Negotiation Law Blog

Planning on partying like its 1999 to boast morale in your law firm?  Check out tips offered by Morrison & Foester in  Holiday Parties: Morale Boost but Employer Beware back in December of 1999, advice that is as timely today as it was then.  And remember, there's no conflict management strategy better than conflict prevention.  Here then are MoFo's excellent tips, which is just a small excerpt of the good advice to be found on the link above.

What Can Employers Do?

Short of assuming the role of "Grinch" and canceling the holiday party, what can employers do to protect themselves from liability for sexual harassing conduct during holiday parties?

First, employers should make sure that they have a comprehensive, written sexual harassment policy in place, including sexual harassment training in the workplace. Employers might also re-circulate the sexual harassment policy prior to the holiday party, or send a memo to employees reminding employees to act responsibly at the party and expressing a zero tolerance for harassing behavior.

Second, if the budget permits, employers could invite employees to bring their spouse, significant other, or guest. Although such an invitation will not rule out incidents of sexual harassment, it may reduce the likelihood of such incidents occurring, as employees may tend to act more responsibly and in a less flirtatious manner towards each other if they bring a spouse or special friend to the party.

Third, employers should monitor closely any employees who have a history of harassing behavior, or who have been involved in complaints of sexual harassment. If such an employee is observed engaging in any inappropriate behavior, he or she should be asked to leave the party immediately, and the employer should apply appropriate discipline upon the employee's return to work.

Finally, employers receiving any complaints regarding inappropriate behavior at the holiday party should treat such complaints seriously and should take prompt, effective steps to address the complaints. This includes interviewing the alleged harasser and harassee, talking to potential witnesses, and administering appropriate discipline if inappropriate behavior is found to have occurred. By taking prompt, remedial action to address complaints of harassment, employers can reduce and in some cases altogether eliminate liability for sexual harassment.

Beginning today, I'll be available to handle Expedited Commercial Cases for the American Arbitration Association.

As the AAA explains:

AAA offers fast, convenient online claim filing through our AAA WebFile service. In addition to filing claims, clients can make payments, perform online case management, access rules and procedures, electronically transfer documents, select Neutrals, use a case-customized message board and check the status of their case.

Click here for the WebFile page. 

The page below is drawn from a short slide presentation here that walks you through the WebFile service features.

The AAA Commercial Expedited Procedural Rules are here. 

Under the Expedited Commercial rules, the hearing takes place within thirty (30) days of the appointment of the arbitrator; the hearing will ordinarily not exceed a single day; the arbitrator's one-day hearing fee is $1,050; and, the arbitrator is required to render a decision within fourteen (14) days of the hearing.  What better way to end the year than by resolving those small pesky commercial cases with speed and ease.

If you'd like to resolve your dispute entirely online, see the AAA's Online Arbitration procedures here.

From the Los Angeles Daily Journal

November 21, 2008

CONFIDENTIALITY QUESTION HEADED BACK TO TRIAL COURT  By Greg Katz

LOS ANGELES - The state Supreme Court has denied review of an appellate decision that had become a cause celebre for mediators concerned about confidentiality precedents.

Instead, the case will head back for a new trial that includes a dispute over whether a hand-drawn chart, created in a probate mediation and initialed dozens of times by the parties, should have been admissible as evidence.

 A trial court had said that it was not, but the 2nd District Court of Appeal overturned the decision, saying it was in effect a settlement agreement and admissible under Evidence Code Section 1123(c). Thottam v. Thottam, B196933 and B196934 (Cal App. 2nd Dist., filed Sept. 3, 2008).

Many mediators expressed concern that the appellate ruling hurts mediation confidentiality by making draft documents admissible, and the case drew amicus letters from pro-ADR lobbying group California Dispute Resolution Council and others.

But the high court Wednesday denied review. 

Tyna Orren, who won the appeal for Los Angeles-based attorney and political activist Peter Thottam, said she was happy but unsurprised that the court didn't take up the case. 

"The reason mediators don't need to be concerned is that the opinion now tells them precisely what they need to do to avoid what happened in Thottam. Nobody should sign anything which leaves an opening for anything to be divulged," she said.

The 2nd District panel reasoned that the document appeared to be a settlement agreement, and that the parties had signed a premediation agreement allowing for the admissibility of mediation evidence that supported any agreements reached. That qualified the document for an exception in mediation confidentiality statutes.

"Whether or not the document contained all necessary details for enforcement, it certainly contained adequate manifestation of mutual consent to material terms which were capable of being made certain," making it a settlement agreement, Presiding Justice Norman L. Epstein wrote for the unanimous panel.

Justices Thomas L. Wilhite Jr. and Steven C. Suzukawa joined in the opinion.

Beverly Hills-based mediator Victoria Pynchon, who closely followed the case, said it was more about interpretation of the mediation agreement than about confidentiality, that the Supreme Court has vigorously defended the state's confidentiality laws in the past.

Attorneys should rely strictly on those laws when drafting mediation agreements, she said. "Just quote the statute or refer to the statute. Don't get fancy."

Stephen L. Kaplan of Laguna Niguel's Hicks, Mims, Kaplan & Burns, who had petitioned for review, said he was disappointed but expected that the new trial would go in favor of his clients, as the first one had.

The only difference: "There'll be one more piece of evidence," Kaplan said.

greg_katz@dailyjournal.com

I kicked off the Thanksgiving  holiday season last year by having an argument with my friend and neighbor the rocket scientist about extraordinary rendition and the effect of immigrant workers on the economy. 

I knew I'd lost all sense of perspective around midnight as I continued searching for and emailing Tony articles that proved me right, while Mr. Thrifty snored softly beside me, intermittently awakening to say "I thought you said you were going to go to sleep?"

Embarrassing, but true.

This week, tens of millions of people will be sitting down to Thanksgiving dinner with friends and family they haven't discussed politics, sex or religion with for at least one full year.     

For those of you who find you just can't help yourself, I provide the following resources. 

First, I give you Ben Stein's Top Ten Tips for Having a Business Conversation -- appropriately entitled "How Not to Ruin Your Life." They will serve you at the Thanksgiving table every bit as well as they will save you from self-destruction at your next firm retreat.  

If you simply cannot avoid a political conversation this Thanksgiving, do yourself a favor by taking a brief look at the Public Conversations Projects' Eleven Ideas for Making a Hard Conversation Work before the relatives arrive. 

Finally, as much for myself as my for readers, I give you my own personal top six tips for Thanksgiving Day conversation.    

1.  Before diving in to a spirited dialogue about the use of fetuses for stem cell research with your second helping of mashed potatoes, ask yourself whether you are emotionally ready to resist the strong pull to hit your conversational partner over the head with a turkey leg.  If not, open your mouth only to say something kind or grateful or to shove another helping of stuffing into it.  

2.    If you just can't help yourself from responding to Aunt Gertrude's (somewhat drunken) assertion that "torture is too good for the terrorists at Guantanamo," any of the following will do.

Can I pour you another drink?

Uuh huh, uh huh, uh huh

go on

tell me more

how do you feel about that?

I couldn't have said it better myself; do let me call you a taxi.

3.  For the academically minded,

I have a couple of dozen articles on that issue.  If you'll give me your email address, I'll pass them along to you.

4.  For the cousin from Alabama, 

I'd love to get Rush Limbaugh's point of view on that -- please do drop See I Told You So  by the house before you leave for Montgomery tomorrow.

5.  Avoid stereotyping people from Montgomery, Alabama.

6.  As the Public Conversations Project advises,

Thinking before speaking is a good idea.

Have a great Thanksgiving and remember --Ben Franklin thought the National Bird should be a turkey! 

Think twice. 

Then think again and offer Aunt Gertrude another piece of pumpkin pie.

Click here for more Cartoon tips from Slowpoke thanks to David Giacalone of f/k/a.

There's an infinite regression angle to this.

Some attorneys and mediators make light of the power of the apology ("it's only about money").  My education, training and experience consistently suggest otherwise.

Today, we learn a lesson in heart-felt apology from Larry Bodine for a post I hadn't seen, but which Bodine himself admits was anti-Semitic.

"Elevator Pitch" Post Deleted I sincerely apologize for the crude and offensive "Elevator Pitch" post I put online last week.  In the clear light of morning, it is clear that it was anti-Semitic and repellent.  I want to thank all the people who commented and called me about it; I listened and took what you said to heart.

If you read on here you'll see that Bodine did not simply say "I'm sorry."  He removed the admittedly offensive post; disowned it; and, empathized with those who found it offensive by sharing his own family's WWII imprisonment story.

As my Second Track International Diplomacy Professor Brian Cox has written in his book Faith-Based Reconciliation

Words that heal include expressions of caring, concern, gratitude and affirmation.  [I]n demolishing the walls of hostility, we must be prepared to examine our own pattern of spoken words and embrace the practice of ethical speech. . . .

Because Bodine himself admitted the anti-Semitic nature of his post, it falls into the category of an identity-based conflict with some or all of his readers.  Though speaking from a religious or "faith-based" viewpoint, I always found Cox' prescriptions for resolution to work equally well from the point of view of secular humanism.  As Cox explains:

A faith-based reconciliation framework applied to an identity-based conflict . . . consists of six basic elements:  imparting moral vision, building bridges between estranged groups, a peace accord, advocacy for social justice, political forgiveness, and healing deep collective wounds.

More particularly, Cox recommends the following specific steps:

1.  Sharing life journeys and building common ground.

2.  Sharing perceptions of the conflict.

3.  Engaging in problem solving.

4.  Sharing how one has caused offense to the other.

5.  Exploring each community's narrative of history and perception of historical wounds.

If you read Bodine's spontaneous apology, you will see all of these elements contained in it.  This is not surprising because apology and attempts to re-build interpersonal bridges are hard-wired into us as toddlers.  As I wrote in "Shame by Any Other Name,"

Shame . . .  "acts as a powerful modulator of interpersonal relatedness and . . . ruptures the dynamic attachment bond between individuals." 30  When an individual has broken this bond, he wishes to recapture the relationship as it existed before it turned problematic. 31 Toddlers shamed by their mothers, for instance, naturally initiate appeals to repair the momentary break in the emotional bond resulting from the shame-inducing behavior. 32 This process is called self-righting. 33 It is natural and universal. 34 The shamed toddler reflexively looks up at and reaches toward his mother. 35 Even a preverbal child will spontaneously express this need to be held in an attempt to reaffirm both self and the ruptured relationship, to feel restored and secure. 36

A healthy and responsive mother accepts and assuages the child's painful feelings of shame, enabling the toddler to return to a normal emotional state, one in which love and trust are ascendant. 37 If the caregiver is "sensitive, responsive, and emotionally approachable," especially if she uses soothing sounds, gaze and touch, mother and child are "psychobiologically reattuned," the "interpersonal bridge" is rebuilt, the "attachment bond" is reconnected, and the experience of shame is regulated to a tolerable emotional state. 38

This may all seem excessively academic.  The point is that we all trespass on the feelings of others; those feelings are critical to our connection with one another; our connection with one another is fundamental to our individual well-being and our survival as a species; the urge toward reconciliation is therefore natural, as are our desire to be forgiven, our spontaneous expressions of remorse, our attempt to explain and normalize our bad behavior (we are all fallible and we have all suffered harm)  and our fellows' willingness to forgive, particularly when we bare ourselves and our histories to one another in the course of our effort to re-establish what joins us and to move beyond that which divides us. 

And for that lesson, we owe thanks to Larry Bodine this evening.

Excerpt below.  Full story here.

FORT PIERCE, Fla. – Authorities say an 11-year-old boy hit his mother in the head with a saw and then offered her $5 not to call police.

H/t to @SCartierLiebel in my Twitter network.

I have recently been asked by several lawyers to write a few posts on mediation and negotiation terminology not only because some attorneys are unfamiliar with these terms, but also because different mediators and negotiators use them to mean different things. 

Mediators, lawyers and negotiators who read this post are invited to add, correct, object, or suggest further refinements and to add their thoughts on further strategic and tactical uses and perils of the impasse-busters we discuss today - the bracketed offer and the mediator's proposal.

And because my readers may find this post as dry as bones, I once again offer the X-rated "Negotiation Table" as pretty #%$@ true and funny  (think Ari Gold). 

Bracketed Offer:  Party A makes an offer to bargain in the zone he wishes to see the negotiation move to.  This is often used when neither party wishes to step up to the line of probable impasse and it can also be used to re-anchor the bargaining zone.  Quite simply, Party A offers to bargain in the range of, say, $2 million and $3 million.  He offers to put $2 million on the table if party B is willing to put $3 million on the table, i.e., "I'll offer to pay you $2 million if you'll offer to accept $3 million to dismiss your suit."

If party B does not accept the bracket, party A will not be "stuck" with having actually placed $2 million on the table when the next exchange of offers and counter-offers begins.

Responding to a Bracketed Offer:  Party B can:  1.  respond with a counter-bracket, i.e., I'll make an offer to accept $3.5 million in settlement if you'll put $2.5 million on the table; or, 2.  refuse the bracket and ask for an unbracketed counter.

Mediator's Proposal: 

The basics:  the mediator chooses a number for the parties, making an "offer" to settle for, say $2.3 million which the parties are free to accept or reject.  It is a double-blind "offer."  If either party rejects the "offer" neither party knows whether the other accepted or rejected.  Acceptances are communicated only if both parties accept, in which case they have a deal.

The circumstances:  The parties should seek a mediator's proposal only when they have reached a hard impasse.  A hard impasse exists when both parties have actually put their true bottom line on the table or their next to the bottom line and they see no hope of it closing the deal.

The purpose:  Both parties believe they could convince their principal  to accept a deal that is more than they wanted to pay or less than they wanted to accept, but they cannot convince their principals to put $X on the table or accept $Y.  They hope to use the authority of the mediator to sell the deal to their principals.  If they are the principals, they are willing to settle for a number lower or greater than planned but not willing to close the bargaining session having made such a concession, which would have the effect of setting the floor or establishing the ceiling of all future bargaining sessions.

The Mediator's number:  I do not know whether there is a general practice among mediators about how they choose the number proffered.  When parties ask me to make a mediator's proposal (I rarely recommend one in the first instance) I explain my practice as follows:  When I make a proposal I am not acting as a non-binding arbitrator or early neutral evaluator.  In other words, my proposal is not a reflection of the value of the case.  The number I propose will be a number that I believe the Plaintiff is likely to accept and the Defendant is likely to pay.

In rare instances, the parties wish to continue bargaining in the event a mediator's proposal is not accepted by both parties.  I have permitted this in a few circumstances after explaining to the negotiating parties that it often causes resentment on the other side because they feel as if the party who wishes to continue negotiating is unfairly attempting to use the mediator's number as a new bench-mark from which to bargain. 

I highly recommend against continued bargaining after the rejection of a mediator's proposal on the day of the mediation.  It should serve as a hard stop because the parties respond to it as an ultimatum.  That's part of its power.  Take it or leave it. 

Just as you would not continue bargaining after indicating that you were putting your last dollar on the table, you should not continue bargaining (during that session) after the mediator has, in effect, put both parties' anticipated bottom lines on the table for them.

The management of the Obama campaign among the lowest level operatives (i.e., me making cold calls and walking precincts) reminded me of the way in which every organization squanders its resources.

I forgive the Obama campaign its trespasses because it was run by a dedicated, exhausted, physically ill cadre of poorly paid tweens -- tweens in this case being young people in that awkward period between University and real life or University and graduate school (listen to This American Life's spot-on audio-documentary on College Voter Registration Drives here).  In any event, the Field Organizers whose goal it was to make X number of telephone calls and knock on Y number of doors were young and inexperienced in using human resources of any kind other than perhaps the counter-staff at the local McDonalds.

So it was that during the course of the last days of the campaign in Henderson Nevada that I met a growing number of 40+ volunteers who had given up going to the campaign office after walking precincts because its management style was anti-Obama -- top down, inflexible, and numbers rather than people-driven.  Two of the three campaign buzzwords -- inspire and empower -- were lost in the tumult of real life.

Law firms, unlike local political campaign offices, are presumably being run by mature adult professionals who understand that which Obama Field Organizers could not.

If it takes 1,000 phone calls to recruit a single volunteer (or lavish summer programs; sky-high salaries; and, signing bonuses for first year associates) it's best to treat that volunteer or freshly minted lawyer like the valuable commodity they are.  When the local campaign head or firm manager rages out of his office and browbeats his human resources into (temporary) submission, he might as well be keying his own new Bugatti Veyron.

I won't repeat most of what Jordan Furlong has written in his terrific post The Perils of Squandering Talent (a must read ) but I will give you his bottom line:

the legal profession [may be] at risk of becoming the North American automobile industry, about to be hammered by market forces we never prepared for[.] Are our clients, fed up with the cost of tapping our traditional resource, ready to cast about for alternative sources of legal talent? And does your firm in any way foreshadow General Motors, a well-known name poised to collapse from short-term thinking and a failure to give customers what they want?

Why is a negotiation blog put to the task of examining the well being of the profession as a whole?  Because the negotiated resolution of disputes requires innovative, value-creating "out of the box" thinking as does the health of our profession in the 21st Century.  That's why I've begun a new post category - Outside the Box - so that we can continue exploring those issues critical to our survival as legal professionals.

It's official!  I've joined the faculty of Solo Practice University™

Huh?

I don't see that University in any tier of the U.S. News and World Report's Law School Rankings!  And if it's not ranked for goodness sakes, does it even exist?

Yes, Virginia, a school for legal practitioners does exist "as certainly as love and generosity and devotion exist, and you know that they abound and give to your life its highest beauty and joy."

O.K.,Solo Practice University™ is not Santa Claus but it comes pretty darn close.

Solo Practice University™ is a revolutionary new web-based educational community that picks up where your legal education left off.

Learn from some of the most progressive lawyers, marketing pros, technology consultants and legal business giants how to:

* Plan, build and grow your private practice
* Differentiate yourself from the competition
* Attract and engage new clients more easily

… and much more. They just can’t teach you that in law school.

Need to transform your marketing strategy in these troubled economic times?  You can learn  not just how to blog your way into your desired market, but how to leverage what you love into how much you make from Blawgfather and SPU Professor Grant Griffiths.

Wondering whether to put rocket fuel into your networking vehicle by adding online social media?  You couldn't find a better teacher than SPU Professor Toby Bloomberg who has over 15-years of traditional strategic marketing experience and four years with social media through her company Bloomberg Marketing/Diva Marketing.

Are your clients peppering you with questions you can't answer about their rights and remedies in Cyberspace?  Then it is Christmas, Hannukah and Kawanza all rolled up into one. Brett is a patent attorney and frequent national speaker on internet and intellectual property law. Professor Brett Trout is teaching a course on intellectual property in cyberspace.

Whether your presence in Cyberspace is solo or in connection with a group practice, let SPU Professor Stephanie L. Kimbo help you hang out your virtual shingle. 

Don't yet know your way around the courtroom?  Thinking of adding criminal defense to your practice as a growth industry in troubled economic times?  Need to ask questions of a seasoned trial attorney that would make you feel inadequate to ask of your supervising attorney in the PD's office?  There's no better winter holiday gift than SPU Professor Scott Greenfield's semester-long course “The Practice of Criminal Defense - The Road to Perdition.”

Still waiting to take that first deposition?  Taking your 20th and can't stop worrying that the Court Reporter thinks you're just a tiny bit pathetic?  Don't know how to deal with obstreperous opposing counsel?  Afraid to run a line of killer cross-examination to re-position your case for summary judgment or settlement?  Wish you'd gotten the expert to admit that he'd consider the moon to be green cheese if his attorney had told him to assume it? (yes my partner did). 

Then you'll want to sign up for my Deposition Skills course based upon the NITA techniques I've taught for more than a dozen years and my own OJT during a 25-year commercial legal practice.

Let your real legal education begin at Solo Practice University™

Excerpts from Kullar v. Foot Locker Retail, Inc. below.  Comment will follow.

[T]he fact that the settlement was reached during mediation to which Evidence Code section 1119 applies does not eliminate the court’s obligation to evaluate the terms of the settlement and to ensure that they are fair, adequate and reasonable. If some relevant information is subject to a privilege that the court must respect, other data must be provided that will enable the court to make an independent assessment of the adequacy of the settlement terms.

[T]he fact that communications were made during the mediation and writings prepared for use in the mediation that are inadmissible and not subject to compulsory production does not mean that the underlying data, not otherwise privileged, is also immune from production. (Evid. Code, § 1120 [“Evidence otherwise admissible or subject to discovery outside of a mediation . . . shall not be or become inadmissible or protected from disclosure solely by reason of its introduction or use in a mediation . . .]; Rojas v. Superior Court (2004) 33 Cal.4th 407, 417; Wimsatt v. Superior Court (2007) 152 Cal.App.4th 137, 157-158.)

Foot Locker’s payroll records, for example, if relevant to the quantification of the claims being settled, are subject to discovery and may be introduced in opposition to the settlement even if they were disclosed to class counsel during the mediation, and even if class counsel was shown only a summary or analysis of those records that is not itself subject to production because prepared for use in the mediation.

                           *                           *                      *

Following the opportunity for limited discovery, the trial court should redetermine whether the proposed settlement is fair, adequate and reasonable. The court may and undoubtedly should continue to place reliance on the competence and integrity of counsel, the involvement of a qualified mediator, and the paucity of objectors to the settlement. But the court must also receive and consider enough information about the nature and magnitude of the claims being settled, as well as the impediments to recovery, to make an independent assessment of the reasonableness of the terms to which the parties have agreed.

We do not suggest that the court should attempt to decide the merits of the case or to substitute its evaluation of the most appropriate settlement for that of the attorneys. However, as the court does when it approves a settlement as in good faith under Code of Civil Procedure section 877.6, the court must at least satisfy itself that the class settlement is within the “ballpark” of reasonableness. (See Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499-500.)

While the court is not to try the case, it is “ ‘called upon to consider and weigh the nature of the claim, the possible defenses, the situation of the parties, and the exercise of business judgment in determining whether the proposed settlement is reasonable.’ ” (City of Detroit v. Grinnell Corp., supra, 495 F.2d at p. 462, italics added.) This the court cannot do if it is not provided with basic information about the nature and magnitude of the claims in question and the basis for concluding that the consideration being paid for the release of those claims represents a reasonable compromise.

By remanding we do not suggest that the proposed settlement ultimately may not pass muster. We hold only that the trial court may not finally approve the settlement agreement until provided with sufficient information to assure itself that the terms of the agreement are indeed fair, adequate and reasonable.

Simply great post on Obama's oratory from About.com thanks to Grammar Girl in my Twitter network.  Excerpt below from Barack Obama's Secret for Stirring a Crowd:

Oh sure, this may look as easy as one, two, three, but the truth is it takes more than a flag-draped stage and a run of tricolons to turn an ordinary speech into great oratory. Also helpful is the occasional series of four--a tetracolon ("democracy, liberty, opportunity, and unyielding hope")--along with effective repetition, a bit of alliteration, and a few conventional metaphors. The insistent use of the first-person plural ("we," "us," and "our") invites identification. And the right combination of anaphora ("It's the answer") and epiphora ("Yes we can") can lift a crowd off its feet and land a speech in the history books.

But that's not all. About 2,000 years ago, Cicero taught us that what makes or breaks a speech is effective delivery, which includes the qualities of dignity and grace:

All these parts of oratory succeed according as they are delivered. Delivery . . . has the sole and supreme power in oratory; without it, a speaker of the highest mental capacity can be held in no esteem; while one of moderate abilities, with this qualification, may surpass even those of the highest talent.
(De Oratore)

So to the list of Obama's persuasive skills add standing tall, speaking forcefully, and exuding confidence.

Oh, and one last thing. Especially in troubled and uncertain times, it never hurts to extend the promise of change, the prospect of hope, and the reminder that we're all in this together.

And if you haven't yet seen this hilarious video about 20-somethings' malaise post-election, click on play immediately!

Here are my upcoming speaking and teaching engagements in November and January!

I'm baaacccckkkkkkkkkkkkkkkkkkkk!!!!!!!!!!

Judicate West Neutral and IP ADR Mediator and Blogger Victoria Pynchon.

Coach/Instructor, National Institute of Trial Advocacy: Building Trial Skills
Location: Loyola Law School Los Angeles
City: Los Angeles, CA
Dates: 1/2/2009 - 1/8/2009
Director: Williams, Gary C.

This is a week-long intensive program for new and/or experienced attorneys who need to learn/brush up on their basic trial skills.  If you can take the time, your entire practice will benefit from the experience.

BrightTALK Intellectual Property Summit here! on November 11, 2008 Webcast Free

Negotiating a Settlement in IP Litigation

   12:00 pm
   Presenting Victoria Pynchon, Judicate West, CPR, Settle It Now, IP ADR Blog

And coming soon!  Deposition Skills Training (NITA techniques) at Solo Practice University!!

There appears to be no small amount of blame to spread around for the Republican's loss at the polls, much of it centering on Sarah Palin, as if she hadn't been hand-picked and thrown out to American conservatives as a "Hail Mary" pass.

Because scape-goating gives rise to oodles of litigation every year, let's talk briefly about having difficult conversations in which everyone "takes their part" in the loss experienced, failure suffered or mistake made.  

Time to pull out your hopefully dog-eared and battered copy of Difficult Conversations: How to Discuss What Matters Most by Douglas Stone, Bruce Patton, and Sheila Heen, reviewed by the good folks at BeyondIntractability.com not too many years ago.  As the Conflict Research Consortium Staff reviewers wrote, Difficult Conversations recomments that we:

start conversations from the perspective of a "third story" that describes (or at least acknowledges) the difference between the parties views in neutral terms. The opening should then invite the other party to join in a conversation seeking mutual understanding or joint problem solving.

Listening is a crucially important part of handling difficult conversations well. It helps us to understand the other person, and the feeling of having been heard makes the other more able to listen themselves. The key to being a good listener is to be truly curious and concerned about the other person.

Techniques that can help you show that care and concern include asking open questions, asking for more concrete information, asking questions that explore the three conversations, and giving the other the option of not answering.

Avoid questions that are actually statements. Do not cross-examine the other. Another technique is paraphrasing the other person to clarify and check your own understanding.

Acknowledge the power and importance of the other person's feelings, both expressed and unexpressed.

Each person must recognize that her views and feelings are no less (and no more) legitimate and important than anyone else's, and she is entitled to express herself. Once you have found the courage to speak, start by saying explicitly what is most important to you. Do not use hints or leading questions. 

Share the information, reasoning and experience behind your views. Help the other person to understand you by having them paraphrase, or asking how they see it differently.

Blame statements should be reframed in terms of contributions [of all parties to the trouble at hand]. You can't move the conversation in a more positive direction until the other person feels heard and understood."

Naming the dynamic. When the other party persistently puts the conversation off track, for instance by interrupting or denying emotions, explicitly name that behavior and raise it as an issue for discussion. This makes the other person aware of the behavior, and it brings out more unexpressed thought and feelings.

Problem solving is the final step. First, remember that it takes two to agree. The other party needs to persuade you just as much as you need to persuade her. Gather information and seek missing information. Ask what would persuade the other person.

Tell them what would persuade you. Ask them what they would do in your position. Try to invent new options for dealing with the problem, and consider what principles could guide a fair solution.

When the parties cannot find a mutually acceptable solution, each must decide whether to accept a lesser solution, or to accept the consequences of failing to agree and walking away. When a person does walk away, they should explain why, describing their interests, feelings and choices.

Re-framing the GOP's loss?  How about this?  The Dems and the GOP are natural correctives to one another every four years.  Things change.  Like the economy.  And the culture.  New generations arise to replace the old ones.  We evolve.  We also fail, stumble, falter, lose courage, miss opportunities, and resist change.

We Americans believe in the benefit of adversarial processes to course correct; to shine a light on the problems we might otherwise blind ourselves to; and, to see which ideas survive the harsh illumination of debate.  The transition of power from one party to another is the way we do things.  Instead of casting blame, we might all take a look at our personal and organizational contribution to things as they currently are -- which is none too good for anyone. 

Bottom line?  There's simply no advantage to be achieved by blaming Sarah.

What did I learn on the campaign trail?  Other than breaking a lifetime phobia of the cold call  I re-learned what I already knew from my mediation training and experience:

1. share stories (not opinions)
2. look for similarities rather than differences
3. listen with a compassionate heart
4. remember that behind every accusation and stated fear is a plea for help
5. create/expand common ground
6. be respectful of other people's point of view
7. assist people in making new or different decisions only when they ask for it

It was hot, really hot, trudging the blacktop separating dozens of apartment buildings in Henderson, Nevada the day before the election.  We volunteers had lists of people who were probable Obama supporters, but many of whom wavered back and forth between McCain and Barack.  If the person at the door said s/he was voting for McCain, I wished their candidate luck and moved on.  We were getting supporters out to vote, not trying to convince McCain voters to change their minds.

(campaign headquarters, Henderson, Nevada)

I probably looked pretty dissheveled and blown out from the heat when, shortly after noon, I knocked on the door of Building 12.  A gray-haired caucasion sixty-something woman in a faded house coat opened the door; an African-American boy around 10 clinging to her side. 

"I just decided last night to vote for McCain," she said, but she didn't close the door.  I was about to wish her candidate "good luck" when she said "my son keeps trying to talk me into voting for Obama but he scares me."  She didn't appear to be asking me to go my way.

"Are you worried about national security," I asked, as the kid drifted back to the television set in the darkened living room.

"No, no," she laughed, "I just think he must hate America.  I'm concerned about health care and education -- you know -- I was a foster child from the time I was two years old -- but that Michelle, she seems like a radical to me."

"I'm concerned about health care myself," I replied, telling a story about one of my husband's former partners who, in the wake of his law firm's collapse, facing imminent surgery for a recently diagnosed cancer" is suddenly without insurance coverage.  With a pre-existing condition.  "Just what Obama's mother had to worry about when she was dying of cancer," I said, "whether her health insurance would cover her medical bills because her carrier was claiming she had a pre-existing condition."

Sheila, that was her name, clucked her tongue, and talked again about what it was like growing up without parents.

"Barack had it slightly better than you," I acknowledged, "he had a mother."

"And grandparents," she quickly added.  "That's a family.  He had a family. It makes all the difference in the world."

We talked more about her childhood - her alcoholic mother and father; her father's refusal to identify her own grand-parents for the foster parent agency under whose jurisdiction she spent her difficult childhood.  I told her how my dad had left us when I was nine, but also how he'd gone from high-school drop-out to attorney and finally judge because that was the kind of opportunity America offered and continues to provide.

We'd nearly come to the end of our chat when Sheila asked me how I'd become a lawyer with just a single parent.  "Grandparents," I'd responded, smiling, glancing in at her foster son, to whom she could only rightly be called a grandmother at her age.

And why was I going door to door for Obama in this heat, she finally asked, leading me to tell the story of my own early grass-roots activism; my service with Vista, the American Peace Corps, during the "second wave" women's movement in the early 1970's. 

And then, for no reason I can put my finger on I added, "those experiences and 15 years of sobriety."  She lit up then.  "I'm a friend of Lois'" she allowed -- the politely "anonymous" way to say she's a member of Alanon.

"Darn you!" she said, "now I'm going to change my mind again and vote for Obama.  Can't wait to tell my son that someone finally convinced me."

Funny, but I wasn't really trying to convince her of anything.  We were women talking over the fence after hanging our laundry or putting our kids to bed.  We connected.  We had personal history in common with one another and with candidate Obama.  We had shared goals and dreams.

Here's the thing.  You can't make this stuff up and you can't pursue this type of communication for the purpose of changing someone's mind.  But if someone implicitly asks for your assistance in making an important decision, and if your goal is to help them make their decision instead of the decision you want them to make, you will, at a minimum, create common ground.  And once you've done that, you can accomplish something constructive together, whether that accomplishment is what you had in mind in the first instance or not.

This is what living serenity means.  You commit to your goal with all of your heart and passion but in doing so you give up achieving the result in favor of helping others empower themselves to make the decision that is right for them.  

This is what we mean when we pray: god grant me the serenity to accept the things I cannot change;
the courage to change the things I can; and, the wisdom to know the difference.

I don't know if Sheila voted for my candidate or not and frankly I do not really care.  I believe that each authentic human connection possesses potential for the transformation of all human experience and that transformation is beyond my ability to imagine. 

And that is what I learned and re-learned on the campaign trail.  I'm hoping -- and will work toward -- an American future with even greater compassion, authenticity, hope and action than I have already been privileged to live. 

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