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

(image by the great Charles Fincher at LawComix)

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

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

Here are two facts:

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

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

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

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

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

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

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

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Discouraged by the adversarial process?  Looking for lawyers who will handle your commercial dispute without going to "war" with all the expense and collateral damage that involves?

This excellent talk by Webb has been viewed 202 times, while "Drunk Lawyer" below has been viewed by nearly 300,000 people.  It's not surprising that drunken trial lawyers are far more entertaining than some old guy talking about attorneys bringing potluck to negotiate the resolution of a lawsuit. 

The question is this:  Do you want to pay for the entertainment of conflict or resolve it and move on with your plans to create a profitable future for your company and its employees.

"Drunk Lawyer" is, after all, free on YouTube!

Thanks to Cutting Edge Law for gathering together the Stu Webb and other videos on the revolution in legal practice that's being fomented right around the corner -- just about the time the BigLaw model fails along with dinosaurs like General Motors.

You didn't hear it here first.  But you will hear it here often.

This is the fourth video of this painful encounter on YouTube but it's the one in which the attorney is asked to "blow" a breathalyzer for the Court.

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As many of my readers know, I'll be giving a live online full semester Art of the Deposition Course over at Solo Practice University.

I'll tell you more about it when I have a little more time.  Right now I want to make an offer to any young lawyer who is available to take the course twice a month on Saturdays at 10:00 a.m. PDT who can serve as my "teaching assistant."  I've been given one full-scholarship (for all of SPU's courses) to give away free and I'd like to give it to someone who can "attend" the Saturday morning Webinars twice a month and provide me with just a small amount of in-class assistance.

If you'd like to receive the SPU Scholarship and take the "live" interactive twice monthly Art of the Deposition Webinar, please contact me at vpynchon@settlenow.com.

Here's a description of the course from SPU's amazing website:

FIRST CLASS:  Saturday, April 11, 2009

CLASS TIMES:  Saturday 10:00 a.m. PDT

OFFICE HOURS:  Saturday 11:00 a.m. to 1:00 p.m. PDT

In this course you will learn how to conduct an effective direct examination for the purposes of information gathering and fact and theory testing. You will also learn how to cross-examine your witness and to use documents for the purpose of impeachment. You will learn to authenticate documents, establish the business records exception to the hearsay rule and effectively question witnesses about the documents. You will learn how to deal with obstreperous opposing counsel, to defend your client during a deposition, to make the right objections at the right time and to use your deposition transcripts in pre-trial motions and at trial.

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It's getting very late in hour eleven of the mediation and everyone is tired and cranky.  We've agreed upon:

• the total sum of the settlement;
• the period of time over which the settlement will be paid;
• the Stipulated Judgment in the event of default; and,
• the amount of the Stipulated Judgment (far more than the agreed upon settlement sum).

We could put these terms in a skeletal settlement agreement right now; include the "magic language" from Evidence Code section 1123 that will permit enforcement of the mediated agreement; and, let everyone get on the road, onto a plane and into bed.

Because these parties couldn't agree on what year it is, however, no one balks at my suggestion that we write up the entire deal -- settlement agreement with mutual general releases; the Stipulation for the Entry of Judgment; and, the proposed Stipulated Judgment itself.

The first problem is everyone's failure to bring a form Settlement Agreement and Mutual Release, let alone one that included enforceable terms for the entry of a Stipulated Judgment in event of default.   

ADVICE???  Carry these documents on a "flash" or "jump" drive whenever you're going to a settlement conference or mediation.  Heck, carry them with you to the first day of trial where you might be startled to learn that your adversary is prepared to settle the case right now!

Fortunately, I had access to my own files which contained detailed forms for everything we needed, forms I offered to counsel as guides. I did so only with the express understanding that I did not recommend my own forms as adequate, complete or enforceable.  

I'm just the mediator, not the legal representative of the deal in loco parentis.

It's a good thing we made the effort to fully document the deal because it threatened to fall apart over all of the following terms:

• the dismissal of ancillary proceedings
• forbearance from inducing future actions by non-parties
• liquidated damage clauses for the breach of certain critical deal points
• indemnification for future actions if induced by certain of the parties

Each of these items required separate negotiation and compromise and as to each I helped the parties calculate the degree of possible misbehavior by their adversaries and the protections that might "fit" the probable harm.  I do not believe the parties would have been able to resolve these terms (as well as others too confidential to mention) without third party assistance.  One was so difficult to predict both the series of possible events and potential remedies that we provided for arbitration of that term alone in the event of alleged default.

When we all finally left the building at one in the morning, we had fully completed paperwork, signed by all parties in hand. 

And yes, I was the only one present who could type.

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As you'll recall, we're in hour nine of the mediation.  The parties have finally agreed to settle the antitrust litigation the Court ordered them to mediate ("we won't settle; we'll only be here for an hour"). 

Defense counsel wants to write up the "deal points" and make a quick getaway.  Before she does so, we have the following conversation.

"We'll need three years to pay it."

I fake calm.

"Your security?" I ask, my mind racing to the other room where an already unhappy set of plaintiffs are sitting.

"We don't have security.  I told you my clients are broke.  I also told you we'd need terms but you didn't want to talk about them."

This is true.  From hour one the defense insisted they'd need to pay over time and the Plaintiffs wanted to know what terms the defense was thinking of.  Throughout the day I'd told them both the same thing:  "let's see if we can agree on a number before we start talking terms."

I have reasons for this.  They are as follows:

• once people have agreed upon a number, it's far more difficult for them to walk away from a deal; the Plaintiffs have already begun to think about what the money will mean to them and the defense has begun to imagine life without the litigation;
• people are risk averse.  So long as there is no (or only minimal) money on the table, it's easy to refuse to engage in the often difficult process of readjusting their expectations and compromising their desires.  When there's enough money on the table to make both parties want to settle, walking away involves loss.  

This is often the trickiest part of the mediation.  The three-year time table and absence of security is, I know, enough to blow up this deal.  I'm going to take heat from the Plaintiffs' side, for resisting their efforts to learn the Defendants' terms before they spent an entire day agreeing upon the price.  I don't, however, regret my decision.  If these terms cause the negotiation to break down now, they certainly would have done so in hour one.

How I help the parties negotiate what is poised to become a rancorous impasse in the next post.

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It's 8 p.m. and you've just spent nine straight hours negotiating the settlement of complex commercial litigation with multiple parties that was filed before George Bush first took office.  The case has been up on appeal twice and is now scheudled for trial in February.  All defendants but the final three standing have settled.   Three of the principals have flown in from out of state and two of the attorneys have driven a few hundred miles to Los Angeles from their home towns. 

"Let's just write up the deal points," says Lawyer No. 1, yawning.  "We can write up the full agreement over the long weekend."

Lawyer No. 2 turns to me and says "Judicate West has a form, right?  Let's use that."

Before we go further, let me give you the complete, verbatim language of the online skeletal Judicate West form.

Date:_________________

Stipulation for Settlement


    VS.                           

IT IS HEREBY STIPULATED by and between the parties through the respective counsel or representative of each that the above-referenced case has been settled according to the terms memorialized herein below.  This document is binding on the parties and is admissible in court pursuant to Evidence code section 1123 and enforceable by motion of any party hereto pursuant to CCP section 664.6.                                                                                   

In order to facilitate the above specified terms of settlement, the parties further agree that on or before the          day of          they will execute or change the following:

• Settlement / Release Agreement   Prepared by _____plaintiff_____defendant

• Request for Dismissal     Prepared by _____plaintiff_____defendant

Other____________________________________________________________

All relevant parties must sign below.  Copies are acceptable in lieu of originals.

I know.  You didn't expect the case to settle.  At least that's what I've been hearing you all tell me since hour one of the mediation.  But now we're in hour nine and the basic deal points have been reached.  It's January 15.  Trial is in 30 days.  You have all the parties present and the mediator who has by now sussed out the BS; developed a good working relationship with all sides of the dispute; knows how hard the parties worked to get here; and, is unlikely to let the "devil" in the details sink the settlement ship.

What do you do?

My own answers in next post.

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Anyone who's been living in outer Mongolia for the past couple of years should head on over to Adams Drafting straight away.  Why?  Because once you negotiate the best deal you can, you have to write it up on the best terms you can.  Hence the need -- yes need -- for Adams' Drafting.

Today Ken Adams addresses a "rule" that one Court has dubbed "Forthright Negotiator" and the rest of us have always understood to be . . . well . . . the law, i.e., that one's subjective intent can be used to interpret an ambiguous contract term so long as that intent has been objectively manifested.

This gives Ken Adams an opportunity to address the question whether it's ever beneficial to purposely include ambiguity in your contracts -- a question I'd answer after nearly a quarter century of contract litigation practice with this -- sure, if you'd like to put my husband's and my grandchildren through prep school and college.  Otherwise, not so much.

But don't take it from me.  Go see what the master of contract drafting says.

NOW!

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I've always recommended barter when cash is tight.  In an early post entitled The Benefits of Barter, I explained how interest-based barter is not simply for small-fry.

 AT&T used interest-based negotiation tactics and bartering in its 1999 fight with Comcast Corporation for the acquisition of MediaOne Group. All parties were at impasse until AT&T offered to provide Comcast with surplus AT&T cable systems that would fill Comcast's critical need for additional subscribers -- 2 million to be exact. In exchange, Comcast withdrew its $48 billion bid for MediaOne, leaving AT&T as the only potential purchaser in the field.

Interest-based negotitions such as the AT&T-Comcast deal go beyond evaluating the strength of the parties' "positions" (or muscle) by engaging them in a mutual exploration and assessment of everyone's needs and resources -- a process that can create new buisness opportunities or relationships that increase the value of Business A without concomitantly decreasing the value of Business B.

"This type of negotiation begins with all community resources and know-how with the goal of increasing the well-being of all stakeholders rather than assuring victory to one of them," I wrote.

For those of us in the wisdom business, much of what we have to barter is our ability to mentor and be mentored.  The Professional Women's Network of Southern California is, essentially, a "mentoring circle," in which each member teaches, each member learns, and each member connects every other member to her network. 

Now, the Women Lawyer's of Los Angeles is putting its wheels on recovery road by kicking off its existing Mentoring Circle Program to meet the challenges of the coming year. 

For a number of years, the WLALA Career Mentoring Committee has organized a West LA Mentoring Circle for WLALA members to meet and support each other's career development over lively dinner conversation.  These meetings have served as a forum for participants to share stories, goals and advice.  Over the years the women involved in the Mentoring Circle have become a close-knit group of champions for one another's success.

The WLALA Career Mentoring Committee is excited to expand mentoring opportunities for WLALA members by starting a Downtown Mentoring Circle.  If you are interested in mentoring others or benefitting from the experience of other WLALA members, please join us for the first meeting of our new Downtown Mentoring Circle at Bonaventure Brewing Company at 6:30 on January 29. 

Our discussion topic will be career goals and objectives for 2009.  Please RSVP to Jessica Pink (jlpink@allenmatkins.com) if you plan to attend.

Bonaventure Brewing Co.

404 South Figueroa St. Suite 418A
Los Angeles CA 90071
(213) 236-0802

We look forward to seeing you!

Your Career Mentoring Chairs,
Gigi and Jessica

Check it out!  And for women AND men professionals in all parts of the country, you couldn't do better by yourself and your business than to start your own mentoring circle.

Laissez les bon temps rouler! 

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Daily Journal Newswire Articles www.dailyjournal.com © 2009 The Daily Journal Corporation. All rights reserved.

FORUM (FORUM & FOCUS)  •  Jan. 08, 2009 Every Case Is a Winding Road FORUM COLUMN By Victoria Pynchon I have a confession to make. I am about to become embroiled in litigation. Though I preach the religion of negotiated resolution, I've nevertheless hired litigation counsel to assert my rights and pursue my remedies. This is one of those moments when the rubber of our ideology meets the road of personal circumstance, the moment we are called upon to decide to walk our talk or take the more familiar road. For more than 30 years - first as paralegal, then as a law student and finally as a commercial litigator - I'd been swimming in the waters of legal rights and remedies. The adversarial ocean had become so familiar a habitat that it rarely occurred to me that I was under the surface. One day toward the end of my first year of mediation practice, a much more experienced friend hooked me by the cheek and threw me on the deck of his ship, where I was gasping for air. He'd asked me to co-mediate a will contest without the benefit on my clergy - lawyers with experience in the field. The "fish out of water" conversation that ensued went something like this: Joe Mediator: "The family doesn't want to hire a lawyer. They just want to mediate." Vickie: "But I know absolutely nothing about wills, trusts and estates. The parties need to talk to a lawyer first to learn their rights and remedies." Joe: "You still don't get it, do you?" Vickie: "Get what?" Joe: "It's not about rights and remedies. It's about interests." Vickie: "But how can they evaluate their interests without knowing their rights and remedies?" Joe: "Because they're not interested in what the law says - they want to do what they believe is right for them as a family under the circumstances." These people wanted to resolve a legal dispute without knowing their legal rights? Were they nuts? I understood "interests" - they were all the rage in ADR circles - the desires, fears and needs of the parties that drove them to take legal positions. Sometimes those interests were non-economic - the need for revenge, the desire to be personally accountable, the fear of failure, the hope for forgiveness and reconciliation. Others, though economic, could not be remedied by way of damages - better access to foreign markets, for instance, or wider distribution chains; the acquisition of better manufacturing processes; or, the retention of executives with "pull" in Washington. But all of those matters were secondary to legal rights and remedies, weren't they? You had to know what your rights were. To read entire article, click here. Here's a .pdf of the article taken from the "hard copy" of the paper.

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The lowest level, most critical, most easily learned (you can even use a cheat sheet!) and most shockingly ignored skill is authenticating documents and bringing them within the available exceptions to the hearsay rule.

As we wade ever deeper into the waters of electronic discovery, E-Commerce Law provides us with the Internet Evidence Series below.

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Nothing irritates a court more than doing unnecessary work because counsel fails to comply with the local rules.  Here in Huschke v. Slater, the Court was sufficiently put out to order that the attorney "personally" pay the sanctions ("don't even think about asking your client to pay, buster!") and to order the opinion published for all the world to see.

Like that pesky appeal where the Court called my client a "school yard bully" for failing to stipulate to the genuine nature of the insurance policies at issue (and no I am not providing a link to that one).  Ordered it published too. Grrrrrrrr.

I'm filing this one under "Advice to Young Lawyers" in the hope that they do not have to learn how to ignite the appellate court's wrath the hard way.

Hey!  Let's all be careful out there!

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

What Can Employers Do?

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

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

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

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

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

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Thanksgiving Day begins a season that reminds many of us that our earliest negotiation experiences were those with our family. 

When I was a child, these were the issues on the Thanksgiving bargaining table

• Who gets to snap the wishbone (does anyone do this anymore?)
• Who gets to sit next to gramma
• Who sets the table and who does the dishes
• Whether my sister and I have to eat what we don't like (me cranberry sauce; she vegetables of any kind) to "earn" a piece of pumpkin (my sister) or pecan (me) pie

Later, in adolescence, the issues changed

• must I follow the parental injunction not to talk about civil rights, pre-marital sex, world poverty, and, the Viet Nam War ALL DAY long
• do I have to change out of my blue jeans, workshirt and desert boots for dinner
• may I have two Thanksgivings - one with my father & one with my mom & step-dad
• MUST I be nice to my sister's new husband
• and, of course, who sets the table and who does the dishes (some things never change)

Still later, when my sister and I had married and moved out of town

• whose table would we gather around for the holidays:  mom's, mine or my sisters
• how to accommodate the newly vegetarian in the family
• could I skip Thanksgiving in San Diego in exchange for Christmas there (without my mother bursting into tears)
• and, of course, who sets the table and who does the dishes

Thanksgiving is my own favorite holiday because there are no gift-giving obligations; everyone (more or less) celebrates the same holiday regardless of religion or national origin; there is no limit on the amount of cream and butter that can be consumed at a single sitting; and, everyone is expected to express gratitude rather than complaint.

Not everyone, however, is lucky enough to have family or even friends with whom to gather for Thanksgiving.  I have had these times in my own life, when Thanksgiving is a particularly forlorn and isolating day.  It's never mattered to me whether I was economically secure or poverty stricken on Thanksgiving.  What mattered were those Thanksgivings when I had no family with whom to gather and no friends with whom to share a holiday meal.  For those whose lack of family arises from outright rejection (many young gays in West Hollywood or throw-away kids on the streets of Hollywood) there are few days of the year that are more wrenching.

For the lonely and the forlorn this Thanksgiving, I'm posting the following resources and adding this:  not just the good, but the bad is fleeting as well.

Thanksgiving Service Opportunities

Around here, public officials and celebrities pretty much have the T-day soup kitchen duties cornered.  Don't despair if all of the opportunities to serve dinner on T-day are taken; there is much else you can do to be of service to those less fortunate than you.

Meetings, Meetings, Meetings

If you're in recovery in the Los Angeles area, I have good news for you.  Many of the daily 3,000 local meeting groups have 24-hour meetings over the Thanksgiving weekend and many serve Thanksgiving dinner.  Check the local directory (here) for a meeting near you (the national meeting finder is here). 

Those who are already trained to answer telephones at the L.A. Central Office might give Harvey a call and volunteer to serve as the saving voice on the other end of the telephone during hard to cover hours such as the midnight to dawn shift.  The most recent issue of Hello Central (here) notes that the

Los Angeles Central Office continues to be in need of volunteer telephone workers. The only requirement is a minimum of one year sobriety. We need people who will show up when they say they will. Contact Central Office: (323) 936-4343, and ask for Harvey or Langston.

Donating Food; Finding a T-day Dinner

My husband returned from our local farmers market the other day with the story of a woman in line who was making an entire Thanksgiving dinner just for herself and seemed cheerful about it.  Now there's a woman who's made peace with her life.  For those who might find the solo T-day dinner a tiny bit depressing, you could cook up dishes for others.  Here are some organizations to which you could be of service in that way.

• Family Learning Center in Denver
• The Greater Chicago Food Depository
• The United Food Bank in Mesa Arizona
• The Jersey City Community Thanksgiving Dinner (for those looking for a place to share Thanksgiving dinner with others in need - pass it on)
• Give to Nashville, Tennesee's From Hunger to Hope Campaign
• Donate a food basket in Durham, New Hampshire
• Gobble, Gobble Give in Los Angeles, California
• Share Your Blessings with a Family in Haiti
• Donate Food Baskets in Orlando, Florida
• Locate Other Local Food Banks at Feeding America

Visiting Shut-ins, the Elderly, the Sick

• take one of these ten suggested gifts to a local hospital or home for the elderly to distribute to those without friends or family
• deliver meals to shut-ins in Nashville Tennessee
• Visit the elderly in Cincinnati, Ohio

Here's what I learned one lonely Thanksgiving Day working on a crisis phone line.  Loving feels every bit as good as being loved.

Have a GREAT Thanksgiving!!

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Leave it to a legal marketing blog -- Lawyer Casting - to choose Evolution Day for its first entry into the BlawgReviewOSphere.  As blogger Joshua Fruchter explains in Blawg Review #187, because the anniversary of Charles Darwin's publication of The Origin of Species on November 24, 1859 is inextricably intertwined with the idea that only the fittest survive, Evolution Day should be celebrated with advice for survival.  And so it is.

For those of us who toil the legal fields, Fruchter suggests a range of survival options including

• Excelling at Our Work with links to Drug and Device Law; Law Prof on the Loose; and our own post on sincere and effective apology.
• Switching Practice Areas with links to the Bankruptcy Practice Pro; The Volokh Conspiracy; Conglomerate; the Electronic Frontier Foundation; PomTalk; the Legal Blog Watch; Pepper Podcasts /*; and, the Antitrust Review.
• Going Solo with links to Charon QC (an interview with Susan Cartier Liebel about Solo Practice U; ) the greatest American Lawyer; and, Law21; and,
• Leaving Law with (what else?) Above the Law; JD Bliss; and, Rush on Business.

There's advice for law firms here as well, so crawl on out of the loser gene pool and make your way over to Blawg Review # 187.  The survival of the legal species might just well depend upon it!

Note that Eric Turkewitz at the New York Personal Injury Law Blog  will host Blawg Review #188.  Anyone interested in participating in future blog carnivals should take a look at Blawg Review, which has information about next week's host and instructions on how to get your blawg posts reviewed in upcoming issues.

Finally, in true celebration of Evolution Day, take a look at some of the most enduring misconceptions about Darwin's paradigm breaking theory here, including the fact -- noted by Fruchter -- that Darwin did not originate the phrase "survival of the fittest."

________________

*/ Pepper Hamilton is podcasting??????  A short but vivid season of my legal career was served as a Pepper associate back in the late '80s (Alum Network here) when this grand old Philadelphia law firm turned 100 at which time it was still using quill pens - at least in the Philly office.  In the Los Angeles office, we associates routinely gathered in the library (yes! with books) and were required to share the one Lexis/Nexis research station which we were forbidden to use except in the most dire circumstances and with pre-approval.

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

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

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

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

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

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

Mediator's Proposal: 

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

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

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

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

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

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

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

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

Huh?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Let your real legal education begin at Solo Practice University™

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 Jonathan Fields.Awake@the Wheel gives us 7 critical mistakes to avoid when trying to persuade someone to your point of view.  Excerpt below: Jonathan's full post is a must read and can be accessed by clicking on the link above.

1. Don’t Attack - When you verbally attack either a person or their point of view, you immediately raise their defensive shields. . . .
2. Don’t fail to acknowledge and validate another person’s right to believe what they believe - You may want them to emerge from the conversation with a different opinion, but their experience in life has led them to the point of view they hold today. . . .
3. Don’t fail to anticipate and address objections - People feel a strong need to act and speak in a way that is consistent with their prior actions and statements. . . .
4. Don’t skip building rapport, trust, credibility - Often, especially when people have strongly held convictions, they’ll launch into an argument in support of those convictions, before allowing the person on the other side of the conversation to (a) get comfortable with who they are, (b) build rapport and likeability, which is a tremendous aid in the effort to persuade, and (c) establish enough credibility in an area to allow the other person to feel comfortable deferring to your knowledge base. Take the time to establish these elements in the conversation BEFORE launching into your campaign . . . .
5. Don’t forget to to adequate research - Be informed and prepared with the latest, most relevant information . . . .
6. Don’t shut yourself down to being persuaded yourself - This may surprise you, we’re not always right. . . . .
7. Don’t say don’t - By now, you may have realized that by simply removing the word “don’t” from each of these points, you’d end up with seven things to “do,” rather than 7 mistakes to avoid. . . . .

Rock on!

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By Guest Blogger Renée Barrett aka AAARenee 

One of my favorite movie quotes is from Angelica Houston’s character in Ever After. As the wicked stepmother, she declares to her favorite daughter

Darling, nothing is final until you're dead, and even then, I'm sure God negotiates.

Although I cannot speak to the question whether God negotiates, I have found the first part of the formulation to hold quite true. I have learned that if I am persistent, passionate, and willing to see my challenges and opportunities from a variety of angles, I am usually able to find a creative solution to a problem and identify common ground with someone with whom I have a dispute.

Whether it’s getting a customer service agent to empathize with my situation, haggling to pay wholesale instead of retail, or building consensus amongst a range of strong personalities, there is always a way to state your case and persuade your audience to see the world through your eyes. 

There is one challenge that I have discovered to be most daunting for professionals to negotiate -- the management of their time. 

Time is our most precious nonrenewable resource and as such, we put a premium on it. We attempt to prioritize and guarantee a return on our investment. Often we are left feeling that an activity was either not worth our time or took so much time that we were unable to sustain the task's momentum.

Between work and life, we struggle to find balance and sanity.

My work with attorneys -- helping them to build their practices; assisting them in overcoming their own internalized judgments about marketing and business development -- requires me to help them re-negotiate the way in which they allocate their time.

I empathize.  It is a daunting task to find a comfortable balance between one's professional and personal lives when you are forced to measure it out in six minute increments.  Despite many attempts to eliminate or modify the present system by which we value legal word -- the billable hour remains the entrenched and painful lens through which a lawyer's daily practice is viewed. Given this historic approach, it’s no wonder than that Web 2.0 activities (blogging, online social networking, & wikis) are met with such resistance.

While it is true that there is no one size fits all solution for growing a legal practice,  there is one excellent way to refocus the discussion.

I've never worked with an attorney who didn't agree that the practice of law is a relationship-driven business. Relationships take time to develop and require nurturing, both of which can be streamlined with Web 2.0 tools. If used correctly, there are numerous opportunities online to have a "deep dive" conversation - one in which attorneys can quickly learn a potential client's business, current needs, and future risks.

When someone is in pain, there are opportunities to help them find a solution and be of value. Relationships that would take years to develop offline can accelerate faster online because -- for better or worse -- the internet encourages candor.

If you are struggling with how to do more with less in these tough economic times then reconsider making a small investment of your time in the mostly free Web 2.0 resources.  

The sense of community, collaboration and reciprocity that exists in online social networks can quickly translate into marketing opportunities that are speedily turned into new engagements. If you contribute positively and regularly to the online conversations at Q&As (LinkedIn), subject matter listserv forums, blogs, and, most recently, twitter, you are highly likely to improve your "know, like and trust" stock.  

In the end, professionals who are able to renegotiate their time priorities to set aside a few hours a week to invest in online-relationship-building, will be rewarded many times over by the ease with which your network can be immediately deployed for your benefit or that of your clients. 

If you find Web 2.0 daunting, ask a tech-savvy professional friend to advise you or, better yet, give me a call!

Renée Barrett is a business development & marketing consultant, specializing in change management, professional development, branding, social networking, and client relationship management.

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If you believe that law blogging is not only informative and entertaining, but capable of transforming our lives, our society, our culture and our legal system as well, run don't walk over to Peter Black's Freedom to Differ which not only rocks, it twitters, on One Web Day.  Surely this will be the BlawgReview of the year!

. . . .one recurring theme on this blog has always been a recognition of the value in a strong and free internet.  Therefore it is an honour to be able to host Blawg Review on Monday September 22, 2008, which is One Web Day 2008.  One Web Day was founded three years ago by Professor Susan Crawford from the University of Michigan, and she describes it as an "Earth Day for the internet".  The One Web Day website describes the day in the following terms:

The idea behind OneWebDay is to focus attention on a key internet value (this year, online participation in democracy), focus attention on local internet concerns (connectivity, censorship, individual skills), and create a global constituency that cares about protecting and defending the internet.  So, think of OneWebDay as an environmental movement for the Internet ecosystem. It’s a platform for people to educate and activate others about issues that are important for the Internet’s future.

If you'd like to host BlawgReview or submit to it, click here.  All future BlawgReview hosts please note -- THE BAR HAS BEEN RAISED!

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A lessee of commercial office space complains that the common areas are not being properly maintained. The local high school has just banned Catcher in the Rye. Again.  A prestigious law firm fires a first year associate because he refuses to remove his new “tongue stud.” These seemingly disparate disputes have one quite obvious but ill understood characteristic in common – they are all examples of unresolved conflicts that have ripened into discrete disputes.

Pretend for a moment that you never went to law school.  I know.  It's hard.  But give it a shot.

Lawyers (those other people who went to law school) are are trained to understand, manage and remedy all disputes, no matter however different they might be, in a single, highly controlled manner.  

To help their clients deal with the problems mentioned here, lawyers will read the lease; research the latest Supreme Court rulings ("Fuck the draft"); and, study the statutes. Once they understand the facts that are relevant to the law, they “think like lawyers.”

How do they do that?  "Think" like lawyers?

First, they subject the facts and the law to as much scrutiny as any idea can bear before it disintegrates into the dust of first principles. They create a chronology of events, highlighting and tailoring the "story" of the conflict that "fits" the available "causes of action" giving rise to "rights" in their client, obligations in their "opponent" and remedies for the harm suffered.  

This "legal" dispute was once about a relationship between people.   Now it is an "actionable" claim in an extremely controlled process in which one of the parties will "win." 

That, of course, rarely happens because the legal system has become too expensive and the law too uncertain for most people to risk what used to be it's goal -- a jury trial.  

Lawyers recognize frivolous or baseless or "defendable" claims by observing just how uncomfortably the “facts” sit inside their opponent's “causes of action.” When called upon to justify their entitlement to get their client's claim before a jury (demurrers, motions for judgment on the pleadings, summary judgment motions, non-suits) the Plaintiff's attorneys can and will simply change the way the story is told.  They make the facts fit the law.  There's nothing wrong with that.  That's their job.  If the facts won't "fit" the law, lawyers apply themselves to the law's creative expansion. 

What attorneys do not learn in law school is how and why conflict develops into a dispute and then predictably evolves, usually getting more acrimonious and difficult to resolve.

My friends who are lawyers (I never went to law school, remember? and neither did you) tell me that they know how to escalate conflict but not how to de-escalate it.  They also tell me that they see a lot of injustice.  Sometimes the injustice arises because the laws themselves are unjust.  Sometimes the tragic and unfair consequences of human interactions just don't have any legal remedy.  And sometimes the legal process itself makes disputes worse -- more protracted, frustrating and expensive -- rather than better.  

In common law countries, like ours, where the law is forged in the fire of conflict, shouldn't attorneys be taught not only how to "win the case" but also how to dampen the flame?  Most litigators I know would respond with a resounding "no!"   

Conflict resolution that is not "handled" as litigation or arbitration is for some other professional to deal with.  Therapists come to mind.  Don't they help the parties deal with that most uncontrollable aspect of any dispute -- something not only lawyers but the law itself exclude from the legal action?

 Feelings.  Not just sad or mad feelings.  But the type of feelings that make teenagers shoot other teenagers on the streets of Los Angeles.  Feelings of loss, tragically unfair outcomes, powerlessness, rage and despair.

The purpose of this post and the new thread that it is meant to begin?  To start something radical.

If you're not aware of what I'm about to tell you, you should be.

Once a year, 1000 people are invited to the TED Conference in Monterey, California, to exchange something of incalculable value: their ideas. TED's mission statement is as simple as it gets:  

TED is devoted to giving millions of knowledge-seekers around the globe direct access to the world's greatest thinkers and teachers.

You can cruise the jaw-dropping results here.

(image links to the Photography site of Lars Kirchhoff)

I was just talking to a friend over coffee the other day about how we're using 18th Century technology (the jury trial) to solve 21st Century problems.  

Here's the idea.  A legal TED Conference. 

If you'll look at what TED accomplishes, you'll know what I don't mean.  I don't mean a conference to trot out any new/old "ADR" ideas -- mediate this, arbitrate that, create new rules and forms for the lawyers to use. 

No.

I mean creating the highest level think tank we can to first envision and then implement a dispute resolution technology that incorporates what we've learned since we first enshrined the jury trial in our Constitution more than 200 years ago.

I have one man in mind -- Larry Lessig.  But surely there are others.  The first step would be to suggest names for the coordinating committee.

Why do I think of TED?  Because what it envisions cannot be accomplished.  It cannot even be envisioned.  It's a fool's errand.  One I'd be willing to spend the rest of my own life working on.

Would anyone care to join me?

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Thanks to Kevin's Remarkable Learning Blog (a fellow Forbes Blog Network member) for his  Seven Steps for Mending Broken Business Relationships. 

Each of the seven steps can help litigators de-escalate the conflict inherent in litigation before all-important settlement negotiations, whether they are conducted with the assistance of a third party neutral or not. 

One or more of them might also help ease tension in the law firm -- a very tense place these days given the recession, lay-off's, the de-equitization of partners and the shedding of non-productive practice groups or of those that might conflict with the law firm your firm is about to merge with. 

It's a rough time.  Let's all be a little more careful of our social capital there. 

We're going to need it.

Decide. The first step is you must decide that you want to improve the relationship. The precursor to this step is recognition - recognizing that the relationship needs improving - but the heart of this is the decision that this relationship matters enough for you to make the effort required to improve it. Without this decision, nothing else matters.

Forgive or let it go. If you feel the other person has done something to cause the rift or break-down, you must either forgive them or let go of your issues with it. Without this step, the steps that follow may help some, but will be limited in their success.

Take ownership. Recognize your role in the relationship, and take ownership and responsibility for it. Yes, deciding and forgiving are accountability actions; but being clear that regardless of the situation you have played a role in the change to the relationship is critical to your success in repairing any damage. Otherwise you are only blaming the other person - which cripples your chance for improvement.

Make your intention clear. Once you have decided to take actions to improve the relationship, your behaviors will change. Take the time to explain your decision and your intention to improve the relationship. Let the other person know that both the situation and the person matter to you, and you want a better relationship. This cements your commitment and communicates your intention to the other person.

Assume positive intent. While I have long believed this concept in a variety of situations, a colleague recently expressed it this way and it makes the idea completely clear. Assume the other person was - and is - acting in good faith. Will you be wrong sometimes? Perhaps. But by starting from this assumption you will immediately change your perception and therefore your behaviors toward that person.

Listen more. We all know how important listening is and how good it makes us feel when we are truly being listened to. Grant that gift to the other person. Listen intently, carefully and actively. Not only will you understand them (and their perspective) better, but they will trust you more and the relationship will build from their perspective.

Make an effort. Deciding is one thing. Doing is quite another. If you want better relationships, you must make the effort - it will seldom, if ever, happen automatically.

For the full post (well worth reading) click here.

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UPDATE:  See the analysis of Thottam at May it Please the Court, noting that the "big print giveth and the small print taketh away."

Before further discussing the problems created by the Thottam holding, I'm providing a "brief" of the case about which I ranted and raved earlier here today.  

• THE FACTS: 
  • A mediation confidentiality agreement entered into by the parties in Thottam provided that “all matters discussed, agreed to, admitted to, or resulting from ... [the mediation meeting]...
    • "shall be kept confidential and not disclosed to any outside person . . . ;
    • "shall not be used in any current or future litigation between us (except as may be necessary to enforce any agreements resulting from the Meeting), and,
    • "shall be considered privileged and, as a settlement conference, non-admissible under the California Evidence Code in any current or future litigation between us.”  
  • One of the parties contended that a chart drawn up and signed by the parties during the mediation, 
    • was sufficiently certain to be enforced according to its terms; and,
    • was admissble into evidence under section 1123(c) despite its failure to satisfy any of 1123(c)'s requirements.
  • THE RULES:
    • Evidence Code section 1123(c) provides that a "written settlement agreement prepared in the course of, or pursuant to, a mediation, is not made inadmissible, or protected from disclosure . . . if
      • "the agreement is signed by the settling parties and any of the following conditions are satisfied . . .
      • "(c) all parties to the agreement expressly agree in writing . . . to its disclosure."Id. (emphasis added).
  • PROCEEDINGS IN THE TRIAL COURT
    • Without finding that the settlement "chart" constituted a "written settlement agreement" under section 1123, the Thottam trial court required one of the parties to testify about otherwise confidential mediation communications because the Confidentiality Agreement required the disclosure of mediation confidences "necessary to enforce any agreements resulting from the [mediation.]"
    • Apparently before Elizabeth could testify, the civil action to enforce the alleged settlement agreement was consolidated with other proceedings in the Probate Court,
    • at the trial of the consolidated matters, the Probate Judge refused to accept the settlement chart into evidence because it did not comply with the provisions of section 1123(c).
  • THE APPELLATE DECISION
    • the appellate court reversed the Probate Court's decision.
  • THE HOLDINGS
    • Section 1123(c)'s requirement that all parties to a mediated settlement agreement "expressly agree in writing . . . to its disclosure,"
      
      • may be satisfied by terms contained in a writing other than the alleged settlement agreement itself; and,
      • may be satisfied by terms contained in a writing executed before any alleged settlement agreement has purportedly been entered into.
    • Here, the Confidentiality Agreement satisfied those requirements; and,
    • The skeletal written settlement chart was enforceable because its material terms were, or could be made, certain. 
  • RATIONALE
    • Because the proceeding in which Appellant attempted to introduce the alleged settlement agreement was an action "to enforce what he claims is a settlement agreement reached in mediation," and,
    • the parties carved out of the Confidentiality Agreement any discussions that were "necessary to enforce any agreements resulting from the [mediation]"
    • the Confidentiality Agreement satisfied the requirements of section 1123(c); and,
    • the skeletal Settlement Chart was therefore admissible in evidence under that subsection.

This opinion threatens to blow a hole in sections 1119 and 1123 large enough to obliterate their protections -- protections that have been repeatedly enforced to the letter of the law by the Supreme Court in its fairly recent Fair v. Bahktiari opinion -- holding that parties to a mediated settlement agreement must include in it an express provision that they intend to be bound thereby -- and Simmons v. Ghaderi  in which the Court held that parties cannot impliedly waive confidentiality nor be estopped from asserting it.

Most Confidentiality Agreements I've seen (and used) naturally carve out an exception for the enforcement of a settlement agreement.  If you sign such an agreement after Thottam, you risk the enforcement of a non-1123-compliant "settlement agreement" and risk being required to disclose otherwise confidential mediation communications on the sole ground that one of the parties alleges that the opposition entered into an enforceable settlement agreement during the mediation.    

Were I attempting to resist the disclosure of mediation confidences my adversary claimed should be fair game under Thottam, I'd contend that the Thottam Confidentiality agreement, and hence its carve-out, was unusually broad and that the Court's holding should therefore be read narrowly and limited to its facts.  

As California lawyers know, the Second Appellate District has jurisdiction over matters litigated in the Los Angeles Superior Court.  It is therefore particularly important to take a look at the impact this decision might have upon matters mediated by the neutrals on that Court's pro bono or party pay panels.  All such parties are required to sign a Confidentiality Agreement that protects from disclosure all mediation-related "written" and "oral communication[s] made by any party, attorney, neutral, or other participant in any ADR session" except  "written settlement agreement[s] reached as a result of this ADR proceeding in an action to enforce that settlement."

Under Thottam, a colorable argument could be made that the mandatory Superior Court Agreement's confidentiality "carve-out" should be treated as either:

• an express agreement by the parties to waive confidentiality for the purpose of enforcing "written settlement agreement[s]" even if they do not satisfy the requirements of section 1123(c); and/or,
• a part of the alleged settlement agreement so that the two agreements together (confidentiality carve-out + non-compliant settlement agreement) satisfy the requirements of section 1123(c).

What to do?  Don't sign any Confidentiality agreement that could possibly be interpreted in a manner similar to the one subject of Thottam unless you want to risk the disclosure of mediation confidences arising from a writing that does not comply with section 1123(c).    

You can certainly refuse to sign the Superior Court's agreement in light of the Thottam holding.  I don't know as a matter of Court policy whether that limits parties' ability to use the Court's pro bono or party pay mediators. 

I'd have to say that this case puts confidences made in mediation sessions controlled by the Superior Court's Confidentiality Agreement at risk whenever one party is contending that the other entered into an agreement pursuant to a signed term sheet.

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In the actual news (the New York Times) are the results of a new study finding that

most . . . plaintiffs who decided to pass up a settlement offer and went to trial ended up getting less money than if they had taken that offer . . . 

Plaintiffs, however, are not the only ones who made the "wrong" decision -- defendants were mistaken in 24% of the cases.  Defense errors, however, were far more costly. 

getting it wrong cost plaintiffs . . . about $43,000 . . . For defendants, who were less often wrong about going to trial, the cost was . . . . $1.1 million.  

What to do?

It's no answer to say " take the last best settlement offer,"  though one party or the other will 80 to 90 percent of the time and often on the courthouse steps, i.e., at the point of a gun when decision-making is at its most flawed. 

Nor, I must concede, is the answer simply mediation, which is, after all, pretty much a pig in a poke.  Why?  Because mediation practice ranges all the way from

• a retired judge bullying an "injured, situationally-weakened client with no negotiation skills" (cf. Max Kennerly's recent post at  the Litigation and Trial Blog) or disrespecting a marginalized defendant (cf. Dr. Ghaderi)  
• to a mediator who knows only how to repeat "trial is expensive and the result uncertain"
• to a settlement officer who does nothing more than shuttle numbers back and forth between two rooms
• to a "transformative" mediator who allows the parties free reign to "vent" their "feelings" without helping them get a grip on the very real and serious consequences of the negotiated resolution that has been proposed to them.  

A friend of mine who is a psychoanalyst once told me that patients get better in therapy despite their analysts' "technique."  It's the relationship that's curative, she told me.  A patient in need will find the water of healing in the desert of a therapist's theory.  If the same can be said of mediation -- that it's the relationship that's curative -- the question that naturally arises is whose relationship?  

Why the disputants of course, which is why I recommend joint sessions.  Not stylized adversarial position-based, chest-thumping, shoe-banging joint sessions ("we will bury you") but interest-based, inquisitive, collaborative, reality-testing mediator-and-attorney directed negotiation sessions. 

Before talking about joint sessions, however, let's look at the problem every litigator faces when advising his/her client whether to accept, make, or reject a settlement offer.  

The Problem in Bullet-Points

• we can't predict the future (darn)
• we think so much like lawyers that we've fogotten how to talk to juries like normal people (cf. Gerry Spence)
• too few of us get to try enough cases to be any good at predicting results based on experience
• we're subject to all the cognitive biases every other human being is, including,
  • self-serving bias -- the tendency to evaluate ambiguous information in a way that "fits" our existing view of the world
  • egocentric bias --  recalling the past in a self-serving manner
  • hind-sight bias -- filtering memory of past events through present knowledge
  • bias blind spot -- the tendency not to compensate for our biases 
  • optimism bias — the systematic tendency to be over-optimistic about the outcome of planned actions
  • overconfidence effect -- when we say we're 99% certain, we're wrong 40% of the time
  •  fundamental attribution error -- the tendency to over-emphasize personality-based explanations for behaviors observed in others while under-emphasizing the role and power of situational influences and reversing this error when the behavior at issue is our own.
  • Just-world phenomenon — the tendency for people to believe that the world is "just" and therefore people "get what they deserve"
• We get so stuck in our positions that we fail to ask diagnostic questions that have been proven to result in significantly better negotiated outcomes for both parties.
• We're so averse to leaving money on the table that we walk away from negotiations without having learned that our respective "bottom lines" actually overlap

Joint Sessions

My friend Judge Alexander Williams -- the soon to retire full-time settlement Judge in the downtown Los Angeles Superior Court -- has the following poster hanging in his jury room.

The surface is what the lawyers know.

The depth and breath; the texture and particularity; the details of the dispute and the desire for justice that exists on both sides, is known only to the litigants.  And they haven't (and won't) tell you what they know or want.

Why you should never leave a mediation or settlement conference without letting a skilled mediator facilitate a joint session in which the litigants can explore their joint interests and conflicting goals will be the subject of my next post.

See also Nuts and Boalts (You Had Me at Your Initial Offer) which directs us to Prospect Theory as a good explanation for our settlement errors.

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Big or small, litigation is never just about money.  Nor is settlement just about the strength of the parties legal positions or even the relevant facts.  Here, as reported by the Wall Street Journal Law Blog in Is It a Settlement? Wilson Pays Brocade to be Released From Backdating, its also about relationship and cooperation and respect.  Who knew?

So why would the S[pecial Litigation Committee] release [Wilson Sonsini] and Larry Sonsini? The SLC wrote that it weighed the opinion of a legal ethics expert as well as testimony and documents related to Sonsini and the firm’s roles at Brocade. It also listened to Sonsini and his firm’s “contentions that Brocade employees misled WSGR about stock-option grants” and that the firm had negotiated a good settlement with the SEC and helped avoid DOJ action against Brocade. The committee also considered the firm’s longstanding relationship with Brocade and the firm’s “willingness” to help the company resolve any “outstanding questions” about the backdating.

For the entire WSJ Law Blog post, click here.

Below -- Annie Lennox' Money Can't Buy It -- with a little Demi Moore Striptease for our gentlemen readers' mid-week enjoyment (with apologies to the puritanical and those who simply can't abide Demi Moore).

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Check out Underdog's Blog post Practicing non-anger if you're feeling stressed and cranky.   Because there's a riot of unruly pre-school children residing inside of me, I too center myself as often as possible by remembering that everything is internconnected.  Here's what DUI attorney Jon Katz does to keep himself from boiling over.  

One approach I try to use in staying consistently calm and not angry is in focusing on how everyone ultimately is interconnected. Those who reach such a view from a deeply-held religious perspective -- which I do not, still remaining an agnostic who is into Judaism and Buddhism nonetheless -- might have an easier time sticking to the view than I do.

In any event, the more we see that we are interconnected, the less we will be tempted to cause disharmony to others and the more we will want to help everyone rise as we rise, and not to try to pull them into a ditch even if we find ourselves in one.

Read the remainder of the post here.

I was just telling Mr. Thrifty over the dinner dishes that my life as a litigator got far far better when one of my biggest and most enduring pieces of litigation was assigned to Judge Carolyn Kuhl over at the Complex Court here in Los Angeles.  She set such an even-tempered example that opposing counsel and I aspired to live up to it.  We wanted to please her.  Everything got better after that.  

That led me to think about the way Judges' ill tempers effects their dockets.  The Judge bats the attorneys around the courtroom like cat toys and they begin to behave like caged animals on an electrified grid.  The attorneys behave badly and that irritates the Judge who demeans and belittles them.  The attorneys then demean and belittle each other and everyone is trapped in the vicious cycle. 

Maybe if Judges realized that they have this effect on attorneys, they'd adjust their own attitudes and see the attorney wrangling before them chill out a little.

Thanks for the wise words, Jon.

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Change your definition of “winning” to include the business perspective. “Winning for the business” may not mean victory in a trial but preserving management time and protecting the business’s reputation and brand.  From Early Case Assessment from Seagate Services.

Seagate is selling an e-discovery product (reason number one for leaving commercial litigation now -- e-discovery).  But the quote above nails my own attitude toward resolving complex commercial disputes.

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This may be the biggest break-down in attorney-client communication in the history of litigation.  Because this public statement by Allstate about its former attorney would be highly defamatory if not true, I'm taking Allstate at its word here.   

Allstate claimed that it had not deliberately flouted Manners’ orders. Rather, it said, its now-former attorney — then with the firm of Wallace, Saunders, Austin, Brown & Enochs — had failed to respond to discovery requests.

Allstate said it was appalled when it learned last year that it was being threatened with contempt.

“Allstate litigates hundreds of bad faith cases each year,” Allstate stated in court documents. “And it responds to discovery requests — just like the ones in this case — in many of them. There is no reason in the world for Allstate not to participate in discovery — particularly in this case, where there is an underlying judgment of $1 million.”

Allstate said it “immediately removed” the attorney from the case and retained new counsel.

Read the article about the lifting of the daily $25,000 contempt sanctions against Allstate in the wake of its settlement of the bad faith action in which they were imposed here.

The answer to the question "how to break bad news to my client" can be found at any of the links below.  Most of these links are for health care professionals, who have to break bad news to their patients and their families far more often than we have to tell our clients that something went terribly awry.  Put that at the top of your attorney gratitude list.

The Breaking Bad News Web Site

Breaking Bad News by Telephone

A Framework for Breaking Bad News  (anyone who read my Negotiating Life's End series knows that my father's physician could have used this excellent framework for delivering bad medical news to a patient's family)

Another excellent British source on breaking bad news listing the following traps for the unwary (partial list):

• Do not avoid seeing the [client] or leave them anxiously waiting for news. Sometimes anticipation can be worse than even the worst reality.
• Treat others as you would wish to be treated yourself.
• Get the facts before you start.
• Make sure you will not be disturbed. If necessary switch off phones or bleeps.
• Be factual but sympathetic. Always be empathetic however you may feel personally.
• Give time for the information to sink in and the opportunity to ask questions before moving on. Do not seem rushed.
• If the [client] does not seem able to take any more be prepared to end the consultation and to take it up again later.
• Look for all the cues, verbal or others. , , , Perhaps they would like you to speak to someone else or to have someone with them for the next meeting.
• Never say that nothing can be done or the [client] will lose all hope.
• Whilst trying to be positive never lose track of the fact that this is a serious and potentially fatal [reverse in the litigation].  Be optimistic but do not promise success or anything else that may not be delivered.

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The Wall Street Journal Law Blog (Don't Wear Flip-Flops and Other Advice for Summer Associates) points us to a valuable new site for young associates (and would-be associates) -- The Hiring Partner's Office.   Whether or not this anonymous blog is posted by a hiring partner or a savvy summer associate makes little difference to the quality of the advice provided.  Check out Top Ten Things that Annoy Your Hiring Partner, one of which recognizes what most summer associates don't yet know -- the power in the firm as far as you're concerned, rests with people you might be naive enough to believe are "beneath" you. 

Number three on the list of what not to do this summer is --     

Being rude to support staff. If you say thank you to everyone who helps you, you would be amazed at how the staff will respond. Support staff work hard to help make you and the firm look good to clients and other third parties. DO NOT treat them like doormats. DO treat them with respect and show your appreciation.

Why do we mention this in a negotiation law blog?  Because you need to know who the secret stakeholders are when you are attempting to resolve any conflict or broker any deal.  They are not who they appear to be. 

And, head's up!!  "Your" secretary has been "practicing law" for decades.  S/he knows the judges, the court reporters, the clerks at the courthouse and the pecking order in the law firm.  S/he also knows where the bodies are buried.

Be nice.  Be teachable.  Learn.  Thrive.

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O.K., the subject line was meant to shock you and to draw criticism for what I will admit is my greatest unresolved prejudicial default -- that white men over 65 who didn't participate in the  American cultural revolution of the late nineteen sixties and early 1970's did not and will never "get it." 

The Court opinion that triggered the headline and the recollections below is here.  The "executive summary" is as follows:  One of three arbitrators who cast the deciding vote on a plastic surgery malpractice case

• failed to disclose that he'd been censured while on the bench for making "sexually suggestive remarks to and asked sexually explicit questions of female staff members; referred to a staff member using crude and demeaning names and descriptions and an ethnic slur; referred to a fellow jurist’s physical attributes in a demeaning manner; and mailed a sexually suggestive postcard to a staff member addressed to her at the courthouse.” 
• The majority arbitrators deciding the malpractice case stated that the female claimant was not credible because the "severity of the symptoms to which she testified went beyond what she described to her doctors, adding, “This claimant has had five prior facial surgeries.”
• Similarly, in summarizing the claimant's expert’s testimony, these arbitrators noted, “One thing probably everyone can agree upon, after five facial surgeries, [claimant] could have done without a sixth one.”

Back to My Own History as Descriptive of --  But No Excuse for -- My Own Biases

We all have biases that we hide from others and some that we successfully hide from ourselves.  

We live, I'm told, in a 200 year present.  That means that my early life affects your life today.  After all, I'm an old white woman, about whom you may well have biases.  If I sit on your arbitration panel, you're going to want to understand those biases.  That's why I'm giving you a bullet-pointed history of what the world was like when I was forming my essential character at 17 years of age in 1969.

• the "want-ads" in the classified section of every major newspaper in American were categorized by gender -- "help wanted - women" and "help wanted - men"
• in my senior year in high school, my entire class took "preference aptitude" tests to give us an idea of what our future careers might look like -- the girls were given "pink" tests and the boys "blue" tests -- had I shown an aptitude for, say, math (and no I didn't) I would have been steered into nursing; my male friends into "medicine" as physicians.
• women were subject of explicit ridicule in magazine and newspaper cartoons -- we were airheads, bimbos, bad drivers, harpies or -- the "new" stereotype -- communist-longhair-folk-singing-America-hating-hippie-riot-inciting-"girls" who were alternately "men hating" or -- an old phrase -- "of easy virtue."

• it wasn't until the 1970's, when I was in college and already planning a career teaching English (after all, nursing required math-skills) that the idea of a career in the law for women as anything other than a secretary began to seem possible.
  • at Columbia Law School, the 1970 graduating class was only 8% female
  • by the year I graduated from law school in 1980, Columbia's female population had grown to a whopping 32%
  • although the enrollment of women in my law school class at U.C. Davis was nearly 50% in 1980, when I told my beloved mother in 1976 that I was going to apply to law school she said "why do that, honey?  Be a legal secretary, then you can marry a lawyer."
  • when my husband attended Yale Law School ('67-'70) he had seven women classmates
  • until the late sixties and early seventies, a woman desirous of an Ivy League university education had no choice but to go to a "woman's" school -- Barnard, Radcliff and the like.
• when I was in high school
  • abortion was illegal
  • married women were not entitled to their own credit cards
  • gender discrimination was both de jure and de facto -- it was o.k. to refuse to hire, sell to, rent to, deny membership to, etc. -- women
• when I  was practicing law (these all from the early '80s)
  • a partner for whom I worked told me that women weren't permitted at the local "men's only" club because "we don't want our wives there."
  • a Judge required me to identify myself as Mrs. or Miss and when I said I didn't think it necessary to identify myself by my marital status, asked "what are you some kind of [women's] libber?" (yes, I lost the motion)
  • I was advised by the few women attorneys senior to me not to get pregnant until after I made partner
  • secretaries were allowed to refuse to be assigned to a woman attorney
  • the first woman to make partner at my law firm was quite openly referred to as "the first muff partner" by her colleagues 
  • on the other hand, when a client said (of my assignment to its case) that the company did not want to be represented by a "girl," my partner told the client "then you don't want this firm representing you because she's the best associate I have"

I promise to work on my prejudices.  And I advise anyone who is about to appear before any dispute resolver -- be that person male, female, white, black, young or old, GOOGLE THEM FIRST!

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This just in from the Met News for California practitioners. 

Where minor entered a settlement agreement with a third party tortfeasor by and through a guardian ad litem, and court made an allocation of the medical expenses portion of the settlement in the order approving plaintiff’s compromise, trial court did not err in rejecting plaintiff's later motion to reduce the amount of Medi-Cal lien against settlement proceeds by the same percentage that the settlement bore to the overall value of plaintiff’s case. 

Espericuenta v. Shewry - filed July 1, 2008, Second District, Div. Two Cite as 2008 SOS 3901

Question:  how do you determine the "overall value" of the plaintiff's case in order to reduce the lien by the same percentage that the settlement bears to that value?  Declaration by the Plaintiff's attorney?  Anyone who's actually read this case, do let my readers know! 

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(right, our ancestor, built for fighting)

In How to bargain with aliens, Marginal Revolution asks its readers the following questions:

 Let's say you meet up with an alien race and you need to bargain with them by radio or some other method of signaling. You don't have any other information other than your knowledge of human beings. What traits should you think are overrepresented in humans, relative to what a rerun of evolution can be expected to produce in an intelligent being? Would you expect them to be more or less benevolent than humans?  Should it matter if they have demonstrated superior technology? Should such achievement make you think they are more or less cooperative toward "outsiders"?

I suspect that all of these questions are meant to lead to the conclusion that "people" from more advanced civiliations would naturally be more peaceful, less aggressive and more cooperative with one another than we are. 

Why?  Because scientific and technological advancement occurs more quickly and is less prone to error if researchers are collaborating with rather than trying to "scoop" one another..

And the traits that are "overrepresented" in human beings?  Aggression of course.  As reported last year in MSNBC's Technology and Science column:

Even though [our primate forbears the] ustralopiths walked upright on the ground, they retained short legs for 2 million years for the same reason squatness helped out other great apes—for male-male combat. With the advantage in combat, short-legged primates would likely be victorious and gain access to females. That meant passing their genetic traits, like shortness, to offspring.

Could intelligent human beings have evolved without aggression?  Certainly. 

Chimps vs. Bonobos.

Over at theIP ADR Blog, */ we quoted author Nicolas Wade's 2003 comparison between the aggressive, violent, male-dominated, territory defending style of the chimpanzees with the gentler ways of the bonobos as follows:

researchers Male[] and female[] [chimpanzees] do not associate in families but in separate hierarchies. Males make females defer to them, with violence whenever necessary, and every female is subordinate to every male.

A female chimp advertises her fertile period with a visible swelling and is then so pestered by males that she may get to eat only at night. . . .

Though bonobos are almost as aggressive as chimps, they have developed a potent reconciliation technique -- the use of sex on any and all occasions, between all ages and sexes, to abate tension and make nice.

Assuming the common ancestor of people and chimps had social behavior that was essentially chimplike, how much of that behavior has been inherited by people? The unusual behavioral suite of male kin bonding and lethal territorial aggression may look as if it has been inherited with little change. Among the Yanomamo, a South American tribe, the number of males who die from aggression is about 30 percent, the identical rate found among Gombe chimps.

Dr. Wrangham said the consistent pattern of aggression seen at all the chimp sites suggests that male chimps have ''a strong emotional disposition'' to be aroused by the sight of strange males, to form coalitions against enemies, to be sensitive to balances of power and to be attracted to hunting. The same disposition could have been inherited down the human lineage.

Turns out Freud was right.  Aggression is all about sex.  But it's also about tool-making (i.e., weaponry).  So we have evolved to be competitive and collaborative.  Tool making to ease our work-load and to kill our "enemies."  So far, our advances continue to outpace our many attempts to destroy ourselves.

What might have worked for the advancement of other civiliations?  If all possible worlds exist, as physicists claim, other worlds may well have developed life in some way other than evolutionarily.  Maybe by intelligent design!  There's simply no telling.  I would, however, speculate that a species taste for its members blood must be balanced by affiliative instincts and activities or its development would be cut short by species-cide.

The take-away for negotiators who are strangers in a strange land?

Learn how to communicate with the aliens.  Ask them questions concerning their needs, interests and desires.  Tell them about your own.  Put down your weapons and back slowly away.

Anyone who is as fascinated by these questions as I am, read this post from Such is Life about whether or not we'd "see" aliens if they arrived on our shores.  Answer?  Not likely.  

______________________

*/ And, no, the accompanying photo there is not from Judge Kosinzski's stash.

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Gini Nelson of Engaging Conflicts ran a six-part series recently on "Adding Cooperative Practice to the ADR Toolkit."  Her final part in this series -- linked supra -- is the final entry of Guest Blogger Law Professor John Lande’s posts.  Linked here is his article The Promise and Perils of Collaborative Law -- which is also linked in Gini's blog with her comments here.

Before you run over to Gini's site to read Lande's excellent post or his great article, I'd like to simply bullet-point some observations based upon my four-years of full-time mediation and arbitration practice.

• when I co-arbitrate with some of the best commercial arbitrators in the business -- these are Ivy League lawyers with many decades of experience representing Fortune 50 Companies in AmLaw 100 Law Firms, the ultimate decision changes many times during the course of deliberations and almost always could go either way.
• having spent a considerable time in the Los Angeles Complex Court as an experienced commercial litigator "externing" for credit to earn my LL.M in '06, I can tell you that the deliberations in chambers of these highly respected jurists is not much different that those in which I have engaged when sitting on an arbitration panel

The take away?  No matter who is hearing your case, your chances of winning are 50-50.  Flip a coin.  Think this doesn't apply to you?  I have arbitrated cases being handled by the top ten law firms in the country.  I have seen those same type of firms litigate and try cases in the Complex Court.  It's 50-50 friends.

Below -- observations on how you and your mediator can be "happy together."  (And the Turtles from 1967 so that you can have a little musical accompaniment to this post) 

Observations of End-Game Litigation from a Mediator's and Settlement Consultant's Perspective.

Despite years of inquiry and the review of millions of documents, sophisticated parties (Fortune 50) represented by dynamite law firms (AmLaw 50) haven't yet learned the most fundamental information about the following matters -- most of which are more important to the settlement of the case than the cost-detriment-benefit-position-driven-chance-of-victory settlement posture:

• what are the hidden interests that your opponent must satisfy before accepting a settlement that is below the number he once told his client should never under any circumstances be accepted?
• what are the hidden constraints upon your opponent's authority that must be removed before he can pay more money than he once told his client should never under any circumstances be paid?
• why was this litigation initiated in the first instance?
• who gave the litigation the "green light"?
• what are the probable consequences to the continued financial security of the person who gave the litigation the "green light" in the first place or who has authorized the defense bills for the last 5, 10, or 15 years?
• is the person who green-lighted the litigation in the first place still employed by your client?
• what are the probable consequences to the financial well-being of the corporation who must pay more than it wishes to pay or accept less than it wishes to recover?
• Who is the most frightened person in the room, i.e., whose hide might be sacrificed if the litigation settles for more/less than predicted, or, often worse, actually goes to trial.

There are so many of these settlement-driving and -inhibiting questions that only my own personal time contraints -- I must start my day's work -- make me stop listing them.  

Let me conclude with this however.  Never underestimate your client's reluctance to settle the case on terms that seem unjust to it.  This is the most important function a mediator can play on the day of settlement -- explaining justice issues to the clients and helping the clients de-demonize their opponent -- which occurs most easily in JOINT SESSION yet which most litigators would rather have their teeth drilled than attend.

O.K. I can't conclude without saying this.  If you have the courage to try a case, you possess the cajones to participate in at least one joint session to help the parties come to terms with the justice issues -- which are often driven by the conclusion, affirmed over and over again in the course of the litigation, that their opponent is an evil, mendacious, grasping, greedy, malicious, duplicious lying liar with his pants on fire.  

This is almost never true.  The parties on both sides almost always possess equal parts of good and bad, just like the rest of us. 

Let your parties re-adjust their perception of "the enemy" in joint session.  I can almost guarantee you that a conversation will ensue in which the parties spontaneously tell each other what interests they really need to satisfy to settle and what constraints they are really working under.  And I don't guarantee a lot of things. 

Why can't I do this for the parties?

Because often neither side will disclose these matters to me because they don't trust that I won't use that information to help settle the case and because the parties won't believe what I say about their opposition in the first place (obviously, they've pulled the wool over my eyes). 

"How do you know he's not lying?"  is a question mediators are asked on a regular basis.  My answer is "I have no idea."  But if you let your client talk to the opposition -- with any constraints, restrictions and control you wish to retain -- which I can orchestrate for you -- your client will be able to elicit the details that give any story a ring of truth (or falsity) while at the same time watching the body language that constitutes between 60 and 80% of all communication.

Would you try a case without 80% of the information you need?  Of course not!  And yet you're content to avoid a joint session when that session could provide you with between 60 and 80% more information than you had when you arrived on the morning of the mediation or settlement conference?

Suspend your disbelief in the mediator ("who-will-do-anything-to-settle-the-case") for just a couple of minutes.  Remember that we're in possession of confidential information we cannot divulge to you.  

Take our lead.  And if you don't trust us to do so, for heaven's sake find a mediator you can trust!

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The cost of a thing is the amount of life that you must exchange for it -- now or in the long run (Thoreau)

• if you have an on-going relationship -- even as limited as a note payable -- squeezing the last nickel out of the deal may impair your bargaining partner's ability to perform 
• what goes up, must come down, i.e., squeezing out the last nickel creates enemies who  none of us can afford when times are good, let alone when times are bad 
• taking advantage of another's weaknesses tears at the social fabric
• it makes us all more watchful and less productive
• it doesn't actually feel good to line your pockets with the misery of others
• sometimes the downtrodden rise up -- every couple of centuries or so, creating an entirely new order -- the generous man and woman will not be on the wrong side of that revolution
• global warming -- think about it -- the order will change as will the countries who will be asking for favors
• you reap what you sow (I'm pretty sure I learned this in Sunday School)
• social relations do not exist "out there" -- they are co-created by one person's relationship with every other person -- the society you inhabit is the one you create -- if you don't want your neighbor taking your last dime, don't take his
• collaborative effort results in greater progress than individual activity -- if you decrease trust, you impede advancement in business, the arts and science

Readers!  Can I count on you to give us all more reasons?

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You know, I've been reading the Daily Journal my entire legal career.  I never gave much thought to the men and women whose job it is to report the daily legal news.  Now I have.

There's a reporter at the DJ named Noah Barron who not only reported my dad's passing, but talked on the telephone with me for more than an hour at a time when I really needed to talk about my dad to someone who makes his living being curious about people's personal lives.  It made a huge difference in my experience of my father's passing.

You see.  We make these differences in one another's lives all the time.  We just usually fail to acknowledge one another for it. 

So I want to thank Noah for the article carrying his by-line published in the DJ today.  

And I want to thank Dad for following his own best advice from our river rafting adventures:  keep your oar in the water (for balance) and paddle through your fear.  I would never have had the courage to go to law school were it not for the example he set -- which you can read about in Noah's fine article below. 

DAILY JOURNAL NEWSWIRE ARTICLE
© 2008 The Daily Journal Corporation.
All rights reserved.
-------------------------------------------

June 17, 2008

JURIST FOUGHT FOR GAY RIGHTS BEFORE IT WAS POPULAR
By Noah Barron
Daily Journal Staff Writer
This article appears on Page 2

LOS ANGELES - Superior Court Commissioner Donald W. Pike was a self-made millionaire, a self-taught thinker who went to law school but never college, an adventurer and a legal pioneer who broke ground on gay marriage rights three decades before it was fashionable. He died in his Los Angeles home on his 84th birthday on June 9 from complications from Parkinson's disease.

Back in 1982, the Daily Journal profiled Pike, setting down in print many of the stories that came to form the man: his impoverished beginnings in Nebraska, the fifth of nine children, his family's "Grapes of Wrath"-esque exodus to California and his early jobs as a child of 14 working as a farm laborer.

Before he was appointed commissioner to the Los Angeles County Superior Court bench, he was a milkman, an insurance salesman, a merchant marine in World War II and a lawyer, and then in his 60s became a millionaire through his real estate investments.

"I am ridiculously proud of my father," Pike's daughter, Victoria Pike Pynchon, said. "He took every opportunity to improve his station in life and improve the future of his children. But he didn't accomplish these things alone. No one does."

Pike's marriage collapsed in 1962 and he moved from Los Angeles to Sacramento to start a new life.

Later, presiding over domestic cases in Los Angeles, he would say that his failed marriage gave him special insight into family woes.

"Having had two marriages helps me understand family law," he said in a 1982 Daily Journal profile.

Pynchon said she was deeply hurt when Pike left home but reconnected with him as an adult, becoming a lawyer herself and watching him on the bench. She said he sometimes grew emotional during custody battles.

"He would call a recess whenever he was going to burst into tears," she said. In describing his leaving his family, Pike said, "I was terribly guilty."

Pike was 35 before he earned his high school equivalency. When he set out to start over in his 30s, he visited a a psychologist whose IQ test told him for the first time that he was intelligent.

"I thought the rich were smart and the poor were dumb," he said in a 1982 interview.

"He lived in fear of poverty," his daughter said.

Pike wasted no time, passing a college equivalency test offered by the State Bar and then attending McGeorge School of Law by night while delivering Dad's Root Beer by day, sending support checks home all the while. He passed the Bar Exam on his first attempt.

Gary Pike, the commissioner's nephew, said that while Pike was practicing civil law, he drafted contracts for gay men and women that emulated the rights of married couples.

The work reflected a legal sensibility decades ahead of its time, Gary Pike said.

Retired Los Angeles County Superior Court Judge Eli Chernow worked with Pike when Pike was a commissioner, from 1973 to the mid-1990s.

"He was a good friend and great colleague. He left a big hole when he left the bench," Chernow said.

Pike is survived by his wife, Juanita; his two daughters Sharon Lawrence and Victoria Pynchon; and two grandchildren. Four of his nine siblings are still alive, Oscar, Lois, Dorothy and Kenneth Pike.

Private memorial services will be held in Pynchon's Los Angeles home. Instead of flowers, the family asks donations be made in Pike's memory to the Alliance for Children's Rights at http://www.kids-alliance.org

noah_barron@dailyjournal.com

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Here I am again hectoring litigators about their obligations to determine whether or not their clients have insurance, to decide whether that insurance might cover the claim or suit against them; and, make a timely demand for coverage, particularly under E& O claims made policies.

Professionals and business people hesitate before tendering "claims" to their insurance carrier because the no. 1 response to conflict is denial.  This is particularly true where a professional's or business person's competence has been called into question.  You don't want to admit that you might have committed malpractice to yourself let alone to your insurance carrier.

This is a particular problem for professionals because Errors and Omissions insurance generally requires claims to be both made and reported during the policy period.  Often, litigators don't see clients until after they've been sued and clients generally don't get sued unless there's a previous demand letter (i.e., a claim). 

So what's the very first thing litigation counsel must do?  Get a copy of the E&O policy and the first demand letter.  Tender the defense and indemnity of the action to the carrier immediately.

You might get a little fudge room by reporting the claim when suit is filed, but if your insured doesn't report the claim in its application for coverage the following year, the carrier will deny coverage on the ground of non-disclosure.

Come to think of it -- transactional attorneys should remind their clients of their obligations to report claims when made, no matter how feeble the claim may look.  Take a look at yesterday's ruling on what constitutes a claim with thanks to the Met News for the summary and LACBA for the daily email summaries.

Where policy defined a "claim" as a written demand for civil damages or other relief commenced by the insured’s receipt of such demand, a letter from a third-party claimant’s attorney to insured informing insured that the third-party claimant had been subjected to discrimination and received a right-to-sue letter and suggesting a settlement constituted a claim. Although the letter did not expressly demand payment or refer to any specific amount, the meaning was clear that, absent some form of negotiated compensation, the claimant would sue. Where policy stated that all claims arising from the same events or series of related facts could be deemed a single claim, and third-party claimant filed litigation authorized by the right-to-sue notice mentioned in the letter, the lawsuit was part of the same claim as the letter under the policy. Where insured did not notify insurer of the claim until after the lawsuit was filed, insurer’s notification was untimely, and insurer was not required to tender a defense.

Westrec Marina Management, Inc. v. Arrowood Indemnity Company - filed June 16, 2008, Second District, Div. Three, Cite as 2008 SOS 3511, Full text http://www.metnews.com/sos.cgi?0608%2FB195047.

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If you serve a 998 offer on the Plaintiff, say $5,000, and Plaintiff's judgment is reduced to zero after set-off for settlements, is the Defendant entitled to recover the costs permitted by 998 if the judgment against it is reduced to zero after the court deducts from the jury verdict the amount of pre-trial settlements paid by others?

Well, yes and no.

If the Plaintiff's recovery at trial would have netted it more at the time of the 998 offer than the 998 offer itself, 998 does not shift post-998 fees to the Plaintiff.  If the 998 offer was $5,000, the jury verdict is $10,000, and no settlements had been paid to Plaintiff at the time the 998 was served, Plaintiff's failure to accept the 998 does not shift post-998 costs to it.  If, however, the Plaintiff had already received $10,000 in settlement at the time the $5,000 998 was made and the jury renders a $10,000 verdict that is reduced to zero, 998 will shift the post-998 costs to the Plaintiff.

Are we clear?

Crystal.

If not, Guerrero v. Rodan Termite Control sent down today by the First Appellate District is a must-read.

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I've linked to Negotiating:  Thinking it Through from the Business Growth Blog before, but haven't quoted the Eight Preparation Questions listed there.  The more I mediate (yes, one's practice does grow) the more I'm reminded that litigators resist interest-based bargaining techniques. 

I get stuck in position-based negotiations as well.  It remains a challenge for me, after 25 years of litigation practice, not to be sucked into the attorneys' arguments about why they are right.  To help all of us in the mediation room . . .

[h]ere is a list of 8 questions you can ask yourself when you suddenly realize that you have to prepare for a negotiation. Use these to generate quick preparation for any negotiation.

1. What are my intended outcomes and interests?

This is about having your goal in mind but also about thinking about the bigger picture at the same time - if you're goal is to get to work on time, speeding to get there might seem like the right choice until the cop pulls you over.

2. What are their possible interests and outcomes?

Look at the negotiaion from their point of view. What do they really want from this?

3. What are some of the options of agreement?

Where are the points of agreement? Focusing on this beforehand will set a tone of reaching agreement rather than a tone of conflict.

4. What is my Plan B?

Once you've thought through the first three questions, what's your fall back position? Having your Plan B in mind gives you a feeling of options so if the deal goes to far against you, you are comfortable with your option B.

5. What is my worst case scenario?

Answering this question sets your "don't cross" line. You've predetermined what you're willing to give up and more than that is a deal breaker… that means you can negotiate confidently, since you know your direction.

6. What are some possible external standards?

External standard are outside measures that can move the negotiation away from personal stakes to measures from an outside authority. Examples might be interest rates, rate of exchange or time frame.

7. What is or are my reserve price / terms / limits?

Knowing what your limits are and then not not going past them results in more useful and enjoyable negotiation.

8. What is my game plan?

Map it out. What do you want and how are you going to get there?

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It happened at a settlement conference again just last week. Defense counsel said there was "no insurance" for the defense or indemnity of a professional malpractice claim.

This naturally surprises me.  Some professionals are required to have coverage or disclose its non-existence to their clients.  No such disclosure had been made in this case.

"No insurance policy?"

"She has an insurance policy; there's just no coverage."

"Why did the carrier deny coverage?"

"The carrier said there was no coverage."

"Why?"

"I don't know.  I'm not coverage counsel."

"Is there coverage counsel?"

"No.  I told you there's no coverage.  Let's get back to negotiating the settlement."

After obtaining (via fax) the policy, the demand and the denial, it turned out that there was a good reason for the carrier to deny coverage for the plaintiff's claim.  But the denial letter expressly withheld comment on the existence of coverage for the defendant's principal, who had not failed to make a timely claim for coverage, and who had not yet been sued.

Call me an activist or a "fund raising" mediator if you will, but when there's not enough money to settle a case and the parties continue to wish it could be settled, I start asking questions about sources of available funds.  

And, listen.  Every litigator must be enough of a "coverage lawyer" to evaluate the likelihood that any existing insurance policy might provide defense or indemnity for the law suit you are defending.  

So, if you are a commercial litigator -- or any type of litigator who defends your clients against claims -- you must

• ask your clients for all of their insurance policies, even those that seem unlikely to provide coverage;
• carefully review the precise wording of the policy's insuring agreements, paying particular attention to the language concerning the defense of claims and the deadlines for submitting those claims to the carrier;
• research the case law in the relevant jurisdiction(s) to determine how the courts have interpreted the insuring agreements and other pertinent policy provisions contained in your clients' policies under facts similar to those alleged in the lawsuit you've been asked to defend;
• except for some narrow additional protections provided to insureds, be aware that there is no such thing as "the law" of coverage under any particular type of policy -- all coverage flows directly from the precise language of the insuring agreement;
• remember that in most jurisdictions, that language -- if ambiguous -- will be interpreted in favor of the insured's objectively reasonable expectations -- that means the law of coverage always favors your client's claim for coverage; 
• understand that in most jurisdictions the rule of contra proferendum will require a court to construe any ambiguity in an insurance policy against the insurance carrier, once again meaning that the law of coverage will favor your client's claim for coverage; 
• never accept the carrier's refusal to provide a defense without asking yourself -- or a coverage specialist -- why in the heck you should accept the carrier's word for it when you were born to contradict everything from "good morning" to "let's have lunch";
• never conclude your client doesn't have coverage before tendering the claim; the response to the tender will outline the pertinent policy provisions in stark enough detail -- not to mention 12-point type -- and the denial in sufficiently weasley words to activate your B.S. meter;
• if you finally accept the fact that your client's policy won't cover the defense of the litigation or indemnify your client in the event of a judgment, continue to keep the carrier informed of the litigation's progress in any event, inviting the carrier to attend all mediations and settlement conferences and to respond to all settlement demands;
•  remember that the law of coverage changes on a daily basis; read those coverage decisions sent down by your local appellate courts and subscribe to Mealey's on coverage remembering that a really good reason for a client to sue a lawyer for malpractice is your failure to give it reasonably informed legal advice about the availability of insurance coverage; and,
• retain coverage counsel If the cost of the lawsuit is beyond your client's means or will deprive it of capital necessary to meet its business goals for the next few years. 

UPDATE:  See Perry Itkin's post about the perils of entering into a mediated settlement agreement without knowing your policy limits.  Also note that the result in the case cited by Perry would be different in  California if the provisions governing the enforceability of mediated agreements are not met . . . at least so long as the Supreme Court does what we believe it will in Simmons v. Ghadheri.  Excerpt from Florida Mediator below:

In Leff and Physicians Financial Consultants Corporation v. Ecker, M.D., 972 So.2d 965 [Fla. 3rd DCA 2007], the plaintiff went into the mediation conference without a clear picture of what the insurance policy limits were. Notwithstanding this limited knowledge, plaintiff chose to go ahead with the mediation and entered into an agreement at the end of mediation.

The Defendants filed a motion to enforce the mediated settlement agreement [Guess why! Good guess!]. The Plaintiff argued that a “mutual mistake” allowed him to avoid the parties’ mediated settlement agreement.

Not so fast   . . . .

Continue reading here.  There are two solutions to this problem in any jurisdiction:  (1) know your policy limits; or, (2) make your agreement to settle contingent on verifying them.  

For the seasoned attorneys in the crowd, take a look at Anderson Kill insurance recovery attorney Mark Garbowski's article at the Lexis New Attorney Hub:  Are You Covered While Doing Good?: Make Sure Your Employees Are Insured Even When Doing Pro Bono.

If you have a really really really really big insurance coverage matter, I recommend those seeking insurance coverage to call my own brilliant insurance recovery squad over at Dickstein Shapiro, particularly my beloved husband Stephen N. Goldberg.

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Lexis-Nexis isn't just about legal research anymore.  L-N is posting a broad array of practice development materials for new lawyers at its New Attorney Hub site here.  And you don't have to be an L-N subscriber to benefit.  All of the materials provided are free.

Though there aren't yet a lot of ADR skill development materials at Hub, I'm proud to say that they've included my posts Ten Settlement Conference/Mediation Traps for the Unwary and On the Job Deposition Training with their other Skill Building Materials. 

You can find Professional Skills, Practice Area Skills and Research and Writing Skills there.

The editors of these materials are combing the internet to provide the most up-to-date materials from some of the oldest hands in the business.  They contacted me, after all, and the one thing I do know myself is that I'm an old --- er, make that experienced -- litigator.

If the Lexis-Nexis people are tracking mentions of their Hub site in the blogosphere, I refer them to my link page here for additional materials -- particularly those included in the blogs listed in the ADR and Intellectual Property sections on that page.

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Brilliant piece on de-escalating conflict over at Tammy Lenski's Conflict Zen this morning.  Teaser and link below:  

The friendly bailiff unlocked the small courtroom. After telling me to make myself at home, he pointed to a small red button on the wall. “If you need me, just press that button and I’ll be in here faster than you can blink and eye. It’s an emergency button.”

“Ok, thanks,” I replied, and began to unpack my briefcase.

“I mean it,” he said. “Just press the button. Maybe you should set up your chair so you’re near it.”

I gave him a long look. “You seem to want me to know about that button. Is there something else you want to tell me?”

Continue reading here.

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I'll add these to my blog roll when I'm not rushing out the door.  For now, check out Jonathan Farrington's Blog post on Negotiation - Dealing with the Early Phases, a resource I have to thank the Business Growth Blog for, cited at the end of more excellent advice on Negotiating:  Thinking it through. 

Here's a teaser to get you to the Business Growth post:

Remember that classic scene in "Erin Brokovich" where the high powered, electric utility law team shows up in force to negotiate with the small town law firm? Ed Masry sees them coming in and gets all his staff to file into the board room so they have more "lawyers" on their side of the table… and overpowers the power brokers.

Would you like to have a system that helps you think on your feet like that?

Here is a list of 8 questions you can ask yourself when you suddenly realize that you have to prepare for a negotiation. Use these to generate quick preparation for any negotiation.

For the list of 8, click here!

Thanks guys!  Great advice in both posts with more good negotiation resources at the end of the Business Growth Blog post.

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Because I'm in this Forbes Business and Financial Blog Network, I figured I should finally take a look around to see what useful advice Forbes.com might have for my readers.  And sure enough, a Forbes.com search turned up How to Negotiate Like a Pro from the Entrepreneurs column by Lisa LaMotta.  Below an excerpt and the link here.

Life is one negotiation after another, though too few of us are equipped for battle. Formidable dealmakers like Warren Buffett, Bill Clinton and sports agent Scott Boras tend to be born, not made.

Yet talk to negotiating pros from the worlds of government, finance and media and they'll admit there is at least some science to this art. Winning every point is rarely an option, of course, but if you keep a few principles in mind, you can tilt things in your favor--whether you're signing a peace treaty or just angling for a raise.

If you remember one thing about negotiating, it should be this: It's not the maneuvering once you're in the trenches, but rather the preparation before sitting down at the table that counts.

That means taking the time to define what you want, what you are willing to accept and at what point you will walk away. It also means doing enough research to know what the other side wants--and how far they are willing to go to get it.

Want to know more?  Click here!

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R. David Donoghue over at the Chicago IP Litigation Blog is hosting a new "Carnival" of Blogs that is new to me -- The Carnival of Trust.  

As David explains:

The Carnival of Trust is a monthly, traveling review of ten of the last month's best posts related to various aspects of trust in the business world. It is much like the weekly Blawg Reviews that I post links to and have hosted, but those generally contain far more than ten links. My job this month was to pick those ten posts for you and provide an introduction to each post that makes you want to click through and read more.

I'm ridiculously pleased to be included in the category of Trust in Leadership and Management along with Charles H. Green's Trust Matters; George Ambler's Practice of Leadership;  and Stephen Albainy-Jenei's Patent Baristas  (if they gave awards for blog template design, PB would win in my book every day of the week).  In this crowd I feel like Zelig!

Here's David's generous mention of the Settle it Now Negotiation Blog and my recent post on convincing your clients to give up more than you (their attorney) predicted while still maintaining your credibility.

On the subject of trust-based leadership, Victoria Pynchon at the Settle It Now, Negotiation Blog has an excellent guide for maintaining your client's trust during a difficult negotiation: How Can I Convince My Client to Lose More than Predicted and Still Maintain My Own Credibility? The answer is complex and multi-faceted, but it boils down to the fact that you have to get the stakeholders and decision makers face-to-face, get their buy in on resolution as a goal (in addition to winning), explore all avenues of resolution, and you have to let them explore all aspects of the dispute, even those that do not matter. The last point is a difficult one for lawyers. As a lawyer you generally want to remain focused on the settlement inputs -- money, confidentiality provisions, sale of existing product if something about the product is being changed, etc. -- but from a trust perspective it is important that the stakeholders resolve not just those issues that go into a final agreement, but any problems or concerns they have related to the dispute or the parties to the dispute.

And let me just add here -- though I'll sound like a broken record to my regular readers -- that business people seek out lawyers because they believe themselves to be victims of injustice. (see my short-short video on this topic here)

Though I, as a mediator, am always seeking business solutions to legal problems, the client's injustice problem must be addressed to maintain your credibility (and retain your client's trust.).  Every great mediator I know will address this issue with your client unbidden.  If you're using less than great mediators --  raise the issue yourself -- all competent mediators should be prepared to address the issues foremost on your client's mind right including -- Will I lose?  How much more is this going to cost me? and Am I Being Extorted or Low-Balled?

Thanks for the mention, David!  I truly am greatly honored.  But more than that, you've helped me reach greater numbers of business people with a message that I carry somewhat like an old-fashioned missionary -- go beyond positions; find the parties' interests; create value; claim as much of that value as possible; craft business solutions to a legal problems; and, frankly address your client's injustice issues.  They'll be yours for life.

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In the new issue of The Complete Lawyer, my fellow Human Factor columnists and I talk about what new tricks we had to learn and old skills we had to re-invent when we took the journey from legal to mediation practice.  I give you my section of the column below, encouraging you to link to the Human Factor here to read what my my good friends and colleagues Gini Nelson, Stephanie West Allen and Diane Levin have to say.

My first day of mediation training progressed in somewhat the same fashion as my first few weeks in Civil Procedure. I remember struggling with the theoretical bases of jurisdiction in Pennoyer v. Neff one day only to be told the following week that Pennoyer was no longer the law. “Why,” I remember thinking, “did we even bother with Pennoyer when this Buckeye case about an exploding boiler now seems to be the law? Or would it be replaced next week as well?”

Law school, which taught me to “think like a lawyer,” was the precise opposite of my new mediation studies. Now, it seemed, I was being trained to stop “thinking like a lawyer.” Still, mediation, like the law, was full of conflicting ideologies from which it appeared I was required to choose.

It was easy for me to be evaluative: I had 25 years of legal practice in my backpack. I learned Dr. Cialdini’s “Principles of Ethical Influence”—Reciprocation, Scarcity (the rule of the rare), Authority, Commitment, Empathy, and, Consensus. These power principles helped the mediator to “make the other side see reason” when called upon to do so.

But the evaluative style was not the only prescribed route to mediation mastery. There were many who favored facilitation. The facilitative mediator first creates an atmosphere of hope and safety before helping the parties locate areas of agreement and mutual benefit. Here, the mediator is a follower or helper on the path to resolution, like the protective figures who appear early in a hero’s journey to enlightenment.

You can’t immerse yourself in mediation for long before you hear the clamor of the transformative crowd. Facilitative mediators, say the transformative folks, too often present themselves as wizards who intrude upon the parties’ conflict with their own agenda—usually “resolution be damned, let’s settle this darn thing!” The transformative mediator lets the session wheel out of control if that is where it is eager to go. Conflict is not seen as a state to be avoided or suppressed. Like a loving mother following the course of her child’s flu, the transformative mediator provides the parties with encouragement, opportunities to rest, lots of fluids and a metaphoric place to lay their heads as the conflict runs its natural course.

When I first brought this tangle of methodologies to the few master mediators I know, they all made short work of it with the scalpel of experience. “You are the technique,” they instructed. “Just stay in the process. Don’t guess. Ask questions. Listen. Don’t give up before the miracle of mediation happens.”

Now, four years into a full-time ADR practice, I am still struggling to embrace the entire dispute—the business or people problem that found its way to an attorney because of the justice issues with which it was burdened. I often feel that I’m walking a razor’s edge. I will never stop “thinking like a lawyer.” Nor will I stop pursuing this new way of thinking—one that looks for the opportunity to finesse the legal impasse by using the problem itself as an opportunity to broker a deal.

Why mediation? For me, it’s simply a broader canvass on which to paint a new picture. How mediation? In baby steps, one after the other, in just the same way I learned to be a litigator and trial attorney. How can the Human Factor help with your own life and legal practice? Stick around. Miracles are common here. We think you’ll enjoy the ride.

 

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(pictured, Harvard law School's winning Negotiation Team)

I could write an entire book on why law students should study negotiation as well as an entire chapter on why they should study texts written for MBA students rather than law students.  The latter topic I will cover in a future post.  The former has already been written succinctly as an article -- link and excerpts below.  

From Why Take ADR Courses In Law School by Cathy Cronin-Harris from the March 2008 issue of the Just Resolutions eNewsletter.

Cathy Cronin-Harris is Co-Chair of the Advocacy Committee of the ABA Section of Dispute Resolution. She's a Senior Consultant to the International Institute for Conflict Prevention & Resolution (CPR) and teaches Negotiation at Columbia Law School. She has taught at Georgetown and Fordham Law Schools, and has been an Administrative Law Judge and litigator. She can be reached at chadr5@aol.com.

Familiarity with Negotiation Approaches

[N]egotiation is a . . . . complicated process and demands a . . . . mind set that recognizes the inherent tension in negotiation: you must engage the other side in order to get to agreement while both sides are in a seeming struggle to achieve apparently conflicting objectives. That tension demands more subtlety than pushing [your opponent] into submission.

[E]xposure to negotiation theory and practice will help you understand "when to hold 'em," "when to fold 'em" and when and how to develop other feasible options and approaches beyond just holding out or giving in.

[Negotiation] courses stress the collaborative mode of negotiation or mutual gains bargaining popularized by Fisher and Ury in Getting to Yes. Its fundamental concepts stress objective standards, creativity, option development, respect for opponents and satisfying parties - genuine underlying interests rather than their positions.

Such exposure will expand your repertoire and allow you to negotiate with agility. You'll appreciate varying approaches people take to negotiation, discover ways to lessen competitive tendencies, become more conscious of options you can use rather than relying on raw intuition, appreciate the significant human elements impacting negotiation success, and learn the value of planning. As you become familiar with the broad brush approaches, you'll be enhancing the key skills below.

a. Expanded Communication Skills

In adversarial settings, assertion skills dominate: lawyers use logic, well-developed statement and presentation skills, tightly orchestrated cross-examination questions, and tools to connect with the trier-of-fact, such as compelling language, analogies and themes, to win the day. But when you negotiate, an additional set of communication tools comes into play along with asserting. Those skills focus on enhancing dialogue to solve the problem.

It's usually a challenge for lawyers to move from assertive statements to a wider band of communication skills. So negotiators learn to use better listening skills which includes confirming understanding of the other side's statements. They use open-ended questioning rather than restricted cross-examination formats to understand and dig out relevant information. They focus on body language and other signals embedded in communications that can provide information indirectly. They also refine assertion skills by ratcheting down the tone and format of statements to express needs compellingly without rancor. So negotiation will complement any communication skills learned in adversarial settings.

But beyond improving your negotiating ability in disputes, these skills will assist you in conducting your daily practice interactions including interviewing clients, unearthing their real needs and interests, advising them of your evaluations, enlarging their view of solution potential, calming them down, and in a host of other ways both professionally and personally.

b. Enhanced Persuasive Skills

The persuasion studied in most courses emphasizes logical rational analysis. Appellate judges apply it in every case based on the lawyers' logical presentations. Needed in negotiation? By all means. But persuasion to induce another to make a deal requires more. It includes your credibility, command of the subject, astute use of reasonable demands, varied questioning, and relationship building with the other side. We also persuade by showing our willingness to be persuaded: by meeting the other's needs and concerns and exploring a variety of options that might satisfy both entities rather than only pushing our agenda. And some psychological insights come into play about framing our requirements and anticipating likely reactions so we can make our offers more acceptable. While adversarial persuasion involves many of these tools, they are used to convince an outsider that you're right. Negotiation persuasion seeks to embrace your opponent, from whom you want something for yourself, and requires persuasive approaches we ordinarily don't consider.
c. Appreciation of the Role of Perceptions

Every trial lawyer knows that perception plays a role in the court room: it's not just about facts. Trial advocacy aims, in part, to shift the judge or juries' perceptions in your favor. In negotiation, we also deal with perception change efforts since negotiators, like everyone else, bring misperceptions to the negotiation table. They make assumptions, they suffer from partial or selective perception, and they tend to view the opposing side with suspicion. So, we seek to amplify those perceptions to remove the negative conclusions the other side draws from their misperceptions which impede willingness to find solutions. We clarify our intent that may have been misperceived; we demonstrate we're not just competing which they might have assumed; and, we suggest solutions to demonstrate regard for their concerns as well as our own. We explore hypothetical outcomes to induce a broader view of settlement potential. Even in making offers, we account for perception barriers in the way we state offers and use rationales to caste new light on their justifiability. We recognize that the way we use actual leverage or power can alter the other's perceptions toward or against us. Exploring these concepts underscores the important role that perceptual awareness plays in negotiation success.

d. Appreciation of the Human Dynamic

One can't effectively negotiate or help orchestrate it as a mediator without recognizing the human emotions at play in disputes. Emotions greatly affect receptivity to settlement proposals. Anger at past events, negative reactions to offers deemed insulting, absence of control over a situation or perceived lack of respect, attention or appreciation can derail deals. On the other hand, creating a positive emotional environment by building trust, building relationships across the table, and acknowledging the other's emotional state can alleviate some of the negative feelings in negotiation. These courses will highlight the need to consider the human element whenever you deal with clients or others in conflict.

e. Expanded Problem Solving Ability

Many lawyers went to law school to help people solve problems. Then, the adversarial adjudicatory system gets ingrained in their blood. That system and the rule of law it's built upon are still the best route to justice I know, when you can't settle matters. But, to function well as a twenty-first century lawyer, you need to complement your adversarial skills with problem solving abilities that support the mutual search for solutions when conflict exists. The negotiation skills you'll garner in the consensual ADR courses will prepare you to engage in collaborative problem-solving whenever possible and apply many of its tenets and skills even in extremely competitive situations.

While I've only touched on the key benefits of gaining negotiation training by enrolling in one of the consensual ADR courses, I hope I've helped you appreciate the need to treat those elective courses as part of your personnel core curriculum. Rounding out adversarial advocacy courses with vital settlement skills will pay vast dividends in every area of law practice despite your chosen field. You'll be more confident and prepared for the challenges ahead and more successful as you join us in the near future.

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The Los Angeles County Bar Association will soon be bringing its members the dynamite on-line work-life balance journal The Complete Lawyer.

Even if I weren't a columnist for TCL (the Human Factor here) I'd still urge you to flip through the online "pages" of this tremendous resource.  Take a look at the following for instance.

Are You As Stressed As Other Attorneys? by Ellen Moran, Lyle Miller and Alma Dell Smith 

We’re Culturally Inclined To Separate Mind And Body by Richard Strozzi-Heckler

My own husband's favorite offering -- When You Lose Sleep, Your Work And Health Suffer Dramatically by Thomas M. Heffron ("yes, honey, I'm coming to bed!")

Possibly A Firm’s Most Effective Health Insurance by one of my co-columnists, Stephanie West Allen who has penned this article with her Brains on Purpose colleague Jeffrey Schwartz

How To Master Stress by Maynard Brusman

Ask The Coaches (about networking) by Debby Stone and Laura Biering

Fix The Leaks In The Pipeline (on minority law school enrollment) by Carl Cooper

Hourly Billing Is The Opiate Of The Profession by Ronald J. Baker

Invest In Training Programs During Tough Economic Times  by Kathleen Brady

Five Steps To Achieve A Sound Mind by Cathy Wright

Master The Fine Art Of Appreciation by Judi Craig 

Do You Think Like A Solo Practitioner?  by Susan Cartier Liebel

Women Lawyers Have Natural Allies In The Millennial Generation by Lauren Stiller Rikleen 

What’s On Your Mind? by Arnie Herz

Beware Of Bloglash by Dawn Wagenaar

. . . . and much much more,

including my reviews of Lauren Stiller Rikleen's brilliant Ending the Gauntlet:  Removing Barriers to Women's Success in the Law

and

Ken Cloke's challenging new book Conflict Revolution:  Mediating Evil, War, Injustice and Terrorism.

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If you aren't using writs of attachment in contract cases where the amount due is certain, you aren't using the most powerful means of increasing your bargaining power in litigation.

Attend LACBA's Brown Bag Lunch with Judge James Chalfant at the Stanley Mosk Courthouse 111 N. Hill Street, Los Angeles on May 15, 2008.  Program Description:

Writs and Receivers: Practice tips for those who are rarely there. Judge James Chalfant will host a brown bag lunch highlighting tips and tricks for those who may not have much experience in this area. There is no cost to attend, but participation is limited to the first 12 attorneys who register. The program will be held in the judge's chambers at Stanley Mosk Courthouse, Dept 85. Please note, there is no CLE credit for this program.

Click here to register online.

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Is negotiation a political issue?

You bet.

Qureshi: Pakistan Won't Negotiate With Terrorists

(RTTNews) - Pakistan's Foreign Minister Shah Mehmood Qureshi said Monday that his government would not negotiate with "terrorists" even as it seeks open dialogue with some militant groups.

Jimmy Carter and Hamas

WASHINGTON TIMES EDITORIAL
April 16, 2008

Jimmy Carter's decision to meet with the terrorist organization Hamas is turning the former president into something of a political pariah.

New York Times "On the Issues" Foreign Policy Terrorism and Iraq

John Edwards

 On North Korea: "We should negotiate with the North Koreans. We should be tough. We should require that they stop their nuclear development program. We should have the absolute ability to verify that that has occurred."

On the Middle East: Has said that he believes "a two-state solution is ultimately the answer" but would not negotiate with Yasir Arafat. (before Arafat's death, obviously) Would send an envoy to the region.

Glenn Greenwald in Salon
Wednesday Feb. 27, 2008 
Majority of Israelis want to negotiate with Hamas

Sixty-four percent of Israelis say the government must hold direct talks with the Hamas government in Gaza toward a cease-fire and the release of captive soldier Gilad Shalit. Less than one-third (28 percent) still opposes such talks.

I could go on but you get the point.  The first decision any negotiator must make is whether he's willing to negotiate with the "opposition."  And the second is on what terms.

That decision -- and the many ways in which you can bring your opponent to the bargaining table any time you wish -- with the expectation that your negotiations will either successfully resolve your dispute or drastically limit the amount of time you spend litigating it before settlement will be the subject of this week's posts. 

Along the way, we'll talk about the many ways in which the masters of international diplomacy manage to take advantage of favorable negotiation conditions and to finesse unfavorable political climates for the purpose of getting warring parties to meet in an attempt to reach accord.. 

Stay tuned!

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I was cruising around the blogosphere this morning looking for links to the prime directive of all negotiations -- know your BATNA -- when I ran across this great 2007 post by Penelope Trunk of the Brazen Careerist -- How to Negotiate When You Have Nothing to Leverage.  

Penelope suggests the weakest strategy available -- exchange power for sympathy.  "If one person has a great BATNA," writes Penelope, "and the other has a terrible one, it’s not really negotiations; it’s trying to get a little something extra. It’s asking for a favor. If you approach negotiations from this perspective then you are much more likely to get a little bit of what you want."

Two of the savviest negotiators around Deepak Malhotra and Max Bazerman in their tremendously practical book Negotiation Genius have devoted an entire chapter to Penelope's problem called, not surprisingly, Negotiating from a Position of Weakness.  Their recommended strategies include the following:

• Don't Reveal that You Are Weak

[H]aving a weak BATNA is not terribly problematic if the other side does not know that your BATNA is weak. If you have a weak BATNA, don't advertise it! 

• Overcome Your Weakness by Leveraging Their Weakness

[W]hen both parties have a weak BATNA, it means that the [Zone of Potential Agreement] is large.  In other words, a lot of value is created when the two sides reach an agreement.  Who claims more of this value? . . . [T]he one who fares better is the one who makes the other side's weakness more salient throughout the negotiation. 

• Identify and Leverage Your Distinct Value Proposition

[V]ery often, you do bring something to the table that distinguishes you from your competitors.  This is your distinct value proposition (DVP), and it need not be a lower price.  You may have a better product,, a higher-quality service, a good reputation, a strong brand, or a host of other assets that your [bargaining partner] values and that you can provide more effectively or cheaply than your competitors.  

• If Your Position is Very Weak, Consider Relinquishing What Little Power You Do Have (This was Penelope's strategy in the Yahoo negotiation subject of her post). 

[I]f you can't out muscle the other side in a negotiation, you may want to stop flexing our muscles and, instead, simply ask them to help you.  When negotiators try to leverage their power, others reciprocate.  This pattern can be disastrous when you are the weaker party.  But when you make it clear that you have no intention of fighting or negotiating aggressively, others also may soften their stance.

• Strategize on the Basis of Your Entire Negotiation Portfolio

[A]udit the implicit assumptions you make when formulating your negotiation strategy.  You may perceive yourself as being "weak" if you only measure strength as the ability to push hard in any given negotiation without losing the deal.  But you may discover that you are actually quite "strong" once you begin to think about your ability to withstand losing some deals because you are maximizing the value of your entire negotiation portfolio.

• Increase Your Strength by Building Coalitions with Other Weak Parties

In the realm of international relations, a vivid example of the power of coalitions surfaced during the 2003 World Trade Organization negotiations in Cancun, Mexico.  Disgruntled by the continued lack of attention paid to the issues of concern to developing nations . . . twenty-one "weak" countries banded together to create the Group of 21.  This group is now in a much stronger position to negotiate for the interests of its members than any member nation would have been on its own.

• Leverage the Power of Your Extreme Weakness-They May Need You to Survive

[I]t is often useful to tell the negotiation "bully" that an overly strong show of force can be counterproductive:  "If you push me too hard, you'll destroy me -- and lose a value-creating partner."

• Understand -- and Attack -- the Source of Their Power

A number of Planned Parenthood clinics around the country have adopted a particularly creative strategy for fighting back [against protesters], usually referred to as the "Pledge-a-Picket" Program.  Here's how it works:  The clinic asks its supporters to pledge donations to the clinic on a per protester basis.  The more protesters that show up to picket the clinic, the more money the clinic raises in donations! . . . The Planned Parenthood of Central Texas in Waco has even posted a sign outside its clinic that read:  "Even Our Protesters Support Planned Parenthood."

Once the Planned Parenthood clinics understood that the source of their opponents' power was the ability to draw large numbers of protesters outside the clinic, they were able to think of a novel way of diminishing the benefits of doing so.

Malhotra and Bazerman conclude their chapter on Negotiating from a Position of Weakness by noting that

while being in a position of weakness is sometimes unavoidable, you will negotiate most effectively when you leverage the fundamentals -- systematic preparation and careful strategy formulation.

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Thanks to Stephanie West Allen at idealawg (channeled to me this morning via the Forbes Business and Financial Blog Network) for the Famous Trials Website from Socrates to Moussaoui (and yes of course O.J.'s there). 

(above, theDeath of Socrates by Jacques-Louis David)

Here's Stephanie's announcement:

Professor Douglas O. Linder of University of Missouri - Kansas City School of Law has created a Web site Famous Trials which presents one intriguing story after another. From Professor Linder's faculty page:

The Famous Trials website, the Web's largest and most visited collection of original essays, images, and primary documents pertaining to great trials, has been an ongoing project of Professor Linder's since 1996. Professor Linder has contributed book chapters, participated in video projects, and presented public speeches on the subject of historic trials.

BATNA for the uninitiated simply means a Better (or the Best) Alternative to a Negotiated Resolution, which is what trial is when your opponent can't negotiate a settlement within the range of reason.

Check it out!

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The provocative comment we're following is Jay Welsh's remark that to settle most cases the Plaintiff has to accept a lot less than he wanted to recover and the defendant has to pay a lot more than he ever imagined paying.  And the response we're replying to is Canadian lawyer Michael Webster's:

When the issues have been crystallized into legal ones so well, you are in a lose/lose situation. The manager's dilemma then becomes counsel's dilemma: how do I manage to convince my client to lose more than I ever predicted and still maintain my own credibility.

The reason litigators settle law suits is because the outcome of litigation is uncertain and its pursuit expensive.  But that just states the problem.  How do you "tell" a client in the midst of expensive litigation that he's going to have to pay way more or accept way less than his attorney predicted (with appropriate disclaimers) long, long ago?

First, let me provide a checklist for success in commercial mediation:

1. Bring the real deal-makers to the mediation or settlement conference for it is they -- not their attorneys -- who will  make the decision to pay way more or to accept way less than they had previously imagined.   
2. Bring the parties back into the conflict as participants in its resolution again.  Businesses have commercial problems that have business solutions.  Litigation is often just the stick to force the continuation of commercial negotiations that broke down in so spectacular a way that the parties stopped talking to one another, hired lawyers, and began to fight over legal issues the parties neither care about nor understand.  The parties have now experienced how surreal their negotiation becomes when it's conducted in the courts.  They're probably ready to deal again.  Let them.  
3. Permit the parties to discuss all aspects of the conflict whether they are relevant to the legal issues or not.  The reason one party initiated litigation against the other party is not because he wanted to create precedent.  And if precedent is what a party wants, money might but often cannot settle the matter.  
4. Bring the experts along and let them talk to one another about the ways in which the matter might be resolved or even why their expert opinions are diametrically opposed.  
5. Address the parties' justice issues.  People seek out lawyers for one reason and one reason only.  Because they believe themselves to be the victims of an injustice.  And if its the defendant you represent, the injustice visited upon it is the litigation itself.  I spend a significant amount of time during a mediation discussing justice issues with the parties. 
   1. they're being extorted
   2. they're being low-balled
   3. they were defrauded
   4. their trust and confidence was betrayed
   5. their competitor's market tactics have been unfair and violative of any number of state or federal laws
   6. their intellectual property was stolen
   7. etc., etc., etc.
6. Let the mediator talk with the parties about what the justice system can do, what it should do, what it most likely cannot or will not do.  Most parties will not be happy with their attorneys if their justice issues are not addressed at the time of settlement.  And its my job to make clients happy with their attorneys.
7. Let the mediator help the parties understand that their case has -- with no one's fault -- gotten worse rather than better over time and why.   
8. When all else fails, blame the "system." 

Why Parties Pay More or Accept Less than They Want To

Jay Welsh is right.  If the parties have hired a mediator to settle complex commercial or mass tort litigation, they have done so because they need to pay more and accept less than they are prepared to do.  Otherwise, they'd settle without the assistance of a mediator.

This does not mean that the mediator bangs heads or twists arms.  There are hundreds of reasons why parties do not continue to trial and thousands of good excuses for corporate counsel to stop the bleeding.  They include:

1. the witnesses on the other side performed better in pre-trial testimony than expected
2. the Judge made pre-trial rulings that cut the heart out of your case
3. the Supreme Court (state or federal) just over-turned a hundred years of precedent making one party's legal case far worse and the other's far better than expected
4. it's the economy, stupid
5. the client realizes during the course of the mediation that there's more than one way to organize the facts and apply the law -- something lawyers are trained to do and even sophisticated clients find hard to swallow.  Having had an "aha" experience during the mediation, the client realizes there's more (or less) at risk than he's been thinking and the offer/demand now on the table looks pretty darn good after all
6. the other side becomes un-demonized during the course of the mediation, making it easier to part with money for the purpose of resolving the one thing both sides have in common -- a difficult, uncertain, expensive, dangerous lawsuit.
7. one side simply out-negotiates the other (it happens) 
8. one or both sides lose heart for the battle when they see that the delta between the their bottom lines is not as great as they expected it to be
9. the parties manage to "expand the pie" (more about this later) such that the plaintiff does not have to accept that much less nor the defendant pay all that much more than each anticipated (it happens)
10. one party genuinely develops an understanding of and empathy for the other side's position and changes a hard line attitude against settlement as a result (it happens)

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Canadian Lawyer Michael Webster asks about Jay Welsh's comment (see videos) that "in a mediation the plaintiff has to settle for far less than they thought and the the defendant has to pay far more than they ever thought." 

"So," asks Webster, "this would be the lose/lose theory of mediation?"

I know when Michael's being sarcastic but decided to respond seriously by noting that Jay himself  used the phrase "lose-lose." 

I went on to say that the most valuable service I can often perform is to "break through confirmation and other biases/ ** that have interfered with case analysis and caused impasse."

Michael's reply was important:  

When the issues have been crystallized into legal ones so well, you are in a lose/lose situation. The manager's dilemma then becomes counsel's dilemma: how do I manage to convince my client to lose more than I ever predicted and still maintain my own credibility.

Though I'm a little tempted to be flip ("this is why they pay me the big bucks") Michael's question nails one of the most difficult issue attorneys must deal with in settlement negotiations.  It is certainly one of the most delicate tasks a mediator is called upon to perform.

First Let's Re-Visit Interest-Based vs. Distributive Settlement Negotiations, Asking Ourselves Whether There's Really Such a Thing as a "Pure" Money Case

My husband, with 35-years of complex commercial litigation practice under his belt is my attorney-mediator-communication weather-vane.  So I asked him over pancakes this morning, "Honey, do you think there's any such thing as a 'pure' money case?"

Two months ago, he would have said "yes," and given me that "you've changed too much" look.  I don't know why he said "no" this morning.  But here was the gist of his response.

"Every case involves someone's interests, whether it's the GC or a company executive, or even a 'little guy' down the management chain who made a decision that impacted the course of the dispute four or five years ago.  So of course there are innumerable non-monetary concerns that impact why the case is settled and when and for how much.  Then again, maybe I've just been living with you for too long."

So let me first say that there is no such thing as a non-interest based negotiation.  There are only negotiations in which we ignore the fact that party interests are at play.  

This is one of those nature/nurture mind/body duality questions.  Yes, it's "just" about money.  And yes, the money represents party interests.  It's nature and nurture, mind and body, budgetary constraints and party goals and relationships.

Here's another thing.  Although the disputing parties may never again be in relationship with one another, the people on each side of the conflict-fence are not only in daily contact, their well-being, livelihoods, self-respect, reputation, promotions, demotions, and salaries depend upon their on-going relationships with one another, which are all in play in every negotiation of every commercial dispute.

And one more thing.  Conflict cannot arise in the absence of a relationship.  Even though the disputing parties may never again be in relationship, they're sure the heck in relationship now.   And the relationship of the disputing parties from the moment conflict arises to the minute it settles has everything to do with its resolution.

There is no "zero-sum" game outside the realm of the virtual or the hypothetical.  There is no "rational" man.  People -- messy, conflicted, emotion- and interest-driven people -- are the necessary pre-requisite to conflict.  How we deal with apparent lose-lose conflicts, "manage" party expectations and deliver bad news in a way our clients can hear it in the next post.  Immediately hereafter.  

_______________________

**/   "Confirmation bias" refers to our "unwitting selectivity in the acquisition and use of evidence" in ways that are "partial to existing beliefs, expectations, or a hypothesis in hand."  See Confirmation Bias: A Ubiquitous Phenomenon in Many Guises by Raymond S. Nickerson of Tufts University.

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Thanks to Anne Reed over at Deliberations for forwarding this April 22 Psychology NewsWire, It Pays to Know Your Opponent: Success in Negotiations Improved by Perspective-Taking, But Limited by Empathy.

It Pays refers to recent work done by Kellogg School of Management Professor Adam Galinsky, who has demonstrated (with colleagues William Maddux -- (INSEAD -- Debra Gilin -- St. Mary's U. --  and Judith White -- Dartmouth) that success in negotiations depends on focusing on the head and not the heart. In other words, it is better to take the perspective of negotiation opponents rather than to empathize with them. (You may remember Galinsky as the academic responsible for demonstrating that the person who makes the first offer will (nearly) always get the larger share of the delta between the two parties' "bottom lines."  See Making the First Offer here). 

Now Galinksy and friends inform us that we are far more likely to reach a negotiated resolution to a conflict if we use our heads rather than our hearts.  As It Pays reports:  

Perspective-taking, according to the study published in the April 2008 issue of Psychological Science, a publication of the Association for Psychological Science, involves understanding and anticipating an opponent's interests, thoughts, and likely behaviors, whereas empathy focuses mostly on sympathy and compassion for another.

"Perspective takers are able to step outside the constraints of their own immediate, biased frames of reference," wrote the authors. "Empathy, however, leads individuals to violate norms of equity and equality and to provide preferential treatments."

The researchers performed a total of three studies designed to assess the relationship between successful negotiations and perspective-taking and empathy tendencies. In two of the studies, the participants negotiated the sale of a gas station where a deal based solely on price was impossible: the seller's asking price was higher than the buyer's limit. However, both parties' underlying interests were compatible, and so creative deals were possible. In the first study, those participants who scored highly on the perspective-taking portion of a personality inventory were more likely to successfully reach a deal. In contrast, higher scores on empathy led dyads to be less successful at reaching a creative deal. 

Why Enlightened Self-Interest Trumps Sympathy

Just when you were about to stereotype "negotiated resolutions" as commie-pinko limp-wristed new age aquarian left-of-liberal kum-by-ya marshmellow toaster solutions to the problems of (excuse me fellas) real men -- along comes new research once again demonstrating that negotiation requires hard heads rather than soft hearts. 

Why?

Because our competitive natures ("I need my stuff to survive") will almost always trump our collaborative inclinations ("we need each other to survive").  If this weren't so, the world wouldn't be divided into its current "pie pieces" -- the first, second and third worlds for instance.  

More particularly, because distributive non-interest based bargaining is all about getting "our share" of a fixed pie while interest-based or integrative negotiations require the parties to:  (1) learn about and attempt to satisfy their bargaining partners' often non-apparent needs and desires; and, (2) to collaborate in an effort to find ways to satisfy those needs and desires in novel and creative ways, reaching an integrative agreement becomes much more likely than reaching a purely distributive one. 

Why?

Because the integrative deal will -- by its very nature -- serve more of both parties' interests than would its distributive counter-part.  

Perspective-Taking, Sympathy and Foreclosure

I don't know my neighbors well.  They have a small family with very young children and keep pretty much to themselves.  I understand from the local grapevine, however, that they're selling their house because one of them lost their job and they can't make the mortgage payments.   

If we lived in another country or if the neighborhood belonged to certain religious sects that make it their business to take care of their own, we might all come together to help the neighbors save their house.  But we don't.

We have and express a lot of sympathy when we discuss our neighbors' plight.  "Must be hard for the kids," we say, "and the parents have worked so hard to improve the property.  It would be a shame if they lost their equity."

Our sympathy, however, does not lead us to trump our self-interest (which includes simply "keeping to ourselves") in favor of the interests of the neighbors.

If, however, we learned that the neighbors were about to sell the house to a local fraternity, you can put easy money on the neighborhood mobilizing into action to find a solution.  And once the neighborhood starts looking for an affordable solution to a neighborhood problem, the chances that the interests of the distressed family and their (temporarily) better-off neighbors will intersect and that new resources will be brought to the table ("hey, George, I know a lawyer who specializes in these things" or a banker or a politician or a journalist for the L.A. Times) increase exponentially. 

Heck, instead of hiring lawyers to stop the sale to the fraternity, we might put together an emergency neighborhood loan-fund.   Or simply help find the unemployed neighbor a new job.  There are a lot of resources in my neighborhood.  And many good-hearted people.  But I'm afraid modern American folk-ways just don't allow for a neighborhood solution to one of its member's problems.  Until, that is, our own self-interests are threatened.

So it might seem counter-intuitive to say that mentally putting ourselves into another's shoes to ascertain their interests needs and desires (perspective-taking) is more likely to create a "deal" between people than simple sympathy. 

But we didn't survive as a species because we're particularly loving.  We survived as a species because its in our best interest -- our only interest -- to cooperate with one another. 

Or, quite simply, we die.

Which reminds me that it's Earth Day.  Make a contribution to the planet and our collective and individual survival as a species today by clicking on the image below!

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As I promised last week, we'll be providing our readers with a series of posts about the use of settlement counsel in sophisticated and complex commercial litigation.

While searching the internet for pertinent articles, I came upon an interview with a New York attorney, Lew Goldfarb, whose entire practice is devoted to settling cases for clients already represented in litigation by other law firms.  Mr. Goldfarb's credentials are impressive, his observations shrewd and his opinions about the use of settlement counsel closely match those of our colleague Jay McCauley whose article we published earlier today here.

Here's the link to Mr. Goldfarb's firm and another to the interview (from Metropolitan Corporate Counsel) with a tantalizing excerpt below:

Typically, I am retained by the defense side as part of a dual-track approach. The litigation continues on one track, while I advise the plaintiffs' lawyers that I have been retained by the defense to take a look at the possibility of settlement. At the outset, I make it clear that I have been given only a 30 day window to attempt settlement and that my involvement should not be construed as a lack of resolve to litigate the case.

Following this initial dialog, I review the strengths and weaknesses of defendant's position. Class action litigation often produces a contentious dynamic that polarizes positions based more on emotion than factual disagreements. One of my most important tasks is to identify the true elements of disagreement. When I have a good understanding of these factors, I make recommendations to my client and obtain parameters for my discussions with plaintiffs' counsel.

I then meet with the plaintiffs' counsel, preferably one who is not involved in the litigation, to focus on ways to settle the case. Plaintiffs' lawyers are usually receptive to this approach, because they are looking for ways to get relief for their clients and to get their legal fees without the costs and risks of further litigation.

In some cases I am first approached by plaintiffs' counsel who are interested in settling a case and who know me from years of litigating class actions. I will then take this overture to the corporate defendant who will decide whether to retain me to attempt a settlement. I have resolved a number of cases in this manner.

I have also found success in ending class actions by combining the resolution of a government investigation with additional relief to class members. Very often class actions follow on the heels of a government investigation. In negotiating a settlement with a government agency, it is often possible to synchronize the remedies that the government wants with those that plaintiffs' counsel is seeking and put them all into one package. This serves not only to end the government's involvement, but also to satisfy the claims of the plaintiffs, and provide a compelling argument for ending the class action. I would then go back to the plaintiffs' lawyers, demonstrate how their clients' claims have been fully satisfied, and offer them appropriate attorneys' fees.

In some cases plaintiffs' counsel demand greater relief for the class, in part, to justify higher attorneys' fees. If agreement is not reached, the client can attempt to persuade the court that the relief to the class is adequate. If the court agrees, the lawsuit becomes a catalyst case where the only issue is whether the plaintiffs' lawyers are entitled to attorneys' fees for achieving results for the class. The defendant often is in a much stronger position arguing this issue rather than the merits of the case.

Continue reading here.

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Thanks to Geoff Sharp for leading me to John Day's terrific series of posts on What it Takes to Be a Great Trial Lawyer particularly Part 11, The Courage to Tell the Client the Truth, excerpt below.

As information is learned in a given case, great trial lawyers also tell their client the truth. They give an opinion about whether to make, accept or reject a settlement proposal, or indicate that the proposal is so within the range of reason to make it a toss-up. They give these honest opinions whether the client likes the advice or not, and explain the basis for the opinion.

A great trial lawyer will not hesitate to tell a client that the client is making a mistake by not taking a recommendation of the lawyer, but then will follow the client's wishes so long as the course of action is legal and ethical.

In other words, great trial lawyers understand that client is the boss, and unless the client is demanding illegal or unethical action or the relationship between lawyer and client has become so impaired that the lawyer cannot adequately represent the client, the lawyer yields to the client's wishes.

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. . . you tend to escape gravity in a fury of creative activity.

Like this!  The Spring issue of the r.kv.r.y. quarterly literary journal, which has just been published and is quickly approaching it's fourth anniversary.  (see also r.kv.r.y.'s blog here!)

If you, like me, chose law as the default profession of the liberal arts major (Literature here, natch) check out our latest issue, which is full of great stuff -- more than a little of which has been written by lawyers.

Don't get me wrong -- I LOVED legal practice and am even more passionate about mediating the resolution of the type of case I litigated for 25 years -- complex commercial litigation.  

NEGOTIATING the resolution of these cases is really just the final part of my legal career -- a turn in the road that I'm more than pleased to have followed, particularly as our national recession deepens. 

Why?  Because negotiated resolutions don't depend upon court calendars, cranky and often unpredicatable Judges (my friends on the Bench excluded) or someone else's idea (12 people good and true; three arbitrators; one Judge, etc.) of what the most beneficial and fair solution to a business problem might be.

It's all of a piece, you see, because story -- as in those written by r.kv.r.y.'s contributors -- is more important to the mediated settlement of a dispute than a litigated resolution.  In mediation, we dress the "legal case" back up in all of its compelling though often messy particulars; we put the flesh and blood people back into the business problems that led them to lawyers in the first instance, permitting them do with their mutual conflict what they do best -- create a commercial solution to a business problem.  

Story. Self-determination.  Justice.

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I've got a little series on law firm happiness going on over at the tremendous workplace law resource Connecticut Employment Law Blog.  Dan Schwartz, the dynamite Blog Meister behind Connecticut Employment Law had to take a blog break  while actually TRYING A CASE (yes, people still DO).  While working, he filled his excellent blog with guest posts, including my three-part series ending with partnership compensation today.  

Call me an idealist, but some of the suggestions made in my current post over at the Connecticult Employment Law blog are taken from Lauren Stiller Rikleen's exhaustive analysis of the modern law firm's ills and potential remedies in Ending the Gauntlet, my review of which will appear in this section of the Complete Lawyer's next issue so keep a look out for it!

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(top: we assimilate and organize data in our own favor:  click here for full size chart)

Despite our own beliefs that we've adequately analyzed the weaknesses in our own cases, we have all been told at one time or another that we are "buying our own bull%#@^."

Is there a remedy?

First the Social Science Research

According to Bargaining Impediments and Settlement Behavior, studies of self-serving bias on estimates of probable damage awards provide strong evidence that:

• we assimilate information based on our existing biases (remember the OJ verdict);
• even when told we're doing so, we continue to organize information in such a way that it supports our existing opinions;
• the receipt of additional information, without more, will simply "confirm" existing biases; and,
• to make a difference in the parties' views of the merits of their case, mediation practices must include techniques for de-biasing the parties.

The Research

Research subjects were given the identical "case" materials and randomly assigned roles as "Plaintiff" or "Defendant." The subjects were put into bargaining pairs and asked to: (1) estimate a "fair" award by a Court to the Plaintiff; and, (2) to attempt to settle the dispute.

The experimental results and their implications were reported as follows:

• Plaintiffs' predictions of the [probable award] were, on average, $14,527 higher than defendants'.
• Mean plaintiffs' fair settlement values were $17,709 higher than defendants'.
• Not surprisingly, the settling parties' assessments of what a fair settlement would be and what a judge would likely award were closer together than were those who did not settle.
• Among the 59 pairs who settled, the mean difference between the plaintiffs' and defendants' predictions of the judge's award was $9,050.
• For the 21 pairs who did not settle, the average difference was $29,917.
• The strong correlation between the magnitude of the bias in a bargaining pair and non- settlement supports the conclusion that the self-serving bias often prevents parties from settling disputes at the most advantageous time and for optimal mutual benefit.
• Even when asked to tell the "other side's" story in an essay before predicting possible awards or when told about the existence of the bias, the subjects continued to evaluate the case according to their own material interests.
• Only in one experimental setting where subjects were both informed of the bias and made to write an essay substantiating the other side's case was the effect of the bias mitigated.
• That subjects were unable to rid themselves of the bias when informed of its existence demonstrates that it is not a deliberate strategy.

Other findings of the experiments point to biased assimilation of information as the likely psychological mechanism underlying the self-serving bias.

When subjects were presented with eight arguments favoring the side they had been assigned (plaintiff or defendant) and eight arguments favoring the other side and were asked to rate the importance of the arguments as perceived by a neutral third party, there was a strong tendency to view the arguments supporting one's own position as more convincing than those supporting the other side, suggesting that the bias operates by distorting one's interpretation of evidence.

This study suggests that litigants may not be seeking to maximize their own payoff, but are rather trying to obtain what they deem to be fair.  

Conclusions from the Experimental Data 

The application of the self-serving bias to bargaining behavior led the authors of the study to tentatively conclude that 

• exchanges of information are not in themselves necessarily conducive to settlement, i.e., obtaining more discovery before the dispute is "ripe" for settlement may be neither cost-efficient nor an effective settlement strategy;
• the importance of information exchanges to the settlement of a dispute can only be analyzed in terms of how that information may effect preexisting biases, which suggests that attorneys pay greater attention to their opposition's case theories when analyzing information obtained during discovery; and,
• to act as an effective counter to the self-serving bias of both "sides," mediation practices should be, at least in part, directed at de-biasing parties rather than simply facilitating information exchange.
  

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I read this on the wall of the Lincoln Memorial yesterday, after standing on the steps and imagining Dr. Martin Luther King Junior's "I Have a Dream Speech" (video and text here) forty years after his assassination and said to my husband -- "don't you long for leadership like this again?"

See what Lincoln has to say about "God being on our side" and the end of negotiations in this short but stirring speech.  

At this second appearing to take the oath of the presidential office, there is less occasion for an extended address than there was at the first. Then a statement, somewhat in detail, of a course to be pursued, seemed fitting and proper. Now, at the expiration of four years, during which public declarations have been constantly called forth on every point and phase of the great contest which still absorbs the attention, and engrosses the energies of the nation, little that is new could be presented. The progress of our arms, upon which all else chiefly depends, is as well known to the public as to myself; and it is, I trust, reasonably satisfactory and encouraging to all. With high hope for the future, no prediction in regard to it is ventured.

On the occasion corresponding to this four years ago, all thoughts were anxiously directed to an impending civil war. All dreaded it--all sought to avert it. While the inaugeral [sic] address was being delivered from this place, devoted altogether to saving the Union without war, insurgent agents were in the city seeking to destroy it without war--seeking to dissole [sic] the Union, and divide effects, by negotiation. Both parties deprecated war; but one of them would make war rather than let the nation survive; and the other would accept war rather than let it perish. And the war came.

One eighth of the whole population were colored slaves, not distributed generally over the Union, but localized in the Southern part of it. These slaves constituted a peculiar and powerful interest. All knew that this interest was, somehow, the cause of the war. To strengthen, perpetuate, and extend this interest was the object for which the insurgents would rend the Union, even by war; while the government claimed no right to do more than to restrict the territorial enlargement of it. Neither party expected for the war, the magnitude, or the duration, which it has already attained. Neither anticipated that the cause of the conflict might cease with, or even before, the conflict itself should cease. Each looked for an easier triumph, and a result less fundamental and astounding. Both read the same Bible, and pray to the same God; and each invokes His aid against the other. It may seem strange that any men should dare to ask a just God's assistance in wringing their bread from the sweat of other men's faces; but let us judge not that we be not judged. The prayers of both could not be answered; that of neither has been answered fully. The Almighty has his own purposes. "Woe unto the world because of offences! for it must needs be that offences come; but woe to that man by whom the offence cometh!" If we shall suppose that American Slavery is one of those offences which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South, this terrible war, as the woe due to those by whom the offence came, shall we discern therein any departure from those divine attributes which the believers in a Living God always ascribe to Him? Fondly do we hope--fervently do we pray--that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue, until all the wealth piled by the bond-man's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash, shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said "the judgments of the Lord, are true and righteous altogether"

With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan--to do all which may achieve and cherish a just and lasting peace, among ourselves, and with all nations.

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You just slip out the back, Jack
Make a new plan, Stan
You don’t need to be coy, Roy
Just get yourself free
Hop on the bus, Gus
You don’t need to discuss much
Just drop off the key, Lee
And get yourself free 
  

Where matchmaking service moved to compel arbitration of clients’ action alleging that  "consulting agreements" were fraudulently induced, and agreements were [within a] class of contracts regulated by state law expressly rendering nonconforming contracts void and unenforceable, agreements’ failure to expressly set forth language required under dating service statutes--Civil Code Sec. 1694, et seq.--rendered [them] and [the] arbitration provisions [contained in them] unenforceable. Duffens v. Valenti - filed March 27, 2008, Fourth District, Div. One Cite as 2008 SOS 1811

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Lawyers ask me this question more often than any other.  This week's Blawg Review Host -- TechnoLawyer -- reminded me that I once wrote a very short article on the topic -- contained in the TechnoLawyer Problem Solution Guide available again at the Blawg Review No. 152 here.

Using Your Case Management Order or ADR Panel to Convene Your Mediation

There are many reasons you may not wish to initiate mediation. Many lawyers justifiably do not wish to appear overly desirous of settlement. Others are discouraged because their opponents

• long ago indicated their client would not consider paying/accepting anything less/or more than $X, which is a non-starter;
• say they won’t consider settlement until after some key event; or,
• insist their client will “pay millions for defense but not a penny in tribute.”

The best way to encourage settlement discussions without any loss of face is to agree upon a mediator (or mediation services provider such as Southern California’s Judicate West) at the commencement of the case, authorizing the neutral to suggest mediation at any time without prompting by the parties. This is the general practice in most multi-party construction defect cases and there's no good reason to limit the benefits of this practice to complex litigators.

This strategy permits one party to suggest mediation to the neutral who can then initiate a negotiation session without divulging who, if anyone, sought the mediator’s assistance.
Any mediator worth her salt will be trained in and skilled at convening mediations without party pressure.

Some, but not all, mediation service providers also possess these skills. Judicate West’s case managers, for instance, are all skilled professionals with a minimum of five-year’s experience convening mediations for the parties.

At the commencement of your action, ascertain whether a neutral or ADR service provider in your locale specializes in the art of convening. A service provider like Judicate West will often know more about your opposition than you do, particularly in large legal markets like Southern California where you may well not “do business” with your opponent on more than one occasion.

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I've been guest blogging (along with many others) over at the Connecticut Employment Law Blog recently.  Yesterday, Daniel Schwartz posted Part II of my article on using conflict resolution techniques and negotiation skills to increase the peace among your partners, whether there be only two of you or more than 1,000.

Part III is coming soon so keep an eye out for it.

And best of luck with the jury Daniel!

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The google algorithm throws these random musings on negotiation up to me on a weekly basis because "negotiate" is one of my "google alerts."  (have I said god bless google recently?)

Almost all legal writing is collaborative, so I feel this English professor's pain.  I just didn't know we shared this experience. 

From Blog en Abyme, excuses excuses by Kim Middleton, Assistant Professor of English and Director of the American Studies Program at The College of Saint Rose.

What I’ve discovered is that when you’re writing with someone, you’re negotiating and discussing all the time. Which secondary sources to use and why; how much space a particular piece of the argument should occupy; the particular ways that data should be interpreted; style; etc. And that’s all the stuff that we actually articulate. I’d venture that there is also always a secondary level of negotiation going on non-verbally: should I just take the lead on this part?; am I slowing us down?; is my expertise relevant here?. Essentially, there are all of the interpersonal elements to negotiate as well. Is it any wonder that it takes longer than writing an article alone?

Meanwhile, note to self: next time I assign a group project to students (I’m looking at you, film class!), I need to give them ample time to work through not just content, but interpersonal stuff as well. It would probably also help if I could get them to move across the street from one another, and assign one person per group to be the baker who provides snacks for each meeting. And then someone to do the group’s laundry and grocery shopping while they get their article written—I mean project done.

And yes, Professor, it does take food, drink and clean laundry to accomplish anything worthwhile as a team!  Thanks for the thoughts.  Now get back to that article right now!

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See Greg May on prepration for appellate oral argument  today:

Appellate judges may have a draft opinion prepared, and may rarely change their minds due to oral argument, but — according to at least one justice I’ve spoken to — sometimes they are actually looking for the appellate advocate to give them a reason to change their mind.

So, hey Greg!!  My readers, who are looking to change their opponent's case evaluation, would like to know your techniques for:  (1)ascertaining what the appellate panel most likely wants to know; and, (2) addressing their concerns in a way that would allow the Justices to reach a decision other than the one they are leaning toward!

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The prestigious Straus Institute for Dispute Resolution has a new web site -- HERE!!! -- and a few videos that the beginning mediation or settlement advocate shouldn't miss.

Here's Judge Williams, who sits in the downtown Los Angeles Superior Court as a full-time settlement judge.  In the first part of his video, Judge Williams talks about the differences between settlement and mediation as well as a few of his favorite topics -- CHOICE, RESPECT, JUDICIAL ECONOMY ACCESS TO JUSTICE and EFFICIENT CASE MANAGEMENT. 

In part 3 of the video, Judge Williams discusses basic mediation concepts such as interest-based and distributive bargaining; impasse-breakers; trust-building; shuttle negotiation diplomacy; mediators' proposals and the like. 

If I missed Judge Williams saying "you have to hang the meat low enough for the dog to smell it," I'll apologize to him for inattention the next time I see him.  If he didn't say it, I'll be looking for the next part of the video, where gems like that may be found. 

If you wonder "why the orange?" -- listen to part 3.

Judge Helen Bendix, the Chair of the Los Angeles Superior Court ADR Committee, talks about the contribution of the Court's ADR program to the administration of Justice.  That program has not only settled thousands of cases, but has served as the training ground for thousands of mediators in assisting litigants in negotiating the resolution of their lawsuits. 

Co-Directors of the Straus Institute, Tom Stipanowich and Peter Robinson address mediation issues for the first part of this video.  If you want to go directly to Judge Bendix's discussion, move the slide bar to the middle of part 1.  

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(collage by artist Tamar Factor)

I'm ridiculously excited to announce that the new issue of The Complete Lawyer is out and that it focuses on women's legal careers -- see The Complete Lawyer's What Do Women Lawyers Really Want here!

Publisher Don Hutcheson has added an ADR column to his brilliant work-life-balance journal -- The Human Factor -- written by my good blogger buddies Stephanie West Allen of idealawg and Brains on Purpose, Gini Nelson of Engaging Conflicts, and Diane Levin of the Mediation Channel.  You can meet these tremendous Renaissance women attorneys in the first column in which we introduce ourselves to The Complete Lawyer's readers.

In this issue, I also review a little book about networking called The Go Giver by Bob Burg and John David Mann -- a happy prescription for a successful career for those of us who have the education, training and experience to give freely and make use of the benefits that flow from our fortunate human tendency to reciprocate favors. 

Ending the Gauntlet -- Removing Barriers to Women's Success in the Law

The "Women's" issue comes at a time when I'm hungrily devouring Lauren Stiller Rikleen's tremendously readable, inspiring and fascinating Ending the Gauntlet -- Removing Barriers to Women's Success in the Law.  I'm not even through Chapter One yet and I can tell you that this is no ordinary book about women's challenges in the legal profession.  It's a book for men and women who can still recall -- and share with future generations -- a time when law firms were more like professional partnerships than the corporate behemoths so many have become.

As Ms. Rikleen promises, her book explores the "confluence of circumstances"  that marked my generation and shaped the following generations of women in the law -- the flood of female attorneys into firm practice in the 1980's coupled with the modern law firms' explosion in size, wealth and complexity.  

To give you a small taste of Ms. Rikleen's scholarship and vision, here's a thumb-nail of her diagnosis of the ills that have beset Mid-to-BigLaw practice:  

As [law firms] have grown . . . they have failed to develop an infrastructure which could channel the energies that have led to huge financial success into a coherent management framework.  The result is a series of internal, unstructured organizational units which often have more in common with life in the frontiers of the Old West than they do with sophisticated businesses.

Sound familiar?  Either buy the book now! or wait for my lengthier review in an upcoming issue of The Complete Lawyer.

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(right:  Calvin Coolidge, Zelig and Herbert Hoover)

Soon, the Complete Lawyer's Human Factor Columnists (first appearance, Vol. IV, Issue 2 /*) are going to be addressing the ways in which you can use conflict resolution techniques to create, or restore, peace in your law firm.  

Though my contribution to that particular column is slicing the law firm's money pie with an eye toward the collective good rather than the individual's advantage, I can't pass up the opportunity to note the importance of accountability -- one of mediation's core values -- covered by The Snark in -- Oops!  An Associate Did it Again (excerpt below).

FESS UP

This is the hardest plan to implement because you fear finally being discovered for being imperfect and possibly over-rated. Will you be fired? Will it go down in your "file" only to rear its head in four years when you are denied admission into the partnership and the only reason they can give is, "Back in your second year, you missed that 1 p.m. meeting with our best client, MegaCorp."

But I think in the end it is better to fess up. Just don't do it in a way that makes things even worse: no crying, sniveling or begging for mercy. And no need to shave your head or hold a press conference.

You just need to explain yourself while displaying the appropriate level of remorse blended with confidence that says, "Yes, I screwed up that once, but it was an uncommon lapse that will be rectified. I will work even harder and bill a few extra hours to make up for lost faith in my value."

Provided your mistake didn't actually cause lost revenue or client relationships, you likely will be forgiven. But don't let it happen again. You get paid way too much money to make mistakes.

BigLaw or Small, You are Not a "Cog"

I know the Snark's column is meant to be witty, sarcastic, ironic, snide, and all of that, but the demeaning reference to BigLaw associates as "Cogs" is unfortunately reflective of some young lawyers' felt reality.  (Remember Jonathan Swift's Modest Proposal -- eat the poor?  It's not a joke)

Here is my advice to every first year associate at every law firm in the country -- be it a Two-Person Enterprise or a Ginormous BigLaw Endeavor: 

NOT ONLY ARE YOU NOT A COG, YOU DO NOT WORK FOR THE LAW FIRM

You WORK for the client.  If your "boss"  or your firm is not helping you do that to the highest level of your own abilities, then he/she is simply the guy/gal you need to circumvent so that you can give your client the best legal advice and services available.

THE BUCK STOPS WITH YOU.

You are a lawyer, with a lawyer's professional responsibilities and the right to be respected for the highly educated, skilled and semi-trained professional you are. 

Don't let anyone fool you.  You are not only important, you have power.  And with power comes accountability.  

Be a mensch.  Be a star. 

Welcome to the profession.

_______________________

/*  The columnists are Gini Nelson of Engaging Conflicts, Stephanie West Allen of Idealawg and Brains on Purpose, and the mother of all mediation-bloggers, Diane Levin of the Mediation Channel.  Oh yes, and me, Zelig.

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Sometimes reading my statistics page is the best way I have of taking the pulse of my readers and diagnosing the current actual rather than the aspirational state of settlement and mediation practice.

Listen.  Only the squeakiest client or party wheel will tell you that he is feeling coerced into settling the litigation that has become a millstone around your neck.

I'm talking to attorneys here -- but settlement officers, judges and mediators should pay attention as well.  Whether you're representing the CEO of a Fortune 500 Company or the 60-year old man who slipped on the iconic darkened bananna peel in the produce section of the local Ralphs, at some point during settlement negotiations your clients are going to suspect one or more of the following:

1. you're tired of his case and want to get rid of him
2. you're in cahoots with opposing counsel, with whom, frankly, you have a far more enduring if not affectionate relationship than with your client
3. you and your old buddy the mediator or settlement judge/officer have joined forces to to compel him to give up his legal rights in exchange for less money than you, his attorney, told him he was likely to recover two years ago
4. despite his protests, you, the mediator and opposing counsel keep saying the fact most important to his case  is "irrelevant" to his chances of recovery
5. when you talk to opposing counsel or the mediator about the case, he doesn't even recognize what you're talking about -- this is not the same case he brought to you to try two years ago
6. he feels extorted and no one is paying any attention to that
7. he feels like he's being sold down the river and no one is paying any attention to that
8. he paid his you and your law firm tens of thousands, hundreds of thousands, millions or tens of millions of dollars in attorneys fees and he thinks he could have settled the case for the sum that's being offered/demanded now before he paid you to litigate this case to the settlement conference.
9. he's really really irritated now -- angry even -- though he doesn't get angry; he gets even, and he'll have no trouble spending another few million on attorneys fees so show that lying, cheating so and so in the other caucus room a thing or two
10. he's a successful business man and he's never been treated with so little respect before.

Now let me tell you something else.  If these thoughts are some of those which race through your clients' minds during settlement conferences, your mediator should be sufficiently alert to the changing temperatures in the room to address them. 

Why?

Because the mediator's job is not to settle the case.

What??????????????????????????

The mediator's job is to:

1. assist you in helping your client understand the options available to him
2. assist you in delivering bad news to your client in a way your client can hear it
3. assist you in negotiating as good a settlement as possible for your client without making your client feel as if he has no other options
4. assist you in resolving for your client the justice issues that your client originally brought to you to resolve
5. assist you in helping your client recognize and set aside the emotional experience of the settlement conference for the purpose of doing a sober cost-benefit analysis
6. assist you in helping your client recognize that legal cases change over time; sometimes getting better and sometimes getting worse, usually both in the discovery process -- this is not the case your client originally brought to you -- untarnished by the harsh adversarial systems but puts "facts" to a more exacting test than any other process in business, political or social life
7. assist you in helping your client recognize his own fallibility, potential for error, and accountability for his part of the harm for which he is seeking recompense
8. assist you in helping your client recognize that the other side -- evil, destructive and hateful as it may well be -- also has a few items of "truth" and "justice" on its side of the balance sheet
9. assist you in helping your client make an informed decision without pressure from anyone whether he wishes to accept less than he wants to or would like to take his chances at trial
10. assist you in walking away from the mediation or settlement conference with your client clapping you on the back and saying, "great work, John.  If I'm ever in need of a litigator again, rest assured it's to you I will come.  I'll tell my friends on the block or on the Board of Directors that you're the man.

How do we accomplish these ten aspirational goals together -- attorney and mediator and client?  Stay tuned.

The Jerry McGuire video above is for our clients -- with whom we do not share just how hard we are working and what a toll it takes upon us because that's what they've paid us to do -- and paid us handsomely I might add.

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But if you are still practicing law,

download this

great practice guide from

Merrill-Legal

Maintaining the Chain of Custody in Civil Litigation.

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If the political season(s) have gotten too serious for you, check out I've Got a Crush on Obama below.

 Moment of Nostalgia:  When I was in high school, I was too frightened to compete in the impromtu or extemporary speech categories and too lazy to prepare all those 3x5 cards for debate.  Therefore I competed in state-wide speech tournaments through the National Forensic League in three categories -- humorous and dramatic interpretation and oratorical analysis.  Drama and close-textual analysis.

The Real Purpose of this Post:  Now you have the chance to view a high-level oratorical analysis (a New York Times video) about  Obama's oratory with John McWhorter of the Manhattan Institute and Megan McArdle of The Atlantic.

The bottom line here on Barack vs. Hillary is Preacher vs. Policy Paper.

It's well worth your time to view the video because the Preacher is a trial attorney's style and Policy Paper the litigator's style.  We're good at both.  We just need to choose our style to fit our audience -- Judge or Jury?

And if you're in the business of persuading mediators or your bargainiing partner at a mediation?   A little bit of both.  Policy paper with the mediator and in attorney-to-attorney negotiations.  Preacher in joint session or in mediator-orchestrated meetings between parties and attorneys. 

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O.K., from time to time I draft a brief for someone.  It keeps my hand in the game and REALLY -- it's MUCH EASIER to make $$$ doing what I did for 25 years than for what I've been doing for four.  I have HIGH HOPES that my research and writing mini-career will soon be shut down by my ADR career, but in the meantime . .. . . .

Shameless plug:  Listen . . . . I'm very very very very good at negotiating the resolution of complex commercial litigation.  I should be in heavy rotation.  Try me!  I won't let you down.

What this post is really about

Not that long ago, appellate attorney Greg May asked the readers of his excellent California Blog of Appeal how they used the legal blogosphere to help their clients.  I answered, but I didn't have anything really exciting to report.  Until this morning.

Yesterday, I spent hours researching a fairly obscure contract interpretation question.  I didn't find case ONE and I'm a pretty good little first year research associate -- always was.  So what did I do?  I turned to my virtual buddy, Ken Adams (who never writes a rambling post like this one) over at the brilliant, thorough and sophisticated Adams Drafting.  My brain must have been turned off yesterday because I couldn't find anything by searching his blog either.

So I did what I told my readers over at the IP ADR blog to to yesterday -- say "please."

Voila!!  In my in-box this morning, a link to the most comprehensive, practical, brilliant (relatively lengthy) article ON MY PRECISE LEGAL QUESTION that could easily make the difference between winning a $2.5 million appeal or losing it.

Listen.  You can't find this stuff in academic articles.  And you can't find it in Witkin or CalJur or AmJur or in the case law.  You can't find it in the California Civil Code's canons of construction or maxims of jurisprudence (my favorite:  "superfluity does not vitiate").

Ken Adams is the foremost authority on contract drafting in the nation.  And I have that wisdom tucked into my back pocket the moment it finally occurs to me to go over to his blog to have a look see.  

So that's how I use the legal blogosphere.  It's my law firm.  It's my community.  It's my home. 

How much better does it get?

Thanks Ken!

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In the middle of the journey of our life I came to myself within a dark wood where the straight way was lost. Dante Alighieri

When the journey turns from litigation to mediation, it's helpful to remember that we litigators are classic Hollywood hyphenates -- the writers-directors-actors of our client's story  -- and that our client has generally moved more and more into the background as the "executive" producer, i.e., the money guy with the power of the final cut. 

Since we've been building our narratives of right and wrong, good and evil, black and white for a pretty long time before mediation rolls around, it's good for us -- as authors of our clients' morality tales -- to step back for a moment and observe the inevitable structure of the litigation "story" we've been so busy writing.   

To help us do that, I'm going to walk myself and my readers through a fascinating article with an incredibly boring title -- CLIENT COUNSELING, MEDIATION, AND ALTERNATIVE NARRATIVES OF DISPUTE RESOLUTION, from the Clinical Law Review (10 Clinical L. Rev. 833 Spring 2004) by Law Professor Robert Rubinson. 

For full article, click on the link above.  The excerpt below concerns the standard litigation narrative that we make our living writing.  

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

In a breach of contract case, the parties enter into a contract (Steady State) and then one party breaches the contract (Trouble). In a tort case, plaintiff is walking on the sidewalk (Steady State) and then slips and falls (Trouble), or plaintiff is having a beer (Steady State) and then defendant slugs plaintiff (Trouble). In a criminal case, a bank is doing what banks ordinarily do (Steady State) and then is held up by a defendant armed with a gun (Trouble).

The defendant claims either that: 1) nothing happened, and an attempt to demonstrate otherwise is itself an example of disorder and thus of Trouble, and/or 2) something did happen to generate disorder, but it was the other party that did it.

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

These Efforts are subsumed within the procedures of litigation itself. Parties are successful in their Efforts to the extent the judge (or jury) decides that the origins of Trouble are as a party claims. Thus, the end result of successful Efforts is that a judge or jury Restores the Steady State by granting relief to the party whose version of Trouble is the right one.

To recapitulate, parties first come to litigation with divergent versions of Trouble. The court's job is to finish the story the "right" way so that a party's story makes sense. A bare bones representation of this narrative scheme would be as follows:

Joe's Story Steady State [already happened]: Dave and I were talking.

• Trouble [already happened]: Dave punched me.
• Efforts [is happening]: I am showing and will show that Dave owes me money for my injuries.
• Restoration of Steady State [should happen]: Dave pays me money.
• Coda [should happen]: Justice is done.

Dave's Story Steady State [already happened]: Joe and I were talking.

• Trouble [already happened]: Joe swung his arm to punch me. As a reflex, I hit him.
• Efforts [is happening]: I am showing and will show that this case must be dismissed.
• Restoration of Steady State [should happen]: This case is dismissed.
• Coda [should happen]: Justice is done.
  

Once the litigation is concluded, the "true" plot of the story can now be told completely and definitively. Either Joe's right, or Dave's right, or some combination thereof is right. Such a story - its fuzziness and indeterminacy stripped away - is familiar to every first-year law student . . . . 

Even this brief tour highlights an important dimension of litigation. The engine that drives litigation is a kind of anxiety about story completion. "Facts" need to be "found." The goal of an advocate is to persuade the decision-maker that the advocate's story is the right one, and if the advocate's story is the right one, then the "ending" - that is, the Restoration or Transformation of the Steady State - flows from it. In this sense, the Efforts are a contest about who caused the Trouble, and "finding" who did determines what the proper Restoration should be.

The Mediation Narrative from Professor Rubinson's article tomorrow.

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Help me... help you. Help me, help you.  Jerry Mcguire

Two short-short stories.  Both to acquaint you with who I was as a litigator and how I can help you as a mediator.

A Born Moralist

I was on the telephone with my client talking about a Rand Corp. statistical study that was originally prepared as answers to contention interrogatories (!!) but eventually became the centerpiece of Plaintiff's proof that my client had engaged in a massive conspiracy to drive the Plaintiff out of business.  Claimed damages soaking wet:  $250 million.

I was talking about how wrong the opposition was on so many levels -- evidentiarily, practically, legally and, yes, morally.

My client said, "I've finally figured out what you are."

"Yes?"

"You, Vickie, are a born moralist."

And I took that to be a compliment. 

Anything You Can Get Away With

Toward the end of my career all my cases seemed to hover around the quarter-billion dollar mark.  This one was an environmental coverage suit for a major petroleum company's potential liablities for 500 + toxic waste sites in every Canadian province.  This is one of the few cases in which the insurance carrier can wear a "white hat."  My client -- Lloyds of London.

This stuff is complicated.  It involves coverage across a couple of decades and up the ladder of excess policies to the billion dollar mark.  We use "coverage charts" -- often color coded -- to understand the policy profile at a glance.

At every oral argument in the trial court -- up to the winning summary judgment motion -- I arrived with a clutch of color-coded coverage charts that  supported my client's position.  On every occasion, plaintiff's counsel complained about the charts.  But he never brought competing charts with him.  The Judge -- one of the best on the Superior Court bench -- really wanted to understand the issues and get it right.  So she spent each oral argument listening to both parties while scrutinizing my coverage charts.

I genuninely believe that this is why I won.

What Does This Have to Do with Mediation Advocacy? 

Two things.

First, if you believe in the very depths of your soul that your client is right -- as I always did -- your mediation advocacy will improve if you begin to understand the principles of mediation advocacy.  It's banal, already, to say that these principles are non-adversarial.  Yet few litigators are able to shift from a litigation to a mediation model in circumstances in which making the shift would dramatically improve their mediation outcome.     

Second, hellloooooooooooooooo!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!  BRING VISUAL AIDS. 

Most attorneys are likely to settle this case at the mediation if they've brought the right stakeholders, properly prepared their strategic and tactical moves, and counseled their clients appropriately.  Yet they take their summary judgment briefs or demurrers or complaints, change the title to "Confidential Mediation Brief," make a few editorial changes -- primarily by removing references to the Judge granting their motion or providing them with relief -- send these briefs to the mediator, arrive with one (or more) bottom lines and, too often, a "prove you can settle this case" attitude toward the mediator.

This is not an indictment of the litigation bar nor even a complaint from a mediator.  This is the beginning of a series of posts about helping me help you help your client help you win the mediation.

Stay tuned.  Really.  Your mediation practice is about to go thermo-nuclear.  Take it from the "born moralist" who did whatever was (ethically) necessary to win.  Usually with pretty darn good results.

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For more hilarious law cartoons by the fabulous Charles Fincher, click here.

Yesterday, I had the distinct pleasure of speaking to, and then participating in a mock mediation with, Lisa Klerman's USC Law School Mediation Clinic students.

Among these bright, energetic, earnest law students are some who would like to make mediation a career before a period of sufferance in the rights and remedies business.  It always saddens me to be reminded that we "law elders" do not routinely make it clear to our young apprentices that the business and society of the law is as broad, exciting and varied as their own imaginations can make it.  In other words, I encourage young people to do with their law degree whatever the heck they like, including mediating disputes.  They need only understand that they are choosing an entrepreneurial rather than an institutional path.  They are breaking new ground.

What does this have to do with negotiation?  Our ability to negotiate our first post-law school employment opportunities or to end a hostage crisis is embedded in, supported by, and impossible without, a society governed by the rule of law.   

Because I don't have a lot of time to explore this topic this morning, I'm cannibalizing my own work to ground both myself and my readers in the topic "culture and the law."   We'll be returning often to this theme many times over the next several months.  

This item is from YouTube and the Law:  What it is or What it Will Be

Culture and consumers precede the law. They rarely, if ever, conform themselves to the needs, interests and desires of business. Culture and consumers govern business. Business does not govern them.

The law follows culture. As we noted over at the IP ADR Blog in Disputing Humor: Comedy, Folkways and the Internet, "the law" is not just a set of rules, but a life condition "in which [people] are carriers of rights and duties, privileges and immunities."

No formal structure supporting the system of law need be visible. . . Law can be found any place and any time that a group gathers together to pursue an objective. The rules, open or covert, by which they govern themselves, and the methods and techniques by which these rules are enforced is the law of the group. Judged by this broad standard, most law-making is too ephemeral to be even noticed. /*

In other words, we govern ourselves more or less naturally, until a conflict within the group arises. When that happens, the group is "forced to decide between conflicting claims [and the] law arises in an overt and relatively conspicuous fashion. The challenge forces decision, and decisions make law." Id.

*/ See, Weyrauch and Bell, Autonomous Lawmaking: The Case of the "Gypsies" (1993) 103 Yale L.J. 323 (1993) quoting Thomas A. Cowan & Donald A. Strickland, The Legal Structure of a Confined Microsociety (University of California, Berkeley Working Paper No. 34, 1965). The Weyrauch book on Gypsy Law can be found here.

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Report on Day Two of the Mediators Beyond Borders Conference later this evening.  Now, because Jens Thang from the Negotiation Guru dropped by to comment on Ken Cloke's list of ways we resist change, I'm linking to a recent N.G. article on power.  Go to Negotiation Guru here to read about each of the eight power principles identified by Jens below. 

1. Power of Reward 
2. Power of Punishment 
3. Power of Competition 
4. Power of Consistency 
5. Power of Expertise 
6. Power of Legitimacy 
7. Power of Situation 
8. Power of Information

 , , , , to achieve the highest level power is to have the power and not use it.

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I'm blogging from the Stanley Hotel -- hence the Stanley Steamer -- in the Rocky Mountains -- hence the snow.  

Stephen King wrote the Shining here, not in my room, but right down the hall.  The book was Inspired by the Stanley.  Hence the picture of Jack.

What's most exciting, however, is that I'm attending the Founding Congress of Mediators Beyond Borders; seeing old friends and meeting for the first time people I've long known at a distance; and getting to know an incredibly diverse and fascinating group of people dedicated to bringning conflict resolution techniques to international conflict.

More of that later.

Before getting to the "money shot" about changing the other guy's mind, I want to share with you Ken Cloke's 12 Ways Systems Resist Change from his lecture yesterday:  Mediators as Global Citizens:  How Mediators Can Change the Planet.

I start with resistance because you can't even begin to think about change until you understand why it is you're not getting past opposition's door.  You might most readily notice in the following list the ways in which your workplace (or your government!) supports its dysfunction.  

You'll also recognize your opponent's opposition to you and perhaps even yours to him.

1. Marginalization:  Making ideas, people, perspectives, or insights that could threaten the system appear unimportant, irrelevant, irrational, or impossible to achieve.
2. Negative Framing:  Using language that frames new ideas and critics negatively so that nothing that threatens the system can be thought or communicated successfully.
3. Exaggeration:  Stereotyping or exaggerating one part of an idea in order to discredit the other parts and the whole.
4. Personalization.  Reducing ideas to individual people, then discrediting or lionizing them.
5. Sentimentalization:  Using sentimental occasions, ideas, emotions and language to enforce conformity and silence criticism.
6. Seduction.  Describing the potential of the existing system in ways that unrealistically promise to fulfill people's deepest dreams and desires and blame the failure to achieve them on others.
7. Alignment:  Communicating that in order to exist, succeed, be happy or achieve influence, it is necessary to conform to the system regardless of its faults.
8. Legitimization.  Considering only existing practices as legitimate an all others as illegitimate.
9. Simplification.  Reducing disparate, complex, subtle, multi-faceted ideas to uniform, simplistic, superficial,  emotionally charged beliefs.
10. False Polarization:  Limiting people's ability to choose by falsely characterizing issues as good or evil, right or wrong, either/or.
11. Selective Repression.  Selecting individual critics as examples, bullying them for disagreeing or failing to conform and ostracizing them.
12. Double Binds:  Creating double standards that require people to live divided lives, or make it difficult for them to act with integrity.

Change strategies tomorrow.

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Making enough money doing what you love to do? No?

Butcher, Baker, Candlestick Maker, Doctor, Lawyer, Native American Chief, here's the book you must buy and read immediately -- Making Mediation Your Day Job: How to Market Your ADR Business Using Mediation Principles You Already Know

First, Mediation Earth Mother, Scholar and Entrepreneur, Diane Levin's review:

Shakespeare once wrote, "This above all: to thine own self be true." These words, written 400 years ago, resonate today. They do so especially for the many professional mediators who cringe at the very thought of marketing -- with its associations with shameless self-promotion, glad-handing, and cold-calling. For many mediators, marketing just feels wrong.

Now, at long last, there's a guidebook that achieves something no other mediation marketing resource has done. It helps mediators do the impossible: become more effective marketers and remain true to themselves and their work. Dr. Tammy Lenski, a mediator and mediation marketing coach who has run her own successful practice since 1997, has created Making Mediation Your Day Job, the definitive resource for mediators who want a realistic, practical blueprint for marketing their practice.

The clue to Dr. Lenski's formula for success is in the second half of the title of the book: How to Market Your ADR Business Using Mediation Principles You Already Know. She asks readers, "Would you enjoy marketing more if your primary aim isn't selling and self-promotion? I'm betting most of you would say yes." Like the skilled practitioner she is, she reframes, inviting readers to see marketing anew, "as dialogue or as a learning conversation", something mediators already know how to do, and do well.

Using humor, anecdotes, and real-life examples drawn from her clients, her students, and her own experience, Dr. Lenski encourages her readers to step outside their comfort zone and draw upon the professional skills they already have to build opportunities. She also offers sensible productivity tips, business planning advice, and useful exercises that help mediators master marketing.

What also distinguishes this work from the numerous resources available now on mediation marketing is its emphasis on professional integrity -- on honoring the profession through a commitment to mediation excellence. Dr. Lenski reminds readers that it's not just good marketing that matters; mediators also have a duty to uphold standards of excellence and develop their professional skills. She wisely observes, "In the end, it's the quality of the work you deliver that's going to help keep the clients coming."

More than a book, Making Mediation Your Day Job functions like an honest conversation with a wise and caring friend. Dr. Lenski writes as someone who has been there and understands where and why any of us get stuck when it comes to marketing. She's there to nudge us forward, with encouragement and straight talk. Making Mediation Your Day Job offers authentic, real-world advice for mediators who want to use marketing to take their practice to the next level -- and all the while stay true to themselves and their work.

And mine -- both of which can be found on amazon.com where you'll be purchasing Dr. Lenski's book today, yes?

I just finished consuming Making Mediation Your Day Job: How to Market Your ADR Business Using Mediation Principles You Already Know.

When I say "consuming," I'm talking about the way we exhaust our appetites over a Thanksgiving dinner plate -- eager, greedy and far too quickly -- before pausing to wonder where the turkey, potatoes, gravy, green beans and yams could possibly have gone.

Teacher, trainer, and mediator, Tammy Lenski is less than candid when she says this book is about marketing our ADR Business. This book is about locating and achieving our dreams. But Dr. Lenski doesn't stop there. She goes on to provide practial advice about making our living by living our dreams.

Why such effusive praise for a short book on marketing a mediation practice? Because it's not a "how to" but a "why" and a "what," with workshop questions to help us fill in the gaping holes of our lives.

This book does what no other career or marketing guide I've ever read even seeks to accomplish. It inspires and guides. It suggests reaching for the stars with our feet firmly planted on the ground. It asks us to look inside our very own hearts; to assess our strengths and weaknesses; and, to measure the width and depth and breadth of our desires. Then it gives us the action plan we've all been waiting for. The one that helps us make ME, INC. our day job.

It would be unfair -- selfish even -- to recommend this book only to mediators. Why would we withhold this practical wisdom from the aspiring lawyers, chefs and novelists in the world? Why would we deny the entrepreneurs and financial wizards; the actors and the politicians of the benefits of Dr. Lenski's ground-breaking work? It wouldn't be nice; it wouldn't be fair; it wouldn't be right.

And in this I do not exaggerate even a little. 

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