Negotiation Law Blog

I'm providing you with just a few clips from mediator Sam Imperati's excellent presentation at the ABA Dispute Resolution Conference in New York City recently. Here's his power point presentation.

Below are a few of Sam's mediation advocacy tips.  You can find all of them at his website here.

NEGOTIATION TIPS & TACTICS

1. Seek competitive results in a cooperative manner!
2. It doesn’t matter who calls first to invite settlement discussions. It does matter who makes the first offer that puts the dispute on the “playing field.” If you need a settlement and they won’t open, then put the best principled proposal you can on the table that will keep them negotiating. Present it with your logic and rationale in a confident but not arrogant manner. Do not make a concession until they step onto the “playing field.”
3. Develop a rational basis for each item presented in your opening position. This allows the other party to understand the rational reasons behind your demands, and helps explain your entitlement to ultimate goals.
4. Never lead with your “bottom line.” You might as well say, “See you in court!” Fully understand your bottom line prior to negotiating, and try to uncover theirs. Recognize there is a point, below which, the negotiations will not go.
5. Start bargaining with less important topics, in order to develop a cooperative mood and make progress. This will pay off later when more significant, but contentious subjects are discussed.
6. Ask the other side about each element of its perceived position. What exactly do they hope to obtain and what is the rational basis? What are the hidden motivational factors influencing their articulated demands? Go behind stated positions to unveil the underlying needs creating their positions.
7. Through patient probing, learn as much as you can about the other side’s range of choices, preferences, strengths and weaknesses, without overstating, or underestimating, your own.
8. Ask questions to elicit information from the other side in a non-threatening way. Build relationships whenever possible.
9. Allow them to ask questions of you, but respond as briefly as possible without playing “hide the ball.” They are more likely to believe your answer than your unsolicited statement.
10. If they come up with an initial proposal “from the parking lot,” very calmly ask them a series of questions that elicit the external, objective standards that support (or likely don’t support) their position. Build from the bottom up by dividing their proposal into its component parts and asking for the supporting data for each number.
11. Once they are on the “playing field,” your next proposal should be no closer to your goal than their position is from your goal.
12. Any subsequent movement on your part must have an objective rationale or be in response to their objective rationale. Do not move for the sake of movement . . . it is a sign of weakness.
13. Take advantage of the power of factual and legal arguments, appropriate and persuasive emotional appeals, as well as public policy. Rather than surprising the other party, make assertions that bring up points not considered by them before.
14. Offer a rationale. Explain to the other party why they can’t get what they asked for. They will feel satisfied even though they didn’t get it because they heard reasons for your decision. This makes them feel taken care of.
15. Rather than making negative threats, use affirmative promises to induce a reciprocal change in positions.
16. Your opponent is more likely to move:
a. Based upon an agreement (e.g., “If you’ll do X, I’ll do Y”);
b. Then in response to a caution (e.g., “If that happens, then X is likely to do Y”);
c. Then in reaction to intimidation (e.g. “I’ll clean your clock in the courtroom”).
17. To get past “No!” and beyond impasse:
a. Avoid emotional reactions and escalation. Refocus on your fundamental interests. Try to separate the “person” from the “problem.”
b. Don’t argue. Diffuse their negative emotions, including fear and hostility. Listen to their points and acknowledge their feelings without agreeing. Use “VECS.” Try to re-frame their position in order to problem-solve.
c. Bridge the gap between their interests and your own. Show how it’s in their interests to agree to a mutually beneficial solution. Use “Positive Reframing.”
d. Educate them to the consequences of their approach, including potential gains and losses for both sides. Focus on process and objective criteria. Brainstorm options, prioritize needs, gather and share data.
18. When you enter the “resolution zone,” go slowly. 75% of the work happens in the last 25% of the allocated time. Patience is a virtue!
19. Develop the power to walk away. Don’t pass the point where you=re no longer willing to walk away, based on your emotional investment and the time and effort spent negotiating, rather than on your best interests.
20. Your final proposal must entice your opponent to say “yes” from the perspective of their most likely alternative, moderated by their risk-averseness, assuming they have realistically evaluated the matter.
21. Do you want to be right or successful? Sometimes you have to choose. As a result, you may need to create a dynamic where you have to say “yes” to their proposal so they feel they won!
22. Beware of “Oh, by the way!” Get all terms on the table and negotiate the package. Nothing is final until both sides have agreed to all the deal points.

A few days ago, in the wake of my social media presentation for the SCMA, I pulled out an old hand-out that mediator and USC Mediation Clinic Director Lisa Klerman and I used for a "write your way to success" seminar for the SCMA a couple of years ago.  I am pasting it here for the use of any mediator who is at a loss for a starting place to market his or her practice in these difficult economic times.

Write Your Way To Success:  A Workshop on Marketing Your Mediation Practice

            Vickie Pynchon and Lisa Klerman
_______________________________________________

Why Write Articles As A Marketing Tool?

1.    A reminder to your existing clients that you still exist
2.    Exposure to potential clients who don’t yet know you exist
3.    Become recognized as an expert in your niche
4.    Increase your prominence and credibility within the field
5.    Improve traffic with increased links to your website
6.    Expand your geographic reach
7.    Inexpensive
8.    No face to face selling
9.    You will master a known topic or perhaps even learn something new
10.    Writing can help you clarify your personal vision and goals


“Yes, But I’m Not A Great Writer” 

Not an acceptable answer.  If you can talk about an interesting topic or idea in your practice, then you can write about it. 

Tips to Get Started Writing:

Here is a simple approach to start writing your first article:

1.    Determine your target market – who do you want to reach?
2.    Ask yourself:  “What do I know that my target market would like to know?”
3.    Pick a topic, such as how to deal with difficult negotiators, cross-cultural mediations, etc.  Choose a topic that you find appealing and exciting.
4.    Ask: how would my target market prefer to receive information?  Blog, newsletter, print, electronic?  Short and punchy, or detailed and well-researched?
5.    Ask:  what about my articles will attract my market to me as a result of reading those articles?

• voice
• expertise
• creativity
• credentials
• knowledge of industry
• knowledge of legal specialty

6.    Write an outline of the points you want to make.
7.    Decide on three to five main points within your chosen topic that you want to share with the reader.  Do not overload the reader with too much information.
8.    Write it.  Put it aside for a day or so.
9.    Return to it with a fresh perspective.  Edit it, and send it out!


Blogs:  What’s All The Fuss About?

Law blogs (“blawgs”) have radically changed dialogue and scholarship on legal issues, leading Dahlia Lithwick, senior editor of the on-line magazine Slate, to recently observe:

The most compelling, cutting-edge, honest legal writing being produced in this country today is happening on the Internet, and the crop improves daily. From the fistful of judges (including Richard Posner) who maintain regular blogs, to the vast and growing number of law professors and law students who find the time to post daily, it's clear that the real bones and guts and sinew of the national conversation is happening online, and not in print.

Benefits of your own blog (a very short and incomplete list)

• you can write about and link to people in your market (rule of reciprocity)
• you can publish at will (for the instant gratification crowd)
• you can generate subscribers
• you can become an indispensable source of information your market needs to have but doesn't have time to read, summarize, locate, etc.

Benefits of publishing elsewhere

• greater prestige
• greater reach
• targeted to a market that isn't yet aware of your existence/services

General Advice

Consider guest posting -- compare Blawg Review Guest Editor Pages

Write for Mediate Dot Com

• A good place to get your publishing feet wet. 
• Mostly read by mediators but you can pass these articles along to your clients. 
• Mediate dot com itself packages these articles, which then appear on other mediators' web sites, increasing your presence on the internet. 
• It is fairly easy to get published here.

Local and Specialty Bar Associations have newsletters and are always seeking content - learn their submission guidelines and turn your thoughts into an article for your market's reading pleasure.

YOUR OWN PERSONAL MARKETING PLAN

Within the next month, I will:

• identify my target market
• identify areas of interest to that market
• write at least one article for publication in ___________
• gather information about __________
• subscribe (preferably by RSS feed) to the following sources ____________ to generate article and blog posting ideas
• begin to read ADR blogs and post comments on them to get a feel for how they work.  Start Mediator Blah Blah, The Mediation Channel, Settlement Perspectives, PGP Mediation, Civil Negotiation and Mediation, and the rest of the blogging posse at mediate.com/blogs.
  
  Within the next ___ months, I will:

• write at least ___ pieces for publication in ____ publications
• gather information about __________
• post entries in the following blogs: ____________
• interview one lawyer in my market for a short article about an area of interest to him/her for publication in _____.
• interview one __________ in my market via web cam & send it to any blogger who writes in your niche practice  (5 minutes or less)

 With many apologies for the incomprehensible blurriness of this interview with Woody Mosten conducted in the noisy exhibitor ballroom at the NYC Sheraton Hotel during last week's ABA Dispute Resolution Conference, I nevertheless provide the interview because of the importance of Woody's message. 

Woody consults with attorneys who wish to make the shift from legal to mediation practice, continues to mediate himself, authors books on mediation and career development and conducts training on mediation practice and professional development.  As Woody's web site states:

Forrest “Woody” Mosten has an international reputation for high quality mediation training from introductory courses to advanced supervision for highly experienced mediators. He maintains an intense focus on cutting edge issues in law and the craft of mediation skill building, and enjoys helping other professionals build their own profitable mediation practices.

Woody Mosten's Mediation Training is an Approved Continuing Education Provider by the California State Bar CLE & Family Law Specialization, the California Psychological Association Accrediting Agency, and the California Board of Behavioral Sciences. Most courses are approved by the Association for Conflict Resolution.

The American Arbitration Association announces a new set of dispute resolution services for businesses and consumers, including new panel members of which I am one.

Mediation and non-binding arbitration are processes that offer parties opportunities to settle their disputes. Pursuing settlement helps clients to reduce the total cost of conflict management in their organizations, provides flexibility and protects valuable relationships with partners
and customers.

The American Arbitration Association®’s (AAA) Non-Binding Dispute Resolution Services for Businesses and Consumers is a suite of settlement services and solutions that include:

• Mediation

• Non-Binding Arbitration

• Non-Binding Arbitration and Mediation Contract Clauses Guide

An important element of the suite is access to AAA staff facilitators who stand ready to aid parties in selecting the settlement options most appropriate for their needs and the circumstances at hand. To reach a facilitator, simply select the “Contact Us” option below to send an email requesting information
and assistance.

Here are the consumer procedures.  You can also find these rules on the commercial dispute resolution page here.  And here's a .pdf download of dispute resolution clauses geared toward the business and consumer dispute resolution services provided by the AAA.

The law school professor asked for a show of hands.

"How many lawyers are in the room?"

There was something about the way he shook his head, just slightly, from side to side, that communicated "too many lawyers," followed by a sigh that I read as  "I'm still going to smack them upside the head."  

I connected to my twitter network and tapped out  "now this speaker is going to dis lawyers - let me see if I can stay quiet." 

(image by the brilliant Charles Fincher at LawComix)

If disrespecting lawyers were an unusual event at ADR conferences, my "read" wouldn't have been so spot on.  But it's actually a category here:  the evils of litigation and its soulless practitioners. 

"The judicial system" began the law professor,

is a bureaucracy attended by people who are not employed by it.  Those people are lawyers who have been brain washed by law schools to eliminate emotion from their clients' conflicts; who have lost the ability to communicate with ordinary people; who strip context from conflict; and, who treat the people they represent like objects.

Ah.  Heartless functionaries of the evil judicial system.  Now that he'd brought it to my attention I could see that I'd spent a 25-year litigation career doing the work of the devil -- not caring about my clients; not awakening at 3 a.m. to craft a better strategy to vindicate their rights; failing to develop the courage (yes, courage) to stand in a courtroom, a shaky 28-year old kid, telling the Judge or a jury why they should grant my client the remedies available to him or her in law, equity and, yes, justice. 

A career in which I'd used my mind and body as a shield against repression and injustice for all of the individuals and entities I'd represented, including the rich and powerful, who deserve justice as much as the poor and inpecunious, whose fights I took up with the same vigor and dedication as the ones who'd paid my bills. 

Though the law professor apparently disagrees, I consider my work, and that of my colleagues to be worthy, even in those cases where insurance carriers were my clients, sued by their petroleum company policy holders who claimed entitlement to reimbursement for the intentional contamination of the soil under our feet and the groundwater some of us are required to drink.

Was this panel of law professors -- who wanted to put feelings and socio-cultural context and identity back into my clients' disputes -- simply unaware that I, a veteran of the successive civil rights movements of the mid-20th and early 21st centuries, am also a person with an identity and feelings, who has represented my clients with heart and passion and dedication in a socio-cultural context which has, at times, made my work not simply a social good, but a god damned heroic struggle?

But this isn't about me.  It isn't even about the flaws in the adversarial system or the profound imperfections in the chaotic state of mediation theory and practice today. 

This is about a conversation that mediators, lawyers and academics are not having and a rancor that inexplicably prevents us from taking the best of all systems to create something genuinely original and powerful.   

I'm inclined to believe that these predictable eruptions of anti-lawyer sentiment have something to do with power and who each "faction" believes possesses it.  The law professor of whom I speak, for instance, seemed envious when he said that the "bureaucracy of the judicial system has a monopoly on the coercive power of the state."  It was important enough for him to say it twice.  "Only the Courts can compel people to resolve their disputes in the adversarial system," he'd added.

If my reflex hadn't been to pick a positionally lawyerly response  during "audience participation" I would have, should have, asked how he could so thoroughly misread us -- his brothers and sisters in the law?  I also would have asked  him these questions:  

Do you really believe that attorneys -- those who sit before you today -- are the soulless, emotionless bureaucrats you say they are?

Is there something you would like those of us who remain in legal practice to do to help you help us help our clients?'

Are you envious of our coercive power?  Is it frustrating -- watching your cousins "at the bar"  -- use their power to compel people to attend to court proceedings when your own dispute resolution mechanism requires participants to volunteer?   

Is it painful to you that the people you believe will rise up and demand ADR solutions someday have not yet voluntarily knocked on ADR's door in sufficient numbers to create the non-adversarial legal utopia you long for?

Are we playing a zero-sum game here?  Fighting over territory?  Is my dispute resolution "turf" preventing yours from taking seed?  Is it impossible for us not only to co-exist, but to thrive in collaboration with one another? 

Do you really believe that we legal practitioners do not want the same social goods that seek?  The passably fair resolution of my neighbor's boundary line dispute?  The roughly just distribution of public goods?  The tolerably unbiased treatment of the governed by the government? In short, justice in an imperfect world? 

We are on the same team and we were all trained with the same intellectual rigor.  We require evidence to convict a man or woman of a crime, not hearsay, not speculation, not prejudice, but evidence.  The law and lawyers liberated more than half the citizenry from second-class status, at the same time that women and African Americans, Native Americans, "Chicanos," "Latinos," persons "of color" Muslims, Jews and Catholics fought to enter the American political and commercial "establishment" through the court system the professor reviles.

Instead of resenting and demonizing one another; instead of letting our own personal disappointments cause us to disrespect and demonize one another, why don't we all sit down, break bread, have a drink, take a walk in Central Park and find out how we might be of some assistance of each other.

Whenever I read about restorative justice (my paper on the topic here) I am somewhat ashamed that I cannot put aside my own grievances when others resolve harms of such major magnitudes such as the murder of children and genocide.  I am reminded of this today because of Paul and Rebecca Mosley's blog on the work they are doing in Burundi.

What relevance does this bear to my attempt to settle "pure money" litigation you ask.  First, I must say that there is no such thing as "pure money" litigation (see my paper on this topic here starting on page 60).  Second, the conflict of litigation is nothing compared to the matters resolved in a restorative justice session -- matters such as the murder of one's child and rape by one's own brother at knife-point (in the tragically mesmerizing Beyond Conviction). And in the unfortunately common outbreak of genocide such as that occurred in Rwanda. 

There is something for all of us to learn about the power of reconciliation of these matters of far greater import than the value of a breach of contract or even the infringement of a patent, trade mark, trade name or copyright.  In my own personal life I am forced to ask myself, in light of the courage displayed by these people, who I am not to forgive.

So today I bring you a recent post from Paul and Rebecca Mosley's blog Holy Week and Transitional Justice about their work in Barundi with the Mennonite Central Committee. These are the modest international heroes of the modern peace movement.  I will let them explain their work in their own words below.

I was invited to represent MCC at a meeting of Peace Church organizations working in Burundi. Representatives from The American Friends Service Committee, Quaker Peace Network, as well as others were in attendance. When asked what the AFSC saw as ‘flashpoints’ of conflict—anticipating and trying to prevent potential conflict flashpoints is an important part of peace work— they identified several problems. First, there is the continued problem of repatriated refugees coming back to land they had abandoned that is now occupied. There have been many ongoing land disputes that have often turned violent and even murderous. Secondly, there are the upcoming 2010 elections. There will be many political parties, including some fairly radical ones formed by recently demobilized rebel groups. Peaceful transfer of power is historically almost non-existent in sub-Saharan African nations and there is considerable anxiety about what will happen in the next 12 months. However, the biggest concern identified by AFSC was ‘transitional justice’. This is really a serious problem here and speaks to the greater problem of trying to bring to ‘justice’ those who have been guilty of past war crimes.

Here’s the problem: how do you persuade a government to pursue justice for those who are guilty of committing crimes in the past 14 years of civil war, when many perpetrators are now occupying seats of power in the government itself? Also, there is the ongoing undercurrent of ethnic conflict. Any attempt by one ethnic group to pursue ‘justice’ against another looks like retribution and not impartial arbitration. Add the complication of a highly politicized election, and this becomes a real conflict tinderbox. Doing nothing (letting sleeping dogs lie), however, is not an option as it fuels growing resentment in the population, as they see many known war criminals ‘getting away with murder.’

At the local level, MCC partners—particularly MiPAREC—have set up ‘peace committees’ in communities all over the country to try to introduce concepts of ‘restorative justice’ to resolve conflicts. This involves providing a forum for grievances to be aired, victims’ stories to be heard, and an opportunity for perpetrators to ask for forgiveness and make amends. They have had a great deal of success at the local level, but whether this type of reconciliation can be accomplished at the national level is an open question.

As I said, the problem is that there is no impartial arbitrator. Everyone is on some side, and many who would need to implement justice have blood on their own hands.

I am learning that justice is not a simple matter of getting the facts and making a ruling. Those in power can decide which facts are relevant and can largely determine who is tried and the outcome of any legal process.

What human beings are capable of—even at their best—is only a shadow of what I believe divine justice will look like. I am considering in a new way that passage in 2 Corinthians (5:17-21) that says we have been given “the ministry of reconciliation.” – which is the gospel! We may never be divine judges, but we have, in Jesus, the capacity for divine forgiveness. I pray this capacity will be shared in Burundi by those who follow him.

(and, yes, I am not only old enough to remember the "Second Wave" Women's Movement, I took a quite serious role in it, first as an unpaid volunteer and later through the federal government's "Program for Local Service" at the Center for Women's Studies and Services in San Diego)

If you're celebrating Easter tomorrow and bored with the relatives, tune into New Day Talk Radio for a live call-in program on negotiation for women.

I've quoted Linda Babcock and Sara Laschever before on women and negotiation.  I've also trained executive women to use their natural talents, skill and affiliative natures to overcome the statistics I'm about to give you, straight from Babcock and Laschever's site Women Don't Ask:  Negotiation and the Gender Divide.

Tomorrow, I'll be talking live on internet radio with PWNSC member and force of nature Lynette Jones who has only recently returned from a tour of duty in Iraq.  Lynette and I had so much fun planning this internet radio-cast that I'm certain you'll enjoy our talk.

And if you need more reason to tune in, here are the dreary statistics on women and negotiation from Babcock and Laschever's book Women Don't Ask.

It's Necessary for Women to Negotiate Now More Than Ever Before

• Between May 2001 and May 2002, 39 percent of the American workforce changed jobs.

• In 2000, 76.8 percent of women aged 25 to 54 worked outside the home.

• The divorce rate hovers at 50 percent.

• Union membership is down 33 percent since 1983.

• Women's earnings relative to men's have stagnated at 73.2 percent.

• The percentage of births to single mothers (out of all mothers) has risen from 10 percent in 1970 to 33 percent today.

Women Don't Like to Negotiate

• In surveys, 2.5 times more women than men said they feel "a great deal of apprehension" about negotiating.

• Men initiate negotiations about four times as often as women.

• When asked to pick metaphors for the process of negotiating, men picked "winning a ballgame" and a "wrestling match," while women picked "going to the dentist."

• Women will pay as much as $1,353 to avoid negotiating the price of a car, which may help explain why 63 percent of Saturn car buyers are women.

• Women are more pessimistic about the how much is available when they do negotiate and so they typically ask for and get less when they do negotiate—on average, 30 percent less than men.

• 20 percent of adult women (22 million people) say they never negotiate at all, even though they often recognize negotiation as appropriate and even necessary.

Women Suffer When They Don't Negotiate

• By not negotiating a first salary, an individual stands to lose more than $500,000 by age 60—and men are more than four times as likely as women to negotiate a first salary.

• In one study, eight times as many men as women graduating with master's degrees from Carnegie Mellon negotiated their salaries. The men who negotiated were able to increase their starting salaries by an average of 7.4 percent, or about $4,000. In the same study, men's starting salaries were about $4,000 higher than the women's on average, suggesting that the gender gap between men and women might have been closed if more of the women had negotiated their starting salaries.

• Another study calculated that women who consistently negotiate their salary increases earn at least $1 million more during their careers than women who don't.

• In 2001 in the U.S. women held only 2.5 percent of the top jobs at American companies and only 10.9 percent of the board of directors' seats at Fortune 1000 companies.

• Women own about 40 percent of all businesses in the U.S. but receive only 2.3 percent of the available equity capital needed for growth. Male-owned companies receive the other 97.7. percent.

Women Have Lower Expectations and Lack Knowledge of their Worth

• Many women are so grateful to be offered a job that they accept what they are offered and don't negotiate their salaries.

• Women often don't know the market value of their work: Women report salary expectations between 3 and 32 percent lower than those of men for the same jobs; men expect to earn 13 percent more than women during their first year of full-time work and 32 percent more at their career peaks.

Most people think ADR professionals believe that all conflicts are bad.  Quite the contrary.  Those of us who are trained and practiced in dispute resolution understand that conflict must ripen into one or more disputes for society to evolve along the arc of justice. 

The social psychologists tell us that disputes arise whenever one person or group begins to believe that their deprivation arises from someone else's satiation.  I'm not getting fed because my next door neighbor is.  I was not promoted because my co-worker was.  I didn't gain admission to my chosen University because “less qualified” students were admitted under affirmative action guidelines.  K-Mart suffered crippling market share losses because its competitors, Wal-Mart and Target, engaged in unfair competitive activities (purely hypothetically). 
 

Listen to author, mediator, teacher and scholar Ken Cloke on conflict.  "Conflict," he writes,

is the sound made by the cracks in a system, the manifestation of contradictory forces existing in a single space.  Many . . . conflicts represent the points of weakness in a organizational [or political or commercial] system.

To "make room" for those "contradictory forces" we often must raise a ruckus or ask for something we never believed we might be entitled to.  Say, gay marriage.

Which takes me (at long last) to Scott Godes' recent post on contingent business interruption coverage. 

Huh?

Listen.  Your interests are at -- at best -- in perceived conflict with those of your insurance carrier.  That's why the entire field of bad faith insurance law was developed.  Corporations once had a cozy, apparently non-conflictual relationship with their carriers because no one questioned the carriers when they said a claim wasn't covered.  That was before catastrophic losses caused Fortune 500 corporations to call creative attorneys and specialties like environmental insurance coverage law were created. 

Today, Dickstein Shapiro attorney Scott Godes creates a quiet and restrained ruckus by raising a  conflict to the level of a dispute -- by way of his post Ensuring Contingent Business Interruption Coverage.  Excerpt below:

Today, Insurance Law360 published a piece that I wrote regarding contingent business interruption coverage.  Are you wondering what is contingent business interruption insurance, and whether your business needs it?  I gave an overview of the coverage in the article:

First, an overview of contingent business interruption coverage. “Regular business-interruption insurance replaces profits lost as a result of physical damage to the insured’s plant or other equipment; contingent business-interruption coverage goes further, protecting the insured against the consequences of suppliers’ problems.” Archer Daniels Midland Co. v. Hartford Fire Ins. Co., 243 F.3d 369, 371 (7th Cir. 2001) (“Archer v. Hartford”).

For full post click here.

Convoluted I know; welcome to my stream of consciousness.

Please join the Los Angeles Chapter of Mediators Beyond Borders on May 30, 2009 (.pdf) at the home of Ken Cloke and Joan Goldsmith in Santa Monica for conversation on global conflicts.  Contribute your  ideas, expertise, donations and support, in building conflict resolution capacity around the world.

May 30, 2009
2 PM ‐ 5 PM
At the home of:
Ken Cloke and Joan Goldsmith
2411 18th Street
Santa Monica, CA 90405
310‐396‐4664

Mediators Beyond Borders is a nonprofit network of volunteer mediators, arbitrators, trainers, facilitators, coaches, and experts in dialogue and similarskills. We are actively engaged in organizing projects to develop conflict resolution skills in the Middle East, Ghana, Liberia, Zimbabwe, Kenya,Nigeria, New Orleans, Colombia, Ecuador, Nepal, Yemen, Thailand, Cambodia, Kosovo, and other communities worldwide.

If you are unable to attend, please mail a tax deductible donation to Mediators Beyond Borders, a nonprofit 501 (c) (3) organization, c/o Ken Cloke and Joan Goldsmith, 2411 18th Street, Santa Monica, CA 90405.

RSVP to kenclokembb@gmail.com

This event is sponsored by MBB founding members Nan Waller Burnett, Ken Cloke, Dorit
Cypis, Joan Goldsmith, Woody and Jody Mosten, Susan Mullins, Anna Spain, Ron Supancic,
and the Los Angeles Chapter of Mediators Beyond Borders.

As every lawyer knows and most students of high school geometry must learn in mastering "proofs," the answer often comes first, the rationale later.  I used to say, "I'm a litigator, I can rationalize anything."  As a mediator, my rationalizations have turned from the way in which facts can be shoe-horned into causes of action or affirmative defenses to the way in which harm arising from a dispute (including, most assuredly, the moral harm of injustice) can be monetized.

Now David Brooks in the New York Times (which appears to have disabled the "copy" function/1) tells us that philosophy has been sacrificed on the alter of emotion in his column The End of Philosophy. 

As Brooks explains, reasoning comes after moral judgment and "is often guided by the emotions that preceded it."  The good news is that those emotions are not merely competitive.  Brooks again:

Like bees, humans have long lived or died based on their ability to divide labor, help each other, and stand together in the face of common threats.  Many of our moral emotions and intuitions reflect that history.  We don't just care about our individual rights, or even the rights of other individuals.   We also care about loyalty, respect, traditions, religions.  We are all the descendents of successful cooperators.

My mediation experience teaches me that the "soft" arts of influence, empathy, community-building, and prejudice reduction, are as important (and often more important) to the successful (i.e., satisfying) resolution of a lawsuit than our prized ability to parse the evidence,  rationalize away the bad and privilege the good to sell our "proof" to judge or jury.

Most importantly, I find that when attorneys' clients leave a mediation with the belief that a certain rough justice has been obtained, they are more satisfied with the outcome, and with their attorneys' representation of their interests, than they might have been had they left with 10% more change jingling in their pockets.

The experts who study mediation tell us that "neutrals" don't make the difference between settling or not settling.  The cases will settle with or without us.  The difference mediators make is not settlement, but  client satisfaction.  Satisfied clients are  an absolute necessity for a successful legal practice at any time.  In these hard times, legal practices may fail in the absence of resolutions addressing the justice issues your client sought out a lawyer to resolve in the first place.

Money is the instrument.  But justice is the issue.

_____________

1/  More about this at IP ADR later today.

(image by the great Charles Fincher at LawComix)

Thanks first to LexBlog for giving yesterday's post here a shout-out but more importantly, thanks to LexBlog for giving Arnie Herz' post at Legal Sanity Why lawyers should get emotional with clients coverage in the same daily compilation of LexBlog client posts, a tremendous resource I highly recommend you include on your news reader.

You'll see from my lengthy comment there that Arnie is singing my song about the law and emotion and in particular, the fact that we cannot make decisions without emotion something every trial lawyer, negotiator, mediator and sales person knows down to the knuckles of their spine.  Excerpt from Legal Sanity below.

Here are two facts:

• There’s a client service deficit in the law.

• Lawyers tend to regard emotions – their own and other people’s – as irrelevant to their work.

At first glance, these two facts seem unrelated. But they’re actually closely (even intimately) connected. 

Some time back, I posted on the interplay of emotions and client service in this new era of customer control. I linked to a ClickZ article citing a (then) new book by Dan Hill called Emotionomics: Winning Hearts and Minds. Launching from the premise that humans are primarily emotional decision-makers, the book discusses how emotions factor into our business opportunities in the marketplace and workplace. 

Picking up on this point from a slightly different angle, in a recent post, designer and marketing mentor Peleg Top says, Go ahead, get emotional. Top notes that, in marketing (and, I’d add, in providing) our services, “an effective way to generate action is to tell a compelling story, one that hits your customer’s emotions.” Suggesting that most service providers miss this mark, he observes . . .

For the remainder of Arnie's great post, click here.  And here's another great link on the same topic from Cutting Edge Law - the illicit relationship of lawyers and emotion.

More on the effective use of emotion in the negotiation of settlements soon.

Interviews with ADR giants: Mediate.com opens video archive for month of April

Posted by: Diane Levin in Cool Things on the Web, Mediation, Mediation in Practice

Mediate.com, the world’s premier source for news, information, and articles about mediation, has opened its video archive to the public during the month of April.

For description of the type of videos available, run right over to Diane Levin's blog by clicking on the title up top.

Thanks Diane for getting the word out about this.

For a taste of some of the offerings, watch this short video of Ken Cloke talking to Robert Benjamin about the evolution of conflict  over the lifetime of an individual as well as over the lifetime of a civilization.

Cloke is my mentor and his insights are just as useful to the settlement of commercial litigation than are some of the competitive negotiation skills I've learned along the way.  Check out all of Ken's videos.