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

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 confront