Does it ever serve a purpose?
One extremely good answer to the question whether an insulting first offer ever has a purpose can be found at Steve Mehta's Mediation Matters Blog Taking Escalates More than Giving.
In this example from Entourage, Terrence's insult is reciprocated by Ari in conflict escalation (as Steve predicts) and Ari's eventual victory as demonstrated by my longer post about this episode, Negotiation from a Position of Weakness, Hollywood-Style.
Check out Steve Mehta's recent post at Mediation Matters -- Negotiations Today Could Haunt You Tomorrow, once again confirming that the human interaction during the negotiation is more important to long term satisfaction with the deal than the raw economic benefit achieved. As Mehta explains, a recent study reported Curhan, J., Elfenbein, H., Kilduff, G. Getting Off on the Right Foot: Subjective Value Versus Economic Value in Predicting Longitudial Job Outcomes From Job Offer Negotiations in the Journal of Applied Pyschology, 2009, V. 94, No. 2, 524-534 (.pdf)
found that the satisfaction with the experience the employees had during their job offer negotiations significantly predicted compensation satisfaction, job satisfaction, and turnover intention one year later. By contrast, the actual economic value – meaning the value of the compensation package — achieved in the negotiation had no association with job attitudes or intentions to leave.
Interests In Employment Litigation
Just as the quality of the pre-employment relationship colors the entire workplace experience, so will a negative termination color the employee's retrospective view of the employment experience, thereby increasing the incidence of litigation.
Check out Balkinization's Why is Empathy Controversial? or Liberal, an excellent analysis of empathic wisdom (and blind spots) on the Bench in the wake of a noted Republican's vow to filibuster any Supreme Court nominee who might commit the (liberal?) sin of empathizing from the Bench.
Emotion terms are notoriously slippery. But if we understand empathy as the ability to take the perspective of another, it ought to be uncontroversial that empathy is an important component of judicial judgment. Empathy, so understood, is a basic and necessary tool for making sense of the intentions and actions of others.
So, as Mark Graber asks, who could be against empathy? And more particularly, why is empathy liberal, if we all use it? Perhaps because empathy goes by another name when it comes easily—for example, when Supreme Court justices take the perspective of those from similar backgrounds or with similar worldviews. This sort of empathy looks neutral and natural, not ideological or partial. It tends to be portrayed as garden-variety judicial reasoning.
We all use empathy, and despite our best intentions, it is always selective and riddled with blind spots. We can try to correct for this partiality if we are self-aware. But those who study cognitive psychology and decision-making find that we aren’t all that good at identifying and critiquing our own background assumptions. A better way to encourage this sort of correction is through debate with others who hold differing viewpoints. Judges, like the rest of us, make better decisions when forced to examine and articulate their premises.
According to a recent article in the New Yorker (voice of the effete empathizing liberal east-coast establishment) we owe our conscious mind -- that which makes us human -- to the mirror neurons that give rise to to empathy (because we could "feel" the mind of another, at some point we turned that thought back against ourselves and consciousness was born).
And let's not forget that some brain researchers believe it is impossible to make any choices whatsoever in the absence of emotion (the "pure" logical mind will make endless pro and con lists absent the "gut" response that finally permits us to decide).
What does this have to do with negotiation? Anyone who continues to believe that decisions are (or could potentially be) the product of a solely rational process are losing the benefit of the emotional sway every great negotiator exercises over his or her bargaining partner.
Geesh, even George Bush professed compassion (so long as the government wasn't providing it). Does the Republican Party really wish to become the home of Darth Vadar? /1
________________
1/ Perhaps Jon Stewart of Comedy Central's The Daily Show described coverage of the pairing best. The show aired a clip of The Weekly Standard's William Kristol saying of the back-to-back speeches, "Just going to be fun, don't you think? Luke Skywalker and Darth Vader, you know? And I want to say that I was always on Darth Vader's side." Stewart retorted, "Now you tell us. You know, as one of the main intellectual forces behind the Iraq war, that's kind of a weird thing to admit. You might have wanted to mention, 'Oh, quick caveat to my plan on a new American century: I'm on the Darth Vader side.' "
From "Fear of Closing Gitmo" at the Daily Kos
Changing Minds Is Easier to Do When Yours Is Open
.jpg){kind=small}
FORUM COLUMN Los Angeles Daily Journal May 19. 2009
By Victoria Pynchon
It was hot, really hot, trudging the blacktop separating dozens of apartment buildings in Henderson, Nev., the day before the election. We volunteers had lists of people who were probable Obama supporters, but many of whom wavered back and forth between him and McCain. If the person at the door said he or she was voting for McCain, I wished their candidate luck and moved on. We were getting supporters out to vote, not trying to convince McCain voters to change their minds.
I probably looked pretty disheveled and blown out from the heat when, shortly after noon, I knocked on the door of Building 12. A gray‐haired Caucasian 60‐something woman in a faded house coat opened the door; an African‐American boy around 10 clinging to her side.
"I just decided last night to vote for McCain," she said, but she didn't close the door. I was about to wish her candidate "good luck" when she added, "my son keeps trying to talk me into voting for Obama but he scares me." She didn't appear to be asking me to go away.
"Are you worried about national security?" I asked, as the kid drifted back to the television set in the darkened living room.
"No, no," she laughed, "I just think he must hate America. I'm concerned about health care and education ‐ you know ‐ I was a foster child from the time I was 2 years old ‐ but that Michelle, she seems like a radical to me."
I'm re-posting below an article published in both the Los Angeles and the San Francisco Daily Journals (the local legal rags) about the dangers inherent in email communication. I do so because I had several complaints about the use of abusive email by in-house counsel last week at my negotiation training as well as in my twitter network from attorneys exasperated with combative emailers who refuse to take telephone calls (see post about conflict avoidance here)
My advice? Use the tried and true tit-for-tat strategy: retaliate for uncooperative conduct and be quick to forgive as soon as your bargaining partners bring themselves back into line. The advice I gave on twitter (@vpynchon) this morning was simple and pointed: tell opposing counsel that you will program your email system to automatically delete all of their emails until they pick up the telephone and give you the courtesy of a return call.
Below, my Daily Journal article on the Dangers of Using Email During Litigation.
.jpg)
This story occurs in the spring of 2001, in a hotel room in Toronto, at 3 a.m., the morning of a deposition I've been preparing to take of an aging petrochemical engineer.
2001 is a year I'd dreamed of since elementary school. But the technological changes predicted in the science fiction of my childhood and adolescence are nothing like the "hi-tech" I'm living with now.
There are no one-man jets cruising the skies; no robots running my errands or cooking my dinner; no tele-transportation; and, on the political scene (it's not yet 9/11) no Big Brother.
My personal 2001 "future" is mostly about my instantaneous access to information and "real time" communication via the "killer app" -- email -- telegraphic, spontaneous, unnuanced, and about to get me in a great deal of trouble. (See Vanity Fair's must-read oral history of the internet here.)
There's an associate back in Los Angeles, you see, the quality of whose work and the strength of whose dedication to the case at hand is in alarming decline. More troubling, his work is deteriorating at the same time I'm taking old fashioned passenger jets from province to province to take the testimony of as many witnesses still living who know how 500+ toxic waste sites got that way in the first place.
Did I say it's 3 a.m.? The associate I'm thinking about failed to get me the outline I need for tomorrow's deposition on time -- or at all. The "hard copies" that were supposed to be waiting for me when I arrived at the hotel have gone missing. I'm tired. I'm hungry. I'm lonely. And I'm angry.
Worst of all, I'm composing an email to my associate about my considerable disappointment in his recent performance. There is a moment, a split second, in which my finger hovers over the "send" button while a rational voice in my head says "no." Then I push "send."
Email Makes Settlement More Difficult
More and more often when I'm meeting counsel on the morning of a mediation, they're also meeting one another for the first time. In fact, they often have not even previously spoken to one another unless they've met in Court ("good morning, counsel") or in depositions (eyes averted; objections made). Increasingly, by far the vast percentage of their communications have taken place via email.
And that's a problem.
Conflict Escalation
There's no question that litigation escalates whatever conflict existed when our client first walks in our door. We don't, after all, make requests. We issue demands. We don't seek concessions. We insist upon them. We don't make inquiries. We require responses. And we're not such great listeners. Rather, we impatiently tap our feet in Court, waiting for counsel to finish his argument (which we've heard dozens of times before) so we can press our case.
Are these bad things? Not necessarily. So long as we understand what we're doing and the likely results our conduct will have, escalation is not necessarily worse than maintaining a steady state or even deescalating conflict.
The problem for most of us is that we don't know what we're doing and we don't understand the breadth and depth of the likely repercussions.
In Conflict Escalation: Dispute Exacerbating Elements of E-Mail Communication, author Raymond A. Friedman of the Owen Graduate School of Management at Vanderbilt University quotes conflict specialists Rubin, Pruitt and Kim on the difficulties caused by escalation tactics and strategy. According to Rubin, et al., escalation is
"an increase in the intensity of a conflict as a whole.” Escalation is important . . . because when conflict escalates it “is intensified in ways that are sometimes exceedingly difficult to undo.” One reason why escalated conflicts are so hard to undo is that when more aggressive tactics are used by one side they are often mirrored by the other side, producing a vicious cycle.
Email, Friedman argues, unnecessarily, and often drastically, escalates conflict in ways none of us fully appreciate. Unlike conversation -- in person or by telephone -- we are not
physically present with others, can’t see their faces or hear their voices, and can’t give or get immediate responses. The lack of contextual clues . . . impose high “understanding costs” on participants in e-mail interactions, making it harder to successfully ground the interaction. . . . /* [T]the inability to carefully time actions and reactions . . . makes communication less precise.
E-mail Not Only Lacks Social Clues, it is "Profoundly A-Social."
Sitting in my Toronto hotel room at 3 a.m., reviewing online documents for tomorrow's deposition and now "penning" an email to my errant associate, I am, argues Friedman, not simply making communication more difficult, I have become "profoundly asocial" as my associate will also likely be when he reviews my email the following day. "E-mails," writes Friedman,
are typically received and written while the writer is in isolation, staring at a computer screen – perhaps for hours at a time, so that awareness of the humanness of the counterpart may be diminished.
As evidence, Friedman cites research in which subjects played the "prisoner's dilemma" game against a computer. Not only did the gamers act asocially in this context, "many continued to act asocially even when told that they were now playing with people (through the computer)."
E-mail, Friedman concludes, "often occurs in a context devoid of awareness of human sensibilities."
The Precise Difficulties Caused by E-Mail Communications?
Use of aggressive tactics. If e-mail communication encourages the use of more aggressive tactics during a dispute, or makes a counterpart’s tactics appear more aggressive, then escalation will be triggered.
Changes in view of other. Escalation is more likely if e-mail causes negative changes in psychological processes (e.g., perceptions and attitudes) towards the other, such as (1) seeing the other as unfair, (2) lessening empathy toward them, (3) increasing deindividuation and anonymity, or (4) or seeing the other as immoral.
Weakened interpersonal bonds. If e-mail weakens social bonds with the other, then escalation is more likely (e.g., due to reduced inhibitions for aggression).
Problems are difficult to resolve. If the communication limitations of e-mail (e.g., asynchrony deficits) make problems more difficult to solve, conflict may be escalated as frustrated disputants move from mild to more aggressive strategies to achieve their goals.
As a result, says Friedman, there are "higher rates of escalation when disputes are managed via e-mail than via face-to-face communication or other relatively rich media . . . such as telephone conversations." /**
Back in Los Angeles the Following Day
You knew this story was not going to have a happy ending. What a cranky, tired, stressed partner types into her computer at 3 a.m. and what a fully awake associate reads with his morning coffee the following day are, as Friedman stresses, two quite different things. And though I've rarely had a face-to-face disagreement with a colleague that cannot be mended by further communication, apologies, explanations and the like, this particular communication caused a rift that I was unable to heal.
This experience from several years ago, coupled with my recent mediation experiences, makes me want to advise, exhort, plead, beseech, entreat and pray that you commence every litigation with a telephone call rather than a "demand" letter or email. And that you continue to communicate with opposing counsel by telephone or, even more radically, in person over a meal, throughout the litigation to make sure channels of communication are as open and clear as possible.
The difficulties saved will not only benefit your personal life (reduce stress, increase fellow-feeling and the like) but will benefit your client as well -- in case efficiencies and better settlements all around.
______________________
*/ "Grounding" is the process
by which two parties in an interaction achieve a shared sense of understanding about a communication and a shared sense of participation in the conversation. Grounding is important because “speech is evanescent...so Alan must try to speak only when he thinks Barbara is attending to, hearing, and trying to understand what he is saying, and she must guide him by giving evidence that she is doing just this."
** / There's much more to be learned from this article, but these highlights should tell you whether further reading is in your interest or worth your time.
Here's part I of the Resource Materials for the full-day training which included this Power Point Presentation.
Part I includes articles (see the Table of Contents) on The Social Psychology of Conflict; Negotiation and Gender; Distributive Bargaining; and, Integrative and Interest-Based Negotiation.
In anticipation of working out Affiliated Organization agreements with SCMA and CDRC, current members of those two organizations (and others in the very near future) will receive special Enrollment Discounts as a benefit of your membership in either of those groups. Group Discounts are also available for groups of two or more registering together.
Please visit AIM's site for more details and additional course listings.
The American Institute of Mediation cordially invites you to elevate your mediation practice
by joining us for one of our upcoming workshops. Advance registration is required.
Be sure to read about available discounts, including Bring A Friend, Group Discount and membership in one of AIM's Affiliated Organizations.
UPCOMING WORKSHOPS:
Harnessing the Power of the Master Mediator
with Lee Jay Berman & Doug Noll
Wednesday afternoon - Sunday afternoon, May 6-10, 2009
Mediating Divorce Agreement
with Jim Melamed
Wednesday - Sunday, May 13-17, 2009
Mediating Dangerously: The Frontiers of Conflict Resolution
with Ken Cloke
Thursday - Saturday, June 4-6, 2009
Beyond Yes: Deeper Wisdom and the Art of Negotiation
with Erica Ariel Fox
Thursday - Saturday, June 4-6, 2009
Settle More Cases by Mastering the Essence of Mediation
with Lee Jay Berman and Richard Millen
Thursday - Saturday, June 18-20, 2009
Building a Profitable Mediation / Collaborative Practice
with Forrest (Woody) Mosten
Thursday - Saturday, June 25-27, 2009
Post-Disaster Mediation Training
with Mel Rubin
Thursday - Friday afternoon, July 9-10, 2009
Mediating Mortgage Foreclosures
with Mel Rubin
Friday afternoon - Saturday, July 10-11, 2009
Mediating and Negotiating Commercial Cases
with Lee Jay Berman
Wednesday afternoon - Sunday afternoon, July 15-19, 2009
The AIM Institute is where leading mediators turn to continue their learning and career development.
WHERE:
Skirball Cultural Center
2701 N. Sepulveda Blvd., Los Angeles, CA, USA 90049
The American Institute of Mediation delivers “World Class Training for the Complete Mediator”. Offering a unique and diverse curriculum whose sole purpose is to elevate a mediator's practice, the AIM Institute is where leading mediators turn to continue their learning and career development. Being free of academic constraints and embracing other disciplines allows the AIM Institute to expand the frontier of this developing profession by offering practical courses designed to make an immediate impact on a mediator’s practice. Our core faculty includes Lee Jay Berman, Ken Cloke, Erica Ariel Fox, Jim Melamed, Forrest (Woody) Mosten, Doug Noll and Mel Rubin.
Join our mailing list to stay apprised of new course offerings.
Join us on Linked In and Facebook.
www.AmericanInstituteofMediation.com
As every lawyer knows and most students of high school geometry must learn in mastering "proofs," the answer often comes first, the rationale later. I used to say, "I'm a litigator, I can rationalize anything." As a mediator, my rationalizations have turned from the way in which facts can be shoe-horned into causes of action or affirmative defenses to the way in which harm arising from a dispute (including, most assuredly, the moral harm of injustice) can be monetized.
Now David Brooks in the New York Times (which appears to have disabled the "copy" function/1) tells us that philosophy has been sacrificed on the alter of emotion in his column The End of Philosophy.
As Brooks explains, reasoning comes after moral judgment and "is often guided by the emotions that preceded it." The good news is that those emotions are not merely competitive. Brooks again:
Like bees, humans have long lived or died based on their ability to divide labor, help each other, and stand together in the face of common threats. Many of our moral emotions and intuitions reflect that history. We don't just care about our individual rights, or even the rights of other individuals. We also care about loyalty, respect, traditions, religions. We are all the descendents of successful cooperators.
My mediation experience teaches me that the "soft" arts of influence, empathy, community-building, and prejudice reduction, are as important (and often more important) to the successful (i.e., satisfying) resolution of a lawsuit than our prized ability to parse the evidence, rationalize away the bad and privilege the good to sell our "proof" to judge or jury.
Most importantly, I find that when attorneys' clients leave a mediation with the belief that a certain rough justice has been obtained, they are more satisfied with the outcome, and with their attorneys' representation of their interests, than they might have been had they left with 10% more change jingling in their pockets.
The experts who study mediation tell us that "neutrals" don't make the difference between settling or not settling. The cases will settle with or without us. The difference mediators make is not settlement, but client satisfaction. Satisfied clients are an absolute necessity for a successful legal practice at any time. In these hard times, legal practices may fail in the absence of resolutions addressing the justice issues your client sought out a lawyer to resolve in the first place.
Money is the instrument. But justice is the issue.
_____________
1/ More about this at IP ADR later today.
Interviews with ADR giants: Mediate.com opens video archive for month of April
Posted by: Diane Levin in Cool Things on the Web, Mediation, Mediation in Practice
Mediate.com, the world’s premier source for news, information, and articles about mediation, has opened its video archive to the public during the month of April.
For description of the type of videos available, run right over to Diane Levin's blog by clicking on the title up top.
Thanks Diane for getting the word out about this.
For a taste of some of the offerings, watch this short video of Ken Cloke talking to Robert Benjamin about the evolution of conflict over the lifetime of an individual as well as over the lifetime of a civilization.
Cloke is my mentor and his insights are just as useful to the settlement of commercial litigation than are some of the competitive negotiation skills I've learned along the way. Check out all of Ken's videos.
Want to convince the other side that your case has merit? Don't argue the law. Tell a Story!
From The Secrets of Storytelling: Why We Love a Good Yarn in Scientific American:
A 2007 study by marketing researcher Jennifer Edson Escalas of Vanderbilt University found that a test audience responded more positively to advertisements in narrative form as compared with straightforward ads that encouraged viewers to think about the arguments for a product. Similarly, Green co-authored a 2006 study that showed that labeling information as “fact” increased critical analysis, whereas labeling information as “fiction” had the opposite effect. Studies such as these suggest people accept ideas more readily when their minds are in story mode as opposed to when they are in an analytical mind-set.
I'll ask my friend Anne Reed at Deliberations whether she has statistics or studies on the coherency of narratives as the "proof" of their accuracy.
Anne?
By the way, Anne's teaching jury selection at Solo Practice University. One hour with Anne is worth the price of admission for the entire year!
I've scaled my MCLE way back this year, including any continuing education that requires travel unless, of course, it's something I'm speaking at to continue growing my business. Some MCLE courses, however, stay on my radar -- particularly those that don't require me to leave the office and that teach me skills to help me thrive in hard times. This IP settlement webinar is one of those continuing education courses I'd attend unless I thought I was already the best settlement attorney I could be. So seriously consider joining me and Chicago-IP lawyer extraordinaire R. David Donoghue of Holland + Knight for Hard Times? Learn How to Negotiate the Best IP Litigation Resolution
ADR in IP Litigation from ALI-ABA
Wednesday February 18, 2009 from 1:00-2:00 pm EST
Why Attend?
In a difficult economy, intellectual property protection and assertion is more important than ever. The combined stressors of a poor fiscal climate and shrinking legal budgets place a significant strain on any business dependent upon IP assets. as companies face difficult economic decisions, it is increasingly difficult to fit the expense and extended uncertainty of copyright, patent and trademark litigation into a forward looking business plan. This one-hour seminar explores the use of alternative dispute resolution as a means of protecting intellectual property and business activity, while minimizing the expense and devotion of time related to traditional IP litigation.
What You Will Learn
This program examines how to move an IP dispute toward alternative dispute resolution; best practices for controlling the expense and length of the process; and best practices for successful alternative dispute resolution. Whether you are an experienced IP practitioner or simply one grappling with IP issues in your general commercial practice, knowing how to offer your clients a wide array of ADR options might make the difference between a practice that survives and one that thrives. The seminar will cover the following topics:
How to choose between litigation and ADR.
- The most successful strategies for guiding your dispute into the best ADR forum at the most productive time.
- The five basic rules of “distributive” or “fixed sum” bargaining that will give you the “edge” in all future settlement negotiations.
- The five ways to “expand the fixed sum pie” by exploring and exploiting the client interests underlying your own and your opponents’ legal positions.
- The Ten Mediation/Settlement Conference Traps for the Unwary.
Invest just 60 minutes at your home or office to learn about alternative dispute resolution in the IP field from this duo of experts. This audio program comes to you live on Wednesday, February 18, 2009, 1:00-2:00 pm EST, via your phone or your computer. Materials corresponding to the course may be downloaded or viewed online.
From the Department of Counter-Intution we learn that our general assumption about pre-trial discovery -- that the open exchange of information will help align the expectations of disputants and increase efficiency by facilitating settlement /1 -- is probably inaccurate.
In When Ignorance is Bliss: Information, Fairness, and Bargaining Efficiency, George Loewenstein, Department of Social and Decision Sciences and Don A. Moore, Graduate School of Industrial Administration, at Carnegie Mellon University, tell us that when "information . . . is complex or ambiguous enough to allow for different interpretations" by opposing counsel,
[s]elf-serving interpretations of fairness encourage biased estimations of the probability of prevailing in court and lead people to hold out too long, fight too hard, and settle too slowly.
Simply put, because we interpret incoming information as confirming -- and often strengthening - our existing views, the "convergence" of adversarial views pre-trial discovery proponents hoped for, does not occur. Rather, discovery tends to increase the parties' belief in the rectitude of their analysis, thereby proportionally decreasing the potential for settlement. As Loewenstein and Moore explained:
In studies examining the self-serving bias, the magnitude of the bias was an extremely strong predictor of impasse, and two different manipulations that eliminated the bias led to close to 100 percent settlement compared to an impasse rate of about 25 percent in the absence of such debiasing.
The full article is well worth reading even though much of it is burdened with academese.
Because we attorneys pride ourselves on being able to "see the other side," here's an article entitled Confirmation Bias in Complex Analyses about a study in which intelligence analysts were provided with an analytic tool to help them overcome confirmation bias. The tool -- Analysis of Competing Hypotheses -- was an
hypothesis testing matrix,” where the rows represent the evidence, the columns the hypotheses under consideration, and the cells the extent to which each piece of evidence is consistent or inconsistent with each hypothesis. The goals of the ACH matrix [were meant] to overcome the memory limitations affecting one’s ability to keep multiple data and hypotheses in mind, and to break the tendency to focus on developing a single coherent story for explaining the evidence—a tendency which [other researchers] hypothesized create[d] predecision distortions (and presumably the confirmation bias).
ACH [was] hypothesized to offset confirmation bias by ensuring that analysts actively rate evidence against multiple hypotheses and reminding analysts to focus on disconfirming evidence.
Absent the template, the process sounds a lot like that we attorneys use to test our theories and evaluate those of our opponents'. Alas ACH provided the least amount to help to those study participants with professional analytic experience. As the authors report, "ACH had no impact at all" on the professional analysts' tendency to give greater weight to the evidence that supported their theories and less to that which disconfirmed them.
What to do? I'll attempt to find an answer before writing my next post.
______________________
Loewenstein and Moore quote Richard Posner on this expectation as follows:
a full exchange of information…is likely to facilitate settlement by enabling each party to form a more accurate, and generally therefore a more convergent, estimate of the likely outcome of the case.
Richard A. Posner (1986:525) Economic Analysis of Law (3rd ed. Little, Brown 1986)
Wheat and Chaff: Juries and Litigation
Let me tell you a short story.
A senior in-house lawyer is meeting with the CEO to talk about a problem the in-house lawyer had been asked to solve. The in-house lawyer describes how his efforts at negotiation had failed, so he had taken steps to find a random person off the street so that person could resolve the problem for the in-house lawyer. The CEO looked at the in-house lawyer like he was out of his mind. The in-house lawyer, now worried by the CEO's reaction, asked if the CEO would feel better if he instead chose 12 people randomly from off the street. The CEO fired the in-house lawyer.
Does anybody think the CEO is crazy? Me either. But let's rerun the story with three extra sentences.
For remainder of story, run right over to Patrick J. Lamb's blog, In Search of Perfect Client Service.
Knowing that a bench or jury trial is the only Better Alternative to a Negotiated Agreement (BATNA) what's a concerned CEO to do? No, I'm not going to say "hire a mediator." I'm going to say this. Hire a litigator who understands and is skilled at interest-based bargaining. The mediator, after all, is your last option. You need an attorney who maximizes the potential for the best negotiated resolution possible at every major turning point in the litigation. If you've hired a hot-head litigation firm, that's good. There's absolutely nothing wrong with playing hardball. Just make sure you also have available the litigation marital counselor -- at least one attorney in the hardball lawfirm, or settlement counsel outside of it, who is able to call a cease-fire and bring the parties to the negotiation table.
I like what Patrick J. Lamb has to say in his blog and in his bio. He's got big firm background and 21st century thinking. If I were looking for a business litigator/dispute resolver/efficiency machine, it's to people like Patrick I would go.
Also, see today's post at the IP ADR Blog about patent infringement jury trials and what you don't know about what your jury is thinking can hurt you.
As you'll recall, we're in hour nine of the mediation. The parties have finally agreed to settle the antitrust litigation the Court ordered them to mediate ("we won't settle; we'll only be here for an hour").
Defense counsel wants to write up the "deal points" and make a quick getaway. Before she does so, we have the following conversation.
"We'll need three years to pay it."
I fake calm.
"Your security?" I ask, my mind racing to the other room where an already unhappy set of plaintiffs are sitting.
"We don't have security. I told you my clients are broke. I also told you we'd need terms but you didn't want to talk about them."
This is true. From hour one the defense insisted they'd need to pay over time and the Plaintiffs wanted to know what terms the defense was thinking of. Throughout the day I'd told them both the same thing: "let's see if we can agree on a number before we start talking terms."
I have reasons for this. They are as follows:
This is often the trickiest part of the mediation. The three-year time table and absence of security is, I know, enough to blow up this deal. I'm going to take heat from the Plaintiffs' side, for resisting their efforts to learn the Defendants' terms before they spent an entire day agreeing upon the price. I don't, however, regret my decision. If these terms cause the negotiation to break down now, they certainly would have done so in hour one.
How I help the parties negotiate what is poised to become a rancorous impasse in the next post.
| Daily Journal Newswire Articles www.dailyjournal.com © 2009 The Daily Journal Corporation. All rights reserved. |
 |
| FORUM (FORUM & FOCUS) • Jan. 08, 2009 Every Case Is a Winding Road
FORUM COLUMN By Victoria PynchonI have a confession to make. I am about to become embroiled in litigation. Though I preach the religion of negotiated resolution, I've nevertheless hired litigation counsel to assert my rights and pursue my remedies. This is one of those moments when the rubber of our ideology meets the road of personal circumstance, the moment we are called upon to decide to walk our talk or take the more familiar road. For more than 30 years - first as paralegal, then as a law student and finally as a commercial litigator - I'd been swimming in the waters of legal rights and remedies. The adversarial ocean had become so familiar a habitat that it rarely occurred to me that I was under the surface. One day toward the end of my first year of mediation practice, a much more experienced friend hooked me by the cheek and threw me on the deck of his ship, where I was gasping for air. He'd asked me to co-mediate a will contest without the benefit on my clergy - lawyers with experience in the field. The "fish out of water" conversation that ensued went something like this: Joe Mediator: "The family doesn't want to hire a lawyer. They just want to mediate." Vickie: "But I know absolutely nothing about wills, trusts and estates. The parties need to talk to a lawyer first to learn their rights and remedies." Joe: "You still don't get it, do you?" Vickie: "Get what?" Joe: "It's not about rights and remedies. It's about interests." Vickie: "But how can they evaluate their interests without knowing their rights and remedies?" Joe: "Because they're not interested in what the law says - they want to do what they believe is right for them as a family under the circumstances." These people wanted to resolve a legal dispute without knowing their legal rights? Were they nuts? I understood "interests" - they were all the rage in ADR circles - the desires, fears and needs of the parties that drove them to take legal positions. Sometimes those interests were non-economic - the need for revenge, the desire to be personally accountable, the fear of failure, the hope for forgiveness and reconciliation. Others, though economic, could not be remedied by way of damages - better access to foreign markets, for instance, or wider distribution chains; the acquisition of better manufacturing processes; or, the retention of executives with "pull" in Washington. But all of those matters were secondary to legal rights and remedies, weren't they? You had to know what your rights were. To read entire article, click here. Here's a .pdf of the article taken from the "hard copy" of the paper.
|
I'd stop flogging this dead horse if I didn't have to weekly convince litigants of their own enduring human tendency to prefer relative well-being over absolute material possessions.
This week, that "news" is brought to you by the New York Times to explain why a surprising number of us have not been made terribly unhappy as our financial fortunes decline. As Op-Ed contributor Sonja Lyubomirsky (of The How of Happiness: A Scientific Approach to Getting the Life You Want) observes today:
the economists David Hemenway and Sara Solnick demonstrated in a study at Harvard, many people would prefer to receive an annual salary of $50,000 when others are making $25,000 than to earn $100,000 a year when others are making $200,000.
Why? Because we "care more about social comparison, status and rank than about the absolute value of our bank accounts or reputations." In other words, we're more concerned with justice (fairness) than we are about the money. Which is why our clients have sought out our help with their personal, financial and commercial problems -- because we're in the justice business. When we understand this, the negotiation of financial settlements becomes a whole lot easier because there are many more ways to deliver justice than by throwing money at it.
Read the full (short) article Why We’re Still Happy here.
As I head out to mediate an alleged Ponzi scheme purportedly perpetrated by one member of the Adath Israel Shul/* against another, I ponder its similarity to many other allegedly fraudulent financial schemes I've personally mediated. Then I pick up the morning New York Times where, three thousand miles away, "at Green's Pharmacy, a popular lunch counter in downtown Palm Beach
a man who said two of his relatives were founding members of the [Palm Beach] country club wondered aloud whether the club’s unusually exclusive nature, especially among the wealthiest investors, is what enabled [Bernard L. Madoff's] suspected scheme to go on so long.
“Anyone can get robbed,” the author of a tell-all about the country club, Madness Under the Royal Palms told New York Times reporter Ian Urbina. “Madoff’s scam was so much worse because he was one of their own.”
Whether he's working the Shul, your local evangelical brethren or the elite of Palm Beach, the con man's stock in trade is contained in his name -- "con" for confidence.
We don't get robbed for thousands, tens of thousands, hundreds of thousands or millions when someone jumps out of the bushes and demands our watches and jewerly. No. To get robbed on a massive scale requires trust and confidence in an authoritative figure who - gasp - is one of us.
He doesn't look like the guy pictured above. Depending upon who is mark is, he looks like this (right, Bernard Madoff).
or like this (left, anon at Wailing Wall)
.jpg)
or like this. (right, Ted Haggard formerly of the New Life Church)
As Albert Brooks said to Holly Hunter in 1987's masterpiece Broadcast News,
What do you think the Devil is going to look like if he's around? Nobody is going to be taken in if he has a long, red, pointy tail. No. I'm semi-serious here. He will look attractive and he will be nice and helpful and he will get a job where he influences a great God-fearing nation and he will never do an evil thing... he will just bit by little bit lower standards where they are important. Just coax along flash over substance... Just a tiny bit. And he will talk about all of us really being salesmen. And he'll get all the great women.
Of the six rules of influence Madoff played on all of them.
Reciprocation: Reciprocation is about how, if you do something for somebody, they will feel obliged to do something for you, or they will at least feel better about doing something for you.
Commitment and consistency: People respond to others who are consistent in their messages. If you are constantly giving the same messages to people and acting in a consistent way, they will respond positively.
Social proof: If people see others doing something, they assume that it must be okay to do it and therefore, they will be happier about doing it themselves.
Liking: People respond much more readily to people that they like, and even to the friends of people that they like. They feel comfortable if they see similarity or like the things that you’re associated with.
Authority: People invariably act more positively if they have respect for the authority of the person who is giving them information.
Scarcity: People get so much more interested in something if they feel that it’s about to run out.
from Mind Power Marketing here.
Con men do what we do; pretend to hold the same values we do; go to "our" "club"; attend "our" social events; give to "our" charities; and, and look like "us."
For another view of this same story -- including the fact that Madoff's suspicious activities were reported to the SEC in 1999, see Jeff Matthews is Not Making This Up here.
Tips to the con-man wary will follow.
And did I say this is my 1,000th post. I couldn't think of anything to do to celebrate it other than to just keep on keepin' on.
_______________
*/ All names, places and some circumstances of the mediated case changed to maintain confidentiality.
Are mediators being hook-winked by clients who create artificial impasses for the purpose of procuring a favorable mediator's proposal? Does the mediator's recommendation carry so much weight that the parties are subject to a manipulated mediator's proffer? Does the mediator become just a tool of a party bent on flim-flam? Or is all distributive bargaining flim-flam?
Check out John DeGroote's in-house point of view over at Settlement Perspectives and leave a comment. I've already left two there myself.
I understand some lawyers are settling all their cases with mediators' proposals. Why is that? Are they savvier than their colleagues? Or do they just need the authority of the mediator to "sell" settlement to their clients?
Jump in here or over at John's place. Whether you're a mediator, a litigator, or a client, we'd both appreciate your fresh ideas.
.jpg){kind=small}
From this coming Monday's Forum Column in the Los Angeles Daily Journal (byline V. Pynchon):
Psychologists tell us that we are not only "meaning making" beings, but that we are all born conspiracy theorists. Viewing a field of nonsensical, unrelated data, we naturally begin to "connect the dots" - to organize the information into a coherent, and often compelling, narrative.
Pattern making or conspiracy theorizing is a human survival mechanism. We have never been the fastest or the biggest creatures on the planet. We don't have the sharpest teeth or blend in all that well with the scenery. Our soft, easily punctured skin is not covered with a protective shell. In a pinch, we can't take a running leap and fly away from land-bound carnivores who might make us their prey.
We are, however, the canniest creatures on the planet. To avoid the tiger who made lunch of our best comrade, we surveyed the scene and committed the pattern of otherwise unrelated details to memory. Five banyan trees, a narrow stream, and, a pile of rubble left by a recent avalanche means "there are tigers here."
Couple this with Fundamental Attribution Error and you have all of the ingredients necessary to blame inadvertently caused harm on elaborate conspiracies cooked up by our untrustworthy companions - Fundamental Attribution Error being our universal tendency to over-emphasize the role of others' negative personality traits to explain why harm befell us.
So it is with our legal adversaries. Once the channels of communication have been severed by the filing of a lawsuit, attorneys and clients alike begin to make up "what really happened" based on predispositions, scattered conversations, faulty memories and scraps of documentation.
Continue reading Monday's Daily Journal Forum Column here.
Friend and colleague Los Angeles attorney-mediator Linda Bulmash of ADR Services, Inc. advises us to be consistent in negotiating the resolution of litigation in this month's LACBA negotiation tip.
The Power of Consistency in Negotiation and Mediation
When a person makes a public commitment to a course of behavior, the human psyche will push them to follow through with their commitment. For instance we break New Years resolutions because we seldom share them with others and usually do not write them down.
An interesting phenomenon occurs when the commitment is made public or a person pro-actively takes the first step to follow through with a course of action. An interesting research study found that although people are often unsure of their choice of the winning horse at a racetrack, they become much more confident of their choice once they place their bet. They are driven to consistency once they make a public commitment to a course of action.
Therefore experienced negotiators and mediators focus on getting people to publicly verbalize and/or write down each small commitment to follow a certain course of action (e.g. buy a car or resolve a dispute) knowing that once done publicly, it is highly likely that they will believe this is the best choice and will find a way to attain the object of their commitment.
Thanks, as always, for the great advice Linda! And if you're looking for a local neutral, check out Lucie Baron's dynamite list of L.A. mediators here!
Must read: Embracing Conflict's analysis of Dueling Banjoes in Deliverance written by Niel Denny, a Collaborative family solicitor working in the South West of England who is a member of my twitter network here: @nieldenny.
Excerpt and video below but a reading of the entire post is a must for anyone looking for reasons to believe that we can reach one another across political, cultural, religious, social and economic divides.
The music develops by a process of answer and call. One of them plays a riff, or a short section of music, which is then followed by the other. They react to one another responding to and developing upon the riff they have just heard. By doing so they produce this amazing music in a memorable scene that is part of cinema folklore.
It represents a rare moment of optimism in what is an otherwise unbearably dark, oppressive film.
In the process of exchanging these riffs the protagonists are effectively collaborating. They are communicating. We can see their riffs as an analogy for talking. The riffs work where the spoken word does not. Drew and the Banjo boy clearly develop and enjoy a relationship while they are playing.
Video below is part I of an interview on negotiation challenges, strategies and tactics for women with
Vicki Flaugher, founder of SmartWoman Guides. The full audio of the video is here along with Ms. Flaugher's kind comments about our conversation. Ms. Flaugher describes her site resources as follows:
If you’re a beginning female entrepreneur or a women who is thinking about starting in business for herself, you have found your tribe. You have arrived at a safe place to talk about business. Especially if you are 35-55 years old, you are going to love this site because that’s a magic age time. You really discover who you are during those years and finally decide to do what you love instead of just what you’re “supposed” to do. The spirit of that revelation and all the promise it holds is why this site was created.
Now, Part I of Negotiating Women!
"Never Fear to Negotiate" from JFK's Inaugural Address with video here.
So let us begin anew -- remembering on both sides that civility is not a sign of weakness, and sincerity is always subject to proof. Let us never negotiate out of fear, but let us never fear to negotiate. Let both sides explore what problems unite us instead of belaboring those problems which divide us.
Let both sides, for the first time, formulate serious and precise proposals for the inspection and control of arms, and bring the absolute power to destroy other nations under the absolute control of all nations.
Let both sides seek to invoke the wonders of science instead of its terrors. Together let us explore the stars, conquer the deserts, eradicate disease, tap the ocean depths, and encourage the arts and commerce.
Let both sides unite to heed, in all corners of the earth, the command of Isaiah -- to "undo the heavy burdens, and [to] let the oppressed go free."
And, if a beachhead of cooperation may push back the jungle of suspicion, let both sides join in creating a new endeavor -- not a new balance of power, but a new world of law -- where the strong are just, and the weak secure, and the peace preserved.
All this will not be finished in the first one hundred days. Nor will it be finished in the first one thousand days; nor in the life of this Administration; nor even perhaps in our lifetime on this planet. But let us begin.
People who are joined together by a dispute -- which includes everyone engaged in litigation and their attorneys -- are suffering more than most from a universal cognitive bias known as fundamental attribution error. FAE is one of the ways we explain our troubles to one another.
If we have suffered misfortune and are able to attribute our loss to the actions of another, we will universally attribute the series of events resulting in our loss to the bad intentions or evil character of the person we lawyers call "the defendant."
If we are the defendant, we will universally attribute the series of events resulting in the injured party's loss to the circumstances causing Plaintiff's harm (or, of course, to the Plaintiff's evil intentions).
The attribution of harm primarily to character or motive on the part of the victim and primarily to circumstance on the part of the accused is fundamental because it is hard-wired into the way we think. It is an attribution error because it attributes effect to a particular type of cause. It is error because all human activity and the inevitable conflicts that arise from it
"take[s] place not only between individuals, but in a context, culture and environment; surrounded by social, economic, and political forces; inside a group or organization; contained by a system and structure; among a diverse community of people at a particular moment in time and history; on a stage; against a backdrop; in a setting or milieu."
See Ken Cloke's Conflict Revolution (this from the Introduction) here and my review of it at The Complete Lawyer here.
In other words, all events, conflicts, injuries, and benefits, all causes and effects are determined both by human actors and by circumstance. We are the cause and the effect of everything that surrounds us and everything that we surround.
How does this knowledge help us resolve our disputes and why does the way we tell our stories hold the key to resolving them? I could give you more explanations from the field of social psychology or I could simply tell you a story. In this case, I tell the story of a book of stories written by Malcolm Gladwell who writes about the stories we tell ourselves and one another about success. Gladwell, we're told, introduces us to Bill Gates as
a young computer programmer from Seattle whose brilliance and ambition outshine the brilliance and ambition of the thousands of other young programmers. But then Gladwell takes us back to Seattle, and we discover that Gates’s high school happened to have a computer club when almost no other high schools did. He then lucked into the opportunity to use the computers at the University of Washington, for hours on end. By the time he turned 20, he had spent well more than 10,000 hours as a programmer.
At the end of this revisionist tale, Gladwell asks Gates himself how many other teenagers in the world had as much experience as he had by the early 1970s. “If there were 50 in the world, I’d be stunned,” Gates says. “I had a better exposure to software development at a young age than I think anyone did in that period of time, and all because of an incredibly lucky series of events.” Gates’s talent and drive were surely unusual. But Gladwell suggests that his opportunities may have been even more so.
Continue reading the NYT Sunday Book Review of Gladwell's new book, Outliers, here.
More on using dual narratives to help you settle litigation tomorrow (or later this afternoon)
Many in the legal blogosphere are buzzing about the recent Supreme Court decision letting stand a Central District injunction barring wheelchair-bound Jarek Molski from filing further ADA accessibility cases in our local federal trial court here in Los Angeles. See Justice Berzon's and Kozinski's spirited dissents to Ninth Circuit's Per Curiam refusal of the Petition for a full panel re-hearing here.
Mr. Molski was declared a vexatious litigant by the California Central District federal court back in 2004. See Wendel Rosen's excellent report of that case here. Molski v. Mandarin Touch Restaurant, 347 F. Supp. 2d 860 (C.D. Cal.2004) (declaring Molski a vexatious litigant and requiring court approval prior to his filing future lawsuits); aff'd Molski v. Evergreen Dynasty here.
.jpg)
Still active is Molski's case in the Eastern District of California which was recently permitted to go forward by the same Ninth Circuit Court of Appeal. As the Ninth Circuit explained the factual background of Mr. Molski's "serial litigation,"
[Plaintiff] Molski and his lawyer Thomas Frankovich (“Frankovich”) were purportedly in the business of tracking down public accommodations with ADA violations and extorting settlements out of them. On cross examination, Molski acknowledged that: he did not complain to any of [the defendant's] employees about his access problems; he had filed 374 similar ADA lawsuits as of October 8, 2004; Frankovich had filed 232 of the 374 lawsuits; even more lawsuits had been filed since that date; Molski and Frankovich averaged $4,000 for each case that settled; Molski did not pay any fees to Frankovich; Molski maintained no employment besides prosecuting ADA cases, despite his possession of a law degree; Molski’s projected annual income from settlements was $800,000;2 Molski executed blank verification forms for Frankovich to submit with responses to interrogatories; they had also filed lawsuits against two other restaurants owned by Cable’s; they had filed a lawsuit against a nearby restaurant; and Sarantschin obtained up to 95% of his income from Frankovich’s firm for performing investigations for ADA lawsuits.
See Molski v. MJ Cable, Inc. here.
Despite these apparently damning facts, in its 2007 affirmance of the vexatious litigant finding, the Ninth Circuit noted some of the reasons why Molski and his lawyer could not be condemned for their pursuit of serial ADA litigation. The ADA, noted the Court,
does not permit private plaintiffs to seek damages, and limits the relief they may seek to injunctions and attorneys’ fees. We recognize that the unavailability of damages reduces or removes the incentive for most disabled persons who are injured by inaccessible places of public accommodation to bring suit under the ADA. See Samuel R. Bagenstos, The Perversity of Limited Civil Rights Remedies: The Case of “Abusive” ADA Litigation, 54 U.C.L.A. L. Rev. 1, 5 (2006).
As a result, most ADA suits are brought by a small number of private plaintiffs who view themselves as champions of the disabled. District courts should not condemn such serial litigation as vexatious as a matter of course. See De Long, 912 F.2d at 1148 n.3. For the ADA to yield its promise of equal access for the disabled, it may indeed be necessary and desirable for committed individ- uals to bring serial litigation advancing the time when public accommodations will be compliant with the ADA.
But as important as this goal is to disabled individuals and to the public, serial litigation can become vexatious when, as here, a large number of nearly-identical complaints contain factual allegations that are contrived, exaggerated, and defy common sense. False or grossly exaggerated claims of injury, especially when made with the intent to coerce settlement, are at odds with our system of justice, and Molski’s history of litigation warrants the need for a pre-filing review of his claims. We acknowledge that Molski’s numerous suits were probably meritorious in part—many of the establishments he sued were likely not in compliance with the ADA.
On the other hand, the district court had ample basis to conclude that Molski trumped up his claims of injury. The district court could permissibly conclude that Molski used these lawsuits and their false and exaggerated allegations as a harassing device to extract cash settlements from the targeted defendants because of their noncompliance with the ADA. In light of these conflicting considerations and the relevant standard of review, we cannot say that the district court abused its discretion in declaring Molski a vexatious litigant and in imposing a pre-filing order against him.
In other words, when the legislature puts the enforcement of the ADA in the hands of disabled individuals without permitting them to recover damages, you can't blame private attorneys for working the market created for the private enforcement of public laws even if you can blame them for the manner in which the market is worked.
So what does this have to do with the settlement of litigation and, in particular ADA Litigation?
Because these accessibility cases always cost more to defend than to settle and because they're often indefensible, the rational business decision is simply to settle the darn things.
No one, however, wants to be extorted. And in the few ADA cases I've mediated, it's the principled refusal to pay money at the point of a gun that interferes with a business establishment's willingness to do the economically "rational" thing rather than, say, try it; appeal it to the Ninth Circuit; and, pursue it to the Supreme Court of the United States.
For those representing defendants who are feeling extorted, I offer my own (previously posted) ADA mediated settlement story below.
I have recently been asked by several lawyers to write a few posts on mediation and negotiation terminology not only because some attorneys are unfamiliar with these terms, but also because different mediators and negotiators use them to mean different things.
Mediators, lawyers and negotiators who read this post are invited to add, correct, object, or suggest further refinements and to add their thoughts on further strategic and tactical uses and perils of the impasse-busters we discuss today - the bracketed offer and the mediator's proposal.
And because my readers may find this post as dry as bones, I once again offer the X-rated "Negotiation Table" as pretty #%$@ true and funny (think Ari Gold).
Bracketed Offer: Party A makes an offer to bargain in the zone he wishes to see the negotiation move to. This is often used when neither party wishes to step up to the line of probable impasse and it can also be used to re-anchor the bargaining zone. Quite simply, Party A offers to bargain in the range of, say, $2 million and $3 million. He offers to put $2 million on the table if party B is willing to put $3 million on the table, i.e., "I'll offer to pay you $2 million if you'll offer to accept $3 million to dismiss your suit."
If party B does not accept the bracket, party A will not be "stuck" with having actually placed $2 million on the table when the next exchange of offers and counter-offers begins.
Responding to a Bracketed Offer: Party B can: 1. respond with a counter-bracket, i.e., I'll make an offer to accept $3.5 million in settlement if you'll put $2.5 million on the table; or, 2. refuse the bracket and ask for an unbracketed counter.
The basics: the mediator chooses a number for the parties, making an "offer" to settle for, say $2.3 million which the parties are free to accept or reject. It is a double-blind "offer." If either party rejects the "offer" neither party knows whether the other accepted or rejected. Acceptances are communicated only if both parties accept, in which case they have a deal.
The circumstances: The parties should seek a mediator's proposal only when they have reached a hard impasse. A hard impasse exists when both parties have actually put their true bottom line on the table or their next to the bottom line and they see no hope of it closing the deal.
The purpose: Both parties believe they could convince their principal to accept a deal that is more than they wanted to pay or less than they wanted to accept, but they cannot convince their principals to put $X on the table or accept $Y. They hope to use the authority of the mediator to sell the deal to their principals. If they are the principals, they are willing to settle for a number lower or greater than planned but not willing to close the bargaining session having made such a concession, which would have the effect of setting the floor or establishing the ceiling of all future bargaining sessions.
The Mediator's number: I do not know whether there is a general practice among mediators about how they choose the number proffered. When parties ask me to make a mediator's proposal (I rarely recommend one in the first instance) I explain my practice as follows: When I make a proposal I am not acting as a non-binding arbitrator or early neutral evaluator. In other words, my proposal is not a reflection of the value of the case. The number I propose will be a number that I believe the Plaintiff is likely to accept and the Defendant is likely to pay.
In rare instances, the parties wish to continue bargaining in the event a mediator's proposal is not accepted by both parties. I have permitted this in a few circumstances after explaining to the negotiating parties that it often causes resentment on the other side because they feel as if the party who wishes to continue negotiating is unfairly attempting to use the mediator's number as a new bench-mark from which to bargain.
I highly recommend against continued bargaining after the rejection of a mediator's proposal on the day of the mediation. It should serve as a hard stop because the parties respond to it as an ultimatum. That's part of its power. Take it or leave it.
Just as you would not continue bargaining after indicating that you were putting your last dollar on the table, you should not continue bargaining (during that session) after the mediator has, in effect, put both parties' anticipated bottom lines on the table for them.
First she's all about the election and now she's back to post-mid-Century America's gender wars? Say it ain't so, Vickie!
These are just statistics from an extremely limited sample that tells more about this particular program in this particular place concerning the particular types of cases being mediated than they are about the relative abilities of male and female mediators.
I'm unaware, however, of any controlled studies on gender differences in mediation results. I do know that there's a gender imbalance in the profession and have had panel administrators acknowledge on the QT that even when they're choosing mediators or settlement officers pro bono lawyers tend to choose men most of the time.
So for women struggling in the profession, here's your moment of zen.
Examining the graphical representation of mediator gender and settlement rates, one can see that there are male mediators who settle cases at higher than average rates, as well as female mediators who settle cases are lower than average rates. Nevertheless, it appears that most of the popular mediators who settle cases at higher than average rates are women, while the majority of popular mediators who settle cases at lower than average rates are men.
Some may object to this “battle of the sexes” analysis on the grounds that men and women should be treated as equals. Based on our data, however, male and female mediators are not statistically equal with respect to the rate at which they settle cases. Whether this “good” or “bad” is more a matter of philosophy than statistics.
In her book In a Different Voice, Carol Gilligan described how men and women think about moral conflicts differently. Her research suggests that men tend to consider conflict in terms of rights while women generally view conflicts in terms of dynamic relationships. Accordingly, a “female” approach to conflict resolution may be better suited to the process of facilitating mediated settlements than a “male” approach to conflict.
For a colored chart and remainder of post, see Correlation of Mediator Gender to Settlement Rate at Practical Dispute Resolution here.
When I think of my own experience as a neutral for the past four years and compare it to my experience as an attorney in the first four years of my practice 1980-1984, I can only say that it is somewhat similar.
What made the difference in the years that followed? Women flooding the profession. As women litigators and bench officers begin to retire, I suspect that we'll begin to see greater use of women neutrals. And no, I do not believe that the paucity of women on commercial mediation panels nor what I believe to be their greater struggle to build a thriving practice there is based upon conscious sexism.
Like the tendency to prefer judges over attorney mediators (a preference I believe to be waning) I believe that the sub-conscious preference for male over female mediators arises from a continuing misunderstanding among members of the bar about what settles cases. Too many attorneys continue to believe that they need a mediator who can overpower the will of their adversary. And if you're looking for raw power (particularly the power of authority) in American commerce and law, you will naturally choose the judge over the attorney and the man over the woman.
I haven't written about this in the past because it is a topic that tends to divide people and it is not my intention to start a tiny gender war in the tiny world of mediation.
But when these statistics started pouring into my in-box, I couldn't ignore the topic any longer.
Please feel free to comment.
Jonathan Fields.Awake@the Wheel gives us 7 critical mistakes to avoid when trying to persuade someone to your point of view. Excerpt below: Jonathan's full post is a must read and can be accessed by clicking on the link above.
Rock on!
Simply great post on Obama's oratory from About.com thanks to Grammar Girl in my Twitter network. Excerpt below from Barack Obama's Secret for Stirring a Crowd:
Oh sure, this may look as easy as one, two, three, but the truth is it takes more than a flag-draped stage and a run of tricolons to turn an ordinary speech into great oratory. Also helpful is the occasional series of four--a tetracolon ("democracy, liberty, opportunity, and unyielding hope")--along with effective repetition, a bit of alliteration, and a few conventional metaphors. The insistent use of the first-person plural ("we," "us," and "our") invites identification. And the right combination of anaphora ("It's the answer") and epiphora ("Yes we can") can lift a crowd off its feet and land a speech in the history books.
But that's not all. About 2,000 years ago, Cicero taught us that what makes or breaks a speech is effective delivery, which includes the qualities of dignity and grace:
All these parts of oratory succeed according as they are delivered. Delivery . . . has the sole and supreme power in oratory; without it, a speaker of the highest mental capacity can be held in no esteem; while one of moderate abilities, with this qualification, may surpass even those of the highest talent.
(De Oratore)So to the list of Obama's persuasive skills add standing tall, speaking forcefully, and exuding confidence.
Oh, and one last thing. Especially in troubled and uncertain times, it never hurts to extend the promise of change, the prospect of hope, and the reminder that we're all in this together.
And if you haven't yet seen this hilarious video about 20-somethings' malaise post-election, click on play immediately!
 |
brianherrington @vpynchon Patience. In terms of listening & allowing process to play out.
|
|
 |
||
 |
SCartierLiebel @vpynchon Knowing when to listen. Letting people put a period on the end of their sentence. Letting people tell their story.
|
|
 |
RobRutkowski @vpynchon You can't memorize preparation. You must still learn everything you can about the other side and the subject matter of the deal.
|
|
 |
3rddeadline @vpynchon not a lawyer, but: relationship/client management and business development should be on the list.
|
Here are my upcoming speaking and teaching engagements in November and January!
I'm baaacccckkkkkkkkkkkkkkkkkkkk!!!!!!!!!!
.jpg)
Judicate West Neutral and IP ADR Mediator and Blogger Victoria Pynchon.
Coach/Instructor, National Institute of Trial Advocacy: Building Trial Skills
Location: Loyola Law School Los Angeles
City: Los Angeles, CA
Dates: 1/2/2009 - 1/8/2009
Director: Williams, Gary C.
This is a week-long intensive program for new and/or experienced attorneys who need to learn/brush up on their basic trial skills. If you can take the time, your entire practice will benefit from the experience.
BrightTALK Intellectual Property Summit here! on November 11, 2008 Webcast Free
Negotiating a Settlement in IP Litigation
12:00 pm
Presenting Victoria Pynchon, Judicate West, CPR, Settle It Now, IP ADR Blog
And coming soon! Deposition Skills Training (NITA techniques) at Solo Practice University!!
Thanks to Russell Thomas (@3rddeadline in my Twitter network) for directing us to Ten Battle Tested Rules for Communicating Well in Hard Times by Henry Fawell (@henryfawell). Excerpt below:
1. Tell the truth. Warren Buffett said it best: “It takes 20 years to build a reputation and five minutes to ruin it.” . . .
2. Don’t just respond to crises — plan for them. Forward-thinking companies identify their vulnerabilities ahead of time and plan accordingly. . . .
3. Define your audience. . . . . . Identify the audience that matters to you and build your communications strategy around it.
4. Keep it simple. . . . develop a simple yet compelling message that your audience understands.
5. Mind your own ranks. . . . . Keeping [employees] informed during challenging times demonstrates leadership, maintains morale and minimizes confusion.
6. Be sympathetic. Organizations that demonstrate concern for their stakeholders and the public generally weather a crisis well . . .
7. Bring in reinforcements. . . . . A public statement from a respected industry leader or local figure can help isolate your critics.
8. Don’t take it personally. . . . . . If a news outlet’s coverage is inaccurate or misleading, let it know. But don’t lose your composure just because reporters ask hard questions and report hard facts.
9. Fill the vacuum. . . . . Take charge and define [the crisis] on your terms.
10. Look beyond the crisis. . . . . Organizations that identify them and communicate effectively with their stakeholders will be better positioned to succeed when the fog of crisis finally clears.
Henry Fawell is a communications consultant for Womble Carlyle Sandridge & Rice PLLC in Baltimore. Contact him at Henry.Fawell@wcsr.com.
Image from the fantastic Real Reads here!
There's nothing like getting a new Harpers in the mail to upset my idealistic dreams of a new America flourishing under an Obama administration. Here's the opening November '08 Harpers slap-in-the-face for dreamy liberals like me:
After eight years of catastrophic Republican misrule—in the midst of economic crisis and rising unemployment, in a nation plagued by ruinous energy costs and inflation, bank failures, and staggering public and private corruption—an eloquent, charismatic, intelligent Democratic candidate was locked in a statistical tie with a doddering old hack whose primary argument for his claim to the most powerful office on earth is that he was shot down over Vietnam and tortured for five years. Indeed, this remained the case even after McCain demonstrated beyond all doubt, in his impetuous selection of a ludicrously unsuitable vice- presidential candidate, that he lacked the good judgment that is the primary qualification for the job. If the Democratic Party loses this election, then it should forever concede the presidency.
Ouch! I read this magazine for the same reason I watch Fox News. To upset my own comfortable ideologies. That's the trouble with us liberals -- we're always fretting about being fair, when, according to Harper's Roger Hodge we're just a big bunch of conflict-avoidant pussies.
Conflict in politics is not a metaphor, and as with any fight, the audience is likely to get involved. That is the essence of politics. A campaign that decides in advance that voters are tired of negative campaigning, that they are sick of partisan attacks and will respond only to positive messages, has stupidly left the field of battle. The people who truly dislike political combat are presumably among the 95 million who do not vote. Senator Barack Obama, a sophisticated and intelligent man with sophisticated and intelligent advisers, promises to change Washington, to eliminate the tone of partisan rancor, to foster a new spirit of brotherhood and cooperation. Poor lamb, he wishes to lie down with lions. But the Kingdom has not come.
The answer?
Attack!!
Unfortunately, the sovereign voter can do little, on his own, to remedy the situation, especially if he happens not to live in Florida or Ohio. Yes, he can make a campaign contribution, a slightly more effective form of voting, but unless the Obama campaign decides to wage a more creative and destructive war, casting monetary ballots remains an empty gesture. (Of course one can also join the battle personally, perhaps by repeating the rumors about John McCain’s Alz heimer’s meds or the Sarah Palin sex tape.) Ultimately, we return to the problem of political will, to the Democratic Party, to the commitment of its party bosses to prevail, finally, in this election.
We can hope for change, that the Republicans will make some fatal error, or that Obama’s party will fight hard enough to persuade a decisive number of “low information” voters that John McCain is not only a liar but a menace to our children’s future. Recent precedents, however, are not encouraging. The Republican Party lied its way through eight years of criminal misrule while Democrats mostly just cowered in a back room. Now, faced with a clumsy deception about whether Sarah Palin sought an earmark for a small town in Alaska, Obama exclaims, “Come on! I mean, words mean something, you can’t just make stuff up.” Oh, yes, Barack, we can.
In the same issue that suggests we dirty our hands by calling John McCain a liar and the Bush administration's "misrule" criminal, we read that Obama is a detached blank screen upon which voters can project any quality they like (or dislike) because . . . well . . . his mother was lonely and so is he:
Obama wants to believe in the common good as a way of providing a fullness to experience that avoids the slide into nihilism. But sometimes I don’tknow if he knows what belief is and what it would be to hold such a belief. It all seems so distant and opaque. The persistent presence of the mother’s dilemma—the sense of loneliness,doubt, and abandonment—seems palpable and ineliminable. We must believe, but we can’t believe. Perhaps this is the tragedy that some of us see in Obama: a change we can believe in and the crushing realization that nothing will change.
See The American Void by Simon Critchley
This is usually the point at which my own McCain-supporting mother breaks in with "honey, you know, you can think too much." And after years, decades really, of finding this refrain irritating, I finally agree with her about the thinking part if not about her taste in Presidential candidates.
Like the Obama caricatured in this month's Harpers as an ineffective dreamer as intent on replacing his deceased mother's lack of faith with liberal-Christian-do-gooding as Oliver Stone suggests "W" was intent on finally pleasing Daddy, I simply choose to have faith in the stated values of the Democratic party. I continue to believe that over time, we can do better as a nation through consensus and problem-solving, collaboration and compromise, than we can by adopting the tactics of the world's strong-arm leaders and disciples of discord.
The Good News
Assuming that the guy I think Obama is -- highly educated, articulate, and idealistically dedicated to serving the common welfare -- actually exist on the political scene (and I will not give up this faith any more readily that others would renounce their own religions) I believe them to be riding the bow-wave of transformation. I have staked my professional life on this faith in my fellows' ability to work toward the common good, abandoning the extremely lucrative practice of legal battle in exchange for the far less financially rewarding practice of collaborative negotiated conflict resolution.
Who are the real cowards here and who the heroes? People who refuse to negotiate face-to-face "without pre-condition" ("we won't discuss settlement unless they're willing to put $10 million on the table first") and without the protection of several layers of legal counsel? Or those who are willing to test the rectitude of their "position" by sitting across a table with their opponent to frankly discuss their mutual role in whatever commercial or personal catastrophe flowed from the intersection at which their (mis)fortunes collided?
The social psychologists tell us that we live on the razor's edge of individual survival (me, me, me, me, me) and the collective good. It is our great challenge as a species to live that which we cannot refuse to understand -- "we" cannot drill a hole in "their" side of the boat without sinking all of us.
So I will continue to brave reading Harpers (which discourages me) and risk the challenge to my world view of Fox News commentary (which so often enrages me) on the off-chance that my religion -- tolerance; compassion; collective effort; empathy and the like, has more staying power than the religion of hate; discord; and, denial.
And I will also continue to believe that none of us could ever possibly be right.
Only that we could potentially be happy.
Ending on a positive gaping void note with Hugh McLeod's greatest to date contribution to humanity: How to Be Creative. You can catch him on Twitter here.
I watched the debate last night with people who support my candidate. They all also happened to be mediators, so they understand concepts like confirmation bias --the tendency to search for or interpret new information in a way that confirms one's preconceptions and avoids information and interpretations which contradict prior beliefs. It is a type of cognitive bias and represents an error of inductive inference, or as a form of selection bias toward confirmation of the hypothesis under study or disconfirmation of an alternative hypothesis.
I've been Twittering (shoot me! this is addictive behavior). But all behavior has it's "up" side. The "up" side to following my Twitter network's running real-time commentary of the debate was the exposure of my own (and my friends') confirmation bias. I have both McCain and Obama supporters in my network and it was as if the two groups were watching entirely different debates. And they were.
Because nothing is objective. Let me repeat that. Nothing is objective. Everything we hear, see, touch, smell and taste is filtered through our entirely personal experiences, the collective or "received" reality of the society (micro or macro) in which we live, and interpreted based upon those experiences, which are further complicated by universal cognitive biases and particular core beliefs (our "operating principles").
If nothing is objective, there is no truth beyond that which one has faith in. ("faith is the substance of things hoped for, the evidence of things not seen.")
Yes, I know, the scientific method. But you and I don't test our beliefs, opinions, perceptions and conceptions by the scientific method. We hear, we see, we smell, we taste, we touch and we respond. We opine. We believe we are right.
So I said to my friends in the middle of the debate, "we're an example of "confirmation bias" and they took issue with me. And I let it go because I wanted to listen more than to impose my own view of our collective experience. And I was Twittering, lord help me, with some people who didn't share my bias.
I missed statements made by McCain entirely. It was if I hadn't even heard them. I was listening to confirm that which I already believed, which means I screened out what didn't fit my view of McCain or Obama and highlighted those statements that confirmed my existing beliefs.
This is what happens every time you try a case to a jury. It's why the little "g" god of the market place created jury consultants. It is also what happens everytime you try to settle litigation. Litigation raises confirmation bias to holy writ. Which is why the little "g" god of the market place created mediators. Why? Because the client has filtered his opening story through his own subjective experiences, which we, the litigators, devote ourselves to proving by cherry-picking the facts that conform to those experiences and disputing all those that don't. By the time the parties and their counsel get to me, they're often in different galaxies. And I need to help them remember, or realize for the first time, that their opponent has woven the disparate facts of "what happened" into an entirely different story, and has done so without "lying" about those events. Just as importantly, the parties come to understand that a jury might well "buy" their opponents tale as the "right" one.
Here's the more important point to getting a better deal: your opponent is often nearly as interested in your acknowledgement that his version of the events might be as accurate as yours as he is in "winning" the case. When (or if) the parties clear this hurdle, they can get down to serious horse trading, benefitting both.
So, forget the pundits. If you believe your guy "won" last night, it's probably equal parts a measured opinion and a peculiarly subjective experience, one that you do not even know you've tailored to fit your own view of reality.
I like Obama because I believe he acknowledges this from time to time. Not always. But often enough to make me feel comfortable with him in a White House. Am I right? How could I possibly be? We won't know anything until one of these men moves from campaigning to governing.
Lord help us all.
It's effective, it's efficient and it's client-centered. Just what we need to weather the financial storm.
What? The mediated resolution of litigated cases.
Nobody blogs it better than Diane Levin at the Mediation Channel, who hosts Blawg Review # 181 in celebration of International Conflict Resolution Day. BR's anonymous Ed. recently had these kind and grateful words for Diane:
We'd like to take this opportunity to thank Diane for her many contributions to Blawg Review, having now hosted four outstanding presentations -- #43, #94, #130 and #181. Behind the scenes, in her role as a Blawg Review Sherpa, Diane has made contributions to many other issues of Blawg Review, too. So, speaking for myself and all the other Blawg Review hosts she's helped along the way, we'd like to say thanks a bunch and give you this extra little bit of link love to show our heartfelt appreciation.
Tomorrow I'll start my day by reading, and giving my own readers a head's up on what looks to be one of the best Blawg Reviews of the year by the best ADR blogger ever.
Anyone working up the nerve to host, click here. Lesser mortals can submit their week's best post by taking a look at the submission guidelines here. Next week Blawg Review will appear at ..
(totally unrelated photo; just getting my iPhone photos from Paris in the mix)
But what a Blawg Review Diane has given us. Thank goodness it's Columbus Day or I'd be short-changing my actual work-work by reading #181 half the day and its links the other half of the day. And don't expect Diane to limit herself to mediation. Most of us are also lawyers, after all, so she also covers the best legal posts of the week on the topic of the law, legal practice, life as lawyers -- the "whole catastrophe" as Zorba said.
Geoff Sharp is spot on in urging you to read Blawg Review #181. It could be malpractice not to do so!!
Brilliant Diane! Thanks.
Earlier this week I was asked the following question by a concerned General Counsel: how can we help our employees grapple with on-the-job justice issues without leading them to believe that our proposed solutions are untrustworthy.
The problem, as eloquently described by a lengthy email posing the question, is one that all employers face, large and small. For this GC to have thought that mediators might make a difference is particularly heartening on a day when mediator Justin Patten was reporting that mediators are the furthest thing in a UK company's mind when dealing with conflict.
(above, the work of the brilliant Hugh McLeod)
To understand the depth of the problem posed, I'm providing you with the full email sent to me:
Victoria:
I just read your blog post of September 15, 2008 regarding Peter Murray's article (which I have not read yet). I was having a discussion today with my Director of Human Resources, and raise a related issue.
Our company spends an inordinate amount of time explaining disability, workers comp and federal employment law to employees who misunderstand what their rights are, or do not give us the right information to help them get the help they need.Of course, we are the big bad employer, so any information we give them is suspect. I have considered hiring a social worker as a case manager/advocate for these people, but that position would just be interpreted as another tool of the evil employer out to keep them out of work/make them go back to work in violation of their best interests, so it would be a waste.
We would LOVE if there was an independent agency that would assign a case worker, not to work as an attorney for the employees, but as an advocate to help them understand their rights and access the system correctly. I would gladly pay to fund this service.
Then I realized, if the employer, or a group of employers, funded this employee advocacy agency, employees would think the advocates were biased toward the employers and were just in a sham relationship to deprive them of their rights to serve the interest of the employer.
Now, I do not believe this would be the case. I trust in the professionalism and ethics of mediators, but I do believe that uneducated and single users would form that opinion. Professor Murray's opinion reinforces that conclusion, even though at first glance, he would seem to be "educated."
But, is bigger government the answer. My experience with the EEOC is that they want employers to do MORE than is required by law. We have had success with mediators after complaints are filed, but my goal is to get the employees what they need when they need it, not have a mediator help us fix it after time has run out.
What are your thoughts on this?
The Problem as Cognitive Bias
I've highlighted the sections of the GC's email that raise the problem of reactive devaluation -- our tendency to devalue and resist anything our "opponent" offers to us. Most attorneys were taught reactive devaluation as first year associates -- "if opposing counsel wants it, you don't."
As the linked article -- Reactive Devaluation in Negotiation and Conflict Resolution -- notes:
One can be led to conclude that any proposal offered by the “other side”—
especially if that other side has long been perceived as an enemy—must be
to our side’s disadvantage, or else it would not have been offered. Such an
inferential process, however, assumes a perfect opposition of interests, or in
other words, a true "zero-Sum" game, when such is rarely the case in real-
world negotiations between parties whose needs, goals, and opportunities
are inevitably complex and varied.
Combatting Reactive Devaluation in the Workforce
Cognitive biases such as reactive devaluation are not random artifacts of an irrelevant evolutionary past. They are built-in protections against deception by our friends as well as by our adversaries. There is only one lasting protection against this bias -- to engage in clear communication with your work force on a daily basis concerning the mutual and complementary interests of employer and employee; to express your belief in your interdependence in word and deed, i.e., by engaging in dialogue and activities demonstrating benevolent intent; and to willingly listen to one another's complaints, understanding that one man's benevolence is another's bondage.
As recent legal news touching too close to home (the Heller dissolution) bears out, the workplace will not work if the middle or the bottom collapse. If human resources are your greatest capital asset, attend to the wisdom of Adam Smith Esq. on Heller's recent failure:
"Our assets go down in the elevator every night."
Take that bromide seriously.
You must give people a persuasive reason to come back "home" every Monday morning.they go down the elevator every night and must have a good reason to come "home" the next day.
Asking Diagnostic Questions and Using Transformative Mediation Methods
I repeatedly tell my clients what I've learned from the academics who teach negotiation strategy and tactics at elite business schools throughout the country -- 93% of all negotiators fail to ask their bargaining partners diagnostic questions the answers to which would dramatically improve the benefits of the bargain to everyone.
What's a diagnostic question? One that would reveal our bargaining partners' needs, desires, priorities, preferences and motivations. I'm no employment expert, but I have participated in the management of law firm personnel as a partner and have been managed by others throughout my professional life. As a full-time mediator for more than four years, I have also asked hundreds if not thousands of diagnostic questions to help litigation adversaries understand one another's motivations, to reframe those motivations as non-threatening, or, at a minimum, the result of ordinary human fallibility, and to explore the parties' mutual and complementary interests. I also remind my parties and myself as often as possible that you cannot drill a hole in the other guy's side of the boat without making your own side sink to the bottom of the lake as well.
As the transformative mediators who have been most successful in workplace disputes tell us, our job is to assist the parties in moving from fear and powerlessness to accountability and mutual recognition of the interests of the other.
Empowerment, according to [the fathers of the transformative paradigm] Bush and Folger, means enabling the parties to define their own issues and to seek solutions on their own. Recognition means enabling the parties to see and understand the other person's point of view--to understand how they define the problem and why they seek the solution that they do.
(Seeing and understanding, it should be noted, do not constitute agreement with those views.)
Often, empowerment and recognition pave the way for a mutually agreeable settlement, but that is only a secondary effect. The primary goal of transformative medition is to foster the parties' empowerment and recognition, thereby enabling them to approach their current problem, as well as later problems, with a stronger, yet more open view. This approach, according to Bush and Folger, avoids the problem of mediator directiveness which so often occurs in problem-solving mediation, putting responsibility for all outcomes squarely on the disputants.
Rights and Remedies vs. Interests
It's not surprising that employees just don't seem to "get" the legal rights and remedies company HR departments keep trying to explain to them. They don't make any sense absent legal training.
People who are not lawyers simply don't understand why there is a legal remedy for one type of injustice but none for another that feels just as unfair. Let's take our patchwork of Constitutional protections for employees. As an life-long ACLU member, I'd be the last to denigrate them. But we have to understand that we've created a "fair" workplace for only some of our citizens, not all of them.
Women, people over 40, under-represented minorities and the like, can take the square peg of their unfair work treatment and cram it into the round hole of a viable cause of action. If an employee does not want to cry "gender discrimination" even though she's being treated badly on the job, or if he has no bundle of legal rights to assert, there is no remedy for a termination that feels (yes, feels) wrongful. Remember, it took us lawyers quite some time for the legal worldview to "click" and we were immersed in it, drilled in it and eager to learn it. Employees just want someone to listen to their problem and to help them resolve it. They don't want to know the wage-hour laws, the need to exhaust administrative remedies with the EEOC and the like.
Employees and employers have people problems with justice issues, not legal problems with "irrelevant" emotional responses that get in the way of resolution.
Expressed emotion is the key, not the lock.
It is we -- the lawyers -- who legalize and monetize injustice, shutting our clients down when they try to explain what the problem really is because it's irrelevant to the legal solution.
If you're old enough to remember the lingering moment in United States history when our educational institutions went from white, on the one hand, to multi-hued, on the other, you'll know intimately how you deal with reactive devaluation. You get to know one another. Do this and Kaneesha is not "black" or "African American" but a well-known acquaintance or dear friend. The same is true for employers and employees. Create activities in which (alleged) oppressor and (purported) oppressed come together to engage in mutually productive (Habitat for Humanity springs to mind) and mutually enjoyable (basketball? girls nights out?) activities. At the holiday party, don't relegate the "underlings" to their own table. Walk your talk. Destroy the hierarchy everywhere except where it's actually necessary to get work done.
I can't describe the benefits of interest-based resolutions over rights-based solutions any better than does my mentor and friend, Ken Cloke, in his brilliant new book -- Conflict Revolution.
[r]ights-based processes . . . generate winners and losers, undermine relationships, and result in collateral damage, . . . Since rights rely on rules, change is discouraged, though not prevented, and conflicts are settled rather than prevented or resolved.
This is not easy work. As a mediator, I know how elusive Cloke’s “outcomes” can be
-- outcomes [in which] both sides win and no one loses, when former adversaries en-
gage in meaningful dialogue and reach satisfying agreements, and when power is exercised with and for each other by jointly solving common problems.
I have, I am afraid, given my GC a problem rather than a solution. More accurately, I've suggested an altered way of looking at the problem without a great deal of detail about crafting a solution. Not only could people better versed in employee relations write books on this topic, they have. Therefore, I'm asking my good ADR blogging buddies to please chime in here for you.
Diane Levin? Geoff Sharp? Blaine Donais? Ombuds Blog? John DeGroote? Nancy Hudgins? Stephanie West Allen? Gini Nelson? Tammy Lenski?
Geoff Sharp at Mediator blah blah today asks the first academic question with which I was forced to grapple in my LL.M studies at the Straus Institute -- can you cherry pick transformative mediation techniques to settle commercial litigation?
I realized I had re-entered the academy the day Joe Folger -- author, with Baruch Bush, of The Promise of Mediation -- said only transformative mediation "works" and its principles must be strictly followed. 
(drawing courtesy of Charles Fincher at LawComix.com)
Why was this an echt academic moment? Because the course I was taking from Joe -- "Ideologies of Mediation" -- had, before that moment, been suggesting that all ideologies interfere with durable, party-satisfying resolutions. Now it seemed the problem wasn't with ideology itself but with the wrong ideology. Hmmm, felt like law school. Forget Pennoyer v. Neff. It's all about this Buckeye case with the exploding boiler.
At the time, my litigator husband was skeptical of all mediators and all mediation techniques. We took a long walk down a Malibu beach after one of Joe's classes while I tormented him with questions about ways in which mediators could help him settle the case he was then working on -- the World Trade Center insurance coverage litigation.
Frustrated, I interviewed Folger and Bush -- raising Steve's questions -- which I crafted into a Q&A for mediate.com -- Can Transformative Mediation Work in Commercial Litigation?
Later, Ken Cloke (Conflict Revolution) would tell me "you are the technique," opening the door for me to use mySELF to best settlement effect, remembering old lessons while continuing to learn new ones. See We Tell Ourselves Stories in Order to Live.
If you wonder why I'm such a joint session fanatic, it's due largely to Joe's and Baruch's teaching as well as my own experience mediating community disputes locally -- the only place true transformative mediation is practiced. Engage the people with the problem and you're more than half way home. You just have to be capable of getting the lawyers to trust you enough to give up just a tiny bit of control to help the process happen.
As another mentor -- Richard Millen -- taught me, people don't have legal problems, "people have people problems" which are burdened with justice issues.
Choose your mediator wisesly, collaborate with him/her and you will not only settle the case, but emerge with a client who got what he/she/it hired you for -- to resolve the commercial problem and the justice issue that called for the retention of a lawyer in the first place.
And if you're in the UK, check out Justin Patten's post on small companies missing the benefits of mediation -- complete with an offer of a free consultation.
See Marginal Revolution's post today The problem is that both of you are right citing David Brooks for the proposition that the "failure to pass the bailout represents a massive failure of American governance and leadership, most of all at the Congressional level. That's true even if you think, for other reasons, that the bailout was a bad idea. (Can any hero be cited in this debacle?)"
There are no heroes in this crisis -- only leaders and representatives of the people, many of whom are now being seriously burned, most particularly in their retirement accounts.
If inaction is the answer (which I doubt -- see the Harvard Working Knowledge round-up of solutions from the smartest people in the room, here) our representatives should say so. If they're afraid of looking bad, we should get rid of the bums. If they're angry at Nancy Pelosi, they should get over it. Though Pelosi's speech is an example of the way that being hard on the people rather than on the problem can cause negotiations to break down, surely our elected representatives realize they can't pout their way through this crisis.
We need in Congress what every negotiation requires: preparation, communication, collaborative problem solving and, in this particular bargaining session -- courage, which Webster's defines as
"the attitude of facing and dealing with anything recognized as dangerous, difficult or painful instead of withdrawing from it; quality of being fearless or brave; valor. The courage of one's convictions or the courage to do what one thinks is right."
Come to think of it, all negotiations require courage.
So get back up on the donkey, Congress; be prepared; be principled; be brave. We're counting on you.
And for those who aren't afraid to admit that they don't know the difference between a strategy and a tactic, here's a brief tutorial.
Here's more from Harvard (link here to full article)
If ever there was a time for resonant leadership, it's now. We need to rise above panic. Panic kills. Really, it does. If you're caught in a riptide (which we are) and you freak out, flail, fight it, you will die. If you smell smoke in the house and run wildly around gathering things you will die. If you freeze in your bed and hope the smoke is outside, not inside, you'll die.
This is not a time to give in to panic. Of course we are scared. It would be stupid not to acknowledge that the economic world as we know it -- knew it -- has changed fundamentally and forever. Actually it probably changed a while ago. We just ignored it, covered it up. So we are justifiably terrified. Now what?
Let's do something with our feelings, rather than let our emotions do something to us. Fear has its place -- it gets our attention. But we can't let it paralyze us. This is a time to breathe deeply. To think about what is most important -- family, life, health, love, purpose. And for my countrymen and women -- let's think about who we are as Americans. We can move beyond fear. What's beyond fear? Hope. Creativity. Resilience. Compassion. Courage.
Back to my daughter Sarah for a minute. She's at work today, in good spirits and having fun helping to create an awesome TV special about an inspiring American hero. My brother --also at work, creating. That's what he does--he creates new solutions for new problems. And me? I'm at work too. I spent the day with my team, a group of incredible people who dedicate their lives to others.
No, it won't be easy. But yes, we can make it, and we can make a better world too. That is not a noble goal, it is a necessary goal.
A final word. Common wisdom, backed up by research: hope, optimism, good humor and compassion (among other positive emotions and experiences) can literally free us from the deadly psychological traps of panic and anger. It takes tremendous self-management. But we can do it.
Courage quotes to remind all of us who we are:
Courage is going from failure to failure without losing enthusiasm
It is not the critic who counts, not the man who points out how the strong man stumbled, or where the doer of deeds could have done better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood, who strives valiantly, who errs and comes short again and again, who knows the great enthusiasms, the great devotions, and spends himself in a worthy cause, who at best knows achievement and who at the worst if he fails at least fails while daring greatly so that his place shall never be with those cold and timid souls who know neither victory nor defeat.
To go against the dominant thinking of your friends, of most of the people you see every day, is perhaps the most difficult act of heroism you can perform
To dare is to lose one's footing momentarily. To not dare is to lose oneself.
History, despite its wrenching pain, cannot be unlived, but if faced with courage, need not be lived again.
Moral cowardice that keeps us from speaking our minds is as dangerous to this country as irresponsible talk. The right way is not always the popular and easy way. Standing for right when it is unpopular is a true test of moral character.
Moral excellence comes about as a result of habit. We become just by doing just acts, temperate by doing temperate acts, brave by doing brave act.
The important thing is this: To be able at any moment to sacrifice what we are for what we could become.
Courage is the ladder on which all the other virtues mount.
Only when we are no longer afraid do we begin to live
You gain strength, courage, and confidence by every experience in which you really stop to look fear in the face. You must do the thing which you think you cannot do.
From the Sacramento Bee's Political Editor Amy Chance, Q&A: Mediators brainstorm on how to fix the state budget process
As California's longest budget stalemate in state history ground to a close, six professional mediators met with The Bee's Capitol Bureau last week to offer their thoughts on building a more functional state budget process.
Their advice in a nutshell: Improve lawmakers' communication skills, train them and their aides in mediation techniques, set up a structured negotiation process long before budget deadlines approach, agree on common goals, build trust by reaching incremental agreements – and don't expect perfection.
– Amy Chance, Bee Political Editor
For full Q&A, click here.
If you believe that law blogging is not only informative and entertaining, but capable of transforming our lives, our society, our culture and our legal system as well, run don't walk over to Peter Black's Freedom to Differ which not only rocks, it twitters, on One Web Day. Surely this will be the BlawgReview of the year!
. . . .one recurring theme on this blog has always been a recognition of the value in a strong and free internet. Therefore it is an honour to be able to host Blawg Review on Monday September 22, 2008, which is One Web Day 2008. One Web Day was founded three years ago by Professor Susan Crawford from the University of Michigan, and she describes it as an "Earth Day for the internet". The One Web Day website describes the day in the following terms:
The idea behind OneWebDay is to focus attention on a key internet value (this year, online participation in democracy), focus attention on local internet concerns (connectivity, censorship, individual skills), and create a global constituency that cares about protecting and defending the internet. So, think of OneWebDay as an environmental movement for the Internet ecosystem. It’s a platform for people to educate and activate others about issues that are important for the Internet’s future.
If you'd like to host BlawgReview or submit to it, click here. All future BlawgReview hosts please note -- THE BAR HAS BEEN RAISED!
The following important update on the recovery of bad faith treble damages from the lawyers at Edwards, Angell, Palmer & Dodge
California Federal Court: Insured Plaintiff Can Seek Treble Punitive Damages For Insurer’s Alleged Bad Faith
The U.S. District Court for the Central District of California recently denied a motion to strike and allowed a plaintiff to pursue treble punitive damages against his insurer for the insurer’s alleged bad faith. Novick v. UNUM Life Insurance Co. of America, C.A. No. 08-02830-DDP-PJW (Aug. 7, 2008).
The insurer issued a long term disability benefits policy to the plaintiff in 1976, providing benefits should the plaintiff become totally disabled due to an accident sustained during the course of his career as a surgeon. In June 1992, the plaintiff filed a disability claim with his insurer after sustaining a spinal injury that allegedly prevented him from performing surgery. The insurer initially paid benefits to the plaintiff, but discontinued making the benefits payments on January 18, 2007. Shortly thereafter, the plaintiff filed suit against its insurer alleging breach of contact and breach of the covenant of good faith and fair dealing.
In his complaint, plaintiff seeks punitive damages pursuant to California Civil Code §3294, which allows an award of punitive damages for conduct that constitutes malice, fraud or oppression. The plaintiff also seeks treble punitive damages pursuant to California Civil Code §3345, which provides for an award of treble damages “in actions brought by, on behalf of, or for the benefit of senior citizens or disabled persons . . . to redress unfair and deceptive acts or practices or unfair methods of competition . . . [when] a trier of fact is authorized by statute to impose either a fine, or a civil penalty or other penalty, or any other remedy for the purpose or effect of which is to punish or deter . . . .”
The insurer argued that §3345 does not provide for the trebling of damages for insurance bad faith claims. The court reviewed the legislative intent behind the statute and determined that the legislature did not intend for the statute to be limited to actions that specifically mention unfair business practices. The court noted that, as bad faith claims redress unfair practices, §3345 applies to insurance bad faith claims. Accordingly, as the plaintiff alleges that the insurer acted in bad faith, the court held that the plaintiff is entitled to pursue his request for treble punitive damages.
John DeGroote of Settlement Perspectives soon to appear at Mediate.com Featured Blogs. The missing link between mediators and litigators. 
The client!!
Now we just need a blogging claims adjuster and we can bring peace to the Middle East.
Below are John's impressive credentials. We meant to meet for a "quick" cup of coffee. We talked negotiation strategy and tactics for nearly three hours.
As I review websites I often wonder about the experiences of the authors and the biases they bring, so I feel I should disclose mine for those who want to know more. I have been fortunate to work with two “hands on” in-house legal teams, with settlement negotiations handled primarily by employed lawyers rather than their law firms. I am also lucky to have practiced in law firms with true trial lawyers who generated genuine negotiating leverage whether settlement was their objective or not. Through these experiences I have settled cases threatened, pending or mediated in about 20 states - from Montana to Florida and from New Hampshire to California - and have managed the resolution of disputes around the world. Working with and against some very good lawyers and employing some of the truly legendary mediators, I feel fortunate to have seen a real cross-section of styles and approaches. In almost all of these cases I have had the opportunity to work behind closed doors with the people who really decide when cases settle - CEOs, CFOs, General Counsel, COOs, individual plaintiffs, insurers, board members, auditors, and more.
I note today that yesterday's post was . . . . well . . . a little snippy.
Now that I've managed to get my hands on a copy of Professor Murray's article on the privitization of justice (which I'll post as soon as someone gives me permission to do so) I have a few more observations that are more nuanced than my first reaction.
First, I note that much of Professor Murray's article focuses on arbitration agreements that are forced down the throats of consumers -- an injustice that is so far removed from one that might arise in a mediated settlement conference that I'd like to address it separately on another day.
Second, I am not without criticism of court-annexed mediation practices -- those criticisms populate this blog in great number. Nor am I naive or inexperienced enough to pretend that mediators do not effect party decisions even when they are represented by attorneys who are presumably mediation- and mediator-savvy.
Nevertheless, re-reading Professor Murray's criticisms of mediation this morning, I am once again stuck by the number of untested assumptions upon which he bases his pretty radical suggestion that mediated settlement agreements be vetted by judicial officers. The major and minor premises of Professor Murray's accusation that mediation corrupts justice include the following:
Of all of the assumptions requiring testing before we impose a supervisory judiciary upon mediators, the premise that an objective, measureably "reasonable" settlement of any dispute exists is the one that most requires addressing.
Because I could write a book on this topic, let me just highlight some of the factors that would make third-party vetting of mediated settlement agreements difficult to impossible.
Examples of ways in which parties are able to resolve conflict in the context of their highly individual interests rather than the little buckets of rights and remedies into which we pour the facts of their dispute?
What I'd like Professor Murray and everyone who reads his article to understand is that we all share this justice problem. The adjudication system is not working well for the people it was designed to serve. The ADR options we've put in place to smooth out the rough edges of 18th century adversarial theory and practice are themselves insufficient to efficiently and fairly resolve 21st century conflicts.
That's why I'm calling for a LegalTED Conference. And if Professor Murray will forgive the snippiness of yesterday's post, I'd like him to be one of the members of the Steering Committee.
A lessee of commercial office space complains that the common areas are not being properly maintained. The local high school has just banned Catcher in the Rye. Again. A prestigious law firm fires a first year associate because he refuses to remove his new “tongue stud.” These seemingly disparate disputes have one quite obvious but ill understood characteristic in common – they are all examples of unresolved conflicts that have ripened into discrete disputes.
Pretend for a moment that you never went to law school. I know. It's hard. But give it a shot.
Lawyers (those other people who went to law school) are are trained to understand, manage and remedy all disputes, no matter however different they might be, in a single, highly controlled manner.
To help their clients deal with the problems mentioned here, lawyers will read the lease; research the latest Supreme Court rulings ("Fuck the draft"); and, study the statutes. Once they understand the facts that are relevant to the law, they “think like lawyers.”
How do they do that? "Think" like lawyers?
First, they subject the facts and the law to as much scrutiny as any idea can bear before it disintegrates into the dust of first principles. They create a chronology of events, highlighting and tailoring the "story" of the conflict that "fits" the available "causes of action" giving rise to "rights" in their client, obligations in their "opponent" and remedies for the harm suffered.
This "legal" dispute was once about a relationship between people. Now it is an "actionable" claim in an extremely controlled process in which one of the parties will "win."
That, of course, rarely happens because the legal system has become too expensive and the law too uncertain for most people to risk what used to be it's goal -- a jury trial.
Lawyers recognize frivolous or baseless or "defendable" claims by observing just how uncomfortably the “facts” sit inside their opponent's “causes of action.” When called upon to justify their entitlement to get their client's claim before a jury (demurrers, motions for judgment on the pleadings, summary judgment motions, non-suits) the Plaintiff's attorneys can and will simply change the way the story is told. They make the facts fit the law. There's nothing wrong with that. That's their job. If the facts won't "fit" the law, lawyers apply themselves to the law's creative expansion.
What attorneys do not learn in law school is how and why conflict develops into a dispute and then predictably evolves, usually getting more acrimonious and difficult to resolve.
My friends who are lawyers (I never went to law school, remember? and neither did you) tell me that they know how to escalate conflict but not how to de-escalate it. They also tell me that they see a lot of injustice. Sometimes the injustice arises because the laws themselves are unjust. Sometimes the tragic and unfair consequences of human interactions just don't have any legal remedy. And sometimes the legal process itself makes disputes worse -- more protracted, frustrating and expensive -- rather than better.
In common law countries, like ours, where the law is forged in the fire of conflict, shouldn't attorneys be taught not only how to "win the case" but also how to dampen the flame? Most litigators I know would respond with a resounding "no!"
Conflict resolution that is not "handled" as litigation or arbitration is for some other professional to deal with. Therapists come to mind. Don't they help the parties deal with that most uncontrollable aspect of any dispute -- something not only lawyers but the law itself exclude from the legal action?
Feelings. Not just sad or mad feelings. But the type of feelings that make teenagers shoot other teenagers on the streets of Los Angeles. Feelings of loss, tragically unfair outcomes, powerlessness, rage and despair.
The purpose of this post and the new thread that it is meant to begin? To start something radical.
If you're not aware of what I'm about to tell you, you should be.
Once a year, 1000 people are invited to the TED Conference in Monterey, California, to exchange something of incalculable value: their ideas. TED's mission statement is as simple as it gets:
TED is devoted to giving millions of knowledge-seekers around the globe direct access to the world's greatest thinkers and teachers.
You can cruise the jaw-dropping results here.
(image links to the Photography site of Lars Kirchhoff)
I was just talking to a friend over coffee the other day about how we're using 18th Century technology (the jury trial) to solve 21st Century problems.
Here's the idea. A legal TED Conference.
If you'll look at what TED accomplishes, you'll know what I don't mean. I don't mean a conference to trot out any new/old "ADR" ideas -- mediate this, arbitrate that, create new rules and forms for the lawyers to use.
No.
I mean creating the highest level think tank we can to first envision and then implement a dispute resolution technology that incorporates what we've learned since we first enshrined the jury trial in our Constitution more than 200 years ago.
I have one man in mind -- Larry Lessig. But surely there are others. The first step would be to suggest names for the coordinating committee.
Why do I think of TED? Because what it envisions cannot be accomplished. It cannot even be envisioned. It's a fool's errand. One I'd be willing to spend the rest of my own life working on.
Would anyone care to join me?
Orange County Bar Association Alternative Dispute Resolution Section Meeting Reminder
Thursday, September 4, 2008
Noon to 1:30 p.m.
Wyndham Hotel
3350 Avenue of the Arts, Costa Mesa
Speaker:
Victoria Pynchon
Attorney at Law, Mediator
Author of the Settle It Now Negotiation Blog
Judicate West
Using and Losing Cognitive Biases to Win Your Next Negotiation
For more information or to register: Call FastFax at (949) 440-6700, x4 and request document 2279. Register ONLINE using the OCBA’s online calendar at OCBar.org
(Right, women protesting, 1912. My own grandmother was 12 years old at the time this photo was taken. By the time she was old enough to vote in 1921, she could vote)
Why women's voting rights and Hillary Clinton's DNC speech on a negotiation blog? Several reasons.
First, of course, is that fact that your blog author is a mid-20th Century woman who participated in the feminist movement in the early 1970's.
I'm proud of the work we did at San Diego's Center for Women's Studies and Services (now the Center for Community Solutions).
We trained women in the skills necessary to pass apprenticeship tests so they could gain entry into the skilled trades. We opened the way for women to work at one of San Diego's largest employers -- National Steel and Shipbuilding. We helped all women, including those who'd spent time in prison and battered women's shelters, find employment to help them break a cycle of poverty or move from the lower to middle classes by their own efforts and to provide better lives for their children.
We were the so-called Second Wave women's movement, seeking and achieving the same education, training, work and respect that were only a white American man's entitlement when I was born in 1952.
If you want to know what it was like for women when I was ten years old (1962) and my own divorced and single mother was working for $1.29 an hour selling bags and hoisery at a Leeds shoe store in San Diego, watch a single episode of Mad Men. Follow "Peggy" who is opening professional doors long before there were any ceilings in men's rooms to crack. Watch how women were treated and how little they thought of themselves. Think of the way in which we were squandering our human resources by relegating my mother, your grandmother, to just a few honorable but limiting professions -- nurse, secretary, teacher.
(yes, this is the same typewriter I used in the typing pool at Arthur, Dry & Kalish in mid-town Manhattan in 1975; we had one woman attorney in the firm when I joined; she was in her 50's and was still an associate in trusts and estates)
The second reason I'm celebrating women's suffrage and Hillary's candidacy today is because you'll be negotiating with women. We haven't shattered that glass ceiling but we've nearly done so. You'll want to understand what motivates us, how we talk with you and how we talk among ourselves. You'll want to know what feels offensive to us and what is respectful. Most negotiation texts tell women how to negotiate like men or with men. So late in the day, it's surprising that I'm unable to find any articles on what men should understand when negotiating with a woman.
To negotiate our way into a better world in the 21st century, we'll need to understand one another better and learn to drop all of our stereotypes about men or women, black or white, Muslim or Christian.
So let's all celebrate universal suffrage today. Self-determination -- which is what mediation is all about -- democracy liberty justice.
Below, for your viewing pleasure, 1960.
Everyone who's interested in the state of the union and its internaional relationships should be glued to the Democratic National Convention tonight and the Republican National Convention next week.
They are negotiating the nation's future.
Let's listen to the speakers with a critical mind and an open heart. To help us listen with a critical mind, I'm linking my readers to the Owl at Purdue on Persuasive Argumentation.
The Barack campaign has been built on narrative or, as the Owl teaches us, pathos, a word that has come to mean sentimental but simply means appealing "to an audience's needs, values and emotional sensibilities."
As the Owl Instructs,
[e]motional appeals can use sources such as interviews and individual stories to paint a more legitimate and moving picture of reality or illuminate the truth. For example, telling the story of a single child who has been abused may make for a more persuasive argument than simply the number of children abused each year because it would give a human face to the numbers. Only use an emotional appeal if it truly supports the claim you are making, not as a way to distract from the real issues of debate. An argument should never use emotion to misrepresent the topic or frighten people.
Michele Obama is speaking now, telling the story of her childhood; her parents' values and Barack's political journey. It's good.
"Isn't that the great American story?" she asks half way through her speech.
AUGUST 25, 2008 | FORUM
If You Know the Case Law, Litigation Doesn't Have to be Robotic
By Victoria Pynchon
Here in California, there's no stronger rule of confidentiality than that applied to a mediation. It cannot be impliedly waived like most privileges, including the near-sacred attorney-client privilege. Simmons v. Ghaderi, 2008 DJDAR 11107. You cannot be estopped from relying on it. Eisendrath v. Superior Court, 109 Cal.App.4th 351 (2003). And if you want your mediated settlement agreement enforced, you must strictly comply with the requirements of Evidence Code Section 1123. Fair v. Bakhtiari, 40 Cal.4th 189 (2006).
Insurance policy-holder counsel Kirk Pasich of Dickstein Shapiro has criticized nearly all recent interpretations of mediation confidentiality by the California Supreme Court on the ground that they permit insurance carriers to use mediation proceedings to engage in acts of bad faith.
"Why should a carrier get a license to act in bad faith in mediation," Pasich asked, adding, "Cases settled, and still settle, in mandatory settlement conferences without that same shield. I don't think a process should exist that encourages, rather than discourages, a party from acting in bad faith."
Why, indeed?
If you do not understand the differences between settlement conferences and mediations, you are not alone. My informal surveys indicate that litigators believe there's no difference whatsoever between the two and few mediators are able to distinguish between them despite their training in the field. Nor have California's courts been of any real assistance.
What's in a name? Here, plenty. The application of California's Rules of Evidence to mediations has such significant potential economic consequences that mediator and litigator malpractice actions are surely looming on the horizon.
What type of misbehavior can occur in a mediation? Here are just a few examples: One party can make a misrepresentation of material fact on which the other relies in entering into a settlement agreement; as Pasich notes, an insurance carrier can act in bad faith; one mediating party could tortiously interfere with a third party's contract or prospective economic advantage; or the mediating parties can enter into a collusive settlement agreement, depriving the settling parties' co-defendants from learning facts necessary to challenge the settlement in a "good faith" hearing.
Even if all parties have expressed complete agreement during the mediation, which they then memorialize in a term sheet, absent strict compliance with the requirements of Evidence Code Section 1123, no evidence probative of that agreement will be admissible in a California court.
If the mediating parties are engaged in a settlement conference, none of this potentially bad behavior would be protected.
Given the potentially significant adverse economic consequences that can flow from a mediation, California's courts have clarified the differences between the two procedures, right?
Not so much.
If you have a DJ subscription, continue reading here.
Enforcement of Mediated Settlement Agreements in California - Get more Legal Forms
If you've been following the conversation between Settle It Now and Max Kennerly's Philadelphia Litigation and Trial Blog, you'll know that a "settlement unicorn" is composed of "two hostile parties on the verge of a lawsuit [who] get lawyers, almost file suit, and then, through deft representation, settle their differences peacefully and move on."
I believe in Unicorns and Max doesn't so I've promised to keep my eyes open for appearances of that storied creature. Previously, I have reported the Unicorn's appearance here (community mediation; potential lawsuit, no lawyers); here (litigation + lawyers who send the parties to community mediation); and, here (litigation + lawyers + clients who seek mediation without lawyers to resolve dispute).
Today, I have a story of the Unicorn visiting the mediation room in a litigated case -- a case of the type that my (new) friend Max Kennerly suggests will not attract that shy beast because:
The parties to a lawsuit do not have intertwined interests: they have directly adverse interests. Unless there's some possibility of a future relationship, the defendant doesn't want to resolve the conflict: they want the plaintiff to drop their frivolous claim. In their mind, their best alternative to a negotiated agreement ("BATNA") is for the plaintiff to crawl in a hole and die.
[My Comment: the "intertwined interests" all parties to litigation have is the litigation itself with its attendant cost, delay, and, uncertainty, not to mention the discomfort "ordinary" people experience when plunged into the foreign environment occupied by attorneys with their strange "causes of action" and "affirmative defenses," their demurrers and JNOV's; their res ipsas and, most importantly, their view that only facts pertaining to a "cause of action" or "affirmative defense" are relevant to the injustice suffered by their clients.]
[T]he plaintiff usually prefers imposing a conflict on the defendant (who the plaintiff believes cast the first stone) in pursuit of justice, an imposition they will only relieve for at least "full" compensation. . . .
The problem is that most parties don't consider their claims to be assets; the problem isn't that there's emotional baggage around the economic understanding, it's that the parties interpret their dispute as fundamentally non-economic.
[My Comment: I've said before that all litigation is "fundamentally non-economic" -- it's about justice. Though Max is one of the few practicing litigators who agrees with me, he does not believe in the existence of my solution -- a settlement conference or mediation conducted in joint session].
Hence a Mediation Unicorn with litigation and attorneys prior to any meaningful discovery.
I'm talking to a plastic surgeon whose artistry not only went unappreciated, but which gave rise to a lawsuit for battery and malpractice.
The plaintiff is a model and an actor. The surgery, she claims, left permanent scaring on her nose. Her opening demand is $500,000. I am trying to persuade the physician, his attorney, and the claims adjuster, not to walk out. The plaintiff's deposition has been taken and the doctor's is scheduled for the following week. No experts have been retained.
The parties have made the rare effort to settle the case early in the litigation.
This is what the defense thinks about the opening demand in response to their good faith participation in an early mediation:
%&*#%*#%@& and %&^@(% and *&$)*#!
I am suggesting to the defense in separate caucus that they allow me to conduct a joint session in which the parties can talk about the surgery, the scarring and their post-surgical communications. I explain that the Plaintiff is more angry than acquisitive. She believes that the doctor disrespected her when she complained about the scarring.
He denied that I had a scar. He was rude and dismissive. He disrespected me. He had no bedside manner.
She is one of the few personal injury plaintiffs who comes right out and says what so many plantiffs feel.
I want him to suffer. My attorney says he has to report any settlement in excess of $30,000 to the Medical Board. I want to make him do that. I want him to suffer as I have. It's not about the money. It's about accountability. I want him to be accountable.
The parties resist a joint session and we spend two hours negotiating in the strato- and nano-spheres. $10,000. $490,000. $12,500. $475,000.
"We're getting nowhere," says Plaintiffs counsel. "Tell them we're leaving."
"The case will never settle. This is a waste of time for my doctor and my claims examiner. Tell them we're leaving. The case will never settle. It simply won't settle. The case cannot settle."
Click Your Heels Three Times and Say "There's No Place Like Home."
Attorneys are fond of saying that all mediators do is "keep them in the room." They might be right, but the difference is the room I keep them in. It's a mediation room, not a conference room or a deposition room or a courtroom. It's a room in which I ask the doctor if the feeling he has is something akin to a fish being hooked, pulled up out of the water and thrown onto the deck of someone's boat, gasping. He cracks a smile for the first time that morning.
It's a room in which I say there must have been a miscommunication, a misunderstanding. It's a room in which I say to the defense that the Plaintiff feels angry and disrespected. It's a room in which I caution the Plaintiff that the physician is from a different culture than her own -- one where a doctor does not express empathy but only certainty in his skill and expertise.
The claims adjuster asks me if I'd been able to see the Plaintiff's scar from where I was sitting -- across a conference room table. I admit that I could not. I acknowledge what is patent in the defense room -- the Plaintiff is blindingly beautiful. A jury is unlikely to award her much in the way of damages. I have said as much to the Plaintiff. But she is angry and wants a pound of flesh.
I have another mediation in the afternoon. I tell the defense we have fifteen more minutes. The claims adjuster keeps repeating "the case will not settle, the case will not settle, the case will not settle." I take this to mean that the defense very much wants to settle the case.
"If someone repeats something over and over again," my mentor Ken Cloke taught me, "that is the key to the resolution." While that might be so, I haven't yet found a way to use that key to open any door. But it is not really my case to settle. It's my job to keep them in the room.
"I Want to See the Scar," says the claims examiner.
I wish I could take credit for the following but I cannot. The Plaintiff's attorney says "why don't they go to the ladies room where my client can show Ms. Y the scar and together they can look at it."
I hear the click of the Unicorn's hooves in the hallway. The plaintiff's attorney is male. I don't believe he knows what he's suggesting. He wants to send two women into one of the safest and most congenial, soul-bonding rooms in all of God's creation -- the women's room.
I know the case will settle.
We are finally in joint session. The claims examiner says, "I want to tell you that I now see the scar. I'm sorry I denied it. We'd like to offer you $X to settle the case."
Did $X settle the case? No. But $X + $Y settled the case ten minutes later.
And just around the corner, you could see the shadow of the settlement unicorn rear up on its hind legs in celebration.
Thanks to Kevin's Remarkable Learning Blog (a fellow Forbes Blog Network member) for his Seven Steps for Mending Broken Business Relationships.
Each of the seven steps can help litigators de-escalate the conflict inherent in litigation before all-important settlement negotiations, whether they are conducted with the assistance of a third party neutral or not.
One or more of them might also help ease tension in the law firm -- a very tense place these days given the recession, lay-off's, the de-equitization of partners and the shedding of non-productive practice groups or of those that might conflict with the law firm your firm is about to merge with.
It's a rough time. Let's all be a little more careful of our social capital there.
We're going to need it.
Decide. The first step is you must decide that you want to improve the relationship. The precursor to this step is recognition - recognizing that the relationship needs improving - but the heart of this is the decision that this relationship matters enough for you to make the effort required to improve it. Without this decision, nothing else matters.
Forgive or let it go. If you feel the other person has done something to cause the rift or break-down, you must either forgive them or let go of your issues with it. Without this step, the steps that follow may help some, but will be limited in their success.
Take ownership. Recognize your role in the relationship, and take ownership and responsibility for it. Yes, deciding and forgiving are accountability actions; but being clear that regardless of the situation you have played a role in the change to the relationship is critical to your success in repairing any damage. Otherwise you are only blaming the other person - which cripples your chance for improvement.
Make your intention clear. Once you have decided to take actions to improve the relationship, your behaviors will change. Take the time to explain your decision and your intention to improve the relationship. Let the other person know that both the situation and the person matter to you, and you want a better relationship. This cements your commitment and communicates your intention to the other person.
Assume positive intent. While I have long believed this concept in a variety of situations, a colleague recently expressed it this way and it makes the idea completely clear. Assume the other person was - and is - acting in good faith. Will you be wrong sometimes? Perhaps. But by starting from this assumption you will immediately change your perception and therefore your behaviors toward that person.
Listen more. We all know how important listening is and how good it makes us feel when we are truly being listened to. Grant that gift to the other person. Listen intently, carefully and actively. Not only will you understand them (and their perspective) better, but they will trust you more and the relationship will build from their perspective.
Make an effort. Deciding is one thing. Doing is quite another. If you want better relationships, you must make the effort - it will seldom, if ever, happen automatically.
For the full post (well worth reading) click here.
(right, more fabulous Fincher)
Thanks to mediator Tom Matychowiak for alerting me to "Managing Expectations in Mediation," by Dan L. Stanford (under "Expert Advice" in this month's California Lawyer).
Tom noted that while most of the article addresses the management of client and adversary expectations, it concludes with these paragraphs:
Once you know who the mediator will be, always contact him or her and try to meet in advance of the mediation. If that is not possible, have a pre-mediation telephone conference. Focus only on the strengths of your case: If you represent a plaintiff, talk about the clear liability evidence, significant damages, your client's expectations of a big award, problems with the credibility of the defendant, and your willingness to try the case. Set the bar high. If you represent a defendant, focus on the strengths of your defense, including technical defenses, any persuasive evidence, and any credibility issues the plaintiff might have. Set the bar low. From both perspectives, provide the mediator with everything that serves your interests. [emphasis in the original]
At the mediation, continue this effort and work even harder at it. If the other side convinces the mediator that you will accept a lesser result than advertised, your chance of success will plummet (and you may end up facing a very unhappy client). On the other hand, if you convince the mediator that your adversary is willing to give more to settle than is on the table, you may well be on the way to having a successful outcome and a satisfied client.
Comments?
There's now a genuine reason for summertime dancing in the streets. Charles Fincher of Law Comix has started a new blog here!!
Today's ADR offering below:
Why hasn’t the American Lawyer syndicated Fincher’s work for a nice little bundle of cash?
Hey!! AmLaw Editor!! Are you seeing these cartoons? Are you hearing the laughter in the hallways breaking the stress of daily practice? Are you understanding how many more pairs of eyes Fincher's work will deliver to you and your advertisers?
Maybe you need to see this one:
Maybe Fincher just won't let his work appear there? Or is he holding out for syndication in the New York Times? The Wall Street Journal? My small reader pool LOVES these and now they can subscribe via RSS feed over at the LawComix Blog.
Thanks Charles!
The jig is finally up. I've been hemming and hawing long enough. I need to just go ahead and answer Max Kennerly's question whether it's possible to convene an early settlement conference in which the parties are united in a desire to settle the litigation.
This is how you know I'm still as much a lawyer as I am a mediator.
The answer is yes and no.
But you can help change the "no" to a yes.
That's the hope part.
Here's the dispiriting part --The answer will not become "yes" if the parties continue to primarily engage in position-based distributive bargaining sessions in separate caucuses.
My own professional experience (and the behavioral research of which I'm aware) suggests that Mr. Kennerly's Unicorn will only come into a room in which an interest-based negotiation is taking place, one in which there is at least one joint session among the baragaining parties.
But first a story.
This very morning I failed to settle a very small case that is poised to become a very big case with cross-actions for legal malpractice and malicious prosecution.
The delta between the Plaintiff's final demand and the defendant's final offer?
$3,000.
And I offered to throw in half the delta myself by making a contribution to the presidential candidate/s of the parties' choice. Shock value.
The parties' failure to achieve settlement couldn't have been about money could it?
(image from The Sphere of Economic Calculation at the Ludwig von Mises Institute)
Why not? Because it was economically irrational not to settle. Which is not unusual. Because there is no rational economic man. Because we are incapable of making a decision in the absence of emotion. /**
As Professor Lee Alan Dugatkin explains in his article Discovering That Rational Economic Man Has a Heart,
Although some economic decisions are made outside a social context, they are a minority. Social dynamics, many economists believe, are at the core of economic decision making—that is, decision-making about resource acquisition and expense allocation. What I decide affects you, what you decide affects me, and, even more to the point, I care how I fare economically compared with how you fare.
I send a client a bill for $15,000. He pays $9,000, refusing to pay the additional six because he believes I didn't earn it or that I did my job badly or that I didn't communicate to him all of the items I would naturually include in my bill. There is a written agreement but no attorney fee clause. It will cost me at least $3,000 in attorney fees to collect the six. My client offers to pay me half of what is owed.
Do you have the hypothetical in mind? What would the rational economic man do?
The rational economic man would take the $3,000 because he cannot do better at trial.
Did rational economic man appear at the mediation this morning? Of course not. Because he is a Unicorn! He doesn't make decisions based upon numeric calculations or emotionless cost-benefit analyses -- which is why I knew the parties would not accept my gap-closing political contribution suggestion (whew!)
Why Rational Economic Man is a Unicorn
In a social-economic experiment known as the Ultimatum Game, many researchers have found that when one party offered less than half the money subject of the game, "the other player often rejected it, even though by doing so he end[ed] up with nothing." Id. Dugatkin describes the results of one research project involving this Ultimatum Game as follows:
Alan Sanfey, Ph.D., and his colleagues at Princeton University examined the Ultimatum Game with 19 subjects in the role of responder and . . . observe[d] their brain activity. They found that when unfair offers (defined as those of less than half the resource) were made, responders often rejected them. As they did so, the area of their brains associated with negative emotional states (in this case, the bilateral anterior insula), rather than those associated with complex cognition (in this case, the dorsolateral prefrontal cortex) were most active. The more the offer deviated from fair, the more active was the bilateral anterior insula when such an offer was rejected. Anger at being treated unfairly by other players appeared to override rational economic reasoning. In the minority of cases when the offer was accepted, the dorsolateral prefrontal cortex was most active.
We, like the capuchin monkeys mentioned yesterday, will deprive ourselves of thousands, tens of thousands, even millions of dollars if we believe the compensation being offered is so little related to our value or our loss that it seems unfair. We will not pay money at the point of a gun nor accept money offered to us by villains or cheapskates.
Mediation, Money and Justice
In today's semi-hypothetical mediation, the $3,000 offered felt too unfair to the plaintiff and the hypothetical $6,000 demanded felt too unjust to the defendant for the parties to reach a rational economic deal. The parties' potential to achieve settlement was also seriously undermined by the degree of anger they expressed toward one another and the way in which they had villified one another - "rich deadbeat" on one side and "dishonest fiduciary" on the other.
I am neither magician nor miracle worker. Nor am I in the social work or therapy business. I do, however, know that when parties to a lawsuit are hopping mad and believe that the opposition behaved immorally, money is unlikely to change hands.
In an effort to defuse the anger and de-demonize the parties, I held two joint sessions -- one that was not coached and one that was. Then I separated the parties for the purpose of conducting a distributive bargaining session (she offered x; he counters with y, etc.)
In both the joint session and in the separate caucuses, I strove to humanize the parties for one another; attempted to reframe their behavior in a less villianous light; and, assisted them in conducting as rational a cost-benefit analysis as possible. I also helped the parties reality test their beliefs about the likely outcome at trial and to evaluate the likelihood that the strength of their feelings today would translate into a hearty appetite for further, higher-stakes litigation two years down the line.
No dice.
So What Can You Do?
I would love to deliver a stirring tale of a heroic mediator helping parties settle their dispute in the early stages before the threatened action and cross-actions were even filed. But I can't. This is more art than science and compared to my 25 years of experience as a litigator, I'm still a little green as a mediator after four years of full-time neutral practice.
Let me just say this. Mediating settlements in the early stages works more often than it fails, particularly if you do one or more of the following:
______________________
**/ This thesis is based on the work of Antonio Damasio as described by him in Descartes’ Error.
Thanks to the Daily Kos for citing us to A Possible Mediation/Peace Proposal for Georgian Conflict from Mirror on America.
Here are the first four suggestions, click on the highlighted article for the full discussion.
Efforts Should Focus on the Following:
1. Establishing a ceasefire to allow for the treatment & evacuation of the wounded and to establish a safe humanitarian corridor for civilians to evacuate. Establish access for Red Cross & other NGO’s.
2. Get all military forces to pull back either completely or partially to establish a demilitarized buffer zone. Deweaponize the area. This will reduce the number of clashes.
3. Establish a more permanent ceasefire and begin negotiations on the long-term status of South Ossetia.
4. Make sure rebel groups stand down and are part of negotiations.
If you don't think armed conflict can be negotiated, check out Arbitrating Armed Conflict by Adir Waldman
Max Kennerly over at Litigation and Trial has graciously and profusely responded to our call for comments about the road-blocks to achieving optimal negotiated resolutions to litigated disputes.
Because Max and I are straining toward the same goal every litigant does when the burdens of a lawsuit begin to outweigh its anticipated benefits, I'm going to include my readers in the conversation.
Our Interests are Adverse, Not Mutual or Intertwined
Max suggests that the hypothetical "business school" negotiated resolution doesn't provide litigators with much guidance in resolving litigated disputes because the buyer-seller-mutual-or-intertwined-interest template cannot be comfortably laid over a conflict between parties whose interests are entirely adverse. As Max explains:
The parties to a lawsuit do not have intertwined interests: they have directly adverse interests. Unless there's some possibility of a future relationship, the defendant doesn't want to resolve the conflict: they want the plaintiff to drop their frivolous claim. In their mind, their best alternative to a negotiated agreement ("BATNA") is for the plaintiff to crawl in a hole and die.
Same with the plaintiff. Unlike buyers and sellers, who usually don't get much joy out of their 'conflict' as a conflict, the plaintiff usually prefers imposing a conflict on the defendant (who the plaintiff believes cast the first stone) in pursuit of justice, an imposition they will only relieve for at least "full" compensation.
The problem is that most parties don't consider their claims to be assets; the problem isn't that there's emotional baggage around the economic understanding, it's that the parties interpret their dispute as fundamentally non-economic.
Before moving on to adverse/intertwined/mutual interests, I want to emphasize that what the parties "interpret . . . as fundamentally non-economic" is the key to the settlement of litigated disputes -- not a roadblock.
Nor can the feelings that accompany litigation be called "emotional baggage" unless we interpret the desire for justice as pathology.
This hunger for justice is so fundamental to our social relationships that even primate relatives like capuchin monkeys will deprive themselves of food if they sense it is being distributed unfairly. In capuchin monkey land, injustice appears to consist of being required to do five times more work to "earn" the same benefits as another.
People seek out lawyers rather than therapists to resolve the emotional issues that accompany conflict -- because they believe themselves to be victims of injustice and lawyers are in the justice business. Our clients have not simply suffered an injury (tripped over their own feet) but have a wrong (stumbled over a trip wire placed in their path by a malicious or careless actor). We can explain until we're blue in the face that money is the only remedy the law can provide. Our clients will continue to seek justice and will not easily settle for money alone. 
"The Unicorn Settlement"
Max asks that I acquaint him with the Unicorn -- the state "where two hostile parties on the verge of a lawsuit get lawyers, almost file suit, and then, through deft representation, settle their differences peacefully and move on" Unicorns. Excluding business disputes where the parties have an existing and potentially mutually beneficial on-going relationship, this type of settlement, says Max, is a myth. He explains:
I entered the law expecting The Unicorn to be rare but real; by this point, I have been trained by defense lawyers not to bother to check for it. I still usually do, throwing out what I think is a perfectly reasonable offer early on, which is routinely ignored or dismissed by a letter that gratuitously refers to my claims as baseless, frivolous, or made in bad faith.
So that's my biggest question to you: how do you suggest I get defendants, prior to the courthouse steps, to even enter the mindset that there's a valid claim and mediation / settlement should be considered? Reframed in words closer to your post: what can I do to (a) get the joint session to happen and (b) ensure everyone's in the right mindset?
The Conditions in Which Unicorns Flourish
When I started practice -- in 1980 -- I did so in a small community -- Sacramento -- where everyone was a "repeat player" with everyone else. Perhaps more importantly, you could file a suit in year one and try it to a jury in year two. Not only defense counsel, but insurance adjusters, knew which plaintiffs' attorneys would try cases and which would not. They also knew which ones could persuade a jury to bring back a hefty award.
Though I only handled personal injury litigation for my first two years of practice (after which I changed firms and moved on to commercial litigation) I saw dozens of "unicorns" in my first few months of practice. As the junior-most attorney in a small P.I. practice, I settled hundreds of cases without ever filing a lawsuit -- on the telephone with insurance adjusters. (A really, really good reason to leave PI practice, but that's another story).
I settled these cases in the world of "three times specials" at a time when and in a place where everyone knew one another and used a common metric to evaluate potential liability and damages. In that environment, Unicorns flourished.
Unicorn Hunting in the 21st Century
Max isn't asking me to shoot ducks in a barrell here. He's asking me to deliver the holy grail of mediation -- how to convene an early settlement conference in which the parties (and their attorneys) are united in a desire to settle litigation without protracted discovery or pre-trial procedural wrangling.
I hate to keep leaving my readers on the edge of a satisfactory resolution, but I DO have work to do and will return to this -- and Max's further observations -- soon, really soon. Stay tuned. And join the conversation by leaving your own comments here.
We've been having a blog-versation about joint sessions this past week thanks to attorney Gavin Craig, workplace conflict mediation trainer Guy Harris (see also An Attitude of Curiosity - continued) and Pennsylvania litigator and blogger Max Kennerly.
Kennerly says:
sometimes I don't want to discuss the case. Sometimes either we're at the end of the road or you're not even on our road, and I'm not going to humor you and your insufficient offers and your attempt to use social influence on me. Indeed, many of my best offers come after cancelling settlement conferences before they happen.
Just something to keep in mind. Every trick you know is a trick that can be played on you and/or your client.
While Craig recalls a mediation in which a joint session hardened the parties' positions as follows:
The mediator decided at the last minute that it would be nice to see if we could all meet and agree in a joint session.
In his defense, he had the advantage of reviewing the positions of both parties in their submittals. There was no warning that the mediator was going to try to help the parties come to an agreement in a joint session.
What I remember most was my client getting so incensed by the positions of the other party in the joint session. Unfortunately my client hardened his position – not helpful in mediation – and apparently the other party did the same. I think the theory about eye-to-eye meeting and negotiations is absolutely correct.
The problem is that parties bring so much emotion into a settlement discussion that I think they need to stay separate from the people creating the emotion before they can calmly assess the best course of action.
What interests me most about Craig's comment is this:
I think the theory about eye-to-eye meeting and negotiations is absolutely correct. The problem is that parties bring so much emotion into a settlement discussion that I think they need to stay separate from the people creating the emotion before they can calmly assess the best course of action.
I'm going to be writing about this conversation all week and invite others to please comment.
Right now, I'd like anyone interested in the resolution of conflict close to home (the neighbors; the PTA President; the woman sitting in the cubicle next to you stripping laquer from her nails with industrial strength polish remover; the entire HR department; your boss, etc.) to read It Took a Villain to Save Our Marriage in the Style section of this Sunday's New York Times.
Here's the "money shot" for anyone who has ever mediated neighborhood disputes in a community mediation center as I do pro bono.
Then while the rest of the block kissed goodnight, I stomped down the street in the dark to Blocker’s house and pounded on his door.
He opened it, shirtless and calm; it unnerved me. I’m sure I looked crazed. I felt my face puff up. “Stop taking our signs!” I said.
There was a shift. It was he who had the advantage now — I was on his porch, and drunk.
But Blocker didn’t say anything mean. He didn’t seem angry, as he should have been, that I had bothered him late at night; he didn’t threaten to call the police. We stood close, inches away. There was an intimacy in our strange hate.
“I didn’t take them,” he said. “Seriously. The city picks them up sometimes. I know where they put them. I could check if you want.”
No, I didn’t want. But I thanked him, and walked home both shaken and comforted, and thinking Anthony would kill me if he knew I had crossed enemy lines like that, alone. I didn’t tell him.
There was one more encounter. Blocker drove by me in his car. He slowed and rolled down his window, and instead of grunting or sneering, he said, “Did you find your signs?”
“No. I didn’t look.”
We exchanged a few more words — about the weather, his dogs — but it was quick. He drove off, and a few weeks later we moved.
A trained and skilled mediator would take advantage of these two fleeting moments of concern on the part of "Blocker" who is the bully in this story with a heart-rending conclusion.
Read it?
Now assume that these people -- all three of them and maybe a few additional neighbors as well -- belong to a homeowners' association with the power to fine the HOA "outlaw," making the fines a lien against his property. Now its a legal dispute.
Ask yourself, what do the parties' legal positions have to do with the resolution of the conflict?
Leave your thoughts here -- down in the comments section -- and I'll be back soon to discuss the New York Times conflict resolution hypothetical based not only on my experience mediating the resolution of litigated commercial disputes, but also based on my pro bono community mediation experience and on the studies that earned me an LL.M that's purportedly not worth the paper its printed on (a judgment that could be just as easily applied to my Bachelors Degree in English Literature were it not for its transmogrification into a ticket to practice law).
Bonus Question: do we really want to dedicate our lives to the satisfactory resolution of conflict -- which is what the law, after all, is all about -- or would we rather, like the author of It Took A Villain, take the pleasure to be had in the state of high dudgeon, self-righteousness, and passionate engagement with someone who is an easy target to blame for our own unhappy life circumstances?
Double Bonus Question for Lawyers Practicing in Los Angeles: Would you let the Los Angeles Superior Court choose your trial attorney or your marriage and family counselor from a panel of people who have had 28 hours of training in their "professional" field of practice just because the first three hours are free?
I
n the actual news (the New York Times) are the results of a new study finding that
most . . . plaintiffs who decided to pass up a settlement offer and went to trial ended up getting less money than if they had taken that offer . . .
Plaintiffs, however, are not the only ones who made the "wrong" decision -- defendants were mistaken in 24% of the cases. Defense errors, however, were far more costly.
getting it wrong cost plaintiffs . . . about $43,000 . . . For defendants, who were less often wrong about going to trial, the cost was . . . . $1.1 million.
What to do?
It's no answer to say " take the last best settlement offer," though one party or the other will 80 to 90 percent of the time and often on the courthouse steps, i.e., at the point of a gun when decision-making is at its most flawed.
Nor, I must concede, is the answer simply mediation, which is, after all, pretty much a pig in a poke. Why? Because mediation practice ranges all the way from
A friend of mine who is a psychoanalyst once told me that patients get better in therapy despite their analysts' "technique." It's the relationship that's curative, she told me. A patient in need will find the water of healing in the desert of a therapist's theory. If the same can be said of mediation -- that it's the relationship that's curative -- the question that naturally arises is whose relationship?
Why the disputants of course, which is why I recommend joint sessions. Not stylized adversarial position-based, chest-thumping, shoe-banging joint sessions ("we will bury you") but interest-based, inquisitive, collaborative, reality-testing mediator-and-attorney directed negotiation sessions.
Before talking about joint sessions, however, let's look at the problem every litigator faces when advising his/her client whether to accept, make, or reject a settlement offer.
The Problem in Bullet-Points
Joint Sessions
My friend Judge Alexander Williams -- the soon to retire full-time settlement Judge in the downtown Los Angeles Superior Court -- has the following poster hanging in his jury room.
.jpg)
The surface is what the lawyers know.
The depth and breath; the texture and particularity; the details of the dispute and the desire for justice that exists on both sides, is known only to the litigants. And they haven't (and won't) tell you what they know or want.
Why you should never leave a mediation or settlement conference without letting a skilled mediator facilitate a joint session in which the litigants can explore their joint interests and conflicting goals will be the subject of my next post.
See also Nuts and Boalts (You Had Me at Your Initial Offer) which directs us to Prospect Theory as a good explanation for our settlement errors.
I have alot more to say about this but for the moment am simply linking you to an article at Cognitive daily demonstrating the known fact that you are far more likely to persuade another if you are making eye contact with him.
And still opposing parties resist sitting in the same room with one another when attempting to settle litigation!
There is a considerable body of research showing that eye contact is a key component of social interaction. Not only are people more aroused when they are looked at directly, but if you consistently look at the person you speak to, you will have much more social influence over that person than you would if you averted your gaze.
For full article, click here.
.jpg)
(image: Le Silence O Redon)
In today's Daily Journal, reporter Greg Katz writes that DESPITE RULES, NEUTRALS ARE RARELY BLAMED WHEN THEY MEDIATE AND TELL.
"What happens," asks Katz, "when a mediator is accused of breaking mediation confidentiality, the thing many mediators say is essential to their craft?"
The answer: probably nothing.
As Katz reports, the Simmons v. Ghaderi opinion that made mediation confidentiality iron-clad, arose from a mediation in which the neutral provided a sworn declaration to the Court reciting "details about [his attempt] to persuade Ghaderi to sign her consent," among other things.
Ron Kelly, an architect of the state's confidentiality statutes, opined that the Declaration filed by the mediator in the Simmons case breached "Evidence Code Section 1121, which forbids mediators, in most instances, from reporting to the courts anything that takes place in their mediations." Kelly concluded by saying,
If you were going to go after a mediator for malpractice, it seems like an open-and-shut case of violating the law would be a good start, don't you think?
Yes I do. Yet local attorneys and mediators seem unconcerned. Lucie Baron of ADR Services told Katz that her panel of neutrals had no policy on the matter because the mediators -- after all -- are attorneys and independent contractors to boot. They don't, she noted, ask her for legal advice.
Not a bad call on Baron's part. But what about the neutrals?
Their lack of attention to the spectre of "open-and-shut" malpractice litigation is perplexing. Though the Simmons mediator could colorably claim that the law of confidentiality was unsettled at the time he submitted his declaration -- or that the factual scenario before him permitted the disclosures made -- in a post-Simmons environment, neutrals cannot be so sanguine. Any disclosure of any communications during a mediation by the neutral would likely be actionable so long as it caused one of the litigants appreciable harm.
When someone is unhappy with a result -- as too many litigants of mediated settlements are /* -- they search the field for people to blame.
So far, mediators haven't been among the potential culprits.
I wouldn't count on that situation lasting much longer.
_____________________
*/ More on this topic soon.
Big or small, litigation is never just about money. Nor is settlement just about the strength of the parties legal positions or even the relevant facts. Here, as reported by the Wall Street Journal Law Blog in Is It a Settlement? Wilson Pays Brocade to be Released From Backdating, its also about relationship and cooperation and respect. Who knew?
So why would the S[pecial Litigation Committee] release [Wilson Sonsini] and Larry Sonsini? The SLC wrote that it weighed the opinion of a legal ethics expert as well as testimony and documents related to Sonsini and the firm’s roles at Brocade. It also listened to Sonsini and his firm’s “contentions that Brocade employees misled WSGR about stock-option grants” and that the firm had negotiated a good settlement with the SEC and helped avoid DOJ action against Brocade. The committee also considered the firm’s longstanding relationship with Brocade and the firm’s “willingness” to help the company resolve any “outstanding questions” about the backdating.
For the entire WSJ Law Blog post, click here.
Below -- Annie Lennox' Money Can't Buy It -- with a little Demi Moore Striptease for our gentlemen readers' mid-week enjoyment (with apologies to the puritanical and those who simply can't abide Demi Moore).
There's been some salacious commentary (such as WAC's Like a Vixen) about Blawg Review # 171. I just want to say to anyone who missed the sexual revolution -- on either side of the generation gap -- we're sorry to have started it all. We just never really left high school.
.jpg)
We've also heard some complaints that the most recent Blawg Review is just too darn long. In honor of our sister blog and those attorneys who are still billing 2400 hours/year, we give you the IP Executive Summary of the Virgin Blawg Review #171 below.
Isaac Newton. The Straight Dope thinks the virginity of this octogenerian scientist and mathematician is less surprising that the fact that the math gene somehow keeps perpetuating itself. We consecrate Newton's virginity to this week's best IP and IT posts. William ("I am virginal") Patry is asking questions about the government's engagement in copyright infringement but it is Patry's final blog post that we celebrate as a true virginal moment. Pause here.
My late mother, aleha ha-shalom, told me repeatedly that I had a religious obligation to learn every day, and I have honored her memory by doing exactly that. Learning also involves changing how you think about things; it doesn't only mean reinforcing the existing views you already have. In this respect, Second Circuit Judge Pierre Leval once said that the best way to know you have a mind is to change it, and I have tried to live by that wisdom too. There are positions I have taken in the past I no longer hold, and some that I continue to hold. I have tried to be honest with myself: if you are not genuinely honest with yourself, you can't learn, and if you worry about what others think of you, you will be living their version of your life and not yours.
Other IP bloggers have, of course, reflected on Patry's Final Blog Words here and here.
Back in the worldly word, Patently O -- which promiscuously shares itself with millions of readers every year -- turns its pen over to David McGowan who discusses why we should not interpret the recent Quanta decision too broadly. Lou Michels suggests we be the masters of our own domains, using the the recent San Francisco IT fiasco as a cautionary tale -- don't let a single person have control of all the keys to your kingdom.
We've heard tell that reading your iPhone has replaced the cigarette for post-coital bliss, in which case you'll be glad to hear Brett Trout at BlawgIT suggest that you might soon be watching television from that device. Protection, protection, protection. In a software license, boilerplate integration and non-reliance terms might not insulate a firm from claims based upon its salesfolks "over"promises. Elsewhere, at least one IP Blogger wonders whether blog content licensing might be dying for lack of buyers? (people pay for Blog content while I give it away for free?????)
The IP Dispute of the Week, of course, is Hasbro's suit against Rajat and Jayant Agarwalla for their Facebook hit Scrabulous. Scrabble itself was invented during the Depression by Alfred Mosher Butts, an out-of-work architect. How did he do it? As the New York Times explained in its review of Steve Fastis book, Word Freak (Zo. Qi. Doh. Hoo. Qursh) Scrabble's inventor assumed that the game would work best if the game letters "appear[ed] in the same frequency as in the language itself." So he
counted letters in The New York Times, The New York Herald Tribune and The Saturday Evening Post to calculate letter frequencies for various word lengths. Playing the game with his wife, Nina, and experimenting as he went along, Butts carefully worked out the size of the playing grid (225 squares, or 15 by 15), the number of tiles (100), point values for the letters, the placement of double- and triple-score squares, the distribution of vowels and consonants, and so on.
In response to the Hasbro lawsuit Ron Coleman at Likelihood of Confusion asks "How Many Points is Infringement?" -- one of those rare legal questions that actually has an answer rather than 20 more questions.
If Player 1 opens with "fringe" (double word) for 24 points; Player 2 follows by slapping an "i" on the triple word score followed by an "n" for "infringe" and 33 points; and, Player 1 responds with "ment" for 19 points, the combined score for "infringement" is 75 points. Our readers can do the math and moves on "trademark" and copyright."
On the matter of greater moment -- Will the ax fall on Scrabulous -- Jonathan Zittrain at The Future of the Internet answers his own question in the affirmative based on the name alone, opining that by calling it "rainbows and buttercups” instead of “Scrabulous” there’d be little claim of brand confusion but noting the "residual claim that the Scrabulous game board infringes the copyright held in the Scrabble game board." More on Scrabulous and its replacement with Word Scraper at the Video Game Law Blog here. (Mr. Thrifty's and my first game of Word Scraper here!)
Has anyone recently said God bless the best IP aggregator in the universe -- the IP Think Tank's Global Week in Review? This week IPTT points to the following posts on the Hasbro Scrabble debacle -- (Spicy IP), (Techdirt), (The Trademark Blog), (Out-Law), (Law360). While we're talking IP aggregation, check out Patent Baristas' regular Friday IP Round-up. All around aggregators include Anne Reed's (Deliberations) reading list and Kevin O'Keefe's LexMonitor.
Both Geoff Sharp and I picked up 8 impediments to settling patent cases on appeal (a desire for "justice" is not an impediment but a means to settlement). While we're taking an ADR angle, Virtually Blind's post Second Life Lawsuit Avoided; Law is Cool's Love, Actionable; and, Slashdot's recommend reading of the week (The Pragmatic CSO) are all well worth a look.
Slashdot also reminds us that IP prevention is worth a pound of IP litigation with the post WB Took Pains to "Delay" Pirating of the Dark Knight as follows:
"a new studio tactic [is] not to prevent piracy, but to delay it . . . Warner Bros. executives said [they] prevent[ed] camcorded copies of the reported $180-million [Dark Knight] film from reaching Internet file-sharing sites for about 38 hours. Although that doesn't sound like much progress, it was enough time to keep bootleg DVDs off the streets as the film racked up a record-breaking $158.4 million on opening weekend. . . The success of an anti-piracy campaign is measured in the number of hours it buys before the digital dam breaks.'"
If you're sufficiently virginal to believe in magic, check out the Law and Magic Law Blog's announcement of the dismissal of a defamation lawsuit against Magic Mag as protected opinion while Ernie the Attorney has at least one more make to make your iPhone magic here.
Meanwhile, the Legal Talk Network gathers together bloggers and co-hosts, J. Craig Williams and Bob Ambrogi to welcome Attorney Kevin A. Thompson from the firm Davis McGrath LLC, and Lauren Gelman, Executive Director of Stanford Law School's Center for Internet and Society to discuss Viacom's suit against Google's YouTube for the violation of its copyrights in a $1 billion lawsuit. 
Because I used to type patent applications for Uniroyal (IBM Selectric - 5 carbon copies) I get a sweet whiff of nostalgia from Wiki Patents -- like this one -- Flexible Row Redundancy System 7404113 -- a row redundancy system is provided for replacing faulty wordlines of a memory array having a plurality of banks. The row redundancy system includes a remote fuse bay storing at least one faulty address corresponding to a faulty wordline of the memory array . . . . Another available data base for the engineering-attorney crowd is the subject of Securing Innovations post IBM Technical Disclosures' Prior Art Data Base. Concurring Opinions covers IP in the News this week, Peter Zura's 271 Patent Blog considers a patent that was a "Colossal Waste of Time" and IP Kat curls up with Small and Sole.
Next week, the Blawg Review will be hosted by the Ohio Employer's Law Blog which we expect will be far more respectful of BR's readers' political, religious and sexual sensitivities than this one was. Thanks for letting us play. And a very, very, very good night!
Thanks to David R. Donoghue at the Chicago IP Litigation Blog for picking up my recent Daily Journal article on the Dangers of Email in Litigation and running with it in A Call for Face-to-Face Communication in Litigation. As David comments:
It is no surprise that increased aggression in a naturally aggressive proceeding has negative consequences. For example, parties that often meet for the first time at a mediation or settlement conference arrive not trusting or respecting each other, making resolution much more difficult. Pynchon suggested a somewhat radical solution to the email problem -- live meetings with opposing counsel. She suggested that you routinely have live meetings with opposing counsel throughout the course of a litigation, including perhaps even doing some meetings over a meal. The face-to-face contact would generate the trust and respect needed to resolve issues that always arise during a litigation. I have always advocated live meetings with co-counsel in a multi-party litigation. Email communications (or even conference calls) tend to get out of hand and the parties tend not to pay enough attention to others' positions. I am going to expand that practice to opposing counsel.
One other thought, that I do not know if Pynchon will agree with. Those who still avoid email and continue using letters as a main communication means are not off the hook. I started practicing when letters, not emails, were how you communicated with opposing counsel. Those letters tended to be far more aggressive than the attorneys were in a live conversation. And I suspect people tended to read extra aggression into the letters they received. I do not know if aggression is stronger in emails than letters, but the same problem exists whether you hit send, hit print or use a pen to write to opposing counsel.
Looking for help with your communication skills? Though directed at teachers, here is a list of Six Ways to Improve Non-Verbal Communication Skills that will assist lawyers and their clients in resolving conflict face-to-face.
Thanks to Anne Reed at Deliberations for following California case law on juror misconduct and bias. I won't steal her thunder -- click here for What is the Sound of One Juror Clapping?
I will, however, provide the appellate court's comment on human fallability -- a recognition we all need to carry into any settlement conference or mediation with us. Vast conspiracies are the rare one-off. As Al Gore once said -- we think we can evacuate the planet but not New Orleans? It's our human capacity for error coupled with our human tendency to search the field for someone to blame that accounts for most unresolved conflict. Here's the local Met News article on the opinion and the appellate opinion itself (from our own Second District here in Los Angeles):
"The jury system is fundamentally human, which is both a strength and a weakness. . . . Jurors are not automatons. They are imbued with human frailities as well as virtues. If the system is to function at all, we must tolerate a certain amount of imperfection short of actual bias. To demand theoretical perfection from every juror during the course of a trial is unrealistic."
(image from Art Throb featuring the work of South African artist William Kentridge)
Just in case you're out on the beach, in the mountains, or spending a lazy July 4th week-end around your best friends' swimming pool, here are the ADR-worthy articles you've likely missed in today's Sunday New York Times.
From the Op-Ed page, Nicholas Kristof recommends an American "Truth Commission" for our treatment of "detainees." Excerpt and link below:
When a distinguished American military commander accuses the United States of committing war crimes in its handling of detainees, you know that we need a new way forward.
“There is no longer any doubt as to whether the current administration has committed war crimes,” Antonio Taguba, the retired major general who investigated abuses in Iraq, declares in a powerful new report on American torture from Physicians for Human Rights. “The only question that remains to be answered is whether those who ordered the use of torture will be held to account.”
The first step of accountability isn’t prosecutions. Rather, we need a national Truth Commission to lead a process of soul searching and national cleansing.
That was what South Africa did after apartheid, with its Truth and Reconciliation Commission, and it is what the United States did with the Kerner Commission on race and the 1980s commission that examined the internment of Japanese-Americans during World War II.
Today, we need a similar Truth Commission, with subpoena power, to investigate the abuses in the aftermath of 9/11.
We already know that the United States government has kept Nelson Mandela on a terrorism watch list and that the U.S. military taught interrogation techniques borrowed verbatim from records of Chinese methods used to break American prisoners in the Korean War — even though we knew that these torture techniques produced false confessions.
It’s a national disgrace that more than 100 inmates have died in American custody in Afghanistan, Iraq and Guantánamo. After two Afghan inmates were beaten to death by American soldiers, the American military investigator found that one of the men’s legs had been “pulpified.”
Read the rest of the column here, remembering that we're only as sick as our secrets. For more on Truth Commissions, click here, here and here.
"We don't negotiate with terrorists or enemy states." Really? In Speaking with the Enemy, an NYT multi-media page gives a sampling of how modern American Presidents have made contact with our adversaries.
Here's the good news from the accompanying article, For Some Foes the Chat. For Some the Cold Shoulder.
[T]he reality is that more times than not, American presidents sweep into office proclaiming black-and-white absolutes about their foes, and end up leaving office having used everything from secret talks and back-channel negotiations to full-fledged summit meetings.
While others surf and bar-b-que, I'm using the week-end to post the Summer 2008 issue of the r.kv.r.y. quarterly literary journal. Here's the proof of the new cover! A labor of love (and proof of my husband's enduring patience -- thanks honey! for putting up with my 10,000 projects).
This story occurs in the spring of 2001, in a hotel room in Toronto, at 3 a.m., the morning of a deposition I've been preparing to take of an aging petrochemical engineer.
2001 is a year I'd dreamed of since elementary school. But the technological changes predicted in the science fiction of my childhood and adolescence are nothing like the "hi-tech" I'm living with now.
There are no one-man jets cruising the skies; no robots running my errands or cooking my dinner; no tele-transportation; and, on the political scene (it's not yet 9/11) no Big Brother.
My personal 2001 "future" is mostly about my instantaneous access to information and "real time" communication via the "killer app" -- email -- telegraphic, spontaneous, unnuanced, and about to get me in a great deal of trouble. (See Vanity Fair's must-read oral history of the internet here.)
There's an associate back in Los Angeles, you see, the quality of whose work and the strength of whose dedication to the case at hand is in alarming decline. More troubling, his work is deteriorating at the same time I'm taking old fashioned passenger jets from province to province to take the testimony of as many witnesses still living who know how 500+ toxic waste sites got that way in the first place.
Did I say it's 3 a.m.? The associate I'm thinking about failed to get me the outline I need for tomorrow's deposition on time -- or at all. The "hard copies" that were supposed to be waiting for me when I arrived at the hotel have gone missing. I'm tired. I'm hungry. I'm lonely. And I'm angry.
Worst of all, I'm composing an email to my associate about my considerable disappointment in his recent performance. There is a moment, a split second, in which my finger hovers over the "send" button while a rational voice in my head says "no." Then I push "send."
Email Makes Settlement More Difficult
More and more often when I'm meeting counsel on the morning of a mediation, they're also meeting one another for the first time. In fact, they often have not even previously spoken to one another unless they've met in Court ("good morning, counsel") or in depositions (eyes averted; objections made). Increasingly, by far the vast percentage of their communications have taken place via email.
And that's a problem.
Conflict Escalation
There's no question that litigation escalates whatever conflict existed when our client first walks in our door. We don't, after all, make requests. We issue demands. We don't seek concessions. We insist upon them. We don't make inquiries. We require responses. And we're not such great listeners. Rather, we impatiently tap our feet in Court, waiting for counsel to finish his argument (which we've heard dozens of times before) so we can press our case.
Are these bad things? Not necessarily. So long as we understand what we're doing and the likely results our conduct will have, escalation is not necessarily worse than maintaining a steady state or even deescalating conflict.
The problem for most of us is that we don't know what we're doing and we don't understand the breadth and depth of the likely repercussions.
In Conflict Escalation: Dispute Exacerbating Elements of E-Mail Communication, author Raymond A. Friedman of the Owen Graduate School of Management at Vanderbilt University quotes conflict specialists Rubin, Pruitt and Kim on the difficulties caused by escalation tactics and strategy. According to Rubin, et al., escalation is
"an increase in the intensity of a conflict as a whole.” Escalation is important . . . because when conflict escalates it “is intensified in ways that are sometimes exceedingly difficult to undo.” One reason why escalated conflicts are so hard to undo is that when more aggressive tactics are used by one side they are often mirrored by the other side, producing a vicious cycle.
Email, Friedman argues, unnecessarily, and often drastically, escalates conflict in ways none of us fully appreciate. Unlike conversation -- in person or by telephone -- we are not
physically present with others, can’t see their faces or hear their voices, and can’t give or get immediate responses. The lack of contextual clues . . . impose high “understanding costs” on participants in e-mail interactions, making it harder to successfully ground the interaction. . . . /* [T]the inability to carefully time actions and reactions . . . makes communication less precise.
E-mail Not Only Lacks Social Clues, it is "Profoundly A-Social."
Sitting in my Toronto hotel room at 3 a.m., reviewing online documents for tomorrow's deposition and now "penning" an email to my errant associate, I am, argues Friedman, not simply making communication more difficult, I have become "profoundly asocial" as my associate will also likely be when he reviews my email the following day. "E-mails," writes Friedman,
are typically received and written while the writer is in isolation, staring at a computer screen – perhaps for hours at a time, so that awareness of the humanness of the counterpart may be diminished.
As evidence, Friedman cites research in which subjects played the "prisoner's dilemma" game against a computer. Not only did the gamers act asocially in this context, "many continued to act asocially even when told that they were now playing with people (through the computer)."
E-mail, Friedman concludes, "often occurs in a context devoid of awareness of human sensibilities."
The Precise Difficulties Caused by E-Mail Communications?
Use of aggressive tactics. If e-mail communication encourages the use of more aggressive tactics during a dispute, or makes a counterpart’s tactics appear more aggressive, then escalation will be triggered.
Changes in view of other. Escalation is more likely if e-mail causes negative changes in psychological processes (e.g., perceptions and attitudes) towards the other, such as (1) seeing the other as unfair, (2) lessening empathy toward them, (3) increasing deindividuation and anonymity, or (4) or seeing the other as immoral.
Weakened interpersonal bonds. If e-mail weakens social bonds with the other, then escalation is more likely (e.g., due to reduced inhibitions for aggression).
Problems are difficult to resolve. If the communication limitations of e-mail (e.g., asynchrony deficits) make problems more difficult to solve, conflict may be escalated as frustrated disputants move from mild to more aggressive strategies to achieve their goals.
As a result, says Friedman, there are "higher rates of escalation when disputes are managed via e-mail than via face-to-face communication or other relatively rich media . . . such as telephone conversations." /**
Back in Los Angeles the Following Day
You knew this story was not going to have a happy ending. What a cranky, tired, stressed partner types into her computer at 3 a.m. and what a fully awake associate reads with his morning coffee the following day are, as Friedman stresses, two quite different things. And though I've rarely had a face-to-face disagreement with a colleague that cannot be mended by further communication, apologies, explanations and the like, this particular communication caused a rift that I was unable to heal.
This experience from several years ago, coupled with my recent mediation experiences, makes me want to advise, exhort, plead, beseech, entreat and pray that you commence every litigation with a telephone call rather than a "demand" letter or email. And that you continue to communicate with opposing counsel by telephone or, even more radically, in person over a meal, throughout the litigation to make sure channels of communication are as open and clear as possible.
The difficulties saved will not only benefit your personal life (reduce stress, increase fellow-feeling and the like) but will benefit your client as well -- in case efficiencies and better settlements all around.
______________________
*/ "Grounding" is the process
by which two parties in an interaction achieve a shared sense of understanding about a communication and a shared sense of participation in the conversation. Grounding is important because “speech is evanescent...so Alan must try to speak only when he thinks Barbara is attending to, hearing, and trying to understand what he is saying, and she must guide him by giving evidence that she is doing just this."
** / There's much more to be learned from this article, but these highlights should tell you whether further reading is in your interest or worth your time.
The title? The Firesign Theater here.
See What About Clients' Post At What Price Glory here; excerpt below.
In a down American economy, litigation tends to increase. More suits are filed. And in my view clients and their plaintiff's lawyers file more questionable suits, i.e., ranging from Rule 11 violations and frivolous to iffy and wasteful. Employee and business nuisance cases are a big chunk of those filings.
A good arbitration panel or mediator will cut to the quality of the suit and its likelihood of success quicker than even the best American judges, who often feel obligated to give bad and iffy cases a wide berth. And good judges understand the problems of the business community and the utility of arbitration and mediation.Get jurists on your side in your attempt to drive iffy cases into ADR.
Happens all the time; the parties come together to mediate their dispute and find that they haven't really understood their differences or the areas of agreement .
"Your client didn't care about the first shipment of goods?"
"No, it was the second that was the problem."
"What was wrong with the second?"
"They were plaster of Paris."
"What are you claiming as damages .. .. . "
Etc., etc.
Forget ADR. Pick up the telephone and talk to opposing counsel.
.jpg)
I've been talking a lot about joint sessions recently, as have mediator-bloggers Chris Annunziata (In Further Praise of the Joint Session); and, Geoff Sharp (The Legal Community has Learned to Accept Low Functioning Mediation).
Given simply the transmissions along the optic nerve from the light entering the eye one would not be able to reconstruct the three-dimensionality, or the distance, or the detail of the bark -- attributes that we perceive instantly.
In other words, perception is not merely reception. "Objective reality" is just the brain's "best guess" about what the eyes observe, the ears hear and the fingers touch. 
(image: Phantom Limb #2 by Lynn Hershman)
"The images in our mind," Gawande explains, "are extraordinarily rich."
We can tell if something is liquid or solid, heavy or light, dead or alive. But the information we work from is poor -- a distorted, two-dimensional transmission with entire spots missing. So the mind fills in most of the picture. You can get a sense of this from brain-anatomy studies. If visual sensations were primarily received rather than constructed by the brain, you'd expect that most of the fibres going to the brain's primary visual cortex would come from the retina. Instead, scientists have found that only twenty per cent do; eighty per cent come downward from regions of the brain governing functions like memory. Richard Gregory, a prominent British neuropsychologist, estimates that visual perception is more than ninety per cent memory and less than ten per cent sensory nerve signals.
Gawande doesn't explain how we manage to agree on anything with such impoverished perceptual abilities and richly imagined constructs of "objective reality." I suspect that our insatiable urge to tell one another stories is the primary way we create the collective memories that allow us to agree upon such simple "facts" as "the apple is red and somewhat round," if not necessarily that "the blue Kia entered the intersection after the traffic light turned red."
What strikes me about Gawande's article is not so much the pure science described there, but the way in which opposing parties in litigation resemble "phantom limbs" and joint sessions the mirrors used by physicians to treat the pain "felt" in them.
Recent research demonstrates that amputees' phantom limb pain can be reduced or eliminated by "fooling" the brain into believing that the missing limb is "well." When researchers asked amputees to put their surviving arm through a hole in the side of a box with a mirror inside and to then move "both" arms,
[t]he patients had the sense that they had two arms again. Even though they knew it was an illusion, it provided immediate relief. People who for years had been unable to unclench their phantom fist suddenly felt their hand open; phantom arms in painfully contorted positions could relax. With daily use of the mirror box over weeks, patients sensed their phantom limbs actually shrink into their stumps and, in several instances, completely vanish. . . .
. . . here’s what the new theory suggests is going on: when your arm is amputated, nerve transmissions are shut off, and the brain’s best guess often seems to be that the arm is still there, but paralyzed, or clenched, or beginning to cramp up. Things can stay like this for years. The mirror box, however, provides the brain with new visual input—however illusory—suggesting motion in the absent arm. The brain has to incorporate the new information into its sensory map of what’s happening. Therefore, it guesses again, and the pain goes away.
Litigation separates the parties from one another as radically as an amputation, often under circumstances where the law suit is all they have in common. Like amputees, the parties cannot massage the missing muscle, scratch the irritating itch, or ease the frustrating pain.
When physicians give their patients mirrors and instruct them to move their one remaining arm in concert with its physically re-imagined partner, they conduct a silent concert of healing. With "new" information (hey! there's my other arm and it's not all cramped up!) the brain readjusts and stops sending false signals. The muscle relaxes. The itch is scratched. The pain is relieved.
Joint sessions can be used as mirrors to make missing disputants appear again./* The mediator -- who is trained in this art -- creates an environment (the "box") in which the parties are able to adjust the mis-impressions and correct the mis-communications that make the conflict so difficult to resolve. After a brief period of discomfort and incoordination, the disputants begin to tell their stories of injustice in concert, spontaneously harmonizing the points on which there is little disagreement and resolving those parts of the tale where the greatest differences lie.
Those parts of the story that have grown wildly distorted in the absence of any corrective influence, are shrunk back to their appropriate size. Freed from the tyranny of their phantom "others," the parties begin to work collaboratively to solve the problem that they now understand is mutual.
Though this is surely metaphor, the process is not just theory. When parties consent to a joint session orchestrated by the mediator in collaboration with their attorneys, this type of reconciliation happens more often than not.
Don't, however, confuse this joint session with those in which attorneys give one another presentations proving their entitlement to victory as if there were a phantom "decider" -- a missing arbitrator or judge -- somewhere behind a curtain. These are the type of "joint sessions" that have given joint sessions a bad name because counsel well know their opponents' "positions"and the parties tend to become less rather than more amenable to settlement when their opponents' point of view is once again argued to them -- this time in quarters that are far too close for most lawyers, let alone their clients.
We'll keep exploring this issue. For now, more of the Gawande article below.
A new scientific understanding of perception has emerged in the past few decades, and it has overturned classical, centuries-long beliefs about how our brains work—though it has apparently not penetrated the medical world yet. The old understanding of perception is what neuroscientists call “the naïve view,” and it is the view that most people, in or out of medicine, still have. We’re inclined to think that people normally perceive things in the world directly. We believe that the hardness of a rock, the coldness of an ice cube, the itchiness of a sweater are picked up by our nerve endings, transmitted through the spinal cord like a message through a wire, and decoded by the brain. . . .
[There are] some serious flaws in the direct-perception theory—in the notion that when we see, hear, or feel we are just taking in the sights, sounds, and textures of the world. For one thing, it cannot explain how we experience things that seem physically real but aren’t: sensations of itching that arise from nothing more than itchy thoughts; dreams that can seem indistinguishable from reality; phantom sensations that amputees have in their missing limbs. And, the more we examine the actual nerve transmissions we receive from the world outside, the more inadequate they seem.
Our assumption had been that the sensory data we receive from our eyes, ears, nose, fingers, and so on contain all the information that we need for perception, and that perception must work something like a radio. It’s hard to conceive that a Boston Symphony Orchestra concert is in a radio wave. But it is. So you might think that it’s the same with the signals we receive—that if you hooked up someone’s nerves to a monitor you could watch what the person is experiencing as if it were a television show.
Yet, as scientists set about analyzing the signals, they found them to be radically impoverished . . .
________________________
*/ I don't know if any of this relates to mirror neurons, but I am certainly led to think about them. See Stephanie West Allen's post Mirror Neurons, Some Resources here. Whenever I see the word "mirror" I'm also always moved to think of my friend, the artist and mediator Dorit Cypis. For more on her work, click here.
Live Telephone Seminar
.jpg)
