this was his tree and I really enjoyed the tree. (Up to this point all was done in a very nice, cordial, friendly way.)  His manner immediately changed, "I'm not showing you anything. I don't care if you don't want that tree coming down.  It's mine and it's COMING down.  And I know you're a lawyer and you can sue me if you want.  It will come down when you're not home.  And if you think that's going to bother you, wait till I take down all those pine trees in the spring."  He's screaming this as he points to the beautiful natural fence between our homes. And he has now also upped the stakes.

So, let's talk about the practical aspects of this.  First, he's a neighbor.  Second, he could very well take the tree(s) down when I'm not home and no matter what happens in any litigation, the tree(s) are gone and irreplaceable.  Third, I had no proof, just a very credible suspicion the tree was not his.  Fourth, he was taking the tree down within a week.  Fifth, he was immediately hostile and assumed because I was a lawyer I would threaten suit and use my magical 'superiority' that lay people fear in order to bully him.  He seemed to have taken all options for discussion off the table simply because I was a lawyer. He attacked first.

It would have been very easy to escalate this.  Here's what happened instead:

Me:  (Jack)...let's slow down here.  What's really going on?  This is not like you.  There's more to this.  Is something else bothering you?
Jack: No, nothing.  This is my tree and I'm taking it down whether you like it or not.
Me:  Jack, let's get away from the tree for a minute.  You're really edgy.  I'm not used to seeing you like this.  Is everything, OK?
Jack: (Pause)....Well, my aunt is in the hospital and it doesn't look good.

(This went back and forth for a while as he slowly revealed his aunt's condition, a woman who had raised him, and it was impacting him deeply.)

Me:  Now it makes sense to me why you're so on edge.
Jack: (He brings back the topic of the tree.) "Step on my porch, Susan and you'll see the top of that tree is dead.  I'm willing to pay to take it down."

All of a sudden, there is a subtle acknowledgment the tree isn't his.  But now he has also pointed to a reason I would want the tree to be taken down.  He would pay for its removal now or I could pay several hundred dollars for it later.  He is trying to find consensus..or reaching across the table.

The end result is I agreed to let him pay to take the tree down.  He did all the prep work around the tree and we both interviewed and agreed to the right tree service. After the tree was removed he told my husband he would not take down the pine trees that separated our properties. (I believe, although he planted those trees, he planted them with the agreement of our home's previous owner to do so on the joint border...a little tidbit I remembered from a previous conversation.)  But this gave him a chance to be gracious and conciliatory.

The end result:  I got what I wanted, someone else to pay for the removal of a tree which apparently was dead on top, no more threat of removal of the pine trees, no need to spend money on a property survey, either. He got what he wanted, the 'dirty' tree removed while we both got something else, preservation of our neighborly friendship and working together as a team on joint matters.  This 'partnership' has since extended into other neighborly issues like shopping for home heating oil as a group to have better negotiating power, etc.

It's very hard to un-ring the bell when someone assumes because you are a lawyer you are incapable of not acting like a lawyer in a situation where both parties need to feel like they are on the same footing.  And given most lay people's perceptions of lawyers and the casual way lawyers use their 'trump' card, is it any wonder.

At the heart of negotiation is listening twice as much as you talk and the ability to step into another person's shoes with genuine compassion.  In our 'negotiation' everyone walked away with more than what they wanted without litigation in spite of the fact one of us was a lawyer. This neighbor got a chance to reclaim his good neighbor status because I took the time to figure out the thorn in the lion's paw.

Susan Cartier Liebel is a national coach/consultant working with newly minted or well-seasoned lawyers who want to create and grow their solo practices.  She authors the popular blog Build A Solo Practice, LLC and is the creator of Solo Practice University - a revolutionary web-based educational and professional networking community for lawyers and law students.
 

Is Law Becoming a Clerical Function? Email and its Discontents

Over at the Mimosa Systems Blog, we get some good advice about in-house eDiscovery management.  What does this have to do with conflict resolution?  Some of our smartest, most well-educated, highly compensated, creative and dynamic conflict resolution specialists -- litigators -- are in imminent danger of becoming clerical workers.  Listen folks, it's e-Bleak House out there!.

Someone must be capable of providing a turn-key solution for attorneys who spend far too great a portion of their days filing e-mail into the right group folders.  I get these complaints both from my 35-year litigator husband and first-year litigator step-son, both of whose hourly rates would blow the top of your head off.  Think about it.  Clients are paying them to spend no small amount of time filing.

Though the below post does not address that particular issue, it does recommend ways to manage and control the new business-scourge of email management in-house.  Check it out.

More Lawsuits = Need for In-house eDiscovery Infrastructure

A recent New York Times article discusses how today’s financial crisis sets up a probable boom in lawsuits. Investors feel wronged by banks and financial advisors.

The creators of some of these risky investment vehicles spoke publicly of how financially sound the vehicles were while (stupidly) emailing each other about how concerned they actually were. (It still amazes me what people will put in an email - completely oblivious to just how discoverable what they write is).

What’s a company to do? First, realize that keeping the data around is not the risk. What do I mean? I spent the last week listening to lawyers talk about wanting to get rid of data as quickly as possible, when what they should want to do is better manage that information so they can find what they need as quickly and cheaply as possible.

FEHA Attorney Fees Unavailable Under Cal Civil Code 998

Civil Procedure Sec. 998--which permits a defendant to shift costs to plaintiff if plaintiff rejects a settlement offer and then fails to obtain a more favorable judgment--does not eliminate substantive requirements for awarding attorney fees to a prevailing Fair Employment and Housing Act defendant; prevailing defendant in FEHA action is only entitled to recover fees if plaintiff rejects defendant's settlement offer, fails to obtain a more favorable judgment, and plaintiff's action was without any legal or factual foundation. Mangano v. Verity, Inc.
 
 

Rock Paper Scissors Dispute Resolution

Thanks to Tammy Lenski over at Twitter (follow her!) for passing along Pop Crunch's photo of the best dispute resolution street sign ever posted (with all due deference to NYC's "Don't Even Think About Parking Here."

I can't download it to post it so you must click here for it to make your conflict resolution day.

Image below links to Random Images.

Guilty of Betraying Niche; Posting Politics on Another Blog

Every time I post something political, I can see Kevin O'Keefe wince. 

"Your blog says 'everything you always wanted to know about negotiation,'" Kevin once said to me.  "And you're blogging about Guantanamo.  You are betraying your readers and they will leave you."

So election-fever overtook me, for which I apologize to my "base."

Anyone interested in what an Obama volunteer in Nevada does on the road, I'm keeping a blog of my experiences (and the stories I hear from voters) here.

I'm workign 12-15 hour days so I've recruited a couple of FABULOUS guest bloggers like the brilliant and energetic Susan Carter Liebel at Build a Solo Practice and Solo Practice University.  Whoever said, "if you want something done, ask a busy person to do it" was thinking of People like Susan.

I'll be back after the election.

Bring Your No. 2 Pencil to Blawg Review #182

I'm poll watching in Nevada. Why this is so exhausting I'm not certain.  The poll workers are uniformly great.  Patient.  Persistent.  Painstaking. 

The people who are voting remind me of jurors in the way they approach their civic duty.  Today, for instance, there was a major discussion in line about those people (a lot) who are voting only for President -- skipping past the proposed bond-raising, law changing and judge choosing issues.

"It would be wrong," one of the group finally concluded, "to vote on these issues because we don't understand them."  Everyone in the huddle quickly concurred and the line fell silent again.  They are voting for the next President of the country and they are feeling like their vote matters.  And since I'm in a "battle ground" state, Nevada, their vote matters more than mine does because California is in the bag for the Dems. 

But I was going to tell you how fabulous Blawg Review #182 over at Preaching to the Perverted is.  You'll have to forgive me for digressing and for now saying simply go right over to Preaching now because it's without question the bet blawg review of the year. 

 

Obama and the Politics of Despair

There's nothing like getting a new Harpers in the mail to upset my idealistic dreams of a new America flourishing under an Obama administration.  Here's the opening November '08 Harpers slap-in-the-face for dreamy liberals like me:

After eight years of catastrophic Republican misrule—in the midst of economic crisis and rising unemployment, in a nation plagued by ruinous energy costs and inflation, bank failures, and staggering public and private corruption—an eloquent, charismatic, intelligent Democratic candidate was locked in a statistical tie with a doddering old hack whose primary argument for his claim to the most powerful office on earth is that he was shot down over Vietnam and tortured for five years. Indeed, this remained the case even after McCain demonstrated beyond all doubt, in his impetuous selection of a ludicrously unsuitable vice- presidential candidate, that he lacked the good judgment that is the primary qualification for the job. If the Democratic Party loses this election, then it should forever concede the presidency.

Ouch!  I read this magazine for the same reason I watch Fox News.  To upset my own comfortable ideologies.  That's the trouble with us liberals -- we're always fretting about being fair, when, according to Harper's Roger Hodge we're just a big bunch of conflict-avoidant pussies.  

Conflict in politics is not a metaphor, and as with any fight, the audience is likely to get involved. That is the essence of politics. A campaign that decides in advance that voters are tired of negative campaigning, that they are sick of partisan attacks and will respond only to positive messages, has stupidly left the field of battle. The people who truly dislike political combat are presumably among the 95 million who do not vote. Senator Barack Obama, a sophisticated and intelligent man with sophisticated and intelligent advisers, promises to change Washington, to eliminate the tone of partisan rancor, to foster a new spirit of brotherhood and cooperation. Poor lamb, he wishes to lie down with lions. But the Kingdom has not come.

The answer? 

Attack!!

Unfortunately, the sovereign voter can do little, on his own, to remedy the situation, especially if he happens not to live in Florida or Ohio. Yes, he can make a campaign contribution, a slightly more effective form of voting, but unless the Obama campaign decides to wage a more creative and destructive war, casting monetary ballots remains an empty gesture. (Of course one can also join the battle personally, perhaps by repeating the rumors about John McCain’s Alz heimer’s meds or the Sarah Palin sex tape.) Ultimately, we return to the problem of political will, to the Democratic Party, to the commitment of its party bosses to prevail, finally, in this election.

We can hope for change, that the Republicans will make some fatal error, or that Obama’s party will fight hard enough to persuade a decisive number of “low information” voters that John McCain is not only a liar but a menace to our children’s future. Recent precedents, however, are not encouraging. The Republican Party lied its way through eight years of criminal misrule while Democrats mostly just cowered in a back room. Now, faced with a clumsy deception about whether Sarah Palin sought an earmark for a small town in Alaska, Obama exclaims, “Come on! I mean, words mean something, you can’t just make stuff up.” Oh, yes, Barack, we can.

In the same issue that suggests we dirty our hands by calling John McCain a liar and the Bush administration's "misrule" criminal, we read that Obama is a detached blank screen upon which voters can project any quality they like (or dislike) because . . . well . . . his mother was lonely and so is he:

Obama wants to believe in the common good as a way of providing a fullness to experience that avoids the slide into nihilism. But sometimes I don’tknow if he knows what belief is and what it would be to hold such a belief. It all seems so distant and opaque. The persistent presence of the mother’s dilemma—the sense of loneliness,doubt, and abandonment—seems palpable and ineliminable. We must believe, but we can’t believe. Perhaps this is the tragedy that some of us see in Obama: a change we can believe in and the crushing realization that nothing will change.

See The American Void by Simon Critchley

This is usually the point at which my own McCain-supporting mother breaks in with "honey, you know, you can think too much."  And after years, decades really, of finding this refrain irritating, I finally agree with her about the thinking part if not about her taste in Presidential candidates.

Like the Obama caricatured in this month's Harpers as an ineffective dreamer as intent on replacing his deceased mother's lack of faith with liberal-Christian-do-gooding as Oliver Stone suggests "W" was intent on finally pleasing Daddy, I simply choose to have faith in the stated values of the Democratic party.  I continue to believe that over time, we can do better as a nation through consensus and problem-solving, collaboration and compromise, than we can by adopting the tactics of the world's strong-arm leaders and disciples of discord. 

The Good News

Assuming that the guy I think Obama is -- highly educated, articulate, and idealistically dedicated to serving the common welfare -- actually exist on the political scene (and I will not give up this faith any more readily that others would renounce their own religions) I believe them to be riding the bow-wave of transformation.  I have staked my professional life on this faith in my fellows' ability to work toward the common good, abandoning the extremely lucrative practice of legal battle in exchange for the far less financially rewarding practice of collaborative negotiated conflict resolution. 

Who are the real cowards here and who the heroes?  People who refuse to negotiate face-to-face "without pre-condition" ("we won't discuss settlement unless they're willing to put $10 million on the table first") and without the protection of several layers of legal counsel?  Or those who are willing to test the rectitude of their "position" by sitting across a table with their opponent to frankly discuss their mutual role in whatever commercial or personal catastrophe flowed from the intersection at which their (mis)fortunes collided? 

The social psychologists tell us that we live on the razor's edge of individual survival (me, me, me, me, me) and the collective good.  It is our great challenge as a species to live that which we cannot refuse to understand -- "we" cannot drill a hole in "their" side of the boat without sinking all of us.

So I will continue to brave reading Harpers (which discourages me) and risk the challenge to my world view of Fox News commentary (which so often enrages me) on the off-chance that my religion -- tolerance; compassion; collective effort; empathy and the like, has more staying power than the religion of hate; discord; and, denial. 

And I will also continue to believe that none of us could ever possibly be right.  

Only that we could potentially be happy.

Ending on a positive gaping void note with Hugh McLeod's greatest to date contribution to humanity:  How to Be CreativeYou can catch him on Twitter here.

 

 

Hope, Safety and Innovation

The first thing we mediators are taught (after digesting the imperative to "be conscious") is that people in conflict need to be in an atmosphere of hope and safety to be able to:  (1)  recognize the point of view of another; (2) be accountable for his/her own "part" in the dispute; and, (3) generate creative solutions to bust past impasse.

This is the reason one of the post categories over at the IP ADR Blog is "Innovate, Don't Litigate," which is the dispute resolution mantra of Sun Microsystems CEO Jonathan Schwartz.

That said,  I am happy to link my readers to The Financial Crisis' Silver Lining over at Harvard Business Publications.

Perhaps the good times are in fact dead. And certainly someone thinking of forming the umpteenth "Web 2.0-widget-to-grab-audience-and-find-advertisers" ought to pause to think whether they really have some kind of defined competitive advantage that can translate into a sustainable business.

But real customers continue to face real problems. And as always, innovators who figure out different ways to solve those problems--and make money doing so--will have opportunities to create new growth businesses. In fact, the creative destruction unleashed by a crisis always opens up opportunities for innovation.

As a simple example, consider a New York based startup called On Deck Capital, Inc. As described in Monday's Wall Street Journal, the company loans money to small businesses. Instead of relying on individual loan officers to pour over episodic financial information and make decisions, the company has an algorithmic approach that uses software to analyze a company's day-to-day activities in a non-obtrusive way to assess credit worthiness. Its loans feature higher interest rates than loans from most banks, but lower than alternative sources.

The company launched in May, and has already distributed $10 million in loans. It has suffered very few defaults. The current credit crisis and hesitancy of many banks to loan to even the best-run small businesses creates substantial opportunity for On Deck to extend its model.

Llssez le bon temps roulez!

What We Think We Know Can Hurt Our Negotiating Position

I watched the debate last night with people who support my candidate.  They all also happened to be mediators, so they understand concepts like confirmation bias --the tendency to search for or interpret new information in a way that confirms one's preconceptions and avoids information and interpretations which contradict prior beliefs. It is a type of cognitive bias and represents an error of inductive inference, or as a form of selection bias toward confirmation of the hypothesis under study or disconfirmation of an alternative hypothesis.

I've been Twittering (shoot me! this is addictive behavior).  But all behavior has it's "up" side.  The "up" side to following my Twitter network's running real-time commentary of the debate was the exposure of my own (and my friends') confirmation bias.  I have both McCain and Obama supporters in my network and it was as if the two groups were watching entirely different debates.  And they were. 

Because nothing is objective.  Let me repeat that.  Nothing is objective.  Everything we hear, see, touch, smell and taste is filtered through our entirely personal experiences, the collective or "received" reality of the society (micro or macro) in which we live, and interpreted based upon those experiences, which are further complicated by universal cognitive biases and particular core beliefs (our "operating principles").

If nothing is objective, there is no truth beyond that which one has faith in. ("faith is the substance of things hoped for, the evidence of things not seen.")

Yes, I know, the scientific method.  But you and I don't test our beliefs, opinions, perceptions and conceptions by the scientific method.  We hear, we see, we smell, we taste, we touch and we respond.  We opine.  We believe we are right.

So I said to my friends in the middle of the debate, "we're an example of "confirmation bias" and they took issue with me. And I let it go because I wanted to listen more than to impose my own view of our collective experience.  And I was Twittering, lord help me, with some people who didn't share my bias.

I missed statements made by McCain entirely.  It was if I hadn't even heard them.  I was listening to confirm that which I already believed, which means I screened out what didn't fit my view of McCain or Obama and highlighted those statements that confirmed my existing beliefs.

This is what happens every time you try a case to a jury.  It's why the little "g" god of the market place created jury consultants.  It is also what happens everytime you try to settle litigation.  Litigation raises confirmation bias to holy writ.  Which is why the little "g" god of the market place created mediators.  Why?  Because the client has filtered his opening story through his own subjective experiences, which we, the litigators, devote ourselves to proving by cherry-picking the facts that conform to those experiences and disputing all those that don't.  By the time the parties and their counsel get to me, they're often in different galaxies.  And I need to help them remember, or realize for the first time, that their opponent has woven the disparate facts of "what happened" into an entirely different story, and has done so without "lying" about those events.  Just as importantly, the parties come to understand that a  jury might well "buy" their opponents tale as the "right" one.

Here's the more important point to getting a better deal:   your opponent is often nearly as interested in your acknowledgement that his version of the events might be as accurate as yours as he is in  "winning" the case.  When (or if) the parties clear this hurdle, they can get down to serious horse trading, benefitting both. 

So, forget the pundits.  If you believe your guy "won" last night, it's probably equal parts a measured opinion and a peculiarly subjective experience, one that you do not even know you've tailored to fit your own view of reality.

I like Obama because I believe he acknowledges this from time to time.  Not always.  But often enough to make me feel comfortable with him in a White House.  Am I right?  How could I possibly be?  We won't know anything until one of these men moves from campaigning to governing.

Lord help us all.

 

Blawg Review # 181 Celebrates International Conflict Resolution Day

It's effective, it's efficient and it's client-centered.  Just what we need to weather the financial storm.

 What?  The mediated resolution of litigated cases. 

Nobody blogs it better than Diane Levin at the Mediation Channel, who hosts Blawg Review # 181 in celebration of International Conflict Resolution Day.   BR's anonymous Ed. recently had these kind and grateful  words for Diane:

We'd like to take this opportunity to thank Diane for her many contributions to Blawg Review, having now hosted four outstanding presentations -- #43, #94, #130 and #181. Behind the scenes, in her role as a Blawg Review Sherpa, Diane has made contributions to many other issues of Blawg Review, too. So, speaking for myself and all the other Blawg Review hosts she's helped along the way, we'd like to say thanks a bunch and give you this extra little bit of link love to show our heartfelt appreciation.

Tomorrow I'll start my day by reading, and giving my own readers a head's up on what looks to be one of the best Blawg Reviews of the year by the best ADR blogger ever.

Anyone working up the nerve to host, click here. Lesser mortals can submit their week's best post by taking a look at the submission guidelines here. Next week Blawg Review  will appear at ..

 

Preaching to the Perverted.

(totally unrelated photo; just getting my iPhone photos from Paris in the mix)

But what a Blawg Review Diane has given us.  Thank goodness it's Columbus Day or I'd be short-changing my actual work-work by reading #181 half the day and its links the other half of the day.  And don't expect Diane to limit herself to mediation.  Most of us are also lawyers, after all, so she also covers the best legal posts of the week on the topic of the law, legal practice, life as lawyers -- the "whole catastrophe" as Zorba said. 

Geoff Sharp is spot on in urging you to read Blawg Review #181.  It could be malpractice not to do so!!

Brilliant Diane!  Thanks.


 

 

What Times are These? The Unruly Tyranny of Mobs

Bertolt Brecht wrote, "what times are these/when a poem about trees is almost a crime/because it contains silence/against so many outrages."

The same can be said for a post about negotiation strategy and tactics.

My friend and colleague, mediator and AAA arbitrator Deborah Rothman just returned from a very short vacation to Paris and the view from Europe is one of fear and growing alarm about the manner in which our political process has degenerated into hate-filled cries from the crowds at Republican rallies (see Rage Rising on the McCain Campaign Trail).

A waiter at a small bistro near the Champs-Élysées confided his fear that the  "nuclear code" could fall into the hands of a short-tempered or vindictive occupant of the Oval Office, a concern that I admit had been absent from my own consciousness before that moment.  Other Europeans with whom we spoke were mystified that more Americans did not exercise the right to vote, particularly in an election as important to the future of the world economy as this one is.

I returned from Europe more worried more about unruly mobs fueled by anger and fear than about the "smears" on Obama (against which you can take action here if you're so inclined - Truth Fights Back).

If the 20th Century taught us anything, it is this: we are all capable of genocide, and its lesser form, hate crime.

The Holocaust of European Jews

The Armenian Genocide

Lynching in the United States

Ethiopia's Genocide of the Anuak (21st century)

The Genocide of Native Americans in the United States (17th-19th Century)

The Cambodian Genocide

The Rawandan Genocide

The My Lai Massacre (Viet Nam War)

Bosnia-Herzegovina "Ethnic Cleansing"

The "Arab"/"African" Violence in Darfur

. . . . too many more to catalogue

WE ARE ALL CAPABLE

The Stanley Milgram Experiments (response to authority)

The Stanford Prison Experiment ("guards" abusing "prisoners")

RESOURCES

See The War Against Despair is Up to You New Media at Awaken Your Superhero thanks to Susan Carter Liebel on Twitter here.

(right:  my own blurry iPhone St. Chapelle photo where we heard a string sextet play Bach, Vivaldi and Mozart  this past week - sublime) 

Theodore Roosevelt on Mob Violence, Campaign Speech and the Rule of Law (9/28/1900 NYTimes report of "Governor" Roosevelt's response to mob violence in Roosevelt-Bryan campaign)

Tips on Avoiding Inflammatory Language from beyondintractability.org

Convention on the Prevention and Punishment of the Crime of Genocide here

Genocide Prevention Task Force (U.S. Institute of Peace)

United Nations Action Plan to Prevent Genocide

Genocide Prevention (U.K.)

Hate Crime Prevention Tips

The Nature of Hate (.pdf excerpt here) or buy the book here

Constructive responses to extremism from beyondIntractability.org

Mediating Evil, War and Terrorism:  The Politics of Conflict (by Ken Cloke)

Conflict Revolution by Ken Cloke and my review here

Constructive responses to terrorism from beyondintractability.org

Hate Crimes Research Network

PLEASE ADD YOUR OWN RESOURCES

 

Armed Conflict and Sexual Assault

Sending this in complete from Paris, noting that women, who hold civil society together in the course of armed conflict, are rarely at the table when peace is being negotiated.  As this lengthy piece asserts, we cannot ignore the sexual assaults that continue after "peace" has been achieved.  I've been told by the evolutionary biology squad that the "flight/fight" mechanism in the face of terror trends toward freezing in women because a woman who freezes in the course of attack is more likely to survive to protect her existing off-spring and give birth to more children.  She will be raped. Not killed.  This piece reminds me that when men resort to savagery, women are savaged.  Thanks to Dorit Cypis for passing this along to Ken Cloke for passing it along to me.

Peace is a mere illusion when rape continues
Stephen Lewis (2008-09-10)
http://www.pambazuka.org/en/category/comment/50445


Here is an unassailable truth: if sexual violence is not addressed during the course of a conflict, then sexual violence will haunt the post-conflict period, and make of the ostensible peace a mockery for half the population.

Three days ago, I returned from Liberia . While in the country, I met with President Ellen Johnson-Sirleaf, with senior officials of the Ministry of Health, with the Minister of Gender, with the leadership of the Clinton Foundation, with the consultant who drafted the legislation for the special court to try sexual offences, with the UNICEF Representative and significant numbers of the UNICEF staff. Unfortunately, I did not have the opportunity to meet with UNMIL, but the UN Mission in Liberia and its peacekeeping forces were inevitably a part of every conversation.

She was speaking about the contagion of sexual violence that currently engulfs the country and causes such intense concern. The statistics are horrifying: a recent study by UNICEF indicated that more than fifty per cent of all reported rapes are brutal assaults on young girls between the ages of ten and fourteen. The gender advisor in UNICEF felt that the percentage was probably on the rise, and it’s feared that increases in the HIV rates among female youth will not be far behind. The Minister of Gender showed me figures for March, 2008, indicating that the majority of reported rapes in that month were committed against girls under the age of twelve, some under the age of five, and she narrated stories of gang rape so insensate and so depraved that it reminded me of exhibits in a Holocaust museum. A further survey, of all fifteen counties in the country, found that girls and boys were united in their conviction that young girls were the most endangered group in Liberia, and incredibly enough, that there was no place and no time of day or night where adolescent girls could be considered safe.

The context of my discussions is encapsulated in the words of the Deputy UN Envoy for the Rule of Law in Liberia when she said, as recently as May 20th: We cannot expect the future leaders of Liberia, the doctors, nurses, and engineers of Liberia to be brought up amongst men who are rapists and women who are angry, degraded, frightened, depressed, embarrassed and confused.
Predictably, President Johnson-Sirleaf is thunderstruck by the force of the sexual violence. In a very real sense she is staking the integrity of her tenure on her ability to confront and subdue the war on women.

But how did it come to this? UNMIL has been in the country since 2003 it has a large contingent of women peacekeepers: it has an Office of the Gender Advisor and of the Advisor on HIV/AIDS; it has gender mainstreaming built into the mandate; both the UN Envoy and the Deputy UN Envoy are women; and the resolution of 2003 which constituted UNMIL incorporated Security Council Resolution 1325 which --- you will agree --- was supposed to guarantee the involvement of women in the peace-keeping processes, but more important, guarantee women protection and security from gender-based violence and violations of human rights. Clearly all that hasn’t worked in Liberia , where things for women and girls are getting worse. Where did we go wrong?

My own view, and the view of the organization to which I belong --- AIDS-Free World --- is that peacekeepers and force commanders alike have to take sexual violence much more seriously. It is simply untenable to argue that the responsibility to keep the warring parties at bay transcends every other human imperative. It doesn’t. You may succeed in manufacturing a semblance of peace, but for the women of the country, the conflict continues in the most painful and eviscerating of ways.

In the case of Liberia , it isn’t a matter of a contentious mandate: as I said, Resolution 1325 is built into the obligations of peacekeeping. Anyone would argue that when a peacekeeper in the field knows of acts of sexual violence having been committed, or has reason to believe that acts of sexual violence have been or will be committed, then he or she has the obligation to intervene or, to use the language of the day, the responsibility to protect. But let me be even clearer about this. Peacekeepers aren’t mere passive observers of the human family. Peacekeepers move into a country; they learn its social architecture; they watch the roiling political terrain on a day-to-day basis. They come to know the foibles, to know the extremes, to know the anomalies. More often than not, they can tell when trouble is brewing. They can intuit when men might hurtle out of control. They have the pulse of the culture. When it unravels, they’re there to bear witness. I’m saying that when patterns of sexual violence emerge, peacekeepers are rarely surprised. In some cases, they alone have anticipated the atrocities in the offing. And with that knowledge comes obligation. With that insight comes responsibility. It isn’t enough to stop the shooting when the raping continues apace. The only worthwhile armistice restores peace for the entire population, male and female. There can be no satisfaction in claiming a truce or a peace treaty which is soaked in the carnage of the women of the land.

Conventional wisdom says that it is the Security Councils job to set policy, and the peacekeepers job to follow it. But that’s too easy. The Department of Peacekeeping Operations, and its military contingents in-country, should be hollering from the rooftops whenever they feel that their role is somehow constrained. If you need more troops, ask for them. If you need more training, ask for it. If you require a larger contingent of police officers, insist on it. If, in the field, you see sexual mayhem in place, then after intervening, take the names of individual soldiers and witnesses and seek investigation and indictments from the International Criminal Court. If the UN’s Member States wont comply, then call a press conference and tell the world that women are being sacrificed on the altar of myopic parsimony, or perhaps more accurately, on the altar of Pavlovian sexism.

There is nothing facetious in this; I’m absolutely serious. The United Nations cannot allow the terrible assault on women to continue, while crouching behind the ambiguity of mandate. That, I remind you, is what the Department of Peacekeeping Operations did between January and April of 1994, in the perverse struggle with UN Force Commander General Romeo Dallaire over rules of engagement. And there followed the deaths of eight hundred thousand Rwandans and the start of the war in the Congo .

In the DR Congo, it is now estimated that 5.4 million people have died since the end of the Rwandan genocide. That conflict was finally supposed to have been resolved by a peace engagement of January last. To some extent, the battles stopped. But as always, just as in Liberia , the war never ends for women. In the case of DR Congo, the role of peacekeepers could not be clearer. The words of the Security Council resolution of December 21st, 2007, extending the mandate of the UN Mission in the Congo, MONUC, were absolutely unequivocal: Paragraph 18 Requests MONUC, in view of the scale and severity of sexual violence committed especially by armed elements in the Democratic Republic of the Congo, to undertake a thorough review of its efforts to prevent and respond to sexual violence, and to pursue a mission-wide strategy, in close cooperation with the United Nations Country Team and other partners, to strengthen prevention, protection, and response to sexual violence, including through training of Congolese security forces in accordance with its mandate, and to regularly report, including in a separate annex if necessary, on actions taken in this regard, including factual data and trend analyses of the problem . That sounds very much to me as though the Security Council knew full well that things were off the rails where sexual violence was concerned, and this was an explicit instruction to MONUC to get its act together. In that regard, it’s significant that the Security Council went even further: the final clause of the resolution requires the Secretary-General himself to report on the issues covered in Paragraph 18.

To be sure, I can’t pretend to know exactly what lay in the minds of the Security Council members, but these things I do know: Dr. Denis Mukwege, who heads the Panzi Hospital for survivors of rape and sexual violence in the Eastern city of Bukavu, told me when we met in New Orleans three weeks ago, that although the steady flow of raped women has slowed somewhat since the January accord, it continues in shocking numbers; the UNICEF staff in the field agree that things are still in the realm of nightmare for women, who live lives haunted by the fear of being violated, tortured, mutilated, infected with HIV. And who expected anything different, when the countless women who have suffered such demonic sexual violence were not sitting at the peace table last January, and were not signatories to the agreement a direct violation of Resolution 1325? Who can claim to be surprised by reports from Congolese NGOs on the ground, who say that in the country’s so-called peacekeeping period, women are still too frightened to leave their homes?

When Under Secretary-General John Holmes said the Congo was the worst place in the world for women, he was right. When Eve Ensler, the noted author of the Vagina Monologues wrote of the Congo that she had just returned from hell, she was right. When my co-Director of AIDS-Free World, Paula Donovan, visited in November, and observed that the war being waged against women may well be the most savage display of misogyny ever orchestrated in a conflict zone, she was right.

Terrible, unspeakable things have been done to the women of DR Congo. I want simply to argue that MONUC has it within its mandate to end the reign of terror. If it so chooses, MONUC can also have it within its power to end the reign of terror. Whatever MONUC feels it lacks to protect the women of the Congo --- numbers, police, equipment, training, time, leadership, resources --- let them demand it. And if those demands aren’t met, let them tell the world that madness is at work and it knows no end.

Normally, one would turn to the Secretary-General of the United Nations for help in this difficult situation. But how can we have trust?

The Secretary-General gets commendably engaged when it comes to Burma or the price of food, but where is the same sense of throbbing agitation when it comes to sexual violence? This is a Secretary-General who should be insisting on the invocation of the Responsibility to Protect in the Congo , but fails to do so. The defense and protection of the rights of women do not come instinctively to him. This is, after all, a Secretary-General who granted immunity to the former High Commissioner for Refugees, when a claim of sexual harassment against him reached a New York court. I remember that when the Secretary-General was first appointed, he told a group of NGOs that his learning curve on gender was virtually vertical. A year and a half later, the upward climb appears to have stalled at the bottom of the graph.

No, if we are to turn things around, with or without the help of the Secretary-General, the peacekeepers must lie at the heart of the transformation. How excellent that would be. Resolution 1325 would finally be liberated from the dustbins of the Security Council, and women, without fear, could take hold of their collective destiny. You can be sure there would be no vacillation. If all the peacekeepers were women, and the men of a country were under pervasive sexual assault, do you think the women would simply observe the carnage? Not a chance. And they wouldn’t need a Security Council Resolution to tell them what to do.

* These remarks were delivered at the Wilton Park Conference: Women targeted or affected by armed conflict: What role for military peacekeepers? in May 27, 2008.

* Stephen Lewis, is the co-Director of AIDS-Free World (www.aids-freeworld.org).

Helping Employees Help You Help Them

Earlier this week I was asked the following question by a concerned General Counsel:  how can we help our employees grapple with on-the-job justice issues without leading them to believe that our proposed solutions are untrustworthy.  

The problem, as eloquently described by a lengthy email posing the question, is one that all employers face, large and small.  For this GC to have thought that mediators might make a difference is particularly heartening on a day when mediator Justin Patten was reporting that mediators are the furthest thing in a UK company's mind when dealing with conflict.  

(above, the work of the brilliant Hugh McLeod)

To understand the depth of the problem posed, I'm providing you with the full email sent to me:   

Victoria:

I just read your blog post of September 15, 2008 regarding Peter Murray's article (which I have not read yet). I was having a discussion today with my Director of Human Resources, and raise a related issue.

Our company spends an inordinate amount of time explaining disability, workers comp and federal employment law to employees who misunderstand what their rights are, or do not give us the right information to help them get the help they need.

Of course, we are the big bad employer, so any information we give them is suspect. I have considered hiring a social worker as a case manager/advocate for these people, but that position would just be interpreted as another tool of the evil employer out to keep them out of work/make them go back to work in violation of their best interests, so it would be a waste.

We would LOVE if there was an independent agency that would assign a case worker, not to work as an attorney for the employees, but as an advocate to help them understand their rights and access the system correctly. I would gladly pay to fund this service.

Then I realized, if the employer, or a group of employers, funded this employee advocacy agency, employees would think the advocates were biased toward the employers and were just in a sham relationship to deprive them of their rights to serve the interest of the employer.

Now, I do not believe this would be the case. I trust in the professionalism and ethics of mediators, but I do believe that uneducated and single users would form that opinion. Professor Murray's opinion reinforces that conclusion, even though at first glance, he would seem to be "educated."

But, is bigger government the answer. My experience with the EEOC is that they want employers to do MORE than is required by law. We have had success with mediators after complaints are filed, but my goal is to get the employees what they need when they need it, not have a mediator help us fix it after time has run out.

What are your thoughts on this?

The Problem as Cognitive Bias

I've highlighted the sections of the GC's email that raise the problem of reactive devaluation -- our tendency to devalue and resist anything our "opponent" offers to us.  Most attorneys were taught reactive devaluation as first year associates -- "if opposing counsel wants it, you don't." 

As the linked article -- Reactive Devaluation in Negotiation and Conflict Resolution -- notes:

One can be led to conclude that any proposal offered by the “other side”—
especially if that other side has long been perceived as an enemy—must be
to our side’s disadvantage, or else it would not have been offered. Such an
inferential process, however, assumes a perfect opposition of interests, or in
other words, a true "zero-Sum" game, when such is rarely the case in real-
world negotiations between parties whose needs, goals, and opportunities
are inevitably complex and varied.

Combatting Reactive Devaluation in the Workforce

Cognitive biases such as reactive devaluation are not random artifacts of an irrelevant evolutionary past.  They are built-in protections against deception by our friends as well as by our adversaries.  There is only one lasting protection against this bias -- to engage in clear communication with your work force on a daily basis concerning the mutual and complementary interests of employer and employee; to express your belief in your interdependence in word and deed, i.e., by engaging in dialogue and activities demonstrating  benevolent intent; and to willingly listen to one another's complaints, understanding that one man's benevolence is another's bondage. 

As recent legal news touching too close to home (the Heller dissolution) bears out, the workplace will not work if the middle or the bottom collapse.  If human resources are your greatest capital asset, attend to the wisdom of Adam Smith Esq. on Heller's recent failure:

"Our assets go down in the elevator every night."

Take that bromide seriously.

You must give people a persuasive reason to come back "home" every Monday morning.they go down the elevator every night and must have a good reason to come "home" the next day. 

Asking Diagnostic Questions and Using Transformative Mediation Methods

I repeatedly tell my clients what I've learned from the academics who teach negotiation strategy and tactics at elite business schools throughout the country -- 93% of all negotiators fail to ask their bargaining partners diagnostic questions the answers to which would dramatically improve the benefits of the bargain to everyone. 

What's a diagnostic question?  One that would reveal our bargaining partners' needs, desires, priorities, preferences and motivations.  I'm no employment expert, but I have participated in the management of law firm personnel as a partner and have been managed by others throughout my professional life.  As a full-time mediator for more than four years, I have also asked hundreds if not thousands of diagnostic questions to help litigation adversaries understand one another's motivations, to reframe those motivations as non-threatening, or, at a minimum, the result of ordinary human fallibility, and to explore the parties' mutual and complementary interests. I also remind my parties and myself as often as possible that you cannot drill a hole in the other guy's side of the boat without making your own side sink to the bottom of the lake as well.

As the transformative mediators who have been most successful in workplace disputes tell us, our job is to assist the parties in moving from fear and powerlessness to accountability and mutual recognition of the interests of the other.

Empowerment, according to [the fathers of the transformative paradigm] Bush and Folger, means enabling the parties to define their own issues and to seek solutions on their own. Recognition means enabling the parties to see and understand the other person's point of view--to understand how they define the problem and why they seek the solution that they do.

(Seeing and understanding, it should be noted, do not constitute agreement with those views.)

Often, empowerment and recognition pave the way for a mutually agreeable settlement, but that is only a secondary effect. The primary goal of transformative medition is to foster the parties' empowerment and recognition, thereby enabling them to approach their current problem, as well as later problems, with a stronger, yet more open view. This approach, according to Bush and Folger, avoids the problem of mediator directiveness which so often occurs in problem-solving mediation, putting responsibility for all outcomes squarely on the disputants.

Rights and Remedies vs. Interests

It's not surprising that employees just don't seem to "get" the legal rights and remedies company HR departments keep trying to explain to them.  They don't make any sense absent legal training.  

People who are not lawyers simply don't understand why there is a legal remedy for one type of injustice but none for another that feels just as unfair.  Let's take our patchwork of Constitutional protections for employees.  As an life-long ACLU member, I'd be the last to denigrate them.  But we have to understand that we've created a "fair" workplace for only some of our citizens, not all of them. 

Women, people over 40, under-represented minorities and the like, can take the square peg of their unfair work treatment and cram it into the round hole of a viable cause of action.  If an employee does not want to cry "gender discrimination" even though she's being treated badly on the job, or if he has no bundle of legal rights to assert, there is no remedy for a termination that feels (yes, feels) wrongful.  Remember, it took us lawyers quite some time for the legal worldview to "click" and we were immersed in it, drilled in it and eager to learn it.  Employees just want someone to listen to their problem and to help them resolve it.  They don't want to know the wage-hour laws, the need to exhaust administrative remedies with the EEOC and the like.  

Employees and employers have people problems with justice issues, not legal problems with "irrelevant" emotional responses that get in the way of resolution. 

Expressed emotion is the key, not the lock. 

It is we -- the lawyers -- who legalize and monetize injustice, shutting our clients down when they try to explain what the problem really is because it's irrelevant to the legal solution.

If you're old enough to remember the lingering moment in United States history when our educational institutions went from white, on the one hand, to multi-hued, on the other, you'll know intimately how you deal with reactive devaluation.  You get to know one another.  Do this and Kaneesha is not "black" or "African American" but a well-known acquaintance or dear friend.  The same is true for employers and employees.  Create activities in which (alleged) oppressor and (purported) oppressed come together to engage in mutually productive (Habitat for Humanity springs to mind) and mutually enjoyable (basketball?  girls nights out?) activities.  At the holiday party, don't relegate the "underlings" to their own table.  Walk your talk.  Destroy the hierarchy everywhere except where it's actually necessary to get work done. 

I can't describe the benefits of interest-based resolutions over rights-based solutions any better than does my mentor and friend, Ken Cloke, in his brilliant new book -- Conflict Revolution.

[r]ights-based processes . . . generate winners and losers, undermine relationships, and result in collateral damage, . . . Since rights rely on rules, change is discouraged, though not prevented, and conflicts are settled rather than prevented or resolved.

This is not easy work. As a mediator, I know how elusive Cloke’s “outcomes” can be

--  outcomes [in which] both sides win and no one loses, when former adversaries en-
gage in meaningful dialogue and reach satisfying agreements, and when power is exercised with and for each other by jointly solving common problems.

I have, I am afraid, given my GC a problem rather than a solution.  More accurately, I've suggested an altered way of looking at the problem without a great deal of detail about crafting a solution.  Not only could people better versed in employee relations write books on this topic, they have.  Therefore, I'm asking my good ADR blogging buddies to please chime in here for you.

Diane LevinGeoff SharpBlaine DonaisOmbuds Blog? John DeGrooteNancy HudginsStephanie West Allen Gini NelsonTammy Lenski?

 

 

 

Mediation Ideologies and Settling Your Commercial Litigation

Geoff Sharp at Mediator blah blah today asks the first academic question with which I was forced to grapple in my LL.M studies at the Straus Institute -- can you cherry pick transformative mediation techniques to settle commercial litigation?  

I realized I had re-entered the academy the day Joe Folger -- author, with Baruch Bush, of The Promise of Mediation -- said only transformative mediation "works" and its principles  must be strictly followed. 

(drawing courtesy of Charles Fincher at LawComix.com)

Why was this an echt academic moment?  Because the course I was taking from Joe -- "Ideologies of Mediation" -- had, before that moment, been suggesting that all ideologies interfere with durable, party-satisfying resolutions.  Now it seemed the problem wasn't with ideology itself but with the wrong ideology.  Hmmm, felt like law school.  Forget Pennoyer v. Neff.  It's all about this Buckeye case with the exploding boiler.

At the time, my litigator husband was skeptical of all mediators and all mediation techniques.  We took a long walk down a Malibu beach after one of Joe's classes while I tormented him with questions about ways in which mediators could help him settle the case he was then working on -- the World Trade Center insurance coverage litigation. 

Frustrated, I interviewed Folger and Bush -- raising Steve's questions -- which I crafted into a Q&A for mediate.com -- Can Transformative Mediation Work in Commercial Litigation?

Later, Ken Cloke (Conflict Revolution) would tell me "you are the technique," opening the door for me to use mySELF to best settlement effect, remembering old lessons while continuing to learn new ones.  See We Tell Ourselves Stories in Order to Live.

If you wonder why I'm such a joint session fanatic, it's due largely to Joe's and Baruch's teaching as well as my own experience mediating community disputes locally -- the only place true transformative mediation is practiced.  Engage the people with the problem and you're more than half way home.  You just have to be capable of getting the lawyers to trust you enough to give up just a tiny bit of control to help the process happen.

As another mentor -- Richard Millen -- taught me, people don't have legal problems, "people have people problems" which are burdened with justice issues. 

Choose your mediator wisesly, collaborate with him/her and you will not only settle the case, but emerge with a client who got what he/she/it hired you for -- to resolve the commercial problem and  the justice issue that called for the retention of a lawyer in the first place.

And if you're in the UK, check out Justin Patten's post on small companies missing the benefits of mediation -- complete with an offer of a free consultation.