Southern California Arbitration Mediation and Conflict Resolution : Settle it Now Dispute Resolution Services : Serving Los Angeles, Beverly Hills, Century City : Settle It Now Negotiation Blog

Although a California Court may properly sanction a non-party insurance carrier who possesses the authority to settle litigation for its failure to participate in a mandatory settlement conference, there is no statutory (nor inherent) authority given the Court to sanction the carrier or a party for its purported failure to negotiate in "good faith."  As the Court in Vidrio v. Hernandez (2d DCA) explained today:

In sum, even were we to agree with the trial court's assessment of the conduct of counsel and the [insurance] adjuster, the failure to increase a settlement offer or to otherwise participate meaningfully in settlement negotiations violates no rule of court and is not a proper basis for an award of sanctions.11 (See, e.g., Triplett v. Farmers Ins. Exchange (1994) 24 Cal.App.4th 1415, 1424 [“[w]e eschew any notion that a court may effectively force an unwilling party to settle by raising the specter of a post hoc determination that failure to do so will be evidence of failure to participate in good faith”]; Sigala v. Anaheim City School Dist., supra, 15 Cal.App.4th at p. 669 [“„[a] court may not compel a litigant to settle a case, but it may direct him to engage personally in settlement negotiations, provided the conditions for such negotiations are otherwise reasonable‟”].) [Defendant] filed an appropriate settlement conference statement; her lawyer and Mercury [the insurance carrier] attended the conference and participated in it. While the trial court‟s frustration at the parties‟ lack of movement is understandable, no more was required.
 

In particular, the Court of Appeal, held that the Court was not at liberty to "judge" whether the defendant and its carrier "should have" offered more than had previously been offered at a mediation either because the case was "worth" more or because the offer was so low in light of the attorneys fees and costs that would likely be incurred at trial.

I believe most mediators would approve of this ruling, even though it applies only to settlement conferences and not to mediations, the latter of which is protected from the Court's inquiry by Evidence Code section 1119.  Whether or not a mediator, a settlement judge, a party or a trial judge believes a defendant "should" offer more or a plaintiff "should" accept less by way of settlement, should not form the basis of an award of sanctions.  Not only would such a rule decrease citizens' trust and respect for the Courts, whose job it presumably is to provide a forum in which litigated disputes may be tried, such a rule would impermissibly chill the parties' Constitutional right to a jury trial.  

 

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Interviews with ADR giants: Mediate.com opens video archive for month of April

Posted by: Diane Levin in Cool Things on the Web, Mediation, Mediation in Practice

Mediate.com, the world’s premier source for news, information, and articles about mediation, has opened its video archive to the public during the month of April.

For description of the type of videos available, run right over to Diane Levin's blog by clicking on the title up top.

Thanks Diane for getting the word out about this.

For a taste of some of the offerings, watch this short video of Ken Cloke talking to Robert Benjamin about the evolution of conflict  over the lifetime of an individual as well as over the lifetime of a civilization.

Cloke is my mentor and his insights are just as useful to the settlement of commercial litigation than are some of the competitive negotiation skills I've learned along the way.  Check out all of Ken's videos.

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Are mediators being hook-winked by clients who create artificial impasses for the purpose of procuring a favorable mediator's proposal?  Does the mediator's recommendation carry so much weight that the parties are subject to a manipulated mediator's proffer?  Does the mediator become just a tool of a party bent on flim-flam?   Or is all distributive bargaining flim-flam?

Check out John DeGroote's in-house point of view over at Settlement Perspectives and leave a comment.  I've already left two there myself.

I understand some lawyers are settling all their cases with mediators' proposals.  Why is that?  Are they savvier than their colleagues?  Or do they just need the authority of the mediator to "sell" settlement to their clients?

Jump in here or over at John's place.  Whether you're a mediator, a litigator, or a client, we'd both appreciate your fresh ideas. 

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From the Los Angeles Daily Journal

November 21, 2008

CONFIDENTIALITY QUESTION HEADED BACK TO TRIAL COURT  By Greg Katz

LOS ANGELES - The state Supreme Court has denied review of an appellate decision that had become a cause celebre for mediators concerned about confidentiality precedents.

Instead, the case will head back for a new trial that includes a dispute over whether a hand-drawn chart, created in a probate mediation and initialed dozens of times by the parties, should have been admissible as evidence.

 A trial court had said that it was not, but the 2nd District Court of Appeal overturned the decision, saying it was in effect a settlement agreement and admissible under Evidence Code Section 1123(c). Thottam v. Thottam, B196933 and B196934 (Cal App. 2nd Dist., filed Sept. 3, 2008).

Many mediators expressed concern that the appellate ruling hurts mediation confidentiality by making draft documents admissible, and the case drew amicus letters from pro-ADR lobbying group California Dispute Resolution Council and others.

But the high court Wednesday denied review. 

Tyna Orren, who won the appeal for Los Angeles-based attorney and political activist Peter Thottam, said she was happy but unsurprised that the court didn't take up the case. 

"The reason mediators don't need to be concerned is that the opinion now tells them precisely what they need to do to avoid what happened in Thottam. Nobody should sign anything which leaves an opening for anything to be divulged," she said.

The 2nd District panel reasoned that the document appeared to be a settlement agreement, and that the parties had signed a premediation agreement allowing for the admissibility of mediation evidence that supported any agreements reached. That qualified the document for an exception in mediation confidentiality statutes.

"Whether or not the document contained all necessary details for enforcement, it certainly contained adequate manifestation of mutual consent to material terms which were capable of being made certain," making it a settlement agreement, Presiding Justice Norman L. Epstein wrote for the unanimous panel.

Justices Thomas L. Wilhite Jr. and Steven C. Suzukawa joined in the opinion.

Beverly Hills-based mediator Victoria Pynchon, who closely followed the case, said it was more about interpretation of the mediation agreement than about confidentiality, that the Supreme Court has vigorously defended the state's confidentiality laws in the past.

Attorneys should rely strictly on those laws when drafting mediation agreements, she said. "Just quote the statute or refer to the statute. Don't get fancy."

Stephen L. Kaplan of Laguna Niguel's Hicks, Mims, Kaplan & Burns, who had petitioned for review, said he was disappointed but expected that the new trial would go in favor of his clients, as the first one had.

The only difference: "There'll be one more piece of evidence," Kaplan said.

greg_katz@dailyjournal.com

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See the Complaint here.

h/t to @taxgirl

As the ABA Journal explains:

A law firm contends new Louisiana lawyer advertising rules slated to take effect in April will restrict its right to comment on Twitter, Facebook, online bulletin boards and blogs.

The Wolfe Law Group filed a federal suit today challenging the rules, claiming they would subject each of the firm’s online posts to an evaluation and a $175 fee, according to a press release. The construction law firm says in the suit that its own blog may qualify for an exemption for law firm websites, but its comments on other blogs would not.

The firm claims the rules would restrict its First Amendment right to speak freely about its trade. To make its point, the law firm has launched a blog called Blogging is Speaking.

Sometimes your business or professional negotiation has to take place in Court.  This is an example.

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Some attorneys and mediators make light of the power of the apology ("it's only about money").  My education, training and experience consistently suggest otherwise.

Today, we learn a lesson in heart-felt apology from Larry Bodine for a post I hadn't seen, but which Bodine himself admits was anti-Semitic.

"Elevator Pitch" Post Deleted I sincerely apologize for the crude and offensive "Elevator Pitch" post I put online last week.  In the clear light of morning, it is clear that it was anti-Semitic and repellent.  I want to thank all the people who commented and called me about it; I listened and took what you said to heart.

If you read on here you'll see that Bodine did not simply say "I'm sorry."  He removed the admittedly offensive post; disowned it; and, empathized with those who found it offensive by sharing his own family's WWII imprisonment story.

As my Second Track International Diplomacy Professor Brian Cox has written in his book Faith-Based Reconciliation

Words that heal include expressions of caring, concern, gratitude and affirmation.  [I]n demolishing the walls of hostility, we must be prepared to examine our own pattern of spoken words and embrace the practice of ethical speech. . . .

Because Bodine himself admitted the anti-Semitic nature of his post, it falls into the category of an identity-based conflict with some or all of his readers.  Though speaking from a religious or "faith-based" viewpoint, I always found Cox' prescriptions for resolution to work equally well from the point of view of secular humanism.  As Cox explains:

A faith-based reconciliation framework applied to an identity-based conflict . . . consists of six basic elements:  imparting moral vision, building bridges between estranged groups, a peace accord, advocacy for social justice, political forgiveness, and healing deep collective wounds.

More particularly, Cox recommends the following specific steps:

1.  Sharing life journeys and building common ground.

2.  Sharing perceptions of the conflict.

3.  Engaging in problem solving.

4.  Sharing how one has caused offense to the other.

5.  Exploring each community's narrative of history and perception of historical wounds.

If you read Bodine's spontaneous apology, you will see all of these elements contained in it.  This is not surprising because apology and attempts to re-build interpersonal bridges are hard-wired into us as toddlers.  As I wrote in "Shame by Any Other Name,"

Shame . . .  "acts as a powerful modulator of interpersonal relatedness and . . . ruptures the dynamic attachment bond between individuals." 30  When an individual has broken this bond, he wishes to recapture the relationship as it existed before it turned problematic. 31 Toddlers shamed by their mothers, for instance, naturally initiate appeals to repair the momentary break in the emotional bond resulting from the shame-inducing behavior. 32 This process is called self-righting. 33 It is natural and universal. 34 The shamed toddler reflexively looks up at and reaches toward his mother. 35 Even a preverbal child will spontaneously express this need to be held in an attempt to reaffirm both self and the ruptured relationship, to feel restored and secure. 36

A healthy and responsive mother accepts and assuages the child's painful feelings of shame, enabling the toddler to return to a normal emotional state, one in which love and trust are ascendant. 37 If the caregiver is "sensitive, responsive, and emotionally approachable," especially if she uses soothing sounds, gaze and touch, mother and child are "psychobiologically reattuned," the "interpersonal bridge" is rebuilt, the "attachment bond" is reconnected, and the experience of shame is regulated to a tolerable emotional state. 38

This may all seem excessively academic.  The point is that we all trespass on the feelings of others; those feelings are critical to our connection with one another; our connection with one another is fundamental to our individual well-being and our survival as a species; the urge toward reconciliation is therefore natural, as are our desire to be forgiven, our spontaneous expressions of remorse, our attempt to explain and normalize our bad behavior (we are all fallible and we have all suffered harm)  and our fellows' willingness to forgive, particularly when we bare ourselves and our histories to one another in the course of our effort to re-establish what joins us and to move beyond that which divides us. 

And for that lesson, we owe thanks to Larry Bodine this evening.

 

 

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John DeGroote of Settlement Perspectives soon to appear at Mediate.com Featured Blogs.  The missing link between mediators and litigators. 

The client!!

Now we just need a blogging claims adjuster and we can bring peace to the Middle East.

Below are John's impressive credentials.  We meant to meet for a "quick" cup of coffee.  We talked negotiation strategy and tactics for nearly three hours.

As I review websites I often wonder about the experiences of the authors and the biases they bring, so I feel I should disclose mine for those who want to know more. I have been fortunate to work with two “hands on” in-house legal teams, with settlement negotiations handled primarily by employed lawyers rather than their law firms. I am also lucky to have practiced in law firms with true trial lawyers who generated genuine negotiating leverage whether settlement was their objective or not. Through these experiences I have settled cases threatened, pending or mediated in about 20 states - from Montana to Florida and from New Hampshire to California - and have managed the resolution of disputes around the world. Working with and against some very good lawyers and employing some of the truly legendary mediators, I feel fortunate to have seen a real cross-section of styles and approaches. In almost all of these cases I have had the opportunity to work behind closed doors with the people who really decide when cases settle - CEOs, CFOs, General Counsel, COOs, individual plaintiffs, insurers, board members, auditors, and more.

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I note today that yesterday's post was . . . . well . . . a little snippy.  

Now that I've managed to get my hands on a copy of Professor Murray's article on the privitization of justice (which I'll post as soon as someone gives me permission to do so) I have a few more observations that are more nuanced than my first reaction.

First, I note that much of Professor Murray's article focuses on arbitration agreements that are forced down the throats of consumers -- an injustice that is so far removed from one that might arise in a mediated settlement conference that I'd like to address it separately on another day.  

Second, I am not without criticism of court-annexed mediation practices -- those criticisms populate this blog in great number.  Nor am I naive or inexperienced enough to pretend that mediators do not effect party decisions even when they are represented by attorneys who are presumably mediation- and mediator-savvy.     

Nevertheless, re-reading Professor Murray's criticisms of mediation this morning, I am once again stuck by the number of untested assumptions upon which he bases his pretty radical suggestion that mediated settlement agreements be vetted by judicial officers. The major and minor premises of Professor Murray's accusation that mediation corrupts justice include the following:

• there is only one set of "powerful repeat players" -- insurance companies -- who choose and use the services of mediators;
• the other set of repeat players -- plaintiffs' personal injury and employment counsel -- are more or less universally poorly equipped to either influence the mediator or to protect their clients from mediator bias;
• the easily influenced plaintiffs' bar, if not protected from mediator bias, will counsel their clients to voluntarily enter into sub-optimal settlement agreements that favor the interests of insurance carriers over those of their own clients';
• there is such a thing as an "objectively bad settlement" that a judicial officer would be  equipped to detect and remedy; 
• money paid to a "neutral" is the only pernicious influence on dispute outcome, as opposed to, say, racial, nationality, gender, and/or any other socio-economic differences between a judicial officer and a litigant or between the jury and a litigant; and,
• judicial officers are not subject to the influence of the repeat attorney-players who appear before them and socialize with them at Bar Association and other events.

Of all of the assumptions requiring testing before we impose a supervisory judiciary upon mediators, the premise that an objective, measureably "reasonable" settlement of any dispute exists is the one that most requires addressing.  

Because I could write a book on this topic, let me just highlight some of the factors that would make third-party vetting of mediated settlement agreements difficult to impossible. 

• money is not the only reason people file suit nor the only basis for their decision to settle it;
• whether the litigation at issue is a $2500 slip and fall action between a local grocery store and its customer; or a billion dollar insurance coverage dispute between an insurance carrier and an oil company, the people and commercial players involved are at least as -- if not more -- concerned with injustices that the law does not address as they are with those that it can address;
• though mediated settlement agreements are partially based upon the cost of further litigation and trial, on the one hand, and the probability of victory times the potential jury verdict on the other hand, they are also based on party needs, desires and fears that have nothing whatsoever to do with legal causes of action such as:
  • a corporation's fear that it will not be able to overcome jury bias against commercial enterprises, particularly if that enterprise is engaged in providing liability and/or property damage insurance to its customers;
  • the fear of individuals that they will not be able to overcome jury bias against any marker of their marginalization from the dominant culture such as color, gender, nationality, sexuality or religion;
  • the desire that one's opponent acknowledge responsibility for the role he/she/it played in the events giving rise to the dispute and for the actions taken to resolve it, many of which further inflame the parties' experience of injustice; 
  • party desires for revenge; and,
  • party tendencies to "read" and "spin" the dispute in a way that is favorable to him/her/it in all particulars -- misperceptions that are often corrected in the course of joint sessions between the parties who actually experienced the injury-causing event.

Examples of ways in which parties are able to resolve conflict in the context of their highly individual interests rather than the little buckets of rights and remedies into which we pour the facts of their dispute?

• a physician gives his consent to settle a malpractice action when he realizes that the Plaintiff is not attempting to "hold him up" but genuinely experienced the breast examination he gave her as an assault;
• the creditor agrees to settle for pennies on the dollar when convinced by evidence proffered during a confidential mediation session that the debtor would be bankrupted by any payment in excess of the offer (evidence not discoverable in litigation because it is not "relevant" to the causes of action alleged);
• garment manufacturers settle acrimonious copyright infringement litigation after their counsel allow them to have a confidential mediation conversation which cannot be used in court against them during which they learn that they have more in common -- and more ways to advantage one another economically -- than they have to fight about;
• a claims adjuster is brought to tears -- and seeks greater settlement authority -- by a father's frank confession in a confidential mediation conversation of the guilt he carries for the loss of his child in an automobile accident caused by the  high speed blow-out of an allegedly defective tire; and,
• family members not only settle their lawsuit but reconcile after years of self-imposed exile when they realize the "family" asset they've been fighting over is worth less to them than their love for one another. 

What I'd like Professor Murray and everyone who reads his article to understand is that we all share this justice problem.  The adjudication system is not working well for the people it was designed to serve.  The ADR options we've put in place to smooth out the rough edges of 18th century adversarial theory and practice are themselves insufficient to efficiently and fairly resolve 21st century conflicts.      

That's why I'm calling for a LegalTED Conference.  And if Professor Murray will forgive the snippiness of yesterday's post, I'd like him to be one of the members of  the Steering Committee.

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Let's be clear about one thing.  Mediators are not human Switzerlands. 

We have opinions, often strong ones, about issues like the rule of law in America, negotiated resolutions to intractable conflicts, the proper role of force against another sovereign nation and whether torture is a tool Americans ought to be using in the name of national security.  

Because we mediators spend so much time listening to litigants' competing stories of right and wrong, I don't think I'm going out on a limb to say that we "get" the great gray expanses that separate fear from understanding, anger from compassion and "the truth" from one's subjective experience of it.

What motivated this post was a recent challenge to a mediator's "right" to express his political beliefs in a mediation forum.  "You're supposed to be neutral," said the challenger.  "It's wrong and unprofessional to express your political beliefs here."

As the Presidential election nears, I want to clarify my own views on mediation neutrality, particularly my belief that we mediators do and should leave our neutrality when we close the mediation room door. Neither I, nor this blog, is "neutral" about the upcoming election.  I am actively campaigning to elect Barack Obama because I believe he is best suited to withdraw our troops from Iraq, reconcile ourselves with the world community, respond to conflict as a negotiator rather than as a conquerer would, and restore the damage done by the Bush administration to the rule of law in America.  If I cannot say this because I am fearful of offending some of my readers or concerned that some potential clients will choose not to use my services, I would count myself unworthy of the freedoms fought for by those who came before us.    

What it Means to Be an ADR "Neutral"   

Though there is disagreement among scholars about the precise nature of "mediation neutrality," a recent article on the subject at BeyondIntractability.com expresses my own view.  That article quotes negotiation gurus Kevin Gibson, Leigh Thompson, and Max Bazerman on the three distinct types of neutrality that mediators can and do practice.    

• Neutrality as impartiality, which holds that the mediator should be free of bias and should set aside his or her opinions, feelings, and agendas;

• Neutrality as equidistance, which focuses on the idea that mediators should try to give equal consideration to each side; and, 

• Neutrality as a practice in discourse.

These theorists believe, as do I, that it is part of a mediator's job to assist the parties in framing the problems and to lend guidance in expressing their tales of injustice to one another.   The mediator, say these scholars,  

gives each side a chance to talk about their positions and concerns, and then reframes these issues in a more neutral way so that parties are more likely to listen to and understand the other side's viewpoint[, t]hne helps the parties . . . explore settlement options and to move toward a solution that all can agree on.

Neutrality from this viewpoint "means that the mediator who facilitates this discussion should not have an interest in advancing the goals and positions of any party involved." 

Leaving One's Neutrality at the Mediation Room Door 

To help people resolve conflict requires a mediator to develop certain ways of listening; particular ways of communicating; and, specific ways of thinking about the malleability of "objective reality" in our subjectively experienced lives.  The practice of mediation is also revelatory of the raw power of people's affiliative desires -- their persistent urge to reconcile differences and settle accounts.  

When I leave the mediation room, I remain a mediator in spirit -- one who has seen the value of negotiated resolutions over the useof brute force and the power of collaboration over deference to an authoritarian decision-maker. 

I cannot express my preference for  Barack Obama any better than my friend and mentor Ken Cloke did in the electronic pages of mediate.com this spring.  As he concluded,

[c]apable international diplomacy requires open and committed listening, informal problem solving, prejudice reduction, collaborative negotiation, public dialogue, mediation, arbitration, ombudsmen’s offices, conflict resolution initiatives, and a panoply of proactive, adequately-funded resources that can be brought to bear on any problem. Positive examples can be found in every successful mediation and collaborative negotiation. Ideally, peace-making should receive the lion’s share of our national budget, allowing us to train every diplomat, and international representative in the most advanced mediation skills, include mediation in every treaty, and form an international corps of conflict resolvers, capable of building conflict resolution capacity globally, including in the US.

As mediators, we need to recognize that we also are global citizens, and responsible by virtue of our knowledge and experience for helping to save the planet. We need to weigh in on the important issues of the day that directly touch on our expertise, including not just who we negotiate with, but how we negotiate and why. Without it, Obama and the perspective he represents may succumb to those who think patriotism requires war and the slaughter of innocents. The time to speak up is now.

In electing a new President to lead us into a productive future, I believe, as do many of my mediator friends and colleagues, that Barack Obama is the clear choice.  If our political future is important to us, we will not hesitate to publicly lend him our support.

 

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A lessee of commercial office space complains that the common areas are not being properly maintained. The local high school has just banned Catcher in the Rye. Again.  A prestigious law firm fires a first year associate because he refuses to remove his new “tongue stud.” These seemingly disparate disputes have one quite obvious but ill understood characteristic in common – they are all examples of unresolved conflicts that have ripened into discrete disputes.

Pretend for a moment that you never went to law school.  I know.  It's hard.  But give it a shot.

Lawyers (those other people who went to law school) are are trained to understand, manage and remedy all disputes, no matter however different they might be, in a single, highly controlled manner.  

To help their clients deal with the problems mentioned here, lawyers will read the lease; research the latest Supreme Court rulings ("Fuck the draft"); and, study the statutes. Once they understand the facts that are relevant to the law, they “think like lawyers.”

How do they do that?  "Think" like lawyers?

First, they subject the facts and the law to as much scrutiny as any idea can bear before it disintegrates into the dust of first principles. They create a chronology of events, highlighting and tailoring the "story" of the conflict that "fits" the available "causes of action" giving rise to "rights" in their client, obligations in their "opponent" and remedies for the harm suffered.  

This "legal" dispute was once about a relationship between people.   Now it is an "actionable" claim in an extremely controlled process in which one of the parties will "win." 

That, of course, rarely happens because the legal system has become too expensive and the law too uncertain for most people to risk what used to be it's goal -- a jury trial.  

Lawyers recognize frivolous or baseless or "defendable" claims by observing just how uncomfortably the “facts” sit inside their opponent's “causes of action.” When called upon to justify their entitlement to get their client's claim before a jury (demurrers, motions for judgment on the pleadings, summary judgment motions, non-suits) the Plaintiff's attorneys can and will simply change the way the story is told.  They make the facts fit the law.  There's nothing wrong with that.  That's their job.  If the facts won't "fit" the law, lawyers apply themselves to the law's creative expansion. 

What attorneys do not learn in law school is how and why conflict develops into a dispute and then predictably evolves, usually getting more acrimonious and difficult to resolve.

My friends who are lawyers (I never went to law school, remember? and neither did you) tell me that they know how to escalate conflict but not how to de-escalate it.  They also tell me that they see a lot of injustice.  Sometimes the injustice arises because the laws themselves are unjust.  Sometimes the tragic and unfair consequences of human interactions just don't have any legal remedy.  And sometimes the legal process itself makes disputes worse -- more protracted, frustrating and expensive -- rather than better.  

In common law countries, like ours, where the law is forged in the fire of conflict, shouldn't attorneys be taught not only how to "win the case" but also how to dampen the flame?  Most litigators I know would respond with a resounding "no!"   

Conflict resolution that is not "handled" as litigation or arbitration is for some other professional to deal with.  Therapists come to mind.  Don't they help the parties deal with that most uncontrollable aspect of any dispute -- something not only lawyers but the law itself exclude from the legal action?

 Feelings.  Not just sad or mad feelings.  But the type of feelings that make teenagers shoot other teenagers on the streets of Los Angeles.  Feelings of loss, tragically unfair outcomes, powerlessness, rage and despair.

The purpose of this post and the new thread that it is meant to begin?  To start something radical.

If you're not aware of what I'm about to tell you, you should be.

Once a year, 1000 people are invited to the TED Conference in Monterey, California, to exchange something of incalculable value: their ideas. TED's mission statement is as simple as it gets:  

TED is devoted to giving millions of knowledge-seekers around the globe direct access to the world's greatest thinkers and teachers.

You can cruise the jaw-dropping results here.

(image links to the Photography site of Lars Kirchhoff)

I was just talking to a friend over coffee the other day about how we're using 18th Century technology (the jury trial) to solve 21st Century problems.  

Here's the idea.  A legal TED Conference. 

If you'll look at what TED accomplishes, you'll know what I don't mean.  I don't mean a conference to trot out any new/old "ADR" ideas -- mediate this, arbitrate that, create new rules and forms for the lawyers to use. 

No.

I mean creating the highest level think tank we can to first envision and then implement a dispute resolution technology that incorporates what we've learned since we first enshrined the jury trial in our Constitution more than 200 years ago.

I have one man in mind -- Larry Lessig.  But surely there are others.  The first step would be to suggest names for the coordinating committee.

Why do I think of TED?  Because what it envisions cannot be accomplished.  It cannot even be envisioned.  It's a fool's errand.  One I'd be willing to spend the rest of my own life working on.

Would anyone care to join me?

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(image:  Le Silence O Redon)

In today's Daily Journal, reporter Greg Katz writes  that DESPITE RULES, NEUTRALS ARE RARELY BLAMED WHEN THEY MEDIATE AND TELL.

"What happens," asks Katz, "when a mediator is accused of breaking mediation confidentiality, the thing many mediators say is essential to their craft?"

The answer: probably nothing.

As Katz reports, the Simmons v. Ghaderi opinion that made mediation confidentiality iron-clad, arose from a mediation in which the neutral provided a sworn declaration to the Court reciting "details about [his attempt] to persuade Ghaderi to sign her consent," among other things.  

Ron Kelly, an architect of the state's confidentiality statutes, opined that the Declaration filed by the mediator in the Simmons case breached "Evidence Code Section 1121, which forbids mediators, in most instances, from reporting to the courts anything that takes place in their mediations."  Kelly concluded by saying,

If you were going to go after a mediator for malpractice, it seems like an open-and-shut case of violating the law would be a good start, don't you think?

Yes I do.  Yet local attorneys and mediators seem unconcerned.  Lucie Baron of ADR Services told Katz that her panel of neutrals had no policy on the matter because the mediators -- after all -- are attorneys and independent contractors to boot.  They don't, she noted, ask her for legal advice. 

Not a bad call on Baron's part.  But what about the neutrals? 

Their lack of attention to the spectre of "open-and-shut" malpractice litigation is perplexing.  Though the Simmons mediator could colorably claim that the law of confidentiality was unsettled at the time he submitted his declaration -- or that the factual scenario before him permitted the disclosures made -- in a post-Simmons environment, neutrals cannot be so sanguine.  Any disclosure of any communications during a mediation by the neutral would likely be actionable so long as it caused one of the litigants appreciable harm.     

When someone is unhappy with a result -- as too many litigants of mediated settlements are /* -- they search the field for people to blame. 

So far, mediators haven't been among the potential culprits.   

I wouldn't count on that situation lasting much longer.

_____________________

*/  More on this topic soon.

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I'm just back from a Judicate West retreat where we discussed the legal, practical and ethical issues of "neutrality."  So it is with no small amount of interest that I read Concurring Opinions provocative post I Trust NFL Officials More than I Do Federal Judges (h/t Quizlaw).  

Here's what Erik Lillquist has to say about the NFL official/federal judge comparative neutrality quotient:

My motivation for the title of the post is that I think NFL officials are actually better than judges on a number of these scores. For instance, NFL officials do not have the repeat-player problem. Furthermore, NFL officials are graded on all their calls, from every game, ensuring that the same calls are being made in all situations (and these days, they have to contend with the possibility of instant replay review on every call). And unlike federal judges and (to a certain extent) major league umpires, NFL officials are subject to the real possibility of termination for poor performance, something that cannot happen to Article III judges and rarely happens with major league umpires. As this LA Times article notes, between 2004 and 2007, there was actually more new Supreme Court justices than new (full-time, I assume) major league baseball umpires. In the NFL, on the other hand, turnover is more common. Because being a NFL official is so relentlessly competitive, the result is that (I think) NFL officials are more likely to get the call right than your typical judge (or umpire). 

To say neutrality is not precisely defined in mediation theory and practice is a vast understatement.    Consider these definitions of neutrality as reported in a "Knowledge Base Essay" on Neutrality at Beyond Intractability.

According to experienced mediator Robert Benjamin, neutral mediators:

• will not intervene in the substance of the dispute;
• are indifferent to clients' welfare;
• have no relationship with the parties outside of the mediation;
• will not attempt to alter perceived power balance differences;
• are disinterested in the outcome; and
• are unconcerned with the impact of the settlement on unrepresented parties. 

In contrast, Kevin Gibson, Leigh Thompson, and Max Bazerman (1996) identify three distinct conceptions of neutrality.

• Neutrality as impartiality, which holds that the mediator should be free of bias and should set aside his or her opinions, feelings, and agendas.
• Neutrality as equidistance, which focuses on the idea that mediators should try to give equal consideration to each side.
• Neutrality as a practice in discourse. Mediators are supposed to shape problems in ways that give all speakers a chance to tell their story in a way that does not contribute to their own de-legitimization or marginalization.
• The mediator gives each side a chance to talk about their positions and concerns, and then reframes these issues in a more neutral way so that parties are more likely to listen to and understand the other side's viewpoint. 
• Then the mediator helps the parties to explore settlement options and to move toward a solution that all can agree on. Neutrality means that the mediator who facilitates this discussion should not have an interest in advancing the goals and positions of any party involved.

Similarly, Rachel Field (2000) points out that the term 'neutrality' encompasses "issues such as

• a lack of interest in the outcome of the dispute,
• a lack of bias towards one of the parties,
• a lack of prior knowledge of the dispute and/or the parties,
• the absence of the mediator making a judgment about the parties and their dispute, and
• the idea that the mediator will be fair and even-handed." 

Thoughts from our readers?

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Big or small, litigation is never just about money.  Nor is settlement just about the strength of the parties legal positions or even the relevant facts.  Here, as reported by the Wall Street Journal Law Blog in Is It a Settlement? Wilson Pays Brocade to be Released From Backdating, its also about relationship and cooperation and respect.  Who knew?

So why would the S[pecial Litigation Committee] release [Wilson Sonsini] and Larry Sonsini? The SLC wrote that it weighed the opinion of a legal ethics expert as well as testimony and documents related to Sonsini and the firm’s roles at Brocade. It also listened to Sonsini and his firm’s “contentions that Brocade employees misled WSGR about stock-option grants” and that the firm had negotiated a good settlement with the SEC and helped avoid DOJ action against Brocade. The committee also considered the firm’s longstanding relationship with Brocade and the firm’s “willingness” to help the company resolve any “outstanding questions” about the backdating.

For the entire WSJ Law Blog post, click here.

Below -- Annie Lennox' Money Can't Buy It -- with a little Demi Moore Striptease for our gentlemen readers' mid-week enjoyment (with apologies to the puritanical and those who simply can't abide Demi Moore).

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There's been some salacious commentary (such as WAC's Like a Vixen) about Blawg Review # 171.  I just want to say to anyone who missed the sexual revolution -- on either side of the generation gap -- we're sorry to have started it all.  We just never really left high school.

We've also heard some complaints that the most recent Blawg Review is just too darn long.  In honor of our sister blog and those attorneys who are still billing 2400 hours/year, we give you the IP Executive Summary of the Virgin Blawg Review #171 below. 

Isaac Newton.  The Straight Dope thinks the virginity of this octogenerian scientist and mathematician is less surprising that the fact that the math gene somehow keeps perpetuating itself.   We consecrate Newton's virginity to this week's best IP and IT posts.  William ("I am virginal") Patry is asking questions about the government's engagement in copyright infringement  but it is  Patry's final blog post that we celebrate as a true virginal moment.  Pause here.  

My late mother, aleha ha-shalom, told me repeatedly that I had a religious obligation to learn every day, and I have honored her memory by doing exactly that. Learning also involves changing how you think about things; it doesn't only mean reinforcing the existing views you already have. In this respect, Second Circuit Judge Pierre Leval once said that the best way to know you have a mind is to change it, and I have tried to live by that wisdom too. There are positions I have taken in the past I no longer hold, and some that I continue to hold. I have tried to be honest with myself: if you are not genuinely honest with yourself, you can't learn, and if you worry about what others think of you, you will be living their version of your life and not yours.

Other IP bloggers have, of course, reflected on Patry's Final Blog Words here and here. 

Back in the worldly word, Patently O -- which promiscuously shares itself with millions of readers every year -- turns its pen over to David McGowan who discusses why we should not interpret the recent Quanta decision too broadly.  Lou Michels suggests we be the masters of our own domains, using the the recent San Francisco IT fiasco as a cautionary tale -- don't let a single person have control of all the keys to your kingdom.

 

We've heard tell that reading your iPhone has replaced the cigarette for post-coital bliss, in which case you'll be glad to hear Brett Trout at BlawgIT suggest that you might soon be watching television from that device.  Protection, protection, protection.  In a software license, boilerplate integration and non-reliance terms might not insulate a firm from claims based upon its salesfolks "over"promises.  Elsewhere, at least one IP Blogger wonders whether blog content licensing might be dying for lack of buyers? (people pay for Blog content while I give it away for free?????)

The IP Dispute of the Week, of course, is Hasbro's suit against Rajat and Jayant Agarwalla for their Facebook hit Scrabulous.  Scrabble itself was invented during the Depression by Alfred Mosher Butts, an out-of-work architect.  How did he do it?  As the New York Times explained in its review of Steve Fastis book, Word Freak (Zo. Qi. Doh. Hoo. Qursh) Scrabble's inventor assumed that the game would work best if the game letters  "appear[ed] in the same frequency as in the language itself."  So he

counted letters in The New York Times, The New York Herald Tribune and The Saturday Evening Post to calculate letter frequencies for various word lengths. Playing the game with his wife, Nina, and experimenting as he went along, Butts carefully worked out the size of the playing grid (225 squares, or 15 by 15), the number of tiles (100), point values for the letters, the placement of double- and triple-score squares, the distribution of vowels and consonants, and so on.

In response to the Hasbro lawsuit Ron Coleman at Likelihood of Confusion asks "How Many Points is Infringement?" -- one of those rare legal questions that actually has an answer rather than 20 more questions.     

If Player 1 opens with "fringe" (double word) for 24 points; Player 2 follows by slapping an "i" on the triple word score followed by an "n" for "infringe" and 33 points; and, Player 1 responds with "ment" for 19 points, the combined score for "infringement" is 75 points. Our readers can do the math and moves on "trademark" and copyright." 

On the matter of greater moment --  Will the ax fall on Scrabulous -- Jonathan Zittrain at The Future of the Internet answers his own question in the affirmative based on the name alone, opining that by calling it "rainbows and buttercups” instead of “Scrabulous” there’d be little claim of brand confusion but noting the "residual claim that the Scrabulous game board infringes the copyright held in the Scrabble game board."  More on Scrabulous and its replacement with Word Scraper at the Video Game Law Blog here. (Mr. Thrifty's and my first game of Word Scraper here!) 

Has anyone recently said God bless the best IP aggregator in the universe -- the IP Think Tank's Global Week in Review?  This week IPTT points to the following posts on the Hasbro Scrabble debacle -- (Spicy IP), (Techdirt), (The Trademark Blog), (Out-Law), (Law360).  While we're talking IP aggregation, check out Patent Baristas' regular Friday IP Round-up.  All around aggregators include Anne Reed's (Deliberations) reading list and Kevin O'Keefe's LexMonitor.

Both Geoff Sharp and I picked up 8 impediments to settling patent cases on appeal (a desire for "justice" is not an impediment but a means to settlement).  While we're taking an ADR angle, Virtually Blind's post Second Life Lawsuit Avoided; Law is Cool's Love, Actionable; and,    Slashdot's recommend reading of the week (The Pragmatic CSO) are all well worth a look.  

Slashdot also reminds us that IP prevention is worth a pound of IP litigation with the post WB Took Pains to "Delay" Pirating of the Dark Knight as follows: 

"a new studio tactic [is] not to prevent piracy, but to delay it . . . Warner Bros. executives said [they] prevent[ed] camcorded copies of the reported $180-million [Dark Knight] film from reaching Internet file-sharing sites for about 38 hours. Although that doesn't sound like much progress, it was enough time to keep bootleg DVDs off the streets as the film racked up a record-breaking $158.4 million on opening weekend. .  . The success of an anti-piracy campaign is measured in the number of hours it buys before the digital dam breaks.'"

If you're sufficiently virginal to believe in magic, check out the Law and Magic Law Blog's announcement of the dismissal of a defamation lawsuit against Magic Mag as protected opinion while Ernie the Attorney has at least one more make to make your iPhone magic here.

Meanwhile, the Legal Talk Network gathers together bloggers and co-hosts, J. Craig Williams and Bob Ambrogi to welcome Attorney Kevin A. Thompson from the firm Davis McGrath LLC, and Lauren Gelman, Executive Director of Stanford Law School's Center for Internet and Society to discuss Viacom's suit against Google's YouTube for the violation of its copyrights in a $1 billion lawsuit.

Because I used to type patent applications for Uniroyal (IBM Selectric - 5 carbon copies) I get a sweet whiff of nostalgia from Wiki Patents -- like this one -- Flexible Row Redundancy System 7404113 -- a row redundancy system is provided for replacing faulty wordlines of a memory array having a plurality of banks. The row redundancy system includes a remote fuse bay storing at least one faulty address corresponding to a faulty wordline of the memory array . . . .  Another available data base for the engineering-attorney crowd is the subject of  Securing Innovations post IBM Technical Disclosures' Prior Art Data Base.  Concurring Opinions covers IP in the News this week, Peter Zura's 271 Patent Blog considers a patent that was a "Colossal Waste of Time" and  IP Kat curls up with Small and Sole.  

Next week, the Blawg Review will be hosted by the Ohio Employer's Law Blog which we expect will be far more respectful of BR's readers' political, religious and sexual sensitivities than this one was.  Thanks for letting us play.  And a very, very, very good night!

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This may be the biggest break-down in attorney-client communication in the history of litigation.  Because this public statement by Allstate about its former attorney would be highly defamatory if not true, I'm taking Allstate at its word here.   

Allstate claimed that it had not deliberately flouted Manners’ orders. Rather, it said, its now-former attorney — then with the firm of Wallace, Saunders, Austin, Brown & Enochs — had failed to respond to discovery requests.

Allstate said it was appalled when it learned last year that it was being threatened with contempt.

“Allstate litigates hundreds of bad faith cases each year,” Allstate stated in court documents. “And it responds to discovery requests — just like the ones in this case — in many of them. There is no reason in the world for Allstate not to participate in discovery — particularly in this case, where there is an underlying judgment of $1 million.”

Allstate said it “immediately removed” the attorney from the case and retained new counsel.

Read the article about the lifting of the daily $25,000 contempt sanctions against Allstate in the wake of its settlement of the bad faith action in which they were imposed here.

The answer to the question "how to break bad news to my client" can be found at any of the links below.  Most of these links are for health care professionals, who have to break bad news to their patients and their families far more often than we have to tell our clients that something went terribly awry.  Put that at the top of your attorney gratitude list.

The Breaking Bad News Web Site

Breaking Bad News by Telephone

A Framework for Breaking Bad News  (anyone who read my Negotiating Life's End series knows that my father's physician could have used this excellent framework for delivering bad medical news to a patient's family)

Another excellent British source on breaking bad news listing the following traps for the unwary (partial list):

• Do not avoid seeing the [client] or leave them anxiously waiting for news. Sometimes anticipation can be worse than even the worst reality.
• Treat others as you would wish to be treated yourself.
• Get the facts before you start.
• Make sure you will not be disturbed. If necessary switch off phones or bleeps.
• Be factual but sympathetic. Always be empathetic however you may feel personally.
• Give time for the information to sink in and the opportunity to ask questions before moving on. Do not seem rushed.
• If the [client] does not seem able to take any more be prepared to end the consultation and to take it up again later.
• Look for all the cues, verbal or others. , , , Perhaps they would like you to speak to someone else or to have someone with them for the next meeting.
• Never say that nothing can be done or the [client] will lose all hope.
• Whilst trying to be positive never lose track of the fact that this is a serious and potentially fatal [reverse in the litigation].  Be optimistic but do not promise success or anything else that may not be delivered.

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O.K., the subject line was meant to shock you and to draw criticism for what I will admit is my greatest unresolved prejudicial default -- that white men over 65 who didn't participate in the  American cultural revolution of the late nineteen sixties and early 1970's did not and will never "get it." 

The Court opinion that triggered the headline and the recollections below is here.  The "executive summary" is as follows:  One of three arbitrators who cast the deciding vote on a plastic surgery malpractice case

• failed to disclose that he'd been censured while on the bench for making "sexually suggestive remarks to and asked sexually explicit questions of female staff members; referred to a staff member using crude and demeaning names and descriptions and an ethnic slur; referred to a fellow jurist’s physical attributes in a demeaning manner; and mailed a sexually suggestive postcard to a staff member addressed to her at the courthouse.” 
• The majority arbitrators deciding the malpractice case stated that the female claimant was not credible because the "severity of the symptoms to which she testified went beyond what she described to her doctors, adding, “This claimant has had five prior facial surgeries.”
• Similarly, in summarizing the claimant's expert’s testimony, these arbitrators noted, “One thing probably everyone can agree upon, after five facial surgeries, [claimant] could have done without a sixth one.”

Back to My Own History as Descriptive of --  But No Excuse for -- My Own Biases

We all have biases that we hide from others and some that we successfully hide from ourselves.  

We live, I'm told, in a 200 year present.  That means that my early life affects your life today.  After all, I'm an old white woman, about whom you may well have biases.  If I sit on your arbitration panel, you're going to want to understand those biases.  That's why I'm giving you a bullet-pointed history of what the world was like when I was forming my essential character at 17 years of age in 1969.

• the "want-ads" in the classified section of every major newspaper in American were categorized by gender -- "help wanted - women" and "help wanted - men"
• in my senior year in high school, my entire class took "preference aptitude" tests to give us an idea of what our future careers might look like -- the girls were given "pink" tests and the boys "blue" tests -- had I shown an aptitude for, say, math (and no I didn't) I would have been steered into nursing; my male friends into "medicine" as physicians.
• women were subject of explicit ridicule in magazine and newspaper cartoons -- we were airheads, bimbos, bad drivers, harpies or -- the "new" stereotype -- communist-longhair-folk-singing-America-hating-hippie-riot-inciting-"girls" who were alternately "men hating" or -- an old phrase -- "of easy virtue."

• it wasn't until the 1970's, when I was in college and already planning a career teaching English (after all, nursing required math-skills) that the idea of a career in the law for women as anything other than a secretary began to seem possible.
  • at Columbia Law School, the 1970 graduating class was only 8% female
  • by the year I graduated from law school in 1980, Columbia's female population had grown to a whopping 32%
  • although the enrollment of women in my law school class at U.C. Davis was nearly 50% in 1980, when I told my beloved mother in 1976 that I was going to apply to law school she said "why do that, honey?  Be a legal secretary, then you can marry a lawyer."
  • when my husband attended Yale Law School ('67-'70) he had seven women classmates
  • until the late sixties and early seventies, a woman desirous of an Ivy League university education had no choice but to go to a "woman's" school -- Barnard, Radcliff and the like.
• when I was in high school
  • abortion was illegal
  • married women were not entitled to their own credit cards
  • gender discrimination was both de jure and de facto -- it was o.k. to refuse to hire, sell to, rent to, deny membership to, etc. -- women
• when I  was practicing law (these all from the early '80s)
  • a partner for whom I worked told me that women weren't permitted at the local "men's only" club because "we don't want our wives there."
  • a Judge required me to identify myself as Mrs. or Miss and when I said I didn't think it necessary to identify myself by my marital status, asked "what are you some kind of [women's] libber?" (yes, I lost the motion)
  • I was advised by the few women attorneys senior to me not to get pregnant until after I made partner
  • secretaries were allowed to refuse to be assigned to a woman attorney
  • the first woman to make partner at my law firm was quite openly referred to as "the first muff partner" by her colleagues 
  • on the other hand, when a client said (of my assignment to its case) that the company did not want to be represented by a "girl," my partner told the client "then you don't want this firm representing you because she's the best associate I have"

I promise to work on my prejudices.  And I advise anyone who is about to appear before any dispute resolver -- be that person male, female, white, black, young or old, GOOGLE THEM FIRST!

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I've been talking a lot about joint sessions recently, as have mediator-bloggers Chris Annunziata (In Further Praise of the Joint Session); and, Geoff Sharp (The Legal Community has Learned to Accept Low Functioning Mediation). 

My most recent post on this issue stressed the need to de-demonize one's opponent in order to free everyone up to creatively participate in a joint session in which defensiveness and posturing are not the orders of the day.

Listen, the parties have already demonized one another by the time they bring their dispute to an attorney.  Once the lawyers take over and the parties stop communicating with one another, it's the interaction between the attorneys that exacerbates the already existing sense of distrust and betrayal. 

The default rationale for "take  no prisoners" and "give no quarter" litigation may have its source in the Professional Rules of Conduct we are all required to follow -- particularly the admonition that we "zealously represent our clients within the bounds of the law."  See JAMS commercial mediator Jeff Kichaven's article Zealous Advocacy, Mediation, and the Tangled Pursuit of the "Win."

Now, several states are trying to improve lawyer-to-lawyer relationships by eliminating the term "zealous representation" from their Codes of Conduct and replacing it with terms like "honest," "effective" and "honorable."

My immediate response to changes in language is that they make no difference.  Then I remember how changing "Mrs." and "Miss" to "Ms." and taking the "man" out of fire, police and mail, changed career aspirations for generations of women. 

So I'll ask my readers. Do you think the removal of the term "zealous advocacy" will have an effect on  the practice of law?

For the complete Lawyers USA article on these changes, click here.

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There is no principle I hold more dear than the rule of law.  I've written before about some critics' contention that our own government has turned away from the rule of law here.  Some of those  critics go so far as to accuse our government of waging war on the rule of law -- calling its strategy "lawfare."

I've also written before about critcisms levelled against ADR practices as threats to the principle that all men, women, and institutions will be judged by the same gender-blind, color-blind, nationality-blind, disability-blind (etc.) rules of law. 

There are those who believe that mediation -- which is practiced without rules, best practices or even a common theoretical basis --  permits mediators -- who are primarily over-40 white men -- to unfairly pressure litigants to settle their lawsuits against their better judgment.  There are further charges that mediation re-injects favortism and prejudice back into a system that spent most of the latter half of the 20th century ridding itself of.  

I take these criticisms very very seriously, repeating throughout any mediation session my opening assertion that my role is to present the parties with choices and to faciliate a settlement if they believe it may be better alternative to continued litigation, not to hustle them away from their right to a jury trial.  

I would be far more successful in being "neutral" about proceeding to a jury trial if there were an easier, less costly, and speedier way to bring a dispute before a jury.  We have, lamentably, permitted our cherished rule of law to become so procedurally encrusted that it sometimes seems like no option at all -- at least not an option available to all but the wealthy or those represented by lawyers willing to accept a contingent fee.

All of this troubles me.  I invite comment at the same time that I provide the thoughts of some of our greatest statesmen and jurists about the right to trial by jury.      

George Washington

"There was not a member of the Constitutional Convention who had the least objection to what is contended for by the advocates for a Bill of Rights and trial by jury." (1788)

John Adams 

"Representative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle and fed and clothed like swine and hounds." (1774)

Thomas Jefferson 

"I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." (1788)

"Trial by jury is part of that bright constellation which has gone before us and guided our steps through an age of revolution and reformation." (1801)

"The wisdom of our sages and the blood of our heroes has been devoted to the attainment of trial by jury. It should be the creed of our political faith." (1801)

James Madison 
"Trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature." (1789)

John Quincy Adams 

"The struggle for American independence was for chartered rights, for English liberties, for trial by jury, habeas corpus and Magna Carta." (1839)

Patrick Henry of Virginia [Patriot who said "Give me liberty or give me death!"]
"Trial by jury is the best appendage of freedom by which our ancestors have secured their lives and property. I hope we shall never be induced to part with that excellent mode of trial." (1788)

Alexander Hamilton 

"The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government." (1788)

Daniel Webster

"The protection of life and property, habeas corpus, trial by jury, the right of an open trial, these are principles of public liberty existing in the best form in the republican institutions of this country." (1848)

Judge Stephen Reinhardt 

"Our constitutional right to trial by jury does not turn on the political mood of the moment, the outcome of cost/benefit analyses or the results of economic or fiscal calculations. There is no price tag on the continued existence of the civil jury system, or any other constitutionally-provided right." (1986)

David Hume 

"Trial by jury is the best institution calculated for the preservation of liberty and the administration of justice that was ever devised by the wit of man." (1762)

Judge William Bryant [First African-American federal district court judge in D.C]

"If it weren't for lawyers, I'd still be three-fifths of a man." (2004)

Justice William O. Douglas

"The Massachusetts Body of Liberties was a new Magna Carta. It contained many of the seeds of the civil liberties which today distinguish us from the totalitarian systems, including the right to trial by jury." (1954)

Justice Hugo Black

"Our duty to preserve the Seventh Amendment is a matter of high Constitutional importance. The founders of our country thought that trial by civil jury was an essential bulwark of civil liberty and it must be scrupulously safeguarded." (1939, 1943)

Justice Ward Hunt

"Twelve jurors know more of the common affairs of life than does one man, and they can draw wiser and safer conclusions than a single judge." (1873)

Quotations excerpted from In Defense of Trial by Jury: Vols. I and II by the American Jury Trial Foundation (1993) and copied verbatim and in their entirety from the web site of the American Association of Justice (i.e., the American Trial Lawyers Association).

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The cost of a thing is the amount of life that you must exchange for it -- now or in the long run (Thoreau)

• if you have an on-going relationship -- even as limited as a note payable -- squeezing the last nickel out of the deal may impair your bargaining partner's ability to perform 
• what goes up, must come down, i.e., squeezing out the last nickel creates enemies who  none of us can afford when times are good, let alone when times are bad 
• taking advantage of another's weaknesses tears at the social fabric
• it makes us all more watchful and less productive
• it doesn't actually feel good to line your pockets with the misery of others
• sometimes the downtrodden rise up -- every couple of centuries or so, creating an entirely new order -- the generous man and woman will not be on the wrong side of that revolution
• global warming -- think about it -- the order will change as will the countries who will be asking for favors
• you reap what you sow (I'm pretty sure I learned this in Sunday School)
• social relations do not exist "out there" -- they are co-created by one person's relationship with every other person -- the society you inhabit is the one you create -- if you don't want your neighbor taking your last dime, don't take his
• collaborative effort results in greater progress than individual activity -- if you decrease trust, you impede advancement in business, the arts and science

Readers!  Can I count on you to give us all more reasons?

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One of the reasons I began this series was to explore the type of professional behavior that tends to trigger professional malpractice litigation -- and how that litigation might be avoided.   

As you may recall, my first post cited a study finding that the top three reasons for filing litigation against a medical provider were:  

so that it would not happen to anyone else . . . 91%

I wanted an explanation . . . 91%

I wanted the doctors to realize what they’d done . . . 90%

In that same study, only 66% of respondents said they'd brought suit because they wanted money.   

Other studies have found that the failure to health care professionals to effectively communicate with patients and their families give rise to more litigation than negligence or bad results in treatment.  As reported in the March/April issue of Patient Safety and Quality Healthcare

ineffective communication with patients and families, rather than quality of care, was the underlying cause of patients' and families' decisions to file suit against their caregivers (Vincent et al., 1994; Hickson et al., 1992). Other researchers found that most patients would be less angry and less likely to sue if physicians honestly and compassionately disclosed medical errors that occurred, admitted responsibility, took steps to reduce the chances of repeat errors in the future, and offered sincere apologies for the suffering that may have resulted because of the bad outcomes (Gallagher et al., 2003). Similarly, research on apologies suggests that individuals receiving a full apology that both expresses sympathy and takes responsibility by the person who wronged them are more likely to accept settlement offers and negotiate towards a resolution rather than going to trial (Robbennolt, 2003). 

See Conflict Management From the Heart:  A Day in the Life of a Medical Ombuds/Mediator by Carole S. Houk, JD, LLM, and Leigh Ana Amerson, BA here.


In Why People Sue Hospitals and Health Care Professionals in Heatlh Industry Online we learn that 40% of respondents answered "yes" to the question whether anything could have been done to prevent litigation after an adverse medical incident.  Those pre-litigation interventions were reported as follows:  

Conflict Associated with End-of-Life Decisions

Someone once told me that a divorce is a hologram of the marriage -- that all of the marital dynamics that have never been resolved -- or even surfaced -- by the divorcing couple -- take shape and form in one way or another in the course of the divorce.  Not surprisingly, the "weapons" of marital dissolution are its most precious assets -- relationship and children -- and its most symbolic -- money. /*

So it is that historic family dynamics (rife with unresolved conflict) will more or less naturally play themselves out around the bed of a loved one who is -- or may  be -- dying.  

How much conflict is there?

One recent study found that conflict associated with decisions about life-sustaining treatment were rife with conflict between medical staff and the families of dying patients.  An abstract of an Conflict associated with decisions to limit life-sustaining treatment in intensive care units reported: 

MAIN RESULTS:  At least 1 health care provider in 78% of the cases described a situation coded as conflict. Conflict occurred between the staff and family members in 48% of the cases, among staff members in 48%, and among family members in 24%. In 63% of the cases, conflict arose over the decision about life-sustaining treatment itself. In 45% of the cases, conflict occurred over other tasks such as communication and pain control. Social issues caused conflict in 19% of the cases.

CONCLUSIONS: Conflict is more prevalent in the setting of intensive care decision making than has previously been demonstrated. While conflict over the treatment decision itself is most common, conflict over other issues, including social issues, is also significant. By identifying conflict and by recognizing that the treatment decision may not be the only conflict present, or even the main one, clinicians may address conflict more constructively.

It's Not About Money But it Will Become About Money if Conflict is Not Treated at the Source

I have much more to say about this but I need to get out to the Valley to see my dad who is -- amazingly (to me at any rate) -- surviving without food or water into Day Nine.

For now, I will simply remind my readers of the following:

• the law monetizes injustice -- people don't
• it's about respect more than it is about money
• the recognition that the individual with whom you are in conflict is acting from moral rather than venal motivations is often the first patch of common ground
• when people focus on money rather than relationship, they universally respond by becoming less generous
• our brains reward us for cooperative behavior, i.e., we're hard-wired for understanding, compassion, forgiveness and reconciliation
• even monkeys (our fellow primates) protest if they believe they are being treated unfairly

Why the Coming Crisis and Likelihood of Litigation?

The parents' of the baby-boom are dying.  Extraordinarily high levels of conflict in health care settings are associated with dying.  Hospitals and health care professionals are not yet up to par in resolving conflict at its source.  In the absence of programs to assist the families of the dying negotiate their way through this traumatic experience, people will seek out attorneys; attorneys will, as the law does, monetize pain, suffering, and injustice. 

The research is in.  The solutions are available.

It's up to us.  

______________________________________

*/   Money is symbolic?  Yes it is.  As my longer article on the many meanings people give to money notes:

It is money’s nearly infinite plasticity that makes exchange of unlike things not only possible, but nearly effortless. Unlike barter, which famously requires a “double coincidence of wants,”  money creates a bridge to the future; permits trade at a distance; allows the exchange of durable objects for perishable goods; and, is capable of reducing nearly every human activity into a quantitative monetary value. 

Although contemporary money seems to have shed all of its qualities except its quantity,  “its oneness or fiveness or fiftyness,” we do not in fact use money as if it were fungible. We experience the value of a dollar earned differently from the way we experience one that is stolen or given to us as a gift and we spend it differently as well. 

See The Cost of a Thing is Your Life here

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Let's for a moment assume that I had not surrendered the control of Dad's final days to his wife, into whose hands he has so indisputably placed them.  

If you've been following this series, you may have concluded that my Dad's immediate family (step-children; my sister) are likely indifferent to, uninterested in or incapable of dealing with the end of Dad's life.  My compassionate default is that these blood- and step-siblings are neither uninterested nor callously indifferent to my father's fate, but simply incapable of responding to this intensely emotional experience for family-historical, social, psychological, emotional or practical reasons.  

Let's assume, however, that surrounding my father's hospital bed is a clamorous family, all expressing different concerns, desires, options, solutions and resolutions to the question whether to insert, or later remove, a feeding tube, remembering Ken Cloke's observation in his new book, Conflict Revolution, that a dispute occurs 

not only between individuals, but in a context, culture, and environment; surrounded by social, economic, and political forces; inside a group or organization; contained by a system and structure; among a diverse community of people; at a particular moment in time and history; on a stage; against a backdrop; in a setting or milieu. 

Do you have the hypothetical in mind?

What's a family to do?

In a comprehensive and award-winning article on this precise issue -- Negotiating Death, ADR and End of Life Decision-Making, Glenn Cohen -- who has accepted an appointment as an Assistant Professor at Harvard Law School, begining in the 2008-2009 academic year -- suggested in a Spring 2004 issue of the Harvard Negotiation Law Review that disputes in the death and dying context are often really "misunderstandings," in the sense that they are not real differences in opinion or belief about the "correct" treatment option.  Cohen quotes one bioethicist who adopts a mediative model as follows:  

[These] conflicts were often fueled by different perceptions of the medical facts, different understandings of the prognosis, different interpretations of patient behavior (generally relating to whether the patient was experiencing pain and suffering) and different personal value hierarchies. As we searched for ways to help patients, family members, and staff understand the clashing cultures and discordant assumptions that animated their arguments, we realized that the substantive parts of our interventions were more than outweighed by the process elements. Searching for the right theoretical model steered us to the frame and the techniques of mediation.

The mediators in my readership will not doubt the efficacy of neutral-intervention in these decisions.  As my own experience demonstrates, however, no one sends a mediator or even the palliative care nurse or social worker to your loved one's hospital room unless someone has "hipped" you to the fact that they are available to you. 

Listen, my first husband was a social worker and it wouldn't have occurred to me to ask for one at the hospital unless my health care executive friend had told me to do so.  Nor would I have known there was a palliative care nurse on staff unless my friend the hospital hospice director hadn't told me her name and how to contact her.

So What, if Anything, Could a Mediator Do to Assist the Family in the Circumstances Outlined in My Hypothetical?

Training Issues

Cohen has systems in mind, not merely interventions, so he begins his proposed five-step model with training (echoing my question to the social worker -- "don't they train these doctors in active listening?")

Much of what we have said before about managing emotions [/*] is relevant here, as is the clarification of "professional emotions" on the part of doctors. Negotiation training for doctors is a must. . . . Already the negotiation field is beginning to tailor training programs to health care professionals by using narratives and cases developed by doctors for doctors. , and discussion of appropriate techniques with simulation, exercises and feedback."  . . . . .

More specifically, [others] identify five types of ADR training and education: marketing efforts (convincing stakeholders to buy-in),awareness education (informing users what ADR is and what role it plays in the organization),conflict management and communication training (generic training not geared towards a particular type of ADR, [r]ather, it is focused on increasing participants' understanding and acceptance of conflict and on improving their communication skills, including active listening and direct communication"), consumer/user training (focusing on what to expect in the ADR proceeding, how to prepare for ADR, how to identify interests, options, etc.),and training of third-party neutrals. 

____________________

*/   But please don't let the family know that is what you are trying to do, i.e., manage, rather than support, their emotional responses to a loved one's final days.

____________________

Bio-ethical Mediators

[A] bioethical mediator [would] help[] to identify all the parties and their interests, and develop a common understanding of the medical facts and options. For instance, consultants might be called in to finely tune a prognosis. 

When coming into [a case], the [bioethical mediation] team asks: Who are the parties to this conflict? What are their interests? Are those interests in conflict and, if so, how might the conflict be resolved or consensus forged? This formulation grew out of the clinical finding that most of the events labeled "bioethical dilemmas" were really "conflicts" that pitted members of the hospital team against each other, or members of the team against some or all of the patient/family constellation. 

The Creation and Use of an ADR-Oriented Ethics Committee

Membership: . . . . What is indispensable is that the panel not be insiders. If having physicians sit on the panel is seen as essential, it may be useful to use physicians who teach at local medical schools or who do not practice at that particular hospital. . . . . .

Initiation: In keeping with the sequencing of low- to high-cost methods of dispute resolution, the process should be initiated at the request of the patient, her family, any member of the health care team, or the bioethical mediator if he or she is unsatisfied with the resolution at Step 2.

Methodology: Here there is a spectrum of formality that will depend on the individual hospital and its resources, ranging from advisory arbitration to mini-trial. In principle, there is no reason why the Committee might not offer multiple options along the spectrum of formality at the election of the parties. Depending on the level of formality chosen, the parties might represent themselves or seek legal representation. 

Opinion: This should be delivered in writing, be well elaborated, and be the kind of opinion that can give the parties information relevant to how a court might decide the dispute.

Bindingness: What is essential is that someone present at the arbitration process has the authority to bind the hospital. If power imbalances favoring the hospital are a concern in the process, one possibility to "retilt" the system might be to make the arbitration "asymmetrically binding," making the hospital abide by the arbitration decision while the opposing parties are not equivalently bound. If there are concerns about this, some kind of safety valve could be provided. For instance, the binding nature of the Ethics Committee decision could be overruled by a majority vote of the Hospital's board of directors.

Cohen's Conclusion?

Having used Terri Schiavo's case as a jumping off point, Cohen suggests that the experience of her care-givers, elevated for a time into a national controversy (see Cloke above) 

highlights what each of us fears about our own deaths: that we will not die with dignity, that our wishes may not be followed, that decisions on our treatment may tear apart our families and bring rancor to the lives of those we love. Terry Schiavo's case also shows that in quelling our fears, the adjudicatory model offers scant succor.

While in theory, advanced directives offer a promising resting point for American jurisprudence's unsatisfying oscillation between full-on adjudication and completely private determination, in practice they have never caught on. The ideas and techniques ADR has
cultivated over the last thirty years offer us, and our families, a chance to do better. ADR can:

• Help to resolve "misunderstandings" that the adjudicatory model tends to treat as full-blown "disputes;" 
• Identify intermediate options that satisfy both parties and remove the need for rights-oriented dispute resolution; 
• Offer a lower-cost form of rights-oriented adjudication when a dispute must be "decided;" 
• Enable the patient and free him from the debilitating "object" status accorded to him by adjudication; and 
• Offer emotional settlement lacking in the typical litigation process.
  

Concerns about cost, due process protection, and institutional resistance to implementing such an approach add complexity, but this article has suggested possible approaches to solve those problems. Moreover, these concerns have to be compared to those attaching to the status quo regime that consists of large amounts of "lumping" it. While the details of an appropriate ADR framework will vary from institution to institution, this article has offered a five-step model for implementing an ADR-informed approach to end of life decision-making, as well as discussing alternative options at every stage. It is only by
combining the work of fields such as medicine, law, and organizational development that we are able to provide a thing of major concern to the aging population of America: the assurance of dying well.

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(left:  Dad, middle, after the dust bowl in Julian, California)

I am told that my father is dying.  This is not news.  Dad has a progressive disease that ordinarily results in death only after years of suffering. 

I'm telling you this story (which will be the subject of several posts) because it's been suggested to me that I lodge a complaint with the local community hospital dad was checked into last week.  Or that I sue the doctor who will play a large role in this story.  I'm thus reminded of the type of conflict that causes people to go to the considerable trouble of finding and hiring legal counsel.  The experience I am about to relate considerably deepens my empathy for those people.    

Before I tell this story, I caution my readers not to take the easy way out.  These feelings accompany every kind of conflict -- personal and commercial.   

 

Essential Familial Tremor

Most of us on Dad's side of the family have something called Essential Familial Tremor.  That means our hands shake for reasons the medical community doesn't understand. 

Because denial was and remains my family's primary response to ill health , I was not diagnosed with this condition until I graduated from law school even though I began to suffer its effects at age 14.  When your primary family dis-ease is denial, it's more than a little painfully ironic to have a shared medical condition that quite visibly signals fear.  But we survived the American dust bowl.  We do not complain.  And we do not seek medical treatment.  

EFT and Parkinson's

I digress to EFT and denial because the "benign symptom" of EFT -- shaking -- is the same as one of the early symptoms of the disease Dad is dying from.  Parkinson's. 

For as long as I can remember, Dad's hands shook though my my step-mother (welcome to the family!) vehemently denied it.  "He doesn't shake," she'd snap if we noted dad's inability to get liquid from one container into another without spilling a fair part of it onto the dining table.  

So I can't say when Dad began to show the earliest signs of Parkinson's disease.  I can, however, say when it became undeniable. 

"I Left Your Step-Mother," 

dad is saying into a telephone I've just learned is located on the night-stand next to his bed in a Las Vegas hotel.  "She's sleeping with the gardener," he insists without a trace of skepticism at the fantastic idea that his second wife -- a woman ten years his senior -- has fallen into trampy ways with the "help" at 85 years of age.  "I think my phone is tapped," he continues without interruption.  "I'm going to fly to Sacramento to see my sister Lucille."  

This is the point at which my family is generally willing to first seek medical treatment.  Unmitigated disaster.  

So I sought and was granted (against strenuous opposition, I might somewhat irritably add) a continuance of a trial date that was breathing hot down the back of my neck, boarded a plane for Sacramento and got dad to doctors, psychologists and neurologists. 

Parkinson's is treatable and the dementia abated for a sufficient amount of time to allow dad to pretty cogently divorce his second wife of 35 years and marry the woman who served as his court clerk when he'd been on the bench two decades earlier.

You can't make this stuff up.

This is where we're heading.  Feeding tube and Reasons patients sue their physicians. /* 

So that it would not happen to anyone else	91%
I wanted an explanation	91
I wanted the doctors to realize what they’d done	90
To get an admission of negligence	87
So that the doctor would know how I felt	68
My feelings were ignored	67
I wanted financial compensation	66
Because I was angry	65
So that the doctor did not get away with it	54
So that the doctor would be disciplined	48
Because it was the only way I could cope with my feelings	46
Because of the attitude of the staff afterwards	43
To get back at the doctor involved	23

_______________________

*/  figures represent the percentage of people who agreed with the statement to the left.

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Negotiated Resolutions in Community Mediation

Nearly every condominium complex harbors an outlaw -- the man, woman, couple or family who refuse to follow the rules.  The young couple who blasts the woofers off their stereo system at 3 a.m.  The elderly woman who doesn't clean up after her dog.  The raucous family that plays "Marco Polo" in the community pool after midnight.  

Offended and outraged, other homeowners make demands on their volunteer board who contact the (often unresponsive) management company.  The HOA board does its best.  It issues warnings to procure compliance.  To no avail.  Eventually, someone reads the CC&R's.  They learn that the Board has enforceable legal duties and the homeoweners actionable legal rights. 

Many of these disputes make their way to the Los Angeles County Bar Association's Dispute Resolution Center in West Hollywood.  And some of them make their way to me. 

Welcome to community mediation -- the non-zero sum, value-based, rights-seeking, joint session transformative dispute resolution process.  We're well trained and we're free.

But can we deliver justice?

 

Attorneys, the Law, Mediation and Justice 

Maybe it was just my G-g-g-generation, but I went to law school primarily because I was interested in the delivery of justice.  Although my primary involvement in the 20th Century 's civil rights movements was as a Vista volunteer at an activist women's center in San Diego in the early 1970's, I wasn't simply pursuing my own narrow self-interests when I applied to law school.   

As early as I can recall -- long before I'd conclude that 1950's and '60s women were oppressed -- I'd already developed a deep longing for the reconstruction of adult relationships along the lines of fairness.  This must be a typical childhood longing premised upon our predicament of being physically small and powerless.  An "unjust" world that rewards only power would not ensure our survival while a world in which everyone is valued and treated fairly would.     

Couple a child's sense of justice with televised images of "the law" aiming fire-hoses at peacefully demonstrating "Negroes" and you get a life-long commitment not simply to the "rule of law" but to the necessity for that "rule" to be premised upon justice.   

Are Negotiated and Mediated Resolutions Trumping Justice?   

These are just a few of the reasons it troubles me so when scholars suggest that mediated and negotiated resolutions to litigated disputes are unjust.  See yesterday's post here and the article that prompted it, Justice Trumps Peace (etc.) here.  If mediation is truly what its critics contend it to be -- a full-frontal assault upon the rights gained by marginalized citizens during the Civil Rights era -- I'm in serious moral trouble here. 

Consider this contention in Justice Trumps Peace: 

“ADR rhetoric” reinforce[s] a conservative challenge to “the law and reform discourse of the 1960s, a discourse concerned with justice and root causes, and with debates over right and wrong.” “The rights theme, consistent throughout earlier debates over legal resources,” was conspicuous by its absence in “the policy discussion on alternative dispute resolution.” . . . . 

Laura Nader . . . not[ed] that ADR’s “process of communication” ethos took necessary rough, ideological edges off claims, and fostered what she called “coercive harmony.” Nader argued that ADR was permeated with “conformist ideology,” which was employed to “suppress the realities of class, gender, and racial antagonism” endemic to American society, and as such, it comprised an “unreal law movement.” Nader contended that ADR’s emphasis on conciliation meant that critical considerations of “blame or rights” were “avoided and replaced by the rhetoric of compromise and relationship.” She concluded that “cultural notions of justice are factored out.” 

This tendency to screen-out unpleasant, divisive, but nonetheless vital social concerns supports Fiss’s characterization of ADR as a “sociologically impoverished universe,” in which critical issues of class, race and gender are subsumed to construct “a world composed exclusively of individuals.”

Can Justice be Negotiated?

Cheyney Ryan, a philosophy professor at the University of Oregon, contributed a short piece to the must-have Negotiator's Fieldbook entitled Rawls on Negotiating Justice.  John Rawls, Ryan explains, is the seminal philosopher of justice in the 20th century.  "From the start," writes Ryan,

Rawls asked us to think of justice as  a matter of agreement.  He suggested that we think of the principles guiding a just society as the ones that individuals would agree to -- with the crucial proviso that they do not know where they themselves would end up in society, on the top or the bottom.  They would thus act from behind a "veil of ignorance . . . Given this constraint, no individual could tailor the principles of justice to his or her special talents or circumstances, which is why Rawls called this approach "justice as fairness."  Rawls suggested that the principles that would be agreed to would be ones that were deeply committed ot basic human rights and had a strong presumption in favor of economic equality.  Inequalities would only be tolerated if they most greatly benefited the least well off.

According to Ryan, Rawls concluded in his later writings that the reciprocity inherent in bargained-for resolutions and negotiation's search for mutual advantage were insufficient to ensure justice.  Rawls therefore shifted the basis of his theory from the search for rational resolutions to the implementation of reasonable ones.  "The question to ask of principles of justice," posited Rawls, was,

what were the most reasonable ones for people to agree to given the nature of our society and the nature of who we are?  Justice, thus reconceived, lost the harsh individualism that Rawls' earlier theory seemed to possess.  The stress on reasonableness meant that people taking others into account was an essential part of what justice was all about.  His theory also moved away from his earlier hyper-abstraction, insofar as we talk of what is "reasonable" invariably refers not to some hypotheitcal persons with hypotheical aims but to real people -- in this case, us, here and now.

Negotiating Justice in Community Mediation 

Condominium owners John and Betty Jones (not their real names) were being driven to distraction by their neighbors who arrived home at 2 a.m. only to commence what felt like a Pekinese rodeo in their upstairs apartment.  The indominable Kathryn Turk who convenes mediations for LACBA's Dispute Resolution Services in West Hollywood managed to procure the attendance of an HOA Board member with full authority to "settle" the case.  Unfortunately, the "outlaw" homeowner refused to attend.

John Jones had practically memorized the CC&R's governing the Board's duties and the homeowner's rights.  His wife repeatedly broke into tears as she described sleepless nights spent on the living room couch where the upstairs neighbor's early morning antics were the least disturbing.  The volunteer Board member was sympathetic but at a loss for solutions.  She'd contacted "management" and sent warnings to the miscreants, all to no avail. 

Only punitive measures would do at this point, said Jones. The CC&R's called for sanctions to be imposed on rule-breakers but lacked a means of implementation and enforcement.  The HOA representative indicated that she not only had the Board's authority to settle the matter, but to impose any necessary and reasonable rules to flesh out the CC&R's inadequate policies.

"We want monetary sanctions imposed," Jones was saying, "sanctions that can be made liens against the property just as HOA dues can be." 

"What about notice?"  I asked.  "And  a hearing?  There's nothing in the rules about the procedure for imposing sanctions."

"24 hours!" shouted John.  "If they don't comply, a $500 sanction to be made a lien against their property.  And another $500 for every day they continue to violate the noise restrictions contained in the CCR's."

Not knowing about Rawls' veil-of-ignorance-just-rule-making principle, I nevertheless wondered aloud whether Mr. and Mrs. Jones understood that the bylaws they were suggesting could be used by their scofflaw neighbors as easily as they could be pursued by the Jones.  

"Oh."

Silence.

"What set of rules do you think would be fair?" I asked.

Two hours later, we had achieved what my Con Law professor would have called "procedural due process" -- a set of rules that would likely pass Constitutional muster that came from the parties -- not from the mediator.

Whether justice and fairness are, at some level, hard-wired into us (see Brain reacts to fairness as it does to money and chocolate) or culturally controlled, it seems that Rawls' conception of "justice and fairness" based upon reasonableness and enlightened self-interest might flow more or less naturally from a mediated dispute resolution forum where the parties, rather than the mediator, are in control.

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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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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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Thanks to Geoff Sharp for leading me to John Day's terrific series of posts on What it Takes to Be a Great Trial Lawyer particularly Part 11, The Courage to Tell the Client the Truth, excerpt below.

As information is learned in a given case, great trial lawyers also tell their client the truth. They give an opinion about whether to make, accept or reject a settlement proposal, or indicate that the proposal is so within the range of reason to make it a toss-up. They give these honest opinions whether the client likes the advice or not, and explain the basis for the opinion.

A great trial lawyer will not hesitate to tell a client that the client is making a mistake by not taking a recommendation of the lawyer, but then will follow the client's wishes so long as the course of action is legal and ethical.

In other words, great trial lawyers understand that client is the boss, and unless the client is demanding illegal or unethical action or the relationship between lawyer and client has become so impaired that the lawyer cannot adequately represent the client, the lawyer yields to the client's wishes.

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1.  Steadfast adherence to a strict moral or ethical code. 2. The state of being unimpaired; soundness. 3. The quality or condition of being whole or undivided; completeness. ETYMOLOGY: Middle English integrite, from Old French, from Latin integrits, soundness, from integer, whole, complete.

 American Heritage Dictionary, 4th Ed. 2000

I attended a seminar recently in which a retired Judge-mediator said the following from the podium  -- "I don't tell a new client that I've mediated for his opposition before."

"Hmmmmmmm," I was thinking, "how's he going to justify that?" 

The answer, unfortunately, was by way of his own self-interest. 

"If I disclosed all of my former relationships with attorneys," the Judge said, "I'd never get any new business."   

I know this mediator; he's in heavy rotation and is a talkative guy.  So I'm assuming he's said this before and no one has corrected him, which means he's not the only one out there who's a little fuzzy on mediation ethics. 

This comment made me decide to address mediation ethics a little more systematically than I have before -- beginning with conflicts of interest and using the Association for Conflict Resolution's Model Standards of Conduct for Mediators as my starting point. 

STANDARD III. CONFLICTS OF INTEREST.

I invite comment from my blogging buddies -- Diane Levin, Gini Nelson, Stephanie West Allen,  Geoff Sharp and Christopher Annunziata if they have an extra moment in their day.  Take a look, by the way, at Michael Moffitt's post on Geoff Sharp's post on Mediators Who Party with Clients here.

A. A mediator shall avoid a conflict of interest or the appearance of a conflict of interest during and after a mediation. A conflict of interest can arise from involvement by a mediator with the subject matter of the dispute or from any relationship between a mediator and any mediation participant, whether past or present, personal or professional, that reasonably raises a question of a mediator’s impartiality.

B. A mediator shall make a reasonable inquiry to determine whether there are any facts that a reasonable individual would consider likely to create a potential or actual conflict of interest for a mediator. A mediator’s actions necessary to accomplish a reasonable inquiry into potential conflicts of interest may vary based on practice context.

C. A mediator shall disclose, as soon as practicable, all actual and potential conflicts of interest that are reasonably known to the mediator and could reasonably be seen as raising a question about the mediator’s impartiality. After disclosure, if all parties agree, the mediator may proceed with the mediation.

D. If a mediator learns any fact after accepting a mediation that raises a question with respect to that mediator’s service creating a potential or actual conflict of interest, the mediator shall disclose it as quickly as practicable. After disclosure, if all parties agree, the mediator may proceed with the mediation.

E. If a mediator’s conflict of interest might reasonably be viewed as undermining the integrity of the mediation, a mediator shall withdraw from or decline to proceed with the mediation regardless of the expressed desire or agreement of the parties to the contrary.

F. Subsequent to a mediation, a mediator shall not establish another relationship with any of the participants in any matter that would raise questions about the integrity of the mediation. When a mediator develops personal or professional relationships with parties, other individuals or organizations following a mediation in which they were involved, the mediator should consider factors such as time elapsed following the mediation, the nature of the relationships established, and services offered when determining whether the relationships might create a perceived or actual conflict of interest.

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Red and yellow black and white they are precious in his sight Jesus loves the little children of the world.  Lyrics C. Her­bert Wool­ston (1856-1927); Music: George F. Root (1820-1895) (MI­DI, score). Root orig­in­al­ly wrote this tune for the Amer­i­can civ­il war song Tramp, Tramp, Tramp.

Verily I say unto you, Whosoever shall not receive the kingdom of God as a little child shall in no wise enter therein.  Luke 8:17 

Easter is one of those holidays that resists secularization unless you have children, grandchildren, hard boiled eggs and a rainbow of pastel dyes. 

People don't casually say "Happy Easter" to one another, particularly in an urban American city and especially if half your family is Jewish.

Still, Easter reminds me that I used to be a practicing Protestant and that my values derive substantially from the liberal Christian teachings I was dipped into as a child -- first in Sunday School and then in church.

What did I learn?  Tolerance.  Compassion.  Empathy. Forgiveness.  Reconciliation. And perhaps most important of all, the genuine potential for every ordinary human spirit to experience a radical transformation -- so radical that one might say the individual had been reborn as a spiritual being. 

Listen, this is not light weight stuff. 

I like to write, but I'm no philosopher.  Nor am I writer with a huge brain, steadily empathic heart, encyclopedic knowledge, original thought or the courage to dream paradigm shifting dreams.  I do know that writer, however.  His name is Ken Cloke and I am steadily making my way through all 500 and something pages of his new book.  

These are the times to put our own individual highly personal spiritual or religious faith and a great deal of our material resources behind the transformation of human understanding necessary to save the species.  (as James Lovelock , author of Gaia instructed us, we have no need to worry about the persistence of the planet itself.  We are not necessary to its survival; we are merely its "spokesmodels.")  

As my personal Easter offering, I give you yet another excerpt from Ken's soon-to-be-released book Conflict Revolution - Mediating Evil, War, Injustice and Terrorism or How Mediators Can Help Save the Planet.

How Prejudice Works, and How to Oppose It

Prejudice is complex and operates on many levels. It can be found not only in insults and judgments, caricatures and stereotypes, but refusals to listen and communicate, stories of demonization and victimization, inability to experience empathy with others, and infinitesimal denials of humanity. It is reflected in personal selfishness and hostile relationships, bullying and aggressive behaviors, and ego compensations based on poor self-esteem. It is expressed through contempt, disregard, and domination, as well as through low status, inequitable pay, and autocratic power.

Prejudice commonly operates by stereotyping. People form stereotypes, in my experience, in eight easy steps:

1. Pick a characteristic
2. Blow it out of proportion
3. Collapse the person into the characteristic
4. Ignore individual differences and variations
5. Disregard subtleties and complexities
6. Overlook commonalities
7. Match it to your own worst fears
8. Make it cruel

If these steps routinely produce prejudice, it is possible to undo them, for example, by making people more complex than their stereotype permits, or distinguishing unique individuals within a group, or recognizing commonalities between people. It helps, in doing so, to acknowledge that everyone is equal, unique, and interesting; that everyone forms prejudices; that everyone can learn to overcome them through awareness, empathy, and communication; and that everyone can become more skillful in communicating across stereotypes and lines of separation created by fear.

It is common for people, when accused of prejudice, to respond defensively, but to confront other people’s prejudices aggressively, leveling accusations and instilling shame. These responses may initially succeed in suppressing the expression of prejudicial attitudes and undermining social permission and the cultures of discrimination that allow it to continue. But to root out the deep-seated biases that keep prejudice alive, it is necessary to dismantle it at a deeper level, in people’s hearts and minds.

Our principal goals in responding to prejudice are therefore not to castigate, blame, or point fingers at those who exhibit prejudicial attitudes, as shaming and blaming merely triggers defensiveness and counterattack. Instead, they are to defuse prejudice by assisting those in its grip (including ourselves) to:

1. develop a knowledgeable, confident self-identity, and appreciate who they are without needing to feel superior to others 
2. experience comfortable, empathetic interactions with diverse people and ideas 
3. be curious and unafraid of learning about differences and commonalities 
4. feel comfortable collaboratively solving problems and negotiating differences 
5. be aware of biases, stereotypes, and discrimination when they occur 
6. stand up for themselves and others in the face of prejudice, without becoming biased in turn 
7. experience diverse affectionate relationships that grow stronger as a result of differences
   

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Along the Borderline Straus Institute Instructional Video (time 16:05)

Alternative Dispute Resolution (ADR) processes address a variety of client needs. In different situations, different approaches best meet the needs of particular clients. As ADR practitioners skilled at delivering a variety of processes, the question of when it is appropriate to mix approaches arises.

O.K., we're not actors but we play them in this video on ethics issue.

Jeff Kichaven

Eric van Ginkel

Me, myself and I

Video brain-boxed by Tom Stipanowich above actualized by producer-mediator Greg Stone of Teahouse Media.

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(right:  Calvin Coolidge, Zelig and Herbert Hoover)

Soon, the Complete Lawyer's Human Factor Columnists (first appearance, Vol. IV, Issue 2 /*) are going to be addressing the ways in which you can use conflict resolution techniques to create, or restore, peace in your law firm.  

Though my contribution to that particular column is slicing the law firm's money pie with an eye toward the collective good rather than the individual's advantage, I can't pass up the opportunity to note the importance of accountability -- one of mediation's core values -- covered by The Snark in -- Oops!  An Associate Did it Again (excerpt below).

FESS UP

This is the hardest plan to implement because you fear finally being discovered for being imperfect and possibly over-rated. Will you be fired? Will it go down in your "file" only to rear its head in four years when you are denied admission into the partnership and the only reason they can give is, "Back in your second year, you missed that 1 p.m. meeting with our best client, MegaCorp."

But I think in the end it is better to fess up. Just don't do it in a way that makes things even worse: no crying, sniveling or begging for mercy. And no need to shave your head or hold a press conference.

You just need to explain yourself while displaying the appropriate level of remorse blended with confidence that says, "Yes, I screwed up that once, but it was an uncommon lapse that will be rectified. I will work even harder and bill a few extra hours to make up for lost faith in my value."

Provided your mistake didn't actually cause lost revenue or client relationships, you likely will be forgiven. But don't let it happen again. You get paid way too much money to make mistakes.

BigLaw or Small, You are Not a "Cog"

I know the Snark's column is meant to be witty, sarcastic, ironic, snide, and all of that, but the demeaning reference to BigLaw associates as "Cogs" is unfortunately reflective of some young lawyers' felt reality.  (Remember Jonathan Swift's Modest Proposal -- eat the poor?  It's not a joke)

Here is my advice to every first year associate at every law firm in the country -- be it a Two-Person Enterprise or a Ginormous BigLaw Endeavor: 

NOT ONLY ARE YOU NOT A COG, YOU DO NOT WORK FOR THE LAW FIRM

You WORK for the client.  If your "boss"  or your firm is not helping you do that to the highest level of your own abilities, then he/she is simply the guy/gal you need to circumvent so that you can give your client the best legal advice and services available.

THE BUCK STOPS WITH YOU.

You are a lawyer, with a lawyer's professional responsibilities and the right to be respected for the highly educated, skilled and semi-trained professional you are. 

Don't let anyone fool you.  You are not only important, you have power.  And with power comes accountability.  

Be a mensch.  Be a star. 

Welcome to the profession.

_______________________

/*  The columnists are Gini Nelson of Engaging Conflicts, Stephanie West Allen of Idealawg and Brains on Purpose, and the mother of all mediation-bloggers, Diane Levin of the Mediation Channel.  Oh yes, and me, Zelig.

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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.

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(right, me and Geoff -- not the most flattering photo of either of us but proof that we blogging mediators do in fact get together in "real time" and geographical space from time to time)

Thanks to Geoff Sharp for posting Dwight Golann's and Ellen Waldman's Power Point on Commercial Mediation Ethics, courtesy of Professor Michael Moffit at the ADR Prof Blog here.

Here's Geoff's post with commentary and here's the Power Point.

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I return from the Mediators Beyond Borders Founding Congress in Colorado with much to think, and write, about.

Let me begin today by telling you a story drawn from my community mediation practice. 

The Parties vs. The Lawyers

Crystal and Keith /* are the unmarried parents of a seven year old girl, Taniyah.  They have sought the services of the West Hollywood community mediation center because they want to discuss the resolution of their custody dispute outside the presence of their attorneys.  

After introductions, Keith and Crystal push a proposed settlement agreement across the conference table.  They are shy with one another but united in their desire to reach agreement without any pressure from "The Attorneys."  

Two hours later, we are at item no. 23 -- "neither Parent nor either set of grandparents shall physically strike The Child at any time."   

"Is this a provision you agree with?" I ask.  "It means you can never slap Taniyah's hand," I add.  "Is that something you want to agree to?"

"We don't have a choice," says Crystal.  Keith nods in assent.   

I let the word "choice" hang in the air for a moment as I begin to understand why these two bright, well-educated and articulate young parents have so reluctantly given their meek and mutual approval to every previous item they said they came to the mediation center to discuss.    

The Shadow Conflict 

I put the "proposed" agreement aside.   

"Why don't you have a choice?" 

"Because Taniyah's attorney put this into the agreement," says Keith as Crystal nods in agreement, repeating Keith's remark "we don't have any choice." 

Taniyah has an attorney, I learn,  because Keith's mother -- one of Taniyah's primary caretakers -- left Taniyah at home with her nine-year old cousin, Arabelle to run an errand.  Arabelle, a curious child, led Taniyah on an expedition to her grandparents' bedroom where the two found a stash of light porn -- Playboy and the like.  That,  I'm told, is the only reason Taniyah has an attorney.   

It quickly becomes apparent that Crystal and Keith simply assume that Taniyah's attorney is a decision-maker.  I'm still considering how to approach this problem when Keith asks the question that leads to the resolution of the "shadow" dispute between the parents and Taniyah's attorney.

"How do we get our power back?"   

Justice, Mediation and the Rule of Law

I tell this lengthy story as preface to another from this weekend's Mediators Beyond Borders Founding Congress.  Yesterday, someone suggested from the podium that we should include mediation and arbitration agreements in our own contracts with our own clients.

I raised my hand. 

"Why," I asked, "do you want to restrict our clients' access to the justice system?" once again demonstrating a fractious lack of diplomacy that makes some people wonder how I could possibly be an effective mediator. /**

It wasn't a well-placed question but it is of a type I often find myself more or less compelled to shoe-horn into any conversation that assumes mediation is best for other people. 

Here's what I wish I could have said in a more diplomatic way at some more appropriate time -- taken from Conflict Resolution, Enforcement of Social Link and Substantive Justice. 

I invite comment!!!

A number of scholars have pointed out the danger lying in an ideology of harmony related to ADR where agreement is seen as the panacea in every conflict.

They have argued that mediation was essentially supported by [the] middle upper class and social scientists whereas people . . . involved in conflicts[, including the] working class were expecting law and rights to protect them.

Emphasizing free choice, individualism, autonomy and advantage, and assuming instrumental rather than normative and religious orientations of social action, the concept [of mediation as an ideal form of dispute resolution] seems to describe the culture of professional elites rather than of residents of these urban/ethnic neighborhoods.

As Abel has stated, "there is considerable evidence that people want authority rather than informality. They want the leverage of state power to obtain the redress they believe is theirs by right, not a compromise that purports to restore a social peace that never existed."

According to those scholars, ADR could serve as a means of control and domination in keeping and reinforcing power relations. For instance, Milner Ball has defined ADR as "another form of the deregulation movement, one that permits private actors with powerful economic interests to pursue self-interest free of community norms. "

They argue that in traditional societies . . . mediation is used [when] there is no danger of retaliation from the weaker party. The[] . . . focus on relationships [diminishes the parties' focus on] justice[;] individual satisfaction has become the main purpose of conflict resolution.

Although they are conscious of the paradoxes of Law which can either "symbolize justice or conceal repression, reduce exploitation or facilitate it, prohibit the abuse of power or disguise abuse in procedural forms, promote equality, or sustain inequality, they argue that "Without legal power, the imbalance between aggrieved individuals and corporations or government agencies cannot be redressed".

_______________________

*  I have changed the parents' names and merged two separate mediations in the interest of  confidentiality.

**  The answer to this question is as follows:  I am not mediating when I am engaged in discussion with friends and colleagues.  Just as I do not observe the rules nor use the language of the courtroom at a dinner party, I do not observe the niceties of mediation in public discourse.  It would be better if I did.  I know that.  I'm working on it and will post some insights about constructive public conversations on difficult and divisive topics in my next post. 

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Thanks to the ABA Journal for giving me the opportunity to use the word "sex" in a negotiation blog.  Alas, our wayward human hearts -- and libidos -- will never stop leading us into endless acts of mischief.  See below from Judge Shines Light on Secret Pact to Settle, Hide Text Messages.

A Michigan judge has ordered the release of documents indicating that Detroit Mayor Kwame Kilpatrick settled a police whistle-blower lawsuit to try to hide text messages showing he lied about his [sexual] relationship with his chief of staff, the Detroit Free Press reports. . . . . 

An anonymous source told the Detroit News that the settlement was triggered by Stefani’s threats to file court documents referring to text messages pointing to an affair between Kilpatrick and his former chief of staff, Christine Beatty. Both had denied an affair when they testified in the officers’ lawsuit.

Legal experts told the Detroit Free Press in a separate story that the lawyers defending the city and the mayor could come under scrutiny if they knowingly used secret pacts to conceal the crime of perjury.

For full text click here. 

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The ABA Ethics Committee has given the green light to collaborative law agreements -- considered unethical in Colorado -- so long as the clients give their informed consent.  See Putting a Kinder Face on Litigation.  Excerpt below:  

“When a client has given informed consent to a representation limited to col­laborative negotiation toward settlement, the lawyer’s agreement to withdraw if the collaboration fails is not an agreement that impairs her ability to represent the client, but rather is consistent with the client’s limited goals for the representation.”

The oxymoron?  Litigation is definitionally a "contentious tactic" pursued for the purpose of making someone else behave in a way they do not wish to behave == to pay money they do not want to pay; to accept less money than they are demanding for the injuries they claim to have suffered; to refrain from trespassing on your land or demonstrating on the street in front of your house or performing on a contract they contend does not require them to obey.

Why is litigation a "contentious" tactic?  Because its entire purpose is to overcome the will of another.  It is not an invitation to dinner to discuss the dispute in an attempt to find common ground.  Does litigation  sometimes lead to collaboration?  Most certainly, as do other contentious tactics such as persuasive argumentation, ingratiation, and violence -- all of which can serve to bring the parties to the bargaining table.

I am all in favor of collaborative processes for the resolution of disputes.  It's what I do for a living for heaven's sake.  But I am also an advocate for the preservation of meaning in the English language.  Collaborative litigation is a contradiction in terms.  And if you want your client's informed consent to anything, it would be best to remember that the "litigation" part of collaboration remains the iron fist inside the velvet glove.

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I've long been saying it will take a tragedy following services provided by unqualified mediators before the States will move in to set standards and require licensing.  Here's the first breath that will stir the leaves of change in Sacramento.

Unqualified mediators prey on broken families by Linda Diebelof the Toronto Star.
 
When Miriam and Andrew Grenville's 20-year marriage ended in 2006, they agreed on one thing – protecting their children from collateral damage was their utmost priority.

A Toronto-area family's problems with the mediator they'd hired to work on their daughter's messy divorce reached a nadir when her 6-year-old son came home with a bizarre story.

During a supervised visit with his father in a restaurant, the mediator told the waitress she was the little boy's "mommy."

"He was very distressed, very, because he didn't know what was going on," said a female family member, asking to remain anonymous because their case is still before the courts.

The family was aghast but initially didn't complain. They were afraid to fire the mediator, whom they paid more than $15,000, because they feared a negative report in family court.

"Everybody told us, `Don't make the mediator mad'," she said.

When they finally did try to file a complaint they found they had nowhere to turn: mediators aren't regulated in Ontario.

Instead, anybody can hang a shingle and plunge into a highly sensitive area of working with divorcing couples and their children at a time when most are financially and emotionally vulnerable.

For the remainder of the article, click here.

Listen, this is an access to justice issue, not simply a problem that the legal profession -- particularly those legal professionals who are mediators -- can ignore. 

"I don't do family law" or "I don't work with the kind of mid- to low-income people who can be taken advantage of in this manner," is no excuse.

This is an issue that we must now all join together in an attempt to vigorously address, retaining flexibility and creativity in the profession while at the same time preventing the practice of mediation by the unscrupulous.

I ask my readers to please weigh in on this issue.  I do not have the time to spearhead this effort but will offer my services as a team member to immediately begin addressing the ways in which we can impose standards and retain independence.

Fellow bloggers? 

Geoff?  (welcome back!)  Diane?  Stephanie?  Gini?  Colm (pre-blogger)?  Les?  Mike?  John? Eric? Phyllis? Jan?  Carrie?  Paula?  Kristina?  Josh?  Dina?  Christopher?  John?  Tammy? Colin?  Leo? the Indisputably bloggers?

For responses from other bloggers that are not included in the comments below, see the following:

Chris Annunziata's Thoughtful Opposition to Licensing here -- primarily arguing that licensure would not prevent abuse; and, would bring the weight of inefficient and intrusive state bureaucracies into the process.  (But don't trust my summary; click on the link to get it direct from the horse's mouth)

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This blog follows insurance coverage issues from time to time because insurance reimburses us for losses; litigation presumes loss; and, the negotiated resolution of litigation requires the parties to understand the benefits and limitations of everyone's insurance policies.

We also talk a lot about ethics here because people and businesses embroiled in litigation are -- contrary to popular belief -- seeking a just or equitable or fair or ethical resolution.  

 

I cannot say this enough -- IT IS NEVER ONLY ABOUT MONEY.

Nevertheless, I was surprised this morning to see the National Underwriter Blog ask and attempt to answer the following question:  Is the Concurrent Causation Clause Ethical?

I also have to tell you that I never once, not on a single occasion, in 25 years of legal practice, a decade of which was spent concentrating on insurance coverage issues, did I ever hear anyone ask whether any underwriting or claims practice was ethical!

Before weighing in, I'm going to just let this question percolate in my consciousness for awhile.  If you go to the linked article, you'll see some thoughtful answers.  Aside from a little predictable judge-bashing, the readers who paused to answer this question -- both from an underwriting and a claims perspective -- did so with a depth of understanding of the issues involved and the history of the clause at issue -- the one that is at the heart of the hurricane damage claims.

If you're reading this from the land of hurricanes, you might want to check out this resource that was serendipitously emailed to me this morning:  25 Tips to Secure Your Home During Hurricane Season. 

Fellow Southern Californians can also find tips to protect your house against wildfires there.

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Claiming that the $4.85 billion Vioxx Settlement improperly "allows [defendant] Merck to dictate the advice a lawyer will offer" to clients, some Vioxx plaintiffs' attorneys have asked the federal judge overseeing the deal to "keep some of their clients outside the settlement while still allowing other clients to accept it."

Under the global settlement agreement reached by lead counsel in New Orleans last month, "if the lawyers want any of their clients to receive money from the settlement, they must recommend the deal to all their clients." 

Those attorneys resisting the requirement are saying not only that the provision "would prevent them from offering the best independent judgment for each client" but that "[a]greeing to the provision might open them to future lawsuits from disgruntled clients."

All quotations above are from Alex Berenson's New York Times article, Some Lawyers Seek Changes in Vioxx Settlement. 

Previous commentary on the ethics of this provision by legal bloggers, including our own thoughts here, can be found at the Legal Ethics Forum here, the Wall Street Journal Law Blog here, FindLaw here; the Mass Tort Litigation Blog here;  Drug and Device Law here (but please don't call them for comment); Texas Lawyer here; and, Pharmalot here.

Have you ever seen such high level free legal advice in your lifetime?  And it's not even redundant.  So, no, Concurring Opinions, I don't think we've saturated the legal blogosphere.  I think everyone is just taking a deep breath to sort through the talent and find their niche.

In the meantime, have we stopped being troubled by the advertisement of pharmaceuticals direct to consumer (image above) as if they were laundry soap? 

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Michael Moffitt, Associate Professor at the University of Oregon School of Law and Indisputably.org blogger recently posted his thoughts about the difference between the Mediation Ethics we are taught and the Mediation Ethics we Need here. 

The full post is well worth reading.  Most applicable to my own practial ethics needs, however, is the following post excerpt.

None of the existing or proposed ethical codes, he writes,  

address the relatively common and always difficult situations in which more than one ethical principle is implicated, and in which no course of action perfectly protects all of the mediation principles involved.

One party appears to have an imperfect understanding of some aspect of a deal, the other party is credibly indicating an intention to withdraw from the mediation, the conversation up to this point suggests that the issues appearing in the legal complaint are only one component of what’s going on and what each party cares about, the case is proceeding under brutal external time constraints, the media are making regular requests for updates, and the mediator isn’t sure what the best next steps might be.

That’s not just an ethical question, but there are ethical questions embedded in there. And nothing in most articulations of mediation ethical standards even acknowledges, much less guides, the balancing I must do.

Amen, brother and thanks for joining the conversation about ethics.

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

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

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

Easy to say.  Not always so easy to do.

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

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Gini Nelson is the founder and author of the Engaging Conflicts Blog.  Gini  received her law degree from George Washington University Law School in 1983 after teaching Social Problems at the University of Kansas while completing her MA in sociology.

Gini's practice  includes mediation and settlement facilitation.

Gini, who posted her response to my request for comments on mediation ethics on her own blog here, did so before I noticed and after I make a few edits here.  Any flaws in this version must therefore be laid at my door. 

Gini's pure unmolested thinking can be found here.  Gini's slightly edited thoughts (for style only) are in italics below.

As a starting point, I echo the physicians' ancient ethical code as First, do no harm.

When we look at short lists of ethical obligations, this bedrock principle appears to undergird all of them -- most of which emphasize client determination and transparency. This list should be short and it should be clear.

The obligation to do no harm, however, must be distinguished from the aspirational goal of "doing good."  

I am concerned about the blurring of lines between the two.

Is it our ethical duty, for instance, to advance the field of mediation, as much as we might aspire to do so?

Let's Take Pro Bono Services as an Example of an Aspirational Goal

I, for one, oppose mandatory "pro bono" services, whether the professionals being hauled into servitude are mediators, lawyers, physicians, accountants or interior decorators (as much as the world would benefit were it as aesthetically pleasing as, say, every shop window in Paris).

At least in New Mexico, however, we are not ethically required to provide pro bono services.  We are only asked to aspire to provide them.

This professional aspirational goal leaves it up to the individual attorney to consider what she can afford in terms of time, money and energy when considering whether to provide her services for free.  Despite the clarity with which this principle is expressed in New Mexico's Code of Professional Responsibility, I've sat in meetings with a combination of practicing attorneys, practicing mediators, state bar staff, court staff, and a judge where everyone was in complete accord on a mediator's ethical obligation to provide pro bono services.

Why the Problem?

When the people responsible for establishing and implementing court-annexed mediation programs misunderstand an aspiration as an ethical obligation, they feel free to incorporate mandatory pro bono mediation services in those programs.  In New Mexico, most state and city, government and judicial ADR programs require their mediators to provide their services free of charge. 

I understand the budgetary constraints these programs work with.  At the same time, I believe a confusion of the professional aspiration to "do good" with the ethical obligation to "do no harm" provides principled justification for program designers to expect mediators to work for free.

This, of course, harms the solo practitioner who can seldom afford to provide the same scale of pro bono services that larger or richer offices can handle.  Perhpas more importantly, it constitutes a continuing harm on the entire mediation field by demeaning the value of its practitioners' services.

This confusion also perhaps helps fuel some of the intolerance of other forms of practice that Diane writes about here.

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In response to our call to mediators to discuss the issue of mediator ethics, ADR Services and AAA neutral Jan Frankel Schau responds as follows:

First of all, bravo for raising such an interesting question. I am still mulling over the last one you raised about whether mediation seeks to do justice or only settle cases...

Here's my addition:

A mediation should, above all, protect and safegbuard the mediation process by allowing each participant to be fully heard and by facilitiating the full and fair opportunity to explore all possible options for resolution of the conflict presented.

I would also add the following:

A mediator should not

• impose upon a disputant any settlement or resolution which is against his/her will or best interest.
• knowingly encourage a settlement which is in itself illegal or immoral.
• condone or knowingly permit the perpetuation of a fraud.

A mediator must assure that all settling parties are afforded a full opportunity to consider the implications of all settlement offers and demands and to reject any settlement offer which is not acceptable, after such a full and fair opportunity and consideration.

A mediator should at all times protect the free will of the disputants in both the process and the ultimate outcome of a conflict's resolution by providing careful and thoughtful explanation of the offer and demand as well as all implications and consequences of accepting or rejecting the negotiated terms.

Happy Thanksgiving!

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Diane Levin of the Award-Winning Online Guide to Mediation and the World Directory of ADR Blogs and principal of Partnering Solutions responds to our request for comment on the Rules of Ethics governing the work of mediators as follows:  

The JAMS standards that you link to are similar but not identical to the standards of conduct promulgated by numerous other organizations and professional associations for mediators. As a practitioner in Massachusetts, I adhere to a combination of several standards that apply to my work.

Sources of Ethical Standards for Mediators

First, there are the Model Standards of Conduct for Mediators approved and adopted by the American Arbitration Association, the American Bar Association, and the Association for Conflict Resolution in 2005. 

In brief, they include self-determination by parties; impartiality of the neutral; avoidance of conflicts of interest; competence of the neutral; confidentiality; responsibility for the quality of the process; truthfulness in advertising and solicitation; accuracy of information regarding fees and other charges; and, the advancement of mediation practice.

Responsibility to Improve the Profession

That last duty I'd like to underscore, since it's one that I increasingly see mediators ignore or, worse, spurn. It calls upon mediators to advance the practice of mediation by, among other things, fostering diversity, mentoring new mediators, and -- here's the important one:

A mediator should demonstrate respect for differing points of view within the field, seek to learn from other mediators and work together with other mediators to improve the profession and better serve people in conflict.

(Emphasis mine.)

To me that means not only respecting the various models of mediation practice that abound, but to resist the temptation to label some mediators as superior or inferior to other mediators on the basis of practice area or profession of origin. We've got to stop putting each other down, folks.

Uniform Rules of Dispute Resolution

I also mediate within the Massachusetts courts which require neutrals to observe the Uniform Rules on Dispute Resolution.  Rule 9 of the Uniform Rules spells out a mediator's ethical duties which include impartiality; freedom from conflicts of interest; informed consent; disclosure of fees; confidentiality; truthfulness in advertising and solicitation; responsibility to non-participating third parties (children in a divorce case, for example, or the public and public safety in a dispute involving a public construction project); and, requirements for withdrawal.

Some points to note about these rules.

Rule 9(c), Informed Consent, prohibits mediators from providing legal advice and coercing the parties to settle.

I think this is critical, since the prohibition on providing legal advice underscores that the mediator's role is to facilitate negotiation and decision-making, not to serve as advocate. I also agree with its prohibition on coercion, which strips the parties of the power and the right to make their own decisions free from pressure by the mediator or the agenda of the court -- both of which may have an interest in obtaining the settlement of as many cases as possible.

This places the needs of the parties front and center, not as mere afterthought.

In addition, I'm a member of the Massachusetts Council for Family Mediation, which has its own rules of conduct for its members, which resemble but are not identical to the rules discussed above.

These rules require mediators to clarify for parties the difference between mediation and other processes such as litigation, arbitration, negotiation through lawyers, and therapy; and that they encourage parties to seek professional advice such as legal, financial, therapeutic, or marriage counseling.

A substantial number of my family mediation clients are not represented by counsel. Because it's easy for unrepresented parties to be confused about the mediator's role, I take great care to emphasize that my role is to mediate -- and that I will not be their lawyer, will not and cannot represent them, and will not provide legal advice -- and take care to explain the difference between a mediator and a lawyer. I would do this even if the Massachusetts Rules of Professional Conduct, Rule 2.4, "Lawyer Serving as Third Party Neutral", didn't require me to do it.

All of these various bodies of ethical rules and duties guide my conduct at the mediation table, Vickie.

But there's another ethical duty that I honor.

I don't think you'll find it formally recorded in our professional canon, but it's this: connect with other mediators.

I am fortunate to have a network of trusted friends and colleagues (and of course bloggers) in the mediation profession to whom I turn when an ethical dilemma confronts me. We need each other.

It's one reason why ABA Section on Dispute Resolution's Model Standards of Conduct Standard IX, Advancement of Mediation Practice, resonates so strongly with me. Not only do we benefit as individuals, but we benefit collectively when we work together to improve our practice.

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(photo Money! by David Beyer)

"Three can keep a secret if two of them are dead."  Benjamin Franklin

Do you know whether your settlement conference can be considered a mediation?

Do you know whether mediation confidentiality rules will prevent you from enforcing terms of an agreement that have not been included in the deal points hastily scrawled at mediation's end?

Do you know what type of confidentiality protections govern settlement negotiations that are not "mediated"?

Do you know you could be prevented from proving you were fraudulently induced to enter into an agreement if it was negotiated during a mediation?  

If your answer to ANY of these questions is "no," you should take a look at the Power Point Presentation on Mediation Confidentiality that I recently gave as an MCLE teleseminar. 

I've included in this presentation the speakers' notes so that you'll be able to obtain almost as much benefit from the Power Point as did the "live" participants.  

POWER POINT PRESENTATION WITH SPEAKER'S NOTES

I mention several great resources in the presentation including

• local mediator Bob Steinberg's recent article on Negotiation Ethics here.
• local policy holder coverage attorney Kirk Pasich's article on Insurance Bad Faith in Mediated Settlement Conferences here.  
• Disputing Irony: A Systematic Look at Litigation About Mediation by James R. Coben & Peter N. Thompson from the Hamline U School of Law. 

I also have an entire page of resources, together with a form mediated settlement agreement here.

 

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(image links to ABC News article on New York's own recent lawsuit against Merck)

In his provocative Los Angeles Times article Vioxx deal may cause pain, staff writer Daniel Costello asks whether the contingent settlement agreement we've written about here, here and here raises an ethical dilemma for Plaintiffs' attorneys.

(and for a well-informed and thorough analysis of the settlement, see the Mass Tort Litigation Blog article on the issue here)

As Costello reports: 

The highly unusual agreement not only requires 85% of plaintiffs to agree before it can be finalized but also might unduly force some claimants to settle or risk losing their lawyer.

That's because the deal includes highly unusual restrictions on plaintiffs' lawyers. The settlement requires them to recommend the deal to all of their clients or none. In addition, lawyers must stop representing any clients who turn it down as long as they don't violate ethics rules.

The agreement was hammered out by Merck and a committee of top trial lawyers who represent Vioxx claimants. Lawyers for both sides said it was a good deal because it provided immediate and fair compensation instead of lengthy trials with uncertain outcomes. Merck requested the all-or-nothing conditions because it feared lawyers would settle weaker cases and cherry-pick stronger ones for trial and possible higher payouts.

Stephen Gillers, a professor of ethics at NYU School of Law, wins the compelling legal metaphor of the year award for suggesting that

Clients are not inventory that lawyers can just shed when they become inconvenient. It's forbidden.

Local trial attorney Tom Girardi, however, who took at least one 'bellwether' Vioxx case to a jury verdict before Assistant Supervising Complex Court Judge Victoria Chaney in Los Angeles earlier this year, notes that it is 

always the clients' decision to accept a settlement or not, and lawyers aren't going to do anything that's unethical [and that] those considering [whether to accept the offer] should know these are not easy cases to try in court.

So is a Mass Tort Injustice on the Horizon?  Not Likely. 

The law -- and the contract between attorney and client -- gives both the right to withdraw from the attorney-client relationship for any or no reason.  Generally, however, the relationship continues unless the same type of "irreconcilable differences" that permit husband and wife to divorce, arise between counsel and client.    

One of the most common reasons for the dissolution of the attorney-client relationship is a disagreement over settlement.  The attorney is not, of course, the client's indentured servant and the client is neither chattel nor "inventory."   

If the attorney believes the client has been offered a settlement that is a better alternative to further litigation and trial, he would dishonor his ethical obligation if he didn't say so.  If the client disagrees and their difference of opinion cannot be resolved, they separate.  

The only ethical requirements on the part of the attorney in this circumstance are:  (1)  not to abandon the client or separate at a time when it would cause harm, i.e., bowing out on the eve of trial; and, (2) not putting the attorney's own interests above those of the client.

This is where that pesky contingency fee comes in. 

Any attorney who has a one-third to fifty percent financial interest in a settlement reached or judgment entered in his client's case will often appear to have a financial interest that conflicts with his client's.  This apparent conflict, however, is actually more of a guard against unnecessary litigation than the defense lawyers' practice of charging their clients an hourly fee. 

A contingency attorney lives or dies by his ability to assess the risk of victory or loss and maximize the value of the threat of further litigation and trial to the defendant.  

When the contingency fee intersects with mass tort practice, however, common daily  practice is writ so large that the tension between attorney and client that accompanies all personal injury litigation can be made to look like injustice -- clients as inventory and attorneys as self-serving monsters.

Let's Talk About the Risks in the Real World

Tom Girardi, after trying a brilliant case to the jury in Judge Chaney's courtroom, lost to Merck.  In closing, Merck's attorney argued to the jury that Tom's client was "all in" based upon his testimony about the number of Vioxx tablets he'd taken. 

Clients, however, just like any other fallible human beings, "forget" or dissemble.  Whatever the Plaintiff's "true" recollection, the pharmacy records proved otherwise.  He had not only not taken the number of Vioxx tablets prescribed -- his recollection of how many he took was not even close.  

Can the Vioxx attorneys predict victory?  No.  Can Merck?  Nope.  Did both sides take their best shot at trying a couple of dozen cases at enormous expense.  I think so.

Is there an ethical problem here?  Not likely. These are some of the best personal injury trial attorneys in the country.  And they don't get that reputation by settling their clients' claims for less than they're worth.  

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