(The Sound of Time (2003) by Dorit Cypis)
Conflict is . . . is simply the sound made by the cracks in a system, a boundary condition that can best be resolved by communicating across the many internal and external borders we have erected to keep ourselves safe, or exclude others. --- Ken Cloke, President, Mediators without Borders, Committing Personally, Acting Globally.
(photo by Maureen Flynn-Burhoe)
We follow high-level negotiations, as well as the small commercial dispute, here. No matter the stakes, the dynamics are the same. See, for example, today's AP article, Collapse of WTO Talks Puts Trade Deal in Limbo.
What's at stake?
a new world trade pact aimed at adding billions of dollars to the global economy and lifting millions of out of poverty.
Who are the negotiating parties? The United States, the European Union, Brazil and India.
Are there feelings, i.e., emotions involved? Have we mentioned recently neuroscientist Antonio Damasio's research on people whose brain injuries interfered with their ability to feel emotion? They could make endless pro and con lists, but couldn't make decisions. Why? Because there is a pro and con to every choice we make. Paper or plastic? Fish or Meat? Peace or warfare? Settle the lawsuit or try it?
In the absence of a feeling that makes us desire one outcome more than another, we are at a total loss.
How does impasse feel? If you'd been a WTO negotiator, your
emotions rang[ed] from anger to confusion [as they] left Potsdam on Friday knowing they had failed to break a six-year logjam between rich and poor countries over eliminating barriers to trade in farm produce and manufactured goods.
And the angry and confused government officials? Do they think their own bargaining position is to blame or do they believe that their negotiating partners are acting in bad faith? Let's see.
European and American officials questioned Brazil's intentions and wondered if it intentionally blocked progress to curry favor with developing countries, many of whom were unhappy with the private negotiations among the four powers.
Brazilians accused Washington and Brussels of agreeing beforehand to protect their agricultural interests.
Many officials criticized Indian Trade Minister Kamal Nath for arriving late on Tuesday after missing a flight and having a return scheduled ahead of the summit's end.
All sides said they negotiated in good faith.
Sound familiar?
The reasons for impasse and ways to break it will be the subject of a lengthy weekend post.
In the meantime, here are two prior posts on impasse -- Negotiating Past Impase and Breaking Impasse.
(Mermaid and Merman by James M. Thorne)
Dinah Lynch at Mediation Mensch has launched a meme tag Can Mediation Go Green?
I could talk about the energy-efficient, compact fluorescent light bulb -- the CFL -- that illuminates the desk on which I write this post or explore the (controversial) issue of carbon credits and taxes.
But I'm more interested in the paradigm shift necessary to survive the climate crisis.
I earlier wrote about the book my friend and mentor Ken Cloke is writing called "Mediators Can Save the Planet" in Empathy, Evolution, Mediation and Global Warming.
Why mediators? Because WORLD 3.0 will require that we supercharge our natural cooperative and altruistic natures while dampening our competitive drive without thereby discarding our ambition.
What will it take? A shift from competition to collaboration.
Can we do it? "Yes we can," says Al Gore in An Inconvenient Truth at the moment when his audience begins to move from denial to despair.
How?
At least one way to get the global cooperation ball rolling will be to school ourselves in empathy, a necessary prerequisite to tackling the problem of collaborative solutions to worldwide problems.
We Don't Have the Luxury to Cling to "Hot Button" Issues
I was talking to a young attorney in my husband's law firm last night at a fund-raiser for Public Counsel. When I suggested Obama '08, he demurred on the ground that Barack's church-state separation position wasn't sufficiently clear and it was one of his "hot button" issues.
I said, "we can't afford any hot button issues in the coming election. There's too much at stake." I didn't need to say more.
Denial and Despair: The Parade of Horribles
Catastrophic species extinction, mass relocation of populations dispossessed by rising oceans, vast increases in wars fought over diminishing natural resources, and continued destruciton and dispossession caused by increasingly severe weather conditions.
There's more, but that should be enough for denial and despair to set in.
Hope: What Mediators Can Do
Last week, I had the great pleasure of shaking Barack Obama's hand and asking him what an ordinary citizen like myself could do to help his campaign.
"Talk," he said. "Talk to your freinds and your family. Talk to those who support me and those who don't. Talk to Democrats and talk to Republicans. Talk to those who agree with you and those who don't. But first listen."
The challenge of winning a presidential election in the most technologically advanced, economically strong, militarily mighty nation in the world pales in comparison with the work we must do to survive the twenty-first century with our freedoms intact.
We cannot do it alone. We cannot continue to avoid difficult conversations with our friends, families, and those who we perceive to be the enemies to good governance and thoughtful environmental stewardship.
I am voting for Barack because he is a conciliator. I believe he has the heart to do the right thing and the intelligence to surround himself with the people necessary to accomplish it. He is not a utopian nor an ideologue. He is practical and progressive.
But my hopes are not really pinned on Barack. My hopes are pinned on the American people to awake from our long post-9/11 slumber.
My hope is that no matter who we put in charge of the White House in '08, we will begin working together, talking together, reaching consensus on those issues on which we can agree, forgiving one another for our inability to solve those we cannot; and, building coalitions of those willing to put aside their personal grievances so that we can rise to the unprecedented global challenges that face us.
Why Mediators?
What is the first step in a mediation? The creation of hope and safety. And after that? Communication, reality-testing, and problem solving conducted by locating our mutual interests and finding ways to satisfy them. Reconciliation, forgiveness. Dare I say justice.
This is not work for the weak-willed. It is not work for those with stars in their eyes. It is not work for ideologues or utopians. It is work for those, as Ken Cloke says, who are hopeful at heart and pessimistic of mind. For those who combine a fine skepticism with the courage (and humility) to reach across the aisle, cross the political divide, listen to those with whom we most violently disagree and seek solutions.
In all of this, we must realize that we are not creating a world without borders. We are simply recognizing it. We are one, united, inseparable, inter-dependent, fragile and worthwhile. Every one of us.
As James Agee wrote of our responsibilities in depression era America:
In every child who is born under no matter what circumstances and of no matter what parents, the potentiality of the human race is born again, and in him, too, once more, and each of us, our terrific responsibility toward human life: toward the utmost idea of goodness, of the horror of terrorism, and of God.
James Agee, Let Us Now Praise Famous Men
That's green.
I tag Justin Patten, Paula Lawhon, and Jan Schau.
(photo by Duane Romanell)
We first mentioned the brain's do-good-feel-good circuitry in our post Unhappy Lawyers and the Cooperative Hard Wire. Since that time, we've created an entire category for collaboration, showing that it not only makes us feel good and perpetuates the species, but that it also makes us better problem solvers than we could ever be acting on our own (remember law school study groups?) See e.g. Collaboration Creates Better Science.
The researchers continue to pursue this line of inquiry and today New York Times Writer and Blogger John Tierney (Tierney Lab) tells us that it feels good to pay taxes -- at least those with a charitable purpose.
The research?
Each student was given $100 and told that nobody would know how much of it she chose to keep or give away, not even the researchers who enlisted her in the experiment and scanned her brain. Payoffs were recorded on a portable memory drive that the students took to a lab assistant, who then paid the students in cash and mailed donations to charity without knowing who had given what.
The brain responses were measured by a functional M.R.I. machine as a series of transactions occurred. Sometimes the student had to choose whether to donate some of her cash to a local food bank. Sometimes a tax was levied that sent her money to the food bank without her approval. Sometimes she received extra money, and sometimes the food bank received money without any of it coming from her.
Sure enough, when the typical student chose to donate to the food bank, she was rewarded with that warm glow: increased activity in the same ancient areas of the brain — the caudate, nucleus accumbens and insula — that respond when you eat a sweet dessert or receive money. But these pleasure centers were also activated, albeit not as much, when she was forced to pay a tax to the food bank.
This doesn’t mean that the student, or anyone else, would necessarily enjoy writing a check to the Internal Revenue Service that would be spent on plenty of programs less appealing than a food bank. It is more like the tax collected by a state lottery that dedicates its profits to schools.
For the complete article, Taxes a Pleasure? Check the Brain Scan click here.
The refinement on prior research here is that charitable giving makes some of us feel better than others (see Altruist's Paradox, Should It Hurt to Be Nice) and that at least some of those whose pleasure centers aren't stimulated by altruism, give as much as those whose are.
My guess is that those who give without the brain "rush" also say "please" and "thank you," let motorists into the jammed traffic in front of them and help little old ladies across the street. We used to simply call them "good citizens." Their parents raised them that way.
Via Kottke.org, we are directed to Plants Can Tell Who's Who at naturenews.com.
plants grown alongside unrelated neighbours are more competitive than those growing with their siblings — ploughing more energy into growing roots when their neighbours don't share their genetic stock.Plants 'know' more about their environment than they are often given credit for: they can sense the presence of neighbouring plants through changes in water or nutrients available to them or through chemical cues in the soil, and can adjust their own growth accordingly. "That plants have a secret social life is something well known to plant ecologists," says Dudley.
But the ability to recognize kin has not been demonstrated before.
For remainder of article, click here.
I suspect that just as we humans are hard-wired to both compete and cooperate (see Unhappy Lawyers and the Cooperative Hard-Wire) so are plants. Because I don't know that, I ask any botanists within shouting distance to weigh in.
Collaborate, compete, protect, defend, balance, compete, collaborate.
.jpg)
Ecclesiastes 3:1-8
Step four in The Art of Getting the Best Deal: Solve the Joint Problem
(left: my first 2-wheeler on which my grandfather, the sign-painter, inscribed my name)
Exploring Different but Compatible Interests
Lax and Sebenius suggest that many negotiators "simply assume their interests to be the opposite of yours -- rather than different and potentially compatible."
You cannot, however, simply instruct the parties to search for different but compatible interests. The mediator needs to listen long and carefully for the needs and concerns that are driving the parties' legal positions.
But First, a Little Reactive Devaluation*.jpg)
You'll recall that the parties to my hypothetical patent infringement action had already made lists of extremely valuable non-economic benefits that they might exchange with one another to resolve the dispute. They soon pushed those bargaining chips aside, however, quickly reverting to purely monetary issues.
Why do litigants abandon business opportunities more valuable than their total monetary demand? "Reactive devaluation." **
Money seems objective and certain while the value of intangibles is imprecise and risky.
Non-quantifiable benefits are greeted with the suspicion one reserves for the street vendor hawking Louis Vuitton handbags. This apprehension is probably expressed by litigators more often than any other professionals -- "if he wants it, it can't possibly be good for me."
____________________
** I learned everything I know about the social psychology of conflict from University of Missouri Law School Professor Richard Reuben. This is one of his best and most comprehensive Power Point Presentations. Take a look when you have a moment. Learning social psychology is is like hitting the "reveal codes" key in WordPerfect or seeing the matrix: your entire conflict-life is mapped, graphed and revealed. Thanks again Richard!
Continue Reading....jpg)
Everyone who knows the difference between distributive and integrative bargaining and the iconic story of the ONE ORANGE should go directly this morning to Geoff's blog, Mediator Blah Blah. First, a snippet to encourage you:
Today I found myself inducted into the Mediators' Mile High Club at 23,000ft when two young, remarkably similar looking girls seated in 16E and 16F needed my help.
(yes, they look sweet and compliant now, but just wait until the plane takes off!)
for remainder of story click here.
As a follow-up to yesterday's post on collaboration and cooperation, we recommend a recent article in the Harvard Business School's invaluable online resource "Working Knowledge" -- The Value of Openness in Scientific Problem Solving, by Karim R. Lakhani, Lars Bo Jeppesen, Peter A. Lohse, and Jill A. Panetta.
The HBS Executive Summary below; link to full article above.
Scientists are generally rewarded for discoveries they make as individuals or in small teams. While the sharing of information in science is an ideal, it is seldom practiced. In this research, Lakhani et al. used an approach common to open source software communities—which rely intensely on collaboration—and opened up a set of 166 scientific problems from the research laboratories of twenty-six firms to over 80,000 independent scientists. The outside scientists were able to solve one-third of the problems that the research laboratories were unable to solve internally.
Key concepts include:
Opening up problem information to a large group of outsiders can yield innovative technical solutions, increase the probability of success in science programs, and ultimately boost research productivity.
Open source software communities provide a model for improving the process of solving scientific problems.
Outsiders can see problems with fresh eyes; in this study, problems were solved by independent scientists with expertise at the boundary of or even outside their field.
Achieving true openness and collaboration will require change in the mindsets of both scientists and lab leadership.
A timely post for solving the problems of WORLD 3.0.
I took an urban hike with my good friend the composer, lyricist and novelist Kathleen Wakefield yesterday. I live at the base of the Santa Monica mountain range, making for a good hour's hike from the Los Angeles Basin to the range's crest on Mulholland Drive and back (even if we only made it to Fountain) (yes, the Fountain of Bette Davis' famous response to the question "how do you get to Hollywood?" - "take Fountain") .
Because Kathleen makes her living selling her intellectual property, we were talking about the challenges raised by and opportunities presented to artists as their work becomes more and more their own property and less and less the business of those who "discover" it (A&R), produce it (Viacom, MGM, Capitol Records, etc.), sell it (Madison Avenue) and protect it (ASCAP, entertainment lawyers).
Our conversation naturally ranged to Web 2.0; a world without borders; and, global warming, all of which took me back to the book my friend Ken Cloke is writing called "Mediators Can Save the Planet."
Why mediators? Because WORLD 3.0 will require that we supercharge our natural cooperative and altruistic natures while dampening our competitive drive without thereby discarding our ambition.
What will it take? A shift from competition to collaboration.
Can we do it? "Yes we can," says Al Gore in An Inconvenient Truth when his audience begins to move from denial to despair.
How? At least one way to get the global cooperation ball rolling will be to school ourselves in empathy, a necessary prerequisite to tackling the problem of collaborative solutions to worldwide problems.
All of which leads us to an old but timely article Empathy, Morality and Otherness by Dr. Douglas Chismar. Before proceeding to suggest art as one of the ways we can increase our ability to identify the injustices done to and suffering endured by "foreign" others, Dr. Chismar identifies three types of empathy triggers: (1) empathizer specificity; (2) situation specificity; and, (3) recipient specificity. He writes:
Empathizer specificity refers to the manner in which individual empathizers vary in their general level of empathic responsiveness as a personality trait. Some people empathize quite often and intensively, others rarely and only weakly.
Situation specificity refers to how empathizers respond selectively to a variety of different empathy opportunity situations. Certain circumstances, for example the Challenger disaster, have evoked widespread empathy, while others, such as the civil war in Rwanda, evoked little response.
Recipient specificity speaks of how empathizers respond differently to particular kinds of individuals. A neighboring family left homeless by fire may evoke considerable empathy while a wino on a street corner may stimulate little concern.
After discussing the many reasons why we understandably misread the injustices visited upon and fail to respond to the suffering of distant and foreign "others," Dr. Chrismar suggests that we nourish our natural empathy impulses with art. "We need to find a way to take the initial impulse to empathize and nourish it," he argues,
rather than letting it slide, as it is prone to do, into the rut of selectivity. Humans have discovered at least two strategies for increasing the frequency and intensity of empathy, and overcoming its partiality.
The first strategy is the largely cognitive operation of what is commonly referred to as “universalizability.” This consists of abstracting from one’s particular situation and viewing oneself as one among many. It takes various forms, including reversibility (placing oneself on the imaginary receiving end of an action) and a kind of stripping away of what makes one particular (“judging a man by the content of his character rather than the color of his skin)”.
A second strategy appeals to the arts . . . Through drama, poetry, film, and other arts, imaginative participation in others’ experience is enabled where it would otherwise fail to occur. The arts, through creating a mock reality, thrive upon the sense of fascination with the different while creating situations in which empathy is powerfully and irresistibly generated.
Human tendencies towards curiosity and exploration are harnessed to project the emotions into alien situations. The accepted suspension of cultural norms, which has tended to characterize the artworld throughout its history, permits the feeling and expression of unconventional emotions, unloosing a stream of feelings otherwise bottled up in a business-like society.
There's much more of interest in this article to anyone engaged in the project of preparing ourselves for the challenges of the coming century, including the mass relocation of people due to the rise in the sea level and the potential for catastrophic species extinction -- neither of which is science fiction anywhere but in the Bush White House.
Check it out.
I am constantly reminding my readers that we are hard-wired cooperators. Cooperation alone, regardless of result, makes us happy. Better yet, cooperation almost always results in a better deal for everyone.
This is not do-good, crystal-reading, pentagram-worshiping kum-by-ya feel good west coast touchy-feely nonsense. This is evolutionary biology.
In this week's Sunday New York Times Natalie Angier reminds us that cooperation is not only the necessary pre-condition to the survival of the human species as a group, but is also the pre-condition to each of our individual lives. In her fascinating article, Sociable Darwinism, Ms. Angier reviews Evolution for Everyone (etc.) by Professor David Sloan Wilson at Binghamton University.
As Ms. Angier explains:
Wilson has long been interested in the evolution of cooperative and altruistic behavior, and much of the book is devoted to the premise that “goodness can evolve, at least when the appropriate conditions are met.” As he sees it, all of life is characterized by a “cosmic” struggle between good and evil, the high-strung terms we apply to behaviors that are either cooperative or selfish, civic or anomic.
The constant give-and-take between me versus we extends down to the tiniest and most primal elements of life. Short biochemical sequences may want to replicate themselves ad infinitum, their neighboring sequences be damned; yet genes get together under the aegis of cells and reproduce in orderly fashion as genomes, as collectives of sequences, setting aside some of their immediate selfish urges for the sake of long-term genomic survival.
Cells further collude as organs, and organs pool their talents and become bodies. The conflict between being well behaved, being good, not gulping down more than your share, and being selfish enough to get your fair share, “is eternal and encompasses virtually all species on earth,” he writes, and it likely occurs on any other planet that supports life, too, “because it is predicted at such a fundamental level by evolutionary theory.”
How do higher patterns of cooperative behavior emerge from aggregates of small, selfish units? With carrots, sticks and ceaseless surveillance. In the human body, for example, nascent tumor cells arise on a shockingly regular basis, each determined to replicate without bound; again and again, immune cells attack the malignancies, destroying the outlaw cells and themselves in the process. The larger body survives to breed, and hence spawn a legacy far sturdier than any tumor mass could manage.
For the remainder of this article, click here. For how this phenomenon applies to the legal profession, see Unhappy Lawyers and the Cooperative Hard Wire here.
To read Professor Wilson's book, EVOLUTION FOR EVERYONE -- How Darwin’s Theory Can Change the Way We Think About Our Lives, click on the title.
(left: old tech)
As if the DMCA weren't already the Full Employment for BigLaw Act of 2007, we have a new DMCA cause of action -- improper take down notices.
Read today's Wall Street Journal Law Blog report on the new suit against Viacom, the latest in the YouTube wars. This one was filed by "fair use" activist groups claiming that Viacom's demands to YouTube that it remove parodies of Viacom/Comedy Central programming themselves violate the DMCA.
I will continue to be a broken record (a broken download?) on litigation about online content.
There are an infinite number of business solutions to the business problems (opportunities) created by Web 2.0. As always, there are only a few, and frustratingly chimeral, legal solutions.
I'll urge anyone within shouting distance of BigMedia to read 3D Negotiation by Lax and Sebenius, whose "brainest guys in the universe" credentials go like this:
David Lax and James Sebenius . . . combine decades of high-level, practical experience negotiating in the corporate, financial, and diplomatic realms with academic expertise that helped develop much of the modern field of negotiation.
Professor Sebenius is the first Gordon Donaldson Professor at Harvard Business School and a member of the Executive Committee that oversees the activities of the Program on Negotiation at Harvard Law School. David Lax, described by Forbes magazine as a "new negotiation theorist" on the cutting edge of his field, served as a professor at Harvard Business School from 1981-1989.
Lax and Sebenius co-founded the Negotiation Roundtable, a working research group sponsored by Harvard Business School and the Kennedy School of Government, and Sebenius currently serves as its Director.
This isn't "win win" negotiation strategy. This is the way to outwit the entire legal system and most of your commercial competitors. Why? Because a business deal creates its own legal world -- the new one that precedent couldn't possibly have predicted.
But there's no reason to rely on me. Check out 3-D & draw your own conclusions. 
(right: new tech)
(left: mountain sues lake for copyright infringement)
I can't be the first one to ask these questions, but here goes:
There's an old saying that "what you resist persists." The internet, YouTube, google, blogs, mp3 players, ripping, burning and copying are here to stay.
The means of production (and co-production) is in the hands of the people.
Still, large concentrations of capital remain (and will always remain) in the hands of corporate giants.
This is not David and Goliath because David just wants to listen to his music, man. The people who want to "monetize" David's listening (and recording) enjoyment will always find a way to do so. That's their job.
The people will continue to create and share. Mix and burn. Copy and compile.
Not that I mind Big Media wasting their money trying to stop the tide of progress.
It's just that I'd rather they use it to make better movies.
For a far more sophisticated viewpoint than my own, take a look at the MIT Convergence Culture Consortium blog on CBS' Use of YouTube for "Cross Platform Distribution" of March Madness, noting:
Continue Reading...Not surprisingly, the blogosphere points to the irony of Viacom's suing YouTube while CBS is finding effective and profitable ways to work with the video sharing site. David A. Utter with WebProNews points out that the first CBS March Madness clip on YouTube prominently displays UPS advertising and indicates the potential for major profit for the network and YouTube as well. Utter says, "Why Viacom misses the potential of YouTube while their former brethren at CBS embrace it would be a question we would like to see Viacom answer if their YouTube/Google lawsuit ever comes to trial."
Enter keywords:
