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

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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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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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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If you're a writer -- you know -- of fiction -- and you somewhat compulsively track your blog statistics because, well, you don't smoke cigarettes anymore, your blogging day doesn't start any better than this.

Search google.com (sue step mother for wrongful death) 

The mind reels with the possibilities.  But I have paperwork to do.  

The video, for those with procrastination in mind, takes about as long to watch as stepping outside to smoke a cigarette would.  And "stop smoking" was one of your New Year's resolutions, right?

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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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There's a good discussion about mediator neturality and the giving of legal advice during mediations going on over at Chris Annunziata's CKA mediation blog. 

Here's what they taught me at the Straus Institute:  neutral doesn't mean you don't come filled with opinions, ideas, leanings, prejudices and the like.  It just means:

1. you don't subjectively favor one party over the other; and,
2. you endeavor not to engage in any practices that would objectively favor one party over the other.

Easy to say.  Not always so easy to do.

Couldn't resist the Fincher cartoon.  Buy your lawyer Festivus presents over at Mug the Judge carrying LawComix like this.

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Cartoon courtesy of Charles Fincher, who is selling his priceless legal humor on coffee mugs at Mug the Judge this holiday season. 

Click here to find the best stocking stuffer around for the lawyer on your holiday shopping list.

Advertisement over.  Post begins:

Check out Decision Quest's recent article Jury Research: Shift the Paradigm, Rethink the Science by Stuart Miles, Ph.D., Senior Director at Louisville.

I almost tried a half-dozen "bet the company cases" and tried one to jury verdict using the services of jury consultants, focus groups, and trial graphic experts.  In every single one of those cases I wished I'd used a jury consultant earlier.  

That said, here's an excerpt of Dr. Miles article.  Click on the link above for the full article. 

 
Research is not just for cases that don’t settle - it can actually help to settle cases in your favor. Many attorneys think of jury research as final preparation before a case goes to trial or as a "last stage" of gathering information. Such thinking often arises if the research is viewed only as a form of trial strategy – but jury research can be a great deal more than that. To get the most return on an investment in research, it often helps to understand the broader value of research at different stages in the development of a case.

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Take a look at Geoff Sharp's post on the so-called pure money case and then please please please send me your stories on meaning-making about money in the course of mediated or non-mediated negotiations.

 (see our previous posts on the subjective experience of money here and here)

What do I mean by "meaning making"?

Let me give you an example of the type of story I'm looking for. 

I was mediating a personal injury case and we'd reached impasse.  The Plaintiff was having trouble understanding how the amounts of money being discussed could possibly adequately compensate her for her injury -- a self-report of daily 3-hour headaches.      

After much discussion I sat down with my calculator and "translated" the final offer of settlement into an hourly wage for two years worth of headaches "if suffering were your full-time job." 

The resulting "hourly income" was pretty substantial when viewed as an hourly payment for pain.  This way of presenting defendant's offer broke the impasse.  

Why? 

Before we translated the total settlement offer (minus costs and fees) into a compensation scheme familiar to the Plaintiff -- an hourly wage -- she  had no metric against which to value that offer.  The money wasn't real until she understood it in terms of earnings.  

I've heard many other stories like this but my appetite for them is insatiable.  Whenever a mediator or lawyer tells me a story like this, I am always inspired and heartened.  Their telling also helps me become better at facilitating "pure money" negotiations. I'm hoping they will also be useful to my readers.

Thanks to the Wise Law blog for picking up on the beginning of what I hope will be an expanding conversation among mediators and litigators about "pure money" negotiations.

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. . . with the usual groveling thanks to charles fincher of lawcomix for the generous giving of permission to use his brilliant and hilarious cartoons . . . . 

. . . to be fair, the final round contestants were all ridiculously well-prepared, articulate, bright, thorough and just generally the kind of young people you'd hoped would one day be in charge of the world . . .

. . . it's just that the ABA rules apparently require them to be very very very very very NICE . . . .  

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(right:  Carmela Soprano Files for Divorce)

I spent a great deal of time yesterday editing a video (my abysmal webcam and video editing skills live at Geoff Sharp's Mediation vBlog this morning do not beging to do justice to the intelligence and insight of Milan Slama, a community and business mediator who is the subject of the interview).

In the process, I "grazed" around YouTube (see my YouTube page here) to see what kinds of mediation and litigation videos people have uploaded. 

I'm sorry to report that most of them are in these varieties:  

• the "mediate because you really don't have access to justice" variety  here and here -- delay; expense;  "out of control nightmare";
• the angry "mediation (or litigation) doesn't work" genre -- here and here. 
• the crazed litigant gunman here and here (the "adversarial process -- or even a patent application -- can kill you" narrative)' 
• the "only lawyer you can afford is drunk" variety and, finally, to lighten the mood,
• the "we're Italian; we don't believe in divorce" Tony Soprano-style here.  

At Geoff Sharp's MediationvBlog however, you'll see some pretty high level discussions about both the benefits and the challenges of both mediation and litigation for attorneys, mediators, judges and, lest we forget, clients. 

There are a few words on negotiation tactics and strategy there as well.

Check it out.

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(left:  author/illustrator Rutu Modan)

I urge you to CLICK HERE IMMEDIATELY for the most extreme and hilarious family "negotiation" (read:  manipulation) tactics ever to flow from a pen (with marvelous illustrations) from a Blog you'll immediately want to add to your Blogroll:  Mixed Emotions by Rutu Modan.

This is a New York Times Blog (don't worry, fellow amateurs, the BigBloggers have to appeal to a much wider audience) which describes its author as follows:

Rutu Modan, an illustrator and comic book creator, is a chosen artist of the Israel Cultural Excellence Foundation. She has done comic strips for the Israeli newpapers Yedioth Acharonot and Ma’ariv and illustrations for The New Yorker, Le Monde, The New York Times and many other publications. Her first graphic novel, Exit Wounds, will be published in June. Ms. Modan, usually based in Tel Aviv, is currently in Sheffield, England.

Mixed Emotions is translated by Jesse Mishori. 

And if you want to off-set this dark whimsey with a little practical know-how from the smartest guys in the room, here's the Harvard Business School Working Knowledge article, Five Steps to Better Family Negotiations.

 

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For a real win-win, see the Professional Women's Network of Southern California Blog, subscribe to the feed, and join us in September for our first working meeting.

All is revealed at http://www.womenlawnet.blogspot.com  

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(right -- the wet part of the ocean -- photo by beglib at morguefile)

As we noted yesterday, some members of the insurance policy holder bar suggest that coverage counsel hold non-confidential "mediations," either by calling them settlement conferences or by agreeing that no party will subsequently assert the mediation privilege.    

Why?  Because policy holder counsel is concerned that the insurance carrier will commit acts of bad faith during the mediation without having to answer for its wrongful conduct due to the protections of the mediation privilege.

I propose here that talking about the confidential part of mediation is like talking about the wet part of the ocean.

Why?  Because confidentiality is what makes mediation possible.  It is what permits the parties to take a time out on the battlefield where everything we say and every move we make can and will be used against us. Private, confidential mediation time is a time when the parties can come together as people rather than as combatants.  And this is true no matter how many zeros follow the first number at issue nor how "fictitious" the "people" are.  Legal entities like corporations, after all, can and do work only through people who have personal interests at stake in, and genuinely felt emotions in response to, the litigation. 

Mediation time is a time when the law allows people to recognize that they share a mutual problem, one that yokes them together. It is a time when they can give up carrying the burden and cost of the dispute alone; a time when they are given the opportunity to realize that by drilling a hole in the other guy's side of the boat, they will sink their own.

But What About the Unremediated Bad Faith?

Mediation commences and ends on dates certain.  If the insurance carrier commits bad faith in refusing to accept a settlement offer during the mediation, you can rest assured that it will continue to commit bad faith thereafter.  So what if you can't reveal the offer and counter (or refusal to deal) that occurred during the mediation.  Make the same offer again after the mediation is over.  The carrier will once again respond with the same bad faith counter or the same refusal to deal.  Or, to your vast surprise, act in good faith and pay the claim and all damages associated with its earlier refusal to be accountable for the policy terms.

I cannot think of a circumstance in which acts of bad faith that take place during a mediation session couldn't or wouldn't be replicated both before or after that mediation session.  The carrier has 365 days of the year, 24-hours in the day and seven days every week in which to commit bad faith.  And the plaintiff may gather evidence of that continuing wrongful conduct on every single one of those days other than the day the parties mediate their dispute.  

All we're asking -- the alternative dispute resolution squad -- is one day -- a single day -- to assist you in the resolution of your lawsuit according to mediation principles and practices.  I don't think that's too much to ask, is it?

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Last week, along with my extern, Pepperdine Law School and Straus ADR student Cameron Mitchell, and my friend, the actor, musician, and singer-songwriter Lisa Douglass, I presented an Improv Seminar on Peacemaking in a Tit for Tat World using Baz Luhrman's hypnotic Romeo + Juliet as a jumping off point. 

The Seminar was sponsored by the L.A. County Bar Association's Dispute Resolution Services and the SCMA's Salon Series.  Thanks to Kathryn Turk of the West Hollywood Community Mediation Center and Jan Schau, President of the SCMA for the opportunity and facilities to host the Salon.

This is one the scenes we used to demonstrate how dangerous peacemaking can be in the absence of conflict resolution skills, particularly in response to an intractable conflict where communication is non-existent or diminished, the conflict itself is ritualized and celebrated, and extreme positions encouraged, as we see here, resulting in Mercutio's death.

We used an excerpt of Ken Cloke's article Mediators Without Borders: A Proposal to Resolve Political Conflicts as a teaching tool and many in attendance asked for the text.  I've therefore summarized the important points we covered at the seminar and linked to the article above.

Five Strategies for Intervention in an Intractable Conflict

1. actively encourage the open expression of the rage and grief stirred up by the conflict in a context that is constructive and oriented to resolution and reconciliation, such as that used by the South African Truth and Reconciliation Commission. 
2. dismantle the prejudices and stereotypes of the “enemy” through a combination of bias awareness, storytelling, dialogue, collaborative negotiation, and strategic planning techniques.
3. develop skills within local neighborhoods and communities in group facilitation, public dialogue, strategic planning, collaborative negotiation, and peer mediation.
4. encourage forgiveness and reconciliation by creating openhearted communications and direct dialogues between former antagonists.
5.  institutionaliz[e] these skills so that future conflicts can be resolved without coercion or violence.

More on all of this later next week.

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

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

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

Here it is again.  

On to disreputable billable hour violations . . . .

We're Hard Wired to Detect Cheating

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

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

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

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

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

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

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

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

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

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

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

No wonder we like to play Texas Hold'em.

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

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

Another Benefit of Getting Your Case Before a Mediator

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

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

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

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

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

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

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

Roehl v. Ritchie

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

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

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

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

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

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

(emphasis my own)

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

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

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

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

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

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

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

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

The following blogs make me think:  

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

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

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

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Slight digression for moment of nostalgia and copyright notice. 

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

It led to harder comedy.  

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

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

OK, I blew the entire post on that.

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

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

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

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

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

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

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

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

Find the Deciders and Draw a Deal Diagram

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

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

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 (the incomparable Charles Fincher at LawComix.com)

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

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

Italicized text is my own.

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

Step One

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

Keep reviewing these points while you negotiate.

Step Two

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

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

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

Step Three :  Ascertaining the Zone of Possible Agreement

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

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

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

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

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

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

Explore moving the reservation points of each side.

Step Four

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

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

Step Five

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

MIXED MOTIVE BARGAINING

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

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

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

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

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

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

for remainder of story click here.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

There's much more of interest in this article to anyone engaged in the project of preparing ourselves for the challenges of the coming century, including the mass relocation of people due to th