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Thanks again to IP attorney R. David Donoghue of the Chicago IP Litigation Blog for including my post on Trust and Compromise in the May Carnival of Trust. 

Now I have even more reason to be grateful.  

The Political Calculations Blog's weekly On the Moneyed Midways compilation of business and money related blog carnivals choose my post How Can I Convince My Client to Lose More than Predicted and Still Maintain My Own Credibility? as the Best Post of the Week Anywhere!

Makes a girl feel all appreciated guys! 

Thanks!!! 

And nice to find the Best of the Best aggregated for readers on a weekly basis at Political Calculations which we'll be adding to our blog roll post haste!

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Take a look at this summary of the article When Winning Is Everything by Deepak Malhotra, Gillian Ku, and J. Keith Murnighan, now available online here as well as in the May '08 Harvard Business Review.

Malhotra and colleagues suggest that an adrenaline-fueled emotional state [which they] call  competitive arousal, often leads to bad decisions.

Negotiating litigators may want to note that all of the conditions giving rise to "competitive arousal" are the day-to-day conditions in which litigation is conducted, i.e., intense rivalry, especially in the form of one-on-one competitions; time pressure . . . ; and being in the spotlight—that is, working in the presence of an audience.

Sound familiar?  Take a look at the consequences and the potential solutions below. 

Individually, these factors can seriously impair managerial decision making; together, their consequences can be dire, as evidenced by many high-profile business disasters. It's not possible to avoid destructive competitions and bidding wars completely.

But managers can help prevent competitive arousal by anticipating potentially harmful competitive dynamics and then restructuring the deal-making process. They can also stop irrational competitive behavior from escalating by addressing the causes of competitive arousal.

When rivalry is intense, for instance, managers can

• limit the roles of those who feel it most
• reduce time pressure by extending or eliminating arbitrary deadlines
• deflect the spotlight by spreading the responsibility for critical competitive decisions among team members.

Decision makers will be most successful when they focus on winning contests in which they have a real advantage—and take a step back from those in which winning exacts too high a cost.

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Recently, I excerpted the expressed concerns of in-house counsel about ineffective mediators.   Among the complaints was some mediators' refusal to see or acknowledge the other side's "irrationality" As Where's the Magic from the U.K. online Mediator Magazine noted:

It can be frustrating where they [the mediator] can see the irrationality of the other party, how their claims and positions are unsubstantiated, and choose to ignore it,' says Frank Aghovia, legal adviser at Exel Plc. He continues, 'It's like saying, "I know he's talking out of his backside, but can you give him what he wants anyway." He concludes that 'steadfast neutrality is irritating and wastes time.'

Reality-Testing

Helping litigants and their attorneys reassess their case is one of the mediator's greatest challenges.  The mediator intervenes only after the parties' dispute has reached stalemate.  Each party to a stalemate has negative attitudes about his adversary that are maintained and prolonged by three psychological mechanisms: selective perception, self-fulfilling prophecy, and autistic hostility.

Selective perception:  people tend to select those perceptions that tend to confirm their existing attitudes, and ignore or discount information that would disconfirm their existing attitudes.

Self-fulfilling prophecies:  people with negative attitudes about their adversary engage in conduct that provokes the adversary's "expected" response, which confirms the party's original expectation, and a vicious cycle ensues.

Autistic hostility:  Parties in litigation have stopped talking with one another about their dispute, communicating only through their attorneys.  The social scientists would say that such people are "stuck in autistic hostility, that is, their hostility is perpetuated by their refusal to communicate."

(for a full discussion of these and other conflict dynamics see CR Info's Book Summary of Social Conflict: Escalation, Stalemate and Settlement by Dean G. Pruitt and Jeffrey Z. Rubin). 

When the parties are in this frame of mind -- particularly after years of highly contentious litigation -- they genuinely believe that the other side is either completely irrational or downright evil.

So how does the mediator reality test in this climate of anger and distrust while continuing to maintain his ability to work effectively with both parties.  

Peter Robinson, co-director of the prestigious Straus Institute of Conflict Resolution in Malibu, California, tackles this problem by way of a hypothetical.  He assumes that one side believes his adversary came here from another planet via UFO.  What should a mediator -- who needs to retain the trust and confidence of both sides -- do?  

Robinson answers his own rhetorical question in this fashion:

When talking to the UFO-guy, I am totally with him.  Listening, asking questions, trying to understand whether his delusion actually has some hidden meaning that might suggest a way to resolve the dispute without asking the other party to "buy in" to the UFO story.

After giving Mr. UFO an opportunity to have his say and to experience -- perhaps for the first time ever -- another human being's willingness to temporarily suspend his disbelief -- I begin to gently "reality test."  To do so, I do not have to doubt Mr. UFO's story.  I can suggest, however, that not everyone is as understanding as I am. 

"Have you told this story to many people?" I might ask.  "And what has their response been?"  Do you have any reason to believe that a judge or jury might be more likely to believe this narrative of events more than, say, your mother, sister, cousin, wife, best friend, etc. were?

Robinson's suggested action between the rock of understanding and the hard place of consensual reality is shrewd and effective.  It neatly avoids the problem recently raised by my friend and colleague Jeff Kichaven who has likened piling rationales atop one another for the purpose of changing another's mind to raising your voice for the purpose of communicating with a deaf man.   

Harvard Business School professors Deepak Malhotra and Max H. Bazerman address the irrationality problem in another fashion in their tremendously useful book Negotiation Genius. 

"Whenever our students or clients tell us about their 'irrational' or 'crazy' counterparts," they write, "we work with them to carefully consider whether the other side is truly irrational.  Almost always, the answer is no."

Malhotra and Bazerman list the mistakes that lead us to call our negotiating partners "nuts," "delusional" or "evil" as follows:

Mistake No. 1:  They are Not Delusional, They are Uninformed. 

If you can educate or inform your bargaining partner, say Malhotra and Bazerman

about their true interests, the consequences of their actions, the strength of your BATNA, and so on - there is a strong likelihood they will make better decisions . . . [I]f someone says "no" to an offer that you know is in her best interest, do not assume she is irrational.  Instead, work to ensure that she understands why the offer is in her best interest.  She may simply have misunderstood or ignored a crucial piece of information.

Mistake No. 2:  They are Not Irrational; They Have Hidden Constraints

In negotiation, a wide variety of possible constraints exist.  The other side may be constrained by advice from her lawyers, by the fear of setting a dangerous precedent, by promises she has made to other parties [this is a particularly common constraint in IP infringement actions] by time pressure and so on.  [D]iscover these constraints . . . and . . help other parties overcome them . . . rather than dismissing others as irrational.

Mistake No. 3:  They are Not Irrational; They Have Hidden Interests

[P]eople will sometimes reject your offer because they think it is unfair, because they don't like you [or are tired of feeling as if you don't like them] or for other reasons that have nothing to do with the obvious merits of your proposal.  These people are not irrational; they are simply fulfilling needs and interests that you may not fully appreciate.  .  .  [I]nvestigate:  "What might be motivating her to act this way?  What are all of her interests?"

But What if They Really Are Irrational

If your counterpart truly is irrational -- in other words, he is determined to work against what is in his best interest -- then your options will be fewer.  You can try to push through an agreement despite his irrationality, you can try to "go around him" by negotiating with someone else with authority who seems more willing to listen to reasons . . . or you may decide to pursue your BATNA because his irrationality has eliminated all hope of creating value.

I have a friend who is, literally,  a rocket scientist.  He says that there are no problems which cannot be solved -- only problems that we don't yet understand.  This is as true in negotiation as it is in rocket science.  In both cases, the wisest course is to assume you know nothing and begin asking the type of questions that would help learn something.

 

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Thanks to Geoff Sharp at mediator blah blah for directing us to this great U.K. Mediation resource, The Mediator Magazine which is great to poke around in a little when you're home for mother's day and mom's gone off to bed.  Here, for instance, are some well taken criticisms of mediation practice by in-house counsel from the article Where's the Magic?

Top of the list of issues which invite scorn is perceived weakness on the part of the mediator. Giving palpable nonsense and well documented fact equal air-time in the interests of appearing open-minded has backfired for a number of mediators. 'It can be frustrating where they [the mediator] can see the irrationality of the other party, how their claims and positions are unsubstantiated, and choose to ignore it,' says Frank Aghovia, legal adviser at Exel Plc. He continues, 'It's like saying, "I know he's talking out of his backside, but can you give him what he wants anyway." He concludes that 'steadfast neutrality is irritating and wastes time.'

One public sector lawyer, though generally more favourably disposed towards mediation, shares a sense of frustration with the purely facilitative model: 'If a mediator is too passive,' he says, 'there isn't going to be any realignment of expectations, there isn't going to be the refocusing of the parties on the strengths and weaknesses of their own and the other party's case. It's simply not going to happen. You're not going to facilitate the movement.'

Naturally it is all a question of degree, but frustration with a style perceived to be 'slow', 'wet', 'namby-pamby', or worse, 'like therapy' is real, and stands in the way of mediation increasing its meagre market share.

It is also evident that some mediators have failed to manage the process with sufficient vigour, fuelling comments like 'I've been at quite a few [mediations] and question what the mediator actually does.' No doubt they've had to spend all their time working with the other side, but if so, this needs to be communicated.

This lack of robustness which for many is synonymous with mediation has bred the widespread belief that mediation only works when both sides want to mediate. And where that's the case, without prejudice discussions will do the job. Until mediation's image hardens to the point where people realise that great mediators can deal with the shirty, dismissive and gratuitously rude types, mediation will remain in the shadows. . . .

These criticisms are real and require attention.  I'm uncertain of the state of "professional" mediation in the U.K., but here in California, its all over the board.  For the mediation advocate and his client, finding the right mediator for the right case at the right time is not only more art than science, it's often more guesswork than art. 

I'll be dealing with the issues raised by this U.K. article in the coming weeks.  For the full article, click on the link above.

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I shouldn't be talking about collaboration and reciprocity without penning a short note of gratitude for the benefits bestowed upon me and my readers by the new Forbes.com Business and Financial Network.  

The BFNetwork has not only introduced me to many business blogs that otherwise wouldn't have come to my attention, my narcissistic perusal of my own posts listed there have drawn me into abundant Forbes.com resources that benefit my readers.  

I urge my fellow Forbes BFN Bloggers to poke around Forbe's  pages to unearth riches that can benefit their readers there.    

(right:  Forbes.com staff writer Tara Weiss)

That ridiculously lengthy introduction out of the way, here's a great article on how to negotiate a higher salary during a recession from Forbes.com staff writer Tara Weiss -- How to Ask  For A Raise When Times Are Hard.  Summary below:

• find out what people in your market and your position are making.
• once you know your market value, request a conversation with your manager about salary
• remind your manager of the strong contributions you've made.
• during an economic downturn, highlight new clients you've brought to the firm and cost-saving measures you've enacted. Include the key projects you've completed and goals you've met.
• prove you're vital to getting the company through a recession
• present your manager with the research you collected on what others in your market are making.
• consider perks outside of salary such as vacation time, health benefits, or reimbursement for commuting and professional training in a job-related skill.
• if you're rejected, ask what you can do in the next six months to make this conversation successful the next time. 

Thanks Tara!

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

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

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

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

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

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

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

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

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

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

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

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

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Thanks to Commitment Matters:  Negotiation Practices in the Commodity World for pointing us to the U.K. Telegraph's provocative article Supermarkets & suppliers: Inside the price war by Jonathan Sibun and James Hall, discussing ruthless negotiation techniques employed by the big supermarket chains in the U.K.  -- like the "Flaming Lamborghini" described below.

My only response is this -- winning at any price isn't worth the price.  Whether you see your customer again makes little difference.  Tomorrow morning, it's your face in the mirror you're required to take a hard look at.  My suspicion?  The "bosses" who direct their staff to negotiate in this manner couldn't or wouldn't do it themselves and those who are doing it are either suffering wage slaves or sociopaths.   

The Flaming Lamborghini

Thought to derive its name from the restaurant in which it was coined - the same London eatery frequented by the infamous Flaming Ferrari City bankers - the Lamborghini is believed to be the model used by Tesco.

The Flaming Lamborghini is a grid-based negotiating tool in which the supermarket buyer takes the supplier on an emotional and psychological roller-coaster ride.

This is done be flip-flopping the salesperson between ‘complacency' and ‘war'.

One minute the buyer is their best friend, the next their worst enemy. This is essentially the clock-face model writ small.

The goal for the supermarket buyer is to make the suppliers feel that they are at the point of ‘maximum performance', while secretly making sure they don't stay there.

A Tesco spokesman said he was unfamiliar with the technique.

For the full article, click here. 

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

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

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

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

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

Continue reading here.

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I'm asked this morning by an ADR colleague whether we can criticize diversity without sounding like racists.  The question itself is problematic because it not only assumes a racial divide, it places "us" on the "white" side of it. 

The question arose from a recent press release by local mediator Elizabeth Moreno -- Is Mediation Losing Its Effectiveness:  Lack of Diverse Mediators.  The release describes an ADR diversity initiative being pursued by Shell Oil.  Shell, noted Moreno, is  

 introducing supplier diversity to the ADR profession [by] extend[ing] business opportunities to certified minority and women ADR neutrals. These efforts, coined as "second tier," allow Shell to influence prime or majority ADR firms, with whom they do business, to also contract with minority and women owned ADR firms within the business community.

In the upcoming months Shell will be targeting  . . . ADR services to participate in second tier efforts. Shell astutely recognizes that by embracing the concept of inclusion, the company will rise to a higher level, reflecting its belief that it "will benefit from diversity through better relationships with customers, suppliers, partners, employees, government and other stakeholders, with positive impact on the bottom line."

I'm assuming that my questioner does not agree with the "affirmative action" aspect of this program.  Having debated the affirmative action issue since I began law school at U.C. Davis where the Supreme Court Bakke decision originated, I know well how divisive this issue can be.  But it is an important issue -- an issue critical to a nation not only "conceived in liberty" but "dedicated to the proposition that all men (sic) are created equal."

So Let's Take a Look at ADR and Diversity

I'll ask the academics over at the ADR Prof Blog to correct me if I'm wrong.  

I understand the academic criticism of mediation to be this:  in the immediate post-civil rights era while greater legal protections have been afforded to women and under-represented minorities, the "people" have been channeled into a system -- mediation -- that lacks the prejudice-flattening constraints of the rule of law.  More disturbing, say critics, is the fact that this "lawless" system is largely presided over by -- excuse me if this offends anyone -- OLD WHITE MEN.

I've learned more about racial bias talking to my liberal (white) "unprejudiced" friends this election season than I have since I participated in the "second wave" women's movement in the early nineteen seventies (remember consciousness raising?)  I do not judge them, nor myself, for our necessarily limited view which just happens to be that of the dominant culture.

I know we still have a serious racial divide because when I talk to my educated and liberal African American friends they say things that shock me. Things like -- the U.S. may have started the AIDS epidemic to rid the world of Africans. OK. I get it.  There's something about their experience of America that is so radically different from mine that I think their point of view is, frankly, just a little nuts.  This is what I do know -- I will never truly be able to see the world from their point of view.

That said, I do think we can criticize people for taking advantage of "diversity" issues to forward an agenda -- or their own personal advancement -- other than forwarding diversity itself. We can criticize those who would deepen the divide to profit from it.

I think Obama is modeling the correct response to racial divide, which is one of the reasons his candidacy impresses me so.  There haven't been many public figures willing to talk about the elephant in America's living room -- racism.  Nor has anyone on the national stage in my memory ever said "your dreams do not have to come at the expense of mine."

If I could write a sentence in a circle at this point, instead of linearly as the language requires me to do, I would do so.  Here is what I understood Obama's response to the question of the racial divide in America to be.

Acknowledge it Heal it Move on Heal it Move on Acknowledge it Move On Heal it Acknowledge it

There are no periods in this sentence because this activity needs to be constant and on-going.  Because we will always be stuck in our own point of view.  Because in-group and out-group prejudice will always be with us. And because the more visible markers there are for "otherness" in others, the more prey we are to the error of dividing the world into "us" and 'them."  

The answer?  Diversity.  Vigilance.  Education. 

Toward that end, here are some ADR Diversity resources: 

Commonality to Balance Diversity

Mediation:  the Great Equalizer?  A Critical Theory Analysis

Toward a More Perfect Union in an Age of Diversity: A Guide to Building Stronger Communities
through Public Dialogue

Center for Dispute Resolution, whose mission is to "to promote and provide education and comprehensive approaches to dispute resolution that constructively serve the needs of our culturally diverse society."   

ACCESS ADR:  A 2004 Diversity Initiative Launched With The Support Of The JAMS Foundation And The ABA

Striving for DIVERSITY in ADR & Why it Matters: An Interview with the Hon. Timothy K. Lewis, the Chairman of the AAA's Diversity Committee [who] speaks candidly about his interest in diversity in the decision making professions, and why allowing minorities and women an opportunity to participate is so vitally important.

The Diversity Task force of the International Institute for Conflict Prevention and Resolution ("CPR") whose mission it is to "adopt businessdriven initiatives to increase the ethnic, gender, and social diversity of mediators, arbitrators, and those involved in alternative dispute resolution, both within CPR institute and on a national scale."

Compilation of mediate dot com articles on diversity in mediation 

THE GREGORY SOBEL DIVERSITY IN MEDIATION SCHOLARSHIP APPLICATION

Slouching Towards Inclusion by Carol Miller Lieber & Jamala Rogers

Diversity Resistance

The Media Diversity Institute

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A friend and former legal partner was fond of saying that the biggest lie in the business was I don't take it personally. After four years of full-time mediation, I have another "Big Lie" to add – it’s only about money.

The social scientists who sutdy 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. Although this is particularly true of fiduciary and special relationships such as lawyer-client and business partnerships of all kinds, it also applies to arm's length business transactions.

Every commercial interaction, we are told, "represents a social exchange and every form of social behavior represents a resource." Id. People's satisfaction with the outcome of a commercial transaction therefore "depends highly, and often primarily, on their perception of the fairness of those outcomes." Id.

When we, as litigators and counsellors, actively listen to what our clients and our adversaries are saying about the rights and responsibilities of all participants in an ethical business community, we stand the best chance of engendering mutual trust and respect among the parties. In that atmosphere, the probability of becoming embroiled in litigation decreases precipitously. When the parties believe that their concerns are being heard and respected, losses that might otherwise become lawsuits, are far more likely to be addressed as the understandable consequence of the inevitable mistakes and miscommunications that attend all human enterprises.

As much as we'd like to believe that we don't take it personally or that it's only about money, the good news for all of us is that we do and it's not.

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Thanks to Geoff Sharp at mediator blah blah for alerting us to this truly excellent post over at The Consensus Building Institute:  Mediator as Juror:  A Day in Middlesex County Superior Court.  After recounting the facts of the case, CBI's Managing Director Patrick Field comments as follows:

[T]he case reminded me why mediators have such an important, but difficult, job in supporting justice, civil society and social capital. Many parties simply cannot find a way out of escalating conflict and assume that justice can only be served in the courts. This case was a perfect example of several time-tested conflict lessons.

Emotions get the better of us. Here were two well-educated, well-off individuals who let their anger, hurt, offense, and desire for revenge get the best of them.

Communicating is the hardest thing to do. A second phone call, an attempt to be conciliatory, or a short email asking to set a different tone didn’t happen. Somehow, the simplest thing to do—talk—became the hardest.

Sunk costs sink us further. Clearly, the plaintiff was trying to recover his sunk costs, but had passed the point of no return. From an economic standpoint, he had failed to get out when it made dollars and sense (pun intended) and was embarrassingly digging himself deeper and deeper.

Taking responsibility is harder than fighting over it. The facts, as we came to understand them, suggested that this dispute could and should have been resolved months earlier—to everyone’s benefit. Yet the parties chose to point fingers and relinquish their responsibility for resolving the dispute efficiently, fairly, and expeditiously.

Justice is sought but not necessarily served. The parties, both angry, both determined that they were right, decided to take their case all the way to jury. Each was going to get a verdict in his favor one way or another! But the reality was that several partial settlements were offered, winnowing the total amount down, and the judge retained the right to rule on legal fees. We, the jury, were left with a seemingly trivial case, wishing we could punish them both for being so foolhardy.

Serving on a jury reaffirmed to me that justice doesn’t simply emanate Solomon-style from on high. Here’s what I learned.

Justice is not divined; it is negotiated. As our jury deliberated, I realized that this was in fact a negotiation, constrained as it might be by our charge and the evidence. Was the contract valid? Did the defendant actually breach the contract? If so, how much were the damages really worth? When parties hand over their dispute to a jury, they are not avoiding a serious negotiation, they are simply leaving it in the hands of strangers.

Justice is blind. As jurors, we couldn’t ask questions. We couldn’t get at the parties’ deeper motivations, feelings, and emotions (like a mediator might). We did issue a verdict, but we did so blindly, due to our exceedingly limited information and understanding.

Juries deliver verdicts, not necessarily justice. I feel our verdict was fair and reasonable, given what we knew. My fellow jurors (all twelve) took the case seriously, considered the evidence, and did their best to arrive at logical conclusions.

However, we probably didn’t deliver much on the larger front of justice. We couldn’t help the parties find a resolution that left them better off in terms of lower costs, less bitterness, and greater self-respect. We couldn’t censure the lawyers for not doing a better job of restraining their clients’ emotions. We couldn’t issue an admonition against abusing the courts with cases that should be settled by reasonable people elsewhere. We couldn’t aid society by helping its citizens take responsibility for their actions, emotions, and disputes.

So, mediators, next time you sit with parties who are rearing to go to court, I encourage you to keep in mind that court is really settlement, formal as it may be, by other means. And to the future parties of such a suit, it would be well to remember that there is no certainty—and in fact much reason to doubt—that a judge and jury will issue a better verdict or clearer justice than you might arrive at by your own making.

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Here's another character who everyone will recognize.  The Drama Queen.  Male or female, those who "stir up" conflict to add a little dramatic flair to an otherwise boring day, do so for a predictable set of reasons.

Before dissecting the guy who's the first to spread the word that George is being fired for "cooking the books," and tells Crystal that the office manager has it in for her at the same time he tells the office manager that Crystal covets her job, let's briefly return to the conflict "basics" outlined in chapter one.  

A conflict exists whenever two or more people believe that their needs (or desires) cannot be satisfied at the same time.  They see all relationships as zero sum games.  The social scientists would say that such people are in a constant state of  "perceived relative deprivation."  They are deprived in relationship to their fellows.  

We all live in a state of relative deprivation.  We drive a Honda while our neighbor drives a BMW.  We rent while our best friend owns.  Our salary is less than six figures.  The guy in the office next to us is making 200 grand.  Other people have been given more talent, better luck, more resources, superior business and professional networks, and, of course, more loving and supportive families.  And yet these "relative" deprivations do not always result in disputes.  Not unless we name, blame and claim.   

Naming, Blaming and Claiming

As we said in chapter one, "conflicts" over scarce resources do not ripen into disputes until we suffer a perceived injurious event such as failing to get in to the school of our choice; being rejected by an employer we hoped to work for; having our lavish dinner party go unreciprocated, or watching someone else take our parking space!  When we begin to suspect that we have been injured, we start looking around for the source of that injury -- someone to name as the cause, to blame for the loss and from whom to claim redress.  

Name, blame, claim.  

The Drama Queen in the Field of Conflict

Of the primary responses to conflict -- denying, avoiding, yielding, problem solving, and contending -- the Drama Queen almost always chooses contention.  Contentious responses to conflict include ingratiation or gamesmanship, shaming, threats, promises or arguments, and coercive commitments or violence. All of these tactics are employed to overpower the will of another to get what the contender wants. 

Meet Drama Queen John.  He's your colleague who has recently been assigned to work on the same project you have.  You are calm, well-organized, efficient and productive.  John is impulsive, chaotic, inefficient and un-productive.  You've never understood why John has lasted as long as he has at this job.  "Maybe he's the owner's brother-in-law" you've speculated -- but only to yourself.   

As a good team player, you've been keeping your own counsel.  You've mentioned neither your opinions about John nor your irritation with him to your co-workers.  You've been careful in all your interactions with John not to show your annoyance.  You've been "getting along and going along" while at the same time trying to keep your eye on the prize -- the successful completion of the project that's been entrusted to you.   

For all your caution, things start to go wrong on the first day.  That very afternoon your supervisor Jamie drops by your office to mention that your teammate Gina is complaining about your domineering style.  The following week, you hear that George is saying you didn't deserve the bonus you received last year.  Someone has suggested that you have a "special" relationship with the divisional vice-president.  By week three, the team meetings have become tense.  People with whom you've long worked well eye you suspiciously when you enter the room.  And John is uncharacteristically cheerful. 

What Happened Here?

Unless someone talks to John about his dissatisfaction, we'll never quite know why he's been spreading rumors about you and creating ill-feeling between you and your team mates.  Still, we can make a few fair assumptions based on our knowledge of the social psychology of conflict.

For whatever reason, John appears to have named you as the source of some dissatisfaction in his worklife.  He's blamed you for that dissatisfaction and is actively claiming something from you.  In this case, his claim -- though negative and likely self-destructive -- comes in the form of personal satisfaction. 

What does someone like John get out of demonizing you to your workmates? The perverse satisfaction of exercising control, of making a drab office day momentarily dramatic, and, of exacting revenge from someone he's cast in the role of adversary.  John's hallmark characteristic is a lack of control.  Remember that he's disorganized, chaotic, impulsive and unproductive.  When he's able to create an atmosphere of suspicion about you, he's momentarily achieved the thing he most lacks, the thing you appear to have, the thing he believes people like you have deprived him of -- control.  

Though you needn't pity the poor Drama Queen, now that you know what drives him, you have some chance of engaging him in a productive conversation about his workplace behavior; a conversation that will make your work life far more cheerful and friendly.

Below, the Conflict Map outlining some of the concepts discussed here -- scroll down to the second page. 

Conflict Map - Get more documents

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Dear Janis,

As you'll notice, I've posted on my blog the first three "chapters" of the ABC's -- due out from Janis Publications under the more genteel title "A" is for Donkey in July.    

Not meaning to compare myself to one of the greatest writers of all-time -- Charles Dickens -- other than in our mutual need for reader recognition, I'm hoping you will find that the "serialization" of the ABC's will encourage readers to buy it rather than discouraging them from doing so.  As you'll remember,

[a]ll of Dickens' novels made their first appearance in serial form. Nine came out in monthly installments: Pickwick Papers, Nicholas Nickleby, Martin Chuzzlewit, Dombey and Son, David Copperfield, Bleak House, Little Dorrit, Our Mutual Friend, and The Mystery of Edwin Rood. Five were composed for weekly serialization: The Old Curiosity Shop and Barnaby Rudge in Master Humphrey's Clock; Hard Times in Household Words; and A Tale of Two Cities and Great Expectations in All the Year Round. . . . Oliver Twist appeared in the monthly issues of Bentley's Miscellany, which Dickens was editing at the time. Although he took up the weekly form with the intention of getting into more frequent correspondence with his readers, Dickens never ceased to fret under the restrictions of tailoring his narrative into briefer segments; and indeed, with Hard Times he returned to the practice of blocking out his stories as if for monthly installments. Thus, the novelist's preferred and characteristic method was that of monthly serialization, calling, as he said, for "the large canvas and the big brushes."

Simply put, as a writer of installment novels who invited reader comments as he wrote, Charles Dickens may have been the first blogger for whom instant gratification was also "too slow." 

We don't, however, have to return to Victorian England for serialization precedent.  Tom Wolfe's phenomenal best-seller The Bonfire of the Vanities  was serialized in 27 installments in Rolling Stone magazine starting in 1984. The novel was a bestseller and a phenomenal success, even in comparison with Wolfe's other books.  Although it was thereafter made into one of the most dreadful movies of all time, we cannot blame that failure on the serial form the novel originally took.

Now that I've compared myself to two of my favorite authors, I will have to display a little humility.  Unless I can merge blogging with book writing, I don't think this book will be ready this July, this summer, this fall or next winter.  I think I'm only going to get it written if I do it this way.  

I hope that's alright with you!  The book itself will be better written (there are editors and publishers for a reason) ; far better illustrated; and, will make a fabulous gift for any friend, neighbor, co-worker, or mother-in-law the impulse-Borders'-buyer has in mind when they first see the ABC's irresistibly offering itself at the check-out stand.

I'm also hoping to convince you that the word "Asshole" will draw more customers than it will repel.  But that's why I'm in contact with readers.  I'm certain they'll tell me.

All best to you and your lovely husband Ray,

Vickie

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See Lawyers USA News Brief Employees may be at disadvantage in arbitration  by Correy E. Stephenson here.  Excerpt below.

State courts are reversing arbitration awards for employees at a "statistically significant" rate compared to reversing employer-friendly awards, according to a new study.

Professor Michael LeRoy of the University of Illinois College of Law, a professor of labor and employment, recently released his findings after analyzing arbitration awards from an appellate perspective.

The study, published as a paper, "Do Courts Create Moral Hazard? When Judges Nullify Employer Liability in Arbitrations: An Empirical Analysis," looked at 443 state and federal court rulings on arbitration awards from 1975 to 2007.

While federal courts upheld 85.7 percent of employer wins and 85 percent of awards for employees, LeRoy found markedly different results in the state court system.

There, lower level appellate courts affirmed employer awards 87.2 percent and employee wins 77.6 percent of the time, while the upper appellate courts were even more divergent, with 86.7 percent of employer awards affirmed and only 56.4 percent of employee victories upheld.

These findings suggest a "snowballing futility for employees," LeRoy writes, because the options after being reversed on appeal are limited. Either the employee must start over at the beginning of arbitration, "or worse, be stuck with a useless award and no other recourse."

LeRoy terms this trend a "moral hazard" which is "created by risk sharing contracts or public policies that discourage individuals from avoiding costly behaviors."

Continue reading here.

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

As David explains:

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

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

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

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

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

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

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

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My Judicate West Video Profile here and, of course, Gloria Swanson in Sunset Blvd. below

My favorite lines:

Joe Gillis: You're Norma Desmond. You used to be in silent pictures. You used to be big.
Norma Desmond: I am big. It's the pictures that got small. 

Norma Desmond: We didn't need dialogue. We had faces!

 

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Here's a local community protest being "handled" -- in part -- as a community-wide  "mediation," "facilitation,"  or "public dialog."

We have an attempted engagement here over the apparently unwanted "gift" of a new Home Depot in the Sunland-Tujunga community.  It appears that the community would like to see an Environmental Impact Assessment conducted and an EIR filed before the Depot moves in (if ever).

The City Attorney stepped in to help -- recruiting community mediators and facilitators to conduct a community dialog.  It's my understanding that Home Depot representatives were not present at this dialog (please correct me if I'm wrong about this).  For that reason alone -- a missing critical stakeholder -- a suspicious or hostile community response is unsurprising. 

Let me say, however, that we/** are new at this -- making an effort to engage an entire community in a facilitated conversation about the issues giving rise to a protest.  We're bound to make the type of errors highlighted by community members below.  So let's not call this a failure but an opportunity to learn.  

Here, for instance, is a recent blog entry calling the "community meeting" a facilitation rather than a mediation -- correctly noting that mediators have no allegiance to one side or the other and no agenda.  See the Zuma Times -- LA Daily Blog coverage with one or more YouTube videos here.

For background, here's a late April '08 Los Angeles Daily News article on the issue -- excerpt below.  

SUNLAND - Amid a contentious battle over a proposed Home Depot, city officials tried to cool tempers Saturday by hosting a community dialog aimed at finding a middle ground between warring factions.

About 200 community residents attended, although organizers had been expecting up to 1,000.

Although a few supporters, including Home Depot employees, noted the project would likely bring more jobs to the community, most in the crowd were against it.

Asked for opinions, most listed complaints such as traffic and an increase in day laborers. Some even used the term "community assassination." . . . .

Some residents sat and listened patiently as mediators engaged them in dialog in an effort to understand their concerns and to work toward constructive solutions.

Billed as "the Sunland/Tujunga dialog," the meeting at Mount Gleason Middle School was set up by the Los Angeles City Attorney's Office as part of an agreement with The Home Depot Inc., which suspended a $10 million lawsuit against the city while it seeks a building permit.

The company is seeking to build a store on the old Kmart lot on Foothill Boulevard . . . 

Attorney Barbara Goldfarb, a volunteer facilitator with the dispute-resolution team that conducted the meeting, made sure everyone knew that she and her staff had no connection to the home-improvement company.

"I do not have a Home Depot credit card," she said before people split up into 27 groups. "I do not own Home Depot stock."

Goldfarb said the dispute-resolution program is funded by grants and funds from the city and county.

"Certain times (these types of efforts) don't work. Other times, they work out wonderfully," Goldfarb said.

"There's always an answer to conflict if people will talk."

And here's a mis-step "we" won't make next time as reported by the Sunland-Tujunga Alliance blog.  

Lots of folks have comments and questions about the evaluation form we were asked to fill out at the end of the small groups. I have some of my own, too. I was shocked and horrified at some of those questions. I thought the questions showed a slanted, pre-conceived idea of what someone thought our issues should or would be, not what our concerns really are. I spoke with Barbara Goldfarb, the lead facilitator, about it. Yep, the evaluation form was written by the RAND Corporation, just as the pre-questions were. Ms. Goldfarb agreed with me that some of those questions were way off the mark, too complex to be answered by just checking a box, or unrelated to our actual concerns.

I just want to add that I am so proud of us, all of us who showed up yesterday. We were well prepared, and participated with a mature and honest approach. Also, to those who wrote intelligent, well thought out answers to the questions, I applaud you. There were a lot of people who let us know that they were unable to attend the “dialog” due to other commitments, but those of us who were there, carried the message loud and clear! No Home Depot in Sunland-Tujunga! Home Depot must follow the rules! We want our EIR!

I invite comment from participants in the community. For their information, I am not affiliated with the City of Los Angeles in any way.  I serve as a volunteer mediator for the Los Angeles County Bar Association Community Mediation program in West Hollywood, on the Los Angeles Superior Court's pro bono mediation panel (for litigated cases) and as a Settlement Officer for the local federal trial court (also for litigated cases).  Otherwise, my work is entirely in the private sector. 

___________________

/**  When I say "we" I'm referring to mediators in general who are part of a theory and practice of facilitated dialog as well as many other strands of the mediation movement including consensus-building, prejudice-reduction, settlement conferences, mediations of litigated cases, community mediation, restorative justice and the like.  I personally have had nothing to do with the community "dialog" or facilitation or "mediation" arising from the dispute over the development of a Home Depot in Sunland-Tujunga.

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

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

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

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

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

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

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

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

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

 

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In this part of the new series on getting the parties to the bargaining table, I interview former in-house Chrysler counsel and former Hogan & Hartson partner, Lew Goldfarb, who now has his own full-time outside settlement counsel firm.  

For Lew's full bio and contact information, click here.

 

• what's the difference between outside settlement counsel and a mediator?

Settlement counsel is an advocate for one side, in my case, that's usually the defense.  While the mediator is a neutral who tries to facilitate a compromise, settlement counsel attempts to achieve better outcomes for his clients for two reasons:  (a) I have a complete understanding of the full range of my clients' interests, many of which are often not communicated to litigation counsel; and, (b) it is easier for me to learn the true motivations (if not the bottom line) of plaintiffs' counsel than it is for litigation counsel to do so.

In class actions, which are my specialty, I strive to craft a solution that responds to plaintiffs' counsel's needs while imposing minimal costs on my client. There are numerous, creative ways to settle class actions that accomplish both objectives effectively.

• I sometimes find that the parties for whom I mediate have not confided in the litigation team all of the corporate interests that are propelling the client toward settlement. I found this to be true in litigation practice and as a mediator. Do you encounter this as outside settlement counsel and, if so, how do you serve the client's interests without stepping on the toes of litigation counsel and vice verse.

There's always a bit of a communication gap between litigation counsel and the client.  When clients hire me as settlement counsel it's in their interest to provide me with complete information in order to get them the best possible outcome, so they rarely withhold any important information fro me. In a recent case, I was not only invited to speak at several client board meetings, I was also asked to spend several days in the field on sales trucks to observe the client's franchisees that were the subject of the lawsuit.  As a mediator, I usually only see the information that the litigation counsel provides as part of his client's submission, which is probably much more selective.

• Now that I've been mediating full time for four years, I find I'm much more prone to ask the parties interest-based questions than I was as a litigator. When I say "interes