Tips from Forbes & a Word with Women: Negotiate Your First Salary

(photo by Ashley Dinges)

If you're entering the job market, you'll want to check out Forbes' Magazine's Tips for Negotiating Your First Salary.

If you do not negotiate your first salary, you stand to lose half a million dollars over your lifetime. 

Who says?  The women who brought you Women Don't Ask: Negotiation and the Gender Divide

And for women entering the job market, here are the grim statistics: 

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

You Can Do It

It's not that we're not good negotiators.  A Harvard study (which I'll find & link to later) showed that women negotiated as successfully as men when they were negotiating for someone else!

So just pretend you represent yourslef and go for it.

Judiciary Makes Case for ADR

Check out JAMES HALUCK v. RICOH ELECTRONICS, INC. making the case today for ADR.

As the Met News summarized today:

Judge’s flippant comments about defendant and counsel in presence of jury throughout trial created appearance of favoritism toward defendant and required reversal of judgment favoring defendant. Trial judge erred in viewing videotape, which defense said it intended to offer as evidence, in presence of defense counsel where plaintiffs’ counsel was not present and did not waive right to be present. Judge engaged in misconduct by conducting trial in "circus atmosphere" in which judge committed such improper actions as allowing defense counsel to sing "Twilight Zone" theme while cross-examining plaintiff, suggesting that plaintiff was not functioning within the bounds of reality; holding up signs reading "overruled" instead of ruling verbally on objections; making demeaning comments when overruling objections and otherwise belittling plaintiffs and their counsel; using soccer-style "red cards" to indicate when judge thought statements were improper; and making sarcastic remarks suggesting a belief that plaintiffs were not credible.

Judge’s instructions to jury in which he acknowledged that he "talk[ed] a lot" and told jurors they "shouldn’t take anything that I say seriously [because] I have no role in this trial" did not cure prejudice created by judge’s egregious misconduct throughout trial, nor was such misconduct ameliorated by judge’s frequent rulings adverse to defendant. Where judge’s conduct throughout trial created appearance of bias, appropriate remedy was to reverse judgment and order case assigned to new judge. Japanese Friendship, Commerce and Navigation Treaty of 1953, to extent it may preempt state antidiscrimination laws with respect to the hiring of Japanese nationals by Japanese companies doing business in the United States, does not apply to an action against a local subsidiary of a company incorporated elsewhere in the United States that is a subsidiary of a Japanese company.

Makes the movie And Justice For All look too favorable a representation of the judicial process (all the Judges I know excepted!)

Five Ways to Avoid Litigation from Justin Patten

(photo:  Fighting Cats by Nikographer Jon)

From UK Mediator Justin Patten's (Human Law Blog) useful new e-mail newsletter and well-established blog -- 5 ways to avoid costly litigation, summarized below and linked here.  

1 Think carefully about the type of people that you do business with.

2 Be the kind of organisation which does not create disputes.

3 Seek to communicate effectively and consistently.

4 Have management trained to face up to the dispute. 

5 Have plain English and not too onerous legal terms.


For more details about Justin's mediation services, tailored mediation training or lunch time briefing sessions, call him at 01920 462202 or email Justin at  advice@human-law.co.uk

The Pitch

Justin Patten is an Accredited Mediator with the Academy of Experts who has advised in many workplace disputes. As a qualified solicitor he has also acted for clients on a wide range of employment disputes and is fully familiar with the legal process. Over the last 18 months he has elected to specialise in mediation, providing a full mediation service direct to businesses and via law firms, as well as providing practical mediation training. 

Peremptory Challenges, the Race Card and Negotiating Settlement

Fear Factor:  Letting a Jury Decide Your Case

What drives the settlement of all cases involving personal injuries and even those opponent-neutral disputes between commercial competitors? 

Fear of juries, of course. 

Juries are the "better" (or "worse") alternatives to negotiated agreements that mediators talk about when they throw around the acronyms BATNA or WATNA (see mediator Jessica Notini's excellent primer Effective Alternatives Analysis In Mediation: “BATNA/WATNA” Analysis Demystified).  

The Elephant in the Settlement Room

Even though Adam Liptak's New York Times Select article, Oddity in Picking Jurors Opens Door to Racial Bias, concerns death penalty cases, the means of choosing the members of the final 12 (or six in federal court) also drives civil justice in America.    

The referenced "oddity" in American trial law?  The peremptory challenge that permits lawyers to exercise more or less control over the final composition of the jury than some believe is warranted in an aspirationally color-blind justice system.  As Adam Liptak reports,

Justice Thurgood Marshall wrote that . . . . “peremptories inject [racial discrimination] into the jury selection process[, the elimination of which] . . . “can be accomplished only by eliminating peremptory challenges entirely.”

Two years ago, in the Miller-El case, writes Liptak, "Justice Stephen G. Breyer appeared to endorse that view, saying that “peremptory challenges seem increasingly anomalous in our judicial system[,]”  writing that 

 England has eliminated peremptory challenges but “continues to administer fair trials based largely on random jury selection.

Liptak concludes by suggesting that

Peremptory strikes are an odd and arbitrary historical artifact. Unlike equal protection, they are not guaranteed by the Constitution, and in capital cases — where race matters most — they would not be missed.

The settlement angle on this?  You can see it coming. 

In American urban courtrooms throughout the country, settlement decisions are commonly based upon the probable racial, ethnic, gender, and socio-economic composition of a jury that will eventually give their thumbs up or down on the Plaintiff's case.  If settlement decisions are governed by audacity on the Plaintiffs' side and fear on the defense side, both are often pinned upon the presumed "passion and prejudice" the "have nots" will bring to decisions affecting the "haves."  

And as the gulf between these two groups widens, the fear on the defense side has become more palpable.  *

Is this any way to run a justice system in a racially polarized society?

The White Reaction to the Black Reaction to the O.J. Verdict

We talk about "race cards" in this country because of the O.J. Verdict.  It wasn't so much the result of the O.J. trial that shocked America, as it was was the white reaction to the black reaction to the verdict. 

As Harvard Professor Henry Louis Gates, Jr. wrote in the aftermath of that trial (Thirteen ways of looking at a black man’ (23 October 1995), the phrase 

’ “race card” … itself infuriates many blacks. [Federal Appellate Court] Judge Leon Higginbotham Jr. . . .[said of] charges that Johnnie Cochran played the race card. “This whole point is one hundred per cent inaccurate. . . . If you knew that the most important witness had a history of racism and hostility against black people, that should have been a relevant factor of inquiry even if the jury had been all white .. .

[Academic and activist] Angela Davis [says] ... “Race is not a card,” she says firmly. “The whole case was pervaded with issues of race.” ’

Is Race a Card?

This is too big a question for this post.  I grapple with this issue an upcoming article in the LaTrobe University Dispute Resolution Journal (Vol. No. 1, so you won't yet find it online) and will link to it when it is published.

Let's just say this.  The jury is, as it was meant to be, a microcosm of the society.  Though originally meant to be comprised of people who were witnesses or who could track down witnesses to directly learn about the events giving rise to the dispute, over time the jury became a presumably neutral body that would determine credibility, "find facts" and, with the Judge's instructions, apply the law to the facts the jury deems the more credible.  

In analyzing the potential pre-trial settlement of an action, the attorneys consider everthing to be a potential "card."  If the stakes are high enough, they hire jury consultants to advise them how to select a jury that favors their side because trial lawyers are advocates looking for a jury that will be prejudiced in their favor.

This is not news.  It is the judge and the jury that are supposed to be neutral, not the trial attorneys.  And if they can increase their chances of winning by leaving African Americans or Koreans or the marginally employed on a jury, they will do so.  If it helps their case to use their peremptories to empty the jury box of women or Gen-X'ers or engineers or African-Americans, they will do that too.

And This Has What To Do with Settlement?

For a negotiated agreement to do the job of resolving the dispute in a better way than its alternative -- trial -- the parties and the mediator will have to grapple with the racial and ethnic and gender elephants in the room.  

And it may just be that a mediator who is capable of setting aside his or her prejudices long enough to look past issues of race, ethnicity, nationality, obvious religious affiliation, and gender, might be the one who is most capable of helping the parties achieve something that resembles justice.  

_____________________________

*     By the 1980s the United States had become the most unequal industrialised country in terms of wealth. The top 1% of wealth holders (the ‘Super Rich’) controlled 39% of total household wealth in the United States in 1989, compared to 26% in France in 1986, about 25% in Canada in 1984, 18% in Great Britain, and 16% in Sweden in 1986. More than 46% of all outstanding stock, over half of financial securities, trusts, and unincorporated businesses, and 40% of investment real estate belong to the super rich. The bottom 90% are responsible for 70% of the indebtedness of American households. Wolff, How the pie is sliced: America's growing concentration of wealth’ (1995) 22 The American Prospect 58.

N.I.T.A. Deposition Seminar Funnel Technique

From time to time I publish advice and "cheat sheets" for young lawyers who are just beginning practice.  This last week-end, I once again had the privilege of teaching some of the brightest young lawyers in the country how to take a deposition.

I've been teaching this workshop for the National Institute of Trial Advocacy since the mid-nineties.  The day before the workshop every year, I think, why did I sign up to teach this again?

And the first day of the workshop I answer, because these young lawyers learn with the speed that children heal.  They come in not knowing how to ask a simple question and leave three days later running a competent line of cross-examination.

I give you the "funnel technique" and will soon provide extra tips for your first or fifth or tenth deposition.

For more posts on taking depositions, click hereherehere and here.

Have a great career.  Many complain but, really, its a stimulating, character-building, multi-dimensional board game with real stakes.  You never master it.  That's the good of it.  There's always a challenge.

A New Neuroscience Blog is Born

I've been reading Stephanie West Allen's Renaissance Woman Blog, Idealawg, ever since I began blogging myself just about a year ago.

Here's the really really really good news.  Stephanie has started a new blog, Brains On Purpose™ Neuroscience and Conflict Resolution in collaboration with Jeffrey M. Schwartz, MD.

Check out their upcoming seminar in January in San Francisco as well.  

The blog is brand spanking new and I, for one, am greatly looking forward to getting a large part of my ADR-Neuroscience reading from these two experts in the field.

Add them to your news reader today!

 

Fee Negotiations

Nice perceptive piece on negotiating fees over at the Consultant Journal blog entitled Negotiating vs. Giving Up.  Thanks for the tip Andrea.

The above negotiation tip is sponsored by the acronym ZOPA.

Your mediator should never never never never let the parties believe they've reached impasse until the mediator is as certain as she can be that there is no Zone of Potential Agreement. 

How does s/he know?  Tune in for tips to knowing the mind of your mediator.

The Good Legal Samaritan and Psychic Currency; No Good Deed Goes Unpunished

In his article, Feeding Lawyers' Souls but Not Their Wallets, New York Times writer Adam Liptak reports on a recent federal appeals court opinion confirming the old legal saw that bad facts make bad law.

Should Pro Bono Attorneys Be Required to Accept "Psychic Reward" When Their Clients are Entitled  Attorneys Fees?

It seems that Gibson Dunn prevailed in a federal Voting Rights Act case after eight of its attorneys devoted 300 hours to the legal effort, resulting in a $107,000 bill, to be paid by the taxpayers of Albany County.

Most law firms the size, sophistication and power of Gibson do a lot of high profile pro bono work, with no expectation of reward.  When the law permits the recovery of legal fees, however, they are as entitled to be reimbursed as any other lawyer -- be s/he a solo practitioner, a public advocacy group, or a mid-sized law firm.

Sometimes only a firm like Gibson is capable of handling "small" cases on behalf of public-sprited NGO's.  I know.  I represented the Rain Forest Action Network when Occidental Petroleum brought suit against it for picketing the CEO's house in Brentwood.  Right or wrong, this is the type of case most attorneys could handle with a bit of a brush-up on the recent constitutional law on picketing.

Later, however, RAN needed an attorney to respond to a congressional subpoena implicitly threatening its tax-exempt status.  There aren't a lot of attorneys who can do this work, so I lateraled it to an AmLaw20 firm, with a D.C. office and lawyers capable of responding to power with power.

Let's Give the Federal Judges a Raise!

Federal judges -- all of whom are long past due for a pay raise -- sometimes cast a skeptical eye on fee requests by major international law firms.  When first year attorneys at these firms are making more than federal judges, we understand how it rankles.

But the "psychic reward" calculus seems not to have precedent -- nor credible legal basis -- as a response to any attorney's request for fees, be s/he a Gibson lawyer or a solo practitioner.     

Let's Get Back to Judging Fee Requests by their Merit

First, Voting Rights fee provisions are not simply meant to reimburse counsel.  Rather, we suspect, the exception from the "American Rule"  that governs most litigation, is to encourage attorneys -- not all of them Gibson, Dunns -- to take on cases for indigents harmed by civil rights abuses. 

We also suspect that fee awards in Voting Rights Act cases have some punitive purpose -- to encourage the government, for instance, to abide by the Act without lengthy and expensive legal resistance.

And hey!  Some attorneys get a lot of psychic reward from representing their corporate clients, not all -- or even most -- of whom are Simon Legrees of capitalism.  Rather, they're the types of enterprises that keep the American economy humming along for the benefit of most of our citizens. 

Would a court suggest that Yahoo's attorneys, or Google's, should be satisfied by the good they do for the economy of the country rather than seeking actual cash payment for the work they do?  What if their representation of Apple gives attorneys not only the "psychic" reward of playing golf once a week with the CEO, but also social capital -- access to people who can connect you to others who can make you even richer and more powerful than you already are. 

Should we consider that when granting or denying fee awards to the attorneys for Microsoft?

No Good Deed Goes Unpunished

We  shouldn't read this case as a happy occasion to bash attorneys who are signficantly more financially successful than the rest of us.  Rather, we should read it for the decision it is -- yet another occasion to confirm a second class status for the least of us, who this federal court presumes should be content to accept charity from attorneys who cannot hope to recover the fees that might be awarded if they represented clients with sufficient funds to to pay their attorneys in the first instance.   

If Gibson's fee was excessive, it should have been measured as all fee awards are -- based upon the sophistication and difficulty of the legal work required, the amount of time expended and the result achieved.

The fee should not, however, rest upon some unmeasurable "psychic award" that public spirited lawyers presumably receive when working pro bono or for a "good" cause.  

And the Settlement Angle? 

The news here is far from good as well.  If the indigent plaintiff is treated as a second class citizen by the courts, the wrongdoing defendant benefits at the expense of a good samaritan.  With more bargaining chips in hand, the defendant can cut a more advantageous bargain for itself.  The plaintiff -- bent primarily upon the public good -- must be satisfied with a lesser monetary reward and fewer bargaining chips to achieve the social justice s/he seeks.

Gibson did a good deed and is repaid for its public service by derision from the bench for its financial success and a diminished fee award.

No good deed goes unpunished.   

Pleading Justice Means Resolution Justice

We've taken to heart Justice Ruvolo's admonition that the Courts should put their resources into their central mission -- providing a litigation and trial forum to resolve disputes that the parties cannot or should not be required to resolve in "alternate" private forums.  

Though I'm an ADR fan, I don't think either arbitration or mediation should be utilized simply because the courts can't get your dispute resolved effectively, efficiently or in a cost-effective manner.

As we've noted before, no one wants to settle a case looking down the barrel of a gun.  Too often the "justice" system looks more like a .357 Magnum than the constitutionally mandated "fair trial" we've been brought up to believe in. 

Free the Defendants -- Dismiss Dubious Pleadings

Courts are at their most frustrating when they permit dubious or skeletal Complaints to stand, thereby requiring defendants to expend hundreds of thousands of dollars in legal fees to engage in the discovery and further pre-trial practice that they hope will extricate them from the litigation at the end of a (very long) day.  

Every time a Court requires the Plaintiff's Complaint to rise above the level of speculation, a justice angel earns her wings.

So it is with the Supreme Court's recent decision in Bell Atlantic v. Twombly, summarized by a recent Mayer Brown Antitrust Client Alert  Supreme Court Decision Signals a Major Victory for Antitrust Defendants in a Variety of Industries. (You know, you really should be blogging these great intellectual treasures -- talk to my friend Kevin O'Keefe at LexBlog about exhuming your best articles from the firm's web site and coming out into the blogosphere to play!)

Here's the good news on the new standard of pleading antitrust counts as reported by Mayer Brown:   

 The Court’s ruling brings Section 1 pleading rules into line with previous decisions that, at later stages of the litigation, a plaintiff’s proof must tend to exclude the possibility that defendants were acting independently. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986); Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752 (1984).

And it finally inters the oft-cited statement in Conley v. Gibson, 355 U.S. 41, 47 (1957), that a complaint should not be dismissed unless “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief”—a statement that some courts have held to permit highly speculative pleading revealing only “the theory of a claim.” Stating that this “famous observation has earned its retirement,” the Court concluded that it is “best forgotten as an incomplete, negative gloss” on standards that apply only once a claim has been stated adequately.

The Court’s decision has wide-reaching implications for federal antitrust litigation and signals a victory for antitrust defendants in a variety of industries. Paired with Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336 (2005), this case reflects the Court’s sensitivity to the pressures of settlement prior to discovery and its concomitant willingness to interpret strictly the Rule 8 entitlement requirement.  (emphasis mine).

For more information about your antitrust ligitiation, Mayer's Client Alert suggests you contact Richard J. Favretto or Gary A. Winters, both in Mayer's D.C. office.  

Cheating: Billable Hours

From time to time we take a look at social psychology and evolutionary biology because ADR practitioners must be good students and careful readers of predictable human behavior and ways to encourage change.

What better place to begin than with ourselves.  In this week's Blawg Review, Enrico Shaefer's Greatest American Lawyer gathers together the week's 411 on self-reported billing irregularities. 

I know this topic is compelling to lawyers because I've had more "hits" to the Bar & Grill Singers' "I'm Billing Time"  video (their song/my video) than for any other post.

Here it is again.  

On to disreputable billable hour violations . . . .

We're Hard Wired to Detect Cheating

In their article Evolutionary Psychology: A Primer, Leda Cosmides & John Tooby report on research finding that our reasoning abilities are more finely attuned to detect cheating than any other type of misbehavior.  Before discussing violations of social norms, Cosmide and Tooby explain the most fundamental norm in human behavior -- reciprocal altruism in social exchanges. 

The evolutionary analysis of social exchange parallels the economist's concept of trade. Sometimes known as "reciprocal altruism", social exchange is an "I'll scratch your back if you scratch mine" principle. . . [S]ocial exchange cannot evolve in a species or be stably sustained in a social group unless the [participant's] cognitive [abilities permit] a potential cooperator to detect individuals who cheat, so that they can be excluded from future interactions in which they would exploit cooperators.

Who are the cheaters?  Individuals who "accept[] a benefit without satisfying the requirements that  . . . [the] benefit  was made contingent upon."  You know, the people who earn a little extra by padding their billable time by two or three hours a week.  Benefit without satisfying its conditions.  Work for hire.

How Good Are We at Detecting Cheating?  Very, Very Good

The researchers designed an experiment to test whether we have a specialized "cognitive architecture" that permits us to detect "logical violations of conditional rules."  The result?  In response to a relatively simple logical problem-solving exercise designed to test this type of reasoning, Cosmides and Tooby found that fewer than 25% of subjects spontaneously detected the violation. 

What about our logical reasoning skills when it comes to detecting cheating or bluffing?  In these circumstances, we become very smart very fast.  The authors explain:

People who ordinarily cannot detect violations of if-then rules can do so easily and accurately when that violation represents cheating in a situation of social exchange . . . This is a situation in which one is entitled to a benefit only if one has fulfilled a requirement (e.g., "If you are to eat those cookies, then you must first fix your bed"; "If a man eats cassava root, then he must have a tattoo on his chest"; or, more generally, "If you take benefit B, then you must satisfy requirement R").

Cheating is accepting the benefit specified without satisfying the condition that provision of that benefit was made contingent upon (e.g., eating the cookies without having first fixed your bed).

When asked to look for violations of social contracts of this kind, the adaptively correct answer is immediately obvious to almost all subjects, who commonly experience a "pop out" effect.

Whenever the content of a problem asks subjects to look for cheaters in a social exchange -- even when the situation described is culturally unfamiliar and even bizarre -- subjects experience the problem as simple to solve, and their performance jumps dramatically.

In general, 65-80% of subjects get it right, the highest performance ever found for a task of this kind. 

No wonder we like to play Texas Hold'em.

And no wonder we get an uneasy feeling whenever we begin to sense that our opponent (or attorney!) is cheating us.  We just know it.

As I've often opined before, this is why the collective wisdom of juries as fact-finders will always trump panels of expert advisors.  They just know who's bluffing and who's not and they don't let a lot of legal or technical mumbo-jumbo interfere with their B.S. Detectors.  

Another Benefit of Getting Your Case Before a Mediator

After mediating full-time for three years, I realize it's not just how astute and perceptive I can be in reading people (there goes another of my own self-satisfied bubbles).  A mediator is simply in a unique position in an adversarial system.  We get to use our hard-wired bluffing skill because everyone talks to us more or less openly for several hours, which is longer than we really need to get a sense of who's bluffing and who's not.

Still, in order to detect this particular violation of the social contract, you do need a mediator more skilled at listening than s/he is at solving intricate logical puzzles.  Ideally, you look for both.   Education.  Training.  Experience.  But it's likely the mediator's ability to set everything else aside and simply listen as the parties explain themselves that separates the masters from the amateurs. 

How and why we too often override our gut feelings in this regard, permitting ourselves to be bilked and scammed, is the subject of Michael Webster's Blogs, which I highly recommend you make part of your skimming.  (who has time to actually read?)

And, oh yes.  It would be best not to cheat your clients.  Biting the hand that feeds you and all that.  Better to look him or her in the eye with a clear conscience and sleep soundly than make that 2200 hour bonus this year.

World Trade Center Coverage Litigation Settles

From today's New York Times article Insurers Agree to Pay Billions at Ground Zero 

The Spitzer administration announced the settlement of all insurance claims at ground zero yesterday, ensuring that $4.55 billion will be available for rebuilding the World Trade Center site.

The agreement, which the insurers described as the largest single insurance settlement ever undertaken by the industry, ended a protracted legal battle with insurers over payouts related to the terrorist attack.

New York State and Port Authority officials said yesterday that the deal removed any uncertainty over how much money would be available for rebuilding and would enable them to obtain private financing for the $9 billion project.

You wouldn't think there'd be a legal practice/personal story to go along with this settlement, but because this is the kind of work I did (insurance coverage litigation) during my last decade in practice, and because I met my husband litigating my last major coverage case (Lloyds of London adv. Imperial Oil, Exxon's Canadian subsidiary) this coverage litigation is a very personal story for me. 

How's that for a narcissistic world view?

The Legal Practice Angle

On Labor Day 2001, Steve, my beloved, moved to Heller Ehrman's Los Angeles office after 30-plus years at Heller in San Francisco. Five days before September 11.

We both had the same practice problem.  These cases -- the Imperial Oil case and soon the WTC coverage litigation -- consume your legal practice for years.  When they're over, you often think you'll never work again.  It's a little like being an actor in Hollywood.  Sure, you were nominated for an Academy Award for The Devil Wears Prada, but will Meryl Streep get another decent role ever again?

So Steve was wringing his hands about where his next case would come from.  When your practice depends upon catastrophic events accompanied by ambiguous insurance policies (they're all ambiguous) you don't want to wish too hard for new work.  

By Labor Day '01, I'd moved on to antitrust litigation against the entire Southern California workers compensation industry and was busy learning the intricacies of claims adjustment for workers comp claims.  My practice had always been more eclectic than Steve's so it was a little easier for me to pick up new work when THE BIG ONE settled.

You can see the rest coming.  Steve's daughter called the morning of September 11 and said "America's under attack."  The most chilling and difficult to comprehend string of words I've heard since a friend called at 3 a.m. in June of '68 to say "Kennedy's been shot."  

The towers came down and the coverage litigation commenced a few weeks later.  Steve and I spent our first year of unwedded bliss one week together and one week apart as he shuttled back and forth to New York for the conferences and court appearances; the depositions; and finally the mediation.  Because Steve represented Silverstein's lender (a mere $850 million) his client settled out early and we were able to get used to living together on consecutive weeks.

I neither worry about nor wish for Steve to obtain new coverage litigation anymore.  I started my neutral practice in '04.  Just as there is enough conflict in the world to keep every mediator employed full time through the next century, there will sadly be enough major catastrophic events to keep Steve employed through retirement.

And then neither of us will have to follow the "number of occurrences" case law ever again!  See also the Insurance Scrawl on the "number of occurrences" issue here.  Report on the Jury Verdict here.

 

ABA DRS Committee to Offer Ethical Guidance

I've been following numerous discussions on mediation ethics on a couple of ADR listserv's.  As a result, I can tell you there are a lot of ethical questions circulating among mediators, many of them too important to remain the subject of private discussion.

So I'm pleased to announce that the ABA has formed a new committee -- the Committee on Mediator Ethical Guidance.  According to the most recent ABA e-newsletter, the Committee

will provide advisory responses on ethics for mediators. Established by the ABA Section of Dispute Resolution, the committee will interpret the 2005 Model Standards of Conduct for Mediators published by the ABA, American Arbitration Association and Association for Conflict Resolution.

Check it out here.

Tags:

Summer Beach Reading for Lawyers

Henry David Thoreau, Walden (the 150th Anniversary Edition)

A couple of years ago, a friend bought me the 150th Anniversary Edition of Walden – a text I hadn’t read since high school. While building his spartan but serviceable cabin in the woods, Thoreau does a cost-benefit analysis of home ownership, calculating that “an average house . . . costs perhaps eight hundred dollars, and to lay up this sum will take from ten to fifteen years of the laborer's life.”

The thing, as we were taught in law school, speaks for itself.  Or as Thoreau put it, “the cost of a thing is the amount of life which is required to be exchanged for it, immediately or in the long run.”

This line stopped me dead in my tracks. Was this phrase more profound to me than the observation that “time is money” just because it appeared in 19th Century prose? Or had I simply lived too much of my life converting my own time into money, shaving hours into tenths, merging them weekly, monthly and yearly with my colleagues’ hours, converting the whole at year’s end into overhead, earnings, distributions and investments.

Whatever the reason, Thoreau's calculus made me suddenly recognize that the sheer raw number of my actual yearly wage had become more important to me than the things it might allow me to purchase, or even to store up against potential future calamity.  In all the getting and gathering, I thought, I may have lost the point of job, career, occupation.  

And this has to do with mediation in what way? 

I often quote Thoreau's aphorism when parties reach impasse.   It helps everyone make money transparent again.  That money is the means to particular end, not an end in itself.  That, even in this cynical age, most people would prefer a fair distribution of resources reached through compromise than total victory at all costs.  This continues to mark my own experiences as a mediator, despite the fact that the justice survey is continuing to run 50-50 on the question, "would you prefer to win unfairly or lose fairly."  

So as strange as it might seem, I heartily recommend Walden as one of the tomes you tote to the beach this summer along with your soda pop, sandwiches, cole slaw and sun screen.  

Why an IP ADR Practice and Blog?

As I mentioned yesterday, I've launched a new IP ADR Blog with IP attorney and triple-A arbitrator, Les Weinstein.

My mediation practice has been developing in the direction of an IP specialty for the past year. Nearly twenty years ago, Les advised me to specialize at a time when I was saying it's always best to be a generalist.   

He was right, of course, and in 1989, I moved to Buchalter, Nemer where I embarked upon a fifteen year career in environmental coverage litigation. 

Before joining Les as an associate at Pepper, Hamilton & Scheetz in the mid-80's, I'd handled trade name and unfair competition cases.  With Les, I did more copyright and patent work than I had before or since, although I continued to keep my hand in the IP field.  In fact, the last case I tried before leaving practice was a copyright case involving the infringing repackaging of an old Kung-Fu movie. 

That's the long introduction to the announcement that I've joined forces with Les again, to develop a specialty IP ADR practice.  We've each been individually pursuing IP ADR, Les more in the capacity of arbitrator and me more in the capacity of mediator.  We occasionally co-mediate multi-party IP disputes together and have found how well we work with one another.  

I don't know an IP attorney half Les' age who is more on the cutting edge of the emerging technological, commercial and legal issues than he is. He's an amazing guy with a big firm background -- Graham & James; Squire, Sanders & Dempsey & most recently, the IP firm of Sheldon Mak.  It's exciting to be practicing together again -- as neutrals.    

Together, we've launched an intellectual property ADR practice and blog. The temporary blog site is http://www.ipadrservices.blogspot.com. Kevin O'Keefe at LexBlog is going to set up the permanent blog for us.

Important aside:  an hour with Kevin on the telephone about marketing your practice with a blog is worth the price of the blog and its yearly maintenance.  (But don't tell Kevin what a great deal he and his company are or he'll raise his prices and I'm not yet that successful).  

The IP practice allows me to do what I love the most, which is to drive a business deal, maximizing commercial strategies and synergies, as well as long-term business planning.   

Most of all, I enjoy debunking the prevailing wisdom that a good settlement is one that makes everyone unhappy.  When I entered the mediation field, one of my private goals was to give my clients an opportunity to negotiate settlements that made them at least as happy as the business deals they routinely broker.  Although it doesn't, couldn't, happen every time, it happens a lot more in the IP field than in any other.  

When the parties realize that I'm prepared, indeed, eager, to roll up my sleeves to help them craft the same kind of sophisticated commercial deal that made them technological and commercial successes in the first place, they immediately get alot happier.

That's why I'm moving my practice in the direction of an IP specialty and why Les and I have started the IP ADR Blog.  I hope you'll visit us there.  

The New Intellectual Property ADR Blog

 

Because I've joined my expanding IP ADR practice with that of AAA arbitrator and mediator Les Weinstein, we've set up a "place holder" IP ADR Blog to reflect our partnership (in the broadest, not the legal, sense) in all things IP.

Do visit the new site if you are the client with IP issues or an attorney with IP clients.

We're excited about the new venture and hope our readers will benefit from the expansion.

Keeping Track of Your Time with Jott

Ask any lawyer what's the worst thing about legal practice and 9 times out of 10 the answer will be, "keeping track of my time."  

So a huge "thank you" to Tammy Lenski at Mediator Tech for hipping us to the best new way to keep track of time:  Jott.  

Others may use Jott to remind them to pick up a gallon of milk on the way home, but I'd suggest using it as your time-tracker.

The service is free.  You call the Jott telephone number (on speed dial), say "me" to its automated voice and dictate your 30-second (or less) message.

"The Larson matter.  I drafted the Complaint on May 16.  2.4 hours." 

Jott will send your message, transcribed, to your email box or, if you've got an assistant, to his.  

Done.  Thanks Jott!

Oh yes.  You can also use it to remind yourself to  pick up the milk on your way home.


 

When Attorneys Become the Common Enemy

ImageChef.com - Create custom images

The Enemy of My Enemy is My Friend

Mr. and Ms. Keene (names changed) entered the community mediation conference room and cautiously took their places next to one another at the scarred wooden table.  Though slightly wary, their greetings were warm.  He touched her lightly on the arm.  She pulled away, but smiled back.  

After the preliminaries were out of the way -- introductions, "rules of the road," the signing of a confidentiality agreement -- Mr. Keene launched into a low-key but passionate tirade about . . . . . .

               THE ATTORNEYS . . . . . .

a topic upon which there was complete agreement.

The attorneys had been

  • disrespectful, retiring to chambers with the judge while the parties sat outside the closed door listening to their attorneys' laughter;
  • unresponsive to telephone calls; and,
  • high-handed in responding to the Keenes' repeated requests to deviate from certain "standard" or "accepted" custody arrangements in favor of arrangements they knew were best for them and their child.  

I apologized for the way we attorneys sometimes act as if the dispute is our own; as if our relationship with Judge and opposing counsel is more important or compelling or fun than our interest in our clients; and, as if we know more about what's good for our clients' business (be it the business of running a family or a Fortune 500 company) than our clients do.  

By the time Mr. and Mrs. Keene arrived at the door of the Community Dispute Resolution Center, they were not simply exhausted and angry, they were nearly entirely disempowered.

"How do we 'de-power' our lawyers?" they asked.

"By taking your power back," I responded, alert again to my own inclinations to give unsolicited advice or raise problems only I might think the parties have. 

I've seen attorneys unite disputants before.  Early in my career, I observed the bitter progress of a case involving hundreds of millions of dollars in lost profits and a fight for the control of intellectual property worth more than a billion dollars.  After the parties had turned one another into the tax and custom authorities, they met without their white shoe attorneys, settled the case, and sued counsel for malpractice.

The Keenes left the mediation with an agreement in hand and their self-respect restored.   

I do not fault their attorneys.  I do not know what transpired before I arrived on the scene. 

I only know that at some point, the attorneys lost "control" of their clients by asserting too much of it. 

 

9th Circuit: "No" to O'Melveny Dispute Resolution Plan

ImageChef.com - Create custom images

When it comes to employment arbitration agreements, it seems like the more bases you try to cover, the less likely a Court is to enforce them.    

Even the highly respected Los Angeles-based international law firm of O'Melveny & Myers has proved itself unable to draft an employment arbitration agreement that satisfies California's procedural and substantive conscionability requirements.    

Just today, the Ninth Circuit Court of Appeal in Davis v. O'Melveny & Myers  held that the law firm's attempt to impose an arbitration agreement upon existing employees with a three-month notice period was both procedurally and substantively unconscionable.  (For a criticism of the opinion, click here).

In finding that O'Melveny's attempted imposition of the agreement on its employees was procedurally unconscionable, the Court stressed the firm's "overwhelming bargaining power" and the "take-it-or-leave-it" basis upon which the agreement was proffered.  Although the Court distinguished provisions that might permit an employee to negotiate a different deal, given its characterization of  O'Melveny's bargaining power, we don't imagine this Court would have read such a clause as anything other than illusory.      

As the Ninth Circuit stressed, however, a procedurally unconscionable agreement must be "analyzed in proportion to evidence of substantive unconscionability."  It thereupon went on to find four provisions substantively unconscionable:  the “notice,” confidentiality and, “business justification” provisions, as well as the limitation on initiation of administrative actions.

The challenged notice provision required the aggrieved employee to "give . . . notice of a Claim [within the year it arose] along with a demand for mediation" or it would be "lost forever."  Quoting Richards v. CH2M Hill, Inc., the Court held this provision substantively unconscionable because it would deprive the employee of the right to assert the "continuing violation doctrine available in FEHA suits" a benefit that flows only to the employer.  

The challenged confidentiality provision -- prohibiting mention of the mediation or arbitration "to anyone not directly involved" - was also found to be unduly favorable O'Melveny.  As the Court explained:

Such restrictions would prevent an employee from contacting other employees to assist in litigating (or arbitrating) an employee’s case. An inability to mention even the existence of a claim to current or former O’Melveny employees would handicap if not stifle an employee’s ability to investigate and engage in discovery. The restrictions would also place O’Melveny “in a far superior legal posture” by preventing plaintiffs from accessing precedent while allowing O’Melveny to learn how to negotiate and litigate its contracts in the future. Id. Strict confidentiality of all “pleadings, papers, orders, hearings, trials, or awards in the arbitration” could also prevent others from building cases. . . It might even chill enforcement  of Cal. Labor Code § 232.5, which forbids employers from keeping employees from disclosing certain “working conditions” and from retaliating against employees who do so.

The challenged exemption for alleged breaches of  confidentiality was also found to be unenforceable.  "As written," held the Court, the provision permitting a "non-mutual exception allowing [O'Melveny] a judicial remedy to protect confidential information" was “one-sided and thus substantively unconscionable.” 

Finally, the Court held that the agreement's preclusion of employee complaints to agencies charged with the well-being of California's citizens such as the Department of Labor, was contrary to public policy and therefore substantively unconscionable as a matter of law.  

There you have it.  One of the best law firms in the country was unable to draft an employment arbitration agreement that could pass public policy muster.  

Would anyone else like to give it a try?

Perfecting Your "Elevator Pitch"

(flickr photo:  Elevate by Frozenquack)

Every lawyer, business person and neutral interested in controlling his/her future should read this month's article by Catherine Alman MacDonagh and Beth Marie CuzzonePerfecting Your Elevator Pitch in the ABA's current Law Practice Magazine.

When I was a young associate, a senior partner in my firm bragged that he could pick up a girl during the time it took the elevator to get from our floor, the 25th, to the ground.  

"That's what you have to be able to do to develop a practice," he said gruffly, as I recalled his earlier advice that all a woman has to do to pick up a guy is to "show up."  I was certain that "showing up" wasn't a sufficient skill to develop my own Fortune 500 clients but I puzzled over the elevator rule for many years as if it were a zen koan.  

Today I learn that "elevator pitch" is an actual term of art -- an "introduction and description of who you are and what you do . . . ; [an] opportunity to define (or redefine) your personal brand or your reputation." 

"Communicating your elevator pitch," say MacDonagh and Cuzzone, "allows [others] to remember how you help people" and gives them the ability to "be your commercial."   

To be effective, say the authors, your pitch should be ten to twenty seconds in duration, succinct and memorable, spotlight your uniqueness, focus on benefits and be effortless to deliver.  

Earlier today I read some great "elevator pitches" in a Los Angeles Times article about Stanford Business School's "Entrepreneur Idol" Competition.  The competition required the students to "pitch their best business ideas" in one minute to a panel of four venture capitalists and one technology blogger.   The prize was "$2,000 in seed money and connections to a top-level venture firm." 

Contest winner Linus Liang held up a diapered baby doll and asked, "What if I could tell you how you can save 4 million babies a year?"   His idea?  Create a low-cost incubator that could help infants in developing countries. 

I have a lot to say about "elevator pitches," but suggest you take a look at MacDonagh and Cuzzone's article first.  I'll get back to this topic soon.

 

Amnesty International's "Close Guantanamo" Blog

 

I was dancing at the Biltmore Hotel in Los Angeles the night Clinton was elected President.  My candidate hadn't won many Presidential elections, so I was pretty happy and danced into the early morning hours with a young stranger, a smoldering Latin who spoke in a heavily accented but intricately articulate English.    

Later, on a semi-blind date, I casually asked him why, as an Argentine national, he was involved in Democratic Party politics.

"Because Jimmy Carter saved my life," he responded.  

Then he told me his story, about love and betrayal and deception; about the Dirty War in Argentina; and, the experience of coming to America.    

He'd been a student demonstrator, having an affair with an activist while continuing to date his long-time girlfriend.  The things we do when we're young and casually cruel to the people we love.  The woman with whom he'd been having the affair was deeply involved in politics while he was recreationally protesting, burning mattresses in the streets, shouting slogans.

All three were arrested and sent to prison.  Conditions were dire.  There was much he didn't, and wouldn't, talk about.  

What he did say was this: 

"After Carter was elected, they sent the Red Cross in to check on prison conditions.  I was also an  Amnesty International Prisoner of Conscience, so it wasn't just Jimmy Carter.  Amnesty International saved my life too.  Saved all three of us."

So we do make a difference.  We can save lives. 

So I refer my readers to the Amesty International "Close Guantanamo" Blog.  

First knowledge.  Then action. 

It's the least we can do.

At the Intersection of Justice and Winning

ImageChef.com - Create custom images
While our brothers and sisters (at least one of whom, Omar Kahdr, was fifteen years old when first imprisoned) continue to suffer agonies beyond imagining at the off-shore U.S. gulag at Guantanamo, I decided to conduct an extremely unscientific survey at the intersection of Justice and Winning.

Before discussing some of those survey results (deadline extended -- take the survey NOW!) I remind my readers of the differences between distributive justice ("how much of the pie should I fairly get") and procedural justice ("how is my share of the pie fairly determined?").  See my earlier post on the several kinds of justice that scholars of dispute resolution study here.

Would We Rather Have Justice or a Bigger Piece of Pie?

One of the survey's goals is to find out what attorneys and mediators believe they would rather have --most of the pie or a fair means of dividing it.  

Responses on this topic continue to run neck and neck.  If forced to choose between winning in an unfair process or losing in a fair one, 53% of our mediators and attorneys would choose winning over fairness.  

What Our Respondents Think Justice Is

What do our respondents mean when they use the terms "fair" or "just"?  The survey permits a limited, but telling, range of "justice" options.  Our respondents were asked to check as many of the  "following factors that  indicate . . . the negotiation or mediation process was 'fair' or 'just.'"   

I list here only those that received more than 50% of the "vote."

The mediator

     "listened carefully to all parties"  . . . . . . . . . . . . 91%

     "appeared to understand party positions" . . . .84%

     "appeared to understand party needs" . . . . . .  84%

     "was impartial" . . . . . . . . . . . . . . . . . . . . . . . . . . . 83%

     "suggested resolution options impartially" . . . 69%

The parties

     "listened to one another"  . . . . . . . . . . . . . . . . . . .66%

     "were honest in what they disclosed" . . . . . . . . 64%

     "understood one another" . . . . . . . . . . . . . . . . . . 53%

To sum up, more than fifty percent of the (primarily mediator) respondents, if forced to choose, would rather "win" than have an attentive impartial mediator who understood party positions and needs and suggested resolution options impartially. 

More troublingly, if the choice comes down to winning or losing, most of our respondents would prefer to be dishonest or to have dishonesty mar the proceedings, than to honestly lose.

Think Locally, Act Globally

This is no idle survey.  When casting my own vote, I forced myself to think about how I really behave "locally" as opposed to the way I think I should behave.  If the cashier gives me more change than I deserve, I always give it back.  But if I don't discover her error until I get home, I'm unlikely to drive back. 

If we can extrapolate from this "local" practice, I am honest when it is convenient to be so and not so much when it is not.  

Which likely explains why a country of laws and, more particularly, why we as lawyers, have let the Guantanamo situation exist and persist.  It's not because we don't care.  It's because we're busy.   

Nor do I think that if any of us thought about it longer than it takes to fill out a survey, we would jettison procedural fairness for a result that is best for ourselves (be it the largest slice of the pie or the illusion of safety in a dangerous world).

Which takes us full circle to the pained recognition that we have allowed injustice to flourish at Guantanamo and elswhere on our watch.

Now what?  I recently said to someone, "I feel like standing naked in front of the White House with my hair on fire demanding representation and a fair process for the detainees.  But because I blog, I'm blogging about it." 

It's a start.  But it's not enough.

What do YOU think we should be doing? 

 

Mysterious Metallic Ball Falls from Space into Paris Hilton's Lap

 

OK, so the part about Paris Hilton was pure tabloid (sorry, Paris, just kidding) but look! the mysterious metallic ball part is true!  Though like most headline-catching mysteries, not all that interesting after you get past the excited utterance.

Justice, however, should be neither hype nor mystery.

There are only two days left for you to take the Negotiation Justice survey here.

Litigators:  tell your mediators what protections and benefits you're looking for in a mediation.

Mediators:  ask your lawyer friends to take the survey.

And, oh yes, the people whose disputes we resolve.  Clients.  Yes, that's you.  The people who hire lawyers.  Tell us all what it is you're really looking for.  We promise we'll undertake a great effort to serve you better.

Preview from the Justice Survey     

If you had to choose, would you prefer to lose in a fair process or win in an unfair process?

Win even if the process was unfair 54%

Lose so long as the process was fair 46%

Agree?  Disagree?  Take the survey and let us know!

What Part of "All Rights Reserved" Didn't You Understand, Ms. Pynchon?

 

(photo:  Clean and tired by Rachel Devine)

I've blogged a lot about blogging/blawging here and spoken about it to groups of mediators for theSCMA and at the Straus Institute.

This morning, the In this case blog motivated me to give credit to flickr photographer, Sesame Ellis (aka Rachel Devine) whose glorious work -- like that reprinted with permission here  -- I've used to illustrate my blog. 

In other words, not only have I repeatedly used flickr artists' work without attribution, let alone permission, I've encouraged others to do so too.

This post is therefore both an amends and a notice to my fellow bloggers about using flickr copyrighted material without the permission of the artist.

Here's Ms. Ellis/Devine's response to my email this morning:    

I will allow you to use the image on your blog and I thank you for the link. Just for your future reference, not all photos that are marked public are free to use. A lot of people (including myself) use flickr as a blog and to showcase their everyday work.

Just like any other online portfolio, the images are all rights reserved unless otherwise stated. If you look below the green "This Photo Is Public" icon, it will state the rights available for the image. All of mine say "All Rights Reserved" which means they are not to be taken and used without my prior permission.

 There is an aspect to flickr called "Creative Commons" and that is where you will find the images that are free to use. I believe there is a way to search for those images only.

I really wish that Flickr would make it VERY clear regarding these issues of copyright and usage. It is disconcerting that someone like you who is obviously deeply educated in the law would not find the distinction obvious. I can only imagine how it appears to those who are not at all familiar with these things.

In response to Rachel's email, I went back to flickr to take a look at the copyright protection notice that I'd missed.  I hadn't missed it.  It's just not there.  I mean, Ms. Devine's "all rights reserved" tag and the little circled "c" is there.  But there's no warning about using such work without permission. 

I know, I know, I should know.  I guess I think the internet is another land.  And I forget my manners.

Flickr does explain its site's terms of use under "Copyright/IP Policy" in small print at the bottom of every page.  But that policy is more about the rules imposed upon those who post their images there. It provides precious little information about its artists' rights to forbid publication without permission.   

The creative commons license permissions are described in detail too, which is good for those who are willing to share without permission under the several designations described.  But even that page says little about those who don't operate under creative commons rules.   

So I'm passing along Rachel's reminder that "all rights reserved" means "hands off my work buster unless I say you can post it on the back that bus advertising your accident legal services with the 777-7777 number."   

At the same time, I'm posting a pretty straightforward (non-lawyer) explanation of the copyright laws as well as 10 Big Myths about Copyright Explained by internet publisher Brad Templeton. 

For the legal eagles, the Copyright Blog has an amusing history, a "fair use" calculator, and other great legal copyright insights and lore here.  

In This Case People Tell Their Stories About Justice

(photo The Real Us . . . by sesame ellis, flickr

Thanks to Diane Levin (hey! nice new web site Diane) at the Online Guide to Mediation for hipping us to In this case . . . a blog of people telling their stories about the law.  

Brought to us by Tracey Broderick, the blog's mission is to bring you people's stories about their personal encounters with the justice system.  As Tracey explains:

In this case is a blog of personal stories about the American legal system. If you’ve gone through a divorce or served on a jury, you have a story. If you’ve served time or argued in court, you have a story. Any personal experience with the law can be a story. These stories show when the law does and doesn’t work; how it angers and inspires us. They describe the law and what it means to us all living our modern lives here in our country. This blog brings these stories together so we can hear each other.

I edit the stories. Some are sent to me; some are drawn from interviews with people who want to talk in person. I keep each story as true as possible to the words and voice of each person. If you have a story for the blog, please let me know–I love to help people be heard.

This blog should be required reading for anyone interested in justice issues -- attorneys, law professors, local, state and federal government officials, probation officers, therapists, social workers, arbitrators, mediators, police, sheriffs, bailiffs, judges, court reporters (the stenographers of raw American conflict), students of the criminal and civil justice systems, law students, activists, preachers, teachers, spouses, people who would like to be spouses, people who are tired of being spouses, parents, and children over the age of consent . . . . . gee, I think that means everyone.

Let me rephrase.  This blog should be required reading for everyone.  It's a small but powerful exercise in little "d" democracy.  The kind that grows from the ground up.  Not the kind that is brought to you by foreign lands at the point of a gun. 

And following Tracey's example, I too will henceforth give credit to the myriad flickr photographers whose photos I use more than once a grateful day of my year.

The Qualities Mediators Think Attorneys are Seeking

Dear Readers,

I haven't received nearly enough attorney and/or disputant responses to the Mediation Negotiation Survey, but I can share with you some preliminary thoughts, primarily of mediators, about the qualities they think you're looking for.

Patience, by the way, is in the lead as the most-cited essential mediator quality.  

Are they right?  Take the Negotiation and Mediation Justice Survey to let them know now!

In Answer to What Qualities a Good Mediator Should Have, individual responses include:

  1. Neither be naive nor cynical. 
  2. Will re-focus us on what is important 
  3. Skills to enhance communication between and with the parties and their counsels. 
  4. intelligence
  5. knowledge of the law and the court system
  6. experience in the area in dispute and experience as a mediator in that area 
  7. Will not intimidate the parties
  8. Will NOT NOT NOT NOT talk to one party before the other party arrives if the mediation is to be conducted with both parties present. 
  9. The understanding that the "truth" or whether someone is lying is unknowable in some or many instances. 
  10. ability to listen 
  11. patience 
  12. patience
  13. integrity
  14. teachable
  15. open-minded 
  16. patience
  17. ability to manage the process 
  18. Resilience.
  19. Accessibility. 
  20. Will listen for what isn't said and will be a good coach. 
  21. trustworthy 
  22. Patience.
  23. Intelligence.
  24. A calm manner which encourages an appropriate hearing atmosphere. 
  25. Will make sure both parties understand the cost (time, money and other) of not settling. 
  26. sense of humor
  27. perspective
  28. sense of the bigger picture in the workplace/business in /about which the dispute occurred
  29. ability to tease out any unspoken back- story between the parties and any goals additional to the outcome of the mediation for the parties
  30. ability not to impart a sense that he/she is rushing for a plane
  31. communicate that he/she is totally engaged even after the mediation ends, if called for. 
  32. Flexibility. 
  33. empathy
  34. great facilitator
  35. fair, fair and fair
  36. sense of appropriate humor
  37. act professional not personal
  38. move along the process and keep control of the process
  39. ability to deal with difficult personalities 
  40. Is able to facilitate the discussion and feed back what he/she is hearing from both parties

Our Readers Respond: ADR Part of the "Big Poker Game"

The question whether mediation should be "fair" or "just" elicited the following thoughtful response from one of our attorney readers, who, as you can tell from the context, primarily represents plaintiffs seeking to recover commercial debts allegedly owed by individuals and small businesses. 

Distributive Fairness

"I only think a settlement is 'fair,' says our reader, "when it incorporates the mathematical calculation of prospective damages multiplied by a risk factor of litigation (i.e. 80% chance of winning $100K, means an $80K settlement is fair)."

A mediated resolution that is "fair" under this definition only results, he continues,

 when the other side "does the math" - most defense counsel just bluster and try to throw up "what if" roadblocks that derail a serious discussion about resolving the whole dispute. They don't do the math, and even if they did, there is enough disagreement over the "odds" that the process is far from transparent.

Distributive Injustice 

"Perhaps," says our correspondent,

we have a different interpretation of what "fairness" is.  I have plenty of situations where I sue on [a] debt [where,] by the time the . . . . [contractual] interest and attorneys' fees get worked in . . . , a $5,000 debt becomes $12,000 judgment and no [one] in the world thinks this is fair. But most eventually "settle" . . . not because they want to, or believe that the . . . settlement is "fair", but because the option of coming up with [the funds] to hire an attorney, and then eventually lose, is less attractive than trying to pay on a monthly basis.

In this case, is the settlement  fair?

From my client's perspective, it will get paid more than 100% of its initial principal due, and this type of settlement completely negates the possibility of zero recovery for the creditor if the debtor is judgment proof. .   .  

[Many defendants are]  willing to pay to get out of the case for "peace of mind" and pay
more than what they thought was fair.

Fair resolutions only work when everyone is willing to play fairly - and because everyone (especially litigation attorneys) feels that dispute resolution is a zero sum game, the little tactics we use in litigation skew the process so ADR really becomes a big poker game. And when people hide information, and outside factors to the dispute loom larger than the dispute itself, it becomes less about fairness and more about force. 

Another Call for Habeas Corpus in Guantanamo

I listened to This American Life's broadcast on the detainees at Guantanamo for the first time this week and have this to say.

The last time I was this shocked by American injustice was in my childhood, sitting in my parents' living room watching black & white TV broadcasts of police taking fire hoses and attack dogs to peaceful demonstrators in Mississippi.

Really.  And there have been a lot of shocking events since then.

I'm providing you with a link to that This American Life episode below, after providing you with the following excerpt from Chris Suellentrop's New York Times Blog The Opinionator on the same subject. 

The Washington Post editorial page joins the editorial pages of The New York Times and The Los Angeles Times in despairing over the Democratic Congress’s failure to implement “the reform that may be most achievable — the restoration of the ancient right of habeas corpus to the Guantanamo detainees.”

House Democrats have not “hesitated to pick fights with the administration over such issues as whether the hiring and firing of U.S. attorneys was properly managed, or whether Karl Rove and Condoleezza Rice can be compelled to testify about their actions as presidential advisers,” the Post editorial notes.

“Why not fight for the right of habeas corpus? Maybe because it’s not really a priority for the Democrats, after all.”

Click here for This American Life's Peabody Award Winning Broadcast Habeaus Schmabeus -- MUST LISTENING for anyone interested in restoring the rule of law in the United States and having a rat's chance in %$^#@ of of holding our heads high (or least above ground level) in the international human rights community again.

Avoid Litigation with Adams' Drafting

Having spent nearly my entire career litigating the terms of ambiguous contracts, I'm not certain careful drafting is the only answer, but its certainly one way to avoid the dreaded process server pounding on your door.   

As I used to tell my clients, litigation and trial are the legal equivalents of heart transplant surgery.  Pricey and potentially life-threatening.  Careful contract planning and drafting is the yearly medical physical -- prudent and worth its weight in top-flight litigators and dazzling trial lawyers.  

It is for this reason that I refer my readers to "AdamsDrafting," a first-class transactional blog and website I stumbled upon this morning.

Ken Adams, who will be here in Los Angeles in June has apparently made a career of spreading the wisdom of quality writing in the drafting of contracts.  Because it looks like he's the Shakespeare of the trade, I'm recommending that you subscribe to the RSS feed of AdamsDrafting Blog and avail yourself of Mr. Adams' wisdom when he appears in your town.

I'm not worried that Adams will put contract litigators and mediators out of business -- there's no way you can anticipate and provide against everything.  But you can avoid the repetititve pitfalls like the one Mr. Adams describes here.

Thanks for sharing the wisdom Ken!

The ADR Forum Responds: California's "Depublish" Option

Here's what I like about the National Arbitration Forum -- it responds promptly and effectively to its clients -- a quality you look for in an ADR provider.

Earlier, I hipped my readers to NAF's inclusion of depublished cases in its excellent free ADR Law and Policy Update, a service upon which I rely to keep myself current. 

Because I was taught never to rely upon case summaries no matter what the source, before posting an update from NAF, I check it out on WestLaw or Lexis.  Sure enough, a couple of cases cited had been depublished. 

I let NAF know about California's (unhealthy) habit of depublishing more cases than it publishes and received, within days, the following response:  

Good Morning Vickie! In response to your email: our hope is that readers will routinely ensure a case is "good law" before citing it to a court or arbitrator. At any rate, we, the National Arbitration Forum, thank you for pointing out the recent increase in de-published California decisions.

In light of your helpful feedback, we plan to add a disclaimer to the ADR Case Law Archive and perhaps the ADR Law & Policy Update reminding subscribers not to assume that case summaries contain information about subsequent developments.

Thanks again for “hipping” us to the de-published decisions!

Best,

Christina Doucet
Communications Specialist
National Arbitration Forum (FORUM)

You're welcome Christina!  And thanks, as always, for your quick and satisfying response!

Winning in Negotiations

The Litigation and Dispute Resolution Sections of the Los Angeles County Bar Association invite you to participate in the Second Day of WINNING IN NEGOTIATIONS.

(brief aside:  Do you want to score a victory for your client or simply resolve your dispute short of trial when mediating your case?  Let us hear your voice in our national  Negotiation and Mediation Justice Survey here -- 3 minutes max, promise)

Ad copy for the Negotiation Seminar below:

Want Inside Information Straight from Some of the Most Successful Professionals? Session 1 was great...Session 2 was awesome! Join us for the last session that will focus on your negotiation skills!!!

May 14th, 2007
6:30 pm -- 9:30 pm

In this cutting edge workshop, you will learn how to utilize effective and successful techniques and strategies to win in negotiations.

Please join the following attorneys and mediators for the last day of this interactive and highly engaging seminar entitled “Winning in Negotiation.” This panel will use film clips and interactive role playing to highlight new methods to achieve an understanding of negotiation principles and enhance your negotiation skills.

Panelists include:
 
Raymond P. Boucher, Kiesel Boucher & Larson Panelist
John A. Girardi, Girardi Keese & Crane Panelist
Stephen J. Henning, Wood, Smith, Henning & Berman, LLP
Jeffrey Kichaven, JAMS Moderator
Lisa Klerman, Mediation Office
Gig Kyriacou, Mediation Offices of Gig Kyriacou
Alexander S. Polsky, JAMS Moderator
Martin D. Singer, Lavely & Singer , Panelist
Amy Solomon,  Girardi Keese & Crane Panelist

Join us for insider tips from the best in the field: experienced negotiators and mediators, judges and other experts who will share their expertise with you.

Topics include:

• Distributive bargaining

• Development of target and resistance points

• Tactics in distributive negotiation

• Breaking Impasse

• Developing listening skills as a negotiator

• Why negotiations fail

• Negotiation role plays and discussion

... and so much more...

For more information please call Gemma at 213-896-6441; to register, CLICK HERE or call 213-896-6560.

Construction Defect Litigators: Let Your Voice Be Heard in National Mediation Survey

I don't have the statistics but know from experience that construction defect litigators mediate their cases to settlement more often than, say, general commercial litigators (my background).

Earlier in the week, I posted a "Negotiation and Mediation Justice Survey" in this blog whose purpose is manifold.

  1. although justice and fairness issues are repeatedly raised in my mediation practice -- "s/he's extorting me" or "s/he victimized me," most of the mediators I've casually asked say "we're not in the 'justice' business, we're in the business of finally resolving disputes."
  2. SO I WANT TO KNOW WHAT LAWYERS WHO ARE REGULAR ADR USERS REALLY THINK ABOUT JUSTICE/FAIRNESS ISSUES IN NEGOTIATIONS AND MEDIATIONS.

Your Views on Optimal Mediator Practices.

As I was devising the survey, I decided to take the opportunity to get a good sampling of mediator and attorney attitudes toward standards of mediation practice.  

So I put in some questions on the mediator qualities I've been told attorneys are looking for as well as those that I believe to be important, with an open-ended question to include anything I'd missed.

Here's the Problem

I've got wayyyyyyyyyyyyyy TOO MANY mediator responses and way too few attorney responses. 

I really need to hear from YOU -- THE CONSUMER OF MEDIATION SERVICES.

Already, the results are surprising.  I will share them with my readers (and with anyone who takes and identifies themselves at the end of the survey -- you may take it anonymously) in a couple of weeks.

I'm also writing a law review article (this is no idle threat, I have one published and one about to be published) on negotiation and mediation justice issues that will include your responses.

So I'm asking all Construction Defect Attorneys to let me know what they want and need from mediators in the hope that we can begin to have a national conversation between mediators and litigators about where we're meeting one another's expectations and where we're not.

It will be good for all of us.  Please take the survey!

Employment Lawyers: Let Your Voice Be Heard in the National Mediation Justice Survey

I don't have the statistics but know from experience that employment and family law attorneys mediate cases more often than any other specialty with the possible exception of construction defect litigators.

Earlier in the week, I posted a "Negotiation and Mediation Justice Survey" in this blog whose purpose is manifold.

  1. although justice and fairness issues are repeatedly raised in my mediation practice -- "s/he's extorting me" or "s/he victimized me," most of the mediators I've casually asked say "we're not in the 'justice' business, we're in the business of finally resolving disputes."
  2. SO I WANT TO KNOW WHAT LAWYERS WHO ARE REGULAR ADR USERS REALLY THINK ABOUT JUSTICE/FAIRNESS ISSUES IN NEGOTIATIONS AND MEDIATIONS.

As I was devising the survey, I decided to take the opportunity to get a good sampling of mediator and attorney attitudes toward standards of mediation practice.  

So I put in some questions on the mediator qualities I've been told attorneys are looking for as well as those that I believe to be important, with an open-ended question to include anything I'd missed.

Here's the Problem

I've got wayyyyyyyyyyyyyy TOO MANY mediator responses and way too few attorney responses. 

I really need to hear from YOU -- THE CONSUMER OF MEDIATION SERVICES.

Already, the results are surprising.  I will share them with my readers (and with anyone who takes and identifies themselves at the end of the survey -- you may take it anonymously) in a couple of weeks.

I'm also writing a law review article (this is no idle threat, I have one published and one about to be published) on negotiation and mediation justice issues that will include your responses.

So I'm asking all Employment Attorneys to let me know what they want and need from mediators in the hope that we can begin to have a national conversation between mediators and litigators about where we're meeting one another's expectations and where we're not.

It will be good for all of us.  Please take the survey!

A Call to Ban Mandatory S.E.C. Arbitration

The big news in the arbitration world this week is the request made to the S.E.C. by Senators Leahy and Feingold to ban the mandatory arbitration of claims made by customers against their brokers.  An excerpt from the New York Times article Dear S.E.C., Reconsider Arbitration, with a link below.

ARGUING that it is wrong to force investors into arbitration when resolving disputes with their brokers, two prominent United States senators have asked the Securities and Exchange Commission to ban the Wall Street practice of requiring customers to sign away their rights to bring their grievances to court. 

Last Friday, Patrick J. Leahy, the Vermont Democrat who heads the Senate Judiciary Committee, and Russell D. Feingold, the Wisconsin Democrat and a committee member, wrote to Christopher Cox, the S.E.C. chairman, asking that it ban mandatory arbitration “in fulfillment of its statutory duty to protect individual investors.”

Arbitration is fine for straightforward disputes involving modest claims, the senators said. But for many investors, the courts are preferable. Arbitration not only lacks a court-supervised discovery process, they wrote, it does not require panelists to follow rules of evidence or provide written opinions justifying their decisions.

for remainder of article, click here.

Proving Up Your Mediated Settlement Agreement: More on Simmons v. Ghaderi

We've been following the case of Simmons v. Ghaderi since the opinion appeared in October of last year.  The case went up to the California Supreme Court for review in December '06. The issue, as defined by Dr. Ghaderi is:     

whether there can be an enforceable settlement agreement when all evidence upon which it is based is inadmissible under the mediation statutes. 

As our previous commentary on this case indicates, we believe this accurately states the matter at issue and the source of the lower court's error.   That commentary, along with a mediation analysis using the Simmons' facts as a hypothetical, can be found here, here and here.  

I'm supplying you with the reply brief only.  (and adding the recently posted CDRC Amicus Brief here)

Once upon a time (at least 20 years ago) a Superior Court Judge confided in me that if s/he were overwhelmed with work and facing a calendar call, s/he would read the reply brief only "because it contained all the arguments." 

YIKES!! 

This did considerably alter my briefing habits. 

Here the Reply covers most of the arguments in the Opening Brief and the responses to the Opposition, which I haven't seen.  If anyone wants to send it along to me, I'll post it too.

 

If ADR Marketing Gives You Stage Fright . . .

. . . you'll want to attend Dina Lynch's upcoming Breakthrough Summit- Expanded 3 Keys on Friday, June 8, 2007, between 9 and noon PST at Preservation Park, Oakland, CA; Robinson Classroom.

Here's Dina's description of the seminar:

The Summit- the Power of Collaboration

There's palapable excitement that happens when folks get together to create something brand new and the Summit is no exception.

You'll be inspired by a ton of ideas that can shape your practice. You'll leave with your own written 'road map' and you'll be accompanied on your journey to success by all the interesting practitioners who will become part of your network.

With the ADRPracticeBuilder community and those folks, just imagine how supported and confident you'll feel.

Seminar Topics:

This is a full morning that will definitely give you food for thought and plenty to do!

Topics covered:

What Will Your Business Bring You?
Business Systems You Can't Survive Without, including Your Fab 4: Attorney, Bookkeeper, IT person and VA
Digging into the 4 Questions to Find your Niche
Related Niche Groups- Your Secret Weapon
Getting Known the Easy Way: Article Marketing
Your Cup is Overflowing: Eliminating Limiting Beliefs
You'll leave this fun, information-packed morning with a workbook that includes:

* a written Business Vision Statement * a Checklist for evaluating your 'business system health' * a Worksheet for explore the 4 Questions * a Roadmap for finding Related Niche Groups * a template for writing articles and submission site list

All this quality information and support for under $100!

SUMMIT DETAILS HERE 

For questions, please email email: dina@adrpracticebuilder.com or call 617 553-0423

Jury Trials, Jazz and Rock 'n' Roll

Our thanks to David W. Dresnick  of the Arbitration Mediation Group for passing along the recent New York Times article on the Vanishing Jury Trial -- Cases Keep Flowing in But the Jury Pool is Idle
By Adam Liptak, April 30, 2007 New York Times.

This excerpt was of the most interest to me & the most surprising:

The jury trial is a distinctively American tradition in a cultural sense, too. Almost all civil jury trials in the world take place here, and 90 percent of the criminal ones. But that tradition, which Prof. Paul Butler of George Washington University calls "as fundamental a part of our culture as jazz or rock 'n' roll," is dying.

(emphasis mine)

David Dresnick also generously passes along Knocking Heads Together from the February 3, 2007 issue of the Economist.  Excerpt below: 

Knocking heads together

Why go to court when you can settle cheaply, quickly and fairly elsewhere?

THE Bank of Credit and Commerce International's lawsuit against the Bank of England lasted 13 years and cost some £lO0m ($196m) in legal fees. The Bank of England's governor disgustedly described it as "the most expensive fishing exercise in history". The presiding judge, Mr. Justice Tomlinson, called it a "farce".

Had the parties agreed to mediation it would have taken probably a day and cost just a few thousand pounds. According to the London-based Centre for Effective Dis¬pute Resolution (CEDR), one of Europe's biggest mediation bodies, of the 3,000 or so commercial disputes that are subjected to mediation in London every year around 70-80 % reach a settlement within one or two days, with a further 10-15% settling a few weeks later.

Litigation used to be the natural way of settling disputes, especially in advanced countries. Then clogged courts and ever costlier lawsuits made arbitration look bet¬ter, especially in cross-border commercial disputes. But it often proves no cheaper, fairer or even quicker.

In America, from filing a complaint to arbitration decision takes, on average, 16.7 months. So out-of court alternative dispute resolution (ADR) procedures, such as mediation, are now in vogue. The late Sir Michael Kerr, former president of the London Court of Interna¬tional Arbitration, was a leading convert.


"In the same way’s I have had my mind changed about litigation in favor of arbitration, my long devotion to arbitration is now being eroded," he said.

for more, click here.

Arbitrator May Use Successive Awards to Finally Decide All Issues

Thank you to our friend Alicia Freundlich, a Straus LL.M candidate, for passing along this case summary copied verbatim from the Newsletter of the Business Law Section of the State Bar of California.  

(right)  More serious balloon popping by the ever popular Charles Fincher of LawComix.com, who every so graciously lets me use these fabulous lawyer cartoons for free.  Do support him by paying cold hard cash for a signed copy, or better yet, a custom-made print for your favorite partner, judge, client, administrator, legal assistant, or associate.

COURT UPHOLDS ARBITRATOR’S ABILITY TO USE “MULTIPLE INCREMENTAL OR SUCCESSIVE AWARD PROCESS” AS A MEANS OF FINALLY DECIDING ALL ISSUES

Roehl v. Ritchie

2007 DJDAR 1480, 2007 Cal App LEXIS 125  (Ct. App. 4TH Dist. 1/31/2007)


This case arose from a dispute between the sons of a decedent and his second wife over distribution of the estate. The dispute was arbitrated and the arbitrator issued an award on March 1, 2004 concerning most of the issues in controversy. Among other things, he ruled that the wife had a 75% interest in the decedent’s home and that the sons had a 25% interest, which should be distributed to them because the wife was still living in the home.. The arbitrator indicated that the home was valued at $575,000 based on a November 2003 appraisal which covered the home and some other assets. He ruled that the appraisal would be the basis for distribution “unless the trustee determines that changes will be needed…if…in light of new developments since [November 2003], a somewhat different distribution of assets would benefit the estate” and he offered to work with the trustee to ”review any questions he may have concerning the orders and findings made by the arbitrator”.


The wife died one week after the award was issued. The wife’s niece, her successor in interest, successfully moved to confirm the award and that decision was affirmed on appeal in an unpublished decision. While the appeal was pending, the trustee petitioned the arbitrator for instructions on several issues, including whether to value the home as of the time of the award or as of the time of the distribution of the estate assets. In October 2005, the arbitrator issued a second award in which he, inter alia, valued the home at $1,050,000. Because this would lead to a larger distribution to the sons, the wife’s niece opposed confirmation of the award on the ground that this was a correction or amendment of the original award and thus beyond the arbitrator’s power because it occurred long after the time allowed to correct or amend.

The trial court confirmed the award, the niece appealed, and the Court of Appeal affirmed. It ruled that the arbitrator, by allowing for an opportunity by the trustee to amend the valuation, plainly left the matter of the value of the home up for future consideration if the trustee determined that changes were needed.

Note: It can sometimes be difficult for a party to discern whether an arbitrator is correcting an award, amending it, or issuing an incremental or successive award and that is what happened in this case. Code of Civil Procedure 1284 provides that a party must apply to the arbitrator for correction of an award no later than ten days after service of a signed copy of the award on the applicant, other parties must object within ten days after the application is delivered or mailed to them, and the arbitrator must issue any corrected award not later than thirty days after service of a signed copy of the award on the applicant.

But, in Delaney v. Dahl, 99 Cal App 4th 647, 659 (2002), the Court of Appeal held that an arbitrator may amend the award at any time prior to confirmation of the award so long as the amendment is consistent with other findings on the merits of the controversy and does not cause demonstrable prejudice to the interests of a party. And in Hightower v Superior Court, 86 Cal App 4th 1415, 1431 (2001), the Court of Appeal affirmed an arbitrator’s ability to use “a multiple incremental or successive award process as a means, in an appropriate case, of finally deciding all submitted issues”.

(emphasis my own)


ADR Law & Policy Update and Depublished California Cases

We here at Settle It Now Negotiation Blog appreciate and rely upon the National Arbitration Forum's free ADR Law and Policy Update.  We republish NAF summaries of ADR cases important to our clients' and readers' practices.  

I've now hipped NAF to California's unusually high number of depublication orders resulting in the depublication of many of the recent ADR cases I've seen reported in NAF'S ADR LAPU.  

I find NAF's case summaries among the best in the field and continue to recommend that you subscribe to the free newsletter.  In doing so, however, I caution my California readers to check for depublication orders on the California cases reported.

Please Take Our Justice Survey

 

by clicking on THIS LINK HERE, NOT ON THE TITLE LINK.

MY GREAT GOOD BLOGGING FRIEND DINA LYNCH AT MEDIATION MENSCH AND ADR PRACTICE BUILDER ASKS OF THIS SURVEY: 

 

 "SHOULD I TAKE THE SURVEY AS A MEDIATOR OR A CLIENT/LAWYER?"

THANKS FOR HELPING ME SEE THE CONFUSION DINA!

HERE ARE THE FUNDAMENTAL QUESTIONS UNDERLYING THE SURVEY:

Are we as mediators in the business of delivering justice or simply final resolution?  

Do the attorneys and/or clients who use our services WANT US to be in the business of delivering justice (or enabling it?) when we help them resolve a dispute?

HERE'S THE ANSWER TO DINA'S QUESTION:

You can't really take the survey as a mediator.  You need to take it as a lawyer serving clients or as the client itself.

THE QUESTIONS ARE NOT ASPIRATIONAL, i.e., would you REALLY rather WIN at any cost or LOSE fairly?

That's a genuine question.

The answers can be anonymous.

It's not an easy question to answer truthfully. 

Try your best to put yourself back into a situation where you really wanted to prevail. 

Now answer the survey!  Here's the link to the survey again. 

We'll post the results here next week. 

California Justice Ruvolo Asks: Should the Courts Stay in the ADR Business?

The year's must-read California Litigation Journal article is Justice Ignazio Ruvolo's "It's Time to Re-examine the State of Civil Litigation in California."  You have to be a member to read the issue on-line (here Crisis in the Courts?) but if you're not, find a friend who is and steal her copy. 

Justice Ruvolo begins his concise history of the state of California's courts by suggesting that "if your bar number has fewer than six digits, then you doubtlessly witnessed firsthand the crisis that was the progenitor of the current state of civil litigation in California."

He not only proceeds to swiftly chronicle the way we got to mega-firms, six-figure first year associate salaries, and partner-free-agency, but also to question whether the Courts are doing the public a disservice by continuing to provide ADR services.  A few thought-provoking excerpts below:

If the courts intend to stay in the ADR business for all time, some complain that they are not now competing with private ADR very successfully.  One reason for this non-competitiveness is inadequate funding . . . . [C]ourts cannot afford to provide uniform training for mediators or to pay for mediation services and must rely on voluntary panels which compete with fee-generating private ADR for the time of neutrals.  Some believe that the courts must necessarily impose a level of procedural uniformity for court-sponsored ADR that is inimical to the creativity and flexibility that is at the heart of successful mediation.

Of perhaps greater concern is the growing view that ADR-related activities by the trial courts are diverting money and resources away from the judiciary's core role:  that of providing adjudicative processes to litigants . . .

Since ADR has truly become part of the legal system's culture, perhaps then the courts could safely leave ADR largely to the private sector.  If the judiciary limits its role in ADR it will have the associated benefit of freeing judicial resources needed to shore up the court's adjudicative services.  Case management, as it relates to ADR, might focus on locating those cases in the civil justice system that are suited for non-traditional resolution but which lack the financial resources to employ ADR.  These are the cases that should be the beneficiaries of court-sponsored ADR.

(emphasis mine)

Continue Reading...

Advice for Young Lawyers and a Belated Amends: Email

I promise not to walk down memory lane about paper, pen, ink, envelopes, stamps and the leisurely way we all used to communicate with one another.

I will only refer you to humorist Dave Barry's review of SEND:  The Essential Guide to Email for Office and Home by David Shipley and Will Schwalbe from the coming week's New York Times Book Review.

(to buy it, click here)

Thank goodness Shipley and Schwalbe have included in their concise and lively tome,  “Five Ways to Apologize for an Inexcusably Tardy E-Mail Reply.”

Dave Barry's Belated Amends 

"On that last topic," writes Barry,

the authors advise that “it’s always better to send a hideously late response — even an inadequate one — rather than none at all, if you have any interest in maintaining a relationship.”

With that in mind, I want to state the following: Bill Osinski, I’m sorry I never replied to you regarding that thing you e-mailed me two years ago. I got swamped. It got so bad that I was doing my e-mail in the “Small World” ride. But that is no excuse, so I’m stating here in The New York Times Book Review that I am worthless scum.

Victoria Pynchon's Amends

I'm glad Dave Barry had only one such amends to make.  I have three currently keeping me awake at night (you'd think it would be more efficient to just get up out of bed and respond).  I'm certain there are more of which I'm blissfully unaware.

My friends are so used to the apology accompanied by the "worthless scum" admission, that I have to do Dave Barry one better and include in my amends a promise that in the future I will really really really make an effort never again be inexcusably tardy.  

Apologees, you know who you are.

More Unsolicited Advice for Young Attorneys

Because I'm getting a lot of "hits" to this post, I'm providing my readers with additional resources on effective use of email -- 20 Rules of Writing Effective Business Emails by Paul Soltoff of SendTec Marketing; the copyblogger's warnings about Five Grammatical Errors that Make You Look Dumb (yes in email too);  Is Email Marketing Right for Lawyers from Tom Kane's Legal Marketing Blog and Between Lawyers' dated (2005) but still essential E-Filing and the Learning Curve.

Negotiating the Future: Know Thyself

From our friends at the Neuromarketing Blog, we learn that twenty-somethings are more risk-averse than seniors. 

Story:  Mediation Practice

In my mediation practice, I find that people accurately assess how risk-averse they are and that they will readily tell you why ("I was poor"; "I was rich"; "I survived the Viet Nam War"; "I lost my parents when I was ten and was sent to live in an orphanage" etc., etc.) 

Because I now help people make decisions on a weekly if not daily basis, I know that both the "why's" and the "therefore's" of risk-tolerance are as unique as fingerprints.

Story:  Dad and the Grapes of Wrath

I, for example, was raised by parents who experienced the Great Depression.  My father's family worked its way west from Nebraska to Portland and finding no source of sustenance there, drove the model-T south through California's fertile Imperial Valley, picking fruit and vegetables on the way (the entire family, including all children old enough to pick).  

Dad's family eventually settled in the foothills of San Diego (Ramona) where they raised chickens.  His mom took in the neighbors' laundry to fill in the financial gaps.  

Other than Mr. Thrifty, Dad is the most financially risk-averse person I know.  (oh no! you DO always marry your dad!)

Story:  Me and Mr. Thrifty

But let's go to the second generation.  Raised by depression-era parents, my older sister is incredibly financially risk-averse and I (to Mr. Thrifty's horror) am on the far end of risk-courting.  Mr. Thrifty's childhood financial distress, on the other hand, seems to have produced two financially prudent children -- neither pathologically "tight" nor abnormally risk-seeking.    

But this is all anecdote, you say. 

Yes, but the truth resides in the particular, not in the general. 

Story:  Innocence and Experience

At the beginning of the semester at the Straus Institute one year, the professor asked each student to jot his or her greatest fear on a piece of paper.  Roughly half of the class was post-forty mid-career people and the other half twenty-something law students.  

I was genuninely shocked by the result.  In a roomful of statistically over-achieving outliers, every  twenty-something law student said "failure" and every mid-career student said "nothing."  

If pressed, I'm sure we mid-career types could have populated a lengthy list of fears:  ill health, war, earthquake, loss of our children, etc., etc., etc.  That our first response was "nothing," however, said something about us.  What?  And why were all these bright, talented young people who were so clearly successfully achieving so afraid of failure.  

Then it struck me.  We mid-career people were not afraid of failure because we had likely already failed.  And survived.  Rather joyously.  The law students who haven't yet failed think failure will be a far greater catostrophe than it ever actually is.  This is not only the wisdom that comes with age, but also the new finding of the neuroeconomists.

Finally!  the Neuroscience

In a 2005 article in the Illinois Law Journal, Law and the Emotions: The Problems
Affective Forecasting
 (80 Ind.L.J. 155, 167)  Syracuse Law School Professor Jeremy A. Blumenthal summarizes the current research on one's ability to anticipate the degree of suffering that might be caused by failure as follows:

although people are relatively adept at knowing which emotion they will experience and whether it will be positive or negative, people are surprisingly inaccurate at predicting the intensity and the duration of those emotions. Moreover, this is so even for relatively “straightforward” emotional experiences, such as winning the lottery or suffering severe injuries.  It is on such inaccuracies—in predictions of the intensity and duration of future emotional experiences—that most of the affective forecasting research has been focused.

Id. (emphasis added).

Parting thought?  There's no greater gift to one's peace of mind than failure.  

Post # 301 Birthday # 55 and Gratitude List # 4745

Birthday Gratitude List

  1. Mr. Thrifty, who shares this birthday with me and who has taught me to think about money before I spend it (happy birthday, honey!)
  2. My step-children, Adam and Julia, who were all grown up and educated by the time I met them, so "step-children" seems a misnomer.  They are gracious, kind, loving, and better Scrabble, Boggle and Uno players than I (damn them!)  They have taught me how to be part of a family and I am everlastingly grateful for their presence in my life.  
  3. The extraordinary support and guidance from people too numerous to name when I changed careers from litigator to mediator. 
  4. Being given the opportunity (by fate and by Mr. Thrifty) to finally make my passion my career.
  5. Sobriety (13 years! hence the 4,745 gratitude lists).
  6. Friends.
  7. Poetry and literature.
  8. The internet.
  9. The geo-political challenges of the 21st century (we wouldn't want to get bored).
  10. All my blogging buddies.

Tags:

The Greatest Thing Since Sliced Bread?

We're not opining about the recent  patent ruling other than to say that the Supreme Court's KSR v. Teleflex opinion is causing quite a stir.

See the Wall Street Journal Law Blog Post and associated links to major news stories  as well as comments from patent law experts here.

For law students and new attorneys, the transcript of the oral argument before the Supreme Court is here for your edification.

That was Al Gore's granddad who invented the bread slicer, no?  Gore changed his name from Rohwedder at Ellis Island I understand.

For a cogent analysis by the Duane Morris firm of this and the Microsoft opinions handed down by the Supreme Court on the same day, click here.

Day of Blog Silence Honoring the Victims at Virginia Tech

What Does Cross-Discipline Have to Do With It?

Among the benefits of the "meme tag" game is cross-disciplinary learning.  See Switch! - Cross-Disciplinary Learning at the Eide Neurolearning Blog, the one degree of separation between us and the Thinking Blogger Award. 

And check out the Creative Generalist while you're at it.

First, the excerpt from Eide Neurolearning:

The best way to have fun in science is to do something you are not trained for. - Seymour Benzer

Any student of creativity or innovation knows that changing disciplines seems to be a way of keeping 'fresh' and getting new ideas. Louis Pasteur got his start in crystallography, but then started solving problems in fermentation when a student of his brought him a factory problem. When a devastation of silkworms happened in Europe, they called Pasteur who exclaimed, "But I know nothing of silkworms." Nevertheless, he ended up solving the problem of silkworms by crossing over into the fields of microbiology and immunology.

In Root-Berstein's study of innovators, he found '[i]n every case that I have been able to examine, researchers who continued to be productive past middle age changed fields regularly. In effect they periodically returned to the state of a novice by taking up a new subject. They broke out of the patterns of work and thought to which they had become accustomed.'

For the remainder of the Eide's post, scroll down to Switch! here.

A Brief Comment on the Era of Legal Specialization

Attorneys entered the realm of specialization about twenty years ago.  Because novel legal problems are generally resolved for entire industries in fifteen or twenty years (i.e., how a Comprehensive General Liability Policy should be interpreted in response to a claim against an oil company for production-related environmental contamination) attorney-specialists are forced to change specialties at least once, if not two or three times during their working lives.

At one of the intersections between the end of one specialty (environmental insurance coverage) and my search for another, I began defending consumer class actions.  Although I'd once prosecuted a  commercial class action against a Japanese car manufacturer, that one case was the only experience I had in litigating class actions.      

In addition to not knowing what I should do in negotiating a settlement of my client's "fair share" of potential liability I also had no idea what I shouldn't do.  As a result, the settlement I negotiated was better than any achieved by the dozens of other similar companies who were my co-defendants.  

One afternoon, I received a call from senior counsel to the defendant who'd had the greatest potential liability exposure and who likely paid the most to settle the case. 

"How in the world did you get them to agree to an injunction-only settlement?" she asked.  "I've never seen anybody do that before."

"Thanks," I said.  "I guess I managed to do it because I didn't know that I couldn't."  

What Does Being a Generalist Have to Do with Negotiation and Mediation?

As I recently said in a moment of naked self-promotion, it's good to have a mediator who is "inside the other guy's decision cycle," i.e., someone familiar with the industry and the legal specialty involved.     

"The day of the generalist mediator is over," I'm told, just as I was told the "day of the legal generalist is over" sometime in the late '80s. 

But here's the exception to the rule.  Negotiator or mediator, the parties will teach you the critical facts and the lawyers will hip you to the law necessary to resolve the dispute even if you don't know bupkus about either.   

Often, the more you know, the less likely you will be open to innovative solutions to intractable problems.

I suppose the best of both worlds would be to practice (and negotiate) in your specialty while at the same time maintaining what Buddhists call a "beginner's mind." 

"In the beginner's mind there are many possibilities, but in the expert's there are few." - Shunryo Suzuki-Roshi from the Beginners Mind Blog.

No matter how much you know or think you know, set aside your pre-conceptions and pre-judgments as much as you are able.  Avoid "we've always done it this way" thinking.  Then, whether you're in a new field or an old one, you will surprise yourself and your bargaining partner with the high degree of creativity you are able to bring to the same old problems.

Did I also say it's lots more fun to do something new everyday?  And that conflict resolution -- whether you're judge or jury, advocate or negotiator, mediator or arbitrator -- is waaayyyyyyyyyyyyyy too hard unless you're having fun doing it.

Mediate This: The Intersection of Mediation and Handguns

If mediation is the triumph of hope over experience, GOOD FOR US!

This, from today's New York Times (full article here):

With anxiety running high in classrooms across the nation after the Virginia Tech attacks, the authorities in Sacramento [California] arrested four secondary school students on Thursday, including one carrying a loaded gun. . . .

[A] 14-year old . . . had photographs of two female McClatchy [High School] students.  The police said they believed that the boys were planning to shoot them. . .

School counselors had been working on [a] problem [among four female McClatchy students] and planned to mediate the dispute on Thursday . . .

The police said they believed that the two boys [with the gun] . . . were enroute to the mediation, possibly to shoot their targets before or after the meeting."

We're hoping that if the police had not intervened, a shooting wouldn't have occurred after the mediation.

I'm also hoping mediators won't have to begin frisking their disputants before joint sessions, at least not here in Second Amendment land where we are packing 65 million hand guns!

The Thinking Blogger Awards

We're proud to say that our friend Stephanie West Allen was recently awarded the Thinking Blogger Award by the Eide Neurolearning Blog and that she passed it along to us.

 Hey listen!!  If Hollywood and the music industry can award themselves tens of thousands of real gold-plated statuettes a thousand times a year, why can't we give ourselves gold and silver virtual awards for contributing more "genuis" to the thinking world in any single day than the entire entertainment industry does in any decade you might want to name?

(Cf. Jerry Seinfeld's hilarious bit on award-giving during his speech accepting HBO's first "annual" HBO Comedy Award -- "you don't give awards to comedians," says he). 

 Stephanie has graciously asked me to play this meme tag game under the following rules:

1. If, and only if, you get tagged, write a post with links to 5 blogs that make you think,

2. Link to this post so that people can easily find the exact origin of the meme,

3. Optional: Proudly display the 'Thinking Blogger Award' with a link to the post that you wrote (here is an alternative silver version if gold doesn't fit your blog).

Stephanie asks that we "tag blogs with real merits, i.e. relative content, and above all - blogs that really get you thinking!" rather than those, say, with the highest first weekend box office gross (i.e., X-Men). 

The following blogs make me think:  

  1. Geoff Sharp's Mediator Blah Blah, who writes like a truly great comedian; he makes it look easy; it hits your insight-center before you have a chance to self-censor; and, it's way deeper than you think; 
  2. the Electronic Intifada (which may not actually be a blog but which I read as if it were one),
  3. Lawrence Solum's Legal Theory Blog,  for the truly geeky wanna-be academics in the crowd like me;
  4. George Wallace's cultural blog A Fool in the Forest (the blog equivalent of Finnegan's Wake); and,
  5. Gini Nelson's Engaging Conflicts Blog for its audacious eclecticism. 

And because the Electronic Intifada may not actually be a blog, I'll add

Hugh ("we don't need no stinkin' awards") McLeod's Gaping Void (the blog equivalent of Kingsley Amis' Lucky Jim).

What I'm Reading Now: Cobra II by Gordon & Trainor

Below is an excerpt of the Washington Post's review of Cobra II  The Inside Story of the Invasion and Occupation of Iraq, the book that is not simply sitting on my bedside table but which I am actually reading.  

It is too soon to provide my own brief review other than to say that I am no military history, nor even history, buff.  I just want to start making more sense out of what actually happened, admitting that I get most of my war analysis from the Daily Show and the New Yorker (the latter easier to admit than the former).

Although it's ok with me that blogging has completely replaced television as a leisure activity, Mr. Thrifty recently commented to its seems to have replaced reading books with covers and paper pages held in my hands.

Because that is not OK, I immediately headed off to my nearest Borders and its 3-for-the-price-of-2 table.  I decided to tackle Cobra first and am glad I did.  I am beginning to make sense of the actual front page and occasional network news again (the latter apparently available for download -- sans commercials! -- somewhere on the 'net since Thrifty has adopted a new marital habit of bringing his computer over to the couch where I'm blogging and turning on Katie Couric for me.  Ah togetherness!!).   

Before giving you the Washington Post Review, I'd like to suggest to my ADR buddies that they let us know what they're reading.  This isn't so much as a "meme" tag as it is a request to make reading material a category on their blogs, as I've just made "What I'm Reading Now" on mine.  

How about it Tammy Lenski, Diane Levin, Geoff Sharpe, and Stephanie West Allen?  Wouldn't you like your readers to know from time to time what it is that you're reading?  I'd sure appreciate knowing.

On their "inside story" of the war, Michael R. Gordon and Gen. Bernard E. Trainor . . . show that the U.S. military's tactical brilliance during the war's early stages came despite the strategic miscalculations of senior civilian and military leaders -- and that the Bush team's misjudgments made the current situation in Iraq far worse than it need have been.

Continue Reading...

What Would a 2007 Perry Mason Do? Put Up a Web Site

Vonage Takes Its Patent Fight to Internet Street with

Can You Patent an Orange?

We express no opinion whatsoever but like the video and its goofy country music.

Check out the low-tech YouTube customer testimonials while you're there.

Thanks to the Wall Street Journal Law Blog for hipping us to this.

Don't Crush that Cross-License: Negotiate a Business Deal

Step four in The Art of Getting the Best Deal:  Solve the Joint Problem

(left:  my first 2-wheeler on which my grandfather, the sign-painter, inscribed my name)

Exploring Different but Compatible Interests

Lax and Sebenius suggest that many negotiators "simply assume their interests to be the opposite of yours -- rather than different and potentially compatible."

You cannot, however, simply instruct the parties to search for different but compatible interests.  The mediator needs to listen long and carefully for the needs and concerns that are driving the parties' legal positions.

But First, a Little Reactive Devaluation*

You'll recall that the parties to my hypothetical patent infringement action had already made lists of extremely valuable non-economic benefits that they might exchange with one another to resolve the dispute.  They soon pushed those bargaining chips aside, however, quickly reverting to purely monetary issues.  

Why do litigants abandon business opportunities more valuable than their total monetary demand?   "Reactive devaluation." ** 

Money seems objective and certain while the value of intangibles is imprecise and risky. 

Non-quantifiable benefits are greeted with the suspicion one reserves for the street vendor hawking Louis Vuitton handbags.  This apprehension is probably expressed by litigators more often than any other professionals -- "if he wants it, it can't possibly be good for me."  

____________________

**  I learned everything I know about the social psychology of conflict from University of Missouri Law School Professor Richard Reuben.  This is one of his best and most comprehensive Power Point Presentations.  Take a look when you have a moment.  Learning social psychology is is like hitting the "reveal codes" key in WordPerfect or seeing the matrix:  your entire conflict-life is mapped, graphed and revealed.  Thanks again Richard! 

Continue Reading...

Don't Crush that Patent! Hand Me the Pliers

Slight digression for moment of nostalgia and copyright notice. 

This (right) is my favorite Firesign theater album.  I heard it for the first time on FM radio in high school while vacuuming the living room floor (yes, young people used to do these chores). 

It led to harder comedy.  

Note to subsequent generations of young people -- FT's comedy remains hilarious and does not age with time.   

From Wikipedia:  this image is of a music album . . . and the copyright for it is most likely owned by either the publisher of the album or the artist(s) which produced the music or artwork in question. It is believed that the use of low-resolution images of album . . . solely to illustrate the album . . .  in question . . . qualifies as fair use under United States copyright law. Any other uses of this image, on Wikipedia or elsewhere, may be copyright infringement. See Wikipedia:Fair use for more information.

OK, I blew the entire post on that.

Part III (3) Three on Step IV (4) Four from the Lax & Sebenius article, The Art of the Best Deal follows.

 

Proposed Legislation Prohibiting Arbitration for Credit Counselor Agreements

 

Thanks to the National Arbitration Forum for this update on proposed legislation governing debt settlement and management service providers and credit counselors.

Verbatim:  Enacts the Uniform Debt Settlement Services Act, the Debt Management Act, and the Credit Counselors Law to provide for the licensure and regulation of providers of debt settlement and debt management services. Relating to arbitration, the bill states:

 Except as permitted by the California Arbitration Act (Title 9 (commencing with Section 1280) of Part 3 of the Code of Civil Procedure), [the agreement shall not] contain a provision that modifies or limits otherwise available forums or procedural rights, including the right to trial by jury, that are generally available to the individual under law other than as provided in this division.

The bill would also forbid agreements from containing a choice of law provision other than California or applicable federal law.

Arbitration gurus?  How would this square with Greentree, etc.?

More Blogging Advice: Strategy and Tactics

From the ABC's of Beginning Your Blog by Karen Klein at  Business Week with a hat tip to Kevin O'Keefe at LexBlog.

  1. position yourself as an expert and demonstrate your experience.
  2. the information in your blog should directly help your market solve a problem or address their wants and needs
  3. read other peoples' blogs and get a handle on what they're doing
  4. reading blogs within your industry will give you a sense of what niches are underserved and will help get your own creative juices flowing so you can write authoritatively when it's your turn.
  5. initiate conversations with other bloggers by commenting on their blog entries
  6. when you set up your own blog, [they will be] more likely to link to you, and send their readers
  7. you need to blog regularly, under your real identity with an authentic voice
  8. be sure that you have something personal and interesting to write about.
  9. cross-promote 
  10. consider adding a blog to your existing Web site
  11. for experimenting with a blog, there's nothing more simple than setting up one on Blogger.com, operated by Google 
  12. use a "tagging" service, such as that provided by Technorati.com, to help advertise your blog
  13. a tag is basically a label you give your blog -- say 'professional services.'
  14. anyone who uses Technorati and has subscribed to that tag will receive a notification of your new blog entry on that subject
  15. encourage your customers to subscribe to your blog's RSS feed. 

Don't Cut that Patent in Half: Negotiate a Business Deal

As promised, we bring you Step Three from the Lax and Sebenius article, the "Art of Getting the Best Deal

Bringing the Deciders and Assessing Party Interests (a Brief Review)

Yesterday we stressed the importance of identifying the "deciders" and those who might get in the way of the deciders' decision (the known unknowns and the unknown unknowns).  

Today, we apply those principles, along with the third Batna step, to a hypothetical patent infringement mediation.  

Because litigators are trained to organize party interests around legal theories and business people to organize their own thinking around commercial interests, your mediator should be facile with both.  At some point, the mediator should assist the parties and their counsel in shifting their attention from litigation "interests" (costs, merits) to business and marketing interests.

Why?

Because there are thousands of ways to make a deal and only a handful of legal remedies to resolve a dispute.       

MARKETING MOMENT:  Hiring a mediator 

fluent in the language of party interests and knowledgeable about the industry in which the parties are working will greatly assist everyone in crafting a business solution to a legal problem. 

Continue Reading...

Don't Cut That Baby in Half!! Negotiate a Business Deal

(for more of the brilliant Charles Fincher, Jr., see LawComix.com)

When I hear from my old litigation buddies that "all mediators do is divide by two" I am tempted to wander into the "hard sell" marketing zone I usually avoid.  Last night at the Los Angeles ABTL dinner, for instance, I runined my record of never overtly marketing my services by nakedly promoting myself in response to one such complaint.

For those litigators disappointed by the mediation services they receive, I'm supplying an executive summary (with commentary) of Harvard negotiation gurus Lax and Sebenius excellent article, "The Art of Getting the Best Deal."  

Don't Say "Yes, Yes, Yes," When You Really Mean "No, No, No, No, No."

As Lax and Sebenius stress, business people should only say "yes" to a deal that "meets [their] real interests better than [their] best no-deal option."  Mediators call the "no-deal" option your BATNA -- a Better Alternative to a Negotiated Agreement.

Let me reiterate:  there is no reason to say "yes" to any deal that is worse than no deal.  Ever.  Period.

Tell that to the mediator the next time you're feeling pressured to accept an offer or meet a demand that makes your client really really really unhappy.  Say, "I can do better at trial."  Say, "I can negotiate a better deal than that."  Say, "if I can't negotiate a better deal that that today, I'll approach the matter differently tomorrow."  Say, "I don't believe the best settlement is one that leaves everyone unhappy."  Say, "that's not what I promise my clients when they hire me."  Say, "I've read Lax and Sebenius."  Say, "good luck with your mediation career" and pack your bag.  Bow out nicely but firmly. 

Find the Deciders and Draw a Deal Diagram

A deal diagram is not a decision tree.  Decision trees are about legal strategy.  Business decisions are not driven by legal strategy.  Business decisions are driven by finance, markets, business needs, and, commercial realities.  Only lawyers are kept awake at night by legal dilemmas.  CEO's are concerned with mergers and acquisitions, S.E.C. reporting requirements and how a settlement with a competitor might affect stock prices.

So what's a "deal diagram"?  I'll let Lax and Sebenius explain:

Continue Reading...

Free Lunches and the Short Con

Our friend Michael Webster at the Misleading Advertising Law Blog once reported on a securities scam that bilked almost $600,000 from elderly victims who were lured by a "free investment seminar, complete with lunch."

What is it about a free lunch, our correspondent asks, that would convince individuals to turn over their life savings to [a con man]? The answer, once again, can be found in the social psychological archives, particularly those described by Robert Cialdini.

Cialdini, says Michael, describes the influence tool here as "the rule for reciprocation."

The rule says that we should try to repay, in kind, what another person has provided us. If a woman does us a favour, we should do her one in return; if a man sends us a birthday present, we should remember his birthday with a gift of our own.

Although the reciprocation rule does not appear to require us to turn over our hard earned money to a criminal just because he has bought us lunch, some scientific experiments have shown that the rule can be used to obtain significant economic benefits. The old Amway trick of delivering a "free sample" of merchandise for a 24 trial period ensnared many a consumer who would not have purchased from Amway otherwise.

Why can the rule extract seemingly excessive favours? Cialdini identifies two reasons: (a) most of us find it highly disagreeable to be in a state of obligation, and will quickly try to remove ourselves from its grasp, and (b) to violate the rule is to be a moocher or a welsher. In order to avoid being labeled as such, we might agree to an unequal exchange of favours.

Continue Reading...

Procedural Justice for Mediators

If you're searching for answers to perplexing questions like "what is justice?" the Legal Theory Lexicon has the answers.   

"Why," you ask, "would anyone but first year law students, law professors or professional philosophers even care?"  The issue of "justice" is an academic question, you think, or one of those  3 a.m. dorm room inquiries, best answered with clouds of sweet herbal smoke hanging in the air.  There's no "real world" application for it, is there?

Well, yes. 

Those of us who are mediators are constantly grappling with and explaining issues of fairness, justice, and equity to people who feel:  (a)  they've been horribly injured, betrayed, bloodied, rejected, abandoned and generally %$#^&%'ed up by litigation -- we call these people plaintiffs; or who believe (b) they're being extorted, black-mailed, manipulated, stripped, disrespected and generally %$^&*#$'ed up by lawsuits -- we call these people defendants.

Problem solving, negotiating and integrative bargaining are all well and good, but until the parties gain some understanding of the principles operating the system in whose gears and levers they have become enmeshed, they will not be free to craft a meaningful resolution to their litigated disputes. 

And if you think this applies less to senior executives, owners, inventors, CEO's and the like than it does to the archetypal "man on the street," think again.  Only lawyers and judges feel comfortable in the legal system.  Everyone else feels damaged by it.

I've described elsewhere my attempts to acquaint litigants with the vagaries, inconsistencies, delays, burdens and costs of a legal system that has become their personal perfect storm of ill luck.  I probably don't need the arcane legal theory that goes with my plain talk about "justice."  Nevertheless, I am always searching for new ways to describe it  to myself if not necessarily to the parties whose dispute I help resolve.  

So for my edification and that of anyone else in the business of explaining THE LAW to those in its grip, I offer the following short essay on procedural justice from the Legal Theory Lexicon.  

Slicing a Cake Our approach to the idea of procedural justice may be made easier by using a simple example. Consider the familiar procedure for dividing a cake: the person who slices the cake picks last. What makes this a fair procedure? One answer to this question might be the following: there is an independent criterion of what constitutes a fair outcome, equal slices for all, and the slicer-picks-last rule assures that we will get to this outcome.

Slicer-picks-last is fair because guarantees accuracy. Or does it? If we really wanted to assure perfectly equal slices, then we could use a compass and the principles of plane geometry, with equal shares as a more reliable result. But this strikes us as an undue amount of fuss to go through when slicing a cake. Perhaps, the reason we believe that the slicer-picks-last rule is a fair procedure is that it strikes a fair balance between the importance of the outcome and the cost of getting there: the rule gets us close to equal shares most of the time at a reasonable price. Slicer-picks last might be considered fair, because does a good job of balancing. Or is there something more to the idea that the slicer-picks-last rule is fair?

Maybe the reason we believe that the slicer gets a fair share is because the slicer was the one who did the cutting; the slicer's participation in the cutting validates the outcome, even if the slicer ends up with a smaller slice (or among the calorie conscious, a bigger slice). Slicer-picks-last could be a fair rule, because of process independently of outcome.

Practical examples next.

It's Not All Kum-by-Ya: William Ury on Saying "No"

Be the Best Negotiator You Can Be: a Step by Step Guide

 (the incomparable Charles Fincher at LawComix.com)

I tell people to hell with charity, the only thing you'll get is what you're strong enough to get.   -- Saul Alinsky, labor and social activist 

This step by step guide is pretty much taken verbatim from MIT's Negotiation Basic's Web Page.  I do not differentiate between "distributive" and "integrative" techniques as does the MIT site; I have added links to key terms; and, I have added warnings flowing from my own negotiating history and mediation practice.   

Italicized text is my own.

A more lengthy and sophisticated guide, The Art of Getting the Best Deal by Harvard gurus Lax and Sebenuis can be accessed here.  Order their "must read" 3-D Negotiation NOW.

Step One

Figure out your own interests and reservation point (bottom line) by assessing your Best (and Worst) Alternatives to a Negotiated Agreement (BATNA and WATNA). 

Keep reviewing these points while you negotiate.

Step Two

Figure out the interests and reservation point of the Other, remembering that a negotiator's belief about the other side's bottom line is a powerful driver of settlement, i.e., do not be fooled into believing you have hit the other party's bottom line until (and sometimes after) they begin packing up their briefcases to leave the negotiation.  

Be alert to new data while you negotiate, remembering that the attorneys representing the parties have organized the facts around their legal positions while the parties have organized the facts around their business needs. 

Business needs will always drive settlement more than legal positions will.  You may be hearing them for the first time.  If you are negotiating with the mediator, make sure the mediator is making the effort to ascertain the parties' interests and is not stuck on the parties' legal positions.  

Step Three :  Ascertaining the Zone of Possible Agreement

Seek to move the reservation point of the Other to widen the bargaining range especially if there is a negative range. (This process is often begun by "sowing doubt")  

However, if necessary for a settlement that you must achieve, move your own reservation point. 

Do, however, beware of thinking you "must achieve" a settlement above or below your "bottom line" whenever you are hungry, angry, lonely (i.e., feeling isolated) or tired (H.A.L.T.) 

Sticking to your bottom line is the best means of insuring you do not leave the negotiation believing you have put too much money or left too much money on the table. 

Sometimes you're better off not getting to "yes."  

Through judiciously shared information and brainstorming, seek to expand the pie so that each side may get as much as possible of what it would like.

Explore moving the reservation points of each side.

Step Four

Seek a settlement as close as possible to the reservation point of the Other so that you win the maximum profit.

Decide on fair principles and objective criteria to determine how to divide the pie.

Step Five

Do what you can to see that both you and the Other come to see this settlement as the best possible one under the circumstances. 


MIXED MOTIVE BARGAINING

In almost all negotiating situations you will have "mixed motives," where you wish to create values with your Other, and then to claim your share. In these situations you may use tactics common to both distributive and integrative strategies, or switch at least a little from one strategy to the other.

For example one would show respect at all times and be cautiously forthcoming about one's interests, share information as trust grows, be truthful and consistent, seek common ground and agreement on principle, generate as many options as possible, and in general pursue the integrative path as long as possible, while explicitly safeguarding you own interests. In many situations you will be able to expand the pie before having to divide it.

These ideas are drawn from the experience of the author and from Walton and McKersie, A Behavioral Theory of Labor Negotiations, McGraw-Hill, 1965. They also owe much to the work of Roger Fisher and William Ury.

Geoff Sharp Joins the Mediator's Mile High Club

Everyone who knows the difference between distributive and integrative bargaining and the iconic story of the ONE ORANGE should go directly this morning to Geoff's blog, Mediator Blah Blah.  First, a snippet to encourage you:   

Today I found myself inducted into the Mediators' Mile High Club at 23,000ft when two young, remarkably similar looking girls seated in 16E and 16F needed my help.

(yes, they look sweet and compliant now, but just wait until the plane takes off!)

for remainder of story click here.

And then I looked that mediator in the eyes . . .

Though the April 30, 2007 BUSINESS WEEK doesn't say much new on the old "vanishing trial" issue, I found the comment in the final paragraph amusing . . .


As court battles become more rare, some experts fear the effects on the law David Berg, a longtime Houston trial lawyer, sees a future devoid of the courtroom dramas that have long captured the American imagination. In a manual on trial technique that he published last year, Berg wrote that he feared that "the great war stories of the next generation of trial lawyers would begin, 'And then, I looked that mediator in the eyes and I said....'"

Thanks to the Los Angeles Arbitration and Mediation Group for passing this along.

Walking on Eggs: Retiring Judges and ADR Services

This is taken straight from the Met News.  I will read this case and provide my analysis at the beginning of the coming week.

Where it was discovered after arbitration that the judge who granted order compelling arbitration had, prior to granting such order, engaged in discussions concerning possible employment as a dispute resolution neutral, it was proper to disqualify judge who granted the order compelling arbitration and vacate that order, but it was premature to vacate arbitration award. Where order compelling arbitration is void because judge was disqualified from granting it but is not set aside until after arbitration is concluded, award may stand if newly assigned judge makes a de novo determination that the parties were contractually bound to arbitrate, that acts of disqualified judge did not taint the arbitration, and that no other grounds exist to vacate the award.

Rossco Holdings v. Bank of America


 

Burnout: And You Know Who You Are

I'm posting I'm Billing Time Again along with an excerpt from Chuck Newton's Third Wave Law Firm Blog, Happiness Equals Reality Divided by Expectations

According to the New York Bar Association, turnover rates among mid-level associates in this city’s law firms is 36 percent. The whole system is predicated on burnout.

In 1981, Maslach, now vice-provost at the University of California, Berkeley, famously co-developed a detailed survey, known as the Maslach Burnout Inventory, to measure the syndrome. Her theory is that any one of the following six problems can fry us to a crisp: working too much; working in an unjust environment; working with little social support; working with little agency or control; working in the service of values we loathe; working for insufficient reward (whether the currency is money, prestige, or positive feedback).

It seems to me the first two of the six problems will most probably result in burnout in big law leading some to try a Third Wave practice. However, the working with little social support, little agency or control is probably more conducive for Third Wave burnout.

Farber often calls burnout “the gap between expectation and reward." I can tell you that in a Third Wave practice this gap is greatly cut.

"The great paradox of efficiency is that the more we speed up, the more acute our frustrations when we’re forced to slow down. Is it not possible that these ambient frustrations function as chronic stressors, and—in some subtle but crucial way—contribute to feeling worn out? Americans, Gleick writes, spend an estimated 3 billion minutes a year waiting on hold with the software industry; they race to airports only to wait for hours; they start to jitter inside elevators if the doors take more than four seconds to close. (Elevator engineers even have a term for how long it takes—door dwell—before people start jamming their fingers on the door close button, which is usually a placebo, a function already disabled by litigation-conscious building managers.)

'Gridlocked and tarmacked are metonyms of our era,” Gleick writes. “To be gridlocked or tarmacked is to be stuck in place, our fastest engines idling all around us, as time passes and blood pressures rise.

If one of the surest recipes for burnout, as Michael Leiter has said, is the sensation of inefficiency—particularly if we’re still expending energy and seeing little in return—then there may be something about the modern office that conspires to burn us out. In 2005, a psychiatrist at King’s College London did a study in which one group was asked to take an IQ test while doing nothing, and a second group to take an IQ test while distracted by e-mails and ringing telephones. The uninterrupted group did better by an average of ten points, which wasn’t much of a surprise. What was a surprise is that the e-mailers also did worse, by an average of six points, than a group in a similar study that had been tested while stoned."

Maryland Encourages Lawyers to Emphasize ADR

 

 

 

by Justin Kelly, ADRWorld.com

Maryland's highest court has approved an amendment to the state's Rules of Procedure that encourages lawyers to inform clients of alternative dispute resolution options when a new case is likely to be headed to court.

[T] Hon. Joseph F. Murphy, Jr. . . . said that the change would "highlight for counsel what they should be doing if ADR could work in their case," explaining . . . . the comment . . . that "where ADR is appropriate, lawyers should advise their clients of that fact." 

                                               *                             *                          *

Rule 2.1, which addresses the lawyer's role as a counselor, states, "In representing a client, a lawyer should exercise independent judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors that may be relevant to the client's situation."

                                          *                                  *                                        *

The amendment adds the following new sentence to Comment 5: "[W]hen a matter is likely to involve litigation, and in the opinion of the lawyer, one or more forms of alternative dispute resolution are reasonable alternatives to litigation, the lawyer should advise the client about those reasonable alternatives." 

"The amended Comment is intended to encourage informed discourse between the lawyer and client whenever ADR may be an appropriate option," the Reporter's Note says.

An earlier proposal to amend Comment 5 had suggested requiring lawyers to inform clients about ADR options. But a mandatory requirement was dropped out of concern that it would lead to litigation by clients against their attorneys.

Murphy noted that Comment 5 says that attorneys "should advise," instead of "shall advise," and that this was a "compromise." He said that as revised, Comment 5 imposes no "automatic" requirement to inform clients about ADR options.

Some other states have ADR-related provisions in their rules of professional conduct. Vermont has the "shall advise" language, while Alaska, Colorado, Hawaii, Massachusetts, Tennessee, and Virginia have the "should advise" language.

The change in Comment 5 will take effect July 1, 2007.

Challenges to Mediated Settlement Agreements: Duress and Undue Influence

 

While Joe Francis sits in jail for misbehaving during a mediation, we take a moment to contemplate mediation's first principles:  voluntariness and self-determination.  

In their exhaustive review of appellate mediation case law Disputing Irony:  A Systematic Look at Litigation about Mediation (Spring 2006) 11 Harv. Negot. L. Rev. 43, James R. Coben and Peter N. Thompson discuss the law to date on duress and undue influence.

As Coben and Thompson stress, 

To make a successful duress defense the proponent must establish that a wrongful threat by the adverse party deprived the proponent of free choice, resulting in an unfair agreement benefiting the adverse party. As with other contractual defenses, the standard is quite difficult to meet in a mediation context. A mediation party was successful in claiming duress in only one of the thirty-six opinions [reported during the prior five year period].

That as many as seven of the thirty-six cases reviewed were directed at alleged mediator coercion is troubling, particularly in light of Magistrate Brazil's opinion in Olam v. Congress Mortgage Co. * which makes pursuing any claim of duress or undue influence seem a foolhardy mission.  As Coben and Thompson note, although the plaintiff in Olam

was sixty-five years old, suffered from high blood pressure, headaches and abdominal pains, and testified that she was in pain, weak and dizzy, and that she was pressured by her lawyer, the defendants and their counsel, the court found that this agreement obtained at 1:00 A.M. after fifteen hours of mediation was not obtained by undue influence. 

Coben and Thompson revisited the issue of duress under the rubric of mediator misconduct, citing ten opinions where a party charged the mediator with exerting undue pressure to obtain agreement.  Most of these charges will look familiar to lawyers, who might ask themselves what they look like to the man or woman on the street:

  • the gist of the complaint in several cases was the mediator's recitation of a list of "horribles" that the parties would suffer if they did not settle and had to experience the dreaded civil trial (called "reality-testing" by the authors)
  • one claim was based upon the alleged coercive statement by the mediator that if the party  "didn't sign the agreement [he] would ruin [the mediator's] record of being always able to settle the case."
  • another claim (this one successful) was based upon the mediator's alleged threat "to tell the judge that she was the cause of the settlement failure, speculat[ion] that the court would rule against her, and [pr]offered opinions about the potential legal costs[, as well as] how refusing to settle would affect her pensions.

We are bound to see more claims of mediator misconduct, duress and coercion.  The problem is clear.  We'll discuss potential solutions in future posts.     

* Note that the District Court's order requiring the mediator to testify would likely not stand up under the current law in California.  See In re Marriage of Kieturakis (2006) 138 Cal.App.4th 56. 

What Happens When Your Usual Lifestyle Occurs in Jail: That's a Bribe, Joe, Not Negotiation

'Girls Gone Wild' Founder Joe Francis Charged With Bribing Jail Guard, Having Prescription Pills in His Cell Thursday, April 12, 2007 

PANAMA CITY, Florida — The millionaire founder of the Girls Gone Wild video empire was charged with bribing a jail guard for a bottle of water and having prescription sleeping pills in his cell, authorities said.

When he learned of the new charges Thursday, Joe Francis waived his right to a bond hearing for the contempt of court charge that had led to his being jailed. Francis cried as his mother blew him a kiss while he was led from a federal court room back to his cell.

"I didn't do anything," he told his parents as he was led away, The News Herald of Panama City reported.

Francis, 34, makes an estimated $29 million a year from the "Girls Gone Wild" videos, which show young women exposing their breasts and being shown in other sexually provocative situations.

On Thursday, he was charged with bribing a public servant, three counts of possessing a controlled substance and five counts of introducing contraband -- cash and drugs -- into a detention facility. The charges are third-degree felonies punishable by up to five years in prison.

Francis offered a jail guard $100 for a bottled water Wednesday evening, court records said. When the guard refused, Francis showed him $500, investigators said. Inmates are not allowed to have cash in the jail. 

The president of Mantra Films Inc., which produces the "Girls Gone Wild" videos, was arrested Thursday for supplying Francis with the pills and cash, Bay County Sheriff's Office spokeswoman Ruth Sasser said. Scott Barbour was charged with introduction of contraband into a detention facility. He was scheduled to have a first appearance Friday.

It was not known if Barbour had an attorney.

click here for rest of story

Observe One Day of Blog Silence for Virginia Tech Students on April 30

One Day Blog Silence

The noisiest, most opinionated people in the world, Bloggers, will be observing a Day of Blog Silence on April 30, 2007, for the victims at Virginia Tech.  We invite our fellow bloggers to join in (thank you Tammy Lenski of Mediator Tech for the head's up). 

Before then, we noisily give you the following for your thoughtful consideration:

The Brady Campaign to Prevent Gun Violence

You've seen her interviewed by the network news about the tragedy at Virginia Tech.  Now buy my friend Princeton Professor Katherine Newman's book, Rampage, the Social Roots of School Shottings.  

 

More New Law on the Enforcement of Mediated Settlement Agreements

Appellate opinions concerning the enforceability of mediated settlement agreements are coming fast and furious.

If you haven't prepared your form term sheets and memoranda of understanding by now,  you might end up litigating the settlement whose purpose it was to stop the litigation. 

Oh the irony!    

Today's case Irvine v. Regents of University of California (4th Dist. 2007) was decided on a narrow procedural ground, leaving at large the questions of fraud, duress and mistake alleged by the Plaintiff as a bar to enforcement of her mediated settlement agreement.

The narrow issue here was whether a party could be excused from meeting the deadlines imposed by California Rule of Court 3.1385 simply by asserting that the challegned settlement agreement was uneforceable. 

The Irvine Court, reversing the trial court's Rule 3.1385 dismissal, answered the question in the affirmative, explaining: 

The only decision before the court at a rule 3.1385 hearing is whether to dismiss the case or restore it to the civil active list. By alleging a dispute over whether the parties reached a binding settlement, plaintiff demonstrated good cause to restore the case to the civil active list. In reaching this conclusion, we have not considered whether any of plaintiff's contentions have merit.

There you have it.  Now the parties will be litigating the compromise they reached to avoid litigation.  Don't let this happen to you.  Start (but do not finish) here, where I have provided articles and case law bearing upon the enforceability of mediated settlement agreements. 

If you want your agreements to be durable take the time to read the case law, check the statutory provisions and, yes, even read the Rules, like 3.1385 here, which requires that an action be dismissed within 45 days after the Court receives notice of settlement unless good cause is shown why the case should not be dismissed.

 

Mediating? Bring Your Toothbrush. Joe Francis and "Girls Gone Wild"

Thanks to Michael D. Young of Judicate West and Weston Benshoof Rochefort Rubalcava & MacCuish for passing along a mediation story so improbable that you'd expect to see it appear on a mediator's bar exam.   

Young apparently reviewed the entire court file (!!) to supply the following tale of woe, ending in Joe Francis' jail sentence for mediation misconduct.  

Huh???? 

Read on, my friends, read on.

The Claimed Mediation Misconduct

In October of last year, defendant Joe (Girls Gone Wild) Francis was ordered to private mediation in a Florida civil action.  That mediation, to say the least, went badly.  

Florida's mediation confidentiality protections apparently include an exception for threats of physical violence.  It was this exception upon which Plaintiffs relied in telling the following tale out of mediation "school."      

Francis [arrived at the mediation] wearing sweat shorts, a backwards baseball cap, and was barefoot. He was playing [with an] electronic device. As [plaintiffs' counsel] began his presentation, Francis put his bare, dirty feet up on the table, facing plaintiffs' counsel.

[Plaintiffs' counsel] said four words, "Plaintiffs were minor girls,"  when Francis barked, "are the girls minors now?"  Continuing, [Plaintiffs' counsel] said, "plaintiffs are minor girls who were severely harmed by Defendant."

Francis then erupted. "Don't expect to get a fucking dime -- not one fucking dime!" This was Francis' mantra which he repeated, about fifteen times, during his tantrum that ensued. "I hold the purse strings. I will not settle this case, at all. I am only here because the court is making me be here!" 

As plaintiffs' attorneys were leaving, Francis' threats escalated. "We will bury you and your clients!" Francis threatened. As [Plaintiffs' counsel] walk[ed] out of the room, Francis got up and faced off with [him] . . . bark[ing], "I'm going to ruin you, your clients, and all of your ambulance chasing partners!"

Francis' aggressive move and threats to "bury" and "ruin" [Plaintiffs' counsel] were clearly an assault . . . intended to . . . prevent the mediation from ever beginning. As a result of Francis' assault . . . no mediation as to Francis as an individual defendant ever occurred.

Francis then made the only offer he was to make that day.  "Suck my dick," Francis shouted repeatedly, as plaintiffs' counsel left the mediation room.

Plaintiffs sought an order from the court requiring Francis to behave civilly and pay sanctions.  

Continue Reading...

Maybe We Should Re-Think That Coverage Decision

(The ultimate digression:  starting a post with a digression:  This beautiful blog was created, and is "hosted," by LexBlog, the only legal blog outfit in town worth talking to when you decide to drop blogger, typepad and the like and go professional).

That said (I don't say it enough -- thanks Kevin!) I learn from LexBlog's Blog today that Chubb Insurance has apparently reconsidered denying coverage to its attorney-blogging insureds.  And if I was going to reconsider a coverage decision, you bet your boots it would be my attorney-insureds that would make me re-consider the most quickly.

Here's Kevin's report: 

[Chubb] now says law firms publishing blogs will be covered by their malpractice policy so long as lawyers are not answering specific questions in a way that could be construed to be legal advice.

That from James Rhyner, worldwide lawyers professional manager for Chubb Specialty Insurance, in speaking with Lisa Berman, reporting for the New Jersey Law Journal (pdf of story).

Chubb does insure this new form of communication -- and will continue to do so within select parameters.

Ryhner also acknowledged, as reported by Berman, "[T]hat there have been no malpractice suits against blogging lawyers in the United States over bad legal advice. But he cites a U.K. suit involving Lloyd's of London that he is monitoring.

The Wages of Mediation Coercion in Title VII Cases

We've talked before about complaints that mediators sometimes use time- authority- and fear-pressure tactics to wrest agreement from the parties. 

If a client can prove she was coerced into settling a Title VII case, the Federal District Court for the Northern District of California has a remedy for her -- rescission.  

As reported last year by the National Arbitration Forum, the Court In Ryles v. Palace Hotel, rescinded a mediated settlement agreement as violative of federal law governing the release of Title VII claims.  The release of such claims must be “voluntary, deliberate, and informed.”

As the National Arbitration Forum article explained

In applying that standard, courts must consider the “totality of the circumstances.” The factors to be considered include the clarity of the agreement, the claimant’s education and business experience, whether the atmosphere for the execution of the agreement was coercive, and whether the plaintiff had the benefit of counsel.

All but one of those factors favored enforcement. However, one of the factors – whether the atmosphere for the execution of the agreement was coercive – weighed heavily against enforcement because of the “intense pressure” applied by Ryles’ attorney. Based on that factor, the Court held that Ryles could rescind the settlement agreement.

In reaching its holding, the Court cited Ryles’ letter to the Court as bolstering her credibility. Moreover, the Court rejected Palace Hotel’s argument that California law required coercion by the other party to the contract, noting that the release of Title VII claims is governed by federal law.

More on mediation "duress" soon.

Supreme Court Seeks Government Advice On Patent Case

 AP 4.17.07 courtesy of Law.com

The Supreme Court on Monday asked the Bush administration to weigh in on a patent case that could impact any company with global supply chains.

The Court has not yet decided whether to take the case, but instead asked the U.S. Solicitor General -- the government's lawyer -- to offer its opinion on whether the Court should wade into the dispute.

At issue is whether a patent holder can seek royalties from multiple companies as a patented product works its way through the manufacturing process.

Click here for remainder of article.

Truth, Justice and the American Way

Thirty years ago (more or less) my law school trial advocacy professor taught me this:

Trial is not about ascertaining the truth.  Nor is it about justice.  It is simply one way to finally resolve a dispute.

I have to admit that my legal career was probably more marked than others by the belief that I was working on the side of truth and justice.  

But then, I was working small. 

Did the word "sudden" mean "quick" or only "gradual" and "unexpected" within the meaning of the pollution exclusion contained in a policy of comprehensive general liability insurance? 

Was it misleading to omit the exchange rate from advertising for the transmission of money to foreign countries? 

Could you negligently conspire to drive a medical provider out of business? (answered affirmatively, believe it or not, by the trial court).

Now that my view of the adversarial system is one of mediator and sometimes arbitrator,  what the "truth" is seems murky again, the way it did when I was clerking for a federal district court judge during law school.

So this post is the beginning of a series of posts about "justice" and fact-finding.  A series that will follow the path of my interest and discovery.  A series that raises questions that might never be answered.

To begin the exploration, I borrow freely from the excellent article by Professor Lisa Blomgren Bingham  When We Hold No Truths to Be Self-Evident:  Truth, Belief, Trust and the Decline in Trials.  This article, from a 2006 Symposium Issue for the Journal of Dispute Resolution, can be found on Westlaw and Lexis-Nexis and likely elsewhere on the internet.  I do not, unfortunately, have a free link to the article itself. 

We start with JUSTICE.

Distributive Justice

Distributive justice has its roots in social equity theory. It posits that social behavior occurs in response to the distribution of outcomes. Distributive justice emphasizes fairness in the allocation of outcomes. Thus, in mediation research, distributive justice suggests that satisfaction is a function of outcome, specifically the fact and content of a settlement or resolution. In theory, participants are more satisfied when they believe that the settlement is fair and favorable. There is a substantial body of empirical research that supports the distributive justice model as an explanation of satisfaction. The research suggests that distributive justice is a better explanation for satisfaction related to conflicts over resource allocation, such as wage disputes than other cases in which fairness matters. 


Procedural Justice

Procedural justice refers to participants' perceptions about the fairness of the rules and procedures that regulate a process. In contrast to distributive justice, which suggests that satisfaction is a function of outcome (the content of the decision or resolution), procedural justice suggests that satisfaction is a function of the process (the steps taken to reach that decision). Among the traditional principles of procedural justice are impartiality, voice or opportunity to be heard, and grounds for decisions. 

Procedural issues such as neutrality of the process and decision-maker, treatment of the participants with dignity and respect, and the trustworthiness of the decision-making authority are important to enhancing perceptions of procedural justice. Extensive literature supports procedural justice theories of satisfaction in a variety of contexts involving both courts and dispute resolution. In general, research suggests that if organizational processes and procedures are perceived to be fair, participants will be more satisfied, more willing to accept the resolution of that procedure, and more likely to form positive attitudes about the organization.

Interactional Justice

Beginning in the 1980s, organizational justice researchers developed the notion of interactional justice, defined as the quality of interpersonal treatment received during the enactment of organizational procedures. In general, interactional justice reflects concerns about the fairness of the non-procedurally dictated aspects of interaction. Research has identified two components of interactional justice: interpersonal justice and informational justice. These two components overlap considerably. However, empirical research suggests that they should be considered separately as each has differential and independent effects upon perceptions of justice. 

Informational Justice

Informational justice focuses on the enactment of decision-making procedures. Research suggests that explanations about the procedures used to determine outcomes enhance perceptions of informational justice. Explanations provide the information needed to evaluate the structural aspects of the process and how it is enacted. However, for explanations to be perceived as fair they must be recognized as sincere and communicated without ulterior motives, be based on sound reasoning with logically relevant information, and be determined by legitimate rather than arbitrary factors.  

Interpersonal Justice

Interpersonal justice reflects the degree to which people are treated with politeness, dignity, and respect by authorities. The experience of interpersonal justice can alter reactions to decisions, because sensitivity can make people feel better about an unfavorable outcome. Interpersonal treatment includes interpersonal communication,  truthfulness, respect, propriety of questions, and justification, and honesty, courtesy, timely feedback, and respect for rights. 

What all of this means in the "lay" terms of this blog, will be the subject of later posts, all labeled, "Truth, Justice and the American Way"  if the topic is of interest to you and you'd like to follow it (and comment upon it!)

 

Building Your Practice with Geoff Sharp's "Don't Be Average" Chart

Geoff Sharp kindly passes along his dad's advice not to be average and to always be in mid-career in his brilliant article on Starting a Mediation Practice here. (chart is Geoff's own)

My dad's career advice?  Never be a civil servant or wear a hat.  Huh???  Some dads give sound career advice and others zen koans to chew on for the rest of your life.  We love them equally because, well, because they're our dads!

Somedays, however, thinking of this little chart is all that keeps my internal energizer bunny rev'ving.

Have a great weekend.

Kodachrome: Ex A in Keeping Up with the Times & Paul Simon Redux; You Can Play These Simultaneously

Mr. Thrifty, always alert to the potential that business might arrive on our doorstep in response to my blog postings says "huh?" 

It's not just that he doesn't share my quirky sense of humor, it's that he doesn't follow the blog.  For others who don't, the YouTube Kodak commercial below is an example of the opportunities available to "old" industry in Web 2.0 advertising sources. 

Look!  I've become a shill for Kodak!  So stop grumbling; have a little fun; play along & even this edged-out camera company may live to revive the "Kodak moment" as a provider of digital technology.  

And, for my own weird reasons, this CRACKS ME UP! 

  

 Below, Paul Simon's Kodachrome from the YouTube Archive of YesMan46.   And, if you're a boomer still nostalgic about the way Simon & Garfunkel moved you in Junior High (now "Middle") School, check out his new album here.  Walking down memory lane, I provide you with Kodachrome.

Gotta Get Goals

Stephanie West Allen at Idealawg has tagged me and eleven others to respond to Alex Shalman's Gotta Get Goals by "list[ing] and writ[ing] about the top 5 to 10 goals that you gotta’ get so that you can truly say you have achieved your wildest dreams in life. These have to be your best, most exclusive, and over-the-top goals that you can pick off your goals list."

I'm thinking, SHOOT!! I already write about myself too much, but Stephanie is one of my favorite people so I hate to disappoint her on this meme.  Therefore, you can skip this post as more blather from the most narcissistic person on the planet or read my top ten. 

The casual observer may not think these goals much to hope for, but if I achieve them, I will have achieved more than I ever believed possible and will die a happy woman.  

  1. to stay sober and help other alcoholics to achieve sobriety; this is my primary purpose; everything else is gravy.
  2. when I say "stay sober," I mean, to maintain a peaceful and loving balance in my life no matter what my circumstances -- to be content and of service in a war zone, a jail cell, a hospital and on my death bed.
  3. to make a difference in the world, every day, one person at a time.
  4. to be awake, present, to my experience and compassionate to that of others.
  5. to continue to overcome those defects in my character that keep me from being of service.
  6. to be self-supporting through my own contributions.
  7. to be humble and more even-tempered.
  8. to express myself creatively without pretense, desire for fame or hope of financial reward.
  9. to know myself, my strengths and my limitations.
  10. to contribute to my family, my friends and my community at the highest level possible without self-aggrandizement or need of reward.

In the words of the poet Mary Oliver, I want to be able to say

all my life
I was a bride married to amazement.
I was the bridegroom, taking the world into my arms.

When it’s over, I don’t want to wonder
if I have made of my life something particular, and real.
I don’t want to find myself sighing and frightened,
or full of argument.

I don’t want to end up simply having visited this world.

If they haven't been tagged yet, I tag Michael Webster, Blaine Donais, Diana Skaggs, Cassandra Lawrence, Jan Schau, and, Geoff Sharp.

As always, Michael Webster says something incredibly provocative in response:

Gotta Get Goals.  Why? Why do we need goals? This is not a flip response to what appears to a very successful meme/linkbait project.

For the surprising answer, click here.

Counterfeit Handbags and Mediator Ethics

 

The SCMA Newsletter, missing in action for more than a year, will soon find its way into the mailbox of all SCMA members.  

For this we owe thanks to Board Members and/or authors Lisa KlermanPhyllis G. Pollack, Dorit Cypis, Nikki Tolt, Ed Davis, President Jan Frankel Schau and the invaluable administrative skills of Linda Cain.

I provide here a teaser from Phyllis Pollack's and my article A Mediator's Dilemma, exploring mediation ethics in the context of an illegal counterfeiting operation.  

How many of us have been in this situation? We’re mediating a fairly run-of-the-mill business case – a fight over the sale of an import business. During the course of the mediation, it slowly begins to dawn on us that the parties are bargaining over the value of a business that trades in counterfeit Louis Vuitton and Gucci handbags. Is this the moment when we ask ourselves, if I’m carrying a pricey Prada, should I push the parties out of my pad?

But that’s the Carrie Bradshaw question.

The mediator’s questions go more like this: as a neutral mediator, do I have a duty to: (a) chastise the parties for engaging in illegal conduct; (b) recuse myself to avoid participating in the creation of an illegal agreement; or (c) inform the parties that any settlement reached might not be enforced?

Before answering these difficult questions, consider the recent case of Hye Young Yoo v. Sue Jho (Calif. Court of Appeal, 2nd Dist).

Yoo, the purchaser of a counterfeit handbag business, sued the seller after investigators confiscated the counterfeit goods, which naturally caused the business to fail. Yoo wanted some or all of her money back and the trial Court (wearing black polyester) agreed -- to the tune of $103,250.

Not surprisingly, the appellate court, slightly more Manolo Blahnik but nevertheless also sporting Ace Uniforms, reversed, holding that when it comes to illegal contracts “the law will leave the parties as it finds them.” Id. In Yoo, leaving the parties the way the Court found them meant some pretty good times for the defendant. She stole Gucci and LV designs, sold them to (unsuspecting?) customers and made a cool $400K at a time when she was likely looking over her shoulder for the law to close in.

So, what’s a neutral mediator to do?

For the tentative resolution, click here.

 

Banning Laptops in Law School

(on the other hand, laptopping beats sleeping)

See the WSJ Law Blog's post No Laptops for You concerning a Georgetown Law Prof who has banned laptops from his classroom.    

I'm teaching a class at Pepperdine Law School this semester and must admit that the temptation to ban laptops is great, particularly when you've worked hard to prepare an engaging lecture and are attempting to solicit lively participation from your students.  It's sometimes dispiriting to face a sea of black and silver laptop covers instead of interested faces poised to join a class discussion.    

It may seem like a small problem, unworthy of a post.  But it concerns the way we treat one another and the way we wish to be treated.  If we were chatting at a party and I pulled out my Blackberry to "multi-task," I'd be considered boorish and not a little dim-witted.  How different is that from the conversation that takes place in the classroom?  

With these thoughts in mind, I provide an excerpt below and link above:

[Georgetown Law School Professor] David Cole has banned laptops from his classroom, and he wrote an essay about it in Saturday’s WaPo. He cites two reasons for the ban:

“Note-taking on a laptop encourages verbatim transcription. The note-taker tends to go into stenographic mode and no longer processes information in a way that is conducive to the give and take of classroom discussion. Because taking notes the old-fashioned way, by hand, is so much slower, one actually has to listen, think and prioritize the most important themes.”


“Laptops create temptation to surf the Web, check e-mail, shop for shoes or instant-message friends. That’s not only distracting to the student who is checking Red Sox statistics [or the WSJ Law Blog!] but for all those who see him . . . doing something besides being involved in class. Together, the stenographic mode and Web surfing make for a much less engaged classroom, and that affects all students . . . .”

 

Tags:

Collaboration Creates Better Science

 

As a follow-up to yesterday's post on collaboration and cooperation, we recommend a recent article in the Harvard Business School's invaluable online resource "Working Knowledge" -- The Value of Openness in Scientific Problem Solving, by Karim R. Lakhani, Lars Bo Jeppesen, Peter A. Lohse, and Jill A. Panetta.

The HBS Executive Summary below; link to full article above. 
  

Scientists are generally rewarded for discoveries they make as individuals or in small teams. While the sharing of information in science is an ideal, it is seldom practiced. In this research, Lakhani et al. used an approach common to open source software communities—which rely intensely on collaboration—and opened up a set of 166 scientific problems from the research laboratories of twenty-six firms to over 80,000 independent scientists. The outside scientists were able to solve one-third of the problems that the research laboratories were unable to solve internally.

Key concepts include:

Opening up problem information to a large group of outsiders can yield innovative technical solutions, increase the probability of success in science programs, and ultimately boost research productivity.

Open source software communities provide a model for improving the process of solving scientific problems.

Outsiders can see problems with fresh eyes; in this study, problems were solved by independent scientists with expertise at the boundary of or even outside their field.

Achieving true openness and collaboration will require change in the mindsets of both scientists and lab leadership.

A timely post for solving the problems of WORLD 3.0. 

Smoke: Tom Waits, Paul Auster, Harvey Keitel and Christmas on Easter Day

As Paul Auster has written, "the world comes into being only in the act of moving towards it." 

Which is as good a summary of the movie Smoke as you can get.

This clip, Augie's Christmas Story with Tom Waits' "You're Innocent When You Dream," is "just" the credits.

A small and touching silent film at the end of a great movie.  

An Easter Day offering.

Empathy, Evolution, Mediation and Global Warming

I took an urban hike with my good friend the composer, lyricist and novelist Kathleen Wakefield yesterday.  I live at the base of the Santa Monica mountain range, making for a good hour's hike from the Los Angeles Basin to the range's crest on Mulholland Drive and back (even if we only made it to Fountain) (yes, the Fountain of Bette Davis' famous response to the question "how do you get to Hollywood?"  -  "take Fountain") .

Because Kathleen makes her living selling her intellectual property, we were talking about the challenges raised by and opportunities presented to artists as their work becomes more and more their own property and less and less the business of those who "discover" it (A&R), produce it (Viacom, MGM, Capitol Records, etc.), sell it (Madison Avenue) and protect it (ASCAPentertainment lawyers).

Our conversation naturally ranged to Web 2.0; a world without borders; and, global warming, all of which took me back to the book my friend Ken Cloke is writing called "Mediators Can Save the Planet."

Why mediators?  Because WORLD 3.0 will require that we supercharge our natural cooperative and altruistic natures while dampening our competitive drive without thereby discarding our ambition. 

What will it take?  A shift from competition to collaboration.  

Can we do it?  "Yes we can," says Al Gore in An Inconvenient Truth when his audience begins to move from denial to despair.

How?  At least one way to get the global cooperation ball rolling will be to school ourselves in empathy, a necessary prerequisite to tackling the problem of collaborative solutions to worldwide  problems. 

All of which leads us to an old but timely article Empathy, Morality and Otherness by Dr. Douglas Chismar.  Before proceeding to suggest art as one of the ways we can increase our ability to identify the injustices done to and suffering endured by "foreign" others, Dr. Chismar identifies three types of empathy triggers:  (1)  empathizer specificity; (2) situation specificity; and, (3) recipient specificity.  He writes:  

Empathizer specificity refers to the manner in which individual empathizers vary in their general level of empathic responsiveness as a personality trait. Some people empathize quite often and intensively, others rarely and only weakly.

Situation specificity refers to how empathizers respond selectively to a variety of different empathy opportunity situations. Certain circumstances, for example the Challenger disaster, have evoked widespread empathy, while others, such as the civil war in Rwanda, evoked little response.

Recipient specificity speaks of how empathizers respond differently to particular kinds of individuals. A neighboring family left homeless by fire may evoke considerable empathy while a wino on a street corner may stimulate little concern.

After discussing the many reasons why we understandably misread the injustices visited upon and fail to respond to the suffering of distant and foreign "others,"  Dr. Chrismar suggests that we nourish our natural empathy impulses with art.  "We need to find a way to take the initial impulse to empathize and nourish it," he argues,

 rather than letting it slide, as it is prone to do, into the rut of selectivity. Humans have discovered at least two strategies for increasing the frequency and intensity of empathy, and overcoming its partiality.

The first strategy is the largely cognitive operation of what is commonly referred to as “universalizability.” This consists of abstracting from one’s particular situation and viewing oneself as one among many. It takes various forms, including reversibility (placing oneself on the imaginary receiving end of an action) and a kind of stripping away of what makes one particular (“judging a man by the content of his character rather than the color of his skin)”.

 A second strategy appeals to the arts . . . Through drama, poetry, film, and other arts, imaginative participation in others’ experience is enabled where it would otherwise fail to occur. The arts, through creating a mock reality, thrive upon the sense of fascination with the different while creating situations in which empathy is powerfully and irresistibly generated.

Human tendencies towards curiosity and exploration are harnessed to project the emotions into alien situations. The accepted suspension of cultural norms, which has tended to characterize the artworld throughout its history, permits the feeling and expression of unconventional emotions, unloosing a stream of feelings otherwise bottled up in a business-like society.

There's much more of interest in this article to anyone engaged in the project of preparing ourselves for the challenges of the coming century, including the mass relocation of people due to the rise in the sea level and the potential for catastrophic species extinction -- neither of which is science fiction anywhere but in the Bush White House.

Check it out.

Leaving BigLaw to Hang Out Your Own Shingle

 

(left:  courage)

 

 

In Lessons From a Large-Firm Partner Who Set Up His Own Shop ... and lived (well) to tell about it, Mark P. Zimmett tells the nitty-gritty of every BigLaw associate's and partner's ultimate fantasy -- solid, sophisticated legal work with your own name on the firm stationary.

For the full tale, see Mark's American Lawyer article here.  Excerpt below.    


Many partners in large firms dream of chucking it all and setting up their own practice. However, many also fear that without their firm's name recognition and resources, they will miss out on major matters. A seat at the table is no big deal in a penny-ante game.

But you can leave a big firm and keep a big practice. Today, one can handle sophisticated high-stakes legal work in a small firm. Add profits that can rival those at top 10 Am Law firms and control over your professional (and personal) life, and striking out on your own becomes an appealing alternative.

Getting started is relatively easy. As a friend described it: "Starting your own firm is only slightly more complicated than setting up the corner newsstand." True enough, but the real risks are realized along the way; like bungee-jumping with a family on your back, strapping on the harness is the easy part.

I hung out my shingle on Nov. 1, 1990, and hung out everything else with it.

For a local example, check out the excellent work being done by Lee and Tran formerly of Morgan Lewis, Quinn Emanuel, Skadden Arps, and Wilson Sonsini.

Strong Arm Mediation Tactics

See Diane Levin's interesting post about "Civil Gideon" rights and the charge that Judges and mediators strong-arm unrepresented litigants to settle their cases when they would prefer to proceed to trial.

This is not a new charge.  Nor is it a false one.  I continue to hear stories about strong-arm tactics in our local halls of justice.  And these tactics are not applied only to the pro per litigant.  I have seen attorneys deliver up their clients to court-annexed mediators as living sacrifices to bad legal advice or a simple lack of courage to deliver bad news about the course a case has taken.   

There is a difference between seeking the mediator's help with adjusting a party's overly optimistic expectations and ambushing your own client in court-annexed mediation proceedings.  I can hear the wails of my friends Joe Folger and Baruch Bush from Temple University and Hofstra Law School (respectively) (authors of The Promise of Mediation) now.

A snippet from Diane's post quoting and link to the longer, must-read post:

Russell Engler, a Professor at New England School of Law. In his 2006 article, "Shaping a Context-Based Civil Gideon from the Dynamics of Social Change," Professor Engler describes the actions of those standing in the way of progress thus:

In the courtroom, court personnel, including the judges, will likely encourage the unrepresented litigant to settle the case. That, in turn, may require the litigant to go to the hallway to negotiate with the lawyer, or to resort to some form of court-based mediation. The hallway negotiations are rife with instances of overreaching and unethical behavior by lawyers, unmonitored and unpunished by a legal system that depends on a high settlement rate. Where the litigants resist settlement, strong words from the judges, mediators or lawyers eventually induce litigants to settle. Few civil cases are tried, and most settlements involving the unrepresented poor occur with a minimum of judicial involvement. [Id. at 2.]

For the remainder of the article, click here.

Both Diane and I invite responses from our readers.

Tags:

Law School Rankings and U.C. Davis

I'm publishing the full text of my Law School's recent U.S. News and World Report rankings, primarily because I'm proud to say that Davis continues to deliver the goods on the diversity goals that made me choose it for my legal education thirty (gulp!) years ago.

I don't do much for Davis, despite how much it's done for me, both while studying for my J.D. and after.  It's not a name you toss around like Harvard or Yale or UCLA.  For anyone trying to make a decision about where to go to law school, here are the reasons why I truly loved my educational experience there:

  • there were (and continue to be) only about 160 people in each class, making the atmosphere  as relaxed as law school likely can be; the faculty available for a chat; and, the "feel" of the school like a small town where people bring you casseroles when you're sick and cheer you on when you're engaged in a competitive endeavor;
  • the quality of scholarship and standards in teaching were and are extremely high;
  • the student body is diverse;
  • there's ABSOLUTELY NOTHING TO DO THERE but study and hang out with your classmates (Davis is near many wonderful places -- San Francisco, Tahoe, gold country -- but Davis itself is precisely nowhere -- this is good for people who have a little ADHD and need to concentrate on their studies);
  • they're one of the few west coast universities with real squash courts;
  • the local legal community is tremendously supportive and small enough itself to provide opportunities for early real legal experience, like second-chairing trials, attending client meetings, participating in settlement negotiations, and meeting the Judges (both State and Federal) as a summer associate; and,  
  • the local bench is among the finest in the State.

Amazingly, some of the best professors I had '77-'80 are still teaching at Davis:  Dick Wydick (who offered to bet me 100 to 1 that I'd pass the bar exam when I was freaking out about it the summer of '80 -- he also made this offer to my study partners, Peter Offenbecher and Sam Foulk -- I remember Peter musing aloud, "you know, it might be worth throwing the bar in July if I put enough money on the table" -- and, no, Peter did not take a dive); Floyd Feeney (who kindly hired me as a first year to help with a book on ancient criminal procedure); and, Bruce Wolk (to whom I'll ever be grateful for slipping helpful explanatory material in my student mailbox when my clueless questions in Fed Tax 1 made him realize I greatly needed help).  

The only burning alumni question I have:  is there still a pinball machine in the basement?

GO AGGIES! 

The Davis press release below.

UC Davis School of Law received high marks from its peers—faculty at other law schools and lawyers and judges throughout the United States—in the latest U.S. News & World Report ranking of America's Best Graduate Schools. The 2008 Edition includes an assessment of all 184 accredited law schools in the United States by peers and by lawyers and judges. UC Davis Law tied at 23 in the peer assessment category and at 32 in the assessment by lawyers and judges.

The report, released on March 30, 2007, showed UC Davis School of Law continues to rank in the first tier of all law schools, and while serving under 600 students is one of the highest-ranked small public law schools in the country.

“We are very excited to be recognized for our achievements particularly by our peers and those in the legal profession,” said Dean Rex Perschbacher, “although we encourage students and the public to look beyond national rankings and choose a school that meets the individual needs of each student.”

“Our school offers an exceptional legal education while retaining a close-knit community atmosphere through smaller classes and greater faculty interaction,” he added. “Those in the legal profession know the quality of our students, and our peers recognize the excellent scholarship and teaching by our faculty.”

U.S. News also recognized the Law School's strength in diversity, showing it among the top 25 in the United States in this category. This recognition is not new to Davis. In 2005, the National Jurist magazine ran a story on the “Best Schools for Minorities,” and named UC Davis School of Law as one of the very top law schools in the United States for minorities, with both a high minority enrollment and one of the most diverse law faculties in the country. The Princeton Review's 2006 edition of the Best 159 Law Schools ranked Davis in the top 10 for “Best Environment for Minority Students” and “Most Diverse Faculty.”

The school has a dynamic academic program with strengths in business law, criminal law and procedure, environmental and natural resources law, human rights and social justice law, intellectual property law, international law, and public interest law. The school also offers community clinics in the areas of family protection, immigration, prison law, and civil rights. In these clinics, second- and third-year students represent clients under the supervision of experienced faculty to develop their practical skills.

“We provide our students with comprehensive courses in a variety of legal areas and balance their coursework with real-life experiences in our clinics,” said Perschbacher.

 

Advice for Women Rainmakers and Those Who Think They Can't

(BELOW, Katherine Hepburn and Burt Lancaster in The Rainmaker.  Dated and melodramatic.  But because this scene was my dramatic interpretation selection for high school speech tournaments in 1969, I can't think of rainmaking without recalling this scene)

Pull out that divining rod and begin prospecting for rainwater in your own backyard with marketing guru Sara Holtz's Women Rainmakers Blog.

Start with Your Mother Was Right Part II to get an idea of the ample marketing resources you already possess.  Resources that you need only begin to use.  It's EASY, say I, who developed not a LICK of business in 25 years of practice and am now a business development queen (since I only eat what I can kill). 

But it's not desperation that made me realize I had what it took to develop business.  It was simple necessity.  Everything else followed, without having to change my personality or do or say stuff that wasn't "me."  I'm not golfing or talking about the Final Four or pushing myself on the attorneys who have become my market.  But, this isn't about me.  This is about you.  Here's Sara Holtz's advice on that subject from "Your Mother was Right."  

Your mother told you that when others inquired about you, it was polite to reciprocate and ask about them. What she didn't tell you is it is also good for business development.

I was reminded of this during two recent conversations.

I was speaking with a (male) client. He is a funny, personable sort. In the course of our conversation, I asked him a number of questions - What was new with him? What were his plans for the holidays? What were his kids up to?

He didn't ask me a single question in return.

Least you think this is a "guy thing", I had a similar experience when having dinner with a (female) classmate from Law School. We had an entire dinner in which she failed to ask me a single question about myself or my family, even though that had been the focus of our conversation about her.

I was a bit puzzled in both situations. What do I make of this?  

That it was a missed opportunity to enhance their relationships with me. Carried over to the business development context, don't make the same mistake. Make a point to ask appropriate questions, learn about the other person, let them know that you are interested in them. It will strengthen your relationships. And strong relationships are good for business.

I'll add to this that both lawyers and neutrals are problem solvers.  You don't need to know what complicated antitrust problem your dinner companion is wrestling with (unless she's dying to talk about it).  Casual conversation over a relaxing meal will inevitably reveal some challenge your dinner companion is facing.

Be a problem solver.  I can now do this in minutes, holding a glass of soda water at any bar function anywhere anytime.  I do not tell people I am a mediator.  It tends to make them start looking over my shoulder for someone else to talk to.  They're afraid I'm going to try to sell them my services.  I simply ask lots and lots and lots of questions about them.  How's your practice?  Are you progressing as you want to?  How's the firm doing?  Are your associates getting the training they need, etc., etc.  At some point, I begin helping my new bar association friend with one or more of these challenges.  

Eventually they look at me with real interest and say "what is it that you do anyway?"  That's when I tell them, "I'm a professional problem-solver -- a mediator."  We exchange cards.  The business does not come directly and sometimes not at all.  But at the next bar association function, I often see my new old friend, ask how he's rising to the challenge we discussed when last we met.  He introduces me to someone else with kind words about how I helped him with, say, the paper clip supply in the mailroom.  Really, any  problem solving whatsoever will do.

This is how you build a network, a reputation and a business. If I'd known it was this easy, I'd have had a book of business before I was made (a non-equity) partner.  You can build yours too.  Starting now.

Live to Cooperate, Cooperate to Live

I am constantly reminding my readers that we are hard-wired cooperators.  Cooperation alone, regardless of result, makes us happy.  Better yet, cooperation almost always results in a better deal for everyone. 

This is not do-good, crystal-reading, pentagram-worshiping kum-by-ya feel good west coast touchy-feely nonsense.  This is evolutionary biology.

In this week's Sunday New York Times Natalie Angier reminds us that cooperation is not only the necessary pre-condition to the survival of the human species as a group, but is also the pre-condition to each of our individual lives.  In her fascinating article, Sociable Darwinism, Ms. Angier reviews Evolution for Everyone (etc.) by Professor David Sloan Wilson at Binghamton University.  

As Ms. Angier explains:

Wilson has long been interested in the evolution of cooperative and altruistic behavior, and much of the book is devoted to the premise that “goodness can evolve, at least when the appropriate conditions are met.” As he sees it, all of life is characterized by a “cosmic” struggle between good and evil, the high-strung terms we apply to behaviors that are either cooperative or selfish, civic or anomic.

The constant give-and-take between me versus we extends down to the tiniest and most primal elements of life. Short biochemical sequences may want to replicate themselves ad infinitum, their neighboring sequences be damned; yet genes get together under the aegis of cells and reproduce in orderly fashion as genomes, as collectives of sequences, setting aside some of their immediate selfish urges for the sake of long-term genomic survival.

Cells further collude as organs, and organs pool their talents and become bodies. The conflict between being well behaved, being good, not gulping down more than your share, and being selfish enough to get your fair share, “is eternal and encompasses virtually all species on earth,” he writes, and it likely occurs on any other planet that supports life, too, “because it is predicted at such a fundamental level by evolutionary theory.”

How do higher patterns of cooperative behavior emerge from aggregates of small, selfish units? With carrots, sticks and ceaseless surveillance. In the human body, for example, nascent tumor cells arise on a shockingly regular basis, each determined to replicate without bound; again and again, immune cells attack the malignancies, destroying the outlaw cells and themselves in the process. The larger body survives to breed, and hence spawn a legacy far sturdier than any tumor mass could manage.

For the remainder of this article, click here.  For how this phenomenon applies to the legal profession, see Unhappy Lawyers and the Cooperative Hard Wire here.   

To read Professor Wilson's book, EVOLUTION FOR EVERYONE -- How Darwin’s Theory Can Change the Way We Think About Our Lives, click on the title.

Mediation, Wikipedia and the Internet

In response to my over-50 peers' dire predictions that the internet will make books with covers and typeset lines obsolete, I chortle back, "but I love the internet.  I love wikipedia. I love Youtube and Flickr and Google." 

They look at me like I'm nuts. 

"But what about newspapers," they say, "and reading and poetry?  What about sitting in an easy chair with a new novel in your hands and a cup of coffee by your side?"

"Books and newspapers don't hyperlink," I respond.  "Nor do they give me access to thousands of libraries.  With search capacity." 

"Here's the thing," I continue.  "I can sit on the couch in my L.A. Spanish stucco house -- built in 1928, at the very beginning of electricity and motorized mobility -- with my Dell computer on my lap, looking up occasionally at the vase of spring flowers on my coffee table, the bird of paradise just beyond my curtained window and the palm trees in the neighbors' yard across the street while I browse the Library of Congress for an article on the history of Islam." 

"And if books with covers become artifacts like 78-rpm records?  I'll have my artifacts here, in the bookcase behind me and on shelves in my office.  Perhaps we'll have public newspaper like we now have public television and radio, for the old folks among us.  No need to worry about someone acquiring monopoly control over the news.  The bloggers will continue to newscast and the ordinary citizen to upload to YouTube scenes of the local police tazering citizens.  And we won't have to cut down any more trees to make the paper on which to hold the words."

Does it get any better than that?

The point of this post?   I am once again burying the lede is favor of the aimless morning ramble before I jump back in to my real work -- the work they pay me to do. 

The point of this post is to ask you to go RIGHT NOW over to wikipedia's entry on mediation and make it better as suggested by John Helie in There Goes That Internet Thingy Again! in mediate.com this month.

Thanks John!

Employee Bound by Arbitration Agreement Not Permitted to Cross-Complain in EEOC Enforcement Action

In the recent case of Equal Employment Opportunity Commission v. Woodmen of the World Life Insurance Society, 2007 WL 702758 (C.A.8 (Neb.)) ("Woodmen"), the U.S. Court of Appeals for the Eighth Circuit held that an employee bound by an arbitration agreement may not seek damages against her employer as an intervenor in an EEOC enforcement action.  


On appeal from the district court's refusal to grant the employer's motion to compel arbitration, the Eighth Circuit reasoned that requiring Ms. Rollins to arbitrate her claims would interfere with the EEOC's ability to pursue its enforcement action.  The appellate court  also rejected claimant's argument that the arbitration agreement was preempted by the enforcement action under Waffle House.

The Court explained:

Had the Supreme Court intended to preclude an employee from asserting claims in arbitration against the employer concurrently with the EEOC enforcement action . . . , it would not have had occasion or need to discuss the possible ramifications of an arbitration award [in its Waffle House decision].

The Woodmen court concluded that neither Title VII nor Waffle House precluded Ms. Rollins from arbitrating all of the cross-claims she asserted as an intervenor in the EEOC's enforcement action.  In fact, the FAA compelled her to do so. 

Professional Image: Trustworthiness, Caring, Humility and Capability

below, 360 degrees of l.a. subway by Masumi Hayashi

I've told my own hard lesson about projecting a positive professional image before here and here. 

There's nothing like a 360 review to get you thinking about why you're (pick one) not getting the plum assignments; being passed over for partnership; or, not winning the corporate "beauty contest."  There's a great Q&A over at HBS Working Knowledge with Laura Roberts, Assistant Professor of Organizational Behavior at the Harvard Business School on Creating a Positive Professional Image (before others do it for you).  Here's an excerpt and a link.  

Most people want to be described as technically competent, socially skilled, of strong character and integrity, and committed to your work, your team, and your company. Research shows that the most favorably regarded traits are trustworthiness, caring, humility, and capability.

Ask yourself the question: What do I want my key constituents to say about me when I'm not in the room? This description is your desired professional image. Likewise, you might ask yourself the question: What am I concerned that my key constituents might say about me when I'm not in the room? The answer to this question represents your undesired professional image.

My old friend and former legal associate, environmental attorney James Dragna at Bingham McCutheon, the best client developer in the business, used to say, "if people have the choice between someone competent they want to hang out with and someone they don't, they'll choose the guy [or gal] they trust and like."

Yes, you can improve your technical capability, but those other three qualities -- trustworthiness, caring and humility -- are choices we can make on any given day.  That's the good news.  Even if you never could get the punch-line to a joke right and don't care who the final four might be.  

New Patent Law: Fed Circuit Lowers DJ Jurisdiciton

Thanks again to our friends at Duane Morris we learn that one federal circuit court has lowered the threshhold for declaratory judgment jurisdiction in patent actions.  

SanDisk Corp. v. STMicroelectronics, Inc., et al., No. 05-1300

On March 26, 2007, the Federal Circuit significantly lowered the bar for determining when a prospective patent licensee can initiate a declaratory judgment action. In response to the Supreme Court’s rejection of the Federal Circuit’s “reasonable apprehension of suit” test for determining declaratory judgment jurisdiction in MedImmune Inc. v. Genentech, Inc., et al., 127 S. Ct. 764 (January 9, 2007), the Federal Circuit set forth a new rule and held that in the context of pre-litigation licensing negotiations “where a patentee asserts rights under a patent based on certain identified ongoing or planned activity of another party,” declaratory judgment jurisdiction will arise.

To read the full text of this Alert, please click here.

Aggressive First Offers: Helpful Notes

Research shows that how we perceive a particular offer's value is highly influenced by any relevant number that enters the negotiation environment -- an anchor.

The greater the ambiguity and uncertainty, the stronger the anchoring effect of the first offer, which will exert a strong pull throughout the rest of the negotiation.

researchers had real estate agents inspect a house and estimate its appraisal value and its purchase price 

  • then they manipulated the house's list price, providing high and low anchors

  • all of the agents' estimates were influenced by the list price, even though they denied factoring the list price into their decisions

  • when they explained the basis for their estimates, they cited features of the property that would justify those estimates

in another study, researchers sent customers to mechanics to obtain estimates on the value of a car

  • after the customer offered his own opinion of the car's value, he asked the mechanic for an estimate
  • half the mechanics were given a low anchor and half were given a high anchor
  • the mechanics estimated the car to be worth a thousand dollars more when they were given the high-anchor value

a Northwestern busienss law school professor explained the phenomenon this way

  • items being negotiated have both positive and negative qualities—qualities that suggest a higher price and qualities that suggest a lower price
  • high anchors selectively direct our attention toward an item's positive attributes; low anchors direct our attention to its flaws
  • a high list price directed real estate agents' attention to the house's positive features (such as spacious rooms or a new roof) while pushing negative features (such as a small yard or an old furnace) to the back recesses of their minds
  • similarly, a low anchor led mechanics to focus on a car's worn belts and ailing clutch rather than its low mileage and pristine interior 

making the first offer anchors the negotiation in favor of the offeror

  • the author of the article from which these insights were gleaned found that when a seller makes the first offer, the final settlement price tends to be higher than when the buyer makes the first offer 
  • the amount of the first offer affects the outcome, with more aggressive or extreme first offers leading to a better outcome for the person who made the offer
  • Initial offers predict final settlement prices better than subsequent concessionary behaviors do

how extreme should your first offer be?

  • this author's research suggests that first offers should be quite aggressive but not absurdly so 
  • the fear that an aggressive first offer will scare or annoy the other side and perhaps even cause him to walk away in disgust is typically exaggerated
  • most negotiators make first offers that are not aggressive enough
  • a nonaggressive first offer requires small concessions or a decision to stand by the original demand
  • one of the best predictors of negotiator satisfaction with an outcome is the number and size of the concessions extracted from an opponent
  • by making an aggressive first offer your opponent is able to "extract" concessions from you
  • in that case, you'll not only get a better outcome, but you'll also increase the other side's satisfaction

from "Should You Make the First Offer?"  by Adam D. Galinsky, an assistant professor at Northwestern University's Kellogg Graduate School of Management, in Evanston, Illinois.

Stemming the Tide of Counterfeit Goods

(this wave is so big, you can hear the wind whistling on the tape)

The importation of counterfeit goods into Southern California is a problem for many of my lawyer-clients' clients. 

The old saw that an ounce of prevention is worth a pound of cure is particularly appropriate where neither lawsuits nor negotiated agreements are effective deterrents.  I am therefore bringing you prevention suggestions from the law firm of Porter, Wright, Morris & Arthur, Recordation of Copyright and Trademark Registrations with Customs -- Combatting Counterfeit Goods, a brief excerpt of which we copy below.     

Counterfeit goods rob United States businesses of billions of dollars in revenue each year. They also damage brand reputation, which is difficult to quantify. U.S. Customs and Border Protection has authority to stop or seize counterfeit goods entering the United States; in fact, in 2005 alone, Customs performed over 8,000 seizures of counterfeit goods valued at more than $93 million.1 Trademark and copyright owners may record their U.S. trademark and copyright registrations with Customs to help Customs identify goods it has authority to seize.

For remainder of article, click here.

The First and Last Time I'll Post My Own Poetry Here

I always wanted to have my own literary journal and, thanks to the internet, I have one --  the r.kv.r.y. quarterly literary journal -- where this poem -- Space Time is Curved -- resides.  For wikipedia's entry on Spacetime, click here.

Most of the poets and writers I publish are strangers to me.  They find the journal primarily through Poets & Writers Magazine, which has an inexpensive classified ad section.  Or they know other people who already published in r.kv.r.y.  Having the journal allows me to publish the work of my friends, all of whom are better poets than I.  Joe Mockus and Richard Wirick, for instance, whose work I've recently mentioned and who only happen to both be attorneys.  

The best thing about writing poetry, for an amateur like me, is that it slows the world down.  It makes me look more carefully.  It sends me to the bookstore to purchase Audubon Guides to the trees, flowers and birds I've never learned by name.  Curlew, whimbrel, nuthatch, and, yes, even booby, brown and blue-footed (sula leucogaster and nebouxii)  for those times when your poem needs a little whimsey.   Sycamore, hawthorne and laurelcherry trees.  Valerian, elder, thistle and honeysuckle.  It recalls the time when people had the time to notice and name the world around them.

As Shakespeare famously wrote:  a poet gives to airy nothings a local habitation and a name.

The second best thing about writing poetry in mid-life is reading it again.  Kinnell and CreeleyBerriganBishop and BukowskiWright and Collins and Neruda.  Dickinson, cummings, Levertov and Auden.  Merwin, Sexton and Graham.  You could live your entire life inside the poems of just this handful of great  20th Century poets.  

r.kv.r.y. has a "favorite poets" page and we invite you to send us yours.  

This is a lazy Saturday post, waiting for my husband to arrive home from New York City.  And before the cleaning and shopping for Monday's Seder begins.  

I hope you're having a pleasant weekend too.

Settlement: the Adjuster is Not Your High School Girlfriend

 

Ron Miller over at the Trial Lawyer Resource Center posted a good article on negotiating settlements with insurance adjusters recently called Listening During Settlement Negotiations

Miller's helpful tips include nuggets such as:

 

The Adjuster Is Not Your High School Girlfriend: If negotiations end badly, agree to disagree and file suit. Do not get mad at the claims adjuster. You can remind the adjuster that you have facts about the case (the quality of the client or whatever the facts may be) that reviewing the medical records could not possibly give the adjuster. If this is the problem, it is obviously not the adjuster's fault that the medical records don't fully give a lens to the value of the case. Discovery can resolve this and, if it does not, this is why we have juries. Don't take it personally.

Check it out. 

Lawyer Poets and Billy Collins

(video by JWTNY whose other work can be seen here).

The business of lawyers is words.  Their precise meaning. How they function, alone and together. Sometimes a comma makes all the difference between winning and losing a case. Once, for a few tens of millions of dollars, one of my partners asked the Court of Appeal to rule that the word "sudden" meant "quick," not "gradual."  (case mentioned here)

No kidding.

And everyone was worried about the outcome.

So the law is a poet's profession.  Or, poets gravitate toward the law because, unlike poets, lawyers get paid to write.

The poets among us are so common that we have our own web site -- Strangers to Us All:  Contemporary Lawyer Poets -- constructed by Law Professor James R. Elkins at West Virginia University. 

Some of my friends are listed there -- Rick Wirick -- an insurance coverage attorney with the firm of Fainsbert Mase & Snyder LLP in Los Angeles.  Rick's book of prose poetry -- 100 Siberian Postcards -- will have American debut at Book Soup in West Hollywood in late April of this year (you can listen to Rick read some of these here).     

My old college friend Joe Mockus is also on Professor Elkins web site.  Joe is a criminal defense attorney in Oakland (Garcia, Schnayerson & Mockus) whose firm once represented Jello Biafra of the Dead Kennedys in a Free Speech case (listen to Biafra chat with prosecutor Guardino on an episode of This American Life here).  Joe's one of the best poets I know.  But he doesn't send his work out and I have to beg him for it so I can publish him in the literary journal I edit, the r.kv.r.y. quarterly.  You can find Joe's poems here and here. 

I am more indebted to poetry than I could ever tell you unless we were chatting over a latte and I was talking too much.

Enjoy the Billy Collins.  The poetry alone is wonderful -- touching.  The videos are amazing.  Thank you YouTube for putting the means of distribution into the hands of the artists. 

I cannot resist also giving you The Best Cigarette Poem Video.  Hypnotic. 

Billy Collins' Forgetfulness

An occasional sublime moment in the midst of our working days.

Subcontractors, Developers and Insurers, Oh My!

Anyone representing contractors, developers, sub-contractors or insurance carriers in construction defect or coverage actions should read the most recent California case law on the duty to pay defense costs for complex construction defect cases.  

By "complex," I mean those cases where the HOA sues the developer who sues the general who sues the sub's, all of whom seek coverage from their carriers.  As any player in these 15-ring circuses knows, defense costs are often paid by an additional insured endorsement contained in the policies of one or two of the sub-contractors.    

That's what happened here.  The Court does a great job of clearly explaining the difference between equitable contribution and subrogation where the policies at issue provide potential coverage for some but not all of the causes of action.  The additional twist here involves excess carriers.

I'm not going to brief this case here (relying on my insurance blogging colleagues to do so).  I do want to alert attorneys for the HOAs, developers, contractors, and insurance carriers for whom I mediate construction defect and coverage cases to this important contribution to the most pressing question at any construction defect settlement conference  -- "whose got the money to settle this thing?" 

The case is Transcontinental Insurance Company v. Insurance Company of the State of Pennsylvania, filed on February 28, 2007 and published on March 27, 2007 by the Fourth District, Div. Three.

Mediation Strategy: Don't Gloat

(above, Charles Fincher's illustrative cartoon)  

I was talking to an attorney friend this morning about an upcoming mediation in a complex commercial case.  Lots and lots of $$$$$ at issue.  Last week -- a week before the mediation is set to convene --  his team scored a pre-trial victory on an eight figure issue.

If I'd had time to think about it, I'd have given him the mediation strategy advice he was already suggesting to himself.

DON'T GLOAT.

Aside from your mother's advice to never be a "bad winner" and your own certain knowledge that your shiny new pre-trial ruling can always be reversed, stifling your gloat-reflex will have at least two beneficial effects on your upcoming negotiation.  

  1. your opponents' reflexive desire to retaliate by launching an all-out thermo-nuclear-legal attack will be quieted, if not eliminated; and,  
  2. your opponents' ability to use their higher "executive" brain functions during the upcoming negotiations will be increased, soothing the fear and anger flight-fight mechanism of the  brain's reptilian amygdala, which, when triggered, overrides the sophisticated "executive" brain functions necessary to a successful high-stakes negotiation.

So, my friend had it right on the money this morning.  The hardest thing about the upcoming negotiation will be not to gloat.  

Make "not gloating" the center of your strategy, I replied, and you'll settle that multi-bazillion dollar case and make your corporate client truly happy.

Win Win Win: Conflict Resolution on The Office

It's Friday.  Time to chill out a little and take ourselves just ever so slightly less seriously.

Here, for your viewing enjoyment, a parody of Employment Conflict Resolution from the hilarious televsion series "The Office." 

See Death and Taxes Blog for the written transcript here.

Live by Suit; Die by Suit: DMCA Notices Violate the DMCA?

 

(left:  old tech)

As if the DMCA weren't already the Full Employment for BigLaw Act of 2007, we have a new DMCA cause of action -- improper take down notices.

Read today's Wall Street Journal Law Blog report on the new suit against Viacom, the latest in the YouTube wars.  This one was filed by "fair use" activist groups claiming that Viacom's demands to YouTube that it remove parodies of Viacom/Comedy Central programming themselves violate the DMCA.  

I will continue to be a broken record (a broken download?) on litigation about online content.

There are an infinite number of business solutions to the business problems (opportunities) created by Web 2.0.  As always, there are only a few, and frustratingly chimeral, legal solutions.  

I'll urge anyone within shouting distance of BigMedia to read 3D Negotiation by Lax and Sebenius, whose "brainest guys in the universe" credentials go like this:

David Lax and James Sebenius . . . combine decades of high-level, practical experience negotiating in the corporate, financial, and diplomatic realms with academic expertise that helped develop much of the modern field of negotiation.

Professor Sebenius is the first Gordon Donaldson Professor at Harvard Business School and a member of the Executive Committee that oversees the activities of the Program on Negotiation at Harvard Law School. David Lax, described by Forbes magazine as a "new negotiation theorist" on the cutting edge of his field, served as a professor at Harvard Business School from 1981-1989.

Lax and Sebenius co-founded the Negotiation Roundtable, a working research group sponsored by Harvard Business School and the Kennedy School of Government, and Sebenius currently serves as its Director.

This isn't "win win" negotiation strategy.  This is the way to outwit the entire legal system and most of your commercial competitors.  Why?  Because a business deal creates its own legal world -- the new one that precedent couldn't possibly have predicted.

But there's no reason to rely on me.  Check out 3-D & draw your own conclusions.   

                   

 

                                (right:  new tech)

Advice to Young Lawyers: The Usual Deposition Stipulations

(right:  practice, practice, practice)

Take a look at Steven Archer's article on the Dangers of the Usual Stipulation for the reasons why the "usual" proposed stipulation is filled with traps for the unwary. 

Mr. Archer thoughtfully provides what he believes is a bullet-proof stip, which I'm providing below (with my contribution limited to reducing his stipulation to bullet points).

Mr. Archer is a partner with the highly esteemed national law firm of Robins, Kaplan, Miller and Ciresi.   

Thanks to the always helpful Illinois Trial Practice Blog for introducing us to this helpful article in its own post -- Beware the Usual Stipulations

That said, here are the matters Mr. Archer recommends be included in all stipulations entered into at the close of every deposition.

I propose that we agree to

  • relieve the reporter of his/her statutory duty to maintain custody of the original transcript.
  • after it has been transcribed, the reporter shall send the original transcript [by UPS, FedEx, DHL, or the equivalent] to the witness at [witness’s office or residence address].
  • the witness shall have 30 days within which to read and review the transcript, make any changes that he/she deems appropriate and list any such changes on the errata page provided by the reporter.
  • upon completion of the review and listing the changes, if any, the witness shall then sign the transcript under penalty of perjury where indicated at the end of the transcript.
  • the reporter shall provide a preposted and preaddressed envelope so that the witness may then send the reviewed, corrected, and executed original transcript and errata page to [counsel].
  • [counsel] will maintain custody of the original executed transcript and will agree to produce it and lodge it with the court at the time of trial or for any motion for which it may be required upon reasonable request.
  • [counsel] will also advise all other counsel in writing of any changes, corrections, additions, or deletions made by the witness at the time of the review of the transcript and will provide all counsel with a copy of the errata and signature pages within 10 days of counsel’s receipt of the original executed transcript from the witness.
  • should the original executed transcript not be reviewed, corrected (if necessary), or signed by the witness within that time frame, or should the original executed transcript later become lost or otherwise unavailable, the parties agree that a certified copy may be used for all purposes, as if it were a duly executed and corrected original transcript.

As Archer notes, don't try to memorize this.  Just copy it and stick it in your briefcase.  We're all tired at the end of a long deposition day and it's no time to strut your stuff by proving to opposing counsel that you've memorized the $#^%& thing. 

Better yet, for each case agree upon the deposition stipulation ahead of time and ask the court reporter to attach the fully executed copy to the transcript.  This is particularly helpful in big cases where many associates and partners are taking depositions on the same case.

Talking Urinal Cakes Warn Against Drunk Driving

Thanks to Concurring Opinions for the day's only hilarity -- talking urinal cakes.  Unfortunately, the Concurring Opinions link to the Pioneer Press audio is broken. So here's the audio from the same program in New Mexico -- same cakes across the United Stakes, uh, States.      

OK, now I'm going to have to add a "humor" category to this blog.

Quote below from the Pioneer Press article referenced by Concurring Opinions. 

Guys who use urinals in some bars on St. Patrick's Day might get a special message about drunken driving.

The Minnesota Department of Public Safety is deploying "talking urinal cakes" in about 100 bars to encourage people not to drink and drive. In St. Paul, patrons may find them at The Liffey and Patrick McGovern's Pub on West Seventh Street.

The cakes, activated by a motion-sensor, offer a message with a woman's sultry voice saying, "Hey there, big guy, having a few drinks?"

The message is targeted toward primary DWI offenders: young men, according to the Department of Public Safety.

Each year in Minnesota, alcohol-related crashes account for around 200 traffic deaths. Last year, about 42,000 motorists were arrested for DWI, a record high.

Living "Abled" in Disability-Land

Further commentary on walking (or riding) a mile in someone else's shoes.

The following YouTube clip -- a British public service announcement -- turns the world upside down to help "the rest of us" have a glimpse of what the experience of being disabled might feel like.

Its well worth the couple of minutes it takes to view it. 

Listening to the Voices of the Disabled: Employment Mediation

I'm co-teaching a class (with long time employment mediator Stefan Mason) at the Straus Institute this semester.  We covered the Americans with Disabilities Act last night and spent an hour of the class "listening" to the voices of the disabled by watching YouTube videos, one of which I provide for my readers below.

The first "adult" book I ever read was To Kill a Mockingbird (film link here and movie clip here) when I was in the fifth grade. I know it's considered sentimental and not well written by the academy these days.  But what do you say about a book that changes someones life?  

Surely, I had never before heard the phrase

You never really understand a person until you consider things from his point of view-until you climb in his skin and walk around in it.  ~Atticus Finch

And as much as Harper Lee loved and respected Atticus, I did too.  In my ten-year old heart, he embodied everything I was already beginning to care about -- tolerance, respect, kindness, generosity and a fierce devotion to justice regardless of the consequences.

With Atticus' advice still sounding in my head forty years later, I bring you the voices of disability from Stefan's and my ADA class last night.  The Credo for Support.  Listen.  Reflect.  Your next mediation with someone who's disabled will be transformed by this.

Minor Entitled to Disaffirm Contract and Arbitration Award

(pictured:  garden diety of children)

Arbitration award is unenforceable against party who was a minor entitled to disaffirm the underlying agreement.  His minority status coupled with the absence of the appointment of a guardian ad litem entitled him to disaffirm the award and judgment even after statutory deadline for moving to vacate the award had passed.

Disaffirmance by the minor did not, however, affect the enforceability of the underlying agreement or of arbitration award against the parent who agreed to be personally liable for the minor’s obligations under the contract.
Berg v. Traylor - filed March 19, 2007, Second District, Div. Two, 2007 SOS 1269

Viacom, Google/YouTube and the Law of Unintended Consequences

ImageChef.com - Create custom images

 

 

Looking for an exhaustive analysis of the historical and technological context in which Viacom brings its billion dollar lawsuit against Google/YouTube?   

Plagarism Today, the blog of a graphic designer and amateur legal analyst, provides history, background and suggested reading along with the following conclusion

 

It’s important to note that this dispute isn’t just about clips from South Park and The Daily Show, it’s an element of a much larger struggle, one to determine the future direction of our culture.

History has shown us that the entities that control what information or art is viewed, be it the church, printing guilds, the government, copyright holders or search engines, control our culture.

Since the new is always built upon the old, at least to some degree, those who control the present have a heavy hand in determining tomorrow’s direction. Though the public at large has the final say, the “invisible hand’ of our cultural capitalism is guided by a very visible and observable force.

That is why this lawsuit will likely be a turning point in many regards. Perhaps even more so than the MGM v. Grokster ruling, this lawsuit could easily shape the legal climate for the Web for many years to come and, with that, the future of art, science and technology.

This case is bigger than either side likely realizes it is and that is what worries me. Both sides are protecting their interests, but one has to wonder if they have an eye on the larger picture.

If they don’t, no matter who wins, it could be catastrophic.

We’ve already seen what happens when two sides move forward into a court of law with only their personal agenda in mind, let us hope we are not subjected to that again.

Power and the Illusion of Power: Paddy Chayefsky's Network

Network (above) skewers network televsion as it existed in 1976 and, more importantly, predicted a future media dystopia as close to hand as your remote control.     

In this scene, the President of the fictional UBS Network attempts to "convert" the network's insane news anchor to the theology of the global marketplace.  It's one of the most prescient and hilarious commentaries on money, power and global politics ever written.

Norman Lear has said of Network:  This is not a satire; it's a documentary.  

Rent it, buy it, watch it. 

You will find in Network the first imaginings of reality television in a country that was then celebrating the 200th Anniversary of the American Revolution and which had, only the year before, painfully extracted the last of its troops from Viet NamSaturday Night Live was breaking network taboos in its first year on the air ('75-'76) and the Twin Towers had been standing sentinel over the foot of Manhattan for only three years.  

The following year -- 1977 -- I'd watch in amazement from the sidewalk near the New York Supreme Court in Foley Square as a mountain-climber from Queens,  George Willig, climbed the South Tower (2 WTC).   But I digress.

When Network was first released, I was working in the typing pool (IBM Selectric:  5 carbon copies) of a midtown law firm, studying for the LSAT and learning what it was like to be truly poor (rats in the lobby, cockroaches in the kitchen and la Migra pounding on our apartment door at 3 a.m. as  we listened to neighbors escaping through the building's otherwise unsued dumb-waiter system).  

When my husband and I had arrived in New York City the year before, it had been teetering on the edge of bankruptcy and its pleas for help from the federal government had been famously rebuffed, prompting the notorious New York Daily News headline: "Ford to City: Drop Dead."  

New York City thirty years ago.  New Orleans today.  Plus ça change, plus c'est la même chose.

Paddy Chayefsky's prophetic vision grows more eerily accurate with each passing year.  In 2006, this script was voted one of the top ten movie scripts of all-time by the Writer's Guild of America.

This posting has nothing whatsoever to do with mediation, negotiation, lawsuits, business or legal practice except that it is about power, the wielding of power and the illusion of power.

It's a Sunday digression.  

Google, YouTube, Viacom and the Future

 

(left:  mountain sues lake for copyright infringement)

Re: today's New York Times coverage of the $1 billion Viacom lawsuit against Google under the Digital Millennium Copyright Act.

I can't be the first one to ask these questions, but here goes:

  1. why don't the media giants recognize that when I post a scene from A Few Good Men in a blog read primarily by attorneys (a damn good media market) it's free advertising to a new generation of lawyers who were in elementary school when FGM was released in 1992.  This goes in spades for equally good (or better) lawyer movies like The Verdict, screenplay by the brilliant David Mamet with Paul Newman doing some of the best acting in is entire career.  Today's young lawyers were in their bassinets when this one was released in 1982.  And where do they learn about the old movies they may want to see?  From the internet. 
  2. haven't these guys read The Long Tail? (see extended entry for a wikipedia primer on long tail or "niche" marketing).
  3. don't they know that most young people (say, everyone under 30) believe that content should be free.  That by yanking movie clips or sound bites from YouTube they are alienating huge numbers of potential viewers under 30?  
  4. wouldn't Viacom be better off spending $100,000 per month devising a way to use YouTube's media-delivery system to its own benefit rather than paying people that same sum to track down its "pirated" YouTube content and execute it there?    

There's an old saying that "what you resist persists."  The internet, YouTube, google, blogs, mp3 players, ripping, burning and copying are here to stay. 

The means of production (and co-production) is in the hands of the people.

Still, large concentrations of capital remain (and will always remain) in the hands of corporate giants. 

This is not David and Goliath because David just wants to listen to his music, man.  The people who want to "monetize" David's listening (and recording) enjoyment will always find a way to do so.  That's their job.

The people will continue to create and share.  Mix and burn.  Copy and compile.  

Not that I mind Big Media wasting their money trying to stop the tide of progress. 

It's just that I'd rather they use it to make better movies.

For a far more sophisticated viewpoint than my own, take a look at the MIT Convergence Culture Consortium blog on CBS' Use of YouTube for "Cross Platform Distribution" of March Madness, noting: 

Not surprisingly, the blogosphere points to the irony of Viacom's suing YouTube while CBS is finding effective and profitable ways to work with the video sharing site. David A. Utter with WebProNews points out that the first CBS March Madness clip on YouTube prominently displays UPS advertising and indicates the potential for major profit for the network and YouTube as well. Utter says, "Why Viacom misses the potential of YouTube while their former brethren at CBS embrace it would be a question we would like to see Viacom answer if their YouTube/Google lawsuit ever comes to trial."

Continue Reading...

Managers, Supervisors and Discrminatory Motive

Diane Pfadenhauer of Strategic HR Lawyer recently asked the question

Can the Employer be Liable for Discrimination if the Person Who Terminated the Employee Harbored no Discriminatory Motive?


The answer?  Only the US Supreme Court will know.  Excerpt from Ms. Pfadenhauer's excellent employment blog below:

One of the more interesting cases that the US Supreme Court will hear this year (BCI Coca-Cola Bottling Co v. Equal Employment Opportunity Commission) surrounds a human resources manager who terminated an employee based almost exclusively on information from the employee's supervisor. According the the EEOC, the supervisor allegedly had a history of treating black employees more adversely when compared to others and had a history of making racially disparaging remarks in the workplace. The human resources manager, who harbored no discriminatory motive, relied on the word of the supervisor when terminating the employee. In addition, the HR manager did not know that the employee was black.

How Do I Get the Other Side to the Mediation Table?

 

 

Geoff Sharp of Mediator blah blah answers the perennial question -- how do I broach settlement with the other guy -- hilariously this morning, crediting "Lowering the Bar" Blog

The answer?  By being the same jackass you are in litigation.  

Exhibit "A" here.

Tags:

All the Mediation Emotions from A to A

Amy Lieberman, executive director of Insight Employment Mediation in Scottsdale, Arizona, recently published an intriguing article in the AAA Dispute Resolution Journal, The "A" List of Emotions in Mediation from Anxiety to Agreement. 

For my commercial litigator and business clients, I know, I know, it's "only about money" and you "don't take it personally." 

If you'll recall, however, there was that time you felt like lunging across the conference table at a recalcitrant witness or slammed your briefcase shut before storming out of a mediation in response to an "insulting" offer.  

Well, "A"nger isn't the only mediation emotion according to Ms. Lieberman.  You can pretty much define the entire settlement conference by concentrating on the letter "A."

For the truly emotionally well-balanced, you still might find your client or opposing counsel lurking here among the "A" emotional trees as described and amplified by Employment Mediator Amy Lieberman

Anxiety is called the "most common emotion experienced by parties waiting for a mediation to begin.  They know," Ms. Lieberman writes,

their own views of the conflict and strongly believe in the rightness of their positions. They each believe the other is being unreasonable and fear that the conflict will escalate, so that the goal of resolving the dispute in mediation will not be achieved. 

Anger follows anxiety like night follows day.  My friend the psychoanalyst says that anger consolidates our sense of ourselves when fear or anger threaten to overwhelm us.  Ms. Lieberman cautions that although "we may know intellectually that displaying anger is unlikely to help us achieve a resolution . . . we may be unable to prevent an angry outburst or other negative expression that could derail the mediation."

My own advice is to express your disgust to the mediator, who can reframe frustration into action, irritation into problem-solving and "A"nger into "A"greement (see below).

Ah, Adrenaline.  Someone once told me that trial attorneys are "stress-adrenaline" addicts.  I guess I'll have to raise my hand on that one.  If winning didn't give me a rush, the loses would be too costly to bear.  When you're a mediation advocate, however, its best to channel your adrenaline to the issues, not the people.  As Ury and Fisher, the famous "Getting to Yes" authors routinely counsel, "be hard on the problem and soft on the people."  

Awareness makes the "A" list.  Although the parties know one another's positions all too well before the mediation commences, counsels Ms. Lieberman, they often do not know "what led to those positions or the underlying interests or needs of the other side.  This is especially true," she writes,

where there is a breakdown in communications between the [parties and often also the] lawyers involved. .  .  Even when there is communication, the parties are often unable or unwilling to really listen to what the other has to say. .  .  It is typically th[e] new awareness that leads to the "magic" of mediation. The magic is the willingness of parties, based on new information, to view the conflict in a different light. It is this willingness that opens the door to resolution.

Acknowledgment is the beginning of Mediation Magic or "A"greement "A"lchemy.  Invariably, the first opportunity the parties have had to acknowledge their understanding of the other side's "position" occurs during the mediation.  Acknowledgement, writes Ms. Lieberman, often causes one's opponent to "shift closer towards an amicable resolution. Even a slight shift can start the ball rolling." 

That's my experience as well.


A is for Active Participation, the sine qua non of a successful mediation.  Sometimes hours pass while each "side" waits for the other to step up to the zone of potential agreement, the point of probable impasse, the moment everyone fears -- the time when everyone "a"cknowledges the case will never settle because the "other guy" is being unreasonable.  

Amy says "progress fosters progress" and I agree. 

To generate movement, I'll often call upon the more daring of the two parties to be the first to step up to the plate of impasse, i.e., to imake an offer that represents a "stretch," thereby encouraging the other side to do the same. 

It benefits no one to bargain in the nano- and strato- spheres when everyone knows that settlement won't be possible until the parties see the whites of each other's eyes. 

There are two A's in Acquiescence and Agreement.

Here Ms. Lieberman and I part semantic company.  I have to say that "acquiesce" should not be in any litigator's vocabulary.  Agreement yes.  Acquiescence, no.  I do agree with Amy that finding an agreement the parties "can live with" is a realistic goal. 

In my mind, that represents a sound business decision based upon a reasoned cost-benefit analysis.  Although this may be merely a matter of word choice, I'll wager that if you use the word "acquiescence" with your litigation colleagues, the first "A" words that come to their minds will be Anger and Adrenaline. 

As Amy finally reminds us, all the hard work of mediation goes for naught if we don't prepare Agreements the parties can enforce.  For my articles on the enforceability of mediated settlement agreement term sheets and memoranda of understanding, click here, here, here and here.

Thanks for the tips, Amy!

Tags:

Error to Dismiss Action as Sanction for Failing to Finalize Settlement

(photo, a member of the Warlocks)

Yesterday's ruling in Levitz v. the Warlocks is important to practitioners primarily as a reminder that an "agreement in principle" may not be an agreement at all; and, if the parties do reach a "conditional settlement" whose terms won't be performed within 45 days after agreement is reached: 

  1. they must file a notice of conditional settlement with the Court;
  2. the notice must specify the date by which dismissal is to be filed; and,
  3. the plaintiff must serve and file a request for dismissal within 45 days after the date that the notice specifies for performance.

If the plaintiff does not file the required request for dismissal within the 45 day period, the Court "must dismiss the entire case unless good cause is shown why the case should not be dismissed.” Id. citing Cal. Rules of Court, rule 225(c) -- now Rule 3.185.

We do not expect to see many cases similar to Levitz where both plaintiff and defendants sought to re-schedule the matter for trial after they failed to reach an agreement "relating to complex rights relating to royalties and publishing in the music business," despite everyone's best efforts to do so. 

The lesson here is more for judges than for lawyers.  The record (detailed in the extended entry below) chronicles the events causing the trial court's justifiable frustration with predictions by counsel that settlement was "only a day away."     

Nevertheless, the Court of Appeal stressed that the trial court is not authorized by any Rule of Court or other authority, to dismiss an action as a sanction for the parties' failure to explain why their settlement negotiations failed to bear fruit.   

The appellate court explained its reversal of the trial court's dismissal as follows:    

 In their first communication with the court about their tentative settlement, the parties notified it they had a settlement “in principle,” meaning they had yet to fix its exact terms. A settlement with open material terms is not a “conditional settlement” [and therefore not subject to Rule 225 - now 3.185].  

To the contrary, it is not a settlement at all because, like all contracts, it is not binding until the settling parties agree on all its material terms. (citation omitted).  . . . A “conditional settlement” . . . involves a complete meeting of the minds but with some portion of it requiring more than 45 days for its performance.

Because the parties never entered into a binding settlement, rule 225 [now 3.185] did not apply. The court thus acted beyond its authority when it relied on [that rule] and we therefore reverse the dismissal and order the action’s reinstatement. "

Id. (emphasis added).  

The appellate court concludes its opinion by warning that a dismissal could never be ordered as a sanction against both parties because it harms only one -- the plaintiff.    

For the full text of the case, see Levitz v. The Warlocks - 2007 SOS 1195 and for the case chronology leading to the trial court's decision, see the extended entry below.  

Continue Reading...

"I think they're lying. Every one of them." What Will the Jury Think of YOUR Case?

(cartoon from AdamZyglis.com)

Want to know what the jury might think of your case?  Here, courtesy of Blawg Review # 99 and several other linked connections, is the day-by-day journal of Juror #9 in the Scooter Libby Trial.

Here's a taste of the daily journal, beginning with the first day of deliberations.

"This is a case about memory, about recollections and about words." We've heard from the fighting Irishman and weeping Wells, a gaggle of Pulitzer Prize winners, and some of the best and brightest from the CIA, State Department, FBI and office of the Vice President. The Honorable Reggie Walton has just provided us final instructions.

Deliberations in the case of the United States vs. I. Lewis "Scooter" Libby in District Court for the District of Columbia are ready to commence, when one of the jurors offers an unsolicited statement regarding the solemn task before us.

"I think they're lying. Every one of them."

Better than all the Grisham you've ever read, yes?  Thanks to all the intervening links:  Blawg ReviewBegging to Differ (author of Review No. 99) Real Lawyers Have Blogs and The Huffington Post.

A Baghdad Romeo and Juliet

Just the other day we were talking about tit for tat violence in Romeo and Juliet.  Today, USNews.com in Friends, Family and Foes, in Iraq, Sunnis and Shiites Fight, But Sometimes They Marry, brings us a Shiite-Sunni wedding worthy of Friar Tuck's imaginings when he married the star-crossed lovers. 

 "In one respect I'll thy assistant be," he says of the upcoming secret nuptials, "for this alliance may so happy prove, to turn your households rancour to pure love." (Act 2, Scene 3). 

It's hard not to have one's hope slightly buoyed by this symbolic gesture.

"The bride," USNews.com reports,

is a university student from a storied Sunni tribe, the groom a technician at an Iraqi cellphone company and the son of a prominent Shiite tribal leader. It could almost be a Baghdad version of Romeo and Juliet but with a twist--the marriage was arranged by their parents, in part as a willful symbol of defiance against the sectarian violence that has riven Iraq.

The unlikely nuptials might appear to be a doomed gesture in a place where tension between Sunnis and Shiites seems to keep escalating with random killings and tit-for-tat retaliations. Shiite families have been chased out of suddenly unfriendly Sunni neighborhoods, and vice versa. The sectarian strife has been aggravated by growing confusion over the loyalty of Iraq's Shiite-dominated security forces and a months-long delay in forming a new government.

But the wedding also serves as a reminder of the complexity of the Iraqi mosaic, where Sunnis and Shiites have long been deeply interwoven. Not long ago, a Sunni-Shiite wedding would have been unremarkable. But in today's Baghdad, it is a brave and fraught venture. For these two families, it also means wrestling with the uncertain future of their troubled nation--and placing what amounts to a high-stakes bet that, in part because of events like this one, Iraq will not descend into a full-fledged civil war.

For the full account, click on the title of the article above.

Welcome to the Blogosphere Proskauer Rose

ImageChef.com - Create custom images

The Settle It Now Negotiation Law Blog welcomes Proskauer Rose's Privacy Practice Group Blog to the blogosphere.

I know one member of this dynamic practice group -- Tanya Forsheit -- who is a model of savvy associate business development as well as a tireless worker for the community of women lawyers through her membership on the Board of Governors of the Women Lawyer's Association of Los Angeles

It was not that long ago that Tanya posted her first article on the Los Angeles County Bar Association Blog site.  I'm pleased to see that her entire group is now bringing its expertise, knowledge, wisdom and know-how not only to its clients, but  to anyone else whose vital commercial interests include the growing area of Privacy Law.

Because I can't describe Proskauer's blog any better than it does, I give you the Privacy Law Group's first welcome message with a link below:  

Welcome to the Proskauer Privacy Law Blog. Proskauer’s Privacy and Data Security Practice Group is tremendously pleased to bring you what we hope will become a trusted source for summary and analysis of breaking legal developments in the evolving field of privacy and data security law. This blog is designed in part to complement our recent privacy treatise published by PLI entitled Proskauer on Privacy: A Guide to Privacy and Data Security Law in the Information Age.

Today we bring you posts regarding (1) the introduction of federal legislation that would give the Attorney General very broad authority to enact rules requiring Internet Service Providers to retain records so law enforcement can access customers’ online activities; (2) adoption by the EU Data Protection Working Party of a new model application form for Binding Corporate Rules; and (3) some of the many new proposed bills in the 110th Congress regarding data security breach notification that would preempt the more than 35 currently existing state laws.

In addition, you can find posts that I previously contributed to the California Privacy Law blog hosted by the Los Angeles County Bar Association.

Of course, we are interested in your feedback, and welcome your suggestions and comments. We look forward to hearing from you.

For the posts referenced in Proskauer's welcome message, click here.

Tags:

Reader Searches: What You're Looking For

ALL TIME MOST POPULAR SEARCHES

settlement claim tip labor negotiation
judicate west 
Judicate West's Judge John Leo Wagner (Ret.)
victoria pynchon 
national arbitration forum 
"negotiation articles" 
"Fair v. Bahktiari" 
negotiation strategy 
negotiation strategy tactics legal dispute
georgia mediation confidentiality  
Mediated settlement agreement 
settlement barrier to entry 
settlement + "barrier to entry" 
SIMMONS v. GHADERI
 
duty to settle adr blumberg 
california settlements 
psychology negotiation time patience 

Tags:

The Difference Between Negotiation Strategy and Tactics

 

 

 

 

 

This January Seth Godin's [Marketing] Blog made a succint distinction between marketing strategy and tactics that is as applicable to negotiation as it is to business development.  "The right strategy makes any tactic work better," said Godin.

The right strategy puts less pressure on executing your tactics perfectly.

Here's the obligatory January skiing analogy: Carving your turns better is a tactic. Choosing the right ski area in the first place is a strategy. Everyone skis better in Utah, it turns out.

If you are tired of hammering your head against the wall, if it feels like you never are good enough, or that you're working way too hard, it doesn't mean you're a loser. It means you've got the wrong strategy.

It takes real guts to abandon a strategy, especially if you've gotten super good at the tactics. That's precisely the reason that switching strategies is often such a good idea. Because your competition is afraid to.

Thanks Seth!  Great advice!

Is Your Negotiating Partner Behaving Irrationally? Love in a Tit for Tat World

Baz Luhrmann's hallucinatory Romeo and Juliet, the ultimate Shakesperean lesson in the dangers of fiercely playing Tit for Tat.   

The Americans are fond of explaining almost all the actions of their lives by the principle of self-interest rightly understood. In this respect I think they frequently fail to do themselves justice. -- Alexis de Tocqueville

We've mentioned these principles before:

  • negotiators will reflexively play the childhood game of tit for tat (you cooperate, I cooperate; you defect, I punish; you cooperate, I cooperate again) because, as the game theorists tell us, we evolved as a human society as a result;
  • negotiators are also inequality averse, just like the capuchin monkeys who act against their own apparent self-interest by refusing to work when one of their fellows begins making five times the salary for the same amount of work.  

Herbert Gintis, an Emeritus Professor of Economics at the University of Massachusetts, discusses these issues in Game Theory and Human Behavior.  

The point of the following excerpts from Professor Gintis' research is this -- what negotiators tend to call irrational bargaining behavior  -- not accepting an objectively  "good deal" -- is not necessarily irrational or "overly emotional."  It is simply driven by considerations that hard numbers do not explain.

Gintis explains: 

The inequality-averse individual is willing to reduce his own payoff to increase the degree of equality in the group (whence widespread support for charity and social welfare programs). But he is especially displeased when placed on the losing side of an unequal relationship.

Continue Reading...

Abraham Lincoln's Advice to Young Lawyers

Hat tip to Elliott Wilcox' Winning Trial Advocacy Techniques for hipping us to Abraham Lincoln's Advice to Young Lawyers, including the best advice for success in any field -- "always bear in mind that your own resolution to succeed, is more important than any other one thing."

The most common complaint I hear from young attorneys at all levels is the lack of mentoring available to them.  Since the internet is their domain, I ask those attorneys over thirty-five to pick up this "Advice to Young Lawyers" meme tag and run with it.  

In particular, I ask the following attorney-bloggers to share their best advice with our young readers --Arnie Herz of Legal Sanity, Evan Shaeffer of the Legal Underground, George M. Wallace of Fool in the Forest, Wilson Sonsini's Cathy Kirkman of the Silicon Valley Media Law Blog, and, Diana Skaggs of the Divorce Law Journal.

Thanks folks!  Please pass the baton along to your favorite, most wise, attorney bloggers.

The Real Reason I Quit Practice: Electronic Discovery

 

 

OK, so I didn't quit practice just because of the new electronic discovery rules.  I can say, however, that I'm mighty glad I don't have to deal with this.

Duane Morris, which acquired my firm after I left it, graciously includes me on their legal update mailing list.  Today, they supply this helpful roadmap for navigating the new rules, an excerpt of which you can find below:

 

 

 

Electronic Discovery: Know What You Have Before Your Adversary Does -- Understanding “What, Where & How” in the New Technological Landscape

Federal Rule 26(f)(2) and (3), as well as many similar local federal court rules and state court rules, requires parties to begin the discovery process by identifying and resolving “any issues relating to the disclosure or discovery of electronically stored information, including the form or forms in which it should be produced.”

The incorporation of ESI into the text of the rule alters profoundly the “what, where and how” of discovery. In order to avoid pitfalls and maximize the benefit of an early conference (whether required by court rule or simply initiated as good practice), one should understand the new “what, where and how” of e-discovery.

Click here for the full Duane Morris E-Discovery Alert.

My Amygdala Made Me Do It: Neuroscience and the Law

The New York Times Sunday Magazine cover story this coming week -- The Brain on the Stand -- covers a lot of territory on the use (and potential abuse) of neuroscience in the legal system.     

While the scientists debate whether  knowledge gleaned from sophisticated brain imagery demonstrates that our brain activity  controls our  behavior or simply reflects it, those of us concerned with decision making have much to learn from it.         

Because my work is pretty much exclusively devoted to finding mutually beneficial resolutions to hotly contested litigation, neuroscience insights into how and why we make decisions -- and how we might make them better -- have been invaluable in my practice.    

In this article, author Jeffrey Rosen describes the results of one neuroscientific experiment suggesting that dampening our emotional reactions to the regretably common "insulting first offer" might keep us in the negotiation process long enough to let our more rational responses prevail.     

He explains:

'A remarkable technique called transcranial magnetic stimulation, for example, has been used to stimulate or inhibit specific regions of the brain. It can temporarily alter how we think and feel.

Using T.M.S., Ernst Fehr and Daria Knoch of the University of Zurich temporarily disrupted each side of the dorsolateral prefrontal cortex in test subjects. They asked their subjects to participate in an experiment that economists call the ultimatum game.

One person is given $20 and told to divide it with a partner. If the partner rejects the proposed amount as too low, neither person gets any money.

Subjects whose prefrontal cortexes were functioning properly tended to reject offers of $4 or less: they would rather get no money than accept an offer that struck them as insulting and unfair.

[remember -- even monkeys would rather earn no "salary" than let their "CEO" monkey make five times as much as they do -- so this is animal behavior]

But subjects whose right prefrontal cortexes were suppressed by T.M.S. tended to accept the $4 offer. Although the offer still struck them as insulting, they were able to suppress their indignation and to pursue the selfishly rational conclusion that a low offer is better than nothing.

I do not cite this research to suggest that we should be satisfied with "insulting and unfair" proposals.  I cite it only for the thoughtful consideration of litigants and business people everywhere. 

It is perfectly 'rational" to respond to an insulting offer by rejecting it.  Being alert to our tendency to allow emotions to reign in response might give us the breathing room we need to calm our clients and continue to pursue a settlement negotiations that could well lead to resolutions that are neither insulting nor unfair.

The article is invaluable reading for anyone wanting to answer the question -- what in the world could the other side be thinking?  A question that can only be answered when the parties sit down together with a commitment to seeing the negotiation through.  

And if you're not already on speaking terms with your amygdala, click here for a fuller (lay) explanation of its effect on decision making.

Advice for Young Lawyers: Deposition: Hearsay in Business Records

 

No, just because it's in a business record doesn't mean everything that record says can come into evidence.  

Single hearsay

Ledger says employee Jones was paid $500 in cash on June 5, 2005.

Double hearsay

Note in employer's file (maintained in the regular course of business & brought within exception to hearsay rule) says "Darlene says she paid employee Jones $500 in cash on June 5, 2005." 

Why does double hearsay matter in a deposition? 

Because if you don't know its double hearsay, you might not track down "Darlene" or find another way to prove that employee Jones was paid $500 in cash on June 5, 2005.  

Advice for Young Lawyers: Using Documents at Deposition

Nothing throws more fear into the heart of a young litigator than using documents at a deposition.

Here's the good news.  It's easy if you know the rules and follow the steps.

Here are the steps.

  1. Mark them
  2. Authenticate them
  3. Lay the foundation for the business records exception to the hearsay rule
  4. Lay the foundation for any available hearsay exception for hearsay statements contained in the business record itself;
  5. Question the witness about the documents
    • to refresh his/her recollection
    • to impeach his/her testimony
    • to obtain an explanation of the meaning of language contained in them
    • to forward your case and tell your client's story

Feel free to bring "cheat sheets" with you to the deposition, remembering that you can rarely save your face and your ass at the same time.

MARK IT

  • Scratch an exhibit number on the document (or post-it) if it hasn't previously been marked
  • Hand copies to opposing counsel and to the court reporter
  • Say, "the Court Reporter will mark as Exhibit Q, correspondence from X to Y dated June 16, 2003, carrying Bates Stamp number 325490."
  • Pause as the reporter affixes an exhibit number to the document and hands it to the witness
  • Say to the witness, "do you now have exhibit Q before you?"

AUTHENTICATE IT

Q.     "Please identify Exhibit Q for the record."

A.     "It's a letter I wrote to Mr. Jones."

Q.     "Is that your signature at the bottom of the second page?"

A.     "Yes it is."

Q.     Is this a true and correct copy of the letter you wrote to Mr. Jones on such and such a date?

A.     Yes, it is.

OR

A.     "It's a letter I received from Mr. Green."

Q.     "Is that Mr. Green's signature on page three of Ex. Q?"

A.     "Yes."

Q.     "How are you able to recognize it?"

A.     "Because I . . . corresponded with him regularly or I've seen him sign his name on several occasions and I recognize this to be his signature."

Q.     "Is this a true and correct copy of a letter from Mr. Green that you received on or about such and such a date?"

A.     "Yes it is."

ESTABLISH THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE

Q.     You were employed by ABC Company in 2002?  

A.     Yes I was.

Q.     The Court reporter has marked and placed before you Exhibit Y, carrying Bates Stamp range 20056-98.   Can you identify Ex. Y for the record.

A.     Yes.  It appears to be a copy of ABC Company's ledger book.  

Q.     What is the function of the ledger book?

A.     We use it to record all of our sales and payments.

Q.     Are the entries in Ex. Y made at or near the time of the recorded sales and payments.

A.     Yes

Q.   Are the entries made as part of the regular business of ABC Co?

A.     Yes.

Q.     Is Ex. Y, the ledger book, kept in the ordinary course of ABC's business?

A.     Yes.

Q.     How is it that you're familiar with the ledger book?

A.     "It's prepared . . . . by me (or under my supervision)" or "as part of my job duties, I review the ledger on a monthly basis" or "I've occasionally seen the ledger and am aware that it is maintained by Mr. Brown, who works in the accounting department" or any other way in which the witness is familiar with the document.

You've now accomplished that which, I'm afraid to say, 90% of the attorneys taking depositions fail to accomplish every day.  If you don't get any other useful testimony from this witness, you will have created a record that will permit you to use these documents as evidence in summary judgment motions and at trial.  

We will cover in a subsequent post the following two steps -- laying the foundation for hearsay exceptions to hearsay statements contained in business records and using the document itself to forward your case. 

Advice for Young Lawyers -- On the Job Deposition Training

 

  Thousands of young attorneys will sit down to take their first deposition every year the same way I did, with roughly the same amount of dread and exactly the same amount of training. 

A lot and none whatsoever.

So that someone might benefit from my own painful experience more than twenty-five years ago, I give you my earliest deposition mistakes.

Within my first month of practice, I was assigned an "easy" first deposition.  We represented an injured plaintiff who broke her arm in a skating rink accident.  I was assigned to take the deposition of the young man who'd caused her to fall.  No documents.  Just the facts m'aam.

Here's what I learned the hard way.

You don't have to rephrase a question in response to an objection.

I did this dozens of times in a two-hour period.  At lunch, one of the grizzled old Sacramento P.I. defense attorneys grabbed me around the shoulders so hard I felt like I might break.   

"Just wait for the answer," he whispered in my ear.  "You don't need to re-phrase the question.  If the witness doesn't answer, ask the court reporter to read it back.  Say, 'do you have the question in mind?  Yes?  Would you answer it please?'" 

I fell all over myself thanking this kind man who growled in response, "I just wanna get outta here before Christmas."

The court reporter doesn't really "strike" anything from the record.

This is someone else's painful story.  I was defending a deposition that was obviously the examiner's first time.  Every time he rephrased a question mid-phrase, he'd turn to the court reporter and say, "strike that." 

Then he waited for her to do something.  When she didn't, a confused look would cross his face and he'd return to his questioning.  He must have done this a dozen times during the first hour.

Each time, the reporter just smiled that inscrutable court reporter smile, benevolent, knowing and, as I thought during most of my first year of practice, thinking, "what an idiot!"  

After several of these lengthy pauses, the reporter took pity on the poor attorney, put her hand gently on his arm and whispered, sotto voce, "I'll explain at the break."

There is no usual stipulation.  

At the end of the many depositions I'd seen before I first took my own, I watched attorneys look across the conference table and ask, "the usual stipulations?"  

So that's what I did in my first deposition.

"The usual stipulations counsel?"

Defense counsel eyed me with the admixture of pity and contempt seasoned lawyers reserve for new admittees.  This is the moment during which they decide whether to bat you around the deposition room like a cat toy or exercise mercy. 

"Why don't you put the usual stipulation on the record, counsel," he said, choosing option no. 1.  Not a question.  A declarative sentence.  An injunction.  A challenge.

Even then, a terrified newbie, I wasn't entirely a fool.  Never underestimate the power of youth and femininity.  If I could have batted my eyelashes I would have. 

What I did say, sweetly and with great deference, was this, "No, please.  You know them far better than I.  I'll let you put them on the record."

Score one for the first year attorney, who then went back to her boss to ask what the %$^# the usual stipulaitons were.

And for a break with your third Grande Latte of the day, check out this video of a first DAY lawyer defending a phony deposition in a phony sexual harassment action -- videotaped to great hilarity by his employer.  He handled himself pretty darn well under the circumstances! 

Continue Reading...

Afraid of Looking Like a 90-Pound Weakling?

 

Business Mediation Guru Robert A. Steinberg took on the vexing question most often posed to mediators in a dynamite Daily Journal article just last month -- How and When to Broach Settlement. 

If you're not on Bob's mailing list, you should be.  Here's a taste of the DJ Article that will pump you up.  Follow Bob's sound advice and you'll approach settlement without ever again worrying that the beach bully might kick sand in your face.

For all its rational veneer, negotiation is at base animal behavior. We fear to raise settlement because we think that “blinking first” is an admission of weakness and will cost us some measure of settlement value.

Parties often talk settlement at the beginning of the case, before they have spent much money, or after the completion of discovery, when they have developed the information they feel they need for trial. But you should consider raising settlement at other times: before a risk-magnifying event (such as a major motion or a heavy financial commitment) or whenever the settlement value of your case is most favorable.

For the remainder of Bob's article, click here.

 

Attorney-Client Pre-Dispute Arbitration Clause Valid?

I am not certain I would read the recent EC&J v. Kessel case as broadly as did the The Institute for Conflict Management's ADR Blogger, but I haven't had time to carefully read the opinion myself (which I will do, and report to you within the week). 

So that you're alert to the opinion, I refer you to the ICM's ADR post, Court Rules Pre-Dispute Arbitration Clauses Valid in Fee Disputes.

The ICM blogger explains: 

A California appeals court has opened the door to the enforcement of pre-dispute arbitration agreements between attorneys and their clients, ruling that once a client waives the right to non-binding arbitration under the state’s Mandatory Fee Arbitration Act, a court may compel binding arbitration based on the agreement of the parties.


California’s Second Appellate District rejected the notion that language in the MFAA requiring a post-dispute binding agreement to arbitrate bars enforcement of a pre-dispute binding arbitration agreement, ruling that the statutory language only prohibits enforcement of pre-dispute arbitration agreements governed by the MFAA ( Ervin, Cohen & Jessup, LLP v. Steven H. Kassel et al., No. 191761, 2/14/2007).

For the remainder of the article, click here and for the opinion itself, click here.

Mississippi Mediation Project Takes Flight

Even if attorney-mediator Laurel Kaufer were not in my small and cherished group of "Fabulous Women Neutrals," I would still be publicly applauding the launch of the Mississippi Mediation Project, selflessly sheparded from concept to realization by Ms. Kaufer's enormous creative and dedicated efforts.

Not to re-invent the wheel, we crib here from reporter Amber Craig's article posted on gulflive.com Project Donates Largest Collection of Mediation Books in State to Ina Thompason Library. 

 

The Mississippi Mediation Project concluded the final day of its conflict resolution session Wednesday by dedicating a section of mediation books to the Ina Thompson Public Library in Moss Point.

The three-day conference organized by the non-profit organization brought top mediation experts from across the nation to Pelican Landing, where 30 people from Jackson, Harrison and Hancock counties learned problem-solving skills.

Laurel Kaufer, the project's founder, called the Essential Problem Solving Skills workshop a success.

"It was beyond my expectations," Kaufer said.

Kaufer, who traveled to Moss Point from her home in Los Angeles, said this particular group was exceptional, because there was no attrition in the attendance. The number of people actually grew after the first day, Kaufer said.

"After the first day, people called their co-workers and bosses and said, You have to come to this,'" Kaufer said.

Continue Reading...
Tags:

They're Really Just Not That Into You

ImageChef.com - Create custom images

From Larry Bodine's excellent LawMarketing Blog comes the following news flash:

CORPORATE COUNSEL IS REALLY JUST NOT THAT INTO YOU.

Your neighborhood GC not only wants her attorney to concentrate on the corporation's business but when she hears from you, she'd really rather hear about herself.

So do you continue sending your clients arcane "legal updates" on the laws of attachment in California or changes in the evidence code? Do you buy ads in "Super Lawyers?"

No, silly. You send your clients a glossy magazine ABOUT THEMSELVES.

As Bodine writes:

At least one law firm is taking the lead in giving the client what they want. Bass, Berry & Sims* has . . . produced a second issue of a 30-page oversize magazine for clients called momentum that talks about client success stories. The brilliance of the editorial focus is that when clients and targets receive it, they'll see articles about themselves, not the law firm talking about itself.

(*Note the Bass Berry firm motto on its home page: "it's not enough to know the law, we have to know our clients' businesses.")

The firm . . spent the money to make it look like a newstand magazine: . . . a table of contents organized by 14 industries, lots of pictures with people . . . , a cover with pictures of the chairman and CEO of HCA Inc. . . . sidebars with drawings of their clients, and did I mention lots of pictures? . . . .

The writing is so well done that the law firm name is not even mentioned.

Here's why the magazine markets the firm so well:

They don't "market their organization" -- . . . [i]nstead they have "organized around the market," a smart marketing technique in which the law firm features all it's glamorous brand name clients.

It's fun. Page 27 has a recipe for cornbread dressing from Cracker Barrel restaurants . . . (something that plays better, I assume in Bass Berry's market than it would in, say Los Angeles, but fun is key)

The graphics are superb -- . . . . [with] "Not Quite 20 Questions" profiling clients concisely with a flattering hand-drawn portrait. I'll bet every client requested to have the original artwork.

It's designed to actually be read -- with short articles, short paragraphs and short sentences.

And if you don't have a marketing budget big enough to put out a glossy rag the size of W? . . . have I mentioned blogs lately?

Perils of Trial vs. Business Opportunities

 

Remember the adage, what can go wrong, will go wrong?

We know we don't need to remind our readers of the perils of trial.  And though we never advise our clients to make a bad business deal to extricate themselves from a lawsuit, we continue to recommend that they seek business solutions to business problems before throwing their fate to the winds of trials.

This morning we're commending to our readers' attention Canon's recent devastating trial loss, courtesy of Reuters.

When Canon was sued by a small, money-losing U.S. technology firm two years ago, the dispute was over a patent license that had cost the Japanese electronics giant a one-time payment of $5.6 million.

But now that the lawsuit has caused Canon to lose the license, a fresh agreement with Texas-based Nano-Proprietary could be worth millions of dollars more, lawyers said.

Last week, a U.S. court ruled against Canon, saying the company breached its deal with Nano-Proprietary by trying to share the flat display technology with Toshiba.

The court's decision (PDF) is a major setback and perhaps an embarrassment for Tokyo-based Canon, the third-biggest patent owner in the United States.

"It seems strange Canon managed to go all the way to trial and lose," said Peter Godwin, a Tokyo-based partner at law firm Herbert Smith. "Assuming they were advised they were at risk, you'd expect a company of the size of Canon to have reached a settlement before that."

For the remainder of the story, click here.

For our commentary, read the following post.

Arbitration of Domain Name Disputes Rising at the National Arbitration Forum

One of my former law partners, Cyberspace Attorney Extraordinaire and the King of Business Development, Eric Sinrod, now of Duane Morris, reports that domain name disputes are being arbitrated in greater and greater numbers. 

As Eric reports in his weekly column for CNET, the National Arbitration Forum's domain name resolutions

climbed by a whopping 21 percent in 2006 from the prior year. Indeed, the NAF handled 1,658 Internet trademark disputes in 2006, the largest filing year in the history of the NAF domain name dispute program.

Since the inception of the program, the NAF has presided over more than 7,600 Internet domain name disputes. A number of famous trademarks have been at stake in the proceedings, such as trademarks relating to the New York Yankees, George Foreman, Vin Diesel and Louis Vuitton.

What's the upshot? Trademark holders are more than willing to go after and seek the transfer of domain names that incorporate their marks. Meanwhile, domain name registrants at times are digging in their heels and are trying to keep the domain names they have registered. There seems to be no let-up in this fertile dispute area. In fact, there appears to be a real uptick in such cases.

One such case surrounded the use of "Mr. Charbucks" in the sale of a rival coffee brand to Starbucks.

for the remainder of this article, click here

Settling Lawsuits, Making Business Deals, Developing Business and Small Talk

Jack Welch shares a golf-cart with former President Bill Clinton 

We've mentioned the benefits of small talk for settling lawsuits before. 

In a recent post entitled What Am I Supposed to Know About  (thanks to mediator blah blah for directing our attention there) professional firm management guru David Maister, praises the marketing value of small talk.  In this post, he suggests that we might  want to be conversant with the following topics to hold up our end of a conversation at a dinner party or on the golf links with potential clients. 

  • Local politics
  • National Politics
  • International affairs not directly involving your own country
  • The latest tech gadgets
  • The latest fiction best-sellers
  • The latest non-fiction best-sellers
  • What’s hot on television
  • The latest art exhibition to open in your town
  • The popular music charts
  • Yo-yo Ma’s latest album
  • What’s good on Broadway this season
  • The latest movies
  • Local sports teams
  • Sports events not involving local teams
  • Latest theories of child-rearing

I'm tired already.  It's hard enough to keep up with what actually interests me let alone with what doesn't interest me in the least.  

Does that mean that my more eclectically knowledgeable mediator peers will be better able to settle lawsuits and develop business?  I don't think so.  Why?   Because they're really just not that into you. 

So here's the super-secret intergalactic decoder-ring mystery of small talk revealed.  Ready?  

 ASK QUESTIONS.

You don't need to know anything about sports, local politics, literature, brain surgery, travel in Cambodia, statistical analysis, Islam, the movies, Anna Nicole Smith or the British monarchy.

In fact, the LESS you know, the better.

WHY?

Because the less you know, the more interest you'll take in your fellows.  Show an interest in what your clients, potential clients and negotiating partners are interested in and you will make friends for life.

Eventually, these people will get around to asking what it is that you do, thinking it must be something pretty wonderful because you're one of the few people who appear to be smart and forward-looking enough to be so deeply interested in how fascinating they are. 

I tell students to whom I teach the art of taking pre-trial testimony, that this is the same principle as the one you use to pick up men in bars -- a talent I have not used in at least 20 years, having turned this dark art into a power for the good.

As we've previously noted, small talk settles lawsuits and greases the wheels of commerce.

The lawyer who gets credit for that new case from the Fortune 50 company is not alas, the lawyer doing the actual work.  It's the lawyer with the monthly golf date with general counsel or the CEO. And what that lawyer talks about on the links is not what she knows about the principle products of Paraguay or any other topic of general or specific interest.  What she talks about is whatever is of current interest in the GC or the CEO.

And the only way to know that, is to take a genuine interest in others and ask a lot of questions.

Forsooth!! A Degree in Literature Mediators Doth Make

From the Law and Humanities Blog, we learn that Reading Literature Gives You More Empathy

(click on the image left for the Law and Humanities Institute, sponsor of the Blog)

How could this not be true?  At ten, I was reduced to sobs by the fate of a sled dog in Call of the Wild; longed to eat peppermints on a Brooklyn fire escape near the tree growing therewatched Atlanta burn with reddened eyes by flashlight while my sister slept peacefully in the next bed; and, came of age in sunny suburban San Diego reading Anne Frank's desperate hopes for a new life in her family's hiding place.    

Now the British Psychological Society tells us what every Lit Major has always known, "the more fiction a person reads, the more empathy they have."  Not only that, but

the better they perform on tests of social understanding and awareness. By contrast, reading more non-fiction, fact-based books shows the opposite association. That’s according to Raymond Mar and colleagues who say their finding could have implications for educating children and adults about understanding others.

Finding out how much people read is always difficult because it’s socially desirable for people to report that they read a lot. Mar and colleagues avoided this by asking 94 participants to identify the names of fiction and non-fiction authors embedded in a long list of names that also included non-authors. Prior research has shown this test correlates well with how much people actually read. Among the authors listed were Matt Ridley, Naomi Wolf (non-fiction), Toni Morrison and PD James (fiction).

The more authors of fiction that a participant recognised, the higher they tended to score on measures of social awareness and tests of empathy – for example being able to recognise a person’s emotions from a picture showing their eyes only, or being able to take another person’s perspective. Recognising more non-fiction authors showed the opposite association.

For the complete post and links to the source material, click here.  Who said we'd never put those endless hours of dreamy, solitary reading to good use?

Business Development: 10 Counter-Intutitive Tips for Working A Room

Today we bring you practice development tips from Larry and Robert Kohn of Kohn Communications.  I re-print here verbatim the Kohn's Ten Counter-Intutitive Tips for Working a Room, all of which have worked for me. 

(cartoon from the Gaping Void -- the cartoon's sentiment is ironic, not true; it is, however, what many of us fear -- if we follow our dreams, they will bankrupt us -- not true not true!)

Don’t try to be charming. Effectively working a room does not require that you tell funny jokes or impress your targets with your charisma. The smart strategy for working a room is to think of it as research – a task with which lawyers and mediators already feel comfortable. Your job is to meet people and ask questions. Be interested in the people you meet. The focus should be on learning about the people you meet and the organizations they support - not strutting your stuff.

Go to poorly attended programs.  Realistically, you can only have quality conversations with a handful of people. Large crowds offer a false promise of increased introductions. A large crowd can feel overwhelming and make you more shy. A sparse attendance can be more relaxed and facilitates your meeting the people who have come.

Pick programs that don’t interest you. Programs that interest you may not be the programs that interest your targets. As you consider opportunities for working a room, pick programs that will be interesting to the people you want to meet. 

Avoid your friends. One of the biggest mistakes people make when working a room is they go with their friends and inevitably stay with them throughout the evening. Your goal is to meet new people. So, don’t invite your friends to join you or, if you do, make a pact not to stay together when you arrive.

Don’t be fashionable. People think it’s fashionable to arrive late. The problem is it’s very difficult to break into established cliques already engaged in conversation. If you arrive early, you will easily be able to visit with others in the room. In fact, it is almost impossible not to.

Pick the longest drink line. Usually, you want to get a drink as soon as possible. However, when you’re working a room, a long drink line gives you the ability to talk with the person in front of you and in back of you. The longer the line, the more time you have to get acquainted.

Don’t tell people what you do. Conventional sales wisdom is to come up with some catchy description of your service. The problem is that a catchy comment may position you incorrectly for that target. The better technique is to spend your time finding out what other people do. There will be plenty of time to talk about who you are after you qualify the person you’re talking to. The more you learn about the people you meet, the more effective you will be at customizing your explanation of your services.

Don’t give out your card.  Handing out your card does not give you control of the follow-up. Your  goal is to always get their card. That way, you are in a better position to stay in touch and build a relationship over time. By not giving out you card, you also avoid being bothered by people who you don’t want to hear from in the future.

Get the cards of non-prospects. If you find yourself talking with someone who is not a good prospect, the best way to end the conversation is to ask for their card. When you do, you can comfortably excuse yourself and move on to more fertile opportunities.

Don’t be a leader. Most people like to lead the charge to exit an event to avoid the exiting crowd. But, by lingering, you’ll have more opportunities to meet those who have remained. Often they are the officers of an organization or the people in charge of the event and they may be some of your best contacts.

By following these counter-intuitive techniques, you can expect to build your practice with comfort and ease. You won’t feel pressured to be charismatic.You won’t feel pressured to sell your services on the spot. You’ll meet more people, and you’ll learn more about them. The information you obtain will make it easier to connect, easier to follow up and easier to close.

Lawrence M. Kohn and Robert N. Kohn are principals of Kohn Communications, a marketing and management consulting firm specializing in professional service firms.

Building a Mediation Practice: Where to Publish

I once knew a writer who despaired of ever being published.  The publications to which he submitted his material?

The New Yorker; The Atlantic Monthly; Harpers, and the Sunday New York Times Magazine. 

Discouraged, the writer would say to me, I'm just not going to write peppy feel-good articles for Dog World!!!"

 Patience.  Balance.  In between Dog World and the New York Times you will find a place to publish your articles.

Keep your dreams big and your steps small. 

Ask yourself these questions:

  1. who is my market?
  2. what do I know that people in my market need or want to know?
  3. what publications do the people in my market read?

Pick a topic.  Write 1,000 words.  Send it off.  It really is that easy.

Here are some publications with low barriers to entry, i.e., you do not need to be Hemingway to publish here.  

The Southern California Mediation Association Newsletter.  I'm now co-editor of this newsletter.  The SCMA has a blog too!  We will publish your short mediation pieces there.  Even though it's local, it is on the internet and therefore reaches the entire world.

mediate.com.  You already know it.  They are hungry for content.  Write and publish.

The National Institute for Advanced Conflict Resolution.  They have a monthly newsletter and web site you can submit your articles to.  

Local and national bar association newsletters and journals in your market, i.e., the Los Angeles County, Beverly Hills, San Fernando Valley, etc. Bar Association newsletters and specialty bar associations like the several local newsletters published by the Association of Business Trial Lawyers and Federal Bar Association ADR section newsletter and blog.  

The Daily Journal and other non-bar legal publications.

If you're academically minded, Dispute Resolution Journals such as the one published by Pepperdine University School of Law.

A chronic self-publisher, I also have my own quasi-academic Dispute Resolution Journal for which I'm always seeking articles!

And have I said "create your own blog" lately?  See Blogging for Mediators 101!

There are many other journals and newsletters with low barriers to entry.  I ask my readers to please leave comments identifying them. 

Building a Mediation Practice: Part III: Education

The world can never be assumed to exist.  It comes into being only in the act of moving towards it.  Ese est percipii.  Nothing can be taken for granted:  we do not find  ourselves in the midst of an already established world, we do not, as if by preordained birthright, automatically take possession of our surroundings.  Each moment,each thing, must be earned, wrested away from the confusion of inert matter, by a steadiness of gaze, a purity of perception so intense that the effort, in itself, takes on the value of a religious act.  The slate has  been wiped clean. It is up to the poet to write his own book. Paul Auster, The Decisive Moment from The Art of Hunger

I quote poet, novelist, critic and screenwriter, Paul Auster, because there is magic in this excerpt from his essay on the poetry of Charles Reznikoff.  

"The world . . . comes into being only in the act of moving towards it."  For whatever reason I had at the time, when I was a senior in High School, I wrote these words on my PeeGee folder -- "whatever you can do or dream you can, begin it; boldness has genuis, power and magic in it."  (Goethe)

Everything else is detail; putting one foot after the other; accomplishing one small task a day. 

That said, I begin with the educational resources that form the heart and soul of my practice and my business.  

EDUCATIONAL RESOURCES

I enrolled in the Straus Institute for Dispute Resolution in May of 2004, with the goal of earning my LL.M in a year's time.  The pro's and con's:

  1. it is true, as I was warned by Institute co-director, Peter Robinson, that the mere possession of the LL.M degree would not aid my career.  
  2. what I did gain from my LL.M studies was:
    1. access to the best mediators in the country.
    2. a first class liberal arts education in conflict resolution, including cross-cultural studies; religion and conflict; the social psychology of conflict; arbitration practice; settlement and negotiation theory and practice; international diplomatic theory and practice; introduction to fields entirely new to me such as restorative justice (the mediation of crimes, including mass crimes such as genocide in Rwanda and the wounds of aparthied in South Africa through Truth and Reconciliation Commissions); the ideological foundations of ADR practice; and, communication skills, in addition to the standard mediation training.
    3. the opportunity to create externships in my target market, gaining access to people and places I would never have been able to obtain on my own.
    4. the opportunity to collaborate with some of the best ADR practicioners and academics in the country -- opening doors to collaborative seminars and co-authored articles with some of the most prominent mediators and conflict resolution scholars and educators in the world.

Continue Reading...

Mediation Marketing Memes and Tag You're It Kristina Haymes!

Diane Levin of the online guide to mediation explains memes for the rest of us:

Memes, for those of you who may be unfamiliar with the word, are ideas or units of cultural information that replicate and are transmitted virally from one human being to the next. In cyberspace, bloggers spread memes by tagging other bloggers and inviting them to amplify or discuss the idea, transmitting it in turn to other bloggers, and enabling the meme to propagate rapidly.

Tammy Lenski has created a meme for mediators, riffing on a post by Vickie Pynchon, on "How to Start a Mediation Practice"--a must-read for anyone interested in becoming a mediator. Tammy recounts her own proven formula for success in launching a practice as a mediator and has "tagged" Mediation Mensch Dina Beach Lynch and me, inviting us to continue the conversation on this theme.

Since the meme is coming back around to me, I "tag" Kristina Haymes of Mediation Marketing Tips whose excellent mediation marketing advice has been a great help to me.

How to Start a Mediation Practice - Part II - A Short Appreciation for My Fellow Bloggers

First, a huge round of Settle It Now applause for my fellow ADR Bloggers -- Diane Levin of the Online Guide to Mediation, Tammy Lenski of Mediator Tech, Dina Lynch of Mediation Mensch and the ADR Practice Builder, Kristina Haymes of Mediation Marketing Tips, and Geoff Sharp of Mediator blah blah.

These people are my mediation posse even though I've not met any one of them.  They keep my spirits up when they start to flag, share their abundant resources, wisdom and strength with me, and hip me to new ways to market my practice, new case law, new mediation techniques, and new ways to express my mediation practice in the world.  I genuinely don't know what I'd be doing without them.

If you blog, they will come.  I don't have sufficient thank you's in my gratitude bag for these wonderful ADR professionals.  Visit their sites often.  If you take the blogging plunge, they will arrive at your front door like the townspeople of some mythical Elysian American 1950's farm community, with flowers, tips on dealing with the local merchants, casseroles and favorite recipes.  Life doesn't get any better than that.

Part III of Building Your Mediation Practice next.

How to Start a Mediation Practice

MY BUSINESS PLAN

When first asked for my “business plan” by someone for whom planning does not mean picking up Chinese on the way home, I had only five principles at the ready:

1) Be conscious;
2) Be teachable;
3) Be of service;
4) Always say “yes” to a mediation request; and,
5) Be the exception to the rule.

That was it.

Well, and Also, I . . .

. . . gave my new business a name (duly registering it with the proper authorities), “bought” it business cards (free at Vista Print) and built it a web-site (with Yahoo’s free web builder).

Then I dove off the cliff by (gasp) quitting my day-job and

  • joining every professional organization where my market was likely to congregate; 
  • sticking out my hand to say “hi, I’m Vickie Pynchon” whether I wanted to or not; 
  • taking every mediation class that intrigued me; 
  • volunteering my mediation services – mainly on the Los Angeles Superior Court Pro Bono Panel – so that I could practice my skills before rolling them out to former colleagues; 
  • talking passionately about mediation whenever asked; 
  • writing articles about my new profession and submitting them to publications (which always need content); 
  • asking seasoned mediators if I could observe them in action and for tips on commencing a mediation practice; 
  • offering to be of service whenever I could to whomever I could; 
  • speaking about mediation and negotiation skills to attorneys free of charge; 
  • speaking to local business groups about matters of interest to them;
  • attending law related and mediation conferences and workshops; 
  • taking people in my market out to lunch; out for coffee, etc.; 
  • becoming engaged in community activities again; 
  • liberating my frustrated inner ad-executive by making post-cards about my new practice and filling them with catchy slogans and useful information; 
  • being of service to the organizations I joined (they always need volunteers); and, 
  • making too many plans, so that when some of them didn’t pan out it was ok with me.

BUILD A NETWORK

To build my network I simply paid attention to what people were interested in and offered to hook them up with others who I thought might be able to satisfy their interests. As more people introduced me to other people who might be of assistance to me, I connected them up with other people who might be of assistance to them.

$$$$$$$

Financing the whole thing, I not only lived on my savings, I also bartered a lot of my services in exchange for others.

LEARNING

Speed-learning my new profession, I kept a journal of my mediations. Not only did it allow me to second guess my own performance before I was strong enough to actually ask my clients how I was doing, it also supplied me with material for the articles I began to write.

ENDURANCE

Keeping my spirits up, I surrounded myself with “winners” -- with people who said “you can do it; of course you can do it!!!” I smiled nicely at people (the vast majority) who told me I’d never be able to build a practice because (pick one) -- the field is full; I hadn’t been a judge; the pro bono panel was ruining free market enterprise; better people than I was had failed, etc., etc.

I treated these people kindly, thinking that most people simply don’t believe in the powers of imagination, faith and audacity. I also reminded myself that I became a pretty good lawyer at an age when I was still afraid of the dark, my own shadow, and anyone who’d been over thirty when I was eighteen.

PRACTICING MY PROFESSIONAL PRINCIPLES IN ALL MY AFFAIRS

And, with everything that needed to be learned about resolving rather than escalating conflict, I began to practice peace-making in all my affairs.

TO REITERATE

Be conscious

This is sometimes called “mindfulness.” Author and mediator Ken Cloke has described mindfulness as

the capacity to be present and aware of what is happening inside you, while at the same time developing awareness of what is happening inside others. It includes the experience of relationships as malleable and subject to transformation at any moment. A mediator exercising mindfulness practices a type of concentration that gives rise to insight and creative intervention techniques. Whenever we allow ourselves to hear at a deep level what the other person is saying, credit it, discover its meaning, and give ourselves permission to present that meaning in the form of a question to the parties, we are using mindfulness to inform the mediation process.

Be teachable

Nan-in, a Japanese master during the Meiji era (1868-1912), received a university professor who came to inquire about Zen. Nan-in served tea. He poured his visitor’s cup full, and then kept on pouring. The professor watched the overflow until he could no longer restrain himself. “It is overfull. No more will go in!” “Like this cup,” Nan-in said, “you are full of your own opinions and speculations. How can I show you Zen unless you first empty your cup?”

Shaseki-shu in Paul Reps, Zen Flesh, Zen Bones

Be of service

Mediation is a helping profession. When I show myself able to be of assistance to people, I build a reputation as being a willing, cheerful, attentive and useful helper.

Always say “yes” to a mediation request

The answer to any request for assistance with mediation is simply “yes.” Yes, I will help set up the chairs, make the coffee, print the flyers, clean up the conference room. Yes, I will introduce you to attorneys I know. Yes, I will speak about mediation at your gathering. Yes, I will contribute an article to your newsletter. Yes, you may observe my mediations. Yes, you may have the number of my (pick one) web guy, accountant, assistant, teacher, friend, confidant, personal trainer, marketing adviser, etc., etc., etc. Yes, yes, yes.

Be the exception to the rule

Whatever else I am, good, bad or indifferent, I am unique. I am the exception to any rule that guarantees my failure.

That's it. 

I'll be commencing my third year of mediation practice in June and it is working.  It has been a lot of work and a lot of fun.  There's no reason in the world why you can't do it too!  After all, there's more conflict in human affairs than water in the ocean or stars in the sky.  Turn around and take a look over your shoulder.  There's a dispute waiting to be resolved right over there.   All you have to do is to let them know you've learned how to help them negotiate that contract, settle that lawsuit, or make peace with those neighbors.  Mediation is the better mousetrap.  Join us!

Tomorrow I'll provide you with links to resources that have been useful in building my practice.

Raising Funds to Settle the Suit: Insurance Coverage for Business Torts

In the Fall of 2006, Loeb & Loeb attorney Peter S. Selvin, a member of the Board of Governors of the Los Angeles chapter of the Association for Business Trial Lawyers ("ABTL") wrote a thorough and timely article on the availability of insurance coverage to settle business tort litigation, a short excerpt of which we publish here with a link to the full article.    


Lawsuits involving business or commercial disputes often trigger the coverage provisions of standard form Commercial General Liability ("CGL") policies.

In lawsuits involving claims of infringement, misappropriation or the violation of the right of privacy, the key portion of a CGL policy is the "personal injury" or "advertising injury" coverage found in Coverage B of the current CGL policy form [Insurance Services Office Commercial General Liability Insurance Policy Form, Section I Coverage B (2001)]. That language provides as follows:

a. We will pay those sums that the insured becomes legally obligated to pay as damages because of "personal and advertising injury" to which this insurance applies. We will have the right and duty to defend any "suit" seeking those damages…

b. This insurance applies to "personal and advertising injury" caused by an offense arising out of your business but only if the offense was committed in the "coverage territory" during the policy period.

This article explores the scope of, and recent developments concerning, this aspect of CGL coverage. Practitioners should note that coverage for business torts may also be provided under Coverage A of CGL policies. See, e.g., Ericsson, Inc. v. St. Paul Fire & Marine Ins. Co., 423 F. Supp. 2d 587 (N.D. Tex. 2006) (class action claims against cell phone manufacturer for injuries caused by radio frequency radiation fall within Coverage A for "bodily injury"); Prime TV, LLC v. Travelers Ins. Co., 223 F. Supp. 2d 744 (M.D. N.C. 2002) (insurer required to defend insured in class action suit because sending unsolicited faxes constituted "property damage").

Click here for remainder of article

Class Action Ban in Arbitration Rider Unconscionable in Oregon

Thanks to Blawgletter for reporting arbitration case law updates in Oregon with an eye for the literary as follows:

Striking down as unconscionable a ban on class actions in an "arbitration rider" to a loan agreement, the court in Vasquez-Lopez v. Beneficial Oregon, Inc., No. A125270 (Ore. Ct. App. Jan. 31, 2007), rejected the lender's argument that the ban favored neither side:

We are reminded of the observation by a character in an Anatole France novel that "the majestic equality of the laws * * * forbid[s] rich and poor alike to sleep under the bridges, to beg in the streets, and to steal their bread." Anatole France, The Red Lily, 95 (Winifred Stephens trans., Frederic Chapman Ed. 1894). Although the arbitration rider with majestic equality forbids lenders as well as borrowers from bringing class actions, the likelihood of the lender seeking to do so against its own customers is as likely as the rich seeking to sleep under bridges.

What's Anger Got to Do With It? Ford and Punitive Damages

 

Thanks to the Wall Street Journal Law Blog for turning us on to the New York Times article When Lawyers and Juries Mete Out Punishment.

First, as a follow-up to our "Few Good Men" post yesterday (see screenplay here) we quote the quotable Mr. Sorkin again as an introduciton to the cross-examination question that launched a $246 million punitive damage award:

 

 

KAFFEE
What possible good could come from putting Jessep on the stand?

JO
He told Kendrick to order the Code Red.

KAFFEE
He did?! Why didn't you say so!? That's qreat! And of course you have proof of that.

JO
I--

KAFFEE
Ah, I keep forgetting: You were sick the day they taught law at law school.

JO
You put him on the stand and you get it from him!

KAFFEE
Yes. No problem. We get it from him.
(to SAM)
Colonel, isn't it true that you ordered the Code Red on Santiago?

SAM
Look, we're all a little--

KAFFEE
I'm sorry, your time's run out. What do we have for the losers, Judge? Well, for our defendants it's a lifetime at exotic Fort Levenworth. And for defense counsel Kaffee? That's right--It's-- A Court- Martial. Yes, Johnny, after falsely accusing a marine officer of conspiracy, Lt. Kaffee will have a long and prosperous career teaching typewriter maintenance at the Rocco Columbo School for Women. Thank you for playing "Should We or Should-We-Not Follow the Advice of the Galacticly Stupid". 

It's hard being a trial lawyer.  Very hard.  So I'm not going to accuse the attorney who asked the question at the heart of the New York Times piece of being "galacticly stupid."  Nor, however, am I going to charge the jury with being "inflamed by passion and prejudice."  Maybe just inflamed by passion.  Which is what we ask from juries, isn't it?  That they get angry at injustice.  With all due deliberation and based on the evidence.  That they take a cold hard look at certain business practices, draw the conclusion that those practices caused the party before them to suffer unbearable injuries and then award as punitive damages an amount to "deter" that business practice.  

And if the jury makes a mistake?  Well, fortunately, we're only just beginning to ask that question about the more important decisions juries make every day -- whether to sentence men and women to lengthy prison sentences, or even to death, for causing injuries as severe as those suffered when products go bad.      

With that, I give you the New York Times on the final question to the husband of the woman paralyzed when her Ford Explorer rolled over.
 

The witness was Barry Wilson, whose wife, Benetta, was paralyzed when her Ford Explorer rolled over. Mr. Wilson had cut back on his work hours to care for her. He showered her and catheterized her, and he woke several times each night to move her, to avoid bedsores.

Mr. Sonnett saw an opening, and he ended his examination with a flourish.

“The silver lining,” he said to Mr. Wilson, “to the extent that there could be one, it has brought you and Benetta and the family closer together?”

Mr. Wilson did not see the upside. “I don’t think it’s a benefit or a plus in any way,” he said.

It was the silver-lining question, an appeals court later ruled, that “may well have inflamed the passions of the jury.” In their lawsuit, the couple said Ford had made the Explorer dangerously prone to rolling over and then outfitted it with a weak roof. The jury agreed, hitting Ford twice. First, it awarded $123 million to compensate the Wilsons. Benetta Buell-Wilson had been an athletic graduate student, and now she lives in constant and increasing pain.

For the recent Supreme Court decision striking down the $79+ million punitive award against Philip Morris, see the Southern California Law Blog report here. 

For a little history on cigarette advertising, we give you Philip Morris ads on the original I Love Lucy television series.

The Art of Cross-Examination Hollywood Style

. . . if you're one of my NITA students, please take the Negotiation and Mediation Justice Survey here (3 minutes max I promise!)

The lengthy cross-examination was written by the man who brought you The West Wing, Aaron Sorkin.  Do not attempt this in a court of law without a screenwriter by your side.

And just in case you think you're uniquely insecure, the brilliant Mr. Sorkin, who added, "you can't handle the truth" to the small pantheon of justifiably immortal movie lines has this to say about the process of writing:

"I love writing but hate starting. The page is awfully white and it says, 'You may have fooled some of the people some of the time but those days are over, giftless. I'm not your agent and I'm not your mommy, I'm a white piece of paper, you wanna dance with me?' and I really, really don't. I'll go peaceable-like."

THE SET UP

KAFFEE Colonel, when you learned of Santiago's letter to the NIS, you had a meeting with your two senior officers, is that right?

JESSEP Yes.

KAFFEE The Executive Officer, Lt. Jonathan Kendrick, and the Company Commander, Captain Matthew Markinson.

JESSEP Yes.

KAFFEE Yes sir. Colonel, at the time of this meeting, you gave Lt. Kendrick an order, is that right?

JESSEP I told Kendrick to tell his men that Santiago wasn't to be touched.

KAFFEE And did you give an order to Captain Markinson as well?

JESSEP I ordered Markinscn to have Santiago transferred off the base immediately.

KAFFEE Why?

JESSEP I felt that his life might be in danger once word of the letter got out.

KAFFEE Grave danger?

JESSEP Is there another kind?

KAFFEE holds up a document from his table.

KAFFEE We have the transfer order that you and Markinson co-signed, ordering that Santiago be lifted on a flight leaving Guantanamo at six the next morning. Was that the first flight off the base?

JESSEP The six a.m. flight was the first flight off the base.

THE SEEMINGLY INNOCENT LINE OF QUESTIONING SET-UP

KAFFEE gets a document from his table.

KAFFEE (continuing) After Dawson and Downey's arrest on the night of the sixth, Santiago's barracks room was sealed off and its contents inventoried. (reading) Pairs of camouflage pants, 6 camouflage shirts, 2 pairs of boots, 1 pair of brown shoes, 1 pair of tennis shoes, 8 khaki tee- shirts, 2 belts, 1 sweater--

ROSS Please the Court, is there a question anywhere in our future?

RANDOLPH Lt. Kaffee, I have to--

KAFFEE I'm wondering why Santiago wasn't packed.

Continue Reading...

Bringing It All Back Home

ImageChef.com - Create custom images ImageChef.com - Create custom images

As we noted yesterday, counsel know all too well that their clients arrive at mediation with "an unwarranted faith in the righteousness of [their] position" and that their obligation is to "bring rationality, objectivity and experience to bear on the matter."

Easier said than done, right? 

To help your mediator help you, I offer the following 5 & 5 on the why's of client hopes and the how's of diminished expectations.  

Five Reasons Why Your Clients Have Unwarranted Faith in the Righteousness of their Cause

    1. when she first told you her version of the facts, she left a few things out -- like how her  partner caught her cooking the books before he "breached" the partnership agreement by refusing to let her back on the business premises.     
    2. you're a zealous advocate -- not only are you paid to be -- your ethical responsibilities require it.  Despite all of your efforts to describe the perils of litigation, your client only really paid attention during the parts where you told her how great her case was. 
    3. your client hasn't spoken with his business partner, supplier, importer, competitor, licensee, etc. since the dispute arose two or three years ago.  There's been no opportunity for the parties to reality test their positions with the only other party who actually knows what happened. The social psychologists called this state one of  "autistic hostility."  
    4. as much as you try to anticipate the opposition's arguments, your job is to win.  It's impossible not to spend the bulk of your time justifying your client's actions and excusing his errors.
    5. to work as hard as you do on your client's behalf, you must believe in the merits of her case.

Five Ways Your Mediator Can Help You "Depress" Your Clients' Unreasonable Expectations

  1. let the mediator know you need some help with your client.  Call him ahead of time if he doesn't call you to discuss the nuances of the mediation session itself.  You can be candid without giving away the store. 
  2. let the mediator be the "fall guy," taking the "hit" for delivering this bad news -- while you, one of the best attorneys in town, were busily developing a great case, the other side's attorney was doing precisely the same thing.
  3. allow the mediator to develop as strong a personal relationship with your client as possible and permit her to ask probing questions that will gently reveal the problems with your case that have developed over the course of time. 
  4. be willing to break away from your client for separate session cacucuses with the mediator to discuss how things are going in the attorney-client dynamic so that course-change is possible.
  5. let the mediator know that your client is going to need more time to digest bad news -- if your mediator doesn't offer, ask him to arrange for the offer/demand to remain on the table for a  pre-determined amount of time and ask him to follow up with both parties during that period of time.

Remember:  there's no such thing as impasse, only a recess in the settlement discussions.  

BigLaw Blogging Tips

ImageChef.com - Create custom images

From the intersection of Do and Don't, we thank Concurring Opinions for hipping us to the latest, clearest, most skimmable advice on blogging for the Fortune 50 of Law Firms (and you know who you are). 

This advice comes from Law.com care of the able Alysa N. Zeltzer and John E. Villafranco at Kelley Drye Collier Shannon in Washington, D.C..  (no blog of your own Kelley Drye?)

If this teaser interests you, click on the title for the full article. 

As Blogging Grows, So Do Its Do's and Don'ts
By Alysa N. Zeltzer and John E. Villafranco
Internet Law & Strategy
February 20, 2007

With the rush to create content, it's easy to forget that all business communications directed to the public are subject to a variety of laws, regulations and other legal concerns. This article provides a high-level overview of the key points to keep in mind as you assess whether your company-related blog is legally compliant.

THE DO'S

DO make a clear decision on whether the company will sponsor and/or host a blog (or several), and what the objectives are for each blog. Blogs don't make sense for all companies and you should be clear about why having a blog (or several) will advance the corporate interests as well as interest readers, and are worth the resources to start and keep one or more blogs running

Tags:

Malpractice, ADR and Client Expectations

ImageChef.com - Create custom images

Way back in 1997, John Blumberg of the Blumberg Law Offices in Long Beach California asked in a Daily Journal article whether lawyers had a duty to give ADR advice.

Alternative dispute resolution, wrote Blumberg, 

has reached such a level of acceptance and availability that failure of an attorney to consider its possibilities or to inform the client of its existence may amount to legal malpractice. This is not to say that every case must be settled. It is to say, however, that an attorney's duty to a client includes "the obligation to attempt to effectuate a reasonable settlement of the . . . action where the general standards of professional care [require] that the most reasonable manner of disposing of the action was by settlement." Lysick v. Walcom (1968) 258 Cal.App.2d 136. 

Even a client's opposition to settlement, wrote Blumberg,

 does not excuse an attorney's duty to consider and advise the client about settlement. After all, the lawyer's superior skill and knowledge is what the client is paying for. Lucas v. Hamm (1961) 56 Cal.2d 583, 591.

It is not uncommon, noted Blumberg

for the client to have an unwarranted faith in the righteousness of his or her position. The lawyer's obligation is to bring rationality, objectivity and experience to bear on the matter

The most compelling point in this still timely and cogent advice on ADR is the one about the client's "unwarranted faith in the righteousness of his or her position."

Often, attorneys bring their clients to mediators to help them restore the "rationality, objectivity and experience" the client needs to hear without damaging the attorney-client relationship.  Many mediators have written about this process before me.  Tomorrow, I'll give you the ten greatest barriers to getting your client back into a realistic risk-management state of mind and the ten ways you can seek the mediators help in achieving that goal while continuing to maximize the settlment value of your case.

 

More Movies for Lawyers

ImageChef.com - Create custom images  

The Verdict - screenplay by David Mamet

[the church has offered a check for $210,000 to settle the case]

Frank Galvin: How did you settle on the amount?

Bishop Brophy: We thought it was just.

Frank Galvin: You thought it was just?

Bishop Brophy: Yes.

Frank Galvin: Because it struck me, um, how neatly 'three' went into this figure: 210,000. That means I would keep seventy.

Bishop Brophy: That was our insurance company's recommendation.

Frank Galvin: Yes, that would be.

Bishop Brophy: Nothing we can do can make that woman well.

Frank Galvin: And no one will know the truth.

Bishop Brophy: What is the truth?

Frank Galvin: That that poor girl put her trust into the... into the hands of two men who took her life. She's in a coma. Her life is gone. She has no home, no family. She's tied to a machine. She has no friends. And the people who should care for her - her doctors... and you and me - have been bought off to look the other way. We've been paid to look the other way. I came here to take your money. I brought snapshots to show you so I could get your money. I can't do it; I can't take it. 'Cause if I take the money I'm lost. I'll just be a... rich ambulance chaser. I can't do it. I can't take it. 

hard distributive bargaining ari gold style

The Movies: Trial Tactics and Strategy

Best Mediation Advice from a Trial Lawyer in the Blogosphere

Cruising Evan Schaeffer's Trial Blog, I found this excellent advice, reprinted here verbatim.

Does It Matter Whether the Mediator Came from the Defense or Plaintiff Side of the Bar?

In selecting a mediator, I don’t pay too much attention to whether the mediator was (or is) a plaintiffs’ lawyer, a defense lawyer, or a judge. Instead, I focus on the mediator’s results: does he or she have the reputation as someone who can get cases settled?

Using this criterion, I also don’t care if I end up using a mediator who was first suggested by my opponent. It’s one of the beauties of mediation: Unlike an arbitrator, the mediator cannot bind you or your client. Therefore, you don’t have to worry that he or she might harbor a secret bias that will sink your case. If it turns out that the mediator is favoring the other side, you can say no during the mediation and walk away.

Bottom line: Don’t obsess over the mediator’s past work history. Ask other lawyers how effective the mediator was at getting the parties to agree, and leave it at that.

Why Colin Powell?  Because he's the man who said the most important knowledge you could have in conducting international negotiations is to be aware of the "other guy's decision cycle."

Reading trial lawyer blogs helps a mediator do that.

Form Mediated Settlement Agreement and the Law of Enforcement

If you're about to ink a settlement resulting from a mediation, you and your mediator have all worked tremendously hard to reach an agreement.

Now you want that agreement to be enforceable.

We are therefore providing you with a sample agreement, relevant California case law, and selected articles about the enforcement of mediated settlement agreements.

We provide this information NOT AS LEGAL ADVICE but as a resource for attorneys in crafting their own form term sheets and memoranda of understanding.

You don't need to carry around paper and pen anymore; Judicate West mediator, the Hon. Stuart T. Waldrip (Ret.) suggests that you do what he does -- keep this form on a jump or "flash" drive (I carry one on my keychain) so you can plug it into an available computer & leave the mediation with a fully executed typewritten agreement.

And, by the way, congratulations on closing the deal!

Advice for Young Lawyers: Depositions

I practiced law for 25 years before becoming a mediator.  For a dozen of those years, I taught deposition skills for the National Institute of Trial Advocacy.

To save the young people around me from receiving any more unwanted advice from their elders, I decided to start "data dumping" my quarter century of litigation experience in this blog from time to time.  

You'll (perhaps) be pleased to hear that today I'm not even giving my own advice but passing along that of Illinois trial lawyer Evan Schaeffer -- be prepared or the dangers of "winging" it at depositions.  

It's not so much an exhortation to work harder, but smarter that makes me refer you to Shaeffer today.  Take a look at the good questions he suggests every attorney ask herself before the deponent is sworn in and then think about Shaeffer's limitations -- in Illinois, you apparently have only three hours to take anyone's deposition.  

And we can all recall those times when someone green spent that three hours on the deponent's background ("and after that were you promoted to Eagle Scout?") 

Mediation and Negotiation: Give Them a Little Time

I'm always a little surprised that parties to a pre-trial settlement conference or mediation have any expectation that they might be able to resolve a dispute of years standing in half a day, or even a single day.  That they often do settle their differences in so short a time is pretty amazing when you consider the time and effort (and resulting polarization) that have gone into the litigation of that dispute. 

Mediators and settlement judges often feel as if they're fighting the clock because the parties are impatient with the process and primed to storm out of the room if they feel the other side is not negotiating in "good faith." 

Attorneys often cynically say that all we mediators do is "keep the parties in the room."  I'm certain I won't be the first to acknowledge that this task is not only one of our main objectives, sometimes it's the toughest work we will do that day, making creative problem solving; "expanding the distributive bargaining pie," reality testing and re-framing the parties' options seem like child's play.

From the mediator's seat, I have one modest request for counsel and their clients -- have a little patience with the process.

More often than not, the business people need time to digest new insights, reassess their positions and perhaps even check their books and records again before making a sound business decision. None of us do the rest of us a favor by demanding that people make hard decisions under the pressure of time.

Remember that readiness to make a business decision is as emotional as any other major life decision. I have seen some business people take a day or two to mourn their losses before they are ready to accept them.

I have also seen actual tears well up in the eyes of the most hardened businessmen when they realize that trial will not save them -- that a "just outcome" (i.e."I will prevail at trial and recover all of my losses") is as unlikely as winning the lottery.  This is the false promise of litigation.  It keeps alive the parties' hope that they will be completely vindicated and their adversaries punished at trial.  

Although all competitive business people, trial lawyers and commercial litigators have their Conan the Barbarian moments, the "pleasure" of victory -- as voiced here by California Governor Schwarzenegger -- remains a greater fantasy than the one about a body-builder from Austria ascending to high political office in the United States. 

Anything's possible.  But consider the likelihoods.  

And now, Arnold!! 

Rolling Out Stonewall ADR Services

If you live in Los Angeles and are looking for a specialized ADR panel to serve the needs of your lesbian, gay, bisexual or transgender (LGBT) clients, you couldn't do any better than to contact Santa Monica's Stonewall ADR -- the first alternative mediation, arbitration, dispute resolution firm geared, specifically, towards the LGBT community.

(pictured:  Harvey Milk, photo from the Harvey Milk LGBT Democratic Club in San Francisco -- if you click on his photo, you'll find the showtimes for the Academy Award winning documentary on Milk's life and work on LOGO.  Milk's life was tragically cut short when he was assassinated, along with S.F. Mayor George Moscone in 1978 -- anticipating the possibility of assassination, Milk recorded his last words to be played only in the event of assassination; the video of a candlelight vigil accompanied by Milk's last words can be found below)

Stonewall has this to say about its services:

Our firm recognizes the need for a platform where LGBT issues can be addressed, and where alternative lifestyles can be treated equally and with the respect they deserve. Stonewall ADR deals with such important topics as:

Child custody
Divorce matters
Hospital rights
Property disputes
Deeds and wills
Employment discrimination
Victim/offender hate crime reconciliation and any other issue that pertains to the lives of the queer community, in which conflict resolution is needed.

Stonewall has a highly trained panelists who are lesbian, gay, bisexual, or transgender, or are empathetic to the issues faced by members of the LGBT community. Our panel of dispute resolution experts not only posses stellar training and experience in conflict management, but the panelists have also attended specific courses relevant to issues faced by LGBT people.

If you're interested, follow the link above for more information.


Tags:

Insurance Coverage and Settlement Negotiations

It continues to surprise me how many lawyers and business people fail to  immediately identify every possible source of defense and indemnity funds in their risk management department when they are first sued.  It's even more surprising when counsel and clients still haven't searched out all potential coverage by the time the case is before the Court for a Mandatory Settlement Conference or scheduled for a mediation. 

As environmental insurance coverage counsel, I and my colleagues spent years litigating the issue whether the term "sudden" as used in a CGL policy's polution exclusion meant "quick" or only unexpected.  (you can find the Shell v. Winterthur case deciding this issue, among others, reprinted on the Gordon & Reese website).

The lesson?  Don't think your policy doesn't cover the lawsuit just served on you just because its terms don't appear to cover your potential loss.  Take it to the creative people who nearly convinced California's courts that "sudden" does not have a temporal meaning.

That said, Perkins Coie has been running an excellent series of articles on its web site called  "Top Ten Issues to Consider When You Are Sued." (not if?)  The second article in the series identifies the types of insurance policies that might, at a minimum, pay your attorneys fees even if they will not make indemnity payments at the end of the day.

If I were a business person (or a litigator who doesn't have a thorough understanding of coverage issues) I'd definitely bookmark the Perkins Coie article, which you can find here.

Marketing in the Twenty-First Century

The Social Web - A World of Possibilities from the public relations/public affairs firm Tunnheim Partners provides the statistics for all the jabbering we do here about matriculating your law or ADR practice into the Web 2.0 University.  Excerpts below:

In a year when YouTube won Time magazine’s invention of the year and corporate CEOs were quick to create their own avatar – a virtual personalized identity – 2006 proved that “new media” now includes much more than blogs. The always-changing media landscape has forced public relations professionals to constantly re-examine the term “new media” and continuously find its hidden opportunities.

Gone are the days where a company could merely post information on a static corporate Web page and expect customers to find it. A survey by Ketchum and the University of Southern California’s Annenberg Strategic Public Relations Center found that nearly half of all industry professionals use their corporate Web site to post important company news and announcements, but only 6.8 percent of all customers will go to the Web site to find it. Today’s more socially minded Web user will look to more interactive online locations to influence their beliefs about a company, product or concept – including the virtual world.

Read the rest of the article and check out more Tunnheim advice here.

And if you don't know what Web 2.0 is, check out the O'Reilly Explanation which includes the following comparisons between Web's 1 and 2.

Web 1.0                                             Web 2.0
DoubleClick --> Google AdSense
Ofoto --> Flickr
Akamai --> BitTorrent
mp3.com --> Napster
Britannica Online --> Wikipedia
personal websites --> blogging
evite --> upcoming.org and EVDB
domain name speculation --> search engine optimization
page views --> cost per click
screen scraping --> web services
publishing --> participation
content management systems --> wikis
directories (taxonomy) --> tagging ("folksonomy")
stickiness --> syndication

And no, we here at the Negotiation Law Blog don't know what half of these things mean.  The point is only that we're learning and we invite everyone else along for the ride.

 

National Arbitration Forum States Its Case

A representative of the National Arbitration Forum has provided us with materials rebutting the accusations of bias recently referenced here.  The NAF representative invites us to

read “Setting the Record Straight about Contractual Arbitration: A Response to Richard Neely” in which we corrected Mr. Neely's misrepresentations about how independent arbitrators are selected in the National Arbitration Forum. Unfortunately, the author of the Complaint in Pennsylvania decided to publish Mr. Neely's allegations verbatim. We still have not been served with the Complaint although it appears to have made its way onto the Internet.

Please also feel free to read this July article which provides actual statistics that illustrate our arbitral results are the same as results in court. Finally, a number of courts around the country have examined the fees, rules and processes of the National Arbitration Forum and have found us to be affordable and fair, see judicial opinions.

Google Books Redux

This comment on my last post about Google's Moon Shot (from Search, Marketing and Musings) is more interesting than the post itself, so I include it in full here.  The lessons here are so numerous and the paradigm shift so profound, that every commercial litigator, transactional lawyer and business person should be closely attending to the way Google is re-writing not only the internet, but intellectual property and the practical application of the law (and litigation) as tools to achieve commercial ends.  

Have I quoted google on litigation before?  I will again.  Litigation is simply a business negotiation being conducted in the courts. 

Alan Rimm-Kaufman - February 12, 2007 08:39 AM Thanks for the link! Whereas much of Google's dominance is based on habit (eg one could envision an upstart capturing hearts and keyboards away from G by better technology or marketing, similar to what G did to Y and AV over the last 8 years), some parts of Google's power rests on more permanent legal & technical structures -- fiber & bandwidth contracts, patents, IP settlements, etc. That's why I think the G books possible settlement described in the New Yorker piece could be really important -- we might look back on this in a few years and note the settlement (if and when it occurs) was a real fundamental lock-in 'brick' in the Google foundation... Cheers!

Settlement as Barrier to Entry Angle

Check out Search Marketing and Musings' post on the GoogleBooks Settlement-as-Barrier-to-Entry-Angle and other thoughtful reflections on the excellent recent New Yorker article on "Google's Moon Shot," i.e., google's project to create a database of all books ever printed that are still in existence.

The paradigms they are a'changin' . . .

It's not your father's copyright law anymore . . . .

To get some sense of the upcoming legal battle and commercial strategizing, see the Online Wall Street Journal article in late '05 on Harper Collins' plans to digitize its own books here and Stanford Professor Larry Lessig's deeper legal thoughts here.

We love google.  We can't help ourselves.  We're temporarily trusting that it will "do no evil" just because we can't wait to see what they do next.

We have no idea what in the world is depicted in the image accompanying this post.  We just liked the way it looked with Google's Moon Shot.

 

16 Settlement Tips By a P.I. Trial Lawyer

Anyone who uses the word "cerebrate" twice in a single post makes me think he's doin' an awful lot of thinking.  And, it turns out that the thinking is pretty darn good. 

Looking for some sound advice on when and how to approach settlement?  Take a look at the Virginia Injury Lawyer Blog here.

Bias at National Arbitration Forum?

I am passing along a blog post from the Legal Reader about a recent complaint lodged against the National Arbitration Forum for bias.

Does anyone know whether anyone reputable has commented on these allegations?

P.S. from Denise Howell's Bag & Baggage

Web 2.0 and The Machine in a nutshell by ZDNet's Dan Farber -- Worth watching: Michael Wesch, an assistant professor of cultural anthropology at Kansas State University, has posted a captivating and incisive 4-minute and 31-second video explaining the basic premise of Web 2.0, concluding that Web 2.0 is primarily about linking people. But it is the journey of this video that is the reward. 

Blog etiquette requires that I link to this video rather than simply lift it & post it here but I can't figure out a way to link to any given article on Denise's blog -- only to the blog itself.  So I'm lifting it here with apologies to Denise at Bag and Baggage

 

Blogging for Mediators 101 -- How to Get Started

THESE BOOTS ARE MADE FOR BLOGGING

We had a great writing seminar with the brilliant and energetic Lisa Klerman of U.S.C. Law School, SCMA President Jan Frankel Schau of Valley Mediation Services and the tireless Phyllis Pollack, Chair of SCMA's Practice Development Committee, at the Los Angeles County Bar Association last night.

All participants walked out of the seminar with a writing/blogging marketing plan and some of the groups exchanged business cards, agreeing to act as "marketing buddies" to achieve the goals set at last night's session.

The Basics to Set Up Your Blog

Several attendees asked me to provide the links to blogging resources that I mentioned last night so here they are:

Google's Blogger -- where you can set up a blog free in about half an hour no matter how technologically over-50 you are.  There are other resources, like typepad, but I have no experience with them.

For broader instruction, Diane Levin at the On-Line Guide to Mediation and Tammy Lenski at Mediator Tech teach a four part blogging seminar that I attended just last month and which I highly recommend. 

Feedblitz syndicates your blog, i.e., permits you to put an email subscription box in your blog's sidebar and allows your subscribers to choose a direct "feed."  I have no idea how the RSS ("really simple syndication") feed works, but I use it myself and it's easy to set up at Feedblitz.   

I am indebted to Diane Levin for turning me on to MorgueFile, where you can get free images courtesy of a benevolent conspiracy of photographers who offer their stunning photographs free of charge.  Before Diane turned me on the this source, I used (and still use) istockphoto.com where most images cost a dollar.  Flickr also provides free images.

Google Alerts will send you articles and blog posts on any topic you choose.  Just put in a key term like "mediation," "negotiation," "insurance coverage," "family law," "health care industry," "community mediation," "restorative justice," "social psychology," etc. and google will deliver the web results to your email box.  (See also Google Tracking for Client Awareness at Netlaw Blog -- remember, your clients are Just Not That Into You; they are, however, into themselves).

Have I said "God bless google" recently?  God bless google, particularly for constructing a library of every book ever written still in existence today at books.google.com.  The New Yorker article on this dizzyingly audacious endeavor, Google's Moon Shoot, is here.

Continue Reading...

Nobody Does it Better: Diane Levin and Blawg Review No. 94

From What About Clients? Blog

If you want to see both exemplary blawging and a great ad for blogging all around, see Diane Levin's "Mediation Channel" Blawg Review #94, collecting last week's best posts. A Boston lawyer and mediator, Diane Levin publishes Online Guide to Mediation. Diane's been a model for me and many others who blog/blawg and, like WAC?, she seeks to reach bloggers, lawyers and business people outside of the often-insular U.S. She's thoughtful, skillful, outspoken and (gulp) fun.

Diane gives new meaning to the words collaboration, reciprocity, generosity, wisdom, wit and top 'o the bell curve smarts.  It's rare to find all these qualities in a single human being.  And did I say she's tireless?

Check it out!!

Women Leaving BigLaw Life

We're Outta Here -- Why Women are Leaving Big Firms

Yes, of course I have something to say about this but it will have to wait until I have a little more time to ponder, reflect, and check my instantaneous knee-jerk reactions for the more durable responses that come with patient reflection.

Someone said to me the other day that the best advice he ever received was to pause.  Good advice for those of us for whom instant gratification takes too long.

In the meantime, check out Denise Howell's Bag and Baggage response to the article here. 

You might also want to browse this 2006 Report on the retention and promotion of women in the law and buy Lauren Rikleen's essential Ending the Gauntlet -- Removing Barriers to Women's Success in the Law.

If you're practicing in Southern California and need mentorship, contact the  Women Lawyers Association of Los Angeles and the Women's Law Network of Southern CaliforniaThe Women's Law Network Blog is also a great resource whether you practice here in beautiful SoCal or not.

Finally, see the Bowditch Institute for Women's Success, another project of the prodigiously talented and energetic Ms. Rikleen.

There's no reason on earth why we can't change this if we truly desire to have both a balanced life and a BigLaw job.  You'll notice that the article says these law firms need us and that the men are none too happy with the imbalance either. 

 

 

 

Talking to Ourselves

Sometimes we mediators get caught in a conversation with ourselves and, in the process, get farther and farther away from what the attorneys who seek our assistance need from us.

Diane Levin has a series of articles on this topic, Bridging the Divide Between Lawyers and Mediators, which is a must read for all of us.  

I'm linking to her series here, as well as to some of the trial attorney and other blogs that think deeply and well about the mediation process and have much to teach us mediators.

Time prevents the full list this morning but I'll supplement this post this afternoon.

What triggered this thinking was Tampa Bay personal injury attorney Bob Carroll's excellent blog at injuryboard.com, The Litigation Process.

Diana Skaggs' Louisville Divorce Law Journal pays more attention to alternate dispute resolution than any practicing attorney blog I'm aware of.  Her insights are spot-on, her knowledge broad and her wisdom, well, wise.  Check it out!

Do not pass go!  Click the link here to the truly brilliant, multi-authored  Trial Lawyer Resource Center Trial Tips from Trial Lawyers Blog.  The blog's self-description is a vast understatement -- something we don't generally expect from trial lawyers:

Trial Tips from Trial Lawyers You've found the blog where a number of the USA's top trial attorneys join together with litigation experts to lend their expertise on topics that matter in your trial practice. Gain insight in case selection, work up, trial strategy, evidence, and post settlement issues. Contributors will reqularly share their real life experiences and knowledge to help you represent injured consumers.  

And it's not just the settlement/mediation tips that will grab your attention.  Trial lawyers put the passion, wit, loss, longing, love and fury back into the dry legalisms of their clients' claims.  Because that's what we mediators do as well, you'll find cruising the Trial Lawyer Resource Center an endless source of inspiration.

Appointed Forever: New Bar & Grill Singers Video

For all of you federal practitioners out there and for my step-son, Adam, who's clerking for the Ninth Circuit in Hawaii this year (good gig!)

The Bar and Grill Singers do this for charity so please do go to their web site (here) and buy their CD's to benefit legal services in Central Texas.

Hi Adam!!

(for the I'm Billing Time Video click Here

 

tag cloud of dialogue from hbo's rome

created at TagCrowd.com

Temperature Rising -- Is This Really a Business Plan?

The Yearly Gasp 

$158,000 for a Pacific Standard Time first year associate if s/he hits the 2,000 hour billable requirement?  (New York is $160K, but that's New York). 

And the likelihood of these brilliant and heavily indebted young people staying at any BigLawFirm, Inc. job for more than two or three years is, what?  One in ten?

Has all of BigLaw decided that they'll simply train  one another's associates -- that if Heller can't keep them, MoFo or O'Melveny will pick them up?  That no one at the top will laterally hire associates not trained by Cravath, Latham, Gibson, etc.? 

It's a one for all and all for one sort of thing?  I never knew there could be so much happy collaboration and reciprocity among the BigLaw competitors.  

Or is somebody playing chicken?

I refer you once again to my thoughts on the matter at "Outsourcing First Year Associate Jobs."

But seriously folks.  What's up?

p.s. will Chicago follow?

The Power of Influence

Even the Evangelical-Pie-Expanding-Negotiation-Collective (which awards this week's Exploding Pie Trophy to Diane Levin's Brilliant Post on the Inefficiencies of Trickery, Force and Persuasion) occasionally needs to resort to deception, influence and naked power plays.

So it is that we turn to Robert B. Cialdini's Six Rules of Influence that Could Make or Break Your Next Commercial Negotiation. 

Rule of Reciprocity

The rule of reciprocity is descriptive rather than prescriptive. When one person freely gives another something of value -- time, information, goods, or, in negotiations, concessions -- the receiving party inevitably feels an obligation to reciprocate.

Studies show, for instance, that the peppermint candy your waiter leaves with the check for dinner, dramatically increases the tip you give him. The same principle is used by charitable institutions whenever they send you return address labels bearing logos for -- pick one -- Amnesty International; the Red Cross; Habitat for Humanity, the Union Rescue Mission, and the like.

If unaware of this principle, the recipient of unasked for "favors" can be induced to enter into drastically unequal exchanges. To rid ourselves of the discomfort arising from an unpaid debt, for instance, we often agree to a request for a substantially larger favor than the one bestowed upon us.

Included within this rule is the "rejection-then-retreat technique," which relies heavily on the pressure to reciprocate concessions. By starting with an extreme demand that is certain to be rejected, the negotiator can profitably retreat to a smaller request--one that was desired in the first instance.

No matter how outrageous the opening offer, the second request is far more likely to be accepted because it appears to be and is a tempting concession (so long as the opening "outrageous" offer doesn't cause the termination of the negotiations at the outset).

Continue Reading...

Money Can't Buy Me Love

Because it's Sunday -- a day of reflection about the non-material -- and since we owe at least some of our wisdom to pop culture (from the Beatles to Annie Lennox) our thought for the day is once again about money's inability to satisfy. 

Here, we quote Amitai Etzioni from his article The Post Affluent Society (with internal citations omitted).


higher income does not significantly raise people's contentment, with the important exception of the poor.  A longitudinal study of the correlation between income and happiness demonstrate two things.

First, that at low incomes the amount of income does correlate strongly with happiness, but this correlation levels off soon after a comfortable level of income is attained.

Second, that during the decade that passed between the interviews, the individuals' incomes rose dramatically, but the levels of happiness did not.

People who live in poorer countries often have a better quality of life than those who live in more affluent societies. [Many] question[] whether the GDP [is] a sound measurement of well-being and suggest[] the need for a much more encompassing measure.

Psychological studies make even stronger claims: that the more concerned people are with their financial well-being, the less likely they are to be happy.  .  .  [M]oney fails to satisfy in an era of excess.  

Id.

Tags:

The Cost of a Thing is Your Life Part Two

III.             VALUING THE INVALUABLE  

A great part of the mediator’s task is helping the parties value losses for which there is no common metric. The desire to quantify losses in a numeric fashion against a standard metric has resulted in the publication of hundreds, if not thousands, of academic articles attempting to further “standardize” the irrational process juries bring to the valuation task. [1]

Recently, a highly influential law review published an article suggesting that “lost welfare” or well-being value for the death of one’s spouse might be “rationally” calculated against a hypothetically constant monetary value that a widowed individual would be willing to pay (the “WTP”) to avoid a spouse’s loss of life. “Because studies show that married people are happier than unmarried people,” argued the authors  

and that this happiness is in part a result of emotional closeness and companionship . . . the difference between the happiness of a married person and a widowed person can be quantified using simple scales based on subjective assessments of one's emotional well-being. To [determine what a person would be willing to pay – the “WTP”] to avoid grief from a spouse's death, one would need to (1) determine the average length of time that the grief persists (for example, until remarriage); (2) find an equivalent happiness difference in an area of life that has been reliably monetized (for example, WTP to avoid disease or depression);   (3) convert this difference into annual units; and (4) multiply (1) by (3). [Because married people] ha[ve] a level of self-reported happiness equivalent to that felt by a widowed person who receives an extra $100,000 per year . . . , [i]f the average number of years before remarriage or the "natural" termination of the original marriage (from divorce, or normal mortality) is, say, five years, then the . . . loss [of well-being for the surviving spouse] is equivalent to about $500,000.” 

Though the article at issue represents a laudable attempt to formalize and standardize a jury’s tendency to operate without any real guidance, the suggestion is an attempt to prevent the jury from doing that which only it can effectively do

  1. act as a collective conscience and “gut feeling;” and,
  2. weigh the nearly infinite number of variables pertinent to the valuation of loss and punishment for breaches of the minimal standards of care we expect in our civil relations with one another. 

Among the variables a jury will bring to bear on its decision to recompense plaintiffs for their injuries are the credibility of the parties (and their counsel); the coherence and appeal (believability) of the conflicting “stories” told by the parties[2]; the apparent balance or imbalance of power between the parties (i.e., the relative responsibility of all parties to the dispute); the type of social ill being addressed; the severity of the harm caused; the historical context in which the injury occurred and, the moral or political issues highlighted by the dispute.

  Once the opening legal skirmishes among counsel have been completed and the case is ready to be settled or tried, every “irrelevant” detail that has been stripped from the parties’ lived experience, must be put back into place. It must be given life again; made three-dimensional and its causes multi-determined, displayed in all of its particularity, texture, subtlety, nuance and drama. 



[1]               Purely anecdotally, my own personal experience of the settlement value of lost life over two dozen medical malpractice wrongful death cases has been:

$210,000                 6 year old boy                      son of 50 year old adoptive mother

$90,000                   72--year old woman              wife of 80 year old husband

$205,000                 55 year old man                    father of 5 adult children

$200,000                 34 year old man                    husband of 28 year old wife

[2]          Stories are swallowed by legal theory,

“which serves as both the starting point and ending point for case theory. Facts exist simply to be plugged into legal theory, and facts that cannot find a home in some legal element are deemed virtually irrelevant. The process of theory development is quantifiable, neat, and quite sterile.”

Binny Miller, GIVE THEM BACK THEIR LIVES: RECOGNIZING CLIENT NARRATIVE IN CASE THEORY (1994) 93 Mich. L. Rev. 485, 499-500. 

The Cost of a Thing is Your Life

The Cost of a Thing is the Amount of Life Which is Required to Be

Exchanged for It, Now or in the Long Run [1] -- Part One  

I.          INTRODUCTION

When a decision-maker says, “it’s only about money,” he means that the choice to be made is purely rational and that strong emotions – feelings – will play no role in the analytic process to follow. When lawyers say a case is “only about money,” they are not only saying that emotional factors will not influence their decisions. They are often also saying that Plaintiffs’ expressions of injustice are insincere – otherwise they would not accept money in exchange for losses that cannot be reduced to monetary value such as the loss of life or emotional suffering. 

Whenever any of us attempt to arrive at a monetary value for anything we buy, barter or exchange, we, like the lawyers and decision-makers above, are engaged in the process of commensuration in which qualities are transformed into quantities. In the case of a legal conflict, commensuration takes place not only in reducing physical and emotional loss into monetary values, but also by contracting the conflict itself into certain rigid categories of redressable wrongs we call “causes of action.” In both cases, the texture, context and idiosyncratic particularities of a conflict are reduced to a common metric of an actionable claim compensable in monetary damages. [2] 

While the process of commensuration allows us to more easily grasp, represent and compare differences in an effort to “manage uncertainty, impose control, and secure legitimacy,” [3] we often thereby give up our recourse to “[e]veryday experience, practical reasoning, and empathic identification, [all of which] become increasingly irrelevant bases for judgment. [4]   In simplifying matters for ease of analysis, we inevitably strip away context, ignore differences, and reduce the “relevant” facts to categories that reproduce past experience for the purpose of equating the thing to be valued with a supposedly objective metric. [5]  

Setting the personal relational and historical account of the conflict aside, lawyers seek from their clients only those facts that will satisfy the “elements” of causes of action for negligence or other breaches of society’s civil legal standards, after which a judge or jury will be asked to value the loss suffered in the form of monetary damages . 


[1]               Henry David Thoreau, WALDEN at 44.

[2]               Stevens, Mitchell and Espeland, Wendy Nelson, COMMENSURATION AS A SOCIAL PROCESS (1998)24 Annual Review of Sociology 313-43.

[3]               Id.

[4]               Id. 

[5]               Id.; see also Even, William E. and Macpherson, David A. THE WAGE AND EMPLOYMENT DYNAMICS OF MINIMUM WAGE WORKERS (2003) 69 Southern Economic Journal 676 for examples of the way in which the profound differences in the labor we perform and the products that labor produce are abstracted and reduced to “manageable” categories for the purpose of determining the minimum acceptable wage that our fellows should be required to accept. A quick review of census and other statistical employment data reveals that the identical minimum wage is generally paid to the college student who passes your bag of burgers through McDonald’s take out window; the middle-aged mother of three who changes your sheets and linens at the local Holiday Inn; the retired high school chemistry teacher who tends to the needs of your elderly father at the local assisted living facility; the young actor bagging your groceries at the Bristol Farms; the Viet Nam veteran flipping burgers at an all-night Dennys; the night watchman guarding your downtown office building; the seamstress who embroiders designs on the back pockets of your $200 jeans; and, the cashier calculating the cost a 5,000 mile tune-up for your new BMW.

Continue Reading...

single issue monetized shuttle no intake lawyer controlled mediation

Recognize this?  

No, not the money shirt.

The single issue monetized shuttle no intake lawyer controlled mediation.

A  friend and LL.M. candidate at the Straus Institute, Monique McKay passes along law professor John Wade's term for a negotiation process most lawyers all know too well.  

Anyone interested can find an excellent article by Professor Wade discussing the SIMSNILCM process and its alternatives  here . 

Update on Mediation of Middle East Prisoner Exchange

Hamas decides to stop news release over Israeli captive soldier


The ruling Islamic Resistance Movement (Hamas) decided on Monday to stop news release about the abducted Israeli soldier Gilad Shalit, who has been held hostage by Hamas' armed wing in Gaza.

"The captors of the soldier decided to deal silently with his case," Osama al-Muzini, a member of Hamas leadership, told reporters in Gaza.

"This comes to maintain the privacy of the issue and the reaction of the press could affect the track of the case," explained al-Muzini, who is also well-informed about the mediation efforts over the prisoner swap deal.

Al-Muzini stated that any future procedures concerning the issue would be carried out through an Egyptian security team, a mediation actor who follows up the case between Israel and the Palestinian captors.

Shalit was seized by three Palestinian militant groups led by Izz el-Deen al-Qassam Brigades, armed wing of Hamas, in a cross- border raid on June 25 and has been held hostage since then.

The captors conditioned the return of Shalit on release of 10,000 Palestinian prisoners jailed in Israel.
The talks under Egypt's mediation over a swap deal has continued for months without tangible progress.

Few days earlier, al-Muzini announced the mediation efforts hit a deadlock, accusing Israel of delaying the swap.

Cal Supremes Take Up Mediation Confidentiality Issue in Simmons v. Ghaderi

The Supreme Court has defined the issue before it in Simmons v. Ghaderi after its December 20, 2006, grant of review as follows:   

This case presents the following issue: In an action to determine whether a valid oral settlement agreement was formed during mediation, was one party estopped to claim confidentiality for the mediation proceedings (Evid. Code, sections 1115-1124) because she had voluntarily declared the facts to be true, stipulated that she did not dispute them, submitted evidence of them, and litigated their effect for more than a year?

See our own previous commentary on this case here, here and here.

 

Patience While We Post Our Winter 2007 Literary Journal

Four times a year we publish our on-line literary journal, r.kv.r.y. quarterly.  As the New York Times reminds us today, one of our favorite moods -- optimism "causes a great deal of mischief, leading us to underestimate the time and trouble of the projects we undertake."  On the other hand, as Jim Holt notes in You Are What You Expect, The Futures of Optimists and Pessimists,

the mere fact that [optimism] is so widespread in our species suggests it might have some adaptive value.  Perhaps if we calculated our odds in a more cleareyed way, we wouldn't be able to get out of bed in the morning.

So it is with our decision, nearly three years ago, to publish an on-line literary magazine.  We so underestimate the time and trouble of this purely recreational project that we are unlikely to post anything on this blog in the coming week.

If you're an old Lit major practicing law or conducting business and missing the thrill of a well-turned phrase, check out our archives.

The most noteworthy entries in the Winter 2007 issue (still under construction) are two chapters from local author-attorney Richard Wirick's nearly completed novel, The Devil's Water.  I practiced law with Rick at Buchalter, Nemer in the late '80s and early 90's, at which time he held the sigular distinction of being the only person I knew who'd read both Ulysses and Finnegan's Wake.  For Literature majors, this is the equivalent of inventing cold fusion.  

More recently, Rick has been nominated for the prestigious PENN/Faulkner award for his cycle of prose-poems One Hundred Siberian Postcards, which, we must proudly point out, r.kv.r.y. printed first (well, at least three of them, before Telegram Books in London had the wisdom to publish all one hundred).

So that's where we'll be.  Laboring over the Yahoo! SiteBuilder, taking far far far longer than we ever planned to publish the next issue of r.kv.r.y.

Back soon!

Neuroscience, Negotiation and Decision Cycles

Hat tip to our favorite Neuroscience-for- Dummies blog -- Neuromarketing -- for directing us to Time Magazine's recent article on the intersection of marketing and neuroscience.  

(N.B.  There's a permanent link to Neuromarketing in our own left-hand column if you'd like to follow these developments yourself).

Time's article Marketing to Your Mind, tells us about P. Reed Montague's work on the way trust, altruism and feelings of obligation  can divert and modify the steps we ordinarily take to make decisions.  

Of the speed with which neuroscientists are increasing our knowledge of how and why we think the way we do, Montague is quoted as saying,  

The capacity to use brain responses and relate them to behavior has accelerated at a breathtaking pace over the past four years and yielded an incredible amount of information.

That's exciting news for the Negotiation Law Blog because "being inside the other guy's decision cycle" (Colin Powell) is the best way to maximize your negotiating advantage.  

As the simplistic chart above confirms, most of us already know what questions to ask about our negotiating partner before and during any bargaining session.  To whom does he report; what is his personal stake in the outcome; why does he (or his organization) need the advantages he's angling to obtain; what damage to his personal/professional interests or his organization's well-being would be done by walking away from the bargaining table; under what time and other pressures are he and his business operating, who are the true "stakeholders," both internal and external, and the like.  

(Remember -- google everyone and search every public source of information on your bargaining partner and her organization before any negotiations begin).  

Adding to these largely business considerations, an understanding the way all people tend to make decisions could well be the difference between negotiation success and failure.  That's why your Negotiation Blog follows developments in neuroscience and evolutionary biology so closely.  So you won't have to.

Look for our next post on the way  Dr. Montague's insights can assist you in closing your next deal.   

Failure to Mediate Real Estate Dispute Didn't Preclude Fee Award for Defense of Complaint

 

Provision in real estate purchase agreement disallowing attorney fees to a prevailing party who did not first attempt mediation did not preclude award of fees incurred to defend the action.  In any event, the evidence was sufficient to support the trial court's implied finding that defendant's offer to mediate was rebuffed by plaintiff.  Van Slyke v. Gibson  (January 18, 2007, Second District, Div. Six)  Cite as 2007 SOS 311

Chronology of Middle East Peacemaking

Jan 18 (Reuters) - The United States has invited the quartet of Middle East peace negotiators to meet in Washington on Feb. 2, boosting efforts for wider international involvement in the stalled peace process between Israelis and Palestinians.

For the chronology, click here. and click here for update on prisoner exchange.

The Google Unhappiness Index

I was talking to a lawyer friend of mine recently who noted that her husband's trade magazine (he's a cinematographer) doesn't have ads for the 1,001 non-cinematographer things its readers could do with their cinematography skills.  Lawyers' journals, she noted, are filled with ads for alternate careers.  

In a moment of "productive procrastination" (blogging) I conducted my own completely unreliable and unscientific survey of professionals' relative degrees of unhappiness.  I did this by googling the term "unhappy" along with the names of the professions that came most readily to my mind.     

No surprise, there are more than twenty five hundred entries for unhappy lawyers.  No other profession even comes close.

Philosophers, who make a living deeply pondering difficult questions like "what is the meaning of a life that inevitably ends in death" have only 901 "unhappy" entries.  Doctors, who surely see their fair share of unbearable human suffering, google in at 776.  Artists, whose ability to make a living is dodgy at best, have only 716 entries and actors, whose lives are controlled by forces as fickle as the weather, come onstage at 602. 

There are unhappy executives it seems, but only at 658 entries, after which the fall in unhappiness listings tumbles precipitiously.  There are 389 unhappy managers, 284 unhappy accountants, 141 unhappy professors, 127 unhappy bankers, 70 unhappy dentists (with all that drilling?), 58 unhappy entrepreneurs, 29 unhappy journalists, 28 unhappy chefs, 27 unhappy librarians, 19 unhappy surgeons, 4 unhappy psychiatrists, one unhappy social worker and no unhappy cinematographers!

I won't "do the math" to determine whether the Google Unhappiness Index is related in any way to income.  Obviously, it's not.  After all, there are only 643 entries for unhappy prisoners!  But I suppose they don't have much access to the internet.

If I've missed one of your favorite professions, please pass its Google Unhappiness Index rating along to me.

And don't despair.  A new member of the Secret Society of Happy Lawyers -- Lawsanga -- has checked in with an acronym for happiness success -- check it out!

And do also check out this extraordinary resource -- How Harmful is Happiness? 

Mock Trials, Diversity, Negotiation and New Orleans

Mock Trials and Diverse Teams

I judged a collegiate mock trial competition yesterday at the Anderson School of Management,  UCLA.  

I had the great good pleasure of watching Berkeley's and UCLA's teams mix it up -- both astonishingly talented and UCLA's a recent National Champion.  

I'm hoping that these talented students' rhetorical, critical thinking, performing arts and persuasion skills will be put to beneficial use in a future with fewer and fewer actual trials for anyone to try.  

Not only were these young people ridiculously impressive, each team was a self-selected meritocracy blind to gender, race, and nationality in all ways other than personal style -- which is what trial advocacy is all about -- style.  

Of course we have monumental civil rights advocate, Martin Luther King, Jr. largely to thank for this.  The man whose holiday it is today.

We Have Much Work to Do

I know there's much work to do, particularly since I mediate, from time to time, employment discrimination cases.  We shouldn't forget the distance we have travelled nor rest on some presumed laurels for our efforts.  

As late as the early nineties, Columbia Law School Professor Patricia J. Williams in her groundbreaking legal memoir The Alchemy of Race and Rights had this to say about the impetus for her book.  

I don't know how to find something to write about in the panic of this deadly world.  There is more in the news than even my depression can consume.  Then I see it.  A concise, modular, yet totally engaging item on the MacNeil/Lehrer News Hour: Harvard Law School cannot find one black woman on the entire planet who is good enough to teach there, because we're all too stupid.  (Well, that's not precisely what was said.  It was more like they couldn't find anyone smart enough.  To be fair, what Associate Dean Louis Kaplow actually said was that Harvard would have to "lower its standards," which of course Harvard simply cannot do.)

"We have gone so far beyond that," I am thinking, before Professor Williams reminds me that I do not need to be race conscious because society doesn't define me by the color of my skin.  

Continue Reading...

The Secret Society of Happy Lawyers

Check out Stephanie West Allen's Idealawg post on the Secret Society of Happy Lawyers.

I searched for an image this morning to accompany the post by typing "happy lawyers" into the google image search engine and found -- a single unhappy emoticon! 

I found the image to the right by typing, simply, "happiness," for which there are about 334,000 images.  334,000 to 1.

Clearly, happy lawyers (see Lawyers with a Life) is an idea whose time is still to come.

But that's no reason not to make it happen!  For the seventh generation.

For more on this topic click here (Idealawg) here (Evan Shaeffer's Legal Underground) here (Settle It Now Blogspothere (Melissa Kluger's Precedent, the New Rules of Law and Stylehere (Lawyer, Woman, Motherhere(Women's Law Network) here (Settle It Now Negotiation Blog) here (Wired GC) here (Stay of Executionhere (Basquette Case) and here (the Chicago Sun Times). 

Continue Reading...

Five Things You Didn't Know About Me

Since I'm using the cover of one of Julie Schumacher's great novels for this post, I'm linking to her web site here.  You can also find her bio and  more of her great books by clicking on the image itself.   If you're a creative writer, you might also think about sending your work to the r.kv.r.y. quarterly literary journal, for which I serve as Editor-in-Chief, website designer, manuscript reader and chief bottle washer.

Introductions over, welcome to memetag.

A memetag is the blogosphere's equivalent of a chain letter. It requires a blogger to request another blogger to post on a particular topic.  This memtag post is Five Things You Didn't Know About Me.  The tagged recipient must "tag" others to pass it along.

No dire warnings of misfortune or promises of great wealth accompany these requests.  They are their own reward.

This memetag comes from my blogging mentor, Diane Levin at the Online Guide to Mediation.  Diane asks.  I cannot say "no."

Five Things You Don't Know About Me MemeTag Post

I'm teaching an employment ADR course at the Straus Institute, Pepperdine University School of Law this semester with master employment mediator Stefan Mason.  One of the class assignments is to write regular self-reflective journal entries on employment issues.  

I am journaling along with my students on the class ADR blog .  The linked One Page Identity Journal Assignment  requires the students to dig under the surface of their own experience and write about the way in which their identity is intertwined with their status as law students or lawyers, business people or teachers, writers, doctors, academics, etc. 

The journals are necessarily personal. I'm certain my entry includes at least five things you didn't know about me.

I tag Blaine DonaisDiana Skaggs,  and Paula Lowhon.

Tags:

Blawg Day of Mourning for Lives Lost in Iraq

Calling for Blawg Day of Mourning for Lives Lost in Iraq

Bertolt Brecht once asked

what times are these

when a poem about trees

is almost a crime

because it contains silence

against so many outrages?

As America prepares to send 21,500 more young men and women into harm's way in Iraq, I am asking all Blawgers to observe at least one day of mourning this month over lives lost in Iraq.

In whatever way seems appropriate.

Restore Democracy in America

Olbermann: A Look Backward at the Commander’s Credibility.  
Click on the Image to See the Newscast.  Transcript below.  

Any meaningful assessment of the president's next step in Iraq must consider his steps and missteps so far.

So, let's look at the record:

Before Mr. Bush was elected, he said he was no nation-builder; nation-building was wrong for America.

Now, he says it is vital for America.

He said he would never put U.S. troops under foreign control. Today, U.S. troops observe Iraqi restrictions.

He told us about WMDs. Mobile labs. Secret sources. Aluminum tubing. Yellow-cake.

Continue Reading...

We Tell Ourselves Stories in Order to Live

 (click on painting to see more narrative artwork by Jacob Lawrence)

Mediation to Correct the Epistemological Error in the Adversarial Legal Narrative

We tell ourselves stories in order to live, wrote novelist and essayist Joan Didion.

The princess is caged in the consulate. The man with the candy will lead the children into the sea. The naked woman on the ledge outside the window is a victim or an exhibitionist, and it would be "interesting" to know which. We tell ourselves that it makes a difference whether she is about to commit a mortal sin or is about to register a political protest or is about to be snatched back to the human condition by the fireman in priests clothing. We look for the sermon in the suicide, for the social or moral lesson in the murder of five. We interpret what we see, select the most workable of the multiple choices. We live entirely, especially if we are writers, by the imposition of a narrative line upon disparate images, by the "ideas" with which we have learned to freeze the shifting phantasmagoria which is our actual experience.

Joan Didion, The White Album

The Rat Litigation

The small man in the incongruously meticulous three-piece suit and skullcap is sitting behind an enormous desk strewn with files, photos, pleadings, paper-clips and crumpled Styrofoam coffee cups. There is even evidence of yesterday’s lunch or last night’s late snack – a Fiestaware salad plate smeared with the congealed remains of something unidentifiable.

Mr. Segal’s face reddens as he stabs his finger repeatedly into a yellow legal pad that carries his firm’s embossed name.

“They disrespected my niece,” he is repeating, his voice rising with each iteration. “She grew up in Budapest. She knows something about rats.” He is sputtering now, on the verge of losing the professional demeanor I am certain he values.

“And that fake Jew,” he snarls, “The Company’s lawyer. His client disrespected her and now they’re disrespecting me.”

It is nine o’clock on a warm Los Angeles morning and my business day has just begun. Mr. Segal’s Santa Monica law office has one of those unexpectedly magnificient ocean views – the kind that make you feel guilty about an unmerited grace. The counterpoint between ocean, swaying palms and joggers in brightly colored sweats on the Palisade and Mr. Segal’s claustrophobic office is unsettling.

Open boxes spill out exhibits from his last trial and colorful graphic boards lean against the wall. He has already explained the trial victory these graphics helped him achieve – one of numerous injustices rectified by a Los Angeles Superior Court jury.

The Adversarial Legal Narrative

I used to be in the business of telling these stories myself – pushing the square pegs of my clients’ actual experiences – the shifting phantasmagoria – into the round holes of the pre-determined American legal conflict narrative. Duty, breach, proximate cause, damage. Now, as a mediator, I listen for character and plot, theme and moral, reliable and unreliable narrators, and, most importantly, character.

Writers have long known that we impose narrative lines on our often random experience. Told with hope, these stories weave nets to catch us when we fall; braid ropes to throw out our prison windows; forge keys to unlock the doors that separate us one from another.

Fake Jew. The raw emotion of this epithet startles me, though it doesn’t surprise me. I’ve met with Mr. Segal, counsel for his Eastern European niece, once before. We exchanged pleasantries about the neighborhood in which we both live – one with a large Orthodox and Ultra-Orthodox population. He knows my husband is Jewish and that I am not. According to Mr. Segal, “with all due respect,” I and those of my cross-marrying kind will eventually be responsible for the destruction of world Jewry. I’m easy-going on this topic and have not taken offense.

Meta and Master Narratives

With Mr. Segal's "fake Jew" accusation, I've hit mediation pay dirt. He'd already alerted me to the “meta” or “master” narrative that might have transmogrified this small claims case into a hotly contested Superior Court action. A narrative of a community splintered and in danger of destruction.  This additional comment reminded me of just how important this interest was.

The “meta” or “master” narrative is the national and religious story that shapes the way we think and live. It acts as a lens through which the “dominant” culture perceives itself and in opposition to which ethnic, religious and other sub-cultures are defined.

Social psychologists tell us that we all make use of this cultural stock of stories. In novel situations, we browse more or less consciously through them to find one or more narratives that fit -- or can be adjusted to fit -- our own experience.

Continue Reading...

U.S. Supremes: Arbitrator Must Decide Challenge to Contract Containing Arbitration Clause

The National Arbitration Forum in its 2006 Law and Policy Year in Review Reminds Us of last year's United States Supreme Court Ruling that a challenge to the validity of a contract containing an arbitration clause must be decided by the arbitrator.  

The NAF's usual excellent case summary of the Buckeye Check Cashing, Inc. v. Cardegna (2006) 126 S. Ct. 1204 case can be found here. 

NAF's conclusion -- "this 7-1 Buckeye decision is clear, convincing, and conclusive support for arbitration by this country's highest court. The Supreme Court Justices trust the judgment of arbitrators to decide disputes, and more and more parties and their lawyers will similarly entrust arbitrators to do justice."

Neuro Everything at Harvard B-School Working Knowledge

Over at Harvard Business School Working Knowledge (one of our favorite resources for what's new in negotiation studies), Jim Heskett, the Baker Foundation Professor at Harvard Business School, heralds the arrival of an avalanche of materials in neuroscience in Neuro Economics: Science or Science Fiction? 

We post a brief excerpt here, but recommend reading the entire article by clicking on the link above. 

Among the propositions advanced from this work thus far, for example, are that risk and return are assessed in different parts of the brain, thereby questioning theories regarding expected utility on which a great deal of decision theory has been based up to now. Thus, according to this research, different qualities of, say, investment decisions are made when perceptions of risk or greed (return) prevail in terms of heightened brain activity.

Another line of work involves the study of the best locus in the brain, conscious or subconscious, for making various decisions. For example, it is thought that more complex decisions involving hard-to-quantify factors are best made in the subconscious after some amount of preparation. That is, study the problem, sleep on it, and decide without further analysis. It's the type of decision making described by Malcolm Gladwell in his book, Blink.

According to this line of thinking, questions involving more quantifiable, straightforward considerations are best answered in the conscious portion of the brain, presumably after considerable conscious thought. Work in neuro marketing at Ludwig-Maximilians University in Munich now claims that strong brands create more excitement in decision-influencing areas of the brain than weak brands, even for mundane products.

Does this influence purchase decisions? Stay tuned.

For more on this topic, see Free Will:  Now You Have It, Now You Don't by Dennis Overbye from the New York Times.

Update on Negotiations for Middle East Prisoner Exchange

We continue to follow this one Middle East Negotiation for you. 

On January 4, bloomberg.com reported in an article by Jonathan Ferziger entitled Mubarak Chides Israel at Summit on West Bank Deaths that Egyptian President Mubarak pledged to keep working with all sides to arrange a breakthrough prisoner exchange that could help unfreeze peace talks between the two sides.

The Power of Two: Friends without Borders

A beautiful thing is happening in India and Pakistan. The children of both nations are writing heartfelt letters to one another in an effort to build lasting bridges of friendship. This effort is being run by a group called Friends Without Borders.

The hope is that when this younger generation grows up, a much saner world will take over. This video captures the story of this campaign up to the point of delivery of the first round of letters in Pakistan.

It's an amazing story that features "The World's Largest Love Letter" and the famous public service announcement that played on most every network throughout India and Pakistan.

New Improved "I'm Billing Time"

The brilliant Bar and Grill Singers wrote the lyrics and sang the Billing Time song to Cyndi Lauper's Time after Time.

Only lawyers tend to find this funny.  But they generally think it's hilarious. 

If you're one of those whose day brightens because of I'm Billing Time, go to the Bar and Grill Singers website (link above) and buy this, and other CD's. 

All profits will go to the Volunteer Legal Services of Central Texas.  

Support Peer Mediation in the Schools

This is a Video of the Peer Mediation Invitational held at the Ninth Circuit Court of Appeals (the extraordinary Justice Dorothy Nelson -- who appears in the video -- Justice presiding) and the Western Justice Center next door in Pasadena, California.

I've participated as "coach" at this invitational and it is quite extraordinary to see these young people do what adults (including lawyers and business people) were never taught to do -- follow the mediation "procedure" to resolve conflict.  Create hope and safety; communicate; listen; reflect the disputants' conflict back to them in their own terms; distinguish the parties interests -- what they want or fear -- from their positions -- why they're right -- develop options for mutual gain; evaluate potential solutions; strive for closure, resolve.  

It's an amazing experience.  If you're looking for a new community activity in which to devote your passion for peace, you couldn't do much better than becoming involved in (or helping support) the Western Justice Center.

After all -- think of what this generation will have to communicate about and resolve -- global warming; diminishing fuel resources; and, major shifts in geo-political power structures.  Let's give them the tools they need to find a way out of the mess their parents' and grandparents' technology created. 

Mediation is one of the few human technologies that has any possible chance of meeting these challenges successfully.

Tags:

Social Psychology of Negotiation

Hooray for the publication of a new volume on the social psychology of negotiation edited by Professor Leigh L. Thompson, Negotiation Theory and Research

I learned more about negotiation from Leigh L. Thompson's Mind and Heart of the Negotiator than from any book I've read, seminar I've taken, or advice I've been given.  And I've read, taken and been advised a lot since I began my LL.M studies in conflict resolution at Straus in 2004.

So despite the steep price-tage on Negotiation Theory and Research, edited by Dr. Thompson, I'm buying my copy today.  You can await my recommendation or skim Dr. Thompson's on-line work and purchase your volume before any of your negotiating partners do.

Dr. Thompson is one of those frighteningly accomplished people who make you feel as if you must be sitting around watching soap operas all day.  She's currently the J. Jay Gerber Distinguished Professor of Dispute Resolution & Organizations in Northwestern's Kellogg School of Management; has received the multi-year Presidential Young Investigator award from the National Science Foundation; gathered up several National Science Foundation grants; and has served a term as Fellow at the Center for Advanced Study in the Behavioral Sciences in Stanford, California.

At Kellogg, Dr. Thompson directs the Kellogg Team and Group Research Center, the Leading High Impact Teams Executive Program at Kellogg, and the Behavioral Laboratory at Kellogg.

I'm already completely worn out before I'm told that she has published over 90 research articles, books, and chapters, including The Mind and Heart of the Negotiator (3rd edition), Shared Cognition in Organizations (with John Levine and David Messick), Making the Team (2nd edition), The Social Psychology of Organizational Behavior: Key Readings, and Creativity in Organizations.

She is a member of the editorial boards of Organizational Behavior and Human Decision Processes, Journal of Personality and Social Psychology, Journal of Experimental Social Psychology, Journal of Behavioral Decision Making, and International Journal of Conflict Management. 

Court May Not Order Parties to Attend and Pay for Mediation in a Complex Case

The California Court of Appeal for the Fourth District held in Jeld-Wen v. Superior Court today that parties may not be ordered to attend and pay for the private mediation of complex litigation.

After a thorough review of the law applicable to the appointment (and pay) of referees for the purpose of settlement conferences and discovery disputes, the Fourth District held

While trial courts may try to cajole the parties in complex actions into stipulating to private mediation (see Super. Ct. San Diego County, Local Rules, rule 2.3.7), they cannot be forced or coerced over the threat of sanctions into attending and paying for private mediation as this is antithetical to the entire concept of mediation. In any event, we suspect that in a large majority of complex cases most parties will agree to private mediation; as such, we foresee no apocalyptic consequences from this decision.

The case is worth reading for its coverage of the differences between mandatory settlement conferences and mediation, as well as the scope of the Court's authority to require the parties to pay a retired judge or mediator for the proceedings.

 

New Year's Resolutions from Harvard Business School

Because we apparently believe that our future selves will behave better than our present selves, we can "trick" ourselves into "doing the right thing" by agreeing today to take action tomorrow that we wouldn't take today.  Though this is one of those instances of social science researchers confirming what our experience already tells us (ever try to quit smoking?) it's worth taking a look at Future Lock-In, one of the most-read articles of last year in Harvard Working Knowledge

Start the Year Negotiating

That's the Fuller Brush Man and if you're old enough to recognize him, it's time to quit practice and go on the bench or start mediating (or, if you've been very very very good, retire) 

My dad was a milkman before he began selling life insurance door-to-door in the late fifties and early sixties.  If he didn't make a sale, he didn't get paid.  Door-to-door.  Taking home a draw against future commissions. 

That takes, well, as Alec Baldwin says in David Mamet's Glengarry Glen Ross -- brass balls.

So I market.  Selling is for people who are made of tougher stuff than I am.

This, however, IS AN ADVERTISEMENT for my Negotiation Seminar

Dad would say "that's not selling" since I give this seminar away for free with MCLE credits.      

He asks me why I do this with the same perplexed look on his face that my mother has when I tell her one of my poems was published.  "That's nice," she says, before asking again, "who reads poetry, honey?" and I repeat, "just other poets mom, just other poets."

But I digress.  

I give this seminar away for free because it gets me work. 

Most lawyers need to experience what I can do for them before they'll hire me.  Without this seminar, the pro bono work I do, and a growing circle of people who recommend me to their colleagues, I'm just another retired lawyer who took up mediation (as a hobby some wonder) after a couple of decades of practice.  (and no, it's not a hobby).  

There are some decent kudos on the linked page about just how great the seminar is, but you really have to experience it yourself. 

Did I mention that it's free? 

And if you really really want, there are a couple of sitting judges who like talking to the people whose cases they sit in judgment on day after day.  Two of these seminars were made to go with Judges.  Because I know how much you like it when they come along.

Doesn't that sound like a good deal for the new year?

If I could, I'd bring along some of these Fuller Brush letter openers & everyone over 50 could get all nostalgic but all I have are a bunch of Dad's old Prudential "salesman of the month" lapel pins and I wouldn't part with them for anything in the world!   

 

Pop Music in Legal Opinions

From a comment to the Wall Street Journal Law Blog Post on the Boss 

Top 10 most frequently cited popular music artists in legal writing.

Bob Dylan……..186
The Beatles………74
Bruce Springsteen…69
Paul Simon……….59
Woody Guthrie…….43
Rolling Stones……39
Grateful Dead…….32
Simon & Garfunkel…30
Joni Mitchell…….28
R.E.M……………27

Source: Alex B. Long

to see more of diego manuel's work, click on the image to the right

Blawg Review's Best Blawgs 2006

Link to Robert Ambrogi's Year End Plea for Civility

Attorney and award winning blogger Robert Ambrogi concludes his own "must read" lawyers-appreciate essay on Civility among litigators as follows: 

Lawyers should take this [civil] approach in cases of every kind. It's not about gamesmanship. It's about helping your clients achieve a fair result that they will be able to live with and work with for the longer term. Among lawyers, the first step towards achieving fair results for your clients is to treat your peers in the same way -- with fairness and civility.

Robert's essay bears reading in its entirety folks.  Then it should be read again with an eye toward  forwarding it to the adversary you've been (uncivilly) battling with during the year. 

Perhaps you can append your own personal note with the link saying something like this -- "let's begin the new year on a more friendly footing."

You might even (gasp!) offer an actual apology for any incivilities on your side of the street during 2006.  

I can hear counsel now, saying, "but they'll use it against me!"  If things have deteriorated to the point where your opponent would use a heartfelt call to greater colleagiality against you, things are seriously out of hand.    

Continue Reading...

Update on Palestinian-Israeli Prisoner Exchange

From today's International Herald Tribune Article Egypt Delivers Arms to Moderate Palestinians with Israeli Approval.

One of the Palestinian militant groups holding a captured Israeli soldier said progress has been made toward a prisoner exchange.

Abu Mujahed, a spokesman for the Popular Resistance Committees, said Egyptian mediators are trying to finalize a deal. "We received positive signals from our Egyptian brothers, who are acting on this matter," he said. "Everything depends on the Israelis."

He declined to say when a prisoner swap might take place. The soldier was captured by Hamas-linked militants in June. Israel has agreed in principle to free Palestinian prisoners, but there are disagreements over numbers and timing.

I Wish I'd Said That

From Screenwerk blog  --  Google CEO Eric Schmidt said that at least some of the litigation Google had confronted was “a business negotiation being conducted in the courts."

Small Talk and Separate Caucuses

Most attorneys do not like to begin their mediated negotiations with a joint session and neither do many mediators.  The reason most often given is everyone's desire to avoid a polarizing set of zealously adversarial presentations.  

Work done by our neighborhood neuroscientists, however, suggests that avoiding joint sessions may deprive us of the  "small talk" necessary to put the parties into a collaborative, even generous mood.  

First the Neuroscience  (from my favorite source for such insights, the Neuromarketing Blog

Recent research confirms that the miserly not only spend more time thinking about money than their more generous peers, they are also more socially withdrawn.  Although Dickens nailed the personality type on the head  when he created the friendless and miserly Scrooge, it seems that all of us are anti-social and penny-pinching when focusing primarily upon money. 

The confirming research?  Recruiting the usual cadre of beleaguered undergraduates, scientists at the University of Minnesota found that when students have their minds on money, they tend to be both selfish and withdrawn.  Those who were "primed" by money imagery before being asked to engage in (or imagine) solitary, group or "helping" activities  

waited nearly 70% longer to seek help than those who[se attention was not directed to money]; spent only half as much time . . . assisting []other[s] . . . [and] preferred working alone even if sharing the task with a co-worker resulted in substantially less work. 

The young people whose attention was focused on money also  

chose solitary leisure activities . . . preferring a private cooking lesson, for instance, over a dinner for four [and] when asked to set up two chairs for a get-to-know-you chat with another volunteer, . . . placed the chairs further apart than subjects [whose attention had been directed to non-monetary themes].

These findings, concluded the researchers, suggest that thinking of money puts people in a frame of mind in which they don’t want to depend on others and don’t want others to depend on them.  (see Thinking About Money from Neuromarketing here).  

Continue Reading...

Judicate West's Judge John Leo Wagner (Ret.)

There isn't a mediator working today who can teach you more about obtaining the winning edge in your next mediation or negotiation than Judicate West's Judge John Leo Wagner (Ret.)  

Judge Wagner and I each have a negotiation seminar presentation that we have  separately presented to businesses and law firms.  

Judge Wagner is often willing to come along to one of my in-house gigs so if you'd like to hear him, give me a call at 323.217.5162. 

I've presented my seminar at the following locales to rave reviews -- O'Melveny & Myers; Squire, Sanders & Dempsey; Sony Pictures Entertainment; Musick, Peller & Garrett; Katten, Muchin; Selman, Breitman; Wilson, Elser; and, the Anderson School of Management, Summer Entrepreneurship Institute, among others.

I don't have Judge Wagner's list but if my presentations have been "raves," his have been even ravier (a word he would frown on but compliments he cannot deny). 

For more on Judge Wagner, see the extended entry.

Continue Reading...

Israeli Soldier May Be Released in Three Weeks

The AP reported yesterday that Egyptian negotiator, Omar Suleiman told Israeli officials he believes the Israeli soldier captured in June by Hamas-linked militants could be released within three weeks. 

 

MEDIATORS WITHOUT BORDERS HOLIDAY GREETING

Holiday Wishes and New Year Appreciations for the People Who Are Bringing Us MEDIATORS WITHOUT BORDERS in 2007! Click on the Link to Join or Donate Today Mediators Without Borders. 

 

This holiday card is posted as a tribute to the newly formed Mediators Without Borders.

Neither this Blog nor the linked MWOB web pages are projects of Mediators Without Borders. 

Mediators Wtihout Borders needs your contributions to put up its own blog and website as well as for all other administrative expenses.

For details and links to the Steering Committee's individual web sites, see the Southern California Mediation Association MWOB Blog Post Here. 

HAPPY HOLIDAYS AND A PEACEFUL NEW YEAR!!

Lawyers Appreciate Integrity

Julie Fleming Brown of Life at the Bar and Stephanie West Allen of Idealawg are ending the year with a flurry of appreciation in the legal blogosphere. They each sent an e-mail to three bloggers asking them to write a post to their blogs beginning with the words: "Lawyers Appreciate . . .then pass the  baton on to three more bloggers. The countdown will last until the last day of the year." 

My contribution follows, after "tapping" the following bloggers to join in -- Between Lawyers, Workplaces that Work, and Florida Arbitration Law

Thanks Julie and Stephanie for the great idea. 

That said. 

Lawyers appreciate integrity.  

Wikipedia, which lawyers appreciate for its admirable effort to be inclusive, comprehensive, multi-vocal and "true," defines integrity in its popular sense as:

holding true to one's values [or] being one's word; doing what you said you would do (by when)/(how) you said you would do it. Integrity is knowing what is important to you and living your actions accordingly. .  .  Integrity is how you allow others to see you. 

Continue Reading...

Mediators Without Borders Redux

Mediators Without Borders

 

 

CLICK HERE FOR THE

APPLICATION FORM

 

 

  

 

We are thrilled to announce the creation of Mediators Without Borders (MWOB).

MWOB is a non-profit provider of pro bono conflict resolution capacity building within post-conflict communities.

A key goal of MWOB is to develop indigenous skills for group facilitation, public dialogue, strategic planning, collaborative negotiation, and peer mediation.

The concept is for teams of volunteer mediators to conduct skill-building workshops consistent with the norms, values, and culture of the locale.

The Mission is to increase the capacity of hostile communities to prevent, resolve, and recover from violent conflict. An array of conflict alternatives can be explored by strategic integration into the political, economic, and social institutions. The same team would volunteer for between 1-3 weeks per year, over a number of years in the same country, to build sustainable initiatives and to develop local peacemakers and peacekeepers.

Continue Reading...

Cartoon Mediator

Ultimatum

Copyright Charles Fincher at Scribble-in-Law, www.LawComix.com

You can buy this (signed!) and many other hilarious legal comics at the site that I've linked to above. 

What is it about Texas Lawyers and Art?  See Billing Time. 

Whatever it is, we're grateful for the laugh of recognition.  We all take ourselves too seriously and need to have our balloons popped like this at least once a week.

Why have I never seen any of these before?

I'm going to be late for a mediation because I stayed too long on the Scribble-in-Law site.

Thanks Charles!!

Videos on Your Website? An Idea Whose Time May Come?

I stumble across these things. 

Here's a law firm in Philadelphia, the Beasley Law Firm that showcases its lawyers and touts its services in short video clips on nearly every web page.

In light of the new generation's prediliction to obtain its news, products and entertainment on the web, the Beasley firm might just be ahead of the curve.

           If you're not awash in a web of legal referrals like most of us are, it might be nice to hear and see an attorney before you pick up the phone and call or get into your car to drive on over.

What do you think?  You might want to take at our earlier post on the Women's Law Network Blog concerning the young Pittsburgh bankruptcy lawyer -- legally blonde -- who's building her business on MySpace.

It's a new world folks!

More on the Middle East Prisoner Exchange

 

As promised, an update on the possibility of a mediated prisoner exchange here.

Pictured:  Tony Blair and Mahmoud Abbas, the Palestinian president, walk past a guard of honour at the presidential compound in Ramallah

Time's Person of the Year is

 Me . . . uh . . . we . . . , no? 

It's YOU  . . . .  (see Tammy Lenski's post on the new "you generation."  We're collaborative and reciprocal.  Ground-breaking. Generous. Spirited. Passionate.)

Time's Person of the Year is Us; um, I mean, YOU!

But wasn't it always so?

 

Walt Whitman's Song of Myself (excerpts below)

I CELEBRATE myself, and sing myself,
And what I assume you shall assume,
For every atom belonging to me as good belongs to you.

I loafe and invite my soul,
I lean and loafe at my ease observing a spear of summer grass.

My tongue, every atom of my blood, form'd from this soil, this air,
Born here of parents born here from parents the same, and their
parents the same,
I, now thirty-seven years old in perfect health begin,
Hoping to cease not till death.

Creeds and schools in abeyance,
Retiring back a while sufficed at what they are, but never forgotten,
I harbor for good or bad, I permit to speak at every hazard,
Nature without check with original energy.

It is time to explain myself — let us stand up.

What is known I strip away,
I launch all men and women forward with me into the Unknown.

Listener up there! what have you to confide to me?
Look in my face while I snuff the sidle of evening,
(Talk honestly, no one else hears you, and I stay only a minute longer.)

Do I contradict myself?
Very well then I contradict myself,
(I am large, I contain multitudes.) 

I bequeath myself to the dirt to grow from the grass I love,
If you want me again look for me under your boot-soles.

You will hardly know who I am or what I mean,
But I shall be good health to you nevertheless,
And filter and fibre your blood.

Continue Reading...
Tags:

Ethical Negotiation is NOT an Oxymoron

 

Check out this tele-seminar on Legal Ethics in Negotiation -- a fascinating topic and one that deserves greater attention. 

The seminar will take place at 1:00 pm ET on Thursday, December 21, 2006. The telephone-based program will last 60 minutes and is approved for one hour of ethics CLE credit in Kentucky. 

Click on the link above and here for Ben Cowgill's stellar Legal Ethics Newsletter. 

Save a Child from Drowning or Buy a $300 Bottle of Vodka?

If your holiday shopping prevents you from reading Peter Singer's article "On Giving" in this Sunday's New York Times magazine, I'm here (suffering from a flu mild enough to catch up on my recreational reading) to give you the executive summary.

Saving Children from Drowning 

Peter Singer is a philosopher, one of those guys who we pay to keep asking the questions we generally stop asking at midnight after we move out of our college dorm rooms.  More particularly, he is the Ira W. DeCamp professor of bioethics at the Center for Human Values at Princeton University.

In an article Singer wrote more than thirty years ago, he used a hypothetical child drowning in shallow water to explore how we value our own material well-being when compared to the desperate circumstances of others.  

How desperate? 

A billion people who inhabit the planet with us live on less than the equivalent of one U.S. Dollar a day.  Their children, ten million of them to be precise, die every year of poverty-related causes. 

30,000 every day.  

Here's Singer's thought-experiment.  As you walk by a shallow pond,

you see a small child who has fallen in and appears to be in danger of drowning.  Even though we did nothing to cause the child to fall into the pond, almost eveyone agrees that if we can save the child at minimal inconvenience or trouble to ourselves, we ought to do so.  Anything else would be callous, indecent, in a word, wrong. 

The fact that in rescuing the child we may, for example, ruin a new pair of shoes is not a good reason for allowing the child to drown.  Similarly if for the cost of a pair of shoes we can contribute to a health program in a developing country that stands a good chance of saving the life of the child, we ought to to do.   

Simple enough, you say, but remember the statistics that preceded Singer's hypothetical.

Every single year there are one million children drowning. 

30,000 per day.  

Continue Reading...

Cal Supremes: Expressly Provide that Mediated Settlement "Term Sheet" is Enforceable

 The California Supreme Court held in Fair v. Bahktiari last week that parties to a mediated settlement agreement must include an express provision that they intend to be bound by any written term sheet memorializing their settlement.

If you do not, the trial court will not enforce your settlement agreement even when, as here, you've prepared a relatively detailed deal memo including an arbitration clause.

As we've recommended before, you should prepare your term sheets in advance (or better yet, bring a laptop with your form settlement agreement on it --  many of my clients do, along with a portable printer or a jump drive to plug into a local PC). 

Being prepared to draw up the settlement agreement at the mediation is not only "a stitch in time" but shows admirable optimism.  Optimism that does, believe it or not, have a real and substantial effect on the settlement proceedings.   

For tips on ways to insure that your mediated settlement agreements are enforceable (or to resist the enforcement of an "agreement" that you don't concede was actually reached) see Deborah Rothman's and my Daily Journal article on the topic here.

Continue Reading...

Changing the Other Guy's Mind, Part Two

 

Change is Pain -- Recap

As Rock and Schwartz demonstrate in the Neuroscience of Leadership, change is pain. Just take a look at the expression of dismay on our cartoon mathematician's face when his colleague explains that he made a mistake in step two or three of his lenghy equation. Like the rest of us, he  experiences error in the "reptile" flight or fight part of his brain -- the amygdala.  

Because the amygdala's response is a hair-trigger reaction to danger -- timed to override any wasted cognitive activity at, for instance, our first detection of a black striped yellow creature softly padding toward us -- our mathemetician's discomfort is far more likely to be expressed in anger or petulant withdrawal than in any further rational argumentation.   

We're threfore extremely unlikely to change our minds when someone is vigorously asserting that we are wrong wrong wrong wrong WRONG!

[Slight Digression -- In the Absence of Information, We Make Stuff Up] 

Our brains are pattern-making organs.  They are always trying to fit the pieces of a puzzle together.  So strong is our desire to "make sense" of unrelated and disparate data that we tell ourselves absoutely sincere and compelling stories which are often completely and demonstratively untrue.  

Researchers have demonstrated our talent for creative narrative by studying people whose left and right brains have been severed by surgery or accident.  These people are perfect experimental subjects because their right (impressionistic, visual, creative) hemispheres have no way of communicating with their left (verbal, linear and logical) hemispheres.  What one hemisphere knows, the other cannot learn.    

In one of the most famous "split brain" studies, researchers presented each hemisphere with two images.  One of the two images presented to each hemisphere matched the picture presented to both hemispheres.  When asked to identify the related images, the subjects were easily able to point to related images with the hand controlled by the hemisphere capable of identifying the "match."    

Because only the left brain can 'talk," however, when asked why the right hemisphere had chosen the correct image, the subject could not accurately explain because his "talking brain" simply didn't know.  "Quick as a flash," said the researchers, the subject simply made up a wholly plausible and reasonable explanation, based upon the information at hand.  

Anyone who has ever watched a mock jury deliberate has seen this creative narrative principle at work.  Trials are not so much won or lost by what is demonstrated, but by some missing detail that the jury deems critical to the creation of a coherent narrative.  In the absence of information, juries, like everyone else, simply make stuff up.

(I learned these "split brain" theoretical and practical lessons by watching several episodes of a now-forgotten PBS series (probable sequels to which can be found here). An excellent article discussing the split brain experiments can be found here for those who wish to pursue it).  

If We Resist Change and Make Stuff Up to Avoid It, How Do We Ever Alter Our Thinking

Had Mother Nature left us without resource other than flight or fight, we likely would never have survived as a species.   Insight ("eureka," the "AHA moment") is our gift the from the gods.  

And it is insight, coupled with the brain's remarkable plasticity that allows us to change our minds and our behavior as well as to encourage others to join us. 

The third and final part of this three-part piece on Changing the Other Guy's Mind will appear tomorrow.

Promise.

I've gotta go finish decorating my Christmas tree now!

Money Money Money Money Money Money Money

(money money money money money it makes the world go round)

As the comments to recent reports of associate year-end bonuses attest (see the Wall Street Journal Law Blog) it's the comparison of economic rewards rather than amount of income itself that makes workers unhappy with their lot.      .    

The research cited below doesn't explain this behavioral tic but it does normalize it.

                                                                              Liza, Cabaret, singing Money

This is the Capuchin monkey, many of whom have been trained to work for "money" by researchers. (where's PETA when you need them?)  

As Forbes Online reported earlier this year in Primate Economics, these monkeys refuse to work if they see another "earning" an  unequal share of the rewards. 

What does the capuchin consider "unequal?" 

Apparently the capuchin will more or less happily "work" for another "CEO" monkey until the CEO begins to "earn" five times as much food as the "worker" does for the employee's labor.    

When that critical inequity is reached, the laborer rebels and refuses to work, leaving both monkeys without "income."

It's not just quantity that triggers the primate response to the provision of unequal rewards.  The capuchin also digs his heels in and refuses to go to the office if a co-worker is seen to be receiving better quality compensation.

After training the monkeys to trade pebbles for slices of cucumber, the capuchin happily played the game.  Once one was given a more desireable grape while the other continued to receive only cucumbers, the cucumber recipient became agitated, threw his pebbles out of his cage and eventually refused to perform any further tasks for the researchers whatsoever.  

The obvious take away?

People are less concerned about absolute levels of wages or standards of living, compared with how they are doing relative to others. Rewards in a market economy [must be shared, but] the essential flaw in systems like communism [is that] people are expected to share resources without regard to how much work they do. If you cooperate, you have to watch what the other person is getting,"  say the scientists.  You need to have some level of reciprocity.

Rationalizing Numbers II

When I tell friends I'm a "commercial mediator" and they say "huh?" I say, "I rationalize numbers for a living."  

What I'm doing now, however, is procrastinating.  Since I promised you "Changing Minds, Part II," I've blogged about creativity, love, blogging/marketing, the Israeli Prisoner Exchange negotiations, and, Outsourcing Associate Jobs.  Then I posted The Miniature Earth Video.

It's a lot of work procrastinating, particularly since I'm writing Changing Minds, Part II to procrastinate finishing a Daily Journal article about drafting arbitration clauses.  Now there's work worthy of some  high-level procrastination.

Still, I think all that brain science from Changing Minds Part I got to me.  It made me want to post photos of small children playing on brightly colored floors (below) next to quotations by my favorite authors, like Don DeLillo

DeLillo wrote this blazing piece of prose about our addiction to statistics when he was in his thirties.  I can rationalize numbers but I still can't write a symphony about them so I think I'll just shut up now.  

America is a sanitarium for every kind of statistic. We take care of them. We try to understand them. We do what we can to make them well. Numbers are important because whatever fears we might have concerning the shattering of our minds are largely dispelled by the satisfaction of knowing precisely how we are being driven mad, at what decibel rating, what mach-ratio, what force of aerodynamic drag. So there is a transferred madness, a doubling, between the numbers themselves and those who make them and care for them. We need them badly ; there is no arguing that point. With numbers we are able to conceal doubt. Numbers render the present day endurable, herald the impressive excesses of the future and stocked with a fine deceptive configuration our memories, such as they are, of the past. We are all natural scientists. War or peace, we thrive on the body-count. If I were on my death-bed today, and did not know the date, my cells would probably refuse to surrender. Without a calendar, a stopwatch, a measuring cup on the night table, I couldn’t possibly know how to die.

Don Delillo, Americana

Prisoner Exchange Negotiations

(pictured, anonymous Israeli soldier)

What follows is an excerpt from the December 11, 2006 Report of the United Nations Secretary General on the Middle-East from Relief Web.  In paragraph 24 of that report (to help you locate this excerpt in it) Kofi Annan expresses his desire to see both the captive Israeli soldier and some of the 9,000 Palestinians now being held captive in Israel released.

At the time of writing, efforts to form a Palestinian national unity government appear to have stalled. However, a precarious and imperfect ceasefire is in place in Gaza, and tentative feelers have been put out regarding the possibility of resumed Israeli-Palestinian dialogue, as well as broader regional dialogue. The ceasefire follows a period of political deadlock and spiralling violence that has had serious consequences for civilians on both sides, with Palestinian militants firing rockets from Gaza into Israel, and massive Israeli military operations and targeted killings that have led to several hundred Palestinian deaths this year, at a rate that has increased significantly since June 2006. Negotiations under Egyptian auspices are continuing for the release of the Israeli soldier captured at that time. Prime Minister Olmert recently announced that he would consider a prisoner exchange of 1,400 Palestinian prisoners, including lawmakers and officials seized by Israel after Corporal Gilad Shalit's capture. There are an estimated 9,000 Palestinians currently in detention in Israel, a matter of burning concern for the Palestinian population. The release of some of them and also the Israeli soldier would be a very positive development.

The Miniature Earth

Blog-Marketing Advice Doesn't Get Any Better Than This

Tammy Lenski and Diane Levin are the MASTERS of ADR blogging as a marketing tool. 

And what you can do with an ADR blog, you can sqaure with a legal blog in your specialty.

Yes, you will get CLE credit by subscribing to this audio seminar, but that's hardly the point.

Junior associate to senior partner, manager to entrepreneur, beginning to senior ADR professional, you can and will expand your business if you listen and attend to the lessons learned by Diane and Tammy during their blogging tenures.

For more information, click on the ad to the left or here.

We won't say it's fun because (shhhh) because we're keeping to ourselves the big secret that marketing is actually more fun than practice.

And as Hugh McLeod says over at Gaping Void today

The best blogging campaigns are acts of love. You cannot impose your own selfish values upon the blogosphere and still expect results. What you can do, however, is give a damn. It's a surprisingly effective strategy.

 

Thanks again, Hugh!  Clearly, I've come to the right place!

Tags:

Outsourcing BigFirm Associate Jobs

 

( see also Outsourcing law firm jobs

The angry associate response to Milbank Tweed's $30 to $65K year-end bonus announcement (see also Cravath complaints) has been followed by another BigLaw announcement that has the legal world reeling.

After the first of the year, the 650 member international law firm of Marley, Scrooge and Jones will begin outsourcing the work done by its first through third year associates.  See How Important is the Quality of Labor and How is it Achieved in the December 1 issue of Harvard Business School Working Knowledge.

"I don't know what took us so long," said managing partner Bertram Jones of MS&J.  "We've been in denial for years about the new reality -- associates simply don't stay with us for more than two or three years.  After you factor in recruiting trips, the cost of summer associate programs, signing bonuses for federal clerkships, full pay for "Bar Exam Summer" and the rising cost of bar exam courses for our first years, we don't really begin to recoup our investment until our associates are third years, at which point fifty percent of them have moved on."

But what about those high billing rates for BigLaw's young associates, don't they make up for the original investment?

"Not really," says Robert Marley, III.  "A first year associate's time is generally cut in half before it can go on a client's bill.  We also spend an enormous amount of our senior associates' and junior shareholders' (non-billable) time training these young people how to practice law.  You can't in good conscience charge the client $400 an hour for an attorney's OJT.  Even if we could, the clients just won't pay it anymore."

But outsourcing?

Ebenezer Scrooge, IV, partner in charge of associate training says, "listen, the menial tasks most of these young people perform -- document reviews, fly-specking thousands of pages of transactional documents, doing the occasional research memo can be done just as well in Bombay.  I mean, Mumbai."

So how will BigLaw re-populate its ranks?

Scrooge, a baby-boomer, says.  "Believe it or not, given our own life styles and the prep school and Ivy League educations we provided for our children, we won't be able to afford to retire until our late seventies.  That's another good fifteen to twenty-five years for many of us.  The term 're-populate' is not in our vocabulary."

When asked how the new outsourcing program will affect mid-level and senior associates, Jones smiled for the first time during our interview.

Continue Reading...

Love -- Another Interlude Before Changing Minds II

gapingvoid.com

"We don't have enough ways to care for each other:  that's the moment we're living in.  We need love to solve the problem of education, and I don't know how we're going to solve the health care problem without love." 

Anna Deavere Smith, NYU Law & Tisch School of the Arts about the PBS Documentary,The Mystery of Love from The Countless Varieties of a Single Emotion:  Love in today's New York Times.

One of the stories to be told in this documentary (to air on PBS in mid-December)  is the friendship between Azim Khamisa, a Muslim father whose 20-year-old son Tariq was murdered by 14-year-old gang member Tony Hicks. You can find that story (summarized below) on the PBS website here.

As a Sufi Muslim, he believed that doing good deeds and being compassionate create “spiritual currency” and this can be transferred to departed souls. So he decided that for the sake of his son, he needed to find a way to overcome his sorrow.

Azim came to realize that there were “victims at both ends of the gun.” So, in his heart, he forgave his son’s murderer and connected with the murder’s grandfather, Ples Felix. In the atmosphere of understanding and forgiveness, they decided to work together to educate young people about the terrible effects of violence. In this process, they have become as close as brothers.

Out of tragedy has developed a loving friendship. These men embody the Hindu proverb, “I met 100 men on the road to Dehli, and they were all my brothers

Creativity -- Interlude Before Changing Minds Part II

The creative act is not an act of creation in the sense of the Old

Testament. It does not create something out of nothing: it uncovers,

selects, re-shuffles, combines, synthesizes already existing facts, ideas,

faculties, skills. The more familiar the parts, the more striking the new

whole.” 

Arthur Koestler

Changing the Other Guy's Mind Part I -- Neural Networks & Mental Maps

How many times have we mediators been asked to  "just make the other guy see how wrong he is." And how many times have we tried?

While ADR scholars debate the pros and cons of evaluative and facilitative mediation, our friends the neuroscientists are proving what we already suspect to be true. 

We can't change anyone's mind but our own.

The good news is that we can assist others in changing the way they think by understanding the mental wiring by which we all think.  

First the Neuroscience

In their recent article, The Neuroscience of LeadershipDavid Rock and Jeffrey Schwartz explain why inspiring people to alter their own way of thinking is not just the best, but the only way to change someone else's mind.    

Habit and Working Memory

When we encounter novel situations (or information that is antithetical to our way of thinking) it is our "working" memory that compares the new information with our old belief systems.  Our brains reward us with a rush of neurotransmitters like adrenaline when we create novel mental connections as a result. 

The emphasis in the phrase "working memory," however, is on work.  

When we engage our working memory, we activate our prefrontal cortex, an energy-intensive part of the brain.  The prefrontal cortex is the brain's gymnasium, its life-cycles and treadmills.  

The rote mental tasks we perform every day are governed by the basal ganglia where neural circuits of long-standing habit are formed and held.  In the gymnasium of the brain, the basal ganglia are the jacuzzi and steamroom.    

To change our way of thinking about things is as much work as changing our diet and exercise habits.  The rewards are great but sloth often overtakes us.  

So one of the major sources of resistance to change is simple intellectual laziness.   

Continue Reading...

Israeli-Palestinian Prisoner Exchange Deal

Fulfiling our promise to keep you up to date on these negotiations, we reprint here from IMEMC & Agencies, the article, Minister of detainees reveals information on prisoner swap with Israel by Saed Bannoura - Tuesday, 05 December 2006, 00:32

Palestinian Minister of Detainee, Wasfi Qabha, revealed on Monday during a meeting with parents of Palestinian detainees, in Bethlehem, information regarding a prisoners swap deal between Israel and Palestinian resistance factions holding an Israeli soldier captive.

Qabha said that the deal does not include the abducted ministers and legislators since they should be immediately freed without any preconditions.

Qabha stated that, according to the deal, Israel will release 400 detainees as the fighters hand the captured Israeli soldier, Gilad Shalit, to Egypt, after that Israel will release additional 400 detainees. The third stage of the deal will see the release of detainees sentenced to high terms.

He also said that the deal includes releasing children, women, elderly and sick detainees, and will also see the release of Palestinian leaders, including Marwan Barghouthi and Ahmad Sa'adat.

Also, the deal states that Israel should improve the living conditions of the Palestinian detainees.

Israeli Environment Minister, Gideon Ezra, told the Israel Radio on Monday that Israel should consider freeing jailed Palestinian leader Marwan Barghouthi in a prisoner exchange for captured soldier.

Ezra added that if the Palestinian Authority prevents arms smuggling into the Gaza Strip, then he will be in favor of releasing Barghouthi.

Juggling in a Cone: Creativity and Constraint

I've been reading a lot about creativity lately because it is central to my practice as a mediator and central to the business opportunities of my commercial clients.  As Colin Powell says when speaking to business people, "to negotiate a deal, you need to be inside the other guy's decision cycle." 

Understanding the creative process in business is one of the ways I try to stay in my clients' "decision cycles." 

So why Juggling in a Cone? 

Two reasons.

HOPE AND CREATIVE SELF-EXPRESSION

First, it gives me hope for humankind.  That we follow the creative call and then spend hundreds (THOUSANDS?) of hours perfecting our heart's desire without realistic chance of material gain  makes me believe we WILL find solutions to global warming, tribal and border warfare, poverty and disease.  I can't help myself.  Juggling in a Cone makes me marvel, makes me laugh, lights up my world.

Second, Juggling in a Cone is all about exploring creativity with severe constraints.  There's not a lot of room in that cylinder.  Given its limitations, what might a juggler do?  Hit the play button and see if you're as enchanted as I am. 

TURNING LIMITATIONS INTO SOLUTIONS

In Turning Limitations into Solutions (the February online issue of Business Week) Marissa Ann Mayer, vice-president for search products and user experience at Google, says

Creativity is often misunderstood. People often think of it in terms of artistic work -- unbridled, unguided effort that leads to beautiful effect. If you look deeper, however, you'll find that some of the most inspiring art forms -- haikus, sonatas, religious paintings -- are fraught with constraints. They're beautiful because creativity triumphed over the rules. Constraints shape and focus problems, and provide clear challenges to overcome as well as inspiration. Creativity, in fact, thrives best when constrained.

Yet constraints must be balanced with a healthy disregard for the impossible. Disregarding the bounds of what we know or what we accept gives rise to ideas that are nonobvious, unconventional, or simply unexplored. The creativity realized in this balance between constraint and disregard for the impossible are fueled by passion and result in revolutionary change.

Having recently been turned on to cartoonist and copyrighter Hugh McLeod's Gaping Void comics (care of Geoff Sharp's eagle eye) I find that artists have been hip to the creativity-constraint principle for some time.  In McLeod's case, the constraint is the size of a business card.

In mediation practice -- the practice building part -- the constraint is generally expressed as a series of reasons one can't make a living at it -- the pro bono panel distorts the market, I'm not a judge, I'm too young, I did transacitonal work, I came to the market too late, there are too many mediators in Los Angeles, the commercial panels have the market all tied up, etc., etc., etc.

If we use these constraints rather than complain about them, we might find ourselves, well, juggling in a cone.

For excellent advice from an artist about pursuing your heart's desire, go to the extended entry, Advice on Being Creative .  I took the time to read this in full yesterday -  a highly worthwhile time commitment.  I recommend it to anyone searching for a solution to the intractable problem of "what are we to do with our one and only lives?" 

Continue Reading...

Negotiation, Time and the Ivory Tower

Over at the Legal Theory Blog we hear about the publication of Negotiation from a Near and Distant Time Perspective.

Translating from the academic into standard English , Psych Profs Marlone D. Henderson , Yaacov Trope and Peter Carnevale have apparently made the following research findings:

1.  parties are less likely to pursue piecemeal single issue resolutions and more likely to explore integrative, multi-issue solutions to a problem as the amount of time elapsing after a negotiation increases; 

2.  parties show an increased interest in conceding the lowest priority issues, but evidence less interest in conceding the highest priority issues as the amount of time elapsing after the event being negotiated increases; and,

3. parties make more multi-issue offers and are more likely to trade conessions on low priority issues for high priority issues as the amount of time elapsing after the event being negotiated increases.  

I'm happy to read that the article also discusses "implications for conflict resolution and construal level theory" since I don't much understand the three points mentioned above, let alone what "construal level theory" might be.  This is the point at which I mention the fact that I've earned not only my J.D., but also my LL.M.

Note to academics.  It's actually easier to write the way you speak.  And who knows, you might get some cross-disciplinary interest from outside the academy (the real world) if you try to make your work accessible to the rest of us poorly educated citizens. 

Remember that one of the smartest men in the world, physicist Stephen Hawking had this to say about time -- "it's what keeps everything from happening at once."

Apologies in the News

E! Online reports in Michael Richards' Mea Culpa Mediation that the former Seinfeld star and local comedian will meet with the African-American comedy club patrons "whose heckling triggered the racist rant heard round the world."

The men's attorney, Gloria Allred, said a local judge will facilitate a meeting to help the parties resolve the dispute, apparently to open with a "personal apology for [Mr. Richard's] behavior."   

The value of apology in resolving litigation or preventing suit in the first instance remains a matter of controversy among ADR professionals and scholars alike.  

The most thorough and thoughtful article I have read on the issue is Apology Subverted:  The Commodification of Apology.  The article's author, Lee Taft, argues that apology loses its moral force if used as a bargaining chip, particularly where the transgressor is protected from liability for his admission of wrongdoing.

See also Marlynn Wei's 2006 article, Doctors, Apologies and the Law, an Analysis and Critique of Apology Laws from the Yale Law School Student Scholarship Series and Erin O'Hara's Apologies and Thick Trust -- What Spouse Abusers and Negligent Doctors Might Have in Common , which I've blogged about earlier here and here.   

Mediator Predictions

Thanks to Geoff Sharp at mediator blah blah . . . for turning us on to this Ohio State Journal of Dispute Resolution article entitled Will this Case Settle?  An Exploration of Mediators' Predictions.

Written by Harvard Law School Assistant Professor, Michael L. Moffitt, this is the best exploration of the perils of evaluative or "predictive" mediation practice I have ever seen. 

The most provocative issue addressed by Moffitt is the mediator's choice to send false signals. 

Moffitt gives four possible reasons a mediator would misrepresent his own evaluation of the likelihood of settlement:  (1)  a simple aversion to delivering unwelcome news; (2) desire for personal gain, i.e., by predicting settlement too early, the mediator could seek to extend the mediation when billing by the hour rather than the day; (3) desire to "do one's job" of being optimstic, i.e., the mediator who believes that his role is to be a "cheerleader" for resolution would predict settlement even if he thought the case were unlikely to settle; and, (4) belief that predicting success will influence the parties.

I have a lot to say about this but no time to say it today.  I invite comments from my readers on both "sides" of the medition table -- mediation advocates (litigators) and mediators.  Better yet, how about hearing from that too often silent or muffled party, the client.

Supreme Court Watch

Say Good Night, Gracie

 

When we tire of our own enthusiasms, we traipse over to the gaping void (right) where we gain a little perspective.

For more frivolity, go to the extended entry for a classic Burns & Allen Christmas.

Continue Reading...
Tags:

Fixed Pies and Third Place

In this week's New Yorker, James Surowiecki reminds us that "business is not a sporting event [and] victory for one company doesn't mean defeat for everyone else."

Surowiecki's article, In Praise of Third Place, concerns the fight for market dominance in the video-game industry.  

The players?  Microsoft's Xbox, Sony's Play-Station 3 and Nintendo's Wii.  

The takeaway? Good news for those of us who continually hector our fellows about collaborative problem-solving and the real social, political and environmental dangers of fixed pie thinking.

By not competiting for the number one video-game slot, Nintendo is "beating" its Goliath competitors.

[Nintendo] has five billion dollars in the bank from years of solid profits, and this past year . . . saw its stock price rise by sixty-five percent.  Sony's game division, by contrast, barely eked out a profit and Microsoft's reportedly lost money.

How could this happen to the Big Boys?  Surowiecki explains:

Markets today are so big -- the global video-game market is now close to thirty billion dollars -- that companies can profit even when they're not on top, as long as they aren't desperately trying to get there.

Want to perform like Nintendo?

The key is to play to your strengths while recognizing your limitations.  Nintendo knew that it could not compete with Microssoft and Sony in the quest to build the ultimate home-entertainment device.  So it decided, with the Wii, to play a different game entirely.  Some pundits are now speculating, ironically, that the simplicity of the Wii may make it a huge hit.

Here's a question for the evolutionary biologists -- of Life's Top Ten Greatest Inventions -- multicellularity, the eye, the brain, language, sex, photosynthesis, death, parisitism, superorganisms and symbiosis, how many arose from competition and how many from collaboration (or is the question itself too simplistic?)

Against Common Wisdom: Who are the Muslim Radicals?

 What Makes a Muslim Radical from Common Ground News.

I'm providing you with the conclusion (and a link) to this fascinating study about the attitudes, religiosity, income, and, education of Muslim radicals.  A must-read for achieving a genuine understanding of the war we continue to fight, increasingly against the will of the American people.

What, then, separates a Muslim moderate from a Muslim radical? Although almost all Muslims believe the West should show more respect for Islam, radicals are more likely to feel that the West threatens and attempts to control their way of life. Moderates, on the other hand, are more eager to build ties with the West through economic development. This divergence of responses offers policymakers a key opportunity to develop strategies to prevent the moderate mainstream from sliding away, and to check the persuasive power of those who would do us harm.

Photo by Chris Hondros (Pakistan)

 

The Mediation Privilege and World AIDS Day

The haunting image at right, entitled Silence, was borrowed from this web site.  In my internet image search for photos depicting confidentiality, I stumbled across it twice and, the second time,  could not pass it by.  Similarly beautiful and enigmatic photos appear on the highlighted web site.    

This image of Silence struck me as particularly poignant because today is World AIDS Day.  

As I've noted before, the only tests of truth I know are two -- beauty and an idea that carries its own contradiction within.    

Silence (confidentiality) in mediation is what makes mediation possible; what permits the parties to take time out from the battlefield where everything we say and every move we make can and will be used against us.   

Private, confidential mediation time is a time when the parties can come together as people rather than as combatants.  And this is true no matter how many zeros follow the first number by which they identify the "value" of their dispute (it could be land or women or rubies; furs or hunting grounds; fishing rights or that most evanescent of properties  -- the product of the creative human spirit -- music, poetry, film, video, web cam.) 

Mediation time is a time when the law allows people to recognize that they share a mutual problem, one that yokes them together.  It is a time when they can give up carrying the conflict's burden alone and recognize that by drilling a hole in the other guy's side of the boat, they will sink their own.

On the other hand, silence and secrets are death to the spirit.  The terrible tragedy of the evangelical minister who was finally unable to keep his sexual preference silent is a good example for World AIDS Day.  The magnitude of the tragedy following his public "outing" makes the word "preference" seem weak and far too, well, preferential, as if one were ordering a meal in a restaurant or choosing a new suit of clothes.  We are, I hear, only as sick as our secrets.

But the digression seems to have become the entire post.  I nevertheless stick with my original plan to pass along, from the ADR Forum, the holding of the below-referenced appellate opinion on the mediation privilege in the context of an arbitration For the World AIDS Day page, click here.  For the (red) campaign and a video message from Bono, click here

from the National Arbitration Forum 

Confidentiality Protections Apply to Hybrid Procedure Consisting of Arbitration and Mediation
Society of Lloyd's v. Moore, No. 1:06-CV-286, 2006 WL 3167735 (S.D. Ohio Nov. 1, 2006)
11/1/2006

A federal district court in Ohio ruled that the confidentiality protections of the Uniform Mediation Act applied to an email sent during the mediation phase of a hybrid dispute resolution procedure that first started with arbitration.

In Society of Lloyd's v. Moore, No. 1:06-CV-286, 2006 WL 3167735 (S.D. Ohio Nov. 1, 2006), Lloyd's sued Moore for alleged fraud. After the Court granted partial summary judgment, the parties agreed to submit the remaining matters to arbitration and mediation...Full Story  

Subscribe to the Free ADR Law & Policy Update here.

The Benefits of Barter

Because I've been building a new business for the past two years and do not have a money tree in my back yard, I've learned to appreciate the value of barter.   

In her ground-breaking legal memoir Alchemy of Race and Rights (Harvard Univ. Press 1992) Columbia Law School Professor Patricia Williams talks about lessons learned in a local "barter circle."

Once upon a time some neighbors of mine included me in their circle of barter. They were in the habit of exchanging eggs and driving lessons, hand-knit sweaters and computer programming, plumbing and calligraphy. I accepted the generosity of their inclusion with gratitude. At first, I felt that, as a lawyer, I had nothing to contribute. What I came to realize with time, however, was that my value to the group was not calculated by the physical items I brought to it. These people included me because they wanted me to be part of their circle, they valued my participation apart from the material things I could offer. So I gave of msyelf to them, and they gave me fruit cakes and dandelion wine and smoked salmon, and in their giving, their goods became provisions. Cradled in this community whose currency was a relational ethic, my stock in myself soared. My value depended on the glorious intangibility, the eloquent invisibility of my just being part of the collective; and in direct response I grew spacious and happy and gentle.

The Benefits of Bartering in Contemporary Commercial Transactions

Professor Williams' paen to barter doesn't sound merely cosy and homey, you say, it positively reeks of flower-child collectivism. What could Professor Williams' little barter circle possibly have to do with settling my $200 million unfair competition lawsuit?

A lot, actually. If you look past the smoked salmon and the dandelion wine, you'll find the phrase "currency [of] relational ethic." Williams is talking about the intangible value of relations as a means of exchange rather than (or in addition to) the numeric value of money.

Understanding Money

We've become so used to valuing most everything in monetary terms, we tend to forget that money is a representation of value rather than value itself. When negotiating a commercial dispute, we all benefit from reminding ourselves that money is simply one medium of exchange -- a good one, but not the only one.

Money is so good at serving as an objective measure of value; a standard of deferred payment, a store of wealth, a criterion for measuring worth and a “universal means to whatever ends are available in the market” (Ingham, Geoffrey MONEY IS A SOCIAL RELATION (2002) 54 Review of Social Economy 507) we often fail to look elsewhere for resources.

Integrative or interest-based negotiations flourish whenever the parties are able to identify tangible goods or services as well as the intangible benefits (apologies, recognition, respect, etc.) that might be available to sweeten a monetary exchange.  

Continue Reading...

Mentor Kenneth Cloke

I talk about Ken in this blog a lot because I am lucky enough to be one of the many mediators and ADR professionals who he mentors, casually, graciously, generously and without reservation.  We all deserve at least one person like this in our professional lives.

Here is an interview with Ken in attorney Stephanie West Allen's fascinating idealawg.

A teaser of the interview with a link to idealawg below.

Legal Highlight #6: Kenneth Cloke


Kenneth Cloke is the sixth Legal Highlight. He is Director of Center for Dispute Resolution, and his newest book is The Crossroads of Conflict: A Journey into the Heart of Dispute Resolution. (Review of Cloke's book.) 

1) Think about your recent experience in the legal profession and of a specific incident or event that made you feel extremely satisfied or proud. Give a brief description of the incident or event. The reasons I felt satisfied or proud were . . .

My recent experiences have produced contradictory feelings. There are things we should all feel proud of about the legal profession and, unfortunately, things we should all be ashamed of. I think we need to be conscious of both. I am, for example, proud of the lawyers who have opposed the extra-legal proceedings and use of what can only be called torture at Guantanamo, and ashamed that there are lawyers who still attempt to justify such proceedings. 

Click here for the full interview.

 

Settlements with Apologies in the News

 

from today's New York Times, U.S. Will Pay $2 Million to Lawyer Wrongly Jailed

By ERIC LICHTBLAU
Published: November 30, 2006

The unusual settlement caps a two-and-a-half-year ordeal that saw the lawyer, Brandon Mayfield, go from being a suspected terrorist operative to a symbol, in the eyes of his supporters, of government overzealousness in the war on terrorism.

“The United States of America apologizes to Mr. Brandon Mayfield and his family for the suffering caused” by his mistaken arrest, the government’s apology began. It added that the Federal Bureau of Investigation, which erroneously linked him to the Madrid bombs through a fingerprinting mistake, had taken steps “to ensure that what happened to Mr. Mayfield and the Mayfield family does not happen again.”

For the remainder of the article, click here.

Continue Reading...

More on the Prisoner Exchange Negotiations

 

The man conducting negotiations between the Palestinians and Israel for the prisoner exchange is Chief of Egyptian Intelligence Service, Omar Suleiman.  Click here for a short article from earlier in the year about Mr. Suleiman and his on-going role in Middle East Negotiations.

Shorts on Conflict Resolution

As I prepare to teach Selected Issues in ADR:  Employment (with master employment mediator Stefan Mason) at the Straus Institute in the Spring of '07, I find myself inspired and amazed at the vast amount of wisdom tucked away in books with names like "Resolving Conflicts at Work," a volume I would be unlikely to pick up unless it had, as it does, Ken Cloke's name attached to it.  

Below, a short excerpt on the necessary attitude toward conflict for true resolution and where that conflict can be located:  

The German philosopher Nietzsche wrote, "when you look into the abyss, the abyss also looks into you."

Looking into your conflict means giving up your illusions, no longer seeing yourself as a victim or other people as enemies.  It means giving up your fear of engaging in honest communication with someone you distrust or dislike.

For example, consider the following:  how far apart are people when they are in conflict?  There are three correct answers:  first, they are an infinite distance apart because they cannot communicate at all; second they are no distance at all because their conflict makes them inseparable; and third, they are exactly one step apart because either of them can reach out and touch the other at any moment.

This leads to a follow-up question:  if this is so, where are their conflicts located?  Again, there are three correct answers:  first, they are located in the mind of each person because each person's attitudes, ideas, emotions and intentions are indispensable to the continuation of the dispute; second, they are located between them because every conflict is a relationship; and, third, they are located around them because all conflicts take place within a system, culture, context or environment that influences how they are conducted.

Kenneth Cloke and Joan Goldsmith, Resolving Conflicts at Work.

Unhappy Lawyers and the Cooperative Hard Wire

Why are We Unhappy?

Maybe it's Because We're Hard Wired to Cooperate

By and large, we're liberal arts majors, right? Theater, film, literature, and art history people. Political scientists, philosophers and sociologists. We like mental puzzles. Not the teasers that undid most of us in math class. No, we like problems that require us to be good at analogies and story telling. To sharpen our Hardy Boys or Nancy Drew detective skills. We're good at figuring out who killed Colonel Mustard in the drawing room. We're born litigators.

And the fighting part? Most of us complain. But it's part of the job so we roll up our sleeves and throw our natural competitive spirit at it. Still, all that good feeling about solving the complicated antitrust problem usually comes to a grinding halt just about the time the opposing brief comes in. I'll admit it if no one else will. I wince when I read these responsive briefs. I mean, I sit at my desk shaking my head and looking at the damn thing sideways as if it would be easier to take if I snuck up on it slowly. Then I pray that they've cited the wrong case, failed to shepardize their most compelling authority, been guilty of the shamelessly misleading ellipsis.

When friends ask me what it is I do during the day if I’m not giving closing arguments to a jury every week like William Shatner does on Boston Legal, I explain it this way: Every morning when I get up, someone else is also preparing for their day. And those people will be dedicating a large part of that day to making me look bad. To finding my mistakes and undermining my opinions. To suggesting that I am -- or directly accusing me of being -- a liar.

"Gee," they respond, "that sounds terrible," before I go on to assure them that I actually enjoy winning and, hey! if you want to win, you've got to suck up a fair amount of losing. At which point they understandably walk away figuring I deserve my lot.

We're Hardwired to Cooperate

So I don't know if it's good news I have to share with you or not. For those pursuing a more cooperative or collaborative legal process, I hope the news is good. Here it is. Neuropsychiatrists who have been taking MRI images of their students' brains during collaboration have discovered that the act of cooperating with another person makes the brain light up with joy. 

Sources:  Emory Brain Imaging Studies Reveal Biological Basis for Human Cooperation; Gintis, Bowles, Boyd & Fahr, Explaning Altruistic Behavior in Humans (2003) 24 Evolution and Human Behavior 153;  Stevens & Hauser,  Why Be Nice?  Psychological Constraints on the Evolution of Cooperation, Trends in Cognitive Sciences;  

Continue Reading...

When You've Got a Tough Negotiation Coming Up . . .

think about the challenges presented by this one

Text from Robert Berger's Voice of America report Egypt Steps up Mediation for Israeli-Palestinian Prisoner Swap    

The leader of the Palestinians' ruling Islamic militant group, Hamas, is meeting Egyptian mediators in Cairo to discuss a possible prisoner swap with Israel.

The leader, Khaled Mashaal, is pushing for the release of 1,400 Palestinian prisoners, in exchange for Israeli soldier Gilad Shalit. Hamas gunmen kidnapped the 19-year-old corporal at an army base on the Gaza border five months ago.

Mashaal blames Israel for the failure to achieve a breakthrough during months of behind-the-scenes negotiations. But, according to Arab media reports, Egypt is trying to get Mashaal to soften his demands.

(to read the remainder of this article, go to the Voice of America News website by clicking here)

For another source on the same story click here.  For an analysis of prior Israeli-Arab prisoner exchanges, click here.   For the Guardian's Special Report on Israel and the Middle East, click here.

We will continue to follow these negotiations, so look for updates here.

Frivolous Claims

It genuinely did not occur to me until I'd been mediating full time for a year that "frivolous" claims most often arise from felt injustices (instances of unfairness in the commercial world) that the law does not recognize.

When attorneys attempt to rectify non-actionable wrongs, they so drastically "spin" their clients' stories that the resulting claims appear to be false and therefore not only frivolous, but malicious.

By the time the parties come to mediation, the legal "story" has often become unrecognizable to all the parties -- a result of client "control" at depositions and pre-trial proceedings in which the "whole story" has been so riddled with holes that it most resembles a piece of Swiss Cheese. 

A good mediator can relocate the original story of injustice; be the agent of reality for the plaintiff's often inflated expectations of recovery; and, re-translate the "frivolous" lawsuit back into the tale of unfairness that made the client seek out counsel in the first place.  

When this is accomplished, the defendant is able to settle the lawsuit without feeling black-mailed, a term that, along with "extortion" is most frequently used by defendants who genuinely do not know what could possibly have motivated the plaintiff to sue them other than greed and malicious ill will.

When the defendant wrestles with the actual, rather the the legal, theory of injustice, the settlement becomes a way of successfully grappling with and resolving what are usually simply business communication or management failures. 

The good news?  You don't need a mediator or even a lawyer to "try this at home." If you are a business person with a legal dispute, try talking to your adversary before you bring in legal counsel.

When you do need an attorney, talk to him about business solutions to to the legal problem.

If you are an attorney with a "client control" problem, bring your client back in from the cold.

As litigators, we tend to forget that our business clients have often negotiated more deals in a single week than we do all year. Engage their creativity and together you will be the best attorney-client team on the block.

Speak Your Clients' Language

Executive summary of "Six Sigma in the Legal Department: Obtaining Measurable Quality Improvements in Discovery Management," (KPMG Advisory) from the Corporate Library; See also KPMG's A Revolution in e-Discovery:  The Persuasive Economics of the Document Analytic Approach

There are two reasons for th[e Six Sigma] report.

First, the issue of discovery, especially "e-discovery" and the importance in litigation of computer files, has become one of vital importance for corporations as even one wrongly or carelessly provided document can have devastating consequences.

Second, legal departments are increasingly being expected to measure themselves along the same lines as operating divisions, and the "six sigma" management tool for setting goals and measuring progress has been proven to be particularly useful.

"The Six Sigma philosophy has had broad application across industries and has equal relevance to the legal profession. Corporate law departments—often viewed as a necessary cost of doing business—can benefit from measuring such important functions as ‘process management,’ ‘efficiency,’ ‘process improvement,’ and ‘cost savings.’  These issues resonate in the minds of GCs, CEOs, chief financial officers (CFOs), and other officers of Six Sigma–influenced organizations.

Outside counsel can benefit from understanding and adopting the Six Sigma approach to help their lawyers speak the same language as their clients from a problem-solving perspective, provide higher-quality deliverables, and improve customer service."

Six Sigma is a very stringent standard, allowing for no more than 3.4 defects per one million "opportunities" (tasks or decisions). This report uses Six Sigma to examine the elements of discovery production and ensure that the material provided is thoroughly understood and evaluated, and board members will find it useful in managing litigation risk.

My step-daughter, Julia Goldberg, who is in her second year at the Stanford Graduate School of Business, has the following to say about Six Sigma:

Six sigma is a quality control standard -- requiring that sub-standard products occur only .001% of the time, or six sigmas away from the mean in terms of mathematical deviations. Six sigma became all the rage in the 1980s or early 1990s, and is basically used for manufacturing processes.

There has been some backlash in applying six sigma for non manufacturing processes -- because it is VERY expensive. Companies have to get people certified in six sigma practices (people become certified and are called black belts) or bring in consultants.  At the end of the end of the day, the benefits are not always worth the costs, particularly in the case of, say, a bakery.

Thanks Julia!!


Negotiating CEO Salaries

"C.E.O employment contracts have become like prenups.  Instead of specifying what the signers will deliver, they concentrate on everyone's rights if things go wrong."  Nell Minow, Editor, Corporate LIbrary.  For an in-depth look at the negotiation of CEO salaries and the forces that are changing the playing field, see today's New York Times article, Signing Up a New Chief in the Age of  Prenups.

More Great Ideas from the Trial Lawyers

The Case on a Single Page

More great ideas from the Trial Lawyer Resource Center.

The Case on a Single Page by trial attorney Gary Hill.

Being overwhelmed by a large case can be demoralizing. Reducing the entire case to a single page can add perspective and a sense of control. Place a single sheet of paper in the landscape position and fold it in half and then in half again. There are now eight sections. Name each section: PreTrial motions, Voir Dire, Opening Statement, Witnesses, Evidence, Charges, Closing Argument. List only what you need in each category to put up your case. This exercise will often point to gaps in the case, suggest themes, or trigger changes in the presentation of the witnesses, evidence or argument. You can also keep this summary of the case in the inside pocket of your suit coat as a security blanket at trial. What a great idea. A very simple way to reduce the case to it’s basics and make certain that you focus on what is important.

The Settlement Equivalent

I prepare for mediations by reducing the parties' factual assertions and legal contentions to a single page of two columns -- placing opposing facts and contentions side by side.  Often, I give the document to the parties so they can:

1.  see what the mediator is thinking (i.e., has she gotten a key point or factual allegation wrong); and,

2.  see their opponent's alternative world hard against their own view of the case.

If you have your own "single page" suggestions, please send them along!

When a Negotiated Resolution Appears Premature . . .

. . . understanding cognitive biases can help the parties settle 

I've recently helped several small businesses work out the termination or renewal of business ventures in response to accusations of fraud and the usurpation of corporate opportunities. Although none of these mediations has involved Fortune 500 companies, the owners faced potential losses in the hundreds of thousands to millions of dollars.

Because the money expended on lawyers and forensic accountants hits the bottom line of small businesses faster and harder than those spent by larger companies, critical decisions must often be made in the absence of verified accounting and factual information.

When it would cost tens to hundreds of thousands of dollars to conduct the discovery necessary to truly know your best alternative to a negotiated agreement, what negotiation tools might help your beleagured and embattled commercial clients?

First the Hypothetical

With names and facts altered to protect confidentiality, consider the recent negotiated settlement of a corporate dissolution and accounting action.

The owners, Tom Jones and Bob Smith have been profitably importing restaurant equipment from Hong Kong since the early '90s. In the year prior to litigation, their business -- RSI -- began to experience difficulty in acquiring the same quality goods in a similar price range as it had in earlier years. At the same time high quality goods became scarce, Jones entered into a business venture with a restaurant supply wholesaler selling equipment similar to that imported by RSI.  Smith had also entered a new business venture with a restaurant equipment retailer. 

You don't need to understand the illusory correlation bias to see the lawsuit coming. 

The Business Dissolution Litigation

Smith sues for RSI's dissolution and seeks an accounting, accusing Jones of various business torts.  Jones files a cross-complaint accusing Smith of diverting to his new retail business imports that would have gone to RSI. The RSI warehouse is currently filled with goods imported from an inferior secondary market. Smith claims RSI will be unable to sell these goods for a profit. Jones claims they can be sold for a $500,000 and $600,000 profit.

The parties schedule an early mediation in an effort to avoid crushing legal fees.

Mediator Intervention 

At the commencement of the mediation, each party tells the mediator that he is "absolutely certain" that his valuation of the mechanise is "right." 

How do the parties calculate their potential damages (to analyze their Best Alternative to a Negotiated Agreement) or value the worth of the business for mutual buy-out offers in the face of such wildly competing claims?

Continue Reading...

Cal Supremes Reverse Internet Defamation Decision

This just in from the Wall Street Journal Law Blog

The California Supreme Court today reversed an appeals court decision in a much-watched Internet case, ruling that individuals are generally immune from liability for transmitting over the Internet content that was authored by someone else.

Legal experts say the decision is in line with prior court rulings on immunity for transmitting content online originating from someone else, who themselves may still be held liable for defamation or other claims. The California court ruling came in the case of Stephen J. Barrett et al. v. Ilena Rosenthal (click here for the 41-page ruling). The case concerned an article Rosenthal received via email and posted on two Web newsgroups that the plaintiffs argued was defamatory.

“This opinion reinforces the broad reach of federal statutory immunization for content published by third-parties online,” said Eric Goldman, Assistant Professor at Santa Clara University School of Law and author of the author of the Technology and Marketing Law Blog. “This case is significant because it shuts down all of the workarounds people have been trying to find.”

Mediation -- a Cure for Homelessness

 

Ken Cloke once said that mediation could cure cancer.  And he wasn't kidding.  But I'll tell that story later. 

Here's an article from politics.co.uk that not only says mediation can prevent homelessness, but also that the British government is funding a pilot program to make that mediation magic happen.

The full article is quoted verbatim below. 

Relate: Mediation can prevent homelessness
Tuesday, 14 Nov 2006 10:55

Relationship organisation Relate has praised the government for announcing mediation measures aimed at helping avoid homelessness.

Communities secretary Ruth Kelly will today announce measures – including mediation between families – to help get vulnerably housed young people back on their feet.

Relate's head of public policy, Jenny North, noted family breakdown was the major cause of homelessness for young people – government figures show this accounts for nearly a quarter of the 94,000 cases accepted by local authorities last year.

She said the government's commitment to the issue was clear from the backing Relate had received in developing a homelessness mediation service, and a standards framework.

"By working with families to reduce conflict and build bridges, we can help young people stay in the family home, and avoid homelessness," Ms North added.

Relate today launches a pilot mediation service across 16 Relate centres nationwide to coincide with the 40th anniversary of seminal television drama Cathy Come Home.

Tags:

Research on the Art of Negotiation

In a year 2000 article published in the Annual Review of Psychology, Harvard Business School Professor Kathleen L. Valley and Senior Research Fellow Max H. Bazerman, with colleagues Jared R. Curhan and Don A. Moore, synthesized negotiation studies to date, and pinpointed five emerging areas of thought.  

For the full article on this effort, see the Harvard Business School Working Knowledge article The Emerging Art of Negotiation

We provide only the executive summary here.  

1.     Preconceptions Count

"Almost everyone who walks into a negotiation," say the authors, "already holds a fairly strong preconception of how they expect it to go down. How such . . . 'mental models' actually control the outcome of a negotiation is one of the important new areas of investigation." 

Experiments have shown that the degree of cooperation among participants was affected far more by what the game was called—the "Community Game" or "Wall Street Game"—than by the individual dispositions of the participants. 

2.  Ethical  Behavior

Laboratory research on negotiation ethics is beginning to reveal the flexibility and ambiguity in "standards" applied by negotiation "players."  

Once again confirming what common sense tells us, researchers are finding that people see themselves as more ethical than the next person, but justify their own ethically questionable behavior as self-defense.

Hence the term "defense budget" as we wage a preemptive war against, well, not against Iraq exactly, but against the present chaos there.

 

Continue Reading...

Your Opponent's Point of View

I was once a plaintiff's personal injury attorney.  I don't talk about this much.  Everyone I knew in law school, most particularly my professors, were aghast when I told them that I'd be joining a two-man plaintiff's personal injury firm after law school.  I had the resume of a student who could have gone to a "big" firm with the accompanying "big" salary and "big" status. 

But I wanted to try cases.  I was terrified of trying cases.  Which was, I think, my number one motivation to simply be handed the file on the slip 'n fall at the local Ralph's and pushed into the courtroom.  Sink or swim.  I also believed in the cause.

There are a lot of reasons why I left that practice after three years and joined what passed for a "big" law firm in the town I was then practicing in  -- Sacramento (the still great Weintraub Genshlea law firm).  But I never lost the "edge" I developed representing injured plaintiffs.  Nor have I lost my deep respect for (and, okay, I'll admit it) attraction to, trial lawyers.

Confessional out of the way, one of my blogging buddies turned me on to this FABULOUS trial lawyer's blog -- Trial Lawyer Resource Center. 

If you want to get into the mind of your opponent, you couldn't go wrong by doing so in the the systematic analytic fashion recommended by trial attorney John Romano of West Palm Beach in Predicting Your Opponent's Strategy -- the O.S.P.A. Model.

Last year, mediating an age discrimination case, I asked defendant's in-house counsel (who seemed plenty bright and fiercely competitive) to craft a closing argument for the Plaintiff while I was in separate caucus with her opponent.  I did this because I didn't seem to be making any progress in getting her to see the risks her company was facing if the case went to trial.  

I'd love to say that this resulted in settlement (mediators and trial lawyers love to publically talk about their successes, rarely their failures).  It didn't.  Defense counsel did make one hell of a closing argument for the Plaintiff, however.  At least I knew she understood the risks and I was able to move on to discuss the real reasons the case wasn't settling.  

I've followed up that case but the defense remains intransigent.  They must know something I don't.

In any event, I highly recommend John's article on a systematic analysis of your opponent's strategy.  I can think of a couple of my own cases -- one's where I repeatedly asked myself -- "what can they possibly be thinking?" -- that could have benefited from this process.

Decision Analysis

Do you have too many balls up in the air?  Do you need to close the deal; accept the job offer; settle the case; choose the financial plan that will put the kids through college or see you into retirement?

What you need is a rational, thoughtful, organized way of making a decision.

I've read many articles about decision trees and decision analysis, but none so clear as that by IAM mediator Eleanor Barr.

Click here and your worries are on their way to being, if not over, at least mitigated by some hard thought about the less than infinite possibilities in the not so distant future.

A fight with my father

Because it's Sunday, a day often set aside for reflection, I'm posting verbatim without comment Geoff Sharp's "Fight with my Father" and recommending his mediator blah blah blog as a way to stay sane in a conflict-ridden world.

 

A fight with my father: a mediator reflects

Dear Diary
[15 November 06]

Listen mate, if - and more likely when - you're in conflict again, don't think like a mediator.

Next time take a moment to feel that gut wrenching anger that was like hatred in there somewhere for a split second, but quickly turned to a slow-burn and overtime, to sadness then dull sorrow.

Then explore that knot in your stomach as you stewed, having walked away from the fight. Feel the angst at having said stuff now regretted, but not able to be apologised for just yet.

Dwell in the experience of those around you who don't understand that you're so upset or are too busy with their own lives to notice.

Know that time is precious now.

Then later feel that extraordinary dawning of distance, when perspective imposes itself.

And a loving life resumes...

And reflect that every week you sit with people in this same space.

Don't ever forget that.

Tags:

Caveat Lawyers!!

HOW NOT TO USE THE BLOGOSPHERE

Missteps abound in the Blogsophere and they are not just technological.  They are, I fear, also  generational. 

The following post (Top UK Law Firm Humbled in Blogosphere) is from the UK Law and Technology Blog, Human Law.  

The lesson?  Canned legal warnings and preemptive legal strikes transmitted to potential adversaries who are under 35  will meet with the same shoulder-shrugging, eye-rolling, "whatever'ing" of your local teenager.  Entire blog post quoted verbatim below.

 Baker and McKenzie, has received some increasing(and not complimentary) attention on the blogosphere.  What are the reasons for this?

It follows the pre-emptive strike written by the law firm on behalf of their client, Infront Sports and Media to the american weblog, Boing Boing. Baker and McKenzie observed that their client 'anticipates the possibility of unauthorized streaming and downloading of FIFA World Cup matches.'

The letter goes on to warn that the law firm will be 'actively monitoring your website ... to identify unlawful activity and will, if necessary, take appropriate action to ensure the protection of Infront's rights of those licenses.'

Boing Boing's response (referring to B&M's client as a "hideous company") is firm.

 “Oh brother. I don't even know what the FIFA World Cup is. I'm guessing it's soccer, which I hate just as much as any other pro sport. Every editor at Boing Boing detests professional sports, and we would sooner stream a video of a crumpled up paper napkin in the corner of a room than show some jackasses running after a ball. The only time we would ever post anything about pro-sports would be to make fun of them.”

Human Law's comment?

My take on this is that most law firms do not appreciate the significance of blogs and the capacity of an organisation and individual to hit back on the web. This story is dominating the blogosphere at the moment yet still most law firms have no idea how potentially damaging blogs can be to their(and their clients) business.

Just remember, be careful out there!

Tough Bargaining

"Tough" or competitive bargaining techniques include making high initial demands; maintaining those high level demands throughout the course of the negotiation; making few (and small) concessions; and, adhering to a high level of aspiration for your own side.

Competitive negotiators gather as much information from their competitors as they can; give as little information about their own position as possible; bluff, mislead; and threaten retaliation if the other side does not comply.

We'll discuss why you might not want to bargain competitively in later posts. The purpose of this short post is to help the more cooperative bargainer deal with a tough guy.

Competitive negotiators:

1. sub-divide concessions by dividing issues into their smallest possible parts,
offering concessions only on the sub-parts;
2. make ambiguous or hypothetical offers that they can later disown;
3. demand principled justifications for the competitive bargainer's positions; and,
4. respond to intransigence with intransigence, cooperation with cooperation. 

Once you've worn the competitive bargainer down, the following questions will help you turn the negotiation into a more cooperative endeavor:

• what does your opponent think a "fair" solution to the problem might be
• which issues are most important to your opponent and which less or unimportant
• how would your opponent react to his own proposal if he were on your side of the table
• what are the intangible costs and hidden business costs of continuing the dispute or failing to close the deal
• what would a future without the dispute or with the deal in place look like

The greatest mistake of every young negotiator is to respond to competitive bargaining moves by offering concessions. The "tit for tat" games we engaged in on the playground are reflexively played out in every negotiation. You must respond to challenge with strength and resolve. The competitive bargainer will always out-negotiate his cooperative opponent unless the cooperative negotiator is prepared to push back when pushed.

The secret of the successful negotiator is her refusal to walk out of the room until the deal is done. Push back if need be, but do not cut and run.

For more on competitive and distributive bargaining, see Beyond Intractability's Knowledge Based Essay on the topic here.

Bargaining Strength

Negotiators have much to learn from game theorists. In the book, Higgling: Transactors and Their Markets in the History of Economics, edited by Mary S. Morgan (Duke University Press: Durham 1994) contributor Robert J. Leonard, lists six factors that affect bargaining outcomes as follows:

1. General bargaining dispositions. Tough bargainers are dogmatic, possess a strong sense of themselves and have a highly competitive orientation in regard to personal strength.

2. Payoff system. A negotiator's willingness to make concessions is strongly influenced by what he believes to be the minimum or maximum necessary to provide him with any benefit of the bargain. Other "payoff system" factors include time pressure, the cost of no agreement, the threat capacity of one's bargaining partner and the size of payoffs.

3. Social relationship with the opponent. Not surprisingly, negotiators tend to be more cooperative when they have a friendly social relationship or when there are reasons to be concerned about the other's interests. This is why hostage negotiators always ask captors to take food orders from, and inquire about the medical needs of, their captives. Once the captors begin to take care of their victims, they begin to actually care about their charges.  

4.  Moral Appeals.  Research has proven that moral appeals result in greater concessions by the one from whom concessions are sought. The negotiator who suggests that certain concessions are necessary to satisfy his basic needs or expresses the belief that his negotiating partner will treat him fairly does better than the negotiator who does not appeal to moral considerations. This is an example of "trading power for sympathy," a bargaining tactic often referenced in Ken Cloke's writings.

Continue Reading...

Effect of Invalid Out-of-State Mediation Clauses in Construction Contracts

I'm providing this legal update without myself reading the opinion, for which I've provided a link.  I must admit that the summary sent to me is perplexing.  I will read this case when I have the time and will update this post at that time.  If anyone wants to beat me to it and explain the holding in a comment, please do feel free to do so.  That said, here's the summary:  

California Code of Civil Procedure Sec. 410.42 renders null and void any provision in a construction contract "which purports to require any dispute between the parties to be litigated, arbitrated, or otherwise determined outside this state" where the construction project is located in California.

In the recent case of Templeton Development Corporation v. Superior Court (Dick Emard Electric, Inc.) (2006 SOS 5560) the Third District Court of Appeal held that section 410.42 nullifies a contractual provision requiring that parties to a construction dispute mediate outside California as a prerequisite to arbitration or litigation over their dispute.

Where defendant contractor refused to mediate in California, plaintiff subcontractor was not precluded from suing subject to stay so that action could be mediated or arbitrated in this state.

Connections

Now that we have one foot (ok, two) in the blogsophere, we'll "hip" you to interesting blogs we come across.  Below is an entry (verbatim) from Bruno Giussani's blog Lunch Over IP.  Our friend and colleague, the brilliant and masterful commercial arbitrator and mediator Deborah Rothman turned us on to Fast Company's 100 Next Best Blogs where we found Giussani.

Thanks Deborah.  For everything. 

Giussani is a business writer and author in Switzerland who blogs about connections among a wide variety of sources, from Marx to Formula One pit crews, to illustrate how consumer-generated content is challenging the old notions of media, as "a thin layer of structure is put on an expanding boiling pot of ideas." 

You'll need to click on the link below and then scroll down to view the great video of Quadir that is mentioned her.  

Iqbal Quadir and the real power of the cell phone

Iqbal Quadir is the founder of GrameenPhone, the company that -- with the help of microcredit pioneer and recent Nobel Peace Prize laureate Muhammad Yunus -- brought cellular telephony to rural Bangladesh, and which is now the country's largest operator. I've told his story in my book "Roam. Making Sense of the Wireless Internet", and invited him to speak at TEDGLOBAL last year in Oxford. Here is his newly released full TEDGLOBAL speech (16 minutes) in video, where he tells about living in a village as a kid and having to walk for hours to alert a doctor just to discover he wasn't there, and about a similar experience years later, working as a banker in New York, which brought him to realize that "connectivity is productivity". He also discusses the triple impact of bringing phones to villagers - mostly women: "it provides the woman with a business opportunity, it connects the whole village to the world, and it generates over time a culture of entrepreneurship which is key for any economic development". It's a great, inspiring story. 

Iqbal, who's now at MIT, is currently working on using a similar approach for dotting developing countries with local micro-generators for producing electricity.

Technorati Tags: , , , , , , , , ,

Email thisAdd to del.icio.us

Mediation in a Blink

In his book Blink, Malcolm Gladwell uses the term "rapid cognition" in reference to what most of us think of as intuition. Gladwell avoids the "i" word because he does not want his readers thinking he's referring to emotional responses. Rapid cognition, he stresses, refers to our rational thoughts and impressions. Though one suspects that Gladwell steers clear of emotion so he won't be called a "girlie man," he does in fact have a more serious purpose in mind.

Gladwell explains:

I think that what goes on in that first two seconds [of thought] is perfectly rational. It's thinking -- its just thinking that moves a little faster and operates a little more mysteriously than the kind of deliberate, conscious decision-making that we usually associate with "thinking."

According to Gladwell, our rapid cognition often produces far better results than our painstaking analytic analyses of the vast amounts of information we professionals routinely gather.

Diagnosing Heart Attacks with "Incomplete" Information

To demonstrate his point, Gladwell tells the story of one hospital's attempt to encourage its physicians to use their RC in diagnosing heart attacks. The hospital instructed its entire staff of emergency room physicians to gather less information concerning their patients' condition before attempting to diagnose a heart attack.

This information-limiting scheme, allowed the doctors to zero in on just a few critical pieces of information -- like blood pressure and the EKG -- while ignoring everything else, like the patient's age and weight and medical history. 

The physicians resisted of course, because they were committed to the idea that more information is always better.   When forced to rely upon limited information however, the accuracy of diagnoses in the ER increased dramatically.  

Continue Reading...

Negotiating Past Impasse

"The negotiation," say seasoned mediators, "does not begin until the parties reach impasse."

I always liked this phrase. It implies the kind of hard-headed can-do attitude I'd seek out in my own negotiation partner. It is resonant of those early injunctions of the trial attorneys who trained me. Though, come to think of it, none of those is suitable for a "family" blog.

I have to admit that my understanding of the impasse busting phrase took a while to sneak up on me. Having mediated a couple hundred settlement discussions now, its meaning is obvious.

Continue Reading...

Rationalizing Numbers


I won $200 at Morongo recently, accompanying my husband to one of his law firm's business development events. I always think gambling (excuse me, gaming) outings are good for lawyers and business people -- the litigation risk- taking analogies being so plentiful.

The lesson from this trip, however, was not about sunk costs or risk aversion. It was about my own subjective experience of money.

"Don't worry," I was saying to Mr. Thrifty, as I pulled three twenties from my wallet to pay for an afternoon gourmet picnic in Griffith Park. "I'm paying for it with the casino's money."

Thrifty gently reminded me that this was the third time I'd spent my winnings --the first on that spa visit before I hit the gaming floor; the second on a few Crate and Barrel essentials we picked up at the outlet stores so conveniently located next to the hotel; and, the third for our picnic in the park. Actually, by the time we were collecting our food tickets, I'd also "spent" my unexpected windfall on the gift I'd planned to buy for my father's birthday the following week. 

Continue Reading...

Mediation vBlog Project

Why the Goat?

Geoff Sharpe, a New Zealand mediator, has one of the best blogs on mediation's block, Mediator blah blah.  He's bright, funny, irreverant and endlessly creative.

Now Geoff is bringing ADR bloggers together with the Mediation vBlog Project.  As Geoff explains, the purpose of the project is to:

take advantage of recent video sharing technology to post short video clips of mediators everywhere at work. The more 'live' the better.

Geoff is used to keeping it simple.  He says:

[t]he site provides a platform for mediators from around the globe to share their skills by video. Simple really. Let's roll!

I guess I shouldn't have given that pod camera thing-y to my step-son in Honolulu who's as likely to use it as I was.  The rest of you, join the YouTube generation!

On the Internet, No One Knows You're a Dog


Trusting Your Adversary's Bottom Line

It was 7 o'clock on a mid-summer evening and the HMO's representative was packing up his brief case. "I appreciate your hard work," he was saying, "but I simply don't have the authority to compromise any further."

Though we'd only met that morning, I was inclined to believe him because he'd played straight with me throughout the day. Still, no one ever tells you their true bottom line and the number from which Mr. HMO refused to budge seemed odd to me. $124,000. It didn't feel like impasse.

The facts were simple and undisputed. The HMO made bookkeeping errors. As a result, they overpaid Dr. X $200,000 during the previous three years. Dr. X had no good defense to repayment other than an allegedly failing practice and general lack of assets. Business reverses. Divorce. That sort of thing.

Continue Reading...

Public Conversations Project

 

The Southern California Mediation Association recently presented the Public Conversations Project with an award for its work in promoting public dialogue on divisive issues.  If you turn from CNN in disgust or if FOX News sends you running for the Daily Show, now's the time to check out PRC.     

Have we ever been this divided? How do we identify ourselves? Democrat and Republican? Red State or Blue? Men and Women? White and Black? Rich, poor, "comfortable," working or middle class? Christian, Muslim and Jew? Mediators, lawyers, social workers, therapists, academics. 

The 13th century Muslim mystic, Rumi (translated here by Coleman Barks) wrote:

I, you, he, she, we
In the garden of mystic lovers,
these are not true distinctions.

Rumi got it right 800 years ago. These superficial differences among us are "not true distinctions." That being said, here are PCP's "Eleven Tips for Making a Hard Conversation Work.

Continue Reading...

The Office on Dispute Resolution

 

How did I miss this hilarious transcript of "the Office" episode about mediation? I re-print it in full here from Joel A. Schoenmeyer's excellent Death and Taxes Law Blog.  

As Joel explains, the participants are Michael (the office manager) and two employees in the accounting department, Angela and Oscar, who are fighting over whether Angela should be able to display her poster of babies -- in diapers, hats and sunglasses -- playing saxophones.

 Michael holds a 3-ring binder with the title "A Mediators Toolchest."

Michael: "A Mediators Toolchest." OK. Well, before we get started, you should know that there are five different styles of conflict. [In kung fu-ish voice] My Shaolin Temple Style defeats your Monkey Style.

Angela: Can we go? I have a lot of work to do.

Michael: No. This is important. OK. The first style is lose-lose.

Oscar: What's the next one?

Continue Reading...

The Tip of the Ice Berg

INTEGRATIVE OR INTEREST-BASED BARGAINING IN CONSTRUCTION DEFECT LITIGATION

I had the great good fortune to study construction defect mediation recently with two masters of the trade,George Calkins and the Hon. Kevin W. Midlam (Ret.). These two know their way around a construction site; a courtroom; an insurance policy; the law; and, ways to manage and resolve complex construction litigation better than anyone I've ever met.

Though we didn't engage in much "mediator speak" at the seminar -- integrative bargaining and the like -- it's clear that you need to know what Calkins and Midlam have to teach if you want to explore anything other than the tip of the CD iceberg. I did, however, tell one interest-based negotiation story in class that piqued the curiosity of a few classmates. Because it illustrates the potential to reach the parties' interests when you don't know what a cripple wall is, I repeat it here.

I dropped by Judge X's courtroom not long ago as she and Mediator Y were helping the parties settle up with the last couple of subcontractors involved in a Southern California residential development. The sub and his attorney were served late in the case; substantial attorneys' fees had already been expended; and, and the sub's attorney had promised not only complete victory, but reimbursement of all attorneys' fees in the process.

Mediator Y had reached impasse and Judge X was on the bench. They thought they could get the contractor to cut the sub loose for a dismissal with mutual general releases. The sub and his attorney were resisting this generous offer. Since I'd dropped by, could I help?

Sitting in the Judge's chambers, the sub's attorney immediately launched into a tirade about the injustice of his client's having being dragged into the litigation; his planned strategy for victory at the upcoming trial and the reasons that victory would be capped by a successful malicious prosecution action. The sub himself seemed enthralled with his pit-bull counsel and all discussion about the merits of their position made both men dig their heels in deeper.

I'm not certain when I began to realize that the attorney's bravado signaled something closer to a plea for help than a cry to battle. The thought surely originated when I started asking questions about the likelihood of victory in hard percentages.

Continue Reading...

The Power of Beauty

Nature gives you the face you have at 20; it is up to you to merit the face you have at 50. -- Coco Chanel

A local judge who has four beautiful young law students working for him this summer asks me how to deal with inappropriate attorney comments about their youth and beauty. For those men over 35 reading this column, young women lawyers do not appreciate being told they are young or beautiful in a professional setting. And they particularly dislike being called girls.

More important is the whole question of beauty -- what it is and what magic it can perform. For negotiation purposes, we ask whether attractive attorneys and their clients can get a better deal than their less attractive peers. At least some of the answers to that question can be found in Coco Chanel's famous comment about beauty quoted above. But first the research.

Beauty is a Powerful Tool of Persuasion

Assuming that the "hits" a quality-describing word elicits from a search engine indicate the relative importance the quality described, I googled "beauty" and "intelligence" this morning. Beauty edged out intelligence by only a slight margin -- garnering 697 million to the 652 million hits generated by intelligence. For what it's worth, people apparently aren't so interested in coupling these two qualities. Searching both beauty and intelligence offered up only 26 million hits.

Because the young women law clerks I spoke to last week assumed that men fascinated by their beauty would not respect their intelligence, this morning's blog should cheer them up.

The Research

In the early 1980's, social science researchers found that physically attractive people are not only considered more intelligent and competent than their less fetching peers, but are presumed more competent in fields completely unrelated to physical attractiveness -- such as piloting an airplane. Other research studies followed, showing that we also expect physically attractive men and women to be more trustworthy, reliable and charitable than their less attractive peers, as well as better educated, stronger, and wiser.

Studies on electoral habits have shown that attractive candidates receive as many as two and a half times the number of votes as unattractive candidates and that voters do not realize their bias. Whether this confirms or disproves the adage that politics is show business for ugly people is up to you.

The influence of beauty does not stop at the political choices we make. Our judicial process is also susceptible to the influences of body dimension and bone structure. Researchers have found that attractive male criminal defendants are twice as likely to avoid jail time as unattractive miscreants. The relative good looks of civil litigants also influences juries, which award twice the damages when plaintiff is better looking than the defendant and half the compensation when the defendant is more physically attractive than the plaintiff.

As Robert Cialdini wrote:

Good looking people enjoy an enormous social advantage in our culture. They are better liked, more persuasive, more frequently assisted, and seen as possessing more desirable personality traits and greater intellectual capacities. It appears that the social benefits of good looks begin to accumulate quite early. Research on elementary school children show that adults view aggressive acts as less naughty when performed by an attractive child and that teachers presume good-looking children to be more intelligent that their less attractive classmates.

Continue Reading...

Conspiracy Theories and Granfalloons

 

Every seasoned trial lawyer knows that in the absence of critical information, juries simply make stuff up to fill in the gaps. They, and we, do this semi-consciously and reflexively.

Psychologists tell us that we are not only "meaning making" beings, but that we are all born conspiracy theorists. Viewing a field of nonsensical, unrelated data, we naturally begin to "connect the dots" - to organize the information into a coherent, and often compelling, narrative.

Pattern making or conspiracy theorizing is a human survival mechanism. We have never been the fastest or the biggest creatures on the planet. We don't have the sharpest teeth or blend in all that well with the scenery. Our soft, easily punctured skin is not covered with a protective shell. In a pinch, we can't take a running leap and fly away from land-bound carnivores who might make us their prey.

We are, however, the canniest creatures on the planet. To avoid the tiger who made lunch of our best comrade, we surveyed the scene and committed the pattern of otherwise unrelated details to memory. Five banyan trees, a narrow stream, and, a pile of rubble left by a recent avalanche means "there are tigers here."

Couple this with Fundamental Attribution Error ("FAE") and you have all of the ingredients necessary to blame inadvertently caused harm on elaborate conspiracies cooked up by our untrustworthy companions -- FAE being our universal tendency to over-emphasize the role of others' negative personality traits to explain why harm befell us.

So it is with our legal adversaries. Once the channels of communication have been severed by the filing of a lawsuit, attorneys and clients alike begin to make up "what really happened" based upon predispositions; scattered conversations; faulty memories; and, scraps of documentation.

Continue Reading...

Is Litigation a Better Alternative to a Negotiated Agreement?

I was thinking immodestly about what a great deal my own mediation fees were the other day.  A deposition transcript alone, I was thinking, must cost only a little less than my half day fee.  Casting about the internet for a good source on the cost of a deposition, I ran across attorney-mediator Thomas A. Cohen's article, Anatomy of a Lawsuit, which he has graciously given me permission to re-print for you here.

Even the most savvy business executive could benefit from reading this step-by-step guide to the great American pass time, litigation.  

ANATOMY OF A LAWSUIT

by Thomas A. Cohen

So. You want your piece of the American dream. You want to do the dance sensation that is sweeping the nation. You want your ship to come in. In short, you want to file a lawsuit. Here’s what you can expect: the steps involved, the costs, and the likely result.

We will assume that you have cleared the first hurdles: you are aggrieved; the law can furnish relief; and there appears to be some reasonable chance of winning and collecting the judgment. We will also assume that you can assert jurisdiction over the defendant in either State or Federal court.

A lawsuit begins when your attorney drafts a complaint. This is a written pleading which identifies the legal and factual contentions involved, and sets forth what a party proposes to prove at trial so that his opponent will know what contentions he must be prepared to meet. The complexity of the complaint varies with the complexity of the issues to be tried. At the simplest level, certain disputes are so run of the mill that a Judicial Council form complaint may be filled out by checking certain boxes and filling in a few sentences of narrative. For example, a form complaint may be used for the collection of a written promissory note. In contrast, a class action alleging that Hollywood studios have conspired to deprive writers of profits from feature films (an actual pending suit) requires significant detail covering many pages.

The complaint is filed with the court and then served with a summons on the defendant. The filing fee in California Superior Court is $185; in federal court it is $120. The summons and complaint generally must be served by personal delivery to the defendant. Simple local service of process costs from $25 to $50. A summons is a one page form which is completed and signed by the attorney, and filed with the court. When properly served, it requires the defendant to file a written response within a given number of days. In California a defendant has 30 days to file a written response. Failure to file a response results in a default judgment against the defendant. If unchallenged, this default judgment is as valid as a jury verdict. Thus, the penalty for failing to respond to a lawsuit can be severe, and it is the rare solvent defendant who ignores a properly served complaint.

Generally, a defendant responds to a complaint with a pleading called an answer. This document, which must be filed with the court, can often be very simple. While not available in all cases, a general denial of all allegations will often suffice. Each defendant must pay a filing fee in the same amount as the plaintiff’s fee. The defendant is not limited to filing an answer. Instead, or in addition, he may file a motion to dismiss/demurrer, or a cross complaint/counterclaim. Different terms are used in state and federal court, but the essence of the pleading is the same.

Continue Reading...

Positional Bargaining

Your Clients Would Rather Be Happy than Right

For the third time that day, the Bank's CEO was saying, "if I felt we'd treated her unfairly, I'd put some money on the table" and for the third time that day, the Plaintiff's attorney responded with one or more of the several legal positions he was certain would defeat the pending summary judgment motion.

My friend the employment mediator was telling me this story at the Starbucks located in the wide courtyard outside the downtown Los Angeles Superior Court.

"Two things kept nagging at me," he said. "First was the Bank's promise to pay the plaintiff $30,000 during her first three months of employment -- only $2,000 of which she'd received. Second, was her termination during her first week on the job. No one questioned the $30,000 promise, but everyone, including plaintiff's attorney, believed the subsequent written employment contract trumped the oral promise. Plaintiff's legal theory involved a complicated conspiracy by the branch manager and gender discrimination. The Complaint didn't even seek the $30K as damages."

I sipped my latte and smiled, knowing it would have taken me at least three repetitions of the CEO's "fairness" comment to get it as well.

"So what did you do?" I asked, as lawyers on their way to the morning calendar call surged around us.

"I finally said, 'what about the $30,000?' of course." He was grinning now, and shaking his head in that abashed way we do when we think we should have figured out the problem long, long before we actually do.

"And?"

 

 

 

Continue Reading...

Loss Aversion

 

Negotiating with a Full Deck

As we all know, negotiating isn't like gambling, negotiating is gambling. All negotiations require the bargainers to evaluate the potential risks and likely benefits of any offered deal -- whether it be a million dollar demand to settle a lawsuit or a $20 offer to try out a new internet service. Since we can can never truly know the mind of another nor predict the future, we should, at a minimum, know our own propensities in regard to risk as well as our best alternatives to a negotiated agreement ("BATNA").

Recent Research on Loss Aversion

Fellow legal blogger, law professor and commercial litigator Michael Webster reports on the most recent research on loss aversion as follows:

Over at the Neuroeconomics blog, they ask are we bad forecasters of loss? In the economic literature, loss aversion is described as turning down risks or gambles with large chance of loss, but with a positive expected value. For example, consider wagering $50 on a bet that returns $200 30% of the time and 70% of the time nothing. Even though the bet has an expected value of $60, which is greater than $50, most people will not play this bet. What is the basis for risk aversion?

Here is Neuroeconomics' conclusion:

Predications of emotional impact weigh heavily on decisions. In fact, people avoid risk even when faced with the prospect of large gain, predicting loss will hurt them much more than an equal gain will please them. If that is true, this phenomenon (termed loss aversion) is simply a rational product of accurate affective forecasting. Currently, research seems split on this question. Studies have indicated that loss induces more intense neural activity, indicating that our forecasting may be valid. However, behavioral economics generally proposes that we are bad forecasters, and studies show that we consistently overestimate the intensity of emotion from life tragedy.

In a new study, participants effectively minimized impact of loss after a game of luck using various coping mechanisms, such as dissonance reduction,self-affirmation, motivated reasoning, and positive illusions. Researchers found that "there was no evidence that losing actually had a greater emotional impact than winning," showing we are indeed poor loss forecasters".

Continue Reading...

Negotiation Links

This is Your Brain on Neuroscience

Better Decision Making through Neurochemistry

OK, this is the stuff that makes me wish I had a science brain instead of a literature brain. Can you guys over at Decision Science News and the Neuroeconomics Blog please explain the firing of orbitofrontal cortex neurons or the dopaminergic system irregularities that account for science/math disabilities among literature majors and law school students while I compare and contrast semiotic decision science in Moby Dick with the new neuroeconomic historicism in Bleak House? You have twenty minutes. You may turn your papers over . . . . . . . . . . . . . . . . . . . . . . NOW!!

But seriously folks. The math/science/economics majors who stumbled their way into law school for reasons known only to their psychoanalysts (or here in California, their Kabbala teachers) shouldn't miss out on the new research being tracked daily by Steve Seletta, unsung summer research fellows like Nikki Sullivan, and Director Kevin McCabe along with their colleagues at the Center for the Study of NeuroeconomicsatGeorge Mason University.

It's heady stuff (no pun intended). Once in awhile I actually understand it and on fewer, but no less exciting occasions, I find it applicable to what we'll call negotiation "science" for 30 seconds so we can "teach the controversy" (could Darwinian natural selection theory explain the development of the rule against perpetuities or factual impossibility in criminal law? I don't think so!)

But don't stop there. Dan Goldstein at the London Business School, teaches and blogs about "Decision Science" in his capacity as Assistant Professor of Marketing. He's been mentioned by social, behavioral and cognitive science popularizer Malcolm Gladwell (Blink and The Tipping Point) so you know he must be easier to understand than the true scientists at George Mason U. And the photo on his web page is pretty cute.

But truly, I'm grateful to the cognitive, neuro- and decision science guys (and women) for giving me something to crack my head open over other than dark matter, black holes and string theory, all of which remain mysterious, but have the same strong pull on my randomly drifting attention as freeway accidents do for Southern California motorists. And you can never use particle physics to help explain your last business negotiation.

"What is the purpose of time," asked eminent physicist Stephen Hawking. "To keep everything from happening at once" he replied. This is what writers and scientists have in common. We all question first principles. It's not a perfect match but it's a start.

Breaking Impasse

"Finesse the Impasse by Changing the Deal" -- Negotiation Wisdom from Lou Meisinger

Former Executive Vice-President and General Counsel to The Walt Disney Company, entertainment law heavy-weight Lou Meisinger is not only breathing new life into Sheppard, Mullin's entertainment practice, but also mediating and arbitratingthe same kind of high-stakes, complex commercial and entertainment disputes he spent nearly forty years litigating.

During a recent conversation with Lou about negotiating the resolution of commercial litigation, he said one of those things that can change your negotiation strategy (and hence, your life) forever.

Finessing Impasse by Changing the Deal

"One of the best ways of breaking impasse during the mediation of a litigated case," Lou casually observed, "is to finesse it by transforming the litigation into an opportunity to make a deal."

I'd just finished digesting "negotiation leverage belongs to the party who is perceived to be the one most able to afford the consequences of a failed negotiation," and now Lou was delivering the holy grail of Breaking Impasse for mediators. It was like being given a third lung. I could breathe again.

"Transform the litigation into an opportunity to create a business deal." What did that mean?

Though Lou had lots and lots of examples (what a generous man he is!) I don't want to steal his stories, all of which I'm sure he's putting to excellent use when parties to sophisticated, complex commercial litigation have the good sense to hire him a a mediator. I do have a story from the negotiation academics, however.

Three Dimensional Negotiation

On the same day I had this impasse transformation conversation with Lou, I started reading 3-D Negotiation by Harvard Business School Professors David A. Lax< and James K. Sebenius(read the Introduction to the Book Here).

Lou's advice to "finesse the impasse by changing the deal" is discussed in great, articulate and academic detail by Lax and Sebenius. Before going there, it's important to know what they mean by the three dimensions of a deal. Those dimensions, they counsel, are tactics, deal design and set-up.

Tactics

Briefly, "tactics" are strategies exercised at the bargaining table, such as improving communication, building trust, countering hardball plays and bridging cross-cultural divides.

Deal Design

At its simplest, deal design involves the invention and structuring of agreements that create greater value for all parties, meet the parties' objectives better than easily conceived alternatives and are more durable.

Setup

Finally, set up is the architecture of the deal that ensures the most favorable scope, by involving the right parties, addressing the right issues, and considering all no-deal options. It also involves negotiation sequencing and basic process choices.

Click on the extended entry for the application of these principles to a high stakes venture capital negotiation.  

Continue Reading...

Bargaining Strength

 

Negotiators have much to learn from game theorists. In the book, Higgling: Transactors and Their Markets in the History of Economics, edited by Mary S. Morgan (Duke University Press: Durham 1994) contributor Robert J. Leonard, lists six factors that affect bargaining outcomes as follows:


1. General bargaining dispositions. Tough bargainers are dogmatic, possess a strong sense of themselves and have a highly competitive orientation in regard to personal strength.

2. Payoff system. A negotiator's willingness to make concessions is strongly influenced by what he believes to be the minimum or maximum necessary to provide him with any benefit of the bargain. Other "payoff system" factors include time pressure, the cost of no agreement, the threat capacity of one's bargaining partner and the size of payoffs.

3. Social relationship with the opponent. Not surprisingly, negotiators tend to be more cooperative when they have a friendly social relationship or when there are reasons to be concerned about the other's interests. This is why hostage negotiators always ask the captors to take food orders from their captives and determine whether any of them need medicine or other critical accomodations. Once the captors begin to take care of the needs of their victims, they are more cooperative with negotiators and begin to care about the well-being of the captives.

Research has proven that moral appeals result in greater concessions by the one from whom concessions are sought. The negotiator who suggests that certain concessions are necessary to satisfy his basic needs or expresses the belief that his negotiating partner will treat him fairly does better than the negotiator who does not appeal to moral considerations. This is an example of "trading power for sympathy," a bargaining tactic often referenced in Ken Cloke's writings.

4. Social relationship with significant others. Extremely significant to negotiators representing clients is the tendency of representatives to be more competitive than the parties whose interests are at stake. This higher degree of competitiveness is increased even further when the representative is being monitored by her client.

The mediator's injunction to "have all stakeholders present" is therefore a double edged sword. If you are reprsenting a client with extremely high aspirations, there is some wisdom in resisting the mediator's insistence that your clients be present because you are more likely to cut a better deal in their absence. On the other hand, as all mediators know, settlement itself is much less likely if the stakeholders are not there to balance their own interests (known and unknown to their representatives) in creating a deal that maximizes benefits for everyone.

5. Situational factors. I've never met a litigator who was not attuned to the benefits of the home court advantage. Nevertheless, if closing the deal is your goal, it may well be better to negotiate in neutral territory. Researchers have also found that colorful and pleasant surroundings induce cooperative behavior but may also reduce the sense of urgency of reaching agreement.

6. Bargaining strategy. This, of course, is its own discipline. The balance between cooperation and intransigence is the art of negotiation and is covered more extensively elsewhere.

Continue Reading...

Why -- an Antatomy of Explanations


These are the words I never said
This is the path I'll never tread
This is the fear
This is the dread
These are the contents of my head
And these are the years that we have spent
And this is what they represent
And this is how I feel
Do you know how I feel ?
'cause i don't think you know how I feel
I don't think you know what I feel
I don't think you know what I feel
You don't know what I feel.

-- Annie Lenox, Why, from Diva

(see also You Just Don't Understand -- Men and Women in Conversation by Deborah Tannen)

We are once again indebted to New Yorker writer Malcolm Gladwell for making social science research useful. In his April 10, 2006 article on Columbia University Professor Charles Tilly's book "Why," Gladwell explains the sociologist's "anatomy of explanations."

Why should negotiators care? Because explaining why our bargaining partners should settle instead of litigate requires persuasive story-telling -- a compelling account of our business requirements and capabilities -- a reason why what we want is fair and reasonable, even just.

Types of Reasons

Professor Tilly has created four reason-giving categories:

Conventions: These are the rules your mother and grade school teachers taught you. Don't be a tattle tale. Share with your sister. Don't whine. Say thank you to the nice man for giving you an extra dollop of ice cream.

Stories: This is what we attorneys do for a living. Tell stories, read stories, make up stories, listen to stories. Then we compare one story (Mrs. Palsgraf was waiting for a train when a man holding a box of firecrackers stumbled out the door and then) with another story (the sherriff stopped Mr. Green on Highway 50 but let him continue driving even though Mr. Green was clearly drunk and then he passed a truck on a narrow road and then ).

Codes: These are "high-level" conventions -- the formulas that invoke procedural rules and categories. The judge and jury apply codes such as "oral agreements can't transfer real property" to the Plaintiff's story about her landlord's promise to extend her lease for a year.

Technical Accounts: These are stories informed by specialized knowledge and authority. They're the stories your expert witnesses tell.

Talking Past One Another

Anyone who's spent even a few weeks in law school knows these categories. So why are we bothering with them here? Because, according to Tilly, reason giving is most effective when we "match" the kind of reason we give to the particular role we are playing when the reason is necessary. If one person is giving a technical account and the other a story, for instance, the chances are remote that they will ever begin to understand, let alone agree with, one another.

Continue Reading...

Making the First Offer

Because People often ask me about the wisdom of making aggressive opening offer, I'm summarizing below a recent article on anchoring by a Kellogg Graduate School of Management Professor. His conclusion is that people aren't aggressive enough in their opening offers.

Although we are often told that only "reasonable" first offers influence negotiation outcomes, I am unaware of the existence of any research to support this dictum. Unfortunately, I suspect that the "reasonable first offer" theory is from the Graduate School of Feeling Good About Ourselves at Kumbya University.

The research discussed below is typical of all of the research and statistical studies I've recently read. If you've got contrary authority, please do pass it along.

1. Research shows that how we respond to an offer is highly influenced by any number that enters the negotiation environment. (one study used zip codes to influence numeric estimates).

2. The greater the parties' uncertainty about the value of the item/s being bargained for the stronger the anchoring effect of the first offer.

3. That anchoring effect will continue to exert a strong pull throughout the rest of the negotiation THE SUPPORTING RESEARCH

 

The Supporting Research


Researchers had real estate agents inspect a house and estimate its appraisal value as well as its purchase price. they manipulated the house's list price, providing high and low anchors. All of the agents' estimates were influenced by the list price even though they denied factoring the list price into their decisions. When challenged, the agents cited features of the property that would justify their estimates.

In another study, researchers sent customers to mechanics to obtain estimates on the value of a car. The customers asked the mechanics for their opinions only after suggesting a value of their own. Half the mechanics were given a low anchor and half were given a high anchor. The mechanics estimated the car to be worth a thousand dollars (actually they were Deutsche Marks) more when they were given the high-anchor value.

Continue Reading...

Litigation is So Twentieth Century

 

Weren't we just talking the other day about finessing impasse by transforming litigation into a business deal? I guess we were just a little bit behind the times because it appears that no one even bothers filing a lawsuit anymore -- they go directly to the negotiation that would settle it.

Hmmmm.  You might consider taking the negotiation class I've been providing gratis to lawyers who want to improve their negotiation skills so they can enter the 21st century and make, say, something north of $1 billion on a sale of their start up -- YouTube -- to another company -- GOOGLE -- that was itself a start up only eight years ago (is that possible? and I thought "to google" had been a verb for much, much longer. I grow old . . . . )

The referenced AP story is about the way YouTube emptied its potential liability dumpster before selling itself to a very high bidder.  Whether or not the posting of much YouTube content is "fair use" or not, both companies hedged their bets by causing YouTube to buy the rights to materials it has already posted and that it has been accused of infringing.  Right or wrong, the sound business decision was to strike a deal with CBS and two major music labels to, as the AP story put it, "befriend content providers and avoid copyright infringement lawsuits." 

As AP reported.

The separate agreements with CBS, Vivendi's Universal Music Group and Sony BMG Music Entertainment c[a]me less than a month after YouTube reached a deal with Warner Music Group Corp. Hours after announcing the agreements, Google Inc. announced it would acquire the video site for $1.65 billion.

YouTube and CBS will share revenue from advertising sponsorships of CBS Videos, CBS said.

CBS will also test new YouTube technology that will help the network find copyrighted content on YouTube and remove it. CBS will also be allowed to leave that content on the site, and share revenue from advertising that appears next to the copyrighted video.

Separately, Vivendi's Universal Music Group said Monday it agreed to give YouTube viewers access to thousands of music videos. The company said it and its artists will be compensated not just for the official videos, but also for user-generated content that incorporates Universal's music.

Sony BMG Music Entertainment, a joint venture between Sony Corp. and Bertelsmann AG, also said Monday it will make video content available on YouTube -- and will also let YouTube users include some catalog songs in their own amateur video uploads.

Sony BMG said it will share advertising revenue with YouTube for all music videos that incorporate audio or video works from the Sony BMG library.

"YouTube is committed to balancing the needs of the fan community with those of copyright holders," said Chad Hurley, chief executive of San Mateo, Calif.-based YouTube.

 

 

Legally Astute Negotiating

 In her working paper, Winning Legally: The Value of Legal Astuteness, Harvard Associate Professor of Business Administration, Constance E. Bagley posits that "legal astuteness" -- the ability of top management to effectively communicate and work with counsel to solve complex problems — is a valuable dynamic capability.

 According to Bagley, legally astute managers understand that "every legal dispute is a business problem, requiring a business solution." These astute managers will listen carefully to the legal advice given to them but they will not be overly deferential to their attorneys. Professor Bagley reemphasizes what all business executives now surely know, that "litigation is a 'zero-sum' game, with a clear winner and loser," leaving few opportunities for integrative bargaining.

 "Legally astute" business executives, she stresses, "take responsibility for managing their disputes and do not hand them off to their lawyers with a 'you-take-care-of-it' approach."

But how, you ask, does a "legally astute" manager retain control of a business problem that has become a multi-million dollar piece of litigation. Let alone in a way that synergizes the strengths and diminishes the weaknesses of everyone on the litigation team -- executives and trial lawyers alike.

Litigators: Bring Your Business Executives Back in from the Cold

 When mediating settlements of commercial lawsuits, I always begin by inviting the business executives back into the game. "Your lawyers," I remind them, "justifiably advised you not to talk about the litigation in public or satisfy your need to "tell your side of the story" at deposition. If you've heard it once, you've heard it a million times -- "today is not our day to win the lawsuit; today is our day to provide as little information as possible."

Settlement day, however, is the day to come armed with business information and business strategy.

 "Only lawyers," I say to managers, "have legal problems. You have a business problem you couldn't fix without the coercive power of the law. That legal power has now brought your opponent back to the negotiating table. The legal dispute is again a commercial problem for which there are myriad business solutions."

 "That's the good news," I say. "The difficult news is that it will take a lot of work from everyone and the end result is unlikely to look like the victory you once hoped for. Today we try to find a way to negotiate an agreement that is a better alternative than trial."

Then we all roll up our sleeves and begin.

Continue Reading...