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(pictured:  the indispensable McElhaney Trial Notebook)

From the ABA Journal E-Report, comes James W. McElhaney's article Legal Writing That Works :  Persuasive briefs are the product of tough choices about substance, style 

"Writing a brief," counsels McElhaney, is like trying a lawsuit."

 You start with your theory of the case—the basic idea that not only explains the legal theory and the factual background but also ties as much of the evidence as possible into a coherent, credible whole.

That means making choices. You throw out arguments that aren’t plausible.

You pick between the inconsistent legal theories. You cull out the weak points. You toss out whatever gets in the way. You discard what doesn’t need to be said, even if it doesn’t hurt.

What’s left is tight. Lean. Spare. It crackles with power because it’s undiluted with stuff that doesn’t matter.

Doesn't trial and motion practice focus on the parties' positions, you ask, and the settlement of litigation on the parties' interests.  

Yes, but only after you've established that you have the ammunition necessary to make your adversary your partner in the mutual problem of making the litigation go away for a price (or on terms) that make the negotiated agreement a far better option than potential victory at trial.

I tell people that I prefer the symmetrical to the "asymmetrical" lawsuit -- both as a litigator and as a mediator.  What is an asymmetrical lawsuit?  One where the plaintiff is an individual represented by an over-burdened sole or small practice contingency fee litigator and the defendant is a repeat player defendant -- an insurance carrier or other "deep pocket." 

Why?  Because all too often the plaintiff is unwilling (or unable)  to devote the resources necessary to pose a real threat to the defendant's interests (costs of defense and potential verdict or judgment) despite the merits of the plaintiff's case.

In these cases, the defendants not only can afford to wear the other side down in court (why should I settle?) they often resist settlement because they firmly believe they are victims of legal extortion (yes, even insurance carriers who work by and through often beleaguered claims adjusters -- people -- who resist and resent being pushed around by an aggressive opponent who -- because of lack of preparation -- appears to be bluffing).

The solution?

Although it is important to convince the mediator that your case has real merit and genuine potential to result in a harmful judgment for your opponent, it is critical to impress your opponent with:

1. Your theory of the case in which the evidence tells not only a coherent, credible story, but one of injustice that a court or jury might respond to with sufficient passionate intensity to inflict some "unjust" harm on your opponent; and,
2. Your ability to make good choices -- "throw[ing] arguments that aren't plausible," and backing up those that are with the least amount but most compelling detail and "pick[ing] between the inconsistent legal theories. . . . cull[ing] out the weak points . . . toss[ing] out whatever gets in the way. . . [and] discard[ing] what doesn't need to be said. . . "

If "[w]hat remains "is tight. Lean. Spare. . . . crackles with power" you'll press your opponent to do some intensive interest-based negotiation to arrive at a settlement that is best for both of you.

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(photo:  Just a Minute by Jon Lucas)

We seem to be in "five rule land."  Today's five "One Minute Negotiation Tips" (courtesy of the Los Angeles County Bar Association) come from attorney-mediator (and good friend) Linda Bulmash. 

Her five tips below:

WINNERS OUTWIT AND OUTCHARM THEIR COUNTERPARTS

"Civility is not a sign of weakness!" President John F. Kennedy

1. Negotiation is not a contest. In other words getting as much as you can does not mean beating the other person. You seldom have so much leverage that they will agree to a deal that gives them nothing.

2. WIIFM (What’s In It For Me?) Your counterpart is continually asking “What’s in it for me?” Never assume your counterpart knows what he or she has to gain from a settlement. Take time to not only find out what you want but spend time identifying what they want. Then make sure you spell out the benefits to them of your proposal.

3. Show respect for and acceptance of their position: Take the chip off your shoulder before starting the negotiation. Never attack another person's ego and self-worth; if you do, they will be more resistant to even the most beneficial settlement terms.

4. Be Persistent. No matter how great the differences, the final outcome often is not apparent until after extended discussions. Be persistent -- do not give up until you have examined all possibilities.

5. Always consider "worth" analysis. "Cost/benefit" considerations are not the only driving force in a negotiation. Each issue in a negotiation has a different value/worth to each participant. You can often give your counterpart things that will satisfy their "worth" needs, without giving up an essential deal point for yourself. Examples of this could be that timing of payments would be “worth” enough to lower the demand.

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(photo by Jeff Cockshaw)

If you're not already acquainted with Harvard Business School's free weekly "Working Knowledge" newsletter, do let me introduce you here.  There's no better negotiation advice on the internet and when it's all too much reading, skim the concise "Executive Summaries" or, what the heck, check here from time to time and I'll alert you to the most interesting articles posted there. 

This week, Harvard professors John Davis and Deepak Malhotra give us Five Steps to Better Family Negotiations which, I must say, applies to every settlement negotiation that I help facilitate.

My own "executive summary" with excerpts below.  

1. Analyze the negotiation space:  this is a fancy way of saying identify all parties who have an interest in the matter being negotiated.  This seems obvious until you sit down with pen and paper (or keyboard and screen) and diagram not just the decision makers but also those, for instance, who will be called upon to put the terms of the agreement into action.  As Davis and Malhotra advise

 many of the parties affected by a negotiation, or able to affect it, will be around for a long time. It is dangerous to negotiate only considering the interests of those at the bargaining table when those who are not at the table will be affected by what is negotiated and can assert their rights or power in the future.

This doesn't mean that you should bring all of these people to the table, but that you are far more likely to achieve a durable settlement agreement if everyone's interests have been vetted prior to sending company representatives to the bargaining table.

2. Don't try to beat the other side

As Davis and Malhotra note, "most successful negotiations entail the possibility of mutual value creation, compatible if not aligned interests, and cooperation."  Although this advice also helps insure that an agreement will be durable, it also fosters an atmosphere in which the greatest degree of innovative "value creating"  problem solving can take place.

3. Understand the other party's interests, constraints, and perspective

If you think this applies only to family business negotiations, think again.  Robert McNamara (defense secretary under Kennedy and Johnson) lists "empathize with the enemy" as his first rule of war.  (for the illustrative story, follow this link and click on 1962, where you'll hear McNamara discuss (or where you can read a description of)  the negotiations that averted nuclear war with the Soviets during the Cuban Missle Crisis).  

Close to home, Davis and Malhotra advise: 

[T]o get what you want in negotiation, you often need to understand the other side's needs and interests so that you can "give a little to get a little (or a lot)." Even if the other side is entirely willing to help and is ready to give you what you want, it may be critical that you understand the constraints that he or she faces in meeting your demands. In other words, effective negotiation requires that you understand the other side's interests and constraints, and that the other party understands your interests and constraints. 

4. Avoid single-issue negotiations: identify and negotiate multiple issues simultaneously

Davis and Malhotra again:

Negotiators who negotiate multiple issues simultaneously are more easily able to recognize value-creating tradeoffs. . . . While any multi-issue negotiation is going to be complicated, the likely outcome is considerably worsened when negotiators become overly focused on a single issue or dimension. The far superior approach is for all parties involved to work together to identify all of the issues that are relevant in the current negotiation, and then identify which issues are most important to each person (and which issues each person can concede on).

5. Negotiate over interests, not positions

As Davis and Malhotra note, while the negotiating parties' positions may be irreconcialble and non-negotiable, often their interests can be satisfied without requiring them to compromise their positions.  For a lengthier discussion of interest-based bargaining, click here.

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(photo by T.W. Collins)  I must tell you that I have not read this new book on negotiation, but it looks intriguing and I intend to order a copy for myself.  It's entitled:  Making Money Talk:  How to Mediate Insured Claims and Other Monetary Disputes by J. Anderson Little

Brief review:

Making Money Talk is a valuable contribution to the conflict field. Andy Little correctly identifies the weakness in traditional needs-based mediation for quite a wide variety of cases, yet shows how the basic value of a facilitative, client-centered, process-oriented, communication-focused approach is still essential to money cases. This guide is well written and presented--it's a pleasure to read."  Bernie Mayer, Professor, Werner Institute for Negotiation and Dispute Resolution, Creighton University, Omaha, NE

The publishers say:

Learn how to effectively deal with the peculiar problems of traditional bargaining that you face when negotiating the settlement of civil litigation cases. This new guide written by an experienced litigator and mediator will help you understand why negotiations of insured claims are difficult to get started, why they become increasingly emotional as the parties engage in round after round of proposals and counter proposals, and how they can be settled with models and techniques that have been tested in thousands of civil trial court mediations.

With these proven models and techniques--essential for the novice or seasoned professional--you will:

• gain a better understanding of the dynamics of money negotiations
• be able to identify the recurring problems of traditional bargaining
• learn facilitative tools and models to use when positional bargaining is unavoidable

In addition, this resource provides litigators, negotiators and insurance claims representatives with the strategies necessary to prepare for settlement negotiations and avoid the many pitfalls that exist in the negotiation and settlement of civil litigation. If you're involved in a negotiation that involves a monetary settlement, this book is an invaluable tool to help you reach a favorable goal. 

$42.00 regular price; $35.00 [ABA] Section of Dispute Resolution member price

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(Everything Old is New Again from All That Jazz; my favorite line from this movie:  [stand-up comedian):   This chick, man [referring to Kubler-Ross] without the sole benefit of dying herself, has broken down the process of dying into five stages: anger, denial, bargaining, depression and acceptance. Sounds like a Jewish law firm. 'Good morning, Angerdenialbargainingdepressionacceptance!'. )  

Meet Early, Settle Often is music to our ears here at the Settle It Now Negotiation Law Blog. 

The "new idea" is called "structured negotiation" (a lot like a multi-part construction dispute mediation) and the big news is that lawyers are doing it for themselves.

Now I don't really like to talk about how we used to walk to work in three feet of snow (no compuers, no word processing, no faxes, restricted access to copy machines, no Lexis/Westlaw) but we really did negotiate our own settlements on a weekly basis without filing suit first. 

No mediators.  Look Ma! no hands.

As Ken Cloke says, "mediation is a profession in pursuit of its own suicide," i.e., we really do want you to have and use these skills to negotiate your own settlements.  Really, we do.  

So I'm pleased to give you a link this morning to a Law.com article, California Attorneys Meet Early, Settle Often.  Excerpt below: 

Linda Dardarian and Elaine "Lainey" Feingold are in the midst of a long winning streak in disability access cases -- and so are their opponents.

In eight years, the San Francisco Bay Area plaintiffs lawyers have settled more than two dozen disputes without filing suit or even bringing in a mediator.  . .

When Dardarian and Feingold send demand letters to organizations they claim are violating disability access laws, they offer to avoid litigation by sitting down with a small group of defense lawyers and technical experts and working out an agreement, a format known as structured negotiation. The letters generally mention the legal basis for a claim of attorney fees, as well, Dardarian said.

From square one, the plaintiffs lawyers' success depends on carefully balancing cooperation with the looming threat of litigation. . .

"A lot depends on the trust you have with people and the way in which they approach you," she said.

Stewart said she knew Dardarian and Feingold were "credible, capable" lawyers from previous dealings with the two. More importantly, though, their demand letter laid out their claims and their desire to find a resolution.

"How can you say, 'No, we won't talk to you?' It's stupid, in most circumstances," said Stewart, who turned over the dispute to Julia Friedlander, the MTA's general counsel, and Deputy City Attorney Christiane Hayashi.

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The following excerpt from the PBS Benjamin Franklin webpage, Citizen Ben, demonstrates the wisdom of Lax' and Sebenius' advice that every successful negotiation requires moves away from the table to set  up the most promising situation once your'e at the table. 3-D Negotiation.

Here, those "away from the table" negotiation moves led to the founding of our nation.   

In 1781, Benjamin Franklin was in France. .  .  Franklin understood the French and knew that real diplomacy wasn't accomplished at the negotiating table, but at the dinner table. He spent a great deal of time in the salons and at dinner parties where things could be discussed in an informal manner. In this way, he won the trust and respect of the French court.

Although the Continental Congress wanted to negotiate a treaty directly with Great Britain, the French wanted to arrange for a three-way treaty that would end the war between France and England, as well as between England and the colonies. There was some concern on the part of the Congress, as well as other commission members, that Franklin might be unduly influenced by France in the negotiations. Months passed and various offers and counteroffers were made by the former colonies and Great Britain. In addition, France was negotiating settlements with Great Britain that involved portions of the North American continent.

Adams and Jay made an end run around France to negotiate a treaty directly with Great Britain. The British made an incredible offer, one that gave the Americans almost more than they were demanding. Franklin recognized that the British offer was the best that could be had. The French were offended that the Americans had gone behind their back.

Franklin used his connections and his diplomatic skills to convince the French that Adams and Jay had acted out of lack of propriety, not hostility.

In late November 1782, the Paris pact was signed and sent back to Great Britain and the American Congress for ratification.

Thanks to Franklin's diplomacy, along with Adams' and Jay's work, the United States was recognized as a separate and equal nation by the world's great superpowers, France and Great Britain.

Happy 4th of July!

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(Hollywood Bowl Fireworks by Jodi Tripp)

There's a nice article on those situations in which attorney-mediators might serve litigants as well, or better, than former jurists in the July 2 edition of Lawyers Weekly ADR (give them your name, rank and serial number and you'll get a free 6-week trial to see whether a subscription is worth the price).

The article is entitled Advantages Flow Both Ways When Attorneys Become Mediators and it is written by attorney-mediator F. Peter Blake /*.  

Except below:     

 

A lawyer with extensive courtroom experience is able, as a mediator, to understand and communicate the risks of mixed-blessing jury findings that give with one decision about a monetary award and take back with another that slashes the amount because contributory negligence was perceived.

To be sure, in court, even when you win, you don't always come away with what you thought you had won.

In the ADR process, parties often hear the "other side" of the case for the first time. It reinforces a humbling truth worth remembering: Very rarely does one side have a monopoly on valid arguments.

Just as important is the mediator's ability to avoid undercutting attorney-client relationships or compromising legal strategies. A knowledgeable lawyer is well positioned to navigate that sensitive course, respecting each side's need to avoid feeling coerced or backed into a corner.

The ADR process provides an open forum conducive to helping the parties involved in a dispute address the issues in good faith, explore acceptable remedies and shape the outcome. That sense of self-determination and of having a timely "day in court"— without gambling on six jurors unfamiliar with the issues — greatly increases the likelihood of satisfaction in the end.

When lawsuit adversaries emerge with an acceptable agreement they shaped after being heard by a dispassionate observer retained at their shared expense, justice is served. Sometimes the deal goes beyond dollars and cents to include an apology or expression of regret — a meaningful gesture no jury can provide.

Though I agree with Blake's analysis of the benefits of hiring an attorney-mediator, he writes primarily from an evaluative rather than a facilitative viewpoint.  I would therefore add the following to his list, particularly where the settlement being negotiated is one necessary to settle commercial litigation.  

• because most attorneys have run their own businesses (or at least participated in the management of their law firms) they are able to understand the business needs, desires, interests and fears of the commercial adversaries, i.e., they can speak the litigants' language
• former commercial mediator litigators, particularly when hired in a specialty industry such as the garment, manufacturing, professional services, and software  businesses (to name a few) also understand the complex relationships between counsel and client, as well as the communication gaps that can occur over time during the litigation of any commercial case. 
• the experienced attorney mediator not only knows how the lawyer views the case, having now mediated hundreds of commercial cases, s/he also knows how the clients continue to view the dispute (as a commercial, not necessarily a legal, problem) and how wide the gap between those two points of view can be. 
• because the attorney-mediator first made his living in private practice based upon his continued beneficial relationship with his clients and his reputation in the community, s/he is not only attuned to the way in which lawyer-client communication gaps can be bridged, but also how to leave both parties with their sense of justice, dignity, professionalism and humanity intact.
• perhaps most importantly, a commercial litigator-mediator knows how to plan, execute and close a deal.

There are more, but I must leave you to begin my holiday.

Happy 4th of July to you all!

________________________

/*  Blake is a certified general civil mediator and founding partner at Detroit-based Blake, Kirchner, Symonds, Larson, Kennedy & Smith, P.C. His more than 25 years of experience includes mediations, facilitations, arbitrations and special case evaluations as well as representing plaintiffs and defendants in a range of civil litigation matters.

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We recently posted a brief discussion about "Winning" the Negotiation/ Mediation.  Though not statistically significant, I can nevertheless report that, aside from the all-time hands-down reader-favorite post I'm Billing Time, Winning the Mediation has had more "hits" than any other.  

Forget collaboration.  People want to win.  (a more serious post about this later).  And the reason most of us feel like such inadequate negotiators?  Because we buy retail.  As was pointed out to me in my very first mediation course, Americans typically bargain over only two purchases in their lifetimes:  new and used cars and real estate.  We're just not that into it.

That said, help is on the way from our good friend, mediator Linda Bulmash.  Text from the recent LACBA announcement below.  Reason alone to join LACBA.

Los Angeles County Bar Association Announces the Launch of a New E-Newsletter "One Minute Negotiation Tips"

Have you ever walked away from a good deal because an agreement could not be reached….or wondered whether you paid too much… or accepted too little…or felt so rattled by the other side’s hardball tactics that you lost sight of your main objectives? Have you ever negotiated a great deal but can’t figure out why you succeeded so that you can replicate the “win” again?

Now you can be a negotiation winner. Now you can stop yourself from paying too much, settling for too little, losing the deal you want or letting the other side get the upper hand. Never again will you show up at mediation or a negotiation wondering how to handle the mediator or the other side.

ALL ATTORNEYS negotiate on a regular basis: Litigators negotiate to settle cases; Real Property and Business Attorneys negotiate terms of the transaction; Tax Attorneys negotiate with taxing authorities; Family Law Attorneys negotiate when cases are sent to mediation. You get the idea. But who has time to take a negotiation class? LACBA is offering an alternative, “One Minute Negotiation Tips”, written and edited by Linda Bulmash, Esq. a full time professional mediator and ADR Services and a negotiation expert. This free member publication will be delivered to you by email, once a month.

One Minute Negotiation Tips will be more than just a newsletter; it will be a forum for discussion sharing of ideas and asking questions. If you have a negotiation tip that you would like to share, you will be able to submit it for future publication. If you have a question or a hypothetical you would like to pose, we encourage you to submit it.

For more information regarding this new service, please contact Joanne Williamson, LACBA’s Director of Internet Services at mailto:jwilliamson@lacba.org

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(Photo by lostulysses)

In the political arena, the power of framing is generally called "spin."  You needn't, however, be an expert at renaming torture "coercive interrogation techniques" to become skilled at framing your demands during negotiations. 

The Power of Framing

Frames are cognitive shortcuts that  . . . help us organize complex phenomena into coherent, understandable categories.

When we label a phenomenon, we give meaning to some aspects of what is observed, while discounting other aspects because they appear irrelevant or counter-intuitive.

Thus, frames provide meaning through selective simplification, by filtering people's perceptions and providing them with a field of vision for a problem.

To demonstrate the power of framing, researchers asked subjects questions that contained suggestions of size, number and duration.  The impact of the framing terms -- short and tall, for instance -- were striking:

When asked how long a movie was, research subjects' average estimate was 199 minutes, 69 minutes longer than when they were asked how short the movie was (130 minutes).

When asked how tall the basketball player was, research subjects' average estimate was 79 inches, ten inches taller than when asked how short he was (69 inches).

Research subjects were also profoundly affected by numerical ranges.  When asked whether they'd tried "5 or 10" headache products, subjects' answers averaged 5.2.  When given the option of "2 or 3" headache products, they averaged 3.3.

A common negotiation "frame" is to treat the difference between the parties' offers and counter-offers at the point of impasse as the total amount in controversy.  If, for example, the Plaintiff opened negotiations at $1.5  million and has, in the course of negotiation moved to $600,000, while the defendant commenced negotiations at $250,000 and has moved to $550,000 at the point of impasse, the mediator will generally focus upon the reasonable division of the $50,000 delta rather than upon the total $550,000 offer or the total $600,000 demand.   

Focusing solely upon the value that separates the parties reframes the subject matter of the negotiation as the avoidance of the dispute's continued cost rather than the "fair," or "just" or "reasonable" value of the loss at issue.   

And don't think that attorneys, judges and sophisticated commercial clients are immune to the effects of anchoring and framing.  

The Power of Anchoring

We've discussed before Adam Galinsky's excellent short article When to Make the First Offer in Negotiations. 

As Galinksy notes:

Research into human judgment has found that how we perceive a particular offer's value is highly influenced by any relevant number that enters the negotiation environment. Because they pull judgments toward themselves, these numerical values are known as anchors.

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(photo by Maureen Flynn-Burhoe)

We follow high-level negotiations, as well as the small commercial dispute, here.  No matter the stakes, the dynamics are the same.  See, for example, today's AP article, Collapse of WTO Talks Puts Trade Deal in Limbo.

What's at stake? 

a new world trade pact aimed at adding billions of dollars to the global economy and lifting millions of out of poverty.

Who are the negotiating parties?  The United States, the European Union, Brazil and India. 

Are there feelings, i.e., emotions involved?  Have we mentioned recently neuroscientist Antonio Damasio's research on people whose brain injuries interfered with their ability to feel emotion?  They could make endless pro and con lists, but couldn't make decisions.  Why?  Because there is a pro and con to every choice we make.  Paper or plastic?  Fish or Meat?  Peace or warfare?  Settle the lawsuit or try it?  

In the absence of a feeling that makes us desire one outcome more than another, we are at a total loss.  

How does impasse feel?  If you'd been a WTO negotiator, your

emotions rang[ed] from anger to confusion [as they] left Potsdam on Friday knowing they had failed to break a six-year logjam between rich and poor countries over eliminating barriers to trade in farm produce and manufactured goods.

And the angry and confused government officials?  Do they think their own bargaining position is to blame or do they believe that their negotiating partners are acting in bad faith?  Let's see.

European and American officials questioned Brazil's intentions and wondered if it intentionally blocked progress to curry favor with developing countries, many of whom were unhappy with the private negotiations among the four powers.

Brazilians accused Washington and Brussels of agreeing beforehand to protect their agricultural interests.

Many officials criticized Indian Trade Minister Kamal Nath for arriving late on Tuesday after missing a flight and having a return scheduled ahead of the summit's end.

All sides said they negotiated in good faith.

Sound familiar?

The reasons for impasse and ways to break it will be the subject of a lengthy weekend post.

In the meantime, here are two prior posts on impasse -- Negotiating Past Impase and Breaking Impasse.  

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Check out Bob Steinberg's article in the San Francisco Daily Journal, Influencing the Mediator. 

Bob's article -- the tip of a trend -- stresses "winning" the mediation by canny, savvy, sophisticated and sometimes just flat-out tricky negotiating tactics. 

Like what?   Like squeezing the mediator into a small room at a round table with your team to undermine his authority on your side while at the same time proffering a large rectangular table to the opposition in the hope that the mediator will sit at its head, thereby increasing his influence upon your opponent (assuming, that is, you decide you want the mediator influencing your opponent and aren't concerned that the buddy-buddy atmosphere you're creating won't lead to disclosures you'll later wish you hadn't made).

I know Bob and like him.  He's shrewd and frighteningly intelligent.  I wouldn't play poker with him or black jack because I know he's capable of actually counting the cards.  He probably knows more about negotiation than most litigators of similarly seasoned years because, as a transactional attorney, he surely negotiated and closed more deals in a single year than his adversarial counterparts did in a decade.  

And just as some clients choose their litigators to fit the fight (an unreasonable obstreperous fight-ready trial lawyer for case A and a cordial, collegial sort for case B) lawyers will want to choose their mediators to fit the type of work they believe that mediator will do best.     

Still, I have reservations about Bob's proposals (which are increasingly being made by many attorneys and mediators) including:

• the benefit that might be lost by continuing to treat your adversary like . . . . well . . . an adversary, rather than as someone with whom a creative business deal might be struck if the attorneys and the mediator would loosen up their control long enough to let the business people do what they do best -- plan for a successful future by drilling down into both parties' commercial interests in an innovative way (cf. Sun Microsystems' Jonathan Schwartz's motto -- Innovate, Don't Litigate); and, 
• the likely dreadful set of unanticipated consequences that too often flow from attempting to control an inherently unpredictable and multi-determined process -- one with so much greater depth, texture, nuance and possiblity than any poker game could ever possess.

There is certainly a time for measured responses, poker faces, cozying up to the mediator or letting him (or her!) know who's really the boss.  I don't believe, however, that flat-out game-playing and "psyching out" the other side will result in the type of agreements you and your clients are looking for -- not only creative ones, but also durable ones. 

Go ahead, let the client take the lead once in awhile.  Jim Smith didn't become the head of a division of Lockheed or Joe Richmond the President of Software, Inc. by changing the size of the conference table.  

And before abandoning this topic, let me leave you with a recent observation by Schwartz about leadership at Sun Microsystems from an interview entitled The Education of Jonathan Schwartz by Stephen Shankland of CNET News.com. 

[a] leader has courage, and courage is the courage to innovate, the courage to collaborate, the courage to act with integrity--because that actually does take some courage--and the courage to do so with pace. You've got to be willing to brook the criticism and the critique from those who don't see the world the way you do. When people look back at who is Sun, they are not looking me; they are looking at 35,000 people.

[As the leader of Sun Microsystems] I want to do a good job of building a leadership culture . . .  I don't want there to be one voice [from Sun] to the marketplace, but I want that somewhere in that cacophony [of other Sun voices] to be a very clear and consistent message: here is what we're all about, here is what we can do and here is how we are going to march forward.

Rock on.

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(right:  Lawyer as Satan:  Al Pacino in The Devil's Advocate) 

Gini Nelson at Engaging Concepts recently alerted me to John Lande's recent and excellent article, Principles for Policymaking About Collaborative Law and Other ADR Processes.  There is much in this article to recommend it, including observations and recommendations about regulating ADR policy and practice.   What caught my attention were Lande's comments about "bad faith" mediation, a topic we've been following in the Couts.  

Good faith in mediation, notes Lande, "is like mom and apple pie—it’s hard to be against them.  .  . Many people  

think that they know bad faith when they see it. They “know” that bad faith in mediation is when one side—the other side—refuses to make a new offer or what they view as a “reasonable” offer.  This conduct clearly grieves some litigants, lawyers, and judges who would like the courts to sanction the alleged offenders.

In virtually all the final reported opinions on this issue, however, the courts have decided that this conduct is not sanctionable bad faith.  The courts have decided that it would be inappropriate to sanction this behavior, which is impossible to adjudicate without evidence about communications in mediation and the participants’ state of mind.

Even proponents of good faith rules recognize that judicial second-guessing of participants’ states of mind would be an inappropriate judicial encroachment into the mediation process.  As a result, the judicial interpretation of “good faith” has come to mean attendance at mediation (possibly with a representative having “sufficient” negotiation authority) and submission of any required premediation materials.

The result is that the good faith rules do not prohibit what people think of as bad faith.

"Bad Faith" Negotiation Strategies and Tactics

In our recent survey (with 78 responses) participants were asked to identify which of several acts  constituted bad faith negotiation practices or strategies:

Those that garnered the most votes were parties lying about facts important to resolution (65.83%) -- which would likely constitute grounds for rescinding any deal reached by the parties due to fraud -- and a refusal to compromise "without good reason" (59.76%).  Withholding information important to obtaining a "fair" deal garnered less than half but nevertheless a substantial number -- 40.51% -- of the "votes."  Again, this type of behavior could well constitute fraudulent concealment and is subject to its own set of sanctions -- rescission and damages. **

Refusing to compromise with good reason (4.5%) however, and not compromising "enough" (3.4%)received so few votes that we must conclude our survey respondents accept these activities as perfectly appropriate when parties are attempting to negotiate  settlement, whether in a mediation or outside of it.

The Importance of Reason Giving

My friend the settlement Judge Alex Williams likes to tell his disputants that he needs "a number and a reason" when shuttling offers between the parties.

As we've discussed before, any reason whatsoever, "reasonable" or not has a salutary effect upon people's willingness to accomodate their fellows See "Why -- an Anatomy of Explanations").    More on the dynamics of reason-giving in negotiating the settlement of your disputes tomorrow.

___________

*  For individual responses to the question, "what constitutes bad faith negotiations?" click here.

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Attorneys routinely claim that their negotiating partners are acting in "bad faith."  But what does that mean?

In our recent Negotiation and Justice Survey, we asked our attorney, negotiator and mediator respondents (78 of them) to define bad faith in negotiations.  Having no authority to settle, refusing to listen to the other side, and failing to bring the decision makers to the negotiation are the most commonly cited instances of "bad faith" tactics in negotiation or mediation.

In response to our own formulations of potential bad faith negotiation tactics, the results were as follows:

A party lies about facts important to resolution                                      83%
A party lies about its "bottom line."                                                           23%
A party withholds information important to a "fair" deal.                      51%
A party refuses to compromise (with good reason)                              4.5%
A party refuses to compromise (without good reason)                       59.76%
A party doesn't compromise enough                                                        3.4% 

Here are all of the "unique" responses: 

1. stonewalling or frustrating the process unnecessarily 
2. acting out of a desire to punish the other or vindicate one's self
3. using the process for discovery
4. proceeding with no intention of exploring opportunities for settlement
5. taking advantage of a power imbalance which the mediator does not address and ameliorate
6. consciously taking advantage of the mediator's bias
7. negotiating unreasonably or intractably
8. prolonging the process by engaging in irrelevant conversation so that all parties are not given equal time
9. using hardball tactics meant to corner or trick the other party into submission
10. arriving unprepared and refusing to acknowledge it (2 separate comments)
11. threatening to engage in future unfair practices 
12. being unwilling to go through the entire process
13. asserting and maintaining an unreasonable position
14. failing to show up 
15. refusing to listen (5 separate comments)
16. refusing to provide necessary documents 
17. arriving with no settlement authority or without decision makers (6 separate responses) 
18. misrepresenting or mischaracterizing the client's case to one's own client
19. refusing to discuss interests
20. persisting in discussing positions
21. trying to bully the mediator or the other party

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Thanks to Diana Skaggs of the Kentucky Divorce Law Journal for alerting us to the Kentucky Law Blog's post Court of Appeal Affirms Trial Court's Award of Mediation Fees for Party Failing to Attend

Here in California, and I suspect in many other states, the Court cannot sanction "bad faith" negotiations because all of the parties' communications at a mediation are confidential.

I've often had attorneys ask me, however, whether they can bring to the Court's attention the fact that a claims adjuster, for instance, did not "show" at the mediation.  Can't they seek sanctions for that "bad faith" they ask.    

This is the question the Ky Law Blog asks and answers today under Louisiana law as interpreted in a nonpublished appellate opinion, Sullivan v. Anderson.  In that case, writes attorney and blogger Michael Stevens,

the defendant's attorney . . . arranged for the date, time, location, and mediator and notifed the pro se litigant who did nothing.

[A]ffirming [the trial court] . . . a Jefferson Circuit Court . . . held that although a party was not obligated to attend the "agreed" upon mediation, he was obligated to notify the other side he would not attend so as not to waste the mediator's time. . . [The appellate court opined]

We agree with [the pro per plaintiff] Sullivan and the trial court that Sullivan was not obligated to attend the mediation since it was not ordered by the court. However, [defense counsel] did not have any reason to know that the parties had not agreed on mediation since Sullivan did not inform her that he did not agree to the arranged mediator and mediation date. [*]

 A Kentucky court “may invoke its inherent power to impose attorney's fees and related expenses on a party as a sanction for bad faith conduct, regardless of the existence of statutory authority or remedial rules.” (citations omitted).

The Parade of "Bad Faith" Mediation Horribles

Mr. Stevens justifiably marches out the following parade of horribles that this opinion could lead to, such as awards of sanctions when:   

• the insurance defense lawyer shows up at mediation without the adjuster or the insured and rel[ies] upon the adjuster's attendance by telephone[;]
• the adjuster in attendance . . . not hav[ing] settlement authority extending to the policy limits[;]
• the adjuster ha[ving] to leave early[; and,]
• the adjuster with higher authority [not being] available by phone, or . . . delays in contacting the adjuster by telephone[.]

Are Sanctions Available in California for "Bad Faith" Mediation Practices?

California's mediation privilege is codified in Evidence Code sections 1115 et seq.  As most California practitioners are well aware, our Supreme Court has strictly construed these provisions.     

Because Evidence Code section 1120 expressly exempts any "agreement to mediate a dispute" from the protections of section 1119, a California court could presumably sanction a party for failing to appear at an agreed upon (or court ordered) mediation.  

Here in California, however, an award of such sanctions presumably could not include all or part of the mediator's fee because our Supreme Court has held that a party may not be ordered to pay a private mediator in the first instance.     

Moreoever, a party''s mediation conduct, such as a defendant's failure to bring a claims adjuster or the plaintiff's attorneys failure to bring his client, would not likely subject either party to sanctions.  

Section  1119(c) prohibits a party from disclosing "[a]ll . . . negotiations . . by and between the participants in the course of a mediation or a mediation consultation."  Interpreting this section broadly and strictly as our Supreme Court requires would likely result in the denial of sanctions because the choice of individuals to represent party interests is an integral part of the "negotiation" between the parties.  **     

Finally, section 1119(a) most certainly forecloses an award of sanctions based upon offers made or not made during -- or authority possessed or not possessed at -- a mediation.  Those facts could only be learned as a result of something "said . . . for the purpose of, in the course of, or pursuant to a mediation" and therefore fall squarely within section 1119(a).    

_________________

**  We find this one of the strangest and most illogical formulations we've heard from any appellate court anytime, anywhere -- a dangerous one at that -- and contrary to the law of contracts.  Since when does an agreement exist when party A proposes X to party B, who does not respond?  Since when is an agreement formed when party B neither accepts nor rejects it?   

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(photo by Ashley Dinges)

If you're entering the job market, you'll want to check out Forbes' Magazine's Tips for Negotiating Your First Salary.

If you do not negotiate your first salary, you stand to lose half a million dollars over your lifetime. 

Who says?  The women who brought you Women Don't Ask: Negotiation and the Gender Divide

And for women entering the job market, here are the grim statistics: 

• women's earnings relative to men's have stagnated at 73.2 percent.
• In surveys, 2.5 times more women than men said they feel "a great deal of apprehension" about negotiating.
• Men initiate negotiations about four times as often as women.
• When asked to pick metaphors for the process of negotiating, men picked "winning a ballgame" and a "wrestling match," while women picked "going to the dentist."
• Women will pay as much as $1,353 to avoid negotiating the price of a car, which may help explain why 63 percent of Saturn car buyers are women.
• Women are more pessimistic about the how much is available when they do negotiate and so they typically ask for and get less when they do negotiate—on average, 30 percent less than men.
• 20 percent of adult women (22 million people) say they never negotiate at all, even though they often recognize negotiation as appropriate and even necessary.

Women Suffer When They Don't Negotiate

• By not negotiating a first salary, an individual stands to lose more than $500,000 by age 60—and men are more than four times as likely as women to negotiate a first salary.
• In one study, eight times as many men as women graduating with master's degrees from Carnegie Mellon negotiated their salaries.
• The men who negotiated were able to increase their starting salaries by an average of 7.4 percent, or about $4,000.
• In the same study, men's starting salaries were about $4,000 higher than the women's on average, suggesting that the gender gap between men and women might have been closed if more of the women had negotiated their starting salaries.
• Another study calculated that women who consistently negotiate their salary increases earn at least $1 million more during their careers than women who don't.
• In 2001 in the U.S. women held only 2.5 percent of the top jobs at American companies and only 10.9 percent of the board of directors' seats at Fortune 1000 companies.
• Women own about 40 percent of all businesses in the U.S. but receive only 2.3 percent of the available equity capital needed for growth.
• Male-owned companies receive the other 97.7. percent.

Women Have Lower Expectations and Lack Knowledge of their Worth

• Many women are so grateful to be offered a job that they accept what they are offered and don't negotiate their salaries.
• Women often don't know the market value of their work: Women report salary expectations between 3 and 32 percent lower than those of men for the same jobs
• men expect to earn 13 percent more than women during their first year of full-time work and 32 percent more at their career peaks.

You Can Do It

It's not that we're not good negotiators.  A Harvard study (which I'll find & link to later) showed that women negotiated as successfully as men when they were negotiating for someone else!

So just pretend you represent yourslef and go for it.

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Nice perceptive piece on negotiating fees over at the Consultant Journal blog entitled Negotiating vs. Giving Up.  Thanks for the tip Andrea.

The above negotiation tip is sponsored by the acronym ZOPA.

Your mediator should never never never never let the parties believe they've reached impasse until the mediator is as certain as she can be that there is no Zone of Potential Agreement. 

How does s/he know?  Tune in for tips to knowing the mind of your mediator.

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As I mentioned yesterday, I've launched a new IP ADR Blog with IP attorney and triple-A arbitrator, Les Weinstein.

My mediation practice has been developing in the direction of an IP specialty for the past year. Nearly twenty years ago, Les advised me to specialize at a time when I was saying it's always best to be a generalist.   

He was right, of course, and in 1989, I moved to Buchalter, Nemer where I embarked upon a fifteen year career in environmental coverage litigation. 

Before joining Les as an associate at Pepper, Hamilton & Scheetz in the mid-80's, I'd handled trade name and unfair competition cases.  With Les, I did more copyright and patent work than I had before or since, although I continued to keep my hand in the IP field.  In fact, the last case I tried before leaving practice was a copyright case involving the infringing repackaging of an old Kung-Fu movie. 

That's the long introduction to the announcement that I've joined forces with Les again, to develop a specialty IP ADR practice.  We've each been individually pursuing IP ADR, Les more in the capacity of arbitrator and me more in the capacity of mediator.  We occasionally co-mediate multi-party IP disputes together and have found how well we work with one another.  

I don't know an IP attorney half Les' age who is more on the cutting edge of the emerging technological, commercial and legal issues than he is. He's an amazing guy with a big firm background -- Graham & James; Squire, Sanders & Dempsey & most recently, the IP firm of Sheldon Mak.  It's exciting to be practicing together again -- as neutrals.    

Together, we've launched an intellectual property ADR practice and blog. The temporary blog site is http://www.ipadrservices.blogspot.com. Kevin O'Keefe at LexBlog is going to set up the permanent blog for us.

Important aside:  an hour with Kevin on the telephone about marketing your practice with a blog is worth the price of the blog and its yearly maintenance.  (But don't tell Kevin what a great deal he and his company are or he'll raise his prices and I'm not yet that successful).  

The IP practice allows me to do what I love the most, which is to drive a business deal, maximizing commercial strategies and synergies, as well as long-term business planning.   

Most of all, I enjoy debunking the prevailing wisdom that a good settlement is one that makes everyone unhappy.  When I entered the mediation field, one of my private goals was to give my clients an opportunity to negotiate settlements that made them at least as happy as the business deals they routinely broker.  Although it doesn't, couldn't, happen every time, it happens a lot more in the IP field than in any other.  

When the parties realize that I'm prepared, indeed, eager, to roll up my sleeves to help them craft the same kind of sophisticated commercial deal that made them technological and commercial successes in the first place, they immediately get alot happier.

That's why I'm moving my practice in the direction of an IP specialty and why Les and I have started the IP ADR Blog.  I hope you'll visit us there.  

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

Justice, however, should be neither hype nor mystery.

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

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

Mediators:  ask your lawyer friends to take the survey.

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

Preview from the Justice Survey     

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

Win even if the process was unfair 54%

Lose so long as the process was fair 46%

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

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The question whether mediation should be "fair" or "just" elicited the following thoughtful response from one of our attorney readers, who, as you can tell from the context, primarily represents plaintiffs seeking to recover commercial debts allegedly owed by individuals and small businesses. 

Distributive Fairness

"I only think a settlement is 'fair,' says our reader, "when it incorporates the mathematical calculation of prospective damages multiplied by a risk factor of litigation (i.e. 80% chance of winning $100K, means an $80K settlement is fair)."

A mediated resolution that is "fair" under this definition only results, he continues,

 when the other side "does the math" - most defense counsel just bluster and try to throw up "what if" roadblocks that derail a serious discussion about resolving the whole dispute. They don't do the math, and even if they did, there is enough disagreement over the "odds" that the process is far from transparent.

Distributive Injustice 

"Perhaps," says our correspondent,

we have a different interpretation of what "fairness" is.  I have plenty of situations where I sue on [a] debt [where,] by the time the . . . . [contractual] interest and attorneys' fees get worked in . . . , a $5,000 debt becomes $12,000 judgment and no [one] in the world thinks this is fair. But most eventually "settle" . . . not because they want to, or believe that the . . . settlement is "fair", but because the option of coming up with [the funds] to hire an attorney, and then eventually lose, is less attractive than trying to pay on a monthly basis.

In this case, is the settlement  fair?

From my client's perspective, it will get paid more than 100% of its initial principal due, and this type of settlement completely negates the possibility of zero recovery for the creditor if the debtor is judgment proof. .   .  

[Many defendants are]  willing to pay to get out of the case for "peace of mind" and pay
more than what they thought was fair.

Fair resolutions only work when everyone is willing to play fairly - and because everyone (especially litigation attorneys) feels that dispute resolution is a zero sum game, the little tactics we use in litigation skew the process so ADR really becomes a big poker game. And when people hide information, and outside factors to the dispute loom larger than the dispute itself, it becomes less about fairness and more about force. 

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The Litigation and Dispute Resolution Sections of the Los Angeles County Bar Association invite you to participate in the Second Day of WINNING IN NEGOTIATIONS.

(brief aside:  Do you want to score a victory for your client or simply resolve your dispute short of trial when mediating your case?  Let us hear your voice in our national  Negotiation and Mediation Justice Survey here -- 3 minutes max, promise)

Ad copy for the Negotiation Seminar below:

Want Inside Information Straight from Some of the Most Successful Professionals? Session 1 was great...Session 2 was awesome! Join us for the last session that will focus on your negotiation skills!!!

May 14th, 2007
6:30 pm -- 9:30 pm

In this cutting edge workshop, you will learn how to utilize effective and successful techniques and strategies to win in negotiations.

Please join the following attorneys and mediators for the last day of this interactive and highly engaging seminar entitled “Winning in Negotiation.” This panel will use film clips and interactive role playing to highlight new methods to achieve an understanding of negotiation principles and enhance your negotiation skills.

Panelists include:
 
Raymond P. Boucher, Kiesel Boucher & Larson Panelist
John A. Girardi, Girardi Keese & Crane Panelist
Stephen J. Henning, Wood, Smith, Henning & Berman, LLP
Jeffrey Kichaven, JAMS Moderator
Lisa Klerman, Mediation Office
Gig Kyriacou, Mediation Offices of Gig Kyriacou
Alexander S. Polsky, JAMS Moderator
Martin D. Singer, Lavely & Singer , Panelist
Amy Solomon,  Girardi Keese & Crane Panelist

Join us for insider tips from the best in the field: experienced negotiators and mediators, judges and other experts who will share their expertise with you.

Topics include:

• Distributive bargaining

• Development of target and resistance points

• Tactics in distributive negotiation

• Breaking Impasse

• Developing listening skills as a negotiator

• Why negotiations fail

• Negotiation role plays and discussion

... and so much more...

For more information please call Gemma at 213-896-6441; to register, CLICK HERE or call 213-896-6560.

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Among the benefits of the "meme tag" game is cross-disciplinary learning.  See Switch! - Cross-Disciplinary Learning at the Eide Neurolearning Blog, the one degree of separation between us and the Thinking Blogger Award. 

And check out the Creative Generalist while you're at it.

First, the excerpt from Eide Neurolearning:

The best way to have fun in science is to do something you are not trained for. - Seymour Benzer

Any student of creativity or innovation knows that changing disciplines seems to be a way of keeping 'fresh' and getting new ideas. Louis Pasteur got his start in crystallography, but then started solving problems in fermentation when a student of his brought him a factory problem. When a devastation of silkworms happened in Europe, they called Pasteur who exclaimed, "But I know nothing of silkworms." Nevertheless, he ended up solving the problem of silkworms by crossing over into the fields of microbiology and immunology.

In Root-Berstein's study of innovators, he found '[i]n every case that I have been able to examine, researchers who continued to be productive past middle age changed fields regularly. In effect they periodically returned to the state of a novice by taking up a new subject. They broke out of the patterns of work and thought to which they had become accustomed.'

For the remainder of the Eide's post, scroll down to Switch! here.

A Brief Comment on the Era of Legal Specialization

Attorneys entered the realm of specialization about twenty years ago.  Because novel legal problems are generally resolved for entire industries in fifteen or twenty years (i.e., how a Comprehensive General Liability Policy should be interpreted in response to a claim against an oil company for production-related environmental contamination) attorney-specialists are forced to change specialties at least once, if not two or three times during their working lives.

At one of the intersections between the end of one specialty (environmental insurance coverage) and my search for another, I began defending consumer class actions.  Although I'd once prosecuted a  commercial class action against a Japanese car manufacturer, that one case was the only experience I had in litigating class actions.      

In addition to not knowing what I should do in negotiating a settlement of my client's "fair share" of potential liability I also had no idea what I shouldn't do.  As a result, the settlement I negotiated was better than any achieved by the dozens of other similar companies who were my co-defendants.  

One afternoon, I received a call from senior counsel to the defendant who'd had the greatest potential liability exposure and who likely paid the most to settle the case. 

"How in the world did you get them to agree to an injunction-only settlement?" she asked.  "I've never seen anybody do that before."

"Thanks," I said.  "I guess I managed to do it because I didn't know that I couldn't."  

What Does Being a Generalist Have to Do with Negotiation and Mediation?

As I recently said in a moment of naked self-promotion, it's good to have a mediator who is "inside the other guy's decision cycle," i.e., someone familiar with the industry and the legal specialty involved.     

"The day of the generalist mediator is over," I'm told, just as I was told the "day of the legal generalist is over" sometime in the late '80s. 

But here's the exception to the rule.  Negotiator or mediator, the parties will teach you the critical facts and the lawyers will hip you to the law necessary to resolve the dispute even if you don't know bupkus about either.   

Often, the more you know, the less likely you will be open to innovative solutions to intractable problems.

I suppose the best of both worlds would be to practice (and negotiate) in your specialty while at the same time maintaining what Buddhists call a "beginner's mind." 

"In the beginner's mind there are many possibilities, but in the expert's there are few." - Shunryo Suzuki-Roshi from the Beginners Mind Blog.

No matter how much you know or think you know, set aside your pre-conceptions and pre-judgments as much as you are able.  Avoid "we've always done it this way" thinking.  Then, whether you're in a new field or an old one, you will surprise yourse