Trial attorneys, negotiators, mediators and settlement judges all share the same essential concern -- how to reach and persuade our audience.
Trial lawyers have a product to sell -- their client's narrative -- which is always just one version of the "truth." Negotiators are also selling -- a business proposition their bargaining partner will find attractive. Settlement judges who have not been trained as mediators are generally selling fear -- the uncertainty! the expense! the delay!
And mediators? What's on display at our hot dog stand? The needs and desires of the parties, certainly. Many arrive at the mediation without having given any thought to their own true wishes at all. We tend to go a little deeper than the negotiators, who are selling the future rather than also attempting to repair the past. We try not to be fear mongers like some of the worst settlement head-bangers we remember from our own legal practice. And, unlike trial lawyers, we straddle the "truth," attempting to harmonize the parties' narratives rather than selling one version as superior to the other.
So what are we mediators really selling? Reconciliation. Accountability. Understanding. Consensus.
And this Bears Upon Political Campaigns and Jury Trials in What Way?
I don't subscribe to many blogs, diverting the few dozen that capture my interest to my news reader. I do subscribe to Anne Read's Deliberations, however, because she really "gets" people's pre-dispositions -- the ones I need to understand for the purpose of helping my clients to comprehend -- appreciate even -- the other guy's point of view.
Today, for instance, Anne reminds us that we are in the midst of a Great National Jury Seminar. All we have to do is click on the campaign news. As usual, Anne is looking past the easy answers -- race, gender -- in favor of exploring the deeper reasons we might vote for someone of our own nationality or hair color -- shared stories. Here, for example,
What do race and gender really mean? Most studies of jurors conclude that juror demographics don't directly affect verdicts -- with the important exception that jurors lean toward parties of their own ethnicity. (That's from Devine et al, Jury Decision Making: 45 Years of Empirical Research on Deliberating Groups, 7 Psychology, Law, & Public Policy 622 (2000)). But at the same time, we know that people of different races and genders often have shared experiences. Since experiences in turn shape attitudes, race and gender matter in ways that go beyond loyalty, but are difficult to define.
Trial lawyers have long wanted to understand this better -- and these days, so does every news organization in America. One fascinating piece of this is how individual one's group identity can be, as Newsweek explains in an article that's well worth reading in full:
Which candidate a voter identifies with is one of the most important gut-level heuristics, since it is tantamount to deciding that someone is enough like you to "understand the concerns of people like you," as pollsters put it. "If you feel a candidate is like you racially or by gender, you're more likely to believe that that candidate will support what you support," says [Harvard political scientist Pippa] Norris. But with a white woman and a black man vying for the Democratic nomination, where does that leave black women? Whom they most identify with depends on which aspect of their own identity dominates their self-image. . . . .
Read on here (my emphasis)
We're in the People Business
So are we all just Willy Lomans, carrying our self-esteem, our hopes and dreams, our successes and failures in our sample cases -- to display -- or not -- when a customer calls? I think we are. And the mistake we make, when we make one, is to direct our customers' attention only to the glittering lures -- the "sales" talk -- the promises of a brighter future, a better marriage, a faster car.
If we take a deep breath from time to time and listen to ourselves instead of pontificating and persuading, we'll be reminded that we're all seeking the same thing. Community. Belonging. Understanding. Even shared sacrifice. Every negotiation, every mediation, every trial represents a human relationship in crisis. If we really get that, we can start working together again, in the same general direction, even when our ideas about how to accomplish that differ.
An Unpaid Political Stream of Consciousness
Listen. No one will gasp in surprise when I say I'm a lifelong Democrat. Nor will my readers likely be surprised to hear me articulate my fondest election year desire -- that Hillary and Barack -- sooner rather than later -- will find a way to join experience with vision for the purpose of leading this country out of the long season of division that, let's be frank, began in the sixties and has never healed. That they will together lead this country back to what it's truly best at -- uniting a diverse, fractious, irritable, needy, greedy, fearful, hopeful people into a single nation with a higher purpose than our own individual and narrow interests. The United States.
If both candidates could put their campaigns -- their money; their volunteers; their momentum -- together for the purpose of healing discord and revealing a new national consensus -- we would not simply feel great about our country again, we'd actually be great again.
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The web moves so fast I can hardly keep up. But this Alltop listing is supposed to mean that you're very very good at what you do -- blogging in an area of specialty like ADR or "the law."
Practicing law, particularly litigation, is often frustrating, sometimes humiliating, and frequently simply dispiriting. On the other hand, the practice of law can be thrilling, intellectually stimulating, challenging, absorbing, and a darn good way to make a good living.
Listen, Kevin is one of those people whose brain is so active you have to put those nuclear material warnings around it.
Greg May over at the 
O.K., they're not exactly articles. 
Let's welcome New York attorney-mediator Christian S. Herzeca of 
If you haven't checked out our 
Stephanie West Allen at 
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Claiming that the $4.85 billion Vioxx Settlement improperly "allows [defendant] Merck to dictate the advice a lawyer will offer" to clients, some Vioxx plaintiffs' attorneys have asked the federal judge overseeing the deal to "keep some of their clients outside the settlement while still allowing other clients to accept it."
I don't know how I let my own 