I'm sure you've noticed that we're celebrating negotiating women here this month in honor of International Women's Day and National Women's History Month. Other than tomorrow night's free negotiating women teleseminar with super coach Lisa Gates, I'm celebrating by posting in one place all of my articles on negotiating women.
Nature gives you the face you have at 20; it is up to you to merit the face you have at 50. -- Coco Chanel A local judge who has four beautiful young law students working for him this summer...
If you're entering the job market, you'll want to check out Forbes' Magazine's Tips for Negotiating Your First Salary. If you do not negotiate your first salary, you stand to lose half a million dollars over...
I didn't realize until I got onto the plane out of Seattle that Linda Babcock and Sara Laschever -- our morning plenary session speakers (Women Don't Ask: Negotiation and the Gender Divide) -- have written a new book -- Ask...
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...
(Right, women protesting, 1912. My own grandmother was 12 years old at the time this photo was taken. By the time she was old enough to vote in 1921, she could vote) Why women's voting rights and Hillary Clinton's DNC...
If you're a certain age, you'll remember women's magazines as mostly "Can This Marriage Be Saved" (The Ladies Home Journal to which PWNSC members Cathy Scott's and Cordelia Mendoza's mother was always submitting articles) or 101 Things to do with...
Yesterday, we talked about the different negotiation styles of men and women. Today, we're going to explore how men can benefit from learning women-speak and women can benefit from learning man-talk. All of the data relied upon and excerpted below...
Although I am indisputably a "woman lawyer," I have never thought of myself in those terms. I'm a lawyer. And I'm a woman. I'm also a writer, a step-mother, a wife, a daughter, a river rafter, and an aficionado of...
(and, yes, I am not only old enough to remember the "Second Wave" Women's Movement, I took a quite serious role in it, first as an unpaid volunteer and later through the federal government's "Program for Local Service" at...
Thanks again to Vicki Flaugher of SmartWomanGuides.com for inviting me to have this conversation with her about ways in which women can and do maximize their bargaining power. And yes we do talk about negotiating the purchase of an automobile...
This segment of my interview with Vicki Flaughter is primarily about why women don't negotiate - to their substantial economic detriment - (see Women Don't Ask Here) and what they can do about it....
In part two of Vicki Flaugher's interview with me, we discuss ways in which women can comfortably respond to aggressive zero-sum distributive bargainers and negotiate better business deals using their natural strengths. I'd like to once again thank Vicki Flaugher...
Video below is part I of an interview on negotiation challenges, strategies and tactics for women with Vicki Flaugher, founder of SmartWoman Guides. The full audio of the video is here along with Ms. Flaugher's kind comments about our conversation....
How to Negotiate Anything: Free Intro Thursday, Mar 18, '10 8pm EST Some researchers say that women's failure to negotiate working conditions, salary or other compensation--along with their hesitancy to seek what they're worth when they do negotiate--is one of...
Whereas American women of every race, class, and ethnic background have made historic contributions to the growth and strength of our Nation in countless recorded and unrecorded ways; Whereas American women have played and continue to play a critical...
When I posted Negotiating Gender: Why So Few Women Neutrals? I had not yet found a source for the statistical representation of women neutrals on the American Arbitration Association Panel. I've now located an article on the AAA website from...
Although most of the major providers of alternative dispute resolution services tout their commitment to diversity in the ranks of their neutrals, the coloration of nearly all ADR panels continues to be white; the nationalities European; and the gender male....
Thanks to Ed. at Blawg Review for passing along this (somewhat rambling but well worth watching) lecture at Stanford University by Deborah Kolb, the Deloitte Ellen Gabriel Professor for Women and Leadership at the Simmons College School of Management....
After three years of negotiation and general ADR blogging, I feel the need to narrow my Negotiation Blog posts and expand my IP ADR Blog posts to the type of work that consumed the vast bulk of my 25-year litigation and trial career – general commercial litigation.
Some successes are small. He described one mediation between two families: one household with young girls built a privacy wall that blocked sunlight from reaching the neighbor’s house. They had argued for months, and were close to blows. A mediator helped them cool down, and get away from their hardened positions. They came up with a solution: The family that built the wall paid for a skylight for the neighboring house.
As Ken Cloke mentions in the slide show posted yesterday, these dispute resolution mechanisms are scaleable - the same process works on neighbor disputes as it does on disputes among nations.
I spent my day Saturday at the annual convention of the Southern California Mediation Association (kudos to attorney-mediator Phyllis Pollack for a fabulous conference!) Ken Cloke spoke eloquently on conflict systems and what mediators can do to "save the planet." I took his presentation (characteristically and densely verbal) and added images to break up the text hoping that Ken won't mind supplementing the English language with pictures).
I highly recommend Ken's presentation (which was incredibly eloquent at the conference and not limited by the hard bruising text against text can do) as well as, of course, his brilliant and visionary book - Conflict Revolution.
Patrick Deane of Nestlé is senior counsel to the largest food company in the world, and the disputes he runs into involve distributors, retailers, suppliers and consumers in every part of the globe. His ideal mediator combines logic and intuition; a concern for detail; and the knack of an epatheic listener. He noted that commercial disputes — even financial ones — are seldom dry, but instead involve personalities, risk of loss of face, and other human attributes just as much as more personal claims do. The question of subject-matter expertise was of little importance to Deane, compared to these essential qualities in a mediator who must be expert in a process that, at heart, is aimed at cost effectiveness. “A lack of industry expertise has never caused a failure of the mediation process.
I must admit that when Tim Hughes (@vaconstruction) -- he of the Virginia Real Estate, Land Use and Construction Law blog and an avid ADR watcher -- tipped me off to this post, I read the question as asking whether mediators should be experts in the "field" of conflict - rather than in the industry in which the disputants are involved.
Here's my opinion (as if you didn't already know). As Colin Powell says, the most important knowledge to have in international negotiations is the other guy's decision cycle. I imagine the great predictor, the political scientist and Hoover Institute Fellow Bruce Bueno de Mesquitas would say something along the same lines (see TED lecture below). See also the NYT piece, Can Game Theory Predict When Iran Will Get the Bomb?
What is the "other guy's" decision cycle? It is comprised of every interest he must satisfy and every person he is accountable to for the foreseeable (and probable unintended) consequences of that decision. Personal injury attorneys turned mediators are well acquainted with the decision cycles of both Plaintiff and Defense counsel as well as with the interests, needs, and desires of injured Plaintiffs, on the one hand, and insurance adjusters and their supervisors on the other. Employment attorneys turned mediators are also deeply knowledgeable about the decision cycles of counsel on both sides of the table (one usually specializing in employees and the other in employers) as well as with the interests, needs and desires of terminated, demoted, or harassed employees on the one hand and of employers - both large and small - who often feel as if the Plaintiff is little better than a highway robber. Judges turned mediators are better acquainted than anyone else of the decision cycles of juries -- a jury verdict being the alternative to a negotiated resolution.
You knew I'd come to my own "specialty" knowledge. Some of it is industry specific -- insurance and financial institutions, for instance, and the garment, manufacturing, health care, commercial real estate, construction, and technology industries. Though my experience in these fields adds some value to my commercial mediation practice, what I'm most skilled at is knowing the decision cycles of commercial litigators and their business clients. I understand, for instance, the clients' reporting relationships; the metrics against which their performance and that of their corporate superiors are measured; the impact of SEC reporting requirements in "bet the company" litigation; and, the effect settlements in nine or ten figures might have on upcoming plans for mergers or acquisitions.
I can read a financial statement.
At a minimum, I can ask the questions necessary to obtain the knowledge required to ascertain the interests that must be satisfied by both parties to transform the litigation into an opportunity to make a business deal. And I know how to make the commercial clients happy with their attorneys' final resolution of the business problem burdened with the justice issue that brought the case into court in the first instance.
I am also schooled in the "field" of conflict resolution. I understand at depth the cognitive biases -- universal tendencies in the way we think -- that inhibit rational decision making. I know how conflict escalates and, more importantly, how it can be deescalated. I understand the role emotion plays in decision making (particularly the emotion most common among business litigation clients - anger); the gentle (and not so gentle) art of persuasion and, perhaps most importantly, the optimal negotiation strategies and tactics for the business problem at hand.
And, I know in the knuckles of my spine what keeps commercial litigators awake at night, worrying about the next strategic, tactical, legal or extra-legal move to make; how to explain to the client that the case has suddenly gone south; and, how to deliver that bad news to the client in a way he or she can hear it and successfully report it to the GC, the CEO, the Board of Directors or e ven the shareholders.
I know this sounds like a lot of boastful self-promotion (it is). Please don't take my word for it. Anyone charged with finding, retaining and hiring a mediator to assist the parties in resolving a piece of hard-fought, sophisticated, complex commercial litigation would do well to check with his or her peers on any mediator's boastful self-appraisals.
This is what I recall of mediator-hunting, however. I'd send out a list to my colleagues. I'd invariably get back opinions that were all over the board. He/she is great with clients but usually ends up splitting the baby in half. He/she talks too much and listens too little. He/she marginalized the client and made me look bad. He/she charges $15,000 per day and is one of the go-to mediators for this type of case but I was unimpressed, as was the client. This guy/gal can settle anything. Brilliant. Magical.
So what's a beleaguered litigator to do? Ask people you respect both inside and outside your law firm. Ask how the mediator handles the "process dimensions" of the mediation. Does he/she simply carry numbers and rationales back and forth between separate caucus rooms. Can she give bad news to both sides. Can he go beyond positional, zero-sum bargaining and into interest-based negotiated resolutions? Is the client happy with the result and with the process? After you've done this basic research, call the mediator yourself and ask him/her about the way in which she/he might handle the mediation of the particular matter you need to have resolved. You should not only have the best information possible in making your choice, you should get a fair amount of terrific free advice and external brain-storming along the way.
I really just meant to cite the Business Conflict Blog and get back to revising The ABC's of Conflict Resolution - my second draft due on October 30.
So what's my answer to the question whether the mediator should have industry knowledge? That answer lies, as most legal problems do, in the gray zone. Industry knowledge helps. But every commercial litigator knows that we can learn any industry if we have a basic understanding of how commercial enterprises work. That's what I know -- commercial litigation -- and it is the reason I don't mediate personal injury or employment disputes with anyone below the rank of senior executive. I don't know the right questions to ask and I don't know -- at depth -- the parties' or counsel's decision cycles.
I know I've left a lot of fine mediators out of this list but these are the ones who immediately spring to mind because I either have personal experience as a client or co-mediator or I have it on the authority of my husband, Stephen N. Goldberg, formerly at Heller and now at Dickstein Shapiro (author of the Catastrophic Insurance Coverage blog).
Enough! Off to the real brains at hand -- Bruce Bueno de Mesquita at TED.
My own personal 200-year present spans the life of my maternal grandparents who were nine years old in 1909, and that of my step-children’s children, who (assuming they procreate on a reasonable schedule) should be ninety-five'ish in 2109. [1]
asked here whether the shiny, flying, silver Jiffy Pop-looking craft tethered in the backyard of Richard Heene was an "attractive nuisance" under the law.
My imagined grandchildren, [6] born sometime between today and 2014, will not be strangers to any of my grandfather’s technologies. Despite the advent of compact fluorescent light bulbs, the early lives of my step-children's children will likely pass under the glow of the same incandescent lights that brightened granddad’s one-room school house. They will be transported to school in cars with internal combustion engines, learn the same alphabet from the same cardboard and paper books (as well as from the "e" variety) [7] and play many of the same games[8] he did – hop scotch, jump rope and ring-around the rosy.
Change will etch itself into the lives of my grandchildren as surely as it did my own, my parents' and my grandparents'. Hybrids will give way to fully electric (and perhaps hemp-powered)[9] vehicles (effective or defective) and though electricity will continue to be generated by hydroelectric dams, wind farms and nuclear power plants, some new and unimaginable source of power will surely push back the nights of my grand children's children. [10]
Law, politics, society and culture also exist in the 200-year present of conflict resolution.[11] In my personal 200-year span, the law seems to have changed the most profoundly. Was it the law first and culture later? Or do they weave our future together?
The first U.S. woman lawyer, Myra Bradwell, was admitted to practice a mere ten years before my grandmother was born. Mrs. Bradwell’s legal career was the subject of one of the sorriest U.S. Supreme Court decisions ever handed down, in which the Court opined,
The civil law as well as nature itself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say the identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea for a woman adopting a distinct and independent career from that of her husband … for these reasons I think that the laws of Illinois now complained of are not obnoxious to the charge of any abridging any of the privileges and immunities of cities of the United States.
Another nineteen years would pass after Bradwell began her practice before she (and my nineteen year old grandmother) were guaranteed the right to vote. [13] And another 30 years would pass after my women's movement -- the Second Wave -- before we'd have our own business magazine - ForbesWoman (my part in it here). And let us not forget that despite the 20th Century's great civil rights achievements, when America catches a cold, black America gets pneumonia. See e.g. Problems All Around for Blacks in Big Law at Being a Black Lawyer.
My grandparents', parents' and step-children's 20th Century was dominated by genocide[14] on a scale and a technological precision unimaginable to our earlier forebears. Mid-century brought with it the threat of nuclear annihilation but also liberated millions of people enslaved by colonialism. We cured polio in my own lifetime with both "dead" and "live" vaccines (neither of them counterfeit) - a singular moment in scientific history during which no one took ownership of the cure and no one tried to stop others from seeking another, a problem Patently O addressed this week in Reverse Payments.
Whether god or satan, heaven or hell, war or peace "won" the twentieth century, the world's greatest peace-making body was created during it -- the United Nations. And here in the U.S., the “living room war,” Viet Nam, coupled with the largest generation of adolescents ever to grace American society, ended the forcible induction of young men into the military. [15]
With the recent discovery of our earliest ancestor, Ardi, our biological and social lives exist in a 4.4 million year now. Our physical bodies “evolve” in the womb along the same lines as did our species and, once born, we carry with us our earliest organs. [16] Most critical of these to conflict escalation and avoidance is our “fight-flight” mechanism – the amygdala.[17] And the most pertinent biological agents to promote the collaborative resolution of conflict are our “mirror neurons” which
provide a powerful biological foundation for the evolution of culture . . . absorb[ing] it directly, with each generation teaching the next by social sharing, imitation and observation.
How we’ve manage to survive despite our tendency to misread one another’s actions, intentions and emotions, is often the subject of those who advise us how to choose and move juries -- here -- Anne Reed at Deliberations (explaining why "they" don't see things like "we" do here); and, the Jury Room (explaining why pain hurts more intensely when we believe it's been intentionally inflicted here).
The Most Effective Conflict Resolution Technology is the Oldest
One of our true original gangsters, Al Capone, is reported to have said that “you can get much further with a kind word and a gun than you can with a kind word alone” and one of our greatest Presidents, Theodore Roosevelt said “speak softly and carry a big stick.”
As Robert Wright, author of The Moral Animal explained, had Tit for Tat been tossed into the game with 50 steadfast non-cooperators, there would have been a 49-way tie for first place. But none of the players' programs failed to cooperate in at least some circumstances, leaving Tit for Tat the clear victor. According to Wright, humans, like the programs in Axelrod's competition, are evolutionarily “designed” to cooperate under at least some circumstances. The engine and benefit of cooperation is present in our neurochemistry. When scientists observed the brain activity of volunteers playing the Prisoner’s Dilemma game, for instance, they found that the participants' “reward circuits” were activated and their impulsive "me first" circuits inhibited when they cooperated. Cooperation, retaliation, forgiveness and a return to cooperation. Tit for Tat.
We don't "dis" lawyers here at the Negotiation Blog. We simply remind ourselves that our primary purpose is the promotion of justice, with a stable societal order closely behind. Most people don't understand, for instance, that Shakespeare's famous the first thing we do, let's kill all the lawyerswas not an insult. In King Henry IV, Act IV, Scene II, Shakespeare's sentiment was not his own, but that of a revolutionary who wished to destroy the social order.
The historic "present" of laws and lawyers is in the thousands, not simply the hundreds, of years. Hammurabi (make of his choice for the memorialization of his laws what you will) was the sixth king of Babylon, remembered for creating -- in his own name (and likeness?) - the first written and systematic legal code.
For the wrongful killing of another, for instance, the victim’s kin were paid according to the social status of the deceased party. Thus the ‘man price’ for killing a peasant was 200 shillings and that for a nobleman 1200 shillings. Payments were not, however, tailored to the loss, but fixed according to types of affront, a distinction we continue to make when we punish intentional torts more severely than negligent ones. [24]
Lawyers, litigators and trial lawyers are too often demonized by the ADR community as if you could get someone to sit down to negotiate without first pointing the gun of litigation at their heads; I salute you (and myself, for that matter!) for bringing us all to the bargaining table. See Steve Mehta's recent post at Mediation Matters, Factors When Peace Makes Sense for a note that touches upon the symbiotic relationship between litigation and mediation, litigators and mediators.
I shouldn't cite single legal blogs twice, but I cannot resist this quote of Scott Greenfield's on another pundit's view of the future lawyers have in store for them, i.e.,
shucking oysters for a living if we don't accept a future of lawyers being piece workers in factories, sending our work off to Bangalore in pdf files and complementing people on their choice of forms at Legal Zoom.
Which came first? Public civil trials or private arbitrations? You’ll be surprised, I’ll wager, to hear that arbitration was one of the earliest forms of dispute resolution, practiced by the juris consults of the Roman Empire. Roman arbitration predates the adversarial system of common law by more than a thousand years. [25]
Ah, the glory of Rome! The juris consulti were (like too many mediators) amateurs who dabbled in dispute resolution, raising the question whether they (and we) should be certified or regulated as Diane Levin asks at The Mediation Channel this week. The Roman hobbyists gave legal opinions (responsa) to all comers (a practice known as publice respondere). They also served the needs of Roman judges and governors would routinely consult with advisory panels of jurisconsults before rendering decisions. Thus, the Romans – god bless them! - were the first to have a class of people who spent their days thinking about legal problems (an activity some readers will recall Ralph Nader calling "mental gymnastics in an iron cage").
18th Century Dispute Resolution Technology: The (Inevitably Polarizing) Adversarial System
It was Buckminster Fuller who famously opined that the "significant problems we face cannot be solved at the same level of thinking we were at when we created them." If you keep this aphorism in mind for the remainder of this post, you'll likely have some extraordinarily innovative comments to make in the comment section below.
As the Law Guru wiki reminds us, we can trace the adversarial system to the "medieval mode of trial by combat, in which some litigants were allowed a champion to represent them." We owe our present day adversarialism, however, to the common law's use of the jury - the power of argumentation replacing the power of the sword.
The Act abolishing the infamous Star Chamber in 1641 also granted every "freeman" the right to trial by "lawful judgment of his peers" or by the "law of the land" before the Crown could "take[] or imprison[]" him or "disseis[e] [him] of his freehold or liberties, or free customs." Nor could he any longer be "outlawed or exciled or otherwise destroyed." Nor could the King "pass upon him or condemn him."
English colonies like our own adopted the jury trial system and we, of course, enshrined that system in the Fifth, Sixth, and Seventh Amendments. Whether this 17th century dispute resolution technology can be fine-tuned to keep abreast of 21st century dispute creation technology (particularly in the quickly moving area of intellectual property) remains one of the pressing questions of legal and ADR policy and practice, particularly in a week in which a Superior Court verbally punished the lawyers before it for filing The Most Oppressive Motion Ever Presented (see the Laconic Law Blog). The motion?
Defendants['] . . . motion for summary judgment/summary adjudication, seeking adjudication of 44 issues, most of which were not proper subjects of adjudication. Defendants’ separate statement was 196 pages long, setting forth hundreds of facts, many of them not material—as defendants’ own papers conceded. And the moving papers concluded with a request for judicial notice of 174 pages. All told, defendants’ moving papers were 1056 pages.
Mediator, author and activist, Ken Cloke, suggests that interest-based resolutions to conflict must replace power and rights based resolutions if we expect to create a future in which justice prevails. As Ken wrote in Conflict Revolution:
Approaching evil and injustice from an interest-based perspective means listening to the deeper truths that gave rise to them, extending compassion even to those who were responsible for evils or injustices, and seeking not merely to replace one evil or injustice with another, but to reduce their attractiveness by designing outcomes, processes, and relationships that encourage adversaries to work collaboratively to satisfy their interests.
Evil and injustice can therefore be considered byproducts of reliance on power or rights, and failures or refusals to learn and evolve.
All political systems generate chronic conflicts that reveal their internal weaknesses, external pressures, and demands for evolutionary change. Power- and rights-based systems are adversarial and unstable, and therefore avoid, deny, resist, and defend themselves against change. As a result, they suppress conflicts or treat them as purely interpersonal, leaving insiders less informed and able to adapt, and outsiders feeling they were treated unjustly and contemplating evil in response.
As pressures to change increase, these systems must either adapt, or turn reactionary and take a punitive, retaliatory attitude toward those seeking to promote change, delaying their own evolution. Only interest-based systems are fully able to seek out their weaknesses, proactively evolve, transform conflicts into sources of learning, and celebrate those who brought them to their attention.
These are the words I leave with the readers of Blawg Review #234 because they are the ones that informed my personal and professional transformation from a legal career based on rights and remedies to one based upon interests and consensus.
Whatever my own personal 200-year present was, is and will be, it is pointed in the direction of peace with justice, with an enormous and probably unwarranted optimism best expressed by the man after whom my law school was named: Martin Luther King, Jr. - the arc of history is long, but it bends toward justice.
Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues. Next week's host, Counsel to Counsel, will devote its round-up of the week's best legal posts to the Great Recession.
[16] Earlier scientific theory posited that each human embryo (see Embryo Mix-Up at the Proud Parenting Blog) passes through a progression of abbreviated stages that resemble the main evolutionary stages of its ancestors, i.e., that the fertilized egg starts as a single cell (just like our first living evolutionary ancestor); as the egg repeatedly divides it develops into an embryo with a segmented arrangement (the “worm” stage); these segments develop into vertebrae, muscles and something that sort of looks like gills (the “fish” stage); limb buds develop with paddle-like hands and feet, and there appears to be a “tail” (the “amphibian” stage); and, by the eighth week of development, most organs are nearly complete, the limbs develop fingers and toes, and the “tail” disappears (the human stage). It turns out that this one-to-one correlation was too simplistic, but it remains safe to say that our biological development still passes through several stages that “recapitulate” the evolution of our species.
[17] The amygdala is a region of the brain that permits the formation and storage of memories associated with emotional events. It permits us to “read” the emotional responses of our fellows and is thought to facilitated our ability to form relationships and live and work in groups. It is also the source of our “fight or flight” response to danger.
Studies show that some mirror neurons fire when a person reaches for a glass or watches someone else reach for a glass; others fire when the person puts the glass down and still others fire when the person reaches for a toothbrush and so on. They respond when someone kicks a ball, sees a ball being kicked, hears a ball being kicked and says or hears the word "kick."
“When you see me perform an action - such as picking up a baseball - you automatically simulate the action in your own brain,” said Dr. Marco Iacoboni, a neuroscientist at the University of California, Los Angeles, who studies mirror neurons. ”Circuits in your brain, which we do not yet entirely understand, inhibit you from moving while you simulate,” he said. ”But you understand my action because you have in your brain a template for that action based on your own movements. “
[22] Looking toward the future, the Neuroethics and the Law Blog predicts that in the “experiential future, we will have better technologies to measure physical pain, pain relief, and emotional distress. These technologies should not only change tort law and related compensation schemes but should also change our assessments of criminal blameworthiness and punishment severity” here.
The adversarial system of medical negligence fails to satisfy the main aims of tort law, those being equitable compensation of plaintiffs, correction of mistakes and deterrence of negligence. Instead doctors experience litigation as a punishment and, in order to avoid exposure to the system, have resorted not to corrective or educational measures but to defensive medicine, a practice which the evidence indicates both decreases patient autonomy and increases iatrogenic injury.
(Iatrogenic, by the way, is a fancy term for “we have know idea whatsoever what the source of this ailment is). Chris is looking for comments so run on over there if you’ve been thinking about medical malpractice litigation during the marathon American health care debates.
[T]he Bank of New York Mellon has reached an agreement to settle a $22.5 billion lawsuit by the Russian government for $14 million. The deal was reportedly reached after the two sides made a separate deal for a trade-financing pact. Click herehere and here for earlier LB coverage.
Today's New York Times Op-Ed piece on "diplomatic engagement" (Terms of Engagement) as a strategy for "chang[ing] [Iran's] perception of its own interests and realistic options and, hence, to modify its policies and its behavior," offers good strategic negotiation lessons for mediators and mediation advocates alike. As Crocker explains:
[E]ach case of engagement has common elements. Engagement is a process, not a destination. It involves exerting pressure, by raising questions and hypothetical possibilities, and by probing the other country’s assumptions and thinking. Above all, it involves testing how far the other country might be willing to go. Properly understood, the diplomacy of engagement means raising questions that the other country may wish to avoid or be politically unable to answer. It places the ball in the other country’s court.
Litigation is an extremely good way to "exert[] pressure," on your negotiation partner by burdening it with the costs of waging the adversarial contest. The litigation itself not only "rais[es] questions and hypothetical possibilities" but through the process of discovery, it also "probes [the opponent's] assumptions and thinking" and "test[s] how far [your opponent] might be willing to go" to achieve victory.
Parties disappointed with mediation and mediators are usually dissatisfied with the mediator's inability to engage in the final step of "engagement diplomacy" -- "raising questions that the [opponent] may use to avoid or be [positionally] unable to answer." A good mediator is unafraid to raise those difficult questions with each side of a dispute. But raising those difficult questions is not enough. A good mediator must also be able to deliver bad news to the parties in such a way that the parties are able to hear it.
If the goal of the negotiators -- the attorneys -- is to "change the[ir] [opponent's] perception of its own interests and realistic options and, hence, to modify its policies and its behavior," the negotiators and their clients must be prepared to:
reveal to the mediator
hidden constraints preventing them from modifying their demand or offer; and,
hidden interests that must be served in order to justify any such modification
candidly acknowledge (in separate caucus)
the weaknesses of their position; and,
any constraints on their client's willingness and ability to put their convictions to the test of a jury verdict or judgment by the court
help the mediator help their clients understand that most litigation is based upon differing subjective experiences of the same "objective" series of events so that no one must admit that the other side is "right" and their own side is "wrong"
An example of the lengths to which people will go to be "right" is unfortunately provided to us today by the obituary of the first anti-abortion advocate to be shot and killed for his beliefs. The slain activist spent years protesting outside the car dealership owned by Tony Young, who explained how the protests finally ended (from Slain Abortion Opponent Loved the Controversy)
Mr. Young said that after about three years of protesting outside his dealership, Mr. Pouillon came in and offered a truce. “ ‘Tony,’ ” Mr. Young said the exchange began, “if you would just agree that I’m right on my beliefs, I’ll stop.’
“I just told him, ‘Sure, Jim, you’re right,’ ” Mr. Young said, chuckling. After that, he said, Mr. Pouillon moved on.
Although few cases could so easily turn on the dime of a semi-sincere acknowledgement that the other side is "right," most attorneys would be surprised by how much value can be generated by acknowledging that the other side's version of the facts or the law is not crazy, evil, bizarre, intellectually dishonest or asserted in bad faith. See The Biggest Lie in the Business: It's Only About Money. As I noted there:
The social scientists who study these things say that the way in which we respond to adversity "often reflects the fact that [our] prestige or status has been threatened more than the fact that [our] purchasing power has been diminished." Miller, Disrespect and the Experience of Injustice, Annual Review of Psychology (2002). In other words, the corporate C.E.O., like any other kid on the block, will retaliate when he feels he has been disrespected.
Conversely, research shows that business people are reluctant to recommend legal action if they believe that they and their company have been treated respectfully.
By the same token that business people are reluctant to recommend legal action if they believe their company has been treated respectfully, they are often far more willing to settle litigation if they believe their positions have been heard and acknowledged as having been made in good faith. For those headed toward settlement discussions or mediation, Crocker has good advice:
[B]y far the greatest risk of [diplomatic] engagement is that it may succeed. If we succeed in changing the position of the other [side's] decision-makers, we then must decide whether we will take yes for an answer and reciprocate their moves with steps of our own. If talk is fruitful, a negotiation will begin about taking reciprocal steps down a jointly defined road. Engagement diplomacy forces us to make choices.
If litigators and their clients are aligned in the interest of settling litigation, they must prepare themselves to take "yes for an answer" by having in place a strategy of engagement that will permit them to reciprocate the other side's moves with steps of their own. A good mediator should be capable of bringing all parties to the on-ramp of the road that counsel and their commercial clients are well-placed to and highly skilled at jointly defining.
Powerlessness and silence go together; one of the first efforts made in any totalitarian takeover is to suppress the writers, the singers, the journalists, those who are the collective voice. - Margaret Atwood
Every year, a town in Japan named Taiji kills 2300 dolphins and small whales. This year, that slaughter was halted for a single day because of the activism of the man who trained Flipper for television, Rick O'Barry. Here's his account of the making of The Cove.
Below us, just across a two-fingered inlet, was the Killing Cove, where 2300 dolphins and small whales are butchered every year. [/*] It's the place Allison and Alex had infiltrated in 2002, managing to cut the nets and free some 15 dolphins before the two were assaulted by fishermen and arrested. The killing here is part of a cetacean slaughter that is unregulated by the I[nternational] W[haling] C[ommission], which has no jurisdiction over the smallest whales. The Japanese don't even have to pretend it's for scientific research. The government issues permits to fishermen and over 22,000 dolphins, porpoises, pilot whales and false killer whales are killed annually along Japan's coasts. The meat is sold to school lunch programs and grocery stores and is terrifically high in mercury. Independent random tests have found the dolphin meat to contain three to 3500 times the levels deemed safe by the Japanese Government.
What did Flipper's trainer want to do? He wanted to stop the slaughter. Here's where the Harvard Negotiation article on power in negotiation comes in. I'll let the authors of the Harvard article speak for themselves.
In order to understand [why the less powerful sometimes prevail against their more powerful bargaining partners] one needs to analyze power as more of a relational and perceptional concept. The relational dimension is captured in Dahl’s definition that “A has power over B to the extent that he can get B to do something B would not otherwise do." For example, most non-governmental organizations (NGOs) are less resourceful than the World Bank. Yet the Bank can enhance the legitimacy of its programs by including NGOs. Over time, participating NGOs could influence the Bank’s agendas to some extent. Thus viewed, parties with asymmetric resources may wellsharea mutually dependent relationship.
It is also worthwhile tonote that power sometimes lies in the eye of the beholder. A party’s decisionsmay be shaped as much by its perception of the situation as by objective reality. Zartman and Rubin, in studying power in negotiation, define it as “the perceived capacity of one side to produce an intended effect on another through a move that may involve the use of resources.[A]s Fisher and Ury have pointed out, the resources a party owns do not necessarily translate into effective negotiating power, which is much more context-specific. The authors cite the example of the US, which “is rich and has lots of nuclear bombs, but neither has been of much help in deterring terrorist actions or freeing hostages when they have been held in places like Beirut"
The common tactics under a power-based approach include coercion, intimidation, and using one’s status and resources to overpower opponents.
One tactic omitted from the list of power-based tactics is one of the most compelling -- the strategy used by Martin Luther King, Jr., Ghandi and, yes, anti-abortion activists -- bearing witness and shaming.
There are many moments of shaming and bearing witness in The Cove -- the moment when activist O'Barry holds his iPhone before the eyes of the Japanese official who has just told him that cateceans are killed quickly, with surgical precision (you can see that moment in the trailer here). There's the day O'Barry, who has been permanently barred from IWC's conferences, walks in with a flat screen television strapped to his chest and silently moves in front of each row of delegates, showing them the video of the slaughter in the Killing Cover. And then, at movie's end, the wrenching scene of O'Barry standing in the middle of a crosswalk in Tokyo, that same flat screen on his chest, silently bearing witness as thousands rush past him and a few, half a dozen perhaps, stop in their tracks to watch the footage of the fisherman in the Killing Cove that he and his team gathered at the risk of their freedom and perhaps their lives.
I vowed to be back in Taiji when the dolphin killing began. I’ve often been here alone, or accompanied by a few environmentalists. Sometimes, I was able to talk a major media organization into sending someone.
When I got off the bus at the Cove this afternoon, I was accompanied by my son Lincoln O’Barry’s film crew, a crew from Associated Press, Der Spiegel (the largest magazine in Germany), and the London Independent.
I was talking with the police, as the international journalists stood around listening, suddenly a camera crew arrived from Japan! And then another! And then still another!
You have to understand that this is SO IMPORTANT. These TV stations have REFUSED to cover the story in Taiji for years and years. NOW, for the first time, they have shown up, with cameras rolling.
The Cove movie led to the strong action by the city of Broome, Australia, in suspending the sister-city relationship with Taiji. So now, the Japanese media are sitting up and listening, for the first time.
[A]ll Japanese will soon know about the cover-up that has occurred by the government in refusing to stop mercury-contaminated dolphin meat from being sold to unsuspecting Japanese consumers and children.
But Taiji can change this image of shame, if they want to. I will be telling them that the town of Nantucket used to be the capitol of the whale killing industry in the US. Now, it uses its history of whaling combined with whale-watching to market tourism very successfully. Whales and dolphins are worth more alive than dead. Taiji can do this, too. But the killing has to stop.
Once shameful national behavior has been exposed (a contentious or power-based negotiation strategy) the weaker parties (people vs. governments) must build their negotiating strength through trust. As Power and Trust in Negotiation and Decision Making asserts:
Identification-based trust is grounded in empathy with another person’s desires and intentions and leads one to “take on the other’s value because of the emotional connection between them.” It often exists among friends. Fostering understanding and friendly ties may therefore be a step to engender identification-based trust. For example, Reagan and Gorbachev developed a cooperative relationship in the late 1980s partly because they had repeated face-to-face talks over the years. Reagan also sought to cultivate a non-hostile atmosphere in these talks by appealing to common interests, actively diffusing tensions and using his sense of humor. Because friendship and liking tend to generate trust and assent – sometimes in a subconscious fashion – Cialdini observes that salespersons often befriend their customers before promoting their products. Trusting someone in certain situations may thus come with risks of manipulation or exploitation
In asymmetrical power relationships, the building of trust among activists is necessary for the formation of a grass-roots coalition capable of overwhelming more powerful parties (perceived economic and national interests as well as that most powerful of impasse creators: the status quo) with passionate commitment to an idea and the hope that the idea can be made a reality.
O'Barry's documentary is a call to action that asks us to respond to our "better angels." If enough of us hear the call and respond, there is no power that can stop this movement to stop the killing.
As Martin Luther King, Jr. once said, "the arc of history is long but it bends toward justice."
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The Harvard Negotiation article is a gift from Don Philbin who directed his Facebook readers to Power and Trust in Negotiation and Decision-Making: A Critical Evaluation at the Harvard Negotiation. If you have any interest whatsoever in the dispute resolution techniques of negotiation, arbitration or mediation and you're not following Don (whose Facebook page is here and whose tremendous LinkedIn Arbitration and Mediation Group is here and whose group blog Disputing is here) you're missing the Mother of All ADR Aggregators and your life is the poorer for it.
The book at right was brought to my attention for the first time by this highlighted text in Good Magazine:
In the foreboding world view of rational choice, everyone is a raging dirtbag.
What makes the Logic of Political Survival Relevant to negotiators is Bruce Bueno de Mesquita's application of game theory to international political problems such as the reduction of conflict between Israel and Palestine (quoted below).
I'll have to admit that his claim to "produce a settlement [in litigation] that is 40 percent betterthan what the attorneys think is the best that can be achieved” -- also caught my attention and should draw my attorney readers into de Mesquita's world, first from Good Magazine's article The New Nostradamus and (at the end of this post, today's article in the Sunday New York Times).
First, de Mesquita's own words on the Middle East.
In my view, it is a mistake to look for [peacemaking] strategies that build mutual trust [between the Israelis and the Palestinians] because it ain’t going to happen. Neither side has any reason to trust the other, for good reason. . . .
Land for peace is an inherently flawed concept because it has a fundamental commitment problem. If I give you land on your promise of peace in the future, after you have the land, as the Israelis well know, it is very costly to take it back if you renege. You have an incentive to say, ‘You made a good step, it’s a gesture in the right direction, but I thought you were giving me more than this. I can’t give you peace just for this, it’s not enough.’
Conversely, if we have peace for land—you disarm, put down your weapons, and get rid of the threats to me and I will then give you the land—the reverse is true: I have no commitment to follow through. Once you’ve laid down your weapons, you have no threat.
The "rational" solution?
In a peaceful world, what do the Palestinians anticipate will be their main source of economic viability? Tourism. This is what their own documents say. And, of course, the Israelis make a lot of money from tourism, and that revenue is very easy to track. As a starting point requiring no trust, no mutual cooperation, I would suggest that all tourist revenue be [divided by] a fixed formula based on the current population of the region, which is roughly 40 percent Palestinian, 60 percent Israeli. The money would go automatically to each side. Now, when there is violence, tourists don’t come. So the tourist revenue is automatically responsive to the level of violence on either side for both sides. You have an accounting firm that both sides agree to, you let the U.N. do it, whatever. It’s completely self-enforcing, it requires no cooperation except the initial agreement by the Israelis that they are going to turn this part of the revenue over, on a fixed formula based on population, to some international agency, and that’s that.
It actually gets much more controversial and interesting than this -- the "kicker" to the headline in Good Magazine reads:
Can a fringe branch of mathematics forecast the future? A special adviser to the CIA, Fortune 500 companies, and the U.S. Department of Defense certainly thinks so
If that intrigues you, you'll want to read the entire article here. And you'll also want to read today's New York Times article on de Mesquita,
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I spent my day Saturday at the annual convention of the 
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My 
First and most importantly, I suppose, are the
18th Century Dispute Resolution Technology: The (.jpg)
Today's New York Times Op-Ed piece on "diplomatic engagement" (
What did Flipper's trainer want to do? He wanted to stop the slaughter. Here's where the Harvard Negotiation article on power in negotiation comes in. I'll let the authors of the Harvard article speak for themselves.
