In the ABC's of Conflict Resolution, "D" is for Drama Queen

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 gamesmanshipshaming, 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

Employment Arbitration a "Moral" Hazard?

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.

Negotiating Law Firm Happiness: Partnership Compensation

I've got a little series on law firm happiness going on over at the tremendous workplace law resource Connecticut Employment Law BlogDan Schwartz, the dynamite Blog Meister behind Connecticut Employment Law had to take a blog break  while actually TRYING A CASE (yes, people still DO).  While working, he filled his excellent blog with guest posts, including my three-part series ending with partnership compensation today.  

Call me an idealist, but some of the suggestions made in my current post over at the Connecticult Employment Law blog are taken from Lauren Stiller Rikleen's exhaustive analysis of the modern law firm's ills and potential remedies in Ending the Gauntlet, my review of which will appear in this section of the Complete Lawyer's next issue so keep a look out for it!

 

Smart Bloggers Who go to Trial Expand the Pie

What's the secret of a happy law-life? 

Being right? 

No!

Delegating responsibilities

That's what Connecticut employment lawyer and blogger, Daniel Schwartz, has done while he's trying one of those employment cases that resist negotiatied resolution. 

Not only is the delegation of Dan's blogging responsibilities smart, it's pie-expanding

Though Dan's readers are likely missing his voice with their daily coffee and eggs, he's turned their loss into other bloggers' gain by asking several of his colleagues to "guest blog" while he's gone.

Yesterday, for instance, Dan kicked off guest blogger week with the Evil HR Lady's commentary on Walmart and Blogging here.  As Dan explained . . . .

I should tell you that I do know [Evil's] first name; but she has told me that she'd hunt me down if I revealed her identity. So instead, I've asked her to provide a short blurb to introduce her; here was her candid response:

Evil HR Lady works for a Fortune 500 Company making sure that as many people as possible get fired. Hence, the Evil part of her name. She blogs and takes questions here.

Nothing like an HR person with a sense of humor, right? Well, she also has a very entertaining blog that is part Ask Amy, and part Jack and Suzy Welch. . . . 

Today, Dan graciously allowed me to introduce a few mediation principles into his blog with The Division of Chores and Partnership Compensation, Part I. 

Even though I do hate the term 'win-win' as far too redolent of marshmellows roasting over a camp fire ("say, pass the Hershey's chocolate, would you?") Dan is exemplifying the essence of integrative, interest-based "win-win" problem solving for his readers. 

While he rides off on his white stead to win win win win win his client's case at trial!

Thanks for the opportunity to meet your readers, Dan.  And go get 'em!

ABA Dispute Resolution Conference in Seattle in April!

The ABA Section of Dispute Resolution Presents The 10th Annual Spring Conference Pacific Currents: Sound Perspectives on ADR

April 3-5, 2008

Pacific Currents: Sound Perspectives on ADR is the premiere conference in the world for dispute resolution professionals and lawyers engaged in dispute resolution processes. This conference offers some of the best ADR CLE in the country presented by diverse and experienced faculty. With over 90 CLE programs planned, you can fulfill all of your CLE requirements over the course of a few short days.

This year’s conference also offers many dynamic and engaging plenaries.

The opening plenary entitled Hot Topics in Arbitration: The Fair Arbitration Act, Hall Street, and More will discuss the most recent developments in arbitration law, including cases pending in the Supreme Court, as well as potential arbitration-related legislation.

Linda Babcock will present the Friday morning plenary: Women Don't Ask: Negotiation and the Gender Divide. Ms. Babcock will speak about the four-phase collaborative problem-solving approach to negotiation and how lawyers and mediators can use this approach to manage the reactions and emotions that may arise on both sides of a dispute.

ABA President William Neukom will deliver a keynote speech and Tom Stipanowich, Academic Director Straus Institute for Dispute Resolution and Professor of Law, Pepperdine University, will present at the Friday Luncheon.

Saturday offers The Language Conflict: How Aggression and Violence Inform the Way We Speak presented by Kenneth Cloke and Joan Goldsmith of the Center of Dispute Resolution. This skills-building plenary will examine strategies on how to turn hostile denunciations and debates into appreciative disagreements and dialogues. Don’t miss out! Register today to attend these exciting plenaries.

I'll be presenting a seminar on Intellectual Property Mediation with the Hon. John Wagner (Fed. Magistrate, Ret.) and Christine Byrd of Irell & Manella.   

To review the conference brochure click here.

Book your hotel today! The negotiated conference room rate ends soon. Contact the Sheraton Seattle Hotel & Towers at 1-800-325-3535 or register online and reference the ABA Section of Dispute Resolution 10th Annual Conference to receive the discounted conference rate of $189.

This discounted rate is available until March 4th or until the block has been filled.

How Rich are We? A Modest Response to Geoff Sharp's Mediator Salary Post

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

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

 Chart from PayScale.

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

Check to charity or for a microloan written yet?

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

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

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

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

Does your weekend look any brighter now?

JOB ANNOUNCEMENT: SENIOR MEDIATOR/FACILITATOR IN SAN FRANCISCO

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Kearns & West, a mediation and communications firm specializing in water, energy, natural resources and environmental mediation, collaboration and public involvement, seeks

  • A seasoned mediator/facilitator or public involvement expert to join the firm’s San Francisco office, or 
  • A mediation/collaboration/public involvement firm or 2-5 person group that is interested in joining K&W, and/or 
  • A seasoned mediator/facilitator or public involvement expert or small firm interested in joining the firm in other locations. (We currently have offices in San Francisco, Washington DC, Portland, Denver, Sacramento, and have interest in Southern California and other locations in the east as well).

For more details, click here.

Conflict in Our Own Backyard: Should Someone Accept Clooney & Hanks Offer to Mediate the Writers Strike

Finally an excuse to post a photo of the world's sexiest man on my blog!

The excuse?

Professor Carrie Menkel-Meadow's Concurring Opinion Post Can Actors Do Everything? letting us know that George Clooney and Tom Hanks have offered to mediate the writers strike as follows:

George Clooney, Tom Hanks and other actors have offered to step in and "mediate" the writer's strike. They say they will just tell the two sides "you have to live with this (particular terms) and get over it." Some bloggers suggest only "starpower" will make the producers bargain in good faith.

I hope these well intended actors know what they are doing when they offer to mediate. It sounds like they don’t. Mediators don’t tell the parties what to do (”you need to live with that and get over it”). They facilitate negotiations between the parties so they can (together) come to an agreement and “live with it.”

For the remainder of Professor Menkel-Meadow's post, click here.

Of course anyone can mediate.  Each one of us do it on a daily basis in some form.  Parents do it between children; children do it with their peers; employees do it on behalf of their employers or colleagues; and, I'm certain, actors and directors do it with an incredible array of difficult personalities both on and off-set every day.

Co-Mediation:  An Idea Whose Time Has Come

I have a friend and colleague, fellow Judicate West panelist and AAA arbitrator Jay McCauley who co-mediates medical malpractice and other health care litigation with a physician mediator, Marc Lebed through their organization Medical Dispute Professionals.

They are harnessing the power of a subject-matter-specialist/mediator team to help doctors and patients resolve their disputes.

A similar process could well be the answer to the writers' strike.  Substantial research has found that the most powerful persuasive force is the opinion of an individual who genuinely "feels your pain" or is inside your "decision cycle" (h/t to Colin Powell).   

If Clooney and Hanks teamed up with a great mediator, it wouldn't surprise me if their addition to the mediation team might well make the difference between continued impasse and agreement.

It couldn't possibly hurt, could it? 

The Complete Lawyer to Out Workplace Bullies

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UPDATE:  THAT WAS ME SHAKING THE PACKAGES UNDER THE CHRISTMAS TREE WHEN I DIRECTED MY READERS TO THE JANUARY '08 ISSUE OF THE COMPLETE LAWYER ON WORKPLACE BULLYING.

Assuming everyone is far more patient than I am (instant gratification takes too long) your patience will be amply rewarded if you don't open links to the incomplete Complete Lawyer of 2008 until the first week of January.

Apologies to Don Hutcheson and crew who put out the best looking online legal journal on the block!

The upcoming issue of the Complete Lawyer (Vol. IV, Issue 1) will be outting the bullies among us . . . . but, please don't open until after Christmas.  

My article Why Lawyers Are Unhappy… And Make Others Unhappy, Too is a personal confessional of workplace misbehavior. In fact, it's just about as personal as you can get without committing professional suicide.  But hey!  Somebody had to fess up and when you're  the jerk in the workplace, it's you who is usually the last to know.  As my regular readers know, however, there is a happy ending to this one.

I feature my own article first here only because I can.  The other authors addressing the issue of workplace bullying should be front and center because they are luminaries in their fields.  Take a look at:  

The No Asshole Rule by Robert Sutton, Professor of Management Science and Engineering at Stanford University

 

 

 

How to Spot and Deal with Jerks by Julie Fleming Brown, author of the renowned Life at the Bar blog

 

 

 

Create a Blueprint for a Bullying Free Workplace by Gary Namie, North America's foremost authority on Workplace Bullying

 

 

 

Defining and Legislating Bullying by Garry Mathiason, vice chair of Littler Mendelson, and, according to the National Law Journal, one of the 100 most influential attorneys in the nation

 

 

 

Yes, There are Ways to Reform Workplace Jerks by Employment Practices Specialist Allison West

 

 

 

In this crowd, I feel like Zelig!

 

Legal Assistant or Partner, Monster.com Has Solid Advice for Negotiating Your Compensation

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

#1: Get Prepared

Before the negotiation begins, take the time to [do your] research . . . Establish a reasonable range for [compensation], a typical benefits package and common additional compensation (e.g., stock options, annual bonus, performance bonus). This work makes it possible for you to know the ballpark in which any satisfactory agreement has to fall.

Then, from those general points, determine the most favorable compensation package for you. You should be able to justify that package given the field in which you work (since compensation differs across industries) and your experience, expertise and credentials.

Make sure that this package addresses the real needs you have -- you will likely have trouble asking for more later if you overlook something. This package is your counteroffer.

#2: Be Firm

[S]elect[] a reasonable and appropriate counteroffer -- one based on the data you gathered in your research -- and stay[] there until the other side offers a persuasive reason for you to move.

By "persuasive," I mean an argument based on additional data or information that justifies a different figure or package than you had developed. . . . . An example of an unpersuasive argument would be "Your figure is too high. We can't do that."

#3: Be Wise

Keep the big picture in mind. Your goal in the negotiation is to reach an agreement that satisfies your interests -- not to win a battle between positions. If your counteroffer is not moving you closer to an agreement, do not hunker down and defend it to the death.

Instead, think of another proposal that addresses your needs and concerns and is supported by data, and put that out as another offer. Use your energy to generate solutions, not to fight battles.

More Thoughts from a Labor Negotiator on the Hollywood Writers' Strike

(right:  Julia Louis-Dreyfus on the picket line)

When we first wrote about the writers' strike and the active picketing just down the street here at Paramount on Santa Monica and CBS on Beverly Boulevard, we asked our friend Jim Stott for comment.

Because Jim's excellent comment was buried in small type in our "comments" section, I give it its due here by bringing it up into a post of its own.  

(for "live" WGA Strike Blogging from the Los Angeles Times, click here)

After noting that his own comments are not "in any way intended to minimize, diminish or otherwise criticize the hard efforts of the writers, producers or federal mediator's efforts to reach agreement in this ongoing dispute," Jim opines as follows:

Often, both parties become "blinded by the sparks" associated with their lack of progress at the bargaining table. In those situations, a psychological phenomenon occurs wherein parties start start to blame the 'other side' through personal attacks; one against the other. As this practice grows, the underlying issues that really need to be discussed are subsumed by the superficial and surface diatribes.

Obviously - to the outsider - settlement can only be reached when the parties focus on the substantive and underlying issues as a mutual and common problem. Often, both sides fail to realize that a problem for one contingent group is ultimately a problem for all contingents. If force, i.e., a work stoppage or lock-out is used as a means for getting the 'other side' to soften their positions, the latent residual feeling caused by such an action is often long-lasting and will materially damage the ongoing relationship between all stakeholders involved.

In practice and theory, writers need work provided by the producers, just as producers need the work-product of the writers. In negotiations, it is this symbiotic internal relationship that is most important. Long after the work stoppage has been resolved, the latent and labile underlying emotional distrust and dissatisfaction will continue; often for years.

The federal mediator assigned to this particular case is exceptionally well qualified. He is a colleague and friend. I have no doubt that his professional services provided in this situation were of the highest quality.

Rarely however, even with the presence of a mediator, negotiations break down and reach impasse. Intractable parties are often the stock-in-trade for federal mediators. It not at all unusual to hear the warring factions self-diagnose their positions as being "miles apart." On rare occasions though, parties are so far apart that their tangential distances and differences, when measured in cost and dollars can be significant.

It would appear that producers and writers are faced with unanticipated outcomes associated with the expotential growth of the broadband internet capacity and online streaming video and audio. On the one hand, producers may see this as a marketing and distribution opportunity, by which they will increase audience participation and marketshare. While at the same time however, writers may see this exploding media as one in which their recognition, compensation and earning potential has been and will be diluted and otherwise diminished.

These complex negotiations are never easy and are often rocky. The challenge to all the stakeholders is to continue the conversation and continue to make progress, albeit ever-so-slowly. Even if their conversations are not face-to-face, but done through an intermediary; they are critically important.

As long as all dialogue has stopped, there virtually is no chance the impasse will self-resolve; thus the stand off will continue indefinitely. This is precisely what happened in the Caterpillar work stoppage which lasted over five years. All communication stopped. Distrust on both sides grew expotentially. Replacement workers were hired. All the while, the union pickets were outside the plant, locked out, while the plant production continued to grow.

While this is an extreme case in labor management relationships, it is my hope that productive conversations, clandestine and off the record or not, continue. This is the only way in which this dispute will resolve without inflicting extensive and long-lasting damage to all stakeholders.


Currently, Jim Stott is a Principal and Senior Consultant with Stott & Associates of Gig Harbor, Washington. Until recently, he was Assistant Director at the Straus Institute for Dispute Resolution, Pepperdine University School of Law.

Prior to joining Straus, Jim spent nearly six years as a Commissioner with the Federal Mediation and Conciliation Service (FMCS) in Los Angeles and Washington, D.C., where he provided collective bargaining mediation and negotiation consultation services to federal agencies, private and public sector employers, and labor unions.

Jim was also instrumental in the design and development of joint labor/management committee problem solving protocols used by Los Angeles Dodgers, Southwest Airlines, Toyota, Kaiser Permanente, Boeing and Walt Disney Studios.

In his professional and academic career, Jim mediated more then 1,500 disputes. The majority of these conflicts were associated with employment, labor/management or collective bargaining issues. Jim has also provided pro-active and pre-emptive conflict management design systems. In his teaching and coaching capacity, he has taught mediation protocols and processes to over 1,500 students in academic settings, court programs, international labor unions as well as management/employer groups including CUE.

Jim holds a Bachelor of Science Degree in Business and Management from University of Redlands, as well as a Masters Degree in Dispute Resolution from Pepperdine University School of Law.

THANKS FOR THE GOOD THOUGHTS JIM!! 

WE MISS YOU DOWN HERE IN SOUTHERN CALIFORNIA!!

Some Great Thinking on the Mattel Case by My Personal Brain Trust

This post follows up yesterday's about questions asked by the Supreme Court Justices during oral argument in the Hall v. Mattel case.  For a more thorough analysis than I was capable of providing,  I put out a call to my arbitration law posse and was greatly rewarded by the following comments.

Eric van Ginkel writes from Amsterdam:

Courts and scholars have traditionally ignored the distinction between vacatur (as to which section 10 limits the grounds, and there should not be any additional, non-statutory grounds) and appeal, about which the FAA is silent (other than perhaps section 9 which conditions the confirmation of an award on whether the parties have agreed that judgment on the award can be entered, arguably leaving that until later if they have agreed on an appeal to a court or a panel of appeal Arbitrators).

Sadly, the petitioners have also ignored this distinction, so the chances are that the Supremes will come out against appeal. As I have pointed out in the past, the clearest example of appeal next to vacatur as two distinct remedies can be found in the English Arbitration Act of 1996

AAA arbitrator Jay McCauley, who teaches Arbitration Law at Pepperdine School of Law writes:

This case tests the limits of the power of contracting parties to curtail the power of their arbitrator. Section 10 of the Federal Arbitration Act (i.e., the provision stating the grounds for vacatur) already provides that an award may be vacated if the arbitrator exceeds his or her powers. The question before the Supreme Court is whether parties may contractually define those powers by specifying that the arbitrator exceeds them if he or she fails to base his or her decision on the law.

There appear to be five lines of argument supporting the proposition that such contracts should not be enforced:

1. Congress intended the grounds for vacatur to be limited to those expressly set forth in Section 10, and none of those permits vacatur based on the content of the award.

2. Part of the ethos of arbitration is that it shall be quick and efficient (not slow and accurate), regardless of what the contracting parties desire.

3. Contracting parties should not be able to dictate to courts what courts should do.

4. Allowing vacatur on the basis of the content of the award will put too big a burden on trial courts handling vacatur motions, who are not used to the reviewing function.

5. Judicial review is often not in the parties' interests. We need to prohibit review to save the parties from their own bad judgment.

I think each of these arguments is faulty. 

As to Argument 1: Congress expressly said Courts may vacate when the arbitrator exceeds his power.  It never prohibited the contracting parties from defining what those powers are. There is no reason to consider the four Section 10 grounds for vacatur as exclusive. As long ago as 1953, the Supreme Court itself added a content based non-statutory basis for vacatur ("manifest disregard of the law") without an excuse as great as we have here, i.e., that the parties asked for it.

The agreement at issue in Mattel calls for a deeper level of review than manifest disregard of the law. Nevertheless, the Supreme Court would be hard pressed to say that such a review would contravene Congressional intent.  The Court long ago broke that supposed barrier. In any event, what Congress said it intended was to put arbitration agreements "on the same footing" as all other agreements.  That should mean "carry out what the parties contracted for" so long as their contract is neither illegal nor contrary to public policy.

As to Argument 2: There is no ethos to Arbitration other than the ethos of parties' freedom to customize their own adjudication process in any way they see fit. There are many in the ADR community who think about, and advocate for, arbitration as if it were an institution that must conform to a Platonic ideal.  The largest arbitration provider in the world, the American Arbitration Association, filed an amicus brief in the Mattel case, arguing that the customized arbitration the parties contracted for in this case should not be permitted because, inter alia, it runs afoul of the ethos of arbitration (i.e., quick, efficient and un-litigation-like). I have no idea why AAA, a neutral provider, would put its oar in this water at all. Nor can I fathom why they did so to pull against the direction of contractual freedom.

As to Argument 3: It is the Courts that should not be able to dictate what they do or do not do. It is Congress that has that power.  And Congress already used that power to dictate to Courts what they should do in this instance: that is, "enforce the parties' agreement as written."

As to Argument 4: The best of the arguments against permitting the parties to include judicial review in their private dispute resolution process is the long recognized common law limitation on contractual freedom: impossibility or impracticability. The kind of judicial review called for here, however, is not onerous or novel. District courts have been conducting content based reviews of administrative decisions as a significant part of their ordinary duties since the 1930s. 

As to Argument 5: I am the first to admit that judicial review of an arbitration award is usually, maybe even almost always, a bad idea. But those who oppose enforcement of contracts calling for judicial review are saying something more: that it is always a bad idea, and that it is such a bad idea that parties themselves should not be able to decide for themselves just how bad an idea it is for them.

It turns out that this case is the very worst scenario for judicial paternalism. Not only were the parties sophisticated players engaged in a commercial dispute, they entered into the agreement after the dispute arose (i.e., it was a true "submission agreement"), so they had reason to know precisely what they were getting into.

Something extra to watch: Just as the U.S. Supreme Court is now reviewing the Mattel case, the California Supreme Court is reviewing the Crowell case.  The Crowell arbitration arose under the California Arbitration Act and raises the identical issue as that raised by Mattel.

But here is the real irony in California: One of the reasons trial courts are already experienced with vacating arbitration awards for legal error is that they have already been told to do so by the California Supreme Court in employment cases (Armendariz). They must do so even though the California vacatur statute (CCP section 1286.2) like the federal vacatur statute (FAA section 10), does not include legal error as a ground for vacatur.  

Under Armendariz, California courts are not permitted to enforce an arbitration agreement if it does not provide a mechanism for judicial review.  If California now prohibits private contracts requiring judicial review of commercial arbitration awards, it will be imposing two directly contrary limitations on contractual freedom: Parties may neither limit the power of commercial arbitrators (by requiring judicial review) nor expand the power of employment arbitrators (by failing to provide for judicial review).

Imposing both limitations would not be a contradiction -- they arise in different contexts. But such a decision would starkly elevate the policy of protecting employees over the policy in favor of the freedom to contract. That is, the California court would be saying that employee protection is a good enough reason to override all of the arguments against thejudicial review of arbitration awards, but freedom of contract is not.

Finally, AAA arbitrator Les J. Weinstein writes:

While some might argue that judicial review would add transparency to the arbitration process by opening up the private proceeding to public judicial review would fuel the notion of a tailored private system for the rich and powerful using public resources.

Suppose the parties contract for judicial review under seal; is that OK?

If we like contract so much, why not let the parties "rent" an appellate panel?  Maybe the Supreme Court will review arbitrations as well?

If we go down this road, we would need new rules as well as Congressional authority. 

Who will pay for this potential new burden on the appellate system?

I doubt that mere contract alone will cut it under the current law but I predicted a Gore victory and a Supreme Court abstention so what do I know?

There you have it.  Three lawyers.  Three very good opinions.  Don't you LOVE the law?

Despite Writers' Last Minute Concession for Federal Mediator, Well-Funded Strike Enters Day Two

(Jay Leno who says "no writers, no show" -- photo from Yahoo Entertainment)

This very local news on the Writers' Guild strike is just in from the U.K. -- Writers Block Hollywood as Strike Takes TV Shows Off the Air (excerpt below, and kudos for yet another unknown artist of the terse and witty headline). 

On Sunday, a federal mediator made a last big push to avert the strike. The Writers Guild made one big eleventh-hour concession, dropping its insistence on a doubling of royalties from DVD sales but that was not matched by anything substantial enough from the producers to clinch a deal.

After three months of contract negotiations, which never entirely looked like producing an agreement, both sides are extraordinarily well prepared. The writers have commandeered 300 strike captains on both coasts who will direct pickets and other protests, and have amassed a strike fund of about $12.5m (£7m)which they will farm out in the form of loans to the neediest writers and their families.

In the meantime, you can see Jay Leno and Julia-Louise Dreyfus on the picket line (see TV Squad here on Leno handing out Krispy Kremes to strikers) down the street here in front of the famous Paramount Studio Gate if you click on the L.A. Legal Pad's coverage of the strike which links to a Channel 2 newscast featuring those well-known comedians.

We'd love to hear from any of our readers who have experience negotiating labor disputes. 

 Jim Stott in Gig Harbor, Washington?  We mean you Big Guy! 

More Statistics on the Differences between Arbitration and Litigation Procedures, Cost, Duration and Outcome

(photo:  Amanda Graham's Outlier)

I have Christina Doucet at the National Arbitration Forum to thank for summarizing some of the most recent statistical literature available on differences between procedure, cost, duration, outcome and party satisfaction of litigated and arbitrated consumer and employee disputes.

Time and Cost Differences Between Arbitration and Litigation

  • Employment claims take 650 to 720 days to be resolved in court, according to the National Center for State Courts. 
  • The median time to resolve an employee dispute by arbitration is 104 days 
  • the median cost of resolving employment disputes by arbitration is $870.

Sources: Consumer and Employment Arbitration in California: A Review of Website Data Posted Pursuant to Section 1281.96 of the Code of Civil Procedure California Dispute Resolution Institute, August 2004 http://www.mediate.com/cdri/cdri_print_Aug_6.pdf   and Examining the Work of State Courts, (1999-2000) National Center for State Courts http://www.ncsconline.org/D_Research/csp/1999-2000_Files/1999-2000_Tort-Contract_Section.pdf

Outcome Differences Between Arbitration and Litigation:  Arbitration & litigation final awards are essentially the same as court judgments

  • median monetary awards for successful claimants are greater in arbitration than in court—$100,000 in arbitration compared with $95,554 in court.

Continue Reading...

Settle It Now Awards Diversity of the Year Honor to Heller Ehrman

I have heard from a "diverse attorney legal search firm" about this post (see comment below). 

Though this post was and is meant to be tongue-in-cheek and although the presence of under-represented "minorities" (including women) in law firm practice is a very serious subject, I note from a survey posted on Mr. Jordan's web site here  that Heller earned a "B" on its African American Greenlining Associate "Report Card." 

(above:  diversity and rocket science)

I'm certain my husband's law firm, Heller Ehrman, won't care that I've just now invented and awarded to Heller, Settle It Now's Diversity of the Year Award.

Heller does care however that the Human Rights Campaign has bestowed upon it the HRC's top rating for the second year in a row.  Heller's announcement below:

Heller Receives Top Diversity Rating For Second Year in a Row

(SAN FRANCISCO) September 18, 2007 – Heller Ehrman LLP announced that the firm has achieved the top rating in the Human Rights Campaign’s (HRC) Corporate Equality Index.

Now in its sixth year, the survey is an annual listing that measures how equitably companies are treating their gay, lesbian, bisexual and transgender (GLBT) employees, consumers and investors. Heller Ehrman was among 195 major U.S.-based companies, 30 of which were law firms, earning a rating of 100 percent. This is the second consecutive year the firm has achieved a 100 percent rating.

“We take very seriously our long-standing commitment to promoting a work environment that celebrates the diversity of all individuals,” said Judith C. Miles, managing director of people at Heller Ehrman. “We are very proud to earn this recognition from the Human Rights Campaign for the second year in a row.”

The Index was released today by the HRC as part of a report showing that a record number of the largest U.S. companies are expanding benefits and protections for their GLBT employees and consumers. The number of companies achieving a 100 percent rating is up from 138 in 2006. When the index was first released in 2002, only 13 companies, employing 690,000 workers, received the top rating. For a copy of the Index and HRC’s report, visit www.hrc.org/cei.

“More businesses than ever before have recognized the value of a diverse and dedicated workforce,” said Human Rights Campaign President Joe Solmonese. “More importantly, these employers understand that discrimination against GLBT workers will ultimately hurt their ability to compete in the global marketplace.”

The 2007 analysis covers 519 surveyed companies and measures the extent to which employers protect their GLBT employees. The Index rated companies on a scale of 0 to 100 percent on several factors, including non-discrimination policies, diversity training and benefits for domestic partners and transgender employees. . . . .

The firm has also played a major role in litigation concerning the GLBT community. For example:

    • Heller Ehrman represented law schools and law professors in bringing a challenge to the constitutionality of the Solomon Amendment, which threatens universities and colleges with loss of all federal funds if they exclude military recruiters from campus or refuse to assist them in their recruiting efforts. Heller Ehrman was lead counsel when the case was argued before the U.S. Supreme Court.
    • Heller Ehrman has been involved in a nationwide effort in supporting same-sex marriage with litigation in California, Washington and New York. Cases in California and New York relate to the same-sex marriages performed by Gavin Newsom, the Mayor of San Francisco, and Jason West, the Mayor of New Paltz, New York. In Washington state Heller Ehrman wrote an amicus brief on behalf of a group of historians in the same-sex marriage case, Andersen v. King County.
    • Heller Ehrman brought a class action lawsuit against a telecommunications company challenging the company’s anti-gay employment policies and practices that had been in place since 1970. A landmark settlement of the case resulted in significant monetary compensation for class members and changes in the employment practices at issue.

CONGRATULATIONS HELLER. 

I'm pretty sure I have some old Hellerware -- t-shirts, flip flops, beach bags, polo shirts, hoodies and the like that I can bronze for formal presentation of the Settle It Now Diversity of the Year Award. 

Stay tuned!


More Advice for FirstYear Associates: Summary Judgment Motions

Because it's the beginning of the new "school" year and the beginning of many first year attorneys' first law jobs, I'm providing as much advice as possible to help ease former law students into their new professional careers.

EMPATHIC ASIDE:  If you're feeling like EVERYTHING is taking you WAY too long, I share with you the fact that my own first two weeks of practice were consumed by 10-hour days drafting a simple motion to amend a complaint on the eve of trial -- a motion that, two years later, I could draft in my sleep. 

Fear not.  We've all been first year's and we all understand.  If your superior doesn't, you might wish to remind him that though you're one of the hardest working new associates in rock 'n roll, you are doing for the first time tasks he's been doing for a lifetime.  

THE GOOD ADVICE 

Today I bring you good advice on writing summary judgment motions from a series of posts on that topic by a defense employment litigator, George Lenard, with the St. Louis, Missouri firm of Harris, Dowell, Fisher and Harris.   The blog entry is from George's Employment Blawg and it covers the practicalities of strategically planning for, preparing, and drafting summary judgment motions.

The only thoughts I have to add to George's are deposition-related since I teach deposition skills to young lawyers once or twice a year and hence am always thinking about their questions and challenges.  

The winning summary judgment motion is the foremost reason that you need to make a clear factual record containing party admissions in the depositions that you take.

  • too many attorneys of all levels of experience treat the deposition as purely a discovery device, thereby losing the true benefit of this "discovery" procedure, i.e., it is often your sole opportunity to obtain the admissions necessary to prevail before trial.
  • how do you get a clear admission?  PLANNING, PLANNING, PLANNING
    • you need to know what you need the witness to say to prevail in the summary judgment motion before you take the deposition
    • you must therefore have done the necessary prep work on the summary judgment motion before taking the deposition
    • once you know what you need the witness to say, you must "set him up" to say it. 
    • how do you do that?
      • learn how to use documents skillfully to elicit admissions -- this requires not only ease with authenticating and establishing the business records exception to the hearsay rule for those documents but also . . . .
      • the ability to ask leading cross-examination questions (one question, one fact) about those documents
        • i.e., this is the employment agreement you signed, correct?  that's  your signature at the bottom, is it not?  your signature indicates that you read and understood the terms of this employment agreement  at the time you signed it, correct? (directing the witness' attention to the relevant clause).  You were telling the truth when you signed your name there, correct?  You had in fact read and understood the agreements terms, isn't that so?  Turning to paragraph 6, yes, please do take all the time you need to read it.  Have you read all of paragraph 6?  O.K.  You read and understood this paragraph when you signed the agreement, isn't that right?  And this paragraph provides that, quote, employee agrees that his employment can be terminated for any or no reason at any time unquote.  That's one of the terms you agreed to correct?
      • then, of course, you'll have to move on to the "meat" of the case, which generally requires you to counter the assertion that the "at will" provisions of the employment agreement are irrelevant because the employee was fired for whistle blowing, or left her company's employ because of a hostile environment or in respone to sexual harassment. 
      • this, of course, is trickier and more difficult but you must plan a line of cross-examination with the goal of eliciting the admissions you need to prevail on a summary judgment motion in an extremely fact intensive area of the law.

Once again, I remind my readers that favorable negotiated settlements often depend far more upon the credible threat you present to your opponent than any of your own negotiating skills or those of your mediator.  There are many techniques for successfully bargaining from a position of weakness.  We will be writing about those techniques over the next few weeks. But we'd really rather see you bargaining from a position of strength, which is why we're providing these first-year  tutorials on building the best factual and legal case at the earliest possible opportunity to speed your client to its probable sole litigation destination -- settlement.

C'MON, BE A REAL LAWYER:  USE THE WITNESS' DOCUMENTS AGAINST HIM IN DEPOSITION

And here's more on using a witness' documents against him.  This is cross-examination at its finest -- the witness either admits the damning "spin" in the "testimony" being given by the cross-examiner or he looks evasive at best, like a liar at worst.  This cross-examination from one of the Vioxx trials is from the Illinois Trial Practice Blog care of this week's Blawg Review (the Labor Day Special Historical Edition). 

SPEAKING OF THE VIOXX TRIALS .... my good friend and colleague Judge Victoria Chaney of the Los Angeles Complex Court who presided over the first Los Angeles Vioxx trial will be speaking with me, Judge Alexander Williams, III (full time Superior Court settlement Judge), arbitrator and mediator Jay McCauley (formerly of Paul, Hastings), the Hon. John Leo Wanger, Ret. (former U.S. Magistrate and fomer partner at Irell & Manella) and registered patent attorney and arbitrator-mediator, Les Weinstein of Sheldon Mack and the AAA here in Los Angeles on November 13 -- Settlement Techniques that Give You the Winning Edge.

 

POINT-COUNTERPOINT: ADR PROS AND CONS

It's not too late to join us and ALFA International for its Labor & Employment Practice Group Seminar entitled "Employer of the Year" or "the Office":  Which One Are You? at the Half Moon Bay Ritz-Carlton on October 3-5, 2007.

HOW COULD YOU RESIST? (photo:  Half Moon Bay Ritz-Carlton at right)

I'll be speaking with Joshua Frank, Senior Legal Counsel to DHL (moderated by James M. Peterson of San Diego's Higgs, Fletcher & Mack, LLP) on the Pro's and Con's of Employment Arbitration

You'll have to get up early for this one -- it's scheduled from 8:45-10:00 a.m. on October 3 -- but we promise you a lively debate and fresh perspectives on an issue that might make corporate and litigation counsel want to rip those arbitration clauses out of their and their clients' employment agreements.  Then again, you might just decide to rewrite those ADR Clauses altogether so that you get the best possible dispute resolution mechanism for your and your clients' work-force. 

Either way, the time is ripe for reconsidering and revising the way in which you and your clients handle disputes with their employees.

JOIN US!! 

 

Five Ways to Avoid Litigation from Justin Patten

(photo:  Fighting Cats by Nikographer Jon)

From UK Mediator Justin Patten's (Human Law Blog) useful new e-mail newsletter and well-established blog -- 5 ways to avoid costly litigation, summarized below and linked here.  

1 Think carefully about the type of people that you do business with.

2 Be the kind of organisation which does not create disputes.

3 Seek to communicate effectively and consistently.

4 Have management trained to face up to the dispute. 

5 Have plain English and not too onerous legal terms.


For more details about Justin's mediation services, tailored mediation training or lunch time briefing sessions, call him at 01920 462202 or email Justin at  advice@human-law.co.uk

The Pitch

Justin Patten is an Accredited Mediator with the Academy of Experts who has advised in many workplace disputes. As a qualified solicitor he has also acted for clients on a wide range of employment disputes and is fully familiar with the legal process. Over the last 18 months he has elected to specialise in mediation, providing a full mediation service direct to businesses and via law firms, as well as providing practical mediation training. 

9th Circuit: "No" to O'Melveny Dispute Resolution Plan

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When it comes to employment arbitration agreements, it seems like the more bases you try to cover, the less likely a Court is to enforce them.    

Even the highly respected Los Angeles-based international law firm of O'Melveny & Myers has proved itself unable to draft an employment arbitration agreement that satisfies California's procedural and substantive conscionability requirements.    

Just today, the Ninth Circuit Court of Appeal in Davis v. O'Melveny & Myers  held that the law firm's attempt to impose an arbitration agreement upon existing employees with a three-month notice period was both procedurally and substantively unconscionable.  (For a criticism of the opinion, click here).

In finding that O'Melveny's attempted imposition of the agreement on its employees was procedurally unconscionable, the Court stressed the firm's "overwhelming bargaining power" and the "take-it-or-leave-it" basis upon which the agreement was proffered.  Although the Court distinguished provisions that might permit an employee to negotiate a different deal, given its characterization of  O'Melveny's bargaining power, we don't imagine this Court would have read such a clause as anything other than illusory.      

As the Ninth Circuit stressed, however, a procedurally unconscionable agreement must be "analyzed in proportion to evidence of substantive unconscionability."  It thereupon went on to find four provisions substantively unconscionable:  the “notice,” confidentiality and, “business justification” provisions, as well as the limitation on initiation of administrative actions.

The challenged notice provision required the aggrieved employee to "give . . . notice of a Claim [within the year it arose] along with a demand for mediation" or it would be "lost forever."  Quoting Richards v. CH2M Hill, Inc., the Court held this provision substantively unconscionable because it would deprive the employee of the right to assert the "continuing violation doctrine available in FEHA suits" a benefit that flows only to the employer.  

The challenged confidentiality provision -- prohibiting mention of the mediation or arbitration "to anyone not directly involved" - was also found to be unduly favorable O'Melveny.  As the Court explained:

Such restrictions would prevent an employee from contacting other employees to assist in litigating (or arbitrating) an employee’s case. An inability to mention even the existence of a claim to current or former O’Melveny employees would handicap if not stifle an employee’s ability to investigate and engage in discovery. The restrictions would also place O’Melveny “in a far superior legal posture” by preventing plaintiffs from accessing precedent while allowing O’Melveny to learn how to negotiate and litigate its contracts in the future. Id. Strict confidentiality of all “pleadings, papers, orders, hearings, trials, or awards in the arbitration” could also prevent others from building cases. . . It might even chill enforcement  of Cal. Labor Code § 232.5, which forbids employers from keeping employees from disclosing certain “working conditions” and from retaliating against employees who do so.

The challenged exemption for alleged breaches of  confidentiality was also found to be unenforceable.  "As written," held the Court, the provision permitting a "non-mutual exception allowing [O'Melveny] a judicial remedy to protect confidential information" was “one-sided and thus substantively unconscionable.” 

Finally, the Court held that the agreement's preclusion of employee complaints to agencies charged with the well-being of California's citizens such as the Department of Labor, was contrary to public policy and therefore substantively unconscionable as a matter of law.  

There you have it.  One of the best law firms in the country was unable to draft an employment arbitration agreement that could pass public policy muster.  

Would anyone else like to give it a try?

Mysterious Metallic Ball Falls from Space into Paris Hilton's Lap

 

OK, so the part about Paris Hilton was pure tabloid (sorry, Paris, just kidding) but look! the mysterious metallic ball part is true!  Though like most headline-catching mysteries, not all that interesting after you get past the excited utterance.

Justice, however, should be neither hype nor mystery.

There are only two days left for you to take the Negotiation Justice survey here.

Litigators:  tell your mediators what protections and benefits you're looking for in a mediation.

Mediators:  ask your lawyer friends to take the survey.

And, oh yes, the people whose disputes we resolve.  Clients.  Yes, that's you.  The people who hire lawyers.  Tell us all what it is you're really looking for.  We promise we'll undertake a great effort to serve you better.

Preview from the Justice Survey     

If you had to choose, would you prefer to lose in a fair process or win in an unfair process?

Win even if the process was unfair 54%

Lose so long as the process was fair 46%

Agree?  Disagree?  Take the survey and let us know!

The Wages of Mediation Coercion in Title VII Cases