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

Today's New York Times (Questions of Rent Tactics by Private Equity) reports that investment firms have been purchasing New York City rental properties for the avowed purpose of "turning over 20 percent to 30 percent of the units, five times the typical vacancy rate," to upgrade the rentals up and out of rent regulation, generating tens of millions of dollars of income for the investors.    

Tenants are complaining that the investment firms' tactics to "turn over" those units (i.e., evict low-income residents from their homes) are not only ruthless, but fraudulent as well.  See the full article here.

So what's the little guy to do when BigBusiness decides to set aside ethics to maximize profit?  What individuals have always done when their survival is threatened.  Organize.  According to John Medina, author of Brain Rules, there's more than one way to be the fittest survivor and collaboration has always been our species' strategy.  

"Suppose you are not the biggest person on the block," Medina writes,

but you have thousands of years to become one.  What do you do?  If you are an animal, the most straightforward approach is becoming physically bigger, like the alpha male in a dog pack, with selection favoring muscle and bone.  But there is another way to double your biomass.  It's not by creating a body, but by creating an ally.  If you could establish cooperative agreements with some of your neighbors, you could double your power even if you did not personally double your strength. 

Trying to fight off a woolly mammoth?  Alone, and the fight might look like Bambi vs. Godzilla.  Two or three of you, however, coordinating your behaviors and establishing the concept of 'teamwork,' and you present a formidable challenge:  You can figure out how to compel the mammoth to tumble over a cliff.  There is ample evidence that his is exactly what we did

Locating and deploying likely allies is not only good sense when the individual has no bargaining power -- like NYC's low-income tenants -- it's also an extremely savvy move for business negotiators.  As Lax and Sebenius explain in their ground-breaking book 3-D Negotiation

[w]here one-dimensional negotiators mainly focus on actions at the table, [the] third dimension, “setup,” extends to actions away from the table that shape and re-shape the situation to advantage. In deal after deal we’ve seen the same result: once the parties and issues are fixed, and once the negotiating table has otherwise been set, much of the game has already been played.

Therefore, before even showing up at the conference room, 3-D Negotiators take the initiative. They act away from the table to set up the most promising possible situation, ready for tactical interplay. This means ensuring that the right parties have been approached, in the right sequence, to deal with the right issues, that engage the right set of interests, at the right table or tables, at the right time, under the right expectations, and facing the right consequences of walking away if there is no deal.

If the setup at the table isn’t promising, this calls for moves to re-set it more favorably. As we’ll show you, a superior setup plus the right tactics can yield remarkable results that would be unattainable by purely tactical means, however skillful.

See the 3-D Negotiation strategy summarized in the online introduction here.

You don't need to grow larger, richer, stronger or even smarter to gain a bargaining advantage.  If you find the right allies, before you know it, you'll be roasting that woolly mammoth over charcoal briquettes in your own backyard.   

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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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The International Institute of Conflict Prevention and Resolution (CPR) is one of the premiere mediation organizations in the world.  Though I'm a neutral on CPR's insurance coverage ADR panel, even I cannot access all of the site's content because I'm not also a member.  

There are, however, some CPR resources freely available to the public that I've only recently stumbled over, including a great set of podcast interviews conducted by Michael McIlwrath, Senior Counsel, Litigation for GE Infrastructure - Oil & Gas. As CPR notes:

Michael is based at his company's headquarters in Florence, Italy. He represents his division in disputes world-wide, including work in negotiations, mediation, and arbitration, and is a long-time member of the CPR Institute and its European Advisory Committee.

One of those interviews is with JAMS General Counsel, Jay Welsh, who talks here in Part I about JAMS' history, structure and method of operation.

Part II tomorrow.

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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.

When you shift the purpose of your legal practice from winning cases (litigating) to negotiating settlements (mediating) you also shift your focus from solving intellectual legal puzzles to serving individual party interests.  As a result, you give considerably more thought on a daily basis to what makes people really happy, or, at a minimum, fairly well satisfied.  

That's why you find "work life balance" and career advice in a negotiation blog -- because you cannot negotiate what you really want in exchange for what you do unless you are able to plumb the depths of your own true desire and discard any out-moded ideas about what "should" make you happy.

For these reasons I bring you a dynamite (and very funny) article by career coach Lisa Gates of 360 Alliance Coaching. If you're slogging around not knowing what to do with your early- mid- or late-legal-career-crisis, you couldn't do any better than to book a few sessions with Lisa. 

Her excellent post -- 29 Worn Out Perspectives in Need of the "Oh Really" Factor -- from LifeHack below.  

We all have places in our lives where we get stuck, augured in by a particular belief like, “work is hard,” or “children are too expensive,” or “politicians are evil.” To make matters worse, we often can’t distinguish between the truth and a disempowering belief because we attach little refrains like, “that’s just the way it is.” It’s as if our minds have become the honeymoon destination for Archie Bunker and Nurse Ratched.

If we really listen, we will hear a quality of flatness, resignation or a dissonant righteousness in our speaking. To bring choice, openness, and inquiry back into your reality try adding the challenge “oh really?” to these 29 worn out perspectives (or your own) and turn up the heat on those victim-making, life-killing, soul-sucking, war-making phrases that have been sapping your fulfillment.

1. I don’t have the time.
2. Everything on my to-do list is important and essential.
3. I can’t quit. If I do, everything will fall apart.
4. If I take time off, I’ll lose my game.
5. Nobody will hire me, I’m too old.
6. You’re supposed to get married and then have the baby.
7. Get your diploma, go to college, get a master’s, get married, get a career, have a family, grow old, die.
8. I need an MFA to get published.
9. Art is good, but if you want to make a living, you have to get a real job.
10. I am a complete loser without my [to-do list] [blackberry] [iphone] [rolodex].
11. You’re a loser if you use a rolodex.
12. I can’t delete all those emails.
13. You have to get a telephone. Everyone has a telephone.
14. Nobody will respect me if I don’t have a Ph.D.
15. I have to know how it ends before I begin.
16. You have to start at the bottom if you want to get to the top.
17. A black man can never be president.
18. My vote doesn’t count.
19. Women over 50 should not have long hair.
20. I’m not creative.
21. Investing is pointless as my age; I should have started years ago.
22. It’s all my mother’s fault.
23. It’s all your mother’s fault.
24. I don’t have any choice.
25. If I don’t make it by 30, I never will.
26. If you’re an artist, you need a career to fall back on.
27. Finding love is just not in the cards for me.
28. I’d rather travel, but I have to get a degree first.
29. There’s nothing I can do about it (the all-time favorite).

Now that you’ve disrupted the homeostasis, what other perspectives are now clamoring to be heard?

About Author: Lisa Gates is a coach and completion catalyst - the crazy glue on the soles of your sneakers that keeps you committed to your book, your project, your big idea. Committed to inspiring the leadership possibilities of livelihoods in action, Lisa has three words for all idea-crazed writers, entrepreneurs and dreamers: Someday is now. Find her at 360 Alliance Coaching.

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I'll soon be teaching a short session on career development over at the Straus Institute with one of the hottest mediators in town --  the busily brilliant Lisa Klerman, formerly of Morrison & Foerster and for the past few years the head of the USC Law School's Mediation Clinic.

I have my own short list of practice development principles in How to Start a Mediation Practice.  These broad guidelines have taken me farther in the first four years of my mediation career than I should reasonably have expected though, of course, I remain impatient to simply be booked three months in advance right now! ("instant gratification takes too long").   Here they are:

1. be conscious, i.e., be alert to conflict escalation, the parties' needs and fears, and your own true goals and genuine strengths.
2. be teachable
3. be of service
4. always say "yes" to a mediation request
5. be the exception to any rule that would guarantee your failure

I'd be remiss if I didn't mention mediator and educator Tammy Lenski's meticulously crafted guide book to the perils and opportunities of mediation practice -- Making Mediation Your Day Job here, which I'll be putting on the bibliography list for Jack's class.  (Diane Levin's and my reviews of this book can be found here)

 

 

 

 

Meanwhile, Lisa Klerman has passed along to Jack McCrory, guru to LL.M Dispute Resolution students over at Straus, the following article on business development for the final LL.M seminar before the students graduate from that program.  It is well worth re-printing here.

Yes, There Is Money in Mediation! Ten Success Secrets from Top (Non-Starving) Mediators.

It isn't exactly easy to make big bucks as a mediator, but industry standout
Jeffrey Krivis says it is possible. In his new book, he has teamed up with
some of his successful colleagues to share a few lucrative tricks of the trade.

Doctor. Teacher. Firefighter. Professional athlete. And mediator? Actually, yes. While few second-graders are naming this career on What-I-Want-to-Be-When-I-Grow-Up Day, mediation is becoming a hot career choice. Since the early 1990s many people, lawyers in particular, have jumped on the mediation bandwagon. No wonder. Its high success rate and lower costs (compared to those of a court case) have led to a boom in mediators. And surprise! Some of them are making serious money.

"Mediation is a career of extremes," says mediator Jeffrey Krivis, co-author (along with Naomi Lucks) of the new book How to Make Money as a Mediator (And Create Value for Everyone): 30 Top Mediators Share Secrets to Building a Successful Practice. /1

"This is a field in which it's possible to become wildly successful-think Tiger Woods, Martina Navratilova, Lance Armstrong-but only a relative few make it to that top tier. "There are many mediators who struggle," he adds. "And because they consider their career a calling, they accept the struggle. They'll tell you they can't imagine doing anything else. But the truth is, you can fulfill your calling and build up a healthy bank account."

Krivis and Lucks have written a book for mediators-and aspiring mediators-who want to do just that. It's an invaluable resource filled with practical, proven, and down-to-earth information on how you can develop a satisfying and lucrative career as a mediator, no matter what your area of interest. The book provides advice from 30 top mediators, who give a behind-the-scenes look at how they achieved success in this highly competitive profession.

Here are 10 great tips from How to Make Money as a Mediator that can put any new (or struggling) mediator on the path to success:

1. Inspire trust. You must ensure that your clients and potential clients-whether they are lawyers, helping professionals, families, or community leaders-feel they can trust you to be fair. They must believe you can help them grapple with the life-changing issues that arise in mediated negotiations. All top-tier mediators will tell you that inspiring trust is paramount.

2. Cultivate champions. A passion for mediating and terrific natural skills can take you only so far. You need to cultivate champions-influential people who believe in you as a mediator and who are happy to help you get your name out there to larger groups. "I have had several champions who paved the way for me, introducing me to important potential clients and polishing my reputation," says Krivis. "If you have even one such champion, you can consider yourself fortunate indeed. But note: they will not always come into your life by chance. You need to cultivate these relationships."

3. Practice authenticity. Authenticity is the bedrock on which trust is built. For a mediator, authenticity means being strong enough to work with ambiguity day in and day out, and to face the internal conflicts it sometimes engenders. You can't always know where things are going or how you are going to get there, but you must lead from an honest heart. This will give you the ability to walk the fine line between deception and honesty and to make the parties feel that you always have their best interests at heart.

4. Create value. Great mediators are always working to provide direction and encouragement, giving clients new tools for solving problems, guiding them around potential land mines, and helping them discover new opportunities. Krivis calls this creating value. In fact, he says, creating value might well be the foundation for getting clients and settling cases. When marketing your services, you can create value by finding out from the parties what their pain threshold is, what's causing them the most concern, and what has to happen in order for them to select you as the person who can help them solve their problem. Once you have this information, you can innovate regarding how to solve their problem.

5. Embrace rejection. Mediation is an isolated world. For every case you get, there are 10 you didn't. To be really successful, you have to expect rejection and embrace it. You must hold the view that when you've been rejected, it means that someone who believes in you has tried to sell you. He or she will keep putting your name out there, and eventually you'll achieve critical mass. "I hear the statement, 'Oh, your name comes up all the time' from people who have never used me," says Krivis. "Don't let rejection get to you. You may be on every lawyer's list of three top mediators, but you've got to remember that there are two other mediators up there with you. You just can't take the decision personally. It may be based on timing or scheduling, or the would-be clients just plain prefer another mediator over you that day."

6. Practice the Three Ps: Patience, Perseverance, and Persistence. Every single mediator who made it to the top did so because he or she understood the importance of the Three Ps. It can take three to five years to build a successful mediation practice, so relax, dig in your heels, and prepare to be there for the long haul. Believe in your abilities, believe that you can and will build a successful career, back up that assurance with real skills and real successes, and then stay the course.

7. Learn to deal with emotional overload. Sometimes, especially after a particularly rough or draining session, you just have to put the day out of your mind and move on.

8. Make yourself a standout. Here's the brutal reality: there are far more mediators than there are mediation opportunities. Think hard about who you are and what makes you unique, and how you can help your clients and potential clients recognize that uniqueness. Find creative, compelling ways to help yourself stand out from the pack whether it's through teaching courses, writing, or attending CLE programs. Put your name and face in front of your clients with enough frequency that you become familiar-a known quantity they respect. Whatever you do, be discriminating in the marketing choices you make for your practice. Interestingly, says Krivis, standing out doesn't mean tooting your own horn. "You're not out there to tell people how great you are, but to find out what's going on in their practice and how you can help. When they remember your name and face, that's the subliminal message they should receive on their radar screen."

9. Market yourself as a professional. What does it take to establish yourself, to be the name that repeatedly shows up on the ledgers of people who are looking for mediators? You must think of yourself as a professional mediator, believe in yourself, and live the part every day. You must develop a reputation for mediating well and staying with a case until it closes. But beyond these fundamentals, you must understand how to market yourself as a mediator: what it takes to get the power players on your side and what you need to do to be seen as-and become-part of their inner circle. Don't inadvertently market yourself as a fringe player.

10. Stay fresh to survive. Yes, everyone gets tired at some point. But you'll survive in this business by making an effort to stay fresh in your approach and your outlook toward your practice. Do all you can to maintain your compassion for the parties you serve. If, despite your best efforts, you find yourself getting stale or robotic in your approach, take corrective measures fast. You can get your blood pumping again by collaborating on ideas with other mediators or taking "educational vacations" to exercise your mind by learning about faraway places and far-out ideas. 

______________________

1/ See local mediator Charles Parselle's review of Krivis' book here.
 

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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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Why talk about achieving your heart's desire in a blog dedicated to negotiated resolutions of disputes?  Because you must know how you value a thing before you can even begin to think about negotiating a price for it.

This week, over at the Connecticut Employment Law Blog, Part II on my series of posts on negotiating  partnership compensation will appear.  (Part I is here).  If we don't know what we really want, we are more apt to accept in compensation for our life's work what one author has called "frozen desire" -- money -- even when money fails to satisfy.  (See Frozen Desire, The Meaning of Money here)

Because I made (and am continuing to make) a career transition and because my new career is truly  my own heart's desire, I offer the following advice from the middle of the road toward my own unique kind of success -- a success that includes but does not entirely rest upon money as a measure.  

• Give up whatever it is you are currently addicted to -- money, property, power, prestige, safety, drugs, alcohol, food, spending, cheating, clinging, worrying, or even simply saving against an uncertain future.
• Find your "bliss"
  • I didn't know what this was until I was ready
  • I wasn't "ready" until I conquered numerous other challenges 
  • Your "bliss" doesn't occur to you overnight and it changes over time
  • Your "bliss" generally takes more than one form
  • sometimes life has to rip out of your hands that which you already possess before you are ready to pick up the new thing and start working on it 
  • in other words, you can't do the new thing until you've pretty much completely finished with the old 
• Ignore "sunk costs."  In my case,
  • tuition for LL.M
  • cost of professional training other than LL.M
  • sweat equity
    • pro bono panels
    • writing
    • speaking
• Don't let people tell you that it cannot be done
  • there are a thousand, a million reasons why something cannot be accomplished and only one reason it can -- you are committed to doing it
  • people who say you can't are more frightened than you are about their own ability to alter their destiny -- be kind to them but do not let them deter you
• Don't give up when it -- whatever "it" may be -- doesn't happen right away
• Be flexible
• Fill in the lean times with stuff you already know how to do. 
  • I, for instance, write, legally and "technically"
    • I have a range of writing "rates" according to the task
    • I charge more for legal briefs
    • I charge less for the occasional odd job when someone who needs a little writing done thinks -- oh Vickie would be the perfect person to do this!
  • I'm not too good for anything that provides me with income
  • Nevertheless, I set my rates at "market" as soon as I believe I have the education, training and experience to justify it
• Give freely of yourself without expectation of reward
• That said, barter
  • what you used to do has more value than what you're now beginning to do
  • don't hesitate to barter your old services in service of the new
• Build a social and professional network
  • you are now in possession of plentiful seeds of your new venture
  • toss them everywhere; spread them promiscuously
  • don't let anyone tell you that so and so cannot give you work -- everyone can give you work, even people who others see as your competitors
  • you have no competitors -- your market is big enough for you
  • your network should be both online (LinkedIn, Face Book and the like) and off-line (Bar and industry associations)
• Be a program of attraction rather than promotion
  • be a problem solver
  • walk your ADR talk
  • let people wonder what you do and tell them only when they ask
• Market your own backyard
  • you know certain types of people, professions, industries and commercial enterprises better than others
  • market them
  • remember Colin Powell's advice -- the most important information to an international diplomatic negotiation is "being inside the other guy's decision cycle."
  • it's easier to market the people you know than those you don't
• Be passionately committed to your own success. 

Until one is committed, there is hesitancy, the chance to draw back-- Concerning all acts of initiative (and creation), there is one elementary truth the ignorance of which kills countless ideas and splendid plans: that the moment one definitely commits oneself, then Providence moves too. All sorts of things occur to help one that would never otherwise have occurred. A whole stream of events issues from the decision, raising in one's favor all manner of unforeseen incidents and meetings and material assistance, which no man could have dreamed would have come his way. Whatever you can do, or dream you can do, begin it. Boldness has genius, power, and magic in it. Begin it now. Goethe

The world comes into existence as you move toward it.  Paul Auster

Whatever happens. Whatever
what is is is what
I want. Only that. But that.

--Galway Kinnell 
New Selected Poems, Mariner Books, 2001

 

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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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I've never actually met  Kevin O'Keefe, the founder of LexBlog, but I owe him a great debt of gratitude for dropping by my old blogger site one day to say he liked a post of mine.  

The rule of reciprocity and -- more importantly -- of curiosity, made me click on Kevin's Real Lawyers Have Blogs.  The rest is my own LexBlog personal history.  First this Blog -- designed and maintained by Kevin -- and then the IP ADR Blog with my IP buddies Les Weinstein, Michael Young, John Wagner, Eric van Ginkel and coming next (!) the brilliant and talented Jay McCauley.

How Kevin Changed My Life

Listen, Kevin is one of those people whose brain is so active you have to put those nuclear material warnings around it.

 

 

 

What Kevin does for a living, however, is not designing and maintaining blogs for lawyers. 

What Kevin does for a living is to build communities, jump-start dialogue, inspire lawyers and those who serve them to reach for the higher value and the deeper meaning, and to guide and maximize entrepreneurial effort. 

THE ABSOLUTE TRUTH

A fellow blogger told me today was Kevin's birthday (thanks Stephanie!)  I only remember my own husband's day of birth because it is the same as mine.   I "penned" this post before I knew that Kevin had kindly complimented by blogging today.

Synchronicity.  Which is not surprising because Kevin's spirit now pervades the legal blogosphere.  He taught me the deep rules of blog road.  And every time a new LexBlog blog hits the runway, I can see Kevin's influence there -- his injunction to not just "join the high level conversation" going on in the blogosphere and in more journalistic venues, but to maximize every opportunity that someone else's insight presents to extend that conversation into your own niche and raise the stakes at least one level upward.

WHY KEVIN

If you want to get an idea of why Kevin is so meaningful to his bloggers, read his mission statement -- the following is an excerpt from it -- Why I Do LexBlog:

To help lawyers. A significant percentage of lawyers became a lawyer because of some principle they held - some burning light inside of them, some cause. Law school, student loans, and the practicalities of working long hours to make money and achieve what others have defined as success have just about drowned out that burning light. Blogging about something that you are passionate about, getting positive feedback from others about your blogging, and getting legal work in the area of law you are passionate about sparks that flame inside. Lawyers start to feel good about themselves. 
 

Thanks Kevin!  You're the best! 

HAPPY BIRTHDAY!!!

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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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O.K.  Big confession.  In 25 years of legal practice, I never developed a book a business.  Not one page.  Not even a post-it note.  Which puts me in mind of a Hugh (Gaping Void) McLeod drawing.

Other than to urge you to run right out and buy Dr. Tammy Lenski's new book Making Mediation Your Day Job I parrot once again Mr. McLeod's platinum advice for making your own rain (which, shhhhhhhhhhh, the rain maker's big secret -- it's often way more fun than practicing law!)  

Review of Making Mediation Your Day Job next.

So you want to be more creative, in art, in business, whatever. Here are some tips that have worked for me over the years:

1. Ignore everybody.

2. The idea doesn't have to be big. It just has to be yours.

3. Put the hours in.

4. If your biz plan depends on you suddenly being "discovered" by some big shot, your plan will probably fail.

5. You are responsible for your own experience.

6. Everyone is born creative; everyone is given a box of crayons in kindergarten.

7. Keep your day job.

8. Companies that squelch creativity can no longer compete with companies that champion creativity.

9. Everybody has their own private Mount Everest they were put on this earth to climb.

10. The more talented somebody is, the less they need the props.

11. Don't try to stand out from the crowd; avoid crowds altogether.

12. If you accept the pain, it cannot hurt you.

13. Never compare your inside with somebody else's outside.

14. Dying young is overrated.

15. The most important thing a creative person can learn professionally is where to draw the red line that separates what you are willing to do, and what you are not.

16. The world is changing.

17. Merit can be bought. Passion can't.

18. Avoid the Watercooler Gang.

19. Sing in your own voice.

20. The choice of media is irrelevant.

21. Selling out is harder than it looks.

22. Nobody cares. Do it for yourself.

23. Worrying about "Commercial vs. Artistic" is a complete waste of time.

24. Don't worry about finding inspiration. It comes eventually.

25. You have to find your own schtick.

26. Write from the heart.

27. The best way to get approval is not to need it.

28. Power is never given. Power is taken.

29. Whatever choice you make, The Devil gets his due eventually.

30. The hardest part of being creative is getting used to it.

31. Remain frugal.

32. Allow your work to age with you.

33. Being Poor Sucks.

34. Beware of turning hobbies into jobs.

35. Savor obscurity while it lasts.

36. Start blogging. [see Why Every Client Should Want an Attorney Who Blogs here and the advice to "keep it quiet!" here)

The entire "must read" blog post can be found by  clicking here (pdf) or here.

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Before a wave of emotional despondency descends upon rank-and-file mediators from Geoff Sharp's revelation that median mediator income hovers around $67,000, let's get a little perspective.

First, if you are making $67,000 per year, you are the 52,428,447 richest person in the world and are in the top .87% of the wealthiest people worldwide.  See Global Rich List to end your week on a note of gratitude with a donation to the charity of your choice. 

 Chart from PayScale.

OK.  You don't compare yourself to the people living on less than one or two dollars a day, even though that's the first item on the list of your myriad blessings.  Half of the world's population -- nearly three billion people live on less than two dollars a day.

Check to charity or for a microloan written yet?

But you don't compare yourself to half the world's population.  You compare yourself to attorneys -- a profession you chose not to pursue or that you left to be happier.

The median salary for attorneys who have been in practice between one and four years is -- oh my goodness!!  -- just a couple grand less than the median income for mediators!

And remember, an attorney who has practiced between one and four years has been devoting him/herself to the law for between four and seven years -- the first three of which s/he was spending tens of thousands of dollars for a law degree and earning either precisely -- or next to -- nothing.

So.  If you've been mediating for between four and seven years and are making something between $50,000 and $100,000 per year, you are doing every bit as well as the median attorney.

Does your weekend look any brighter now?

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If you haven't seen it referenced by a hundred law blogs already, here's your link to the New York Times article The Falling-Down Professions, parsing not only legal, but also physician unhappiness.

Of all the fool's gold mentioned there (property, power and prestige) the article does contain one note of true value that attorneys might be missing in their practices:

Especially among young people, professional status is now inextricably linked to ideas of flexibility and creativity, concepts alien to seemingly everyone but art students even a generation ago.

“There used to be this idea of having a separate work self and home self,” . . . [Richard Florida, the author of “The Rise of the Creative Class: And How It’s Transforming Work, Leisure, Community and Everyday Life”]  “Now they just want to be themselves. It’s almost as if they’re interviewing places to see if they fit them.”

The Choices We Make

In 1975, I was fresh out of college and typing in a typing pool in Midtown Manhattan.  I still believed my sixties values at the time -- you know -- that meaningful employment was more important than money.  I was -- not surprisingly -- just about as opinionated then as I am today and precisely as willing to share those opinions with anyone, regardless of hierarchy.    

So it is that I recall a conversation I had with a young lawyer whose typing I did.  He was relatively fresh out of Berkeley (Boalt) Law School.  He wanted to be an historian, but the Ph.D's at the time were mostly driving cabs.  He'd already left Sullivan & Cromwell for a captive midtown Manhattan law firm because S&C had given him such tasks as color-coding a map of the United States with the insurance programs available in each one.  He'd even saved it.  Pulled it from his top desk drawer.   A momento of the life he'd avoided.

But he wasn't finding happiness at this smaller firm with more hands-on work either .

He was about to marry the young woman he was living with when it seemed time to marry and they were looking for a house in the suburbs.  They were thinking of having a baby.

Here's the cheeky part:  "don't do it," I urged him.  "You'll be chained to this unhappy job for the next quarter-century."  

Why did I believe this strongly enough to confront my superior in this way? 

Because my entire generation had rebelled against just this type of life.  We believed in following our dreams.  We had the audacity to believe we could be happy.

The "Ending" You'd Predicted, Pretty Much

This young attorney's children are all grown-up now.  And he wouldn't, of course, trade them for anything in the world.  He finally left practice in his fifties, after his children graduated from college, to pursue that doctoral degree in history.  

Shortly after -- before he had the Ph.D in hand -- his doctor gave him bad news.  He has (still in his fifties) a particularly fast-growing and deadly cancer.

So . . . . Listen . . . .

Follow your dreams.  

Along the way, if you don't put it off, love will come and commitments will be made.  Children will follow with the joys and sacrifices they entail.  If you are robustly participating in your own life, these events will take place. You will be successful and you will fail. 

Your failures will be your greatest teachers.  And sometimes, those failures will be sufficiently dramatic to release you from the bondage of the fool's gold we all haplessly follow from time to time -- status and  stuff instead of satisfaction.  

That, at any rate, is how my life has rolled out and the lives of my friends and colleagues.

Take the long view.  Then commit to the present with passion.  

(I've written elsewhere why sometimes lawyers are unhappy -- here and here for instance -- but I promise some "why we're happy" posts in the New Year!)

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We know it's short notice, but if you can make it to the Ritz Carlton in San Francisco on January 15 (and shouldn't any excuse do?) don't miss the Lexis/Nexis Women in the Legal Profession Summit -- Rainmaking, Negotiating and Collaborative Development.

Ruth Kahn (Steptoe) and Marcia Pope (Pillsbury) are making the following high-powered conference happen to start your new year developing or growing the practice of your dreams!

 

In 2006, The New York Times® reported that only 17% of partners at major law firms nationwide were women—and according to a National Association for Law Placement study, less than 5% were managing partners. In a recent survey, less than 15% of general counsel at Fortune 500 companies were women, according to the ABA. These statistics raise the question: Is the glass ceiling giving way in the legal industry?

[note that we also recently learned that women in the same practice and geographical areas also charge less than men!]

At the LexisNexis Women in the Legal Profession Summit: Rainmaking, Negotiating and Collaborative Development, you’ll hear about the techniques and approaches that successful female attorneys have employed to overcome the odds and achieve equal status in their firms or legal departments. And you’ll hear from in-house speakers from Chevron, The Clorox Company, Starbucks Coffee, LexisNexis Examen and Union Bank of California. You’ll get:

• Techniques for overcoming gender bias and improving the inclusion of women in practice 
• Strategies for leveraging your strengths to create leadership and rainmaking opportunities 
• A better understanding of what work/life balance is and ways to achieve it 
• Insight into how others perceive your communication style and what you can do to translate it into effective negotiating skills 
• Strategies for attaining partnership and for succeeding once you get there 
• Insight from a corporate roundtable on how the panelists got where they are today 
• And much more

From impressive speakers, including:

• Linda Marks, director of training and consulting, Center for WorkLife Law University of California, Hastings College of Law 
• Laurie Stein, Esq., senior vice president & general counsel, The Clorox Company 
• Patricia Gillette, Esq., Orrick, Herrington & Sutcliffe LLP 
• Silvia Garrigo, Esq., senior counsel, Chevron Corporation 
• Dawn Patrice Ross, Esq., senior vice president, Union Bank of California 
• Tina Bondy, Esq., corporate counsel, Coffee Master, Starbucks Coffee Company 
• Hon. Rebecca Westerfield (Ret.), JAMS

Led in their discussions by two extraordinary co-chairs:

• Ruth Kahn, Esq., Steptoe & Johnson LLP 
• Marcia Pope, Esq., Pillsbury Winthrop Shaw Pittman LLP

In addition, a luncheon and a cocktail reception will provide opportunities for discussion of issues and strategies with colleagues and experts.

 

 

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Both the Wall Street Journal Law Blog (Do Looks Matter in the Law?) and the ABA Journal (Good-Looking Lawyers Make More Money) are reporting -- the WSJ beside a photo of the none-too-beautiful but apparently universally "sexy" Matt Damon -- that good looking people -- even those in the legal profession -- make more money than their less comely peers. 

One of my favorite blogs, Deliberations, also covered this topic from the angle of jury persuasion in How to Be Better Looking here.

We've also covered this topic as thoroughly as we believe it deserves in the Power of Beauty here.

The executive summary?

Physical beauty creates a "halo effect" that leads us to believe that our better looking peers are smarter and more talented, generous and good-natured than the rest of us.  

The Lesson?

If we live life joyously and authentically, we will possess the qualities people automatically ascribe to the "beautiful" among us.  More imporatantly, we will have become beautiful by being the kind of person people imagine -- say -- Angelina Jolie or Matt Damon to be.

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(photo from Judicate West's home page) 

A terrific holiday party at Judicate West last evening with the best holiday hors d'ouvres of the season, mediator friends and new and old clients.

But that was just the beginning . . . .

 

 

 

. . . . then . . . .

 

 (Day 1 with the Forbes.com Business and Financial Bog  Network:  Sky Bar at the Mondrian Hotel --think Entourage -- the only bill I reached for quickly enough -- and Twisted Sister at the House of Blues on the Sunset Strip) 

(Jay Jay French and Dee Snider Talk with Entertainment Weekly About Twisted's Christmas Album)

 

Mosh Pit (photo of "Dead Fish" concert by Luiz Alberto Fiebig) . . . .

 which makes me  . . . . .

. . . . worry about the "children" getting hurt

AND of course

. . . .potential liability.

 

 

 

Sharon Gitelle, the woman who will make the Forbes.com Business and Financial Network . . . .

ROCKIN' . . . . .

Trust me on this one.

 What all this has to do with negotiating middle age in the next post (along with the promised post on negotiating the flat screen HD TV purchase)

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(Notting Hill Gate by Paolo Margari)

What is that advertisement at the top of Victoria Pynchon's Negotiation Law Blog?

It's the first of several ads to be delivered on this site by Forbes.com.

Why is she junking up her blog with advertising; does she need the $$$ that badly?  . 

It's true that I will earn some income (a few dollars a month?  a couple of hundred?  I have no idea). 

But I'm not in it for the ad revenue.  

Why then?

Believe it or not, this blog is not merely a marketing device.  It is also an attempt to spread the good news of collaborative problem solving and interest-based negotiation to whomever those skills might help in their business and personal lives.  

Learning interest-based negotiation and mediation skills radically changed the quality of my life, my work and my personal relationships.  I don't just want to share that, I'll go all the way to say I have a mission to share that. 

O.K., But What Does This Have to Do With Advertising from Forbes.com

I'm joining the Forbes.com Business and Financial Network to bring the Settle It Now Negotiation Blog to as many people as might find it useful, most particularly business people and attorneys.

Forbes.com's homepage has -- drum roll please -- 20 million visitors a month. 

I have 5,000-6,000 visitors a month. 

I'd like to have more.

I'm truly hoping that the Forbes.com network will provide a greater array of information and advice to my existing five to six thousand monthly visitors and that the addition of my blog to the network will get the central message of this blog to more people.

What is your blog's central message anyway?

Here it is.  

A community thrives on collaboration and reciprocity.  All communities -- local and global -- thrive on collaboration and reciprocity.  And individuals living in collaborative and reciprocal communities are happier and healthier than those who don't.

The rest is implementation.  And practice.

So, let's see how this Forbes.com community can further that goal. 

Hop on board!  The train is getting ready to leave the station. 

But don't worry about being left behind.  We're a local so you can jump on any time you're ready!! 

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It wasn't actually John Huston's Treasure of the Sierra Madre, but Mel Brook's Blazing Saddles -- where he parodies the scene above -- in which the bandits famously said "we don't need no stinkin' badges." 

Are we just as confused about the role played by mediation providers?

This is what you hear from litigators:

I don't hire a mediation provider, I hire a mediator.

This is what you hear from mediators:

People don't hire me because I'm on the JAMS or ADR Services or Judicate West panels.  People hire me because they know me.

And yet, we are on ADR provider panels and they do provide us with business just as we provide them with our "book." 

I'm not going to deconstruct the misconceptions here, only to provide you with an excerpt from the address given by Elizabeth Birch transcribed here -- Meditation Providers No Longer Add Value -- courtesy of Geoff Sharp and The Political News You Need to Know. 

 

It provides just a few of the reasons you might want to call my ADR provider, and that of my colleagues Jay McCauley, Michael Young, and John Wagner, at Judicate West, the next time you want to schedule a mediation or arbitration. 

 

 

Administration

Now, here is the nub of the problem. Many of you feel that you don’t need your mediations administered … “I can do that myself. Why should I let a Mediation Provider take some of the mediation money, if I can do it myself?”

Continue Reading...

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From the Simple Justice Blog -- a Rorschah test.

And while we're on the topic of funny lawyer ads, see the ABA Journal's article Funny Lawyer Ads are No Joke in New York by Martha Neil, teh Journal's online legal affairs writer here.

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For the complete article 3 Steps to Making Smarter Counteroffers :  Get the Compensation Package You Deserve by Michael Chaffers click here.

#1: Get Prepared

Before the negotiation begins, take the time to [do your] research . . . Establish a reasonable range for [co