Southern California Arbitration Mediation and Conflict Resolution : Settle it Now Dispute Resolution Services : Serving Los Angeles, Beverly Hills, Century City : Settle It Now Negotiation Blog

(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.

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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!)

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(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. 

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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.

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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 here, here, here 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.

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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!

 

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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.

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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.   

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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.  

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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.

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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.

 

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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.

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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.  

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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.  

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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.

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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.

 

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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. 

 

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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?

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(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 Cuzzone, Perfecting 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.

 

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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.

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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? 

 

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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!

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(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.  

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(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 th