Google, Viacom and YouTube: What's Holding Up a Settlement
Today the Silicon Alley Insider in its post Google, Viacom: We Won't Settle YouTube Fight Out Of Court asked the same question about Google and Viacom that we've been asking about J.K. Rawling and a middle school teacher -- Whuzzup with the whole settlement thing?
As Alley reports, David Eun, VP in charge of Google content partnerships told Dow Jones Newswires ``we're going all the way to the Supreme Court. We're very clear about it.''
In the law biz we call this "posturing," and that "all the way to the Supreme Court" comment we call laughable posturing. Alley says:
Call us dreamers, but we still think both sides could kiss and make up before this gets to the Supremes. After all, the two sides were negotiating for months before going hostile. And Sumner Redstone's other media company -- CBS -- seems quite happy with YouTube. So while both sides can argue that there are important principles at play here, we're pretty sure they can get resolved with an appropriately sized check.
Of course it might well not be the size of a check but some other set of commercial exchanges, concessions, or synergies that will eventually settle the thing.
These are business people for goodness sakes. And never was a business person born who wants to establish Supreme Court precedent. Talk about giving away your power and control.
We welcome comments from more knowledgeable readers!
50 Ways to Leave Your Dating Service Arbitration Agreement
You just slip out the back, Jack
Make a new plan, Stan
You don’t need to be coy, Roy
Just get yourself free
Hop on the bus, Gus
You don’t need to discuss much
Just drop off the key, Lee
And get yourself free
Where matchmaking service moved to compel arbitration of clients’ action alleging that "consulting agreements" were fraudulently induced, and agreements were [within a] class of contracts regulated by state law expressly rendering nonconforming contracts void and unenforceable, agreements’ failure to expressly set forth language required under dating service statutes--Civil Code Sec. 1694, et seq.--rendered [them] and [the] arbitration provisions [contained in them] unenforceable. Duffens v. Valenti - filed March 27, 2008, Fourth District, Div. One Cite as 2008 SOS 1811
John Adams and Ken Cloke's new Book Conflict Revolution
(image from Fixing Australia, the Blog)
My husband and I were watching part II of the John Adams series on HBO last night -- the part where Benjamin Franklin gives Adams (Paul Giamatti) some OJT on international diplomacy, beginning with -- and I paraphrase -- "you can't get a man to do what you want him to do by publicly humiliating him."
Later, Abigail Adams (Laura Linney) gives essentially the same advice in a womanly way.
"A man likes to make his own decisions," she says as she sends John off to the Continental Congress to seek men and arms (and help from the French) in Massachusetts' recent violent confrontations with the British Army.
Abigail takes a breath to make sure her head-strong husband can hear her.
"Men," she concludes, "do not like to have their decisions made for them."
Still, it wasn't until we reached the movie's scenes dramatizing the delegates' after-hours meetings in the local public house that my husband finally turned to me and said "they're mediating in separate caucus."
The Unity Necessary for Political Change Requires Mutual Self-Interest and Common Ground
The unity necessary to make the agonizingly difficult 1776 decision for independence, revolution and war was not achieved by persuasive argumentation, but by the alignment of each state's self-interest with the self-interest of each other state. This was Franklin's brilliance as international ambassador and as one of the founders of our unprecedented and improbable political enterprise - the united states.
All of which takes me to Ken Cloke's new book Conflict Revolution -- Mediating Evil, War, Injustice, and Terrorism -- which I've been reading in draft but that you'll soon be reading in print -- pre-order now -- courtesy of Janis Publications.
I want to tell you all about Ken's revolutionary shift from rights and power on the one hand to mutually beneficial interests on the other, but I've got work to do. For now, I'll leave you with a snippet from his last chapter which should whet your appetite for more.
Political theorist John Schaar wrote:
“The future is not some place we are going, but one we are creating. The paths are not to be found, but made. And the activity of making them changes both the maker and their destination.”
Ultimately, we are the social, economic, political, and environmental impediments we are seeking to overcome. All the problems and conflicts we want others to resolve are already present within us. The systems, paradigms, cultures, and environments we regard as dysfunctional exist not just around and between, but within each of us. They are us, even if we have devoted our lives to changing them, and must be transformed both within and without.
Systemic, paradigmatic, transformational, revolutionary changes therefore require personal as well as social revolutions. These revolutions do not happen merely by participating in recycling efforts to reduce environmental pollution. At their deepest level, they require us to actually experience ourselves as no different from the plants and animals we are destroying and, more problematically, from the people who are doing the destroying. Only by accepting personal responsibility for global problems on this scale can we discover where they begin inside us, and identify the practical steps we can take to stop them at their source.
Consequently, we not only need to transform the dominating and coercive nature of social, economic, political, and environmental power, and dismantle them at their systemic source by expanding the use of interest-based alternatives and increasing the ability of civil society to solve problems collaboratively. We also need to refuse to participate in them personally, even when they are dedicated to achieving “good” ends. This is no easy matter, both because a great deal is at stake and because domination and coercion are not just large-scale events, but small, barely noticeable everyday behaviors whose origin lies in all of us.
Negotiation, Mediation, Legal Careers, and the Rule of Law
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For more hilarious law cartoons by the fabulous Charles Fincher, click here.
Yesterday, I had the distinct pleasure of speaking to, and then participating in a mock mediation with, Lisa Klerman's USC Law School Mediation Clinic students.
Among these bright, energetic, earnest law students are some who would like to make mediation a career before a period of sufferance in the rights and remedies business. It always saddens me to be reminded that we "law elders" do not routinely make it clear to our young apprentices that the business and society of the law is as broad, exciting and varied as their own imaginations can make it. In other words, I encourage young people to do with their law degree whatever the heck they like, including mediating disputes. They need only understand that they are choosing an entrepreneurial rather than an institutional path. They are breaking new ground.
What does this have to do with negotiation? Our ability to negotiate our first post-law school employment opportunities or to end a hostage crisis is embedded in, supported by, and impossible without, a society governed by the rule of law.
Because I don't have a lot of time to explore this topic this morning, I'm cannibalizing my own work to ground both myself and my readers in the topic "culture and the law." We'll be returning often to this theme many times over the next several months.
This item is from YouTube and the Law: What it is or What it Will Be
Culture and consumers precede the law. They rarely, if ever, conform themselves to the needs, interests and desires of business. Culture and consumers govern business. Business does not govern them.
The law follows culture. As we noted over at the IP ADR Blog in Disputing Humor: Comedy, Folkways and the Internet, "the law" is not just a set of rules, but a life condition "in which [people] are carriers of rights and duties, privileges and immunities."
No formal structure supporting the system of law need be visible. . . Law can be found any place and any time that a group gathers together to pursue an objective. The rules, open or covert, by which they govern themselves, and the methods and techniques by which these rules are enforced is the law of the group. Judged by this broad standard, most law-making is too ephemeral to be even noticed. /*
In other words, we govern ourselves more or less naturally, until a conflict within the group arises. When that happens, the group is "forced to decide between conflicting claims [and the] law arises in an overt and relatively conspicuous fashion. The challenge forces decision, and decisions make law." Id.
*/ See, Weyrauch and Bell, Autonomous Lawmaking: The Case of the "Gypsies" (1993) 103 Yale L.J. 323 (1993) quoting Thomas A. Cowan & Donald A. Strickland, The Legal Structure of a Confined Microsociety (University of California, Berkeley Working Paper No. 34, 1965). The Weyrauch book on Gypsy Law can be found here.
Writers Guild Ready to Negotiate in Wake of Directors' New Deal
The Writers' Guild Responds with Predictable Petulance -- Analysis Later
Now that the DGA has reached a tentative agreement with the AMPTP, the terms of the deal will be carefully analyzed and evaluated by the WGA, the WGA's Negotiating Committee, the WGAW Board of Directors, and the WGAE Council. We will work with the full membership of both Guilds to discuss our strategies for our own negotiations and contract goals and how they may be affected by such a deal.For over a month, we have been urging the conglomerates to return to the table and bargain in good faith. They have chosen to negotiate with the DGA instead. Now that those negotiations are completed, the AMPTP must return to the process of bargaining with the WGA. We hope that the DGA's tentative agreement will be a step forward in our effort to negotiate an agreement that is in the best interests of all writers.
Directors' Guild Announces Tentative Deal with Producers
Director's guild press release below. Analysis will follow.
LOS ANGELES - The Directors Guild of America (DGA) announced today that it has concluded a tentative agreement on the terms of a new 3-year collective bargaining agreement with the Alliance of Motion Picture and Television Producers (AMPTP).
Highlights of the new agreement include:
- Increases both wages and residual bases for each year of the contract.
- Establishes DGA jurisdiction over programs produced for distribution on the Internet.
- Establishes new residuals formula for paid Internet downloads (electronic sell-through) that essentially doubles the rate currently paid by employers.
- Establishes residual rates for ad-supported streaming and use of clips on the Internet.
“Two words describe this agreement - groundbreaking and substantial,” said Gil Cates, chair of the DGA's Negotiations Committee, in announcing the terms of the new agreement.
“The gains in this contract for directors and their teams are extraordinary – and there are no rollbacks of any kind.”
Formal negotiations between the DGA’s 50-member Negotiations Committee and the AMPTP began Saturday, January 12, and were concluded today. Talks were led by Cates and DGA National Executive Director Jay D. Roth. They were preceded by months of informal discussions and nearly two years of preparation and research by Guild staff and consultants.
“This was a very difficult negotiation that required real give and take on both sides,” said DGA president Michael Apted. “Nonetheless, we managed to produce an agreement that enshrines the two fundamental principles we regard as absolutely crucial to any employment and compensation agreement in this digital age:
First, jurisdiction is essential. Without secure jurisdiction over new-media production—both derivative and original—compensation formulas are meaningless.
Second, the Internet is not free. We must receive fair compensation for the use and reuse of our work on the Internet, whether it was originally created for other media platforms or expressly for online distribution.”
The agreement includes the following gains in New Media:
- Jurisdiction: The new agreement ensures that programming produced for the Internet (both original and derivative) will be directed by DGA members and their teams. The only exceptions are low-budget original shows on which production costs are less than $15,000 per minute, $300,000 per program, or $500,000 per series—whichever is lowest.
- Electronic Sell-Through: EST is the paid download of features and TV programming. The agreement more than doubles the EST residual for television and increases the feature film residual by 80% over the rate currently paid by the employers.
Specifically, the EST residual rates will be
- 70% for television downloads and
- 65% for film downloads, above a certain number of units downloaded. Below that, residuals will be based on formula employers currently pay.
Payments for EST will be based on distributor’s gross, which is the amount received by the entity responsible for distributing the film or television program on the Internet. Having distributor’s gross as the residuals basis was a key point in our negotiations.
The companies are now contractually obligated to give us unfettered access to their deals and data. This access is new and unprecedented and creates a transparency that has never existed before. Additionally, if the exhibitor or retailer is part of the producer’s corporate family, we have improved provisions for challenging any suspect transactions.
Ad-Supported Streaming: After an initial 17-day window for free promotional streaming of Internet programs, companies must pay 3% of the residual base (approximately $600 for network prime time 1-hour drama) for 26 weeks of streaming. They can continue to stream for an additional 26-week period by paying an additional 3% -- or a total of $1,200 for one year’s worth of streaming. (During a program's first season, the 17-day window is expanded to 24 days to help build audience.)
Sunset Provision: Allows both sides to revisit new media when agreement expires.
“Our fundamental goal in these negotiations was to protect our interests in the present while laying the groundwork for a future whose outlines are not yet clear,” said Cates. “We knew that gaining jurisdiction over new-media production and winning fair compensation for the reuse of our work on the Internet were the key issues for setting a framework for the future, but we also had to secure real gains for our members in today’s world.”The new tentative agreement includes the following:
- Annual wage increases of 3% for primetime dramatic shows and daytime serials and 3.5% for all other covered programming.
- Outsized increase in director’s compensation on high-budget basic cable for series in the second and subsequent seasons.
- Annual residual increases of 3% for primetime shows and 3.5% for all other covered programming.
- Specific advances that pertain to members of the director’s team.
Details of the new agreement will be submitted to the Guild's National Board for approval at its regularly scheduled meeting on Saturday, January 26, 2008. The DGA’s current contracts expire on June 30, 2008.
Conflict in Our Own Backyard: Should Someone Accept Clooney & Hanks Offer to Mediate the Writers Strike
Finally an excuse to post a photo of the world's sexiest man on my blog!
The excuse?
Professor Carrie Menkel-Meadow's Concurring Opinion Post Can Actors Do Everything? letting us know that George Clooney and Tom Hanks have offered to mediate the writers strike as follows:
George Clooney, Tom Hanks and other actors have offered to step in and "mediate" the writer's strike. They say they will just tell the two sides "you have to live with this (particular terms) and get over it." Some bloggers suggest only "starpower" will make the producers bargain in good faith.
I hope these well intended actors know what they are doing when they offer to mediate. It sounds like they don’t. Mediators don’t tell the parties what to do (”you need to live with that and get over it”). They facilitate negotiations between the parties so they can (together) come to an agreement and “live with it.”
For the remainder of Professor Menkel-Meadow's post, click here.
Of course anyone can mediate. Each one of us do it on a daily basis in some form. Parents do it between children; children do it with their peers; employees do it on behalf of their employers or colleagues; and, I'm certain, actors and directors do it with an incredible array of difficult personalities both on and off-set every day.
Co-Mediation: An Idea Whose Time Has Come
I have a friend and colleague, fellow Judicate West panelist and AAA arbitrator Jay McCauley who co-mediates medical malpractice and other health care litigation with a physician mediator, Marc Lebed through their organization Medical Dispute Professionals.
They are harnessing the power of a subject-matter-specialist/mediator team to help doctors and patients resolve their disputes.
A similar process could well be the answer to the writers' strike. Substantial research has found that the most powerful persuasive force is the opinion of an individual who genuinely "feels your pain" or is inside your "decision cycle" (h/t to Colin Powell).
If Clooney and Hanks teamed up with a great mediator, it wouldn't surprise me if their addition to the mediation team might well make the difference between continued impasse and agreement.
It couldn't possibly hurt, could it?
From the "Where Do You Get Your Ideas" Files
If you're a writer -- you know -- of fiction -- and you somewhat compulsively track your blog statistics because, well, you don't smoke cigarettes anymore, your blogging day doesn't start any better than this.
Search google.com (sue step mother for wrongful death)
The mind reels with the possibilities. But I have paperwork to do.
The video, for those with procrastination in mind, takes about as long to watch as stepping outside to smoke a cigarette would. And "stop smoking" was one of your New Year's resolutions, right?
Divide and Conquer: Negotiating the Writers' Strike Past Impasse
(image from Wikimedia Commons: the Power of Free Content Media)
When you've got several to hundreds of bargaining partners, there is always a moment where the optimal negotiating move is to cut separate deals with those who are weaker (less well-equipped to continue the battle); stronger (better equipped to take a negotiating loss); more favorably disposed to your position or less fixed in their bargaining posture than other members of the opposition coalition.
No one wants to be the last man standing.
In this town of hyphenates (actor-producer-director) it makes sense for the embattled WGA to cut separate deals with those whose hyphenated descriptions include the word "writer." So it is that Forbes.com reports via Reuters in Striking writers union reaches deal with Letterman -- and the New York Times reports in Letterman and Writers Guild Reach Agreement -- that Letterman's "writer-friendly" company gave the writers "what they are asking for [because] they deserve it, and we’re happy to give it to them.” (quote from NYT)
Forbes.com excerpt below:
Negotiations between the WGA and major studios on a new contract covering 10,500 striking film and TV writers broke down Dec. 7, but the union has been pursuing separate talks with smaller, independent production companies.
The WGA's Hermanson told Reuters that talks between the union and Letterman's company had produced a "full, binding, independent agreement" that includes provisions for paying writers for work distributed over the Internet.
Compensation for Internet content has been the main sticking point in talks aimed at ending the WGA strike, now in its eighth week.
Several other late-night television hosts, including Jay Leno and Conan O'Brien of NBC and Jimmy Kimmel of ABC, are planning to resume broadcasts of new episodes on Jan. 2 without their writers.
The Angriest Lawyers on the Block: a Rorschach Test
From the Simple Justice Blog -- a Rorschah test.
And while we're on the topic of funny lawyer ads, see the ABA Journal's article Funny Lawyer Ads are No Joke in New York by Martha Neil, teh Journal's online legal affairs writer here.
The Writers Explain the Strike in Three Minutes and Fifty Seconds
Thanks to the National Law Journal's Los Angeles Legal Pad for posting this short video "Why We Strike."
A post explaining the reason the reasons given here feel pretty darn persuasive next.
And, by the way, we're really happy to see theL.A. Legal Pad becoming much more substantive a legal news source than it originally was.
We're pretty certain we have Jason Siegel to thank for this improvement in content and thank him we do!
We're looking forward to watching it grow!
Avoiding Evil and Promoting Good: the Chapter Being Procrastinated
(photo from Hippo Blog: Stanley Milgram redux)
O.K. I'm writing, I'm writing. But to write this book I also need to read. And that means accessing the internet as I write. Hence the last "negotiating procrastination" post.
"But wait a minute," you're saying, "I'm not reading this blog to be inside this woman's stream of consciousness."
But what If that stream of consciousness has dipped itself down into a really tremendous article by social psychologist Philip G. Zimbardo, who conducted the Stanford Prison Experiments in the early '70s that had to be shut down.
Why?
Because the student "guards" began tormenting the student "prisoners," the student "prisoners" began to have mental break-downs, and Zimbardo himself -- by his own accounting -- had become "a Prison Superintendent [who] began to talk, walk and act like a rigid institutional authority figure more concerned about the security of “my prison” than the needs of the young men entrusted to my care as a psychological researcher."
"Well, that might be interesting," you say.
It is! And you can read the entire article -- The Psychology of Power and Evil: All Power to the Person? To the Situation? To the System? here.
(above, a short documentary with original footage from the prison experiment)
Most Importantly, Here are a Few Prescriptions by Zimbardo for Creating a Culture of Good Rather than of Evil -- all text quoted from the end of the article:
Continue Reading...Money mediation redux
Still riffing off of Geoff Sharp's Money Mediation #1 (where's two big guy?)
I keep telling friends that the following formula is descriptive, not prescriptive, and yet, I don't think I really know what I'm talking about.
The formula? In a pure distributive bargain, the case will settle half-way in between the first two reasonable offers.
The belief? I believe the key phrase here is "reasonable," which is not surprising since the entire practice of the law seems to be precariously balanced atop that single word.
The observation? For the past three and one-half years of mediation practice I have performed this math equation (I know it's only arithmetic) at the moment I believe the first two reasonable offers have been put on the table. Often I'll go back to earlier offers -- ones I considered unreasonable. I generally find that the arithmetic works there too. Add the offer and the counter. Divide by two.
I do sometimes say "you seem to be heading toward $X" when the parties are claiming impasse and I'm not buying it. They seem surprised that I somehow know what they're thinking.
(twilight zone music here)
The Question. What's the deal with this little formula, taught to me as holy writ by the Mediating the Litigated case people.
Is it some sort of golden mean or cognitive bias (aha! woke you up Michael Webster in Canada!)
If any of the following people were to give an answer to this question, I'd be deliriously happy, which just goes to show you just how much I'm procrastinating writing chapter three:
Geoff Sharp (the "coalface" perspective)
Anyone at Indisputably.
Richard Rueben (who in any event owes me a phone call) at U. of Mo. (my social psych guru)
money money money money money money money money money money money money money
Take a look at Geoff Sharp's post on the so-called pure money case and then please please please send me your stories on meaning-making about money in the course of mediated or non-mediated negotiations.
(see our previous posts on the subjective experience of money here and here)
What do I mean by "meaning making"?
Let me give you an example of the type of story I'm looking for.
I was mediating a personal injury case and we'd reached impasse. The Plaintiff was having trouble understanding how the amounts of money being discussed could possibly adequately compensate her for her injury -- a self-report of daily 3-hour headaches.
After much discussion I sat down with my calculator and "translated" the final offer of settlement into an hourly wage for two years worth of headaches "if suffering were your full-time job."
The resulting "hourly income" was pretty substantial when viewed as an hourly payment for pain. This way of presenting defendant's offer broke the impasse.
Why?
Before we translated the total settlement offer (minus costs and fees) into a compensation scheme familiar to the Plaintiff -- an hourly wage -- she had no metric against which to value that offer. The money wasn't real until she understood it in terms of earnings.
I've heard many other stories like this but my appetite for them is insatiable. Whenever a mediator or lawyer tells me a story like this, I am always inspired and heartened. Their telling also helps me become better at facilitating "pure money" negotiations. I'm hoping they will also be useful to my readers.
Thanks to the Wise Law blog for picking up on the beginning of what I hope will be an expanding conversation among mediators and litigators about "pure money" negotiations.
More Thoughts from a Labor Negotiator on the Hollywood Writers' Strike
(right: Julia Louis-Dreyfus on the picket line)
When we first wrote about the writers' strike and the active picketing just down the street here at Paramount on Santa Monica and CBS on Beverly Boulevard, we asked our friend Jim Stott for comment.
Because Jim's excellent comment was buried in small type in our "comments" section, I give it its due here by bringing it up into a post of its own.
(for "live" WGA Strike Blogging from the Los Angeles Times, click here)
After noting that his own comments are not "in any way intended to minimize, diminish or otherwise criticize the hard efforts of the writers, producers or federal mediator's efforts to reach agreement in this ongoing dispute," Jim opines as follows:
Often, both parties become "blinded by the sparks" associated with their lack of progress at the bargaining table. In those situations, a psychological phenomenon occurs wherein parties start start to blame the 'other side' through personal attacks; one against the other. As this practice grows, the underlying issues that really need to be discussed are subsumed by the superficial and surface diatribes.
Obviously - to the outsider - settlement can only be reached when the parties focus on the substantive and underlying issues as a mutual and common problem. Often, both sides fail to realize that a problem for one contingent group is ultimately a problem for all contingents. If force, i.e., a work stoppage or lock-out is used as a means for getting the 'other side' to soften their positions, the latent residual feeling caused by such an action is often long-lasting and will materially damage the ongoing relationship between all stakeholders involved.
In practice and theory, writers need work provided by the producers, just as producers need the work-product of the writers. In negotiations, it is this symbiotic internal relationship that is most important. Long after the work stoppage has been resolved, the latent and labile underlying emotional distrust and dissatisfaction will continue; often for years.
The federal mediator assigned to this particular case is exceptionally well qualified. He is a colleague and friend. I have no doubt that his professional services provided in this situation were of the highest quality.
Rarely however, even with the presence of a mediator, negotiations break down and reach impasse. Intractable parties are often the stock-in-trade for federal mediators. It not at all unusual to hear the warring factions self-diagnose their positions as being "miles apart." On rare occasions though, parties are so far apart that their tangential distances and differences, when measured in cost and dollars can be significant.
It would appear that producers and writers are faced with unanticipated outcomes associated with the expotential growth of the broadband internet capacity and online streaming video and audio. On the one hand, producers may see this as a marketing and distribution opportunity, by which they will increase audience participation and marketshare. While at the same time however, writers may see this exploding media as one in which their recognition, compensation and earning potential has been and will be diluted and otherwise diminished.
These complex negotiations are never easy and are often rocky. The challenge to all the stakeholders is to continue the conversation and continue to make progress, albeit ever-so-slowly. Even if their conversations are not face-to-face, but done through an intermediary; they are critically important.
As long as all dialogue has stopped, there virtually is no chance the impasse will self-resolve; thus the stand off will continue indefinitely. This is precisely what happened in the Caterpillar work stoppage which lasted over five years. All communication stopped. Distrust on both sides grew expotentially. Replacement workers were hired. All the while, the union pickets were outside the plant, locked out, while the plant production continued to grow.
While this is an extreme case in labor management relationships, it is my hope that productive conversations, clandestine and off the record or not, continue. This is the only way in which this dispute will resolve without inflicting extensive and long-lasting damage to all stakeholders.
Currently, Jim Stott is a Principal and Senior Consultant with Stott & Associates of Gig Harbor, Washington. Until recently, he was Assistant Director at the Straus Institute for Dispute Resolution, Pepperdine University School of Law.
Prior to joining Straus, Jim spent nearly six years as a Commissioner with the Federal Mediation and Conciliation Service (FMCS) in Los Angeles and Washington, D.C., where he provided collective bargaining mediation and negotiation consultation services to federal agencies, private and public sector employers, and labor unions.
Jim was also instrumental in the design and development of joint labor/management committee problem solving protocols used by Los Angeles Dodgers, Southwest Airlines, Toyota, Kaiser Permanente, Boeing and Walt Disney Studios.
In his professional and academic career, Jim mediated more then 1,500 disputes. The majority of these conflicts were associated with employment, labor/management or collective bargaining issues. Jim has also provided pro-active and pre-emptive conflict management design systems. In his teaching and coaching capacity, he has taught mediation protocols and processes to over 1,500 students in academic settings, court programs, international labor unions as well as management/employer groups including CUE.
Jim holds a Bachelor of Science Degree in Business and Management from University of Redlands, as well as a Masters Degree in Dispute Resolution from Pepperdine University School of Law.
THANKS FOR THE GOOD THOUGHTS JIM!!
WE MISS YOU DOWN HERE IN SOUTHERN CALIFORNIA!!
Despite Writers' Last Minute Concession for Federal Mediator, Well-Funded Strike Enters Day Two
(Jay Leno who says "no writers, no show" -- photo from Yahoo Entertainment)
This very local news on the Writers' Guild strike is just in from the U.K. -- Writers Block Hollywood as Strike Takes TV Shows Off the Air (excerpt below, and kudos for yet another unknown artist of the terse and witty headline).
On Sunday, a federal mediator made a last big push to avert the strike. The Writers Guild made one big eleventh-hour concession, dropping its insistence on a doubling of royalties from DVD sales but that was not matched by anything substantial enough from the producers to clinch a deal.
After three months of contract negotiations, which never entirely looked like producing an agreement, both sides are extraordinarily well prepared. The writers have commandeered 300 strike captains on both coasts who will direct pickets and other protests, and have amassed a strike fund of about $12.5m (£7m)which they will farm out in the form of loans to the neediest writers and their families.
In the meantime, you can see Jay Leno and Julia-Louise Dreyfus on the picket line (see TV Squad here on Leno handing out Krispy Kremes to strikers) down the street here in front of the famous Paramount Studio Gate if you click on the L.A. Legal Pad's coverage of the strike which links to a Channel 2 newscast featuring those well-known comedians.
We'd love to hear from any of our readers who have experience negotiating labor disputes.
On YouTube, Litigation Can Kill You: What Does Mediation Have to Do with It?
(right: Carmela Soprano Files for Divorce)
I spent a great deal of time yesterday editing a video (my abysmal webcam and video editing skills live at Geoff Sharp's Mediation vBlog this morning do not beging to do justice to the intelligence and insight of Milan Slama, a community and business mediator who is the subject of the interview).
In the process, I "grazed" around YouTube (see my YouTube page here) to see what kinds of mediation and litigation videos people have uploaded.
I'm sorry to report that most of them are in these varieties:
- the "mediate because you really don't have access to justice" variety here and here -- delay; expense; "out of control nightmare";
- the angry "mediation (or litigation) doesn't work" genre -- here and here.
- the crazed litigant gunman here and here (the "adversarial process -- or even a patent application -- can kill you" narrative)'
- the "only lawyer you can afford is drunk" variety and, finally, to lighten the mood,
- the "we're Italian; we don't believe in divorce" Tony Soprano-style here.
At Geoff Sharp's MediationvBlog however, you'll see some pretty high level discussions about both the benefits and the challenges of both mediation and litigation for attorneys, mediators, judges and, lest we forget, clients.
There are a few words on negotiation tactics and strategy there as well.
Check it out.
Conflict Avoidance: Social Obligations, Larry David and Shame
How deeply do you renosonate with the feelings described by New York Times writer Bob Morris in yesterday's "Age of Dissonance" column, How to Avoid, Well, You.
THE invitation was too good to refuse — an August weekend at the august home of a friend on a little New England island.
Yet, from the moment I pulled up to the ferry dock, there was dread in my soul. Two years ago, I had offended an entire family of friends likely to be there. Would one of them be on the boat, where avoidance is impossible?
Checking a reservations list, I was relieved to find myself in the clear. But later, getting an ice cream on the island’s small village green felt like being in highly exclusive enemy terrain, and I walked with head down and turned in fear from each passing station wagon.
In the church thrift store where space is tight (and the clothes irresistible) I hid behind racks with my heart pounding as each shopper entered.
Why, he asks, are we afraid of the meeting (or confrontation) with the guy whose call we didn't return or manuscript we didn't read? Whose invitation we didn't accept, whose feelings we offended, or who stole our client?
HELP FOR THE CONFLICT AVOIDANT
It was my friend and colleague Ken Cloke who taught me there were five means of dealing with conflict (suppression, avoidance, resolution, transformation and transcendence) and University of Missouri Law Professor and friend Richard Reuben who taught me that there is no such thing as "bad" conflict.
It was through my communnity mediation experience, however, that I finally learned it was better to address than to avoid conflict. I have also learned that people will, given the right conditions, spontaneously reconcile. Those conditions? Having hope that reconciliation can be achieved without fear of sustaining psychological or physical harm, opening and maintaining channels of communication, and the assistance of a third party who is willing to patiently and lovingly sit with those in conflict like a parent with children recovering from a fever or bad dreams.
Listen, I have seen an elderly mother reconciled to a child who sued her and then served her with an eviction notice after two years of estrangement. I have seen (in a documentary film on restorative justice) a woman whose brother raped her at knife point, collapse sobbing into his embrace at a prison where he'd already been incarcerated for this crime for years. I have seen a man who refused to speak to his gay neighbors for five years stand up at the end of a community mediation and say, "may I hug the two of you?"
These events are not the rare occasion or the exception to the rule. Nor are they the result of anyone's brilliant mediation or conflict resolution skills.
They are the norm, the product of the process rather than the result of the technique.
A mediator can probably prevent these spontaneous acts of reconciliation, but s/he does not create them. At best, s/he presides over them, serves as their sponsor or appreciative audience, and counts herself privileged to have participated in them from the sidelines.
WHY WE AVOID CONFLICT
Mr. Morris asks us what it is that drives us to cower behind clothing racks to avoid seeing someone whose telephone call we "forgot" to return. What indeed, when when we live among people who have reconciled with brothers who raped them or assailants who killed members of their family?
The answer to the question is shame, the most powerful constellation of emotions we are capable of experiencing. The lengths to which we will go to avoid these feelings was hilariously depicted just last night on Curb Your Enthusiasm, an episode you're just going to have to see.
Your punishment for not getting your shame-education from pop television references is to read an excerpt from an academic article (written by someone very close to me) on the origins of shame and its role in restorative justice.
The word shame is derived from the Indo-European skem which means "to hide." Shame makes us want to hide - from ourselves, our God and our peers - making shame an existentially isolating state of mind. Feeling shame makes a person "dejection-based, passive, or helpless," causing the "ashamed person [to focus] more on devaluing or condemning his entire self" than upon his behavior. He sees himself "as fundamentally flawed, feels self-conscious about the visibility of his actions, fears scorn, and thus avoids or hides from others."
The shamed individual wants "to undo aspects of the self" whereas the guilt-ridden one wishes to undo aspects of his behavior. It is therefore not surprising that guilt tends to motivate restitution, confession, and apology, whereas shame tends to result in avoidance or anger.
The psycho-biology of the constellation of emotions we call "shame" is innate. It produces a sudden loss of muscle tone in the neck and upper body; increases skin temperature on the face, frequently resulting in a blush and causes a brief period of incoordination and apparent disorganization. No matter what behavior is in progress when shame affect is triggered, it will be made momentarily impossible. Shame interrupts, halts, takes over, inconveniences, trips up, makes incompetent anything that had previously been interesting or enjoyable.
A state of cognitive shame follows this initial cluster of feelings. After the painful jolt of shame, we begin to search our "life scripts" for some way to integrate the shameful experience with our prior experiences, to make sense of the pain and disorientation caused by the sudden upset of a positive emotional state.
There you have it. Though it may seem more outrageous than comic for wildly successful adults to feign compliance with a social obligation by showing up a day late for a party pretending to have gotten the date wrong (the Larry David episode) it is no more or less absurd than the ordinary daily ways we all have of avoiding someone who might make us feel ashamed.
Tomorrow we will discuss ways to positively engage yourself with those who you may have inadvertenly offended.
Walking the Talk: Tit for Tat in a Collaborative and Reciprocal World
Many thanks to Christine Mast over at DRI's informative, timely and well-written newsletter The Business Suit for mentioning the Settle It Now Negotiation Blog.
Christine is a partner with the Atlanta office of Hawkins & Parnell, LLP, a litigation boutique with offices in Dallas and Charleston, West Virginia. Absent the IP sub-specialty (see the IP ADR Blog) her practice pretty much mirrors my own before I abandoned ship and landed here on ADR Island.
Chistine's commercial litigation specialties include insurance coverage and professional liability, fields in which I labored for many years
MAJOR ASIDE ON INSURANCE COVERAGE
If you're litigating a commercial case, are not a coverage specialist and have decided -- from reading the policy language -- that there's no coverage -- run to someone like Christine, or if it's a really really really big liability, my husband, Steve Goldberg over at Heller -- who litigated the World Trade Center coverage litigation on behalf of Silverstein's lender -- for counsel and advice. It's not difficult -- it just requires specialized knowledge, knowledge many commercial litigators lack. See the sad tale of Guess v. Jordache here.
END OF ASIDE
Christine says she's new to the blawgosphere so I wanted to thank her for the mention of our blog by showing her how the whole machinery of the thing works == like a giant internet barter circle of the kind described by author-lawyer Patricia Williams in her groundbreaking work, An Alchemy of Race and Rights. See also the Benefits of Barter here.
People say "tit for tat" when they want to focus on the aggressive side of that game -- you hurt me; I hurt you. When talking about it's beneficial effects, they use the words collaboration and reciprocity. You link to me, I link to you.
But remember, there's a code of excellence here in the blawgosphere and I won't link to www.AccidentLawyers.com just because they mention me (not yet).
I mention Christine's article and the entire Newsletter because it's a great resource and my readers trust me to steer them to good stuff.
Because I'm an aggregator. See The Long Tail.
Queen Latifa from Chicago on the seemier Tit for Tat side.
So, what do you say, Christine? Get your law firm to take the blogging plunge by talking to my good friend Kevin O'Keefe over at LexBlog. Online networking and practice development is geometric, as is LinkedIn, both of which I highly recommend, whether you're building your own business or just expanding your "book."
And, hey! Thanks for the mention!
Online Cyber-Bullying: Protection How To's in Next Post
(
right: Heathers: only the clothes and hair-do's are dated)
My former law partner, the ridiculously talented and prolific Eric Sinrod of Duane Morris has written an important article about teenage cyber-bullying here.
As Eric reports,
The Pew Internet & American Life Project Report was somewhat of a relief to read. However, another recent Pew report examines a different threat faced by teens: cyberbullying.
About one-third of teenagers on the Internet report that they have been targets of "menacing" online activities, such as receiving threatening messages, having their private e-mails or instant and text messages forwarded without consent, having an embarrassing photo posted without permission, or having rumors spread about them online. On top of this, girls are more likely than boys to be targets.
In terms of raw numbers, 15 percent of teenagers state that they have had private e-mail, instant messages or text messages forwarded or posted without permission; 13 percent claim that they have had rumors spread about them online; 13 percent have received a threatening or aggressive e-mail, instant message or text message; 6 percent have had embarrassing photos of them posted online without consent; and 32 percent fall within in at least one of the four foregoing categories.
Ch-ch-ch-changes
Plus ca change, plus c'est la meme chose. Teenage boys bully with their fists. Teenage girls bully with their emotional wits. No one, no one, is more skilled than a teenage girl with the stilleto to the softest part of her girl-target. I know this from research and from silly movies (my favorite of which is Heathers with Winona Ryder and Christian Slater -- put it on your Netflix list ).
The technology may have changed, but not the malice. When I was in highschool, my older sister became the target of a group of particularly malicious girls who called her on the telephone to sling at her every possible insult they could. I remember, I fielded the call for her.
What are sisters for?
Heather Chandler: "You were nothing before you met me. You were playing Barbies with Betty Finn. You were a Bluebird. You were a Brownie. You were a Girl Scout Cookie."
Another Reason to Negotiate Settlement: Jurors Blog Their Own Misconduct
(below: Dustin Hoffman puzzling over his jury in Grisham's Runaway Jury - directed by Gary Fleder Memorable movie quote: You think your average juror is King Solomon? No, he's a roofer with a mortgage. He wants to go home and sit in his Barcalounger and let the cable TV wash over him. And this man doesn't give a single, solitary droplet of shit about truth, justice or your American way)
Concurring Opinions covers juror blogs today by, among other things, quoting a foreman's juror blog as follows. 
Today was the last day of jury duty. I served as foreman of the jury. By the end of the case I thoroughly disliked the defending attorney. He had abused, postured and bullied his way through the entire trial, and had treated the witnesses for the prosecution, who were solid citizens doing their jobs, with disrespect and contempt. I was concerned that his histrionics were going to affect some of the less sophisticated among the jury to the degree that it would be hard to reach a decision on matters that were more or less clear. Just prior to the closing statements I decided to see what effect I might be able to have on the outcome given the limited set of tools available to me...
[I] . . . paid special attention to the participation of an elderly woman of color who felt out of place among so many white men, and a quiet Hispanic man who had also been swayed by the theater of the defense. Within an hour we had a conviction on both counts, and on all of the sub clauses of the counts. At the end of it we all felt that we had done the right thing, which I think we did.
I have either rarely, or perhaps never attempted such a conscious manipulation of my presentation of self as an adult. The fact that nobody knew me was an asset.
Of course, if you've attended as many jury focus groups as you've tried cases to a jury, you already know this. Know what? Just how unpredictable and uncontrollable that 12-headed creature the jury can be.
I don't mean to bury the lede (I'll make this the subject of a full post later) but I was talking to an old friend and jury consultant, Chris St. Hilaire of Jury Impact today (both of whom I highly recommend) about the dwindling jury trial and the use of professionally prepared mediation presentations and mediation focus groups.
Much much more about this later.
win win win win win win win
For a real win-win, see the Professional Women's Network of Southern California Blog, subscribe to the feed, and join us in September for our first working meeting.
All is revealed at http://www.womenlawnet.blogspot.com
the revolution will not be televised; it will appear on YouTube
Yesterday I wrote a pretty lengthy piece on theIP ADR Blog about the joke-theft controversy raging in Los Angeles (Funny, that was my joke) as covered by L.A. Times staff writer Robert W. Welkos.
(MAJOR ASIDE: You may be getting your news on the 'net, but remember that quality journalism continues to flow from the keyboards of dynamite reporters like Welkos, who, with co-writer Joel Sappell, gave us the brilliant six-part Scientology series in 1990, to the considerable risk of both men. Without newspapers, the blogosphere would pretty much fold itself up around yesterday's virtual fish and die there).
Having now buried the lede, I give you the burning ADR-Internet question of the day that concluded the IP ADR Blog's post, Disputing Humor: Comedy, Folkways and the Internet. .
A Conflict Resolution Process for the Future
Can we bring collaborative, value-creating dispute resolution norms and processes to this new culture? In other words, given the opportunity to create an entirely new way of resolving conflict in an entirely new culture, could we devise a system that is more self-determined, faster, cheaper, easier and softer on the people but just as hard on the problem as the old system was?
Could we abandon the adversarial paradigm because it's too expensive and cumbersome for the size and type of disputes that arise on the internet?
Could we build into that system the principles of accountability, forgiveness and reconciliation that are lacking in the present system -- a system that too often leaves people feeling so unresolved, so angry or bitter or frustrated?
I have no idea.
It feels good, though, to have finally formulated something of a question out of the chaos.
Please come on by and scrawl grafitti on our wall.