Negotiation Law Blog

For more than a week, I have been narrating a story of loss from the 1992 recession and my own recovery from that loss (or, more precisely, those losses).  Had my narrative been a legal one, I would have been required to analyze my rights (if any) against the blameworthy and the remedies available to me according to the character of the blameworthy act and the nature of my loss.

As Professor Robert Rubinson has written in Client Counseling, Mediation and Client Narratives of Dispute Resolution, every legal narrative

starts, with [a] Steady State [the "Status Quo"] and the Trouble that upsets [it]: The world is in order. People are acting towards each other as they should, or at least no one is straying too far from the norm. And then . . . something happens. One party claims that another party did something to generate disorder, to make the world out of joint. In other words, Trouble disrupts the Steady State.

My story - at least the surface of it - was one of a (1) successful legal career (2) disrupted by the (3) Recession.  A bad legal narrative because you can't sue the economy (at least not yet). 

Rights and Remedies

If I'd wanted to assert a legal right and claim a legal remedy, I would have been required to survey the scene to locate someone whose activities were:  (1) wrongful; and, (2) a substantial factor causing my termination.  You might recall that I was told that my layoff had nothing to do with my performance and was solely caused by economic conditions firm-, industry-, state- and nation-wide.  This was kind of the firm to say to me but it  couldn't have been strictly true.  Although I wasn't among the first group of layoffs, I was in the second.  Third and fourth rounds would follow.  Some people, however, would not be laid off at all. 

So though the recession was the immediate cause of my layoff, there had to be others, many of them "rightful" but some of them possibly wrongful. In fact, more than a few of my colleagues suggested (for reasons I will not recount here) that I had a "pretty good cause of action" against the firm.  

The litigation story always assumes one party was wronged and the other was a wrongdoer.  It also assumes that one party's factual account of events is accurate ("right") and the other party's is inaccurate ("wrong").  As Professor Rubinson explains, litigation is a search for the "real source of Trouble."  Furthermore, 

[t]he assumption that one party is right and one party is wrong is not open to question; litigation is based on a shared norm among all participants (litigants, judge, jury) that only one of the litigants is right about "what happened." Since there is only one true source of Trouble, parties expend Efforts to demonstrate to the finder of fact that their story is the "right" one.

The parties are successful and the adversarial system is justified when

the judge (or jury) decides that the origins of Trouble are as [one] party claims [and judge or jury] Restores the Steady State by granting relief to the party whose version of Trouble is the right one.

I may well have had a colorable or tenable or "fair" or "good" or even "excellent" legal story that would have justified using the adversarial system in an effort to regain what I had lost -- money and benefits. But I haven't told a legal story this past week, I've told a mediation story.

The Working Parts of the Mediation Narrative

Though "mediation as settlement conference," has long been part of the legal "story" in which the search for "right" and "wrong" remains paramount, as a true alternative to the adversarial process, mediation,

rejects the idea that "what happened" is a unitary or stable "truth" to be found "out there."

Instead, a primary - if not the primary - thrust of mediation is that conflict resolution entails some recognition on the part of disputants that "what happened" is informed by perspective [requiring the disputants to] "begin to acknowledge another view of the situation," or [help the disputants understand that] two [good faith but] contending perceptions coexist" . . .

According to Rubinson,

the Story of Litigation [assumes] that conflict [itself is] a breach of the norms of conduct. . . [I]n mediation, conflict is a norm of conduct, a necessary byproduct of humans having distinct experiences and personalities and needs. Conflict is thus not necessarily a disruption of the moral order, and, indeed, can sometimes be productive . . . 

The mediation narrative, says Rubinson, is set in the present, rather than the past, a present in which the parties engage in a cooperative effort to resolve the conflict in a way that meets the current needs and desires of the parties instead of "restoring" them to a state they enjoyed in the past.  This story, says Rubinson, "does not generate a binary moral universe that divides the good from the bad, but, rather a universe that values collaborative striving to achieve common ground and resolution."

Mediation accomplishes this goal by

embracing the notion that perceptions of the world (including perceptions of the actions of others) are unstable, thus enabling parties to appreciate alternative perspectives as a way to promote resolution of conflict. .  .

In the story of mediation, the "Trouble" and its "Cause" are not capable of being "discovered" and not worth the effort to "prove."  Though the Mediation Story rejects portrayals of one "side" as the "victim" and the other as "oppressor," it commences with both parties characterizing the other as the cause of their distress.  Instead of determining which party is to "blame" however, the mediation story requires the parties acknowledge one another's contradictory experiences as authentic; asks each of them to take responsibility for whatever part their own conduct might have contributed to the "Trouble" and resolves with an agreement in which the parties' present and future desires and needs are sufficiently satisfied for each to believe the resolution reached is the best they can, in good faith, do. 

These are the broad strokes.  The specific ways in which the mediation story can be accomplished (and its benefits and limitations) tomorrow.  The roles of interest-based and competitive negotiation in the mediation story later this week.

The Life

It is 1994 and this is the view out the window of the house I am renting in Echo Park. 

At some point during this year, I moved from the basement of this house (tricked out as a college dorm room studio) to the small one-bedroom upstairs because my friend and roommate fell in love; married and left me in her Echo Park bungalow for an extremely reasonable rent.   I'd lost my condo to foreclosure and my credit cards to bankruptcy. 

I can see my 30-day "chip" in this photo, hanging from the black lamp in the corner.  The longest thirty days of my life. 

Listen, we all have something to recover from - if we're very lucky.  This was my recovery house.

I was working in Westwood, going to my writing classes and spending a lot of time in rooms like this.

There were no blogs in 1994 so I was writing a lot of letters, like this one:

I was at a loss late this afternoon, after all the company was gone and my obligations fulfilled. That restless, listless, nowhere feeling that usually precedes panic or despair.

Fortunately, the dusk and the sweet scent of the night blooming jasmine drew me outside, where, without a thought, I fell to my knees and started weeding the garden. Stooping and kneeling and breathing and weeding and moving and stooping and kneeling and breathing, repeating to myself, like a mantra, "this is enough, this is enough, this is enough. I don't need to achieve or become or produce anything more than this. This tending, this caretaking, of what is directly before me, is enough."

Pulling each tall, spindly, red-rooted weed with its wicked serrated leaves, out of the rock path leading to the compost heap, away from the rosebushes, clear of the artichoke plot, off the dirt-packed steps curving down by the bare wisteria vines, my finger-tips touching the cool damp soil around the stem of each one, pulling it slowly until I feel the tug of the earth give way and the dirt fall from the weed's feathery white roots, clearing first this patch of garden and then that one, the green piles of limp weeds growing as I move about the yard, knowing I can't do it all today, thinking I'll just clear one more area before the sun goes down, until a clean, blue strip of the horizon turns pink and magenta, vermillion and then blue-black, the lights of the city come up in the valley below me and the garden turns dark and rustling in the warm breeze.

At some time during this work, my head stopped yammering about how I should be doing something else, something more productive -- starting a new story or planning some activity that will start my new life. I just let that cranky, complaining voice yammer on while I continued to move and breathe and stoop and kneel and weed and pray, "I am doing your work, God. I am tending your garden," until a new voice said, "just as the dusk and the jasmine drew me effortlessly out into the yard to pull these weeds, I will move toward the next story and the next plan and the next activity, when it is time, when it is right, when it is effortless."

Move, stoop, kneel, breathe, pull, pray . . .

I wrote the first short story I'd written in more than twenty years during this time (Dangerous Places) and it would later be published in an online journal named Kudzu, which appears to have gone out of business just this year.  I was also writing poetry, some of which would later be published in Poet Lore, The Ledge, Kalliope, and Transformation, A Journal of Literature, Ideas & the Arts.  I also published one literary non-fiction piece in the Southern New Hampshire University Journal.  Eventually, I'd become part of Law Professor James Elkins lawyer-poet project, Strangers to Us All:  Contemporary Lawyer Poets.

In 2004, I celebrated ten years of sobriety and founded the r.kv.r.y. quarterly literary journal which I continue to edit to this day (and of which I am very proud)

The Law

I was recruited in '94 to come back to BigLaw and for the first time ever had the courage and conviction to refuse.  I had time - precious time - and enough money to suit my newly reduced needs.  My life and my heart were full.  I was, frankly, afraid to return.  I had too much to lose.

Eventually, however, I did return, working on larger and more sophisticated cases than I ever had before.  Still, something continued to be missing.

Next:  Mediation and why any of this matters to negotiation.

I'd always told myself  I was not interested in or affected by the trappings and perquisites of high-end law firm life.  But those benefits - first class travel; upscale hotels in world-class cities; and, the deference of maître d's, personal trainers and the like  - tends to skew one's view of one's place in the world.

So though I'd just been an associate, I had tasted the rewards of property and prestige.  And I represented people with a load of worldly power.  By the time I was laid off in 1992,  I'd managed to acquire the illusion of what more spiritually minded people tell me are the three primary obstacles to ordinary happiness:  property, power and prestige.

And man, do I need a drink at the end of the day because here come two horsemen of the apocalypse.  

Foreclosure and Bankruptcy.

Then there was my personal life.  Just as the career was cratering, my  post-divorce, mid-life European motorcycle-riding, Morrissey-listening, unemployed artist boyfriend, packed up his canvasses, paint brushes and acrylics and moved back to Holland.

That Lit Major Thing that You Do What You Do to Me

I have said on far more than one occasion that law school is the default career-path for the liberal arts major.  We were philosophy, political science, literature, sociology, and drama majors. If we'd had the guts (or talent we wished we had) we'd be singing, dancing, acting or writing for a living.  But we weren't.  We were lawyers.  Which meant, among other things, that we had precious little time for anything other than the law.

But here's the thing about calamity.  It tends to wake you up.  

I was talking on the telephone to a friend, bemoaning my newly single state, when it occurred to me for the first time in my life that I'd married and partnered with artists because I wasn't doing my own art.  And though my financial circumstances were greatly reduced, so were my job obligations.  I was billing 1800 hours a year instead of 2100-2300.  I had time, motive and opportunity to commit the crime of art again.  I was working in Westwood, just a few blocks from UCLA.  I called their Extension office.  I enrolled in a fiction writing class.

Tomorrow:  sobriety.  

When last we left Pauline on the train tracks, it was 1992 and she was being laid off by a law firm that paid her AmLaw100 salary and benefits.  Oh right.  That's me.

Network, network, network

I hadn't consciously built a professional network in 1992, but was fortunate that it had more or less been created for me.  I'd been handling environmental insurance coverage cases in the 8- to 9-figure range for a major international insurance carrier.  That carrier generally issued first level excess coverage to the Fortune 500 companies who claimed that their insurance carriers were obliged to defend and indemnify them for toxic cleanup actions.  Because those companies sued all their carriers both up and across the coverage profile, we litigated the cases in groups.  Joint Defense Groups.

The lawyers in the Joint Defense Groups worked together, strategized together, traveled to depositions together, and often settled cases together.  We appeared in Court together, argued motions together, worked on appeals and writs together, and played together as well.

So I turned for employment assistance to my friends and colleagues in the Joint Defense Group.  You'll remember that I was a twelfth year associate with no book of business, i.e., I had a marketing fool (myself) for a client (myself).  

I was not in demand at the level of practice I'd been working at.  Nevertheless, I had a lot of contacts in the Los Angeles legal community, who in turn had contacts.  As a result, I was unemployed for fewer months than my severance pay lasted.

But . . . . .

. . . I was about to cross the divide from one legal profession to another . . .

The peak on the right represents . . . law school graduates [who] joined . . .  commercial law firms. They are earning [between] $125,000 - $150,000 + per annum as they start [their careers]. . . . This peak, furthermore, is moving inexorably to the right in response to increased demand by these firms for premier entry level talent . . .

The peak on the left is a different matter. It represents all . . . law school graduates who are following career paths other than the top tier commercial law firms. They peak [around]  $35,000 to $40,000 compensation per annum[;] [r]oughly $100,000 a year less than their peers on the right!

From Rob Millard's Adventure of Strategy, America's Two Legal Professions, 24 September 2007.

Tomorrow, from tall buildings with sleek interiors to a storage room in a three man law firm. 

NB:  All names and situations altered to protect my own and my "opponents'" anonymity and to honor the confidential nature of the mediation.

This experience is going to take a while to digest.  First let me tell you what was GREAT about my recent mediation experience.

1. I hired an attorney who was a full-time, highly experienced mediator.
2. Because the mediation concerned a long-term contractual relationship with an emotional breach and immediate cessation of business, I choose a community mediator because I wanted someone skilled not simply in pressing the parties for compromise, but in  "transformative" (whole dispute) mediation (about which more later).
3. With two talented community co-mediators, I experienced the freedom of expression in joint session that confidentiality provides.
4. I learned how much courage it takes for all parties to face one another and talk about their own part in causing the dispute-creating series of events.  
5. I experienced the nearly invisible but critical support and encouragement provided by an "audience" (lawyers, mediators, insurance representatives) "schooled" "on the spot" in respectful listening.
6. Though the unguarded nature of my conflict-narrative and the pain caused by listening to my former partners' account initially felt like walking a tight rope without a net, as my story proceeded without interruption or apparent contempt from my "opponents" a great sense of comfort and freedom came over me.  I'm an old hand myself at creating an atmosphere of hope and safety so I didn't think that "trick" would work on me.  I found, however, that the mediators' ability to assure me of the confidential nature of the process and the benefits of frank discussion, enabled me to tell my truth, in as multi-dimensional, textured and admittedly fallible manner possible.  It amazed me -- as the client -- that so subtle shift in the atmosphere of the room would permit me to say, in all sincerity, that "though our experiences of the same series of events diverge wildly, I don't believe either of us is lying.  We've simply strung the facts together in a different way from opposing points of view."
7. The opportunity the co-mediators gave me to apologize for "my part in the dispute" while still  asserting the strength of my "position" that I would not be blackmailed, bullied or defeated, left me ready to settle or proceed without feelings of fear, shame, or anger.

To the extent I'll be able to tell this story (and I'm not certain I'll be able to until many years after its final resolution) the readers of this blog will be the first to know.

It's not magic.  It does, however, rest upon the mediators' wholehearted belief that human beings desire reconciliation as much or more than they desire money or the "stuff" that money provides.  It is premised on the elementary principle that the disputants would rather be happy than right.

Best advice to arise out of this session:  when you're mediating, hire an attorney-mediator to represent you just as you'd hire an insurance attorney if you had a dispute with your carrier.  One of the smartest decisions I've ever made.

Good resources for transformative mediation practice:

Institute for the Study of Conflict Transformation

The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition by Bush and Folger

Conflict Revolution, Mediating Evil, War, Injustice and Terrorism by Ken Cloke

Restorative Justice Online

Beyond Conviction (documentary on restorative justice in prisons)

I've scaled my MCLE way back this year, including any continuing education that requires travel unless, of course, it's something I'm speaking at to continue growing my business.  Some MCLE courses, however, stay on my radar -- particularly those that don't require me to leave the office and that teach me skills to help me thrive in hard times.  This IP settlement webinar is one of those continuing education courses I'd attend unless I thought I was already the best settlement attorney I could be.  So seriously consider joining me and Chicago-IP lawyer extraordinaire R. David Donoghue of Holland + Knight for Hard Times? Learn How to Negotiate the Best IP Litigation Resolution

Live Telephone Seminar

ADR in IP Litigation from ALI-ABA

Wednesday February 18, 2009 from 1:00-2:00 pm EST

Why Attend?

In a difficult economy, intellectual property protection and assertion is more important than ever. The combined stressors of a poor fiscal climate and shrinking legal budgets place a significant strain on any business dependent upon IP assets. as companies face difficult economic decisions, it is increasingly difficult to fit the expense and extended uncertainty of copyright, patent and trademark litigation into a forward looking business plan. This one-hour seminar explores the use of alternative dispute resolution as a means of protecting intellectual property and business activity, while minimizing the expense and devotion of time related to traditional IP litigation.

What You Will Learn

This program examines how to move an IP dispute toward alternative dispute resolution; best practices for controlling the expense and length of the process; and best practices for successful alternative dispute resolution. Whether you are an experienced IP practitioner or simply one grappling with IP issues in your general commercial practice, knowing how to offer your clients a wide array of ADR options might make the difference between a practice that survives and one that thrives. The seminar will cover the following topics:

How to choose between litigation and ADR.

• The most successful strategies for guiding your dispute into the best ADR forum at the most productive time.
• The five basic rules of “distributive” or “fixed sum” bargaining that will give you the “edge” in all future settlement negotiations.
• The five ways to “expand the fixed sum pie” by exploring and exploiting the client interests underlying your own and your opponents’ legal positions.
• The Ten Mediation/Settlement Conference Traps for the Unwary.
  

Invest just 60 minutes at your home or office to learn about alternative dispute resolution in the IP field from this duo of experts. This audio program comes to you live on Wednesday, February 18, 2009, 1:00-2:00 pm EST, via your phone or your computer. Materials corresponding to the course may be downloaded or viewed online.

Lawsuits arise from a process social psychologists call "naming, blaming and claiming."  I broke my toe last week (youch!)  when I was talking to my husband from another room and walking into a closet to hang up my jacket.  Jammed it on the door frame, once again engaging in the risk-courting activity of walking and talking at the same time.

If I were mentally ill, I suppose I could go so far as to name my husband as the source of my own lumpish carelessness; blame him for my injury; and, claim some sort of recompense beyond his willingness to kiss my toe to "make it all better."

"Well, I guess that doorway was just too narrow," my husband the litigator joked.  "I suppose you could sue the architect."

Much litigation flows from incidents nearly as foolish as this.  If you'd like to see a collection of such outrages, you likely already know where to go -- Walter Olson's Overlawyered where suits against McDonalds for obesity and the like can regularly be found.  Today's entry, about the alcoholic who sued Marriotts "after falling over a stairway while plowed" is a prime example.

Naming, blaming and claiming (as well as the litigation that flows from this process) will always be with us.  But if you have some degree of communication with the people likely to name and blame you before making a legal claim against you, an understanding of the social psychology behind that process may well help you understand and deal with the problem "on the ground," i.e., short of suit.

Today, I'm directing you to Attributing Blame — from the Baseball Diamond to the War on Terror as a good primer on the process and its underlying cause -- Fundamental Attribution Error.  Link courtesy of @JuryVox who any litigator or dispute resolver should be following on Twitter along with @annereed.

Whenever we witness something harmful or unexpected, we humans look to make attributions of causation, responsibility, and blame. Social psychologists have been studying the way we make those attributions for the last half century. Part of that research, known as attribution theory, focuses on how we draw inferences about how much control people exert over their behavior: the more control they appear to exert, the more we hold them responsible or blameworthy for the consequences of their actions. To assess control, we draw inferences about, among other things, whether the person acted volitionally or intentionally and about the person’s motivation. When we think an injurer acted intentionally and maliciously we attribute blame — which is accompanied by a desire to punish the injurer and to compensate the victim.

This naive psychology of blame attributions is fairly automatic and depends on more or less instantaneous impressions. And although our attributions result from inferences of, among other things, intent and motive, we are hampered by the fact that we cannot directly access someone else’s motives or intentions (in fact, we’re not very good at ascertaining our own). And, often, the individuals who we are judging have an interest in presenting themselves as innocent — regardless of the truth of the matter. In making attributions about another person’s harm-causing actions, therefore, we are often forced to rely on imperfect external cues. Conflict between individuals and groups often emerges precisely because attributional ambiguity leads to divergent interpretations and reactions. What a victim might perceive as outrageous, an injurer might construe as merely unfortunate or even richly deserved. The legal system is caught up in these attributional contests every day. For instance, most of tort law — in doctrine and in practice — is devoted to the question of resolving competing attributional accounts for the same personal injury.

Continue reading at the linked headline above.  My most popular article on this process - Conspiracy Theories and Granfalloons can be found here.

From the Department of Counter-Intution we learn that our general assumption about pre-trial discovery -- that the open exchange of information will help align the expectations of disputants and increase efficiency by facilitating settlement /1 -- is probably inaccurate.

In When Ignorance is Bliss:  Information, Fairness, and Bargaining Efficiency, George Loewenstein, Department of Social and Decision Sciences and Don A. Moore, Graduate School of Industrial Administration, at Carnegie Mellon University, tell us that when "information . . . is complex or ambiguous enough to allow for different interpretations" by opposing counsel,

[s]elf-serving interpretations of fairness encourage biased estimations of the probability of prevailing in court and lead people to hold out too long, fight too hard, and settle too slowly.

Simply put, because we interpret incoming information as confirming -- and often strengthening -  our existing views, the "convergence" of adversarial views pre-trial discovery proponents hoped for, does not occur.  Rather, discovery tends to increase the parties' belief in the rectitude of their analysis, thereby proportionally decreasing the potential for settlement.  As Loewenstein and Moore explained:

In studies examining the self-serving bias, the magnitude of the bias was an extremely strong predictor of impasse, and two different manipulations that eliminated the bias led to close to 100 percent settlement compared to an impasse rate of about 25 percent in the absence of such debiasing.

The full article is well worth reading even though much of it is burdened with academese.

Because we attorneys pride ourselves on being able to "see the other side," here's an article entitled Confirmation Bias in Complex Analyses about a study in which intelligence analysts were provided with an analytic tool to help them overcome confirmation bias.  The tool -- Analysis of Competing Hypotheses -- was an

hypothesis testing matrix,” where the rows represent the evidence, the columns the hypotheses under consideration, and the cells the extent to which each piece of evidence is consistent or inconsistent with each hypothesis. The goals of the ACH matrix [were meant] to overcome the memory limitations affecting one’s ability to keep multiple data and hypotheses in mind, and to break the tendency to focus on developing a single coherent story for explaining the evidence—a tendency which [other researchers] hypothesized create[d] predecision distortions (and presumably the confirmation bias).

ACH [was] hypothesized to offset confirmation bias by ensuring that analysts actively rate evidence against multiple hypotheses and reminding analysts to focus on disconfirming evidence.

Absent the template, the process sounds a lot like that we attorneys use to test our theories and evaluate those of our opponents'.  Alas ACH provided the least amount to help to those study participants with professional analytic experience.  As the authors report, "ACH had no impact at all" on the professional analysts' tendency to give greater weight to the evidence that supported their theories and less to that which disconfirmed them.

What to do?  I'll attempt to find an answer before writing my next post.

______________________

Loewenstein and Moore quote Richard Posner on this expectation as follows: 

a full exchange of information…is likely to facilitate settlement by enabling each party to form a more accurate, and generally therefore a more convergent, estimate of the likely outcome of the case.

Richard A. Posner (1986:525) Economic Analysis of Law (3rd ed. Little, Brown 1986)

The British call layoffs "redundancies."    I prefer the American term - layoff -  because it focuses on the employer's need in times of economic stress ("I can no longer afford to pay you and so must lay you off) to the British locution which focuses on the employee's presumed inefficiency ("because your work is being performed (better?) by others, you have become redundant.")

Why the attention to semantics?  Because in times of massive law firm layoffs (see Law Shucks Lay-off Tracker here) you don't want today's efficiency become tomorrow's crushing legal liability. 

Lawyer Layoff Paranoia by the brilliant Charles Fincher at LawComix.com.

So how do you avoid the looming threat of litigation by laid off employees?  According to researchers, you terminate graciously, honestly, with expressed respect and compassion, and, if possible, with offers to help the laid off employee find work and replace critical benefits such as health insurance. 

Why do terminated employees bring suit?  It's not, as I'm always saying, just about the money. 

Researchers have found, for instance, that:

• Feelings of unfair, insensitive treatment at the time of termination had nearly twice the effect of the next most potent factor in bringing suit.
• Blame was not strongly related to the claiming process 
• There is some, but slight, support for the proposition that certain groups -- women and minorities - are especially likely to sue
• Perceptions of poor on-the-job treatment motivate lawsuits as much or more than an individual's belief in his or her ability to prevail in litigation
• the shorter the notice of termination, the greater the likelihood of suit

Finally, and most importantly for law firm management, the best predictor of a former employee's willingness to file claims for wrongful termination was highly educated respondents.

Researchers have also catalogued the most common on-the-job experiences that lead to litigation, including most prominently,

• negative experiences with supervisors;
• the belief that processes used by the supervisor are unfair.
• violations of procedural justice (the perceived fairness of the procedures by which outcomes are determined)
• perceived violations of equity and distributive justice  (the perceived fairness of outcomes)
• perceived violations of interactional justice  (the perceived fairness of the nuances of interpersonal treatment)
• survivors' attitudes toward their organization are strongly associated with their beliefs about the fairness of the manner in which their companies laid off other workers
   

"Blaming and claiming" activity (lodging grievances; seeking relief from the EEOC; retaining legal counsel to file suit) is strongly correlated with the manner in which employees are terminated.

Why?

Because Termination Causes Employees to Reevaluate Fairness in Working Conditions.  And you do not want to give employees the opportunity to reevaluate those conditions in light of their last employment experience - termination - unless that experience is positive.

The researchers have found that:

• people react strongly to nuances of treatment and style at the time of termination
• the quality of dismissal affects people’s decision to bring suit as much as termination itself.
• a fair, honest, and dignified termination should substantially reduce the temptation to retaliate through litigation.

The experts therefore recommend that employers:

•  treat their laid-off or fired employees with compassion and respect at the time of termination
• give several weeks advance warning to all laid-off or fired employees
• provide terminated employees with help in finding new employment
• give terminated employees honest accounts for the cause of their termination
• provide transitional alumni status to terminated employees when possible
• provide symbols of positive regard to terminated employees such as letters of reference, departure gifts or parties
• offer counseling services to terminated employees to ease the psychological shock of employment termination

According to a recent ABA Journal article entitled One Lawyer Layoff Saves an Average of $250,000 also notes that:

• some of the savings from layoffs is initially eaten up by severance payments
• at least one firm chairman indicated that the firm pays about $7 million in severance for every $10 million saved in compensation
• another firm chairman estimated that it takes about nine months before any savings are realized by lawyer layoffs.

If law firms don't want these savings to start bleeding red ink, they'd do well to study "naming, claiming and blaming" behaviors of terminated employees and to implement processes and procedures to reduce the potential for litigation flowing from these cost-saving measures.

For further reading, see my own Power Point Presentation from which most of the above statistics were taken here and the article from which most of that information was derived:  The Winding Road from Employee to Complainant here.

Because litigation is so often settled with insurance dollars, from time to time we bring you updates on recent judicial interpretations of common policy terms.  The following article answers the question in the Fifth Circuit whether CGL policies cover certain types of construction defect claims.

(left, author Schramek)

"Fifth Circuit Narrowly Construes 'Business Risk' Exclusions in CGL Policies"
Fulbright Briefing
Adam T. Schramek
February 2009

A recurring dispute between insurance companies and Commercial General Liability (“CGL”) policyholders concerns whether CGL policies provide coverage for construction defect claims. In its recent decision in Mid-Continent Casualty Co. v. JHP Development, Inc., No. 05-50796 (January 28, 2009), the Fifth Circuit takes the latest step in Texas jurisprudence on the issue, concluding that the “business risk” exclusions in such policies, at least as currently drafted, do not exclude coverage for damage to a contractor’s non-defective work even if caused by his own defective work.

Read on here.

We owe the head's up on this article to whoever convinced Fulbright's powers that be that the firm should micro-blog on twitter here:  @Fulbright.

It's the British, of course, who we have to thank for the common law, the adversarial system of justice and that most lyrical denunciation of lawyers' passionate pursuit of legal procedure, Bleak House.  Charon QC is a serial podcaster, writer and producer of the satiric online soap opera West London Man, founder of the largest private law school in Great Britain, and all around QC about town.

My postcast interview with the great QC is here and his own is below.

Podcast 94: US lawyer Victoria Pynchon on ADR, mediation and settlement in the USA

Today I am talking to Victoria Pynchon, a US lawyer based in Los Angeles, California. She was a commercial litigator and trial attorney for 24 years before shifting her practice from representing clients in court to helping lawyers settle lawsuits hat involve greater risk, expense or time than their clients wish to expend. She this work through Judicate West Dispute Resolution Services, serves as a private judge (arbitrator) for the American Arbitration Association, is an adjunct professor at Pepperdine University and blogs at IP ADR and Settle it now. Interestingly Vickie also acts as a sherpa for Blawg Review the international rolling carnival of law bloggers and is on Twitter.

So who is Charon QC?  Let him tell you himself in this Podcast Interview at Family Lore, the blog of British family law attorney John Bolch.  To get an even better idea of Charon QC and the many reasons to read his blog, I give you his own introduction to himself at Charon QC the Blawg.