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

I was reading a great article in the New York Times this morning about "blue sky" transparent diplomacy in light of Obama's Cairo speech and was intrigued by the phrase "constructive ambiguity" in international diplomacy.

The full Obama-Cairo Speech below:

Check out Experts Say Full Disclosure May Not Always Be Best Tactic in Diplomacy.  While citing the importance of back channel communications, the author quotes "one of the nation's most experienced career diplomats and former under secretary of state"  as identifying the two "home truths" in international diplomacy:

One is, don’t tell lies. The other is, you can say more in private than you can in public, but they have to be consistent.

This brought to mind not simply the one or two memorable instances in which I caught mediators in deception during my litigation practice, but a recent experience communicated to me by a friend about one of those $15/K a day mediators.  I ask for the full 411 on these mediations because I'm intrigued by the value $15K/day buys.  Here's the story.

My friend called me during a recent mediation to tell me that his mediator had just left the room after leaving this message with his "team."

Your opponents just asked me to make a mediator's proposal of $X.Y million.

Assuming that this disclosure was not a breach of confidence, I had to ask myself whether it was simply a (manipulative) hypothetical "offer" approved by the other side in form and content that the other side could safely disown.  In either case, I felt it was (a) unethical - i.e., a breach of confidence; or, (b) partial (not neutral, which is also unethical).

Someone could likely talk me down off the ledge on this one but I'm having trouble seeing it as permissible mediator behavior.   Assuming it wasn't a breach of confidence, it raises the question whose ox is being gored here?  How much manipulation by the mediator is acceptable - is ANY manipulation acceptable and if the mediator is manipulating, is it POSSIBLE for him/her to do so without also being PARTIAL?

I have "caught" mediators in deception during my practice (and have not been quiet about my experience).  In case mediators do not recall legal practice, let me remind them that counsel talk to one another and despite our differences usually trust one another more than we trust our mediator.  If you lie to one of us or disclose something you shouldn't be disclosing, don't let the separate caucuses in which the mediation is taking place mislead you about the state of "play" in the litigation.  If the mediator is dishonest, will be found out.

If we do not hold ourselves to the absolute HIGHEST POSSIBLE ethical standards, our credibility, and our careers, are seriously at risk.

Would any of my fellow mediate.com bloggers like to weigh in on this?  Geoff Sharp, Jeff Thompson, Phyllis Pollack, Stephanie West Allen, Nancy Hudgins, Colin Rule, Tammy Lenski, Josh Weiss, Jan Frankel Schau, Jeff Krivis, Mariam Zadeh, John DeGroote, Steve Mehta, Arnold Zeman?

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(image from and link to last week's This American Life episode, No Map)

What do these two stories -- the first hilarious; the second infuriating -- have to do with negotiation?

First, listen to the introduction and first story in last week's brilliant episode of This American Life, No Map (podcast here).

The full chimp story (chimpanzee in red sweat-shirt, jeans and shoes causes the police to "un-arrest" his owner) is an hilarious example of a lose-lose negotiation impasse.  Lesson:  as the 12-step people caution:  "you can't save your face and your ass at the same time."  

The other, more sober tale, reveals the competing interests keeping American banks from pursuing the win-win solution that would permit "upside down" homeowners to remain in their houses and continue paying at least part of their debt.  Why?  Among other reasons, renegotiating loans secured by deeds of trust would require banks to carry a toxic assets on their balance sheets today rather than next year. 

Other impediments include the more practical road-blocks that impede efficient management of all organizations -- a lack of preparedness -- in this case, an inability to get mortgage renegotiation service centers up and running fast enough to keep up with the crisis.  We're hoping that the President's economic advisors already know this, or are still finding the time to download This American Life to their iPods or Blackberries.

Well worth a listen!

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Assuming that suspicious stock sales by a member of a corporation's board of directors may constitute circumstantial evidence of scienter for purposes of establishing a fraud or fraud-related cause of action under California law--where director sold less than 35 percent of his total shares after having been provided with negative information about company’s economic prospects over a period of nine months prior to selling--such activity did not support conclusion that sales were suspicious.

Sometimes when I read the daily  case reports I can't help but go off topic. Bains v. Moores - filed March 20, 2009, Fourth District, Div. One Cite as 2009 SOS 1706

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There's an infinite regression angle to this.

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The guys at Drug and Device Law Blog in Random Thoughts on Randomness have gone stark raving sane.  Please send medical assistance.  Western medicine.  With their stats, this could turn into a pandemic.

We admit it: We're as crazy as the next guy.

Heck -- given that we spend nights and weekends feeding this blog, there's a pretty strong argument that we're crazier than the next guy.

We fret about whether each and every one of the ten million documents has been reviewed and coded correctly, and we change commas into dashes -- and back again -- in footnote nine on page thirty of the brief.

We believe that our clients are more likely to win if we do our jobs right, and we devote an awful lot of energy to that cause.

And then the system kicks in.

Courts make utterly unpredictable procedural rulings that dramatically change the value of our cases. The MDL Panel, for example, may decide to consolidate a set of cases in a jurisdiction that previously had nothing to do with the litigation -- like sending Breast Implants to Alabama or Albuterol to Wyoming -- and all of a sudden an unanticipated body of local appellate law governs your federal issues, and your cases are either won or lost for reasons beyond your control. (See In re Korean Airlines, 829 F.2d 1171 (D.C. Cir. 1987).)

Or you tee up a legal issue in front of a judge, and you can't predict the result, because the cases are breaking fifty/fifty in that area. The judge might grant summary judgment, or he might deny it. Or, as happened in Tucker v. SmithKline Beecham recently, he might grant the motion in September and reconsider the following July. Your lawyering skills presumably had nothing to do with it.

One judge grants a Daubert motion, holding that the evidence linking Accutane to inflammatory bowel disease is junk science, inadmissible in a court of law. But, a couple of weeks earlier, a New Jersey jury had awarded millions of dollars of damages based on that same evidence.

One judge holds that a claim accrued on the day the plaintiff was diagnosed with a disease, and another holds that the identical claim -- on identical facts -- didn't accrue until the plaintiff "discovered" his claim based on press coverage or an article in the scientific literature. The statute of limitations bars the first claim; the second one goes forward.

You're a hero or a goat, and you had nothing to do with it.

One judge holds that the warnings on your client's product are adequate as a matter of law. Another holds that the question of adequacy is one of fact, to be decided by a jury.

One jury then finds in your client's favor, but a second jury -- looking at precisely the same warnings -- finds the opposite.

We're not complaining about this, really.

They're our lives, after all, and we picked this profession, and it can be awfully exciting and challenging and, yes, fun.

But doesn't it sometimes feel a tad random?

More to the point, our system sinks tens of millions of dollars into massive discovery to ensure that every last fact is known -- presumably in pursuit of an accurate result. But those carefully honed inputs then yield results that are both unpredictable and flatly inconsistent with each other (which means that at least one was wrong).

If the system ultimately values cases wildly inconsistently, just why does society invest massive resources into trying to ensure accuracy? Aren't there better things to do with our collective wealth?

But we digress.

We have to go back to scrutinizing the footnotes in all of the drug and device precedents, to pry out of them every last ounce of utility for our clients.

If we didn't, then a brief might not be perfect, and we might be more likely to lose.

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My friend, Joe Mockus, a criminal defense attorney in the San Francisco Bay area, once asked me, "just what is it that you do all day long?"   I know what Joe did.  He had at least one hundred court appearances a day and once in awhile tried a major felony case.  He was negotiating while I was writing stake-in-the-heart summary judgment motions in cases with 2 million documents coded in the Phillipines.  I took a lot of depositions and, if I was very very very lucky, I got to try a case to a jury once every five to ten years.

If you're a civil litigator like me (read:  "not really a trial attorney") and you haven't thought of criminal law since your first year of law school (it has something to do with a man jumping out a 20 story window and then being shot by an angry mistress from the 10th floor, right?  Cf. Magnolia below) then amble on over to Scott Greenfield's Simple Justice for a satisfying look at the world criminal lawyers inhabit every day.

And next week, we'll be hosting the Blawg Review over at the IP ADR Blog.  Which reminds me, this is likely the first and only post on this blog you'll get this week!

Habeas corpus actus reus corpus delicti crimen falsi crimen innominatum crimem laesae maiestatis de minimis non curat lex.

The Magnolia criminal law bar exam question half-way through this opening to the darkest comedy of the 20th Century, Magnolia.

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Thank you (we think) to Legal Antics for posting this mindless video made by some pretty darn bored law students enacting their ADR of choice. 

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The google algorithm throws these random musings on negotiation up to me on a weekly basis because "negotiate" is one of my "google alerts."  (have I said god bless google recently?)

Almost all legal writing is collaborative, so I feel this English professor's pain.  I just didn't know we shared this experience. 

From Blog en Abyme, excuses excuses by Kim Middleton, Assistant Professor of English and Director of the American Studies Program at The College of Saint Rose.

What I’ve discovered is that when you’re writing with someone, you’re negotiating and discussing all the time. Which secondary sources to use and why; how much space a particular piece of the argument should occupy; the particular ways that data should be interpreted; style; etc. And that’s all the stuff that we actually articulate. I’d venture that there is also always a secondary level of negotiation going on non-verbally: should I just take the lead on this part?; am I slowing us down?; is my expertise relevant here?. Essentially, there are all of the interpersonal elements to negotiate as well. Is it any wonder that it takes longer than writing an article alone?

Meanwhile, note to self: next time I assign a group project to students (I’m looking at you, film class!), I need to give them ample time to work through not just content, but interpersonal stuff as well. It would probably also help if I could get them to move across the street from one another, and assign one person per group to be the baker who provides snacks for each meeting. And then someone to do the group’s laundry and grocery shopping while they get their article written—I mean project done.

And yes, Professor, it does take food, drink and clean laundry to accomplish anything worthwhile as a team!  Thanks for the thoughts.  Now get back to that article right now!

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If you're a writer -- you know -- of fiction -- and you somewhat compulsively track your blog statistics because, well, you don't smoke cigarettes anymore, your blogging day doesn't start any better than this.

Search google.com (sue step mother for wrongful death) 

The mind reels with the possibilities.  But I have paperwork to do.  

The video, for those with procrastination in mind, takes about as long to watch as stepping outside to smoke a cigarette would.  And "stop smoking" was one of your New Year's resolutions, right?

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Welcome 2008 by Riza Nugraha

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(photo from Judicate West's home page) 

A terrific holiday party at Judicate West last evening with the best holiday hors d'ouvres of the season, mediator friends and new and old clients.

But that was just the beginning . . . .

. . . . then . . . .

 (Day 1 with the Forbes.com Business and Financial Bog  Network:  Sky Bar at the Mondrian Hotel --think Entourage -- the only bill I reached for quickly enough -- and Twisted Sister at the House of Blues on the Sunset Strip) 

(Jay Jay French and Dee Snider Talk with Entertainment Weekly About Twisted's Christmas Album)

Mosh Pit (photo of "Dead Fish" concert by Luiz Alberto Fiebig) . . . .

 which makes me  . . . . .

. . . . worry about the "children" getting hurt

AND of course

. . . .potential liability.

Sharon Gitelle, the woman who will make the Forbes.com Business and Financial Network . . . .

ROCKIN' . . . . .

Trust me on this one.

 What all this has to do with negotiating middle age in the next post (along with the promised post on negotiating the flat screen HD TV purchase)

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negotiate

+ procrastinate

+ writer's block

+ stumble upon

EQUALS 

From The Big Bang to Today: timeline of evolution; a chronicle of the universe, the solar system, and the development of life on Earth.

(REALLY TOTALLY COOL)

negotiate

INTRANSITIVE VERB: To confer with another or others in order to come to terms or reach an agreement: “It is difficult to negotiate where neither will trust” (Samuel Johnson).

TRANSITIVE VERB: 1. To arrange or settle by discussion and mutual agreement: negotiate a contract. 2a. To transfer title to or ownership of (a promissory note, for example) to another party by delivery or by delivery and endorsement in return for value received. b. To sell or discount (assets or securities, for example). 3a. To succeed in going over or coping with: negotiate a sharp curve. b. To succeed in accomplishing or managing: negotiate a difficult musical passage.

ETYMOLOGY: Latin negtir, negtit-, to transact business, from negtium, business : neg-, not; see ne in Appendix I + tium, leisure.

procrastinate 

INTRANSITIVE VERB: To put off doing something, especially out of habitual carelessness or laziness.

TRANSITIVE VERB: To postpone or delay needlessly.

ETYMOLOGY: Latin prcrstinre, prcrstint- : pr-, forward; see pro–1 + crstinus, of tomorrow (from crs, tomorrow).

writer's block

NOUN: A usually temporary psychological inability to begin or continue work on a piece of writing.

stumble

INTRANSITIVE VERB: 1a. To miss one's step in walking or running; trip and almost fall. b. To proceed unsteadily or falteringly; flounder. See synonyms at blunder. c. To act or speak falteringly or clumsily. 2. To make a mistake; blunder. 3. To fall into evil ways; err. 4. To come upon accidentally or unexpectedly: “The urge to wider voyages . . . caused men to stumble upon New America” (Kenneth Cragg).

TRANSITIVE VERB: To cause to stumble.

NOUN: 1. The act of stumbling. 2. A mistake or blunder.

ETYMOLOGY: Middle English stumblen, probably of Scandinavian origin; akin to Old Norse stumra.

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Mr. Thrifty found this ridiculously cool little house ON THE BEACH on the North Shore where we'll be for the next week.  

Listen, it's been a ridiculously busy year & we sooooooooooooo need a vacation.  

In gratitude to all our readers, we leave you the link to the best beach house on the planet & give you a taste of our vacation spot for the next week.   

This is the dining/living room.  The perfect place for a 10-minute post from paradise.

This is Mr. Thrifty's great find, by the way, the product of hours and hours of searching, finally located on craigslist.

This is what sunrise looks like.  Hopefully, I'll be beachcombing rather than blogging at this hour.

Here's where Mr. Thrifty will be sleeping while I send in the random early morning post from paradise.

Aren't we lucky ducks????????

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(photo by Ted Fines)

I recently briefly referred to a few scathing student evaluations from my students at a local law school.  Surely my wounded feelings (after all that prep time!) were just another instance of my own hyper-sensitivity and after a day of denial,anger,bargain,depression, I accepted that I was not going to be anyone's Ms. Chips. 

When I began speaking to others who taught at the university level, however, everyone I spoke to seemed to have experienced their own wounded feelings at student evaluation time.   

Now to complete my cycle of grieving comes writer and adjunct journalism professor David Holmberg in today's NYT Magazine "On Language" Column, Student Evaluations.

"I began the semester with what I hoped was an illuminating discussion of the digital revolution and its impact on print journalism," says Holmberg.

And throughout the term, as I had done routinely at N.Y.U., I used The Times as an educational tool. I tried very hard to convey the value and enormously important traditions of print, of quality journalism.

But in their evaluations, 4 out of 11 students ignored my efforts and attacked my journalistic and professorial credibility in what was for me an unprecedented fashion. They said I showed a “liberal bias” by using The Times in class (perhaps echoing the political bent of their parents, as the young are wont to do), and two students said — glibly and absurdly in my view — that the class was of no benefit because of my perceived bias. One said bluntly, “I learned nothing from this class.” Another . . . said that “I did not learn anything in this class besides a strong dislike of The N.Y. Times. There was no journalistic background taught.”

Now that David Holmberg has helped me achieve complete acceptance of my semester-end student "grades," I'm freed to wonder whether there is more of a generation gap between those of us who teach after a career in practice (i.e., really old people) and students in their twenties.

At minimum, it would seem a good thing to open the following semester with questions about what the students' hopes and fears about the class are and whether they are as willing to hold themselves responsible for their own educational experience as I am for the guidance of it.

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Having recently been (somewhat justifiably) skewered by the law students taking my ADR Employment Class for bluntly telling them that they couldn't write, I must admit that the following reprint, called to my attention by Digg, helped soothe the wounds of student evaluations. 

But before reprinting an excerpt from the Times article:  What Corporate America Can't Build, a Sentence, I have to tell you what I told my Business Law students when I was teaching undergrads in the mid-'80's.  If you can't write a coherent essay, how could I possibly grade your understanding of the subject?  In fact, you come to understand the subject in the process of writing about it coherently.  They didn't like it either.

My justification.  The New York Times.  

What Corporate America Can't Build: A Sentence
By SAM DILLON

BLOOMINGTON, Ill. - R. Craig Hogan, a former university professor who heads an online school for business writing here, received an anguished e-mail message recently from a prospective student.

"i need help," said the message, which was devoid of punctuation. "i am writing a essay on writing i work for this company and my boss want me to help improve the workers writing skills can yall help me with some information thank you".

Hundreds of inquiries from managers and executives seeking to improve their own or their workers' writing pop into Dr. Hogan's computer in-basket each month, he says, describing a number that has surged as e-mail has replaced the phone for much workplace communication. Millions of employees must write more frequently on the job than previously. And many are making a hash of it.

"E-mail is a party to which English teachers have not been invited," Dr. Hogan said. "It has companies tearing their hair out."

A recent survey of 120 American corporations reached a similar conclusion. The study, by the National Commission on Writing, a panel established by the College Board, concluded that a third of employees in the nation's blue-chip companies wrote poorly and that businesses were spending as much as $3.1 billion annually on remedial training.

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Via Kottke.org, we are directed to Plants Can Tell Who's Who at naturenews.com.

plants grown alongside unrelated neighbours are more competitive than those growing with their siblings — ploughing more energy into growing roots when their neighbours don't share their genetic stock.

Plants 'know' more about their environment than they are often given credit for: they can sense the presence of neighbouring plants through changes in water or nutrients available to them or through chemical cues in the soil, and can adjust their own growth accordingly. "That plants have a secret social life is something well known to plant ecologists," says Dudley.

But the ability to recognize kin has not been demonstrated before.

For remainder of article, click here.

I suspect that just as we humans are hard-wired to both compete and cooperate (see Unhappy Lawyers and the Cooperative Hard-Wire) so are plants.  Because I don't know that, I ask any botanists within shouting distance to weigh in.

Collaborate, compete, protect, defend, balance, compete, collaborate. 

Ecclesiastes 3:1-8

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From Slate, a year of Blogging the Bible by David Plotz, comes to an end.  It all starts here.

And not a minute too soon to cure our national Biblical Illiteracy as reported by this Sunday's Book Review of Religious Literacy, described as "Stephen Prothero’s jeremiad about declining religious knowledge."

How does this relate to conflict resolution?

Read the headlines lately?

For an anthropologist on Mars look at reading the Bible, check out Julia Sweeney's hilarious and touching Letting Go of God.  And for a modern and deeply felt re-interpretation of the story of Cain and Abel, listen to Am I My Brother's Keeper, also a This American Life classic, by Jonathan Goldstein.

And finally, for a set of compelling audio programs on religion and dispute resolution, click here.

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Birthday Gratitude List

1. Mr. Thrifty, who shares this birthday with me and who has taught me to think about money before I spend it (happy birthday, honey!)
2. My step-children, Adam and Julia, who were all grown up and educated by the time I met them, so "step-children" seems a misnomer.  They are gracious, kind, loving, and better Scrabble, Boggle and Uno players than I (damn them!)  They have taught me how to be part of a family and I am everlastingly grateful for their presence in my life.  
3. The extraordinary support and guidance from people too numerous to name when I changed careers from litigator to mediator. 
4. Being given the opportunity (by fate and by Mr. Thrifty) to finally make my passion my career.
5. Sobriety (13 years! hence the 4,745 gratitude lists).
6. Friends.
7. Poetry and literature.
8. The internet.
9. The geo-political challenges of the 21st century (we wouldn't want to get bored).
10. All my blogging buddies.

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

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

First, the excerpt from Eide Neurolearning:

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

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

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

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

A Brief Comment on the Era of Legal Specialization

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

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

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

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

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

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

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

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

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

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

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

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

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

No matter how much you know or think you know, set aside your pre-conceptions and pre-judgments as much as you are able.  Avoid "we've always done it this way" thinking.  Then, whether you're in a new field or an old one, you will surprise yourself and your bargaining partner with the high degree of creativity you are able to bring to the same old problems.

Did I also say it's lots more fun to do something new everyday?  And that conflict resolution -- whether you're judge or jury, advocate or negotiator, mediator or arbitrator -- is waaayyyyyyyyyyyyyy too hard unless you're having fun doing it.

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If mediation is the triumph of hope over experience, GOOD FOR US!

This, from today's New York Times (full article here):

With anxiety running high in classrooms across the nation after the Virginia Tech attacks, the authorities in Sacramento [California] arrested four secondary school students on Thursday, including one carrying a loaded gun. . . .

[A] 14-year old . . . had photographs of two female McClatchy [High School] students.  The police said they believed that the boys were planning to shoot them. . .

School counselors had been working on [a] problem [among four female McClatchy students] and planned to mediate the dispute on Thursday . . .

The police said they believed that the two boys [with the gun] . . . were enroute to the mediation, possibly to shoot their targets before or after the meeting."

We're hoping that if the police had not intervened, a shooting wouldn't have occurred after the mediation.

I'm also hoping mediators won't have to begin frisking their disputants before joint sessions, at least not here in Second Amendment land where we are packing 65 million hand guns!

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We're proud to say that our friend Stephanie West Allen was recently awarded the Thinking Blogger Award by the Eide Neurolearning Blog and that she passed it along to us.

 Hey listen!!  If Hollywood and the music industry can award themselves tens of thousands of real gold-plated statuettes a thousand times a year, why can't we give ourselves gold and silver virtual awards for contributing more "genuis" to the thinking world in any single day than the entire entertainment industry does in any decade you might want to name?

(Cf. Jerry Seinfeld's hilarious bit on award-giving during his speech accepting HBO's first "annual" HBO Comedy Award -- "you don't give awards to comedians," says he). 

 Stephanie has graciously asked me to play this meme tag game under the following rules:

1. If, and only if, you get tagged, write a post with links to 5 blogs that make you think,

2. Link to this post so that people can easily find the exact origin of the meme,

3. Optional: Proudly display the 'Thinking Blogger Award' with a link to the post that you wrote (here is an alternative silver version if gold doesn't fit your blog).

Stephanie asks that we "tag blogs with real merits, i.e. relative content, and above all - blogs that really get you thinking!" rather than those, say, with the highest first weekend box office gross (i.e., X-Men). 

The following blogs make me think:  

1. Geoff Sharp's Mediator Blah Blah, who writes like a truly great comedian; he makes it look easy; it hits your insight-center before you have a chance to self-censor; and, it's way deeper than you think; 
2. the Electronic Intifada (which may not actually be a blog but which I read as if it were one),
3. Lawrence Solum's Legal Theory Blog,  for the truly geeky wanna-be academics in the crowd like me;
4. George Wallace's cultural blog A Fool in the Forest (the blog equivalent of Finnegan's Wake); and,
5. Gini Nelson's Engaging Conflicts Blog for its audacious eclecticism. 

And because the Electronic Intifada may not actually be a blog, I'll add

Hugh ("we don't need no stinkin' awards") McLeod's Gaping Void (the blog equivalent of Kingsley Amis' Lucky Jim).

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Slight digression for moment of nostalgia and copyright notice. 

This (right) is my favorite Firesign theater album.  I heard it for the first time on FM radio in high school while vacuuming the living room floor (yes, young people used to do these chores). 

It led to harder comedy.  

Note to subsequent generations of young people -- FT's comedy remains hilarious and does not age with time.   

From Wikipedia:  this image is of a music album . . . and the copyright for it is most likely owned by either the publisher of the album or the artist(s) which produced the music or artwork in question. It is believed that the use of low-resolution images of album . . . solely to illustrate the album . . .  in question . . . qualifies as fair use under United States copyright law. Any other uses of this image, on Wikipedia or elsewhere, may be copyright infringement. See Wikipedia:Fair use for more information.

OK, I blew the entire post on that.

Part III (3) Three on Step IV (4) Four from the Lax & Sebenius article, The Art of the Best Deal follows.

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Everyone who knows the difference between distributive and integrative bargaining and the iconic story of the ONE ORANGE should go directly this morning to Geoff's blog, Mediator Blah Blah.  First, a snippet to encourage you:   

Today I found myself inducted into the Mediators' Mile High Club at 23,000ft when two young, remarkably similar looking girls seated in 16E and 16F needed my help.

(yes, they look sweet and compliant now, but just wait until the plane takes off!)

for remainder of story click here.

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Mr. Thrifty, always alert to the potential that business might arrive on our doorstep in response to my blog postings says "huh?" 

It's not just that he doesn't share my quirky sense of humor, it's that he doesn't follow the blog.  For others who don't, the YouTube Kodak commercial below is an example of the opportunities available to "old" industry in Web 2.0 advertising sources. 

Look!  I've become a shill for Kodak!  So stop grumbling; have a little fun; play along & even this edged-out camera company may live to revive the "Kodak moment" as a provider of digital technology.  

And, for my own weird reasons, this CRACKS ME UP! 

 Below, Paul Simon's Kodachrome from the YouTube Archive of YesMan46.   And, if you're a boomer still nostalgic about the way Simon & Garfunkel moved you in Junior High (now "Middle") School, check out his new album here.  Walking down memory lane, I provide you with Kodachrome.

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Stephanie West Allen at Idealawg has tagged me and eleven others to respond to Alex Shalman's Gotta Get Goals by "list[ing] and writ[ing] about the top 5 to 10 goals that you gotta’ get so that you can truly say you have achieved your wildest dreams in life. These have to be your best, most exclusive, and over-the-top goals that you can pick off your goals list."

I'm thinking, SHOOT!! I already write about myself too much, but Stephanie is one of my favorite people so I hate to disappoint her on this meme.  Therefore, you can skip this post as more blather from the most narcissistic person on the planet or read my top ten. 

The casual observer may not think these goals much to hope for, but if I achieve them, I will have achieved more than I ever believed possible and will die a happy woman.  

1. to stay sober and help other alcoholics to achieve sobriety; this is my primary purpose; everything else is gravy.
2. when I say "stay sober," I mean, to maintain a peaceful and loving balance in my life no matter what my circumstances -- to be content and of service in a war zone, a jail cell, a hospital and on my death bed.
3. to make a difference in the world, every day, one person at a time.
4. to be awake, present, to my experience and compassionate to that of others.
5. to continue to overcome those defects in my character that keep me from being of service.
6. to be self-supporting through my own contributions.
7. to be humble and more even-tempered.
8. to express myself creatively without pretense, desire for fame or hope of financial reward.
9. to know myself, my strengths and my limitations.
10. to contribute to my family, my friends and my community at the highest level possible without self-aggrandizement or need of reward.

In the words of the poet Mary Oliver, I want to be able to say

all my life
I was a bride married to amazement.
I was the bridegroom, taking the world into my arms.

When it’s over, I don’t want to wonder
if I have made of my life something particular, and real.
I don’t want to find myself sighing and frightened,
or full of argument.

I don’t want to end up simply having visited this world.

If they haven't been tagged yet, I tag Michael Webster, Blaine Donais, Diana Skaggs, Cassandra Lawrence, Jan Schau, and, Geoff Sharp.

As always, Michael Webster says something incredibly provocative in response:

Gotta Get Goals.  Why? Why do we need goals? This is not a flip response to what appears to a very successful meme/linkbait project.

For the surprising answer, click here.

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(on the other hand, laptopping beats sleeping)

See the WSJ Law Blog's post No Laptops for You concerning a Georgetown Law Prof who has banned laptops from his classroom.    

I'm teaching a class at Pepperdine Law School this semester and must admit that the temptation to ban laptops is great, particularly when you've worked hard to prepare an engaging lecture and are attempting to solicit lively participation from your students.  It's sometimes dispiriting to face a sea of black and silver laptop covers instead of interested faces poised to join a class discussion.    

It may seem like a small problem, unworthy of a post.  But it concerns the way we treat one another and the way we wish to be treated.  If we were chatting at a party and I pulled out my Blackberry to "multi-task," I'd be considered boorish and not a little dim-witted.  How different is that from the conversation that takes place in the classroom?  

With these thoughts in mind, I provide an excerpt below and link above:

[Georgetown Law School Professor] David Cole has banned laptops from his classroom, and he wrote an essay about it in Saturday’s WaPo. He cites two reasons for the ban:

“Note-taking on a laptop encourages verbatim transcription. The note-taker tends to go into stenographic mode and no longer processes information in a way that is conducive to the give and take of classroom discussion. Because taking notes the old-fashioned way, by hand, is so much slower, one actually has to listen, think and prioritize the most important themes.”

“Laptops create temptation to surf the Web, check e-mail, shop for shoes or instant-message friends. That’s not only distracting to the student who is checking Red Sox statistics [or the WSJ Law Blog!] but for all those who see him . . . doing something besides being involved in class. Together, the stenographic mode and Web surfing make for a much less engaged classroom, and that affects all students . . . .”

 

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As a follow-up to yesterday's post on collaboration and cooperation, we recommend a recent article in the Harvard Business School's invaluable online resource "Working Knowledge" -- The Value of Openness in Scientific Problem Solving, by Karim R. Lakhani, Lars Bo Jeppesen, Peter A. Lohse, and Jill A. Panetta.

The HBS Executive Summary below; link to full article above. 
  

Scientists are generally rewarded for discoveries they make as individuals or in small teams. While the sharing of information in science is an ideal, it is seldom practiced. In this research, Lakhani et al. used an approach common to open source software communities—which rely intensely on collaboration—and opened up a set of 166 scientific problems from the research laboratories of twenty-six firms to over 80,000 independent scientists. The outside scientists were able to solve one-third of the problems that the research laboratories were unable to solve internally.

Key concepts include:

Opening up problem information to a large group of outsiders can yield innovative technical solutions, increase the probability of success in science programs, and ultimately boost research productivity.

Open source software communities provide a model for improving the process of solving scientific problems.

Outsiders can see problems with fresh eyes; in this study, problems were solved by independent scientists with expertise at the boundary of or even outside their field.

Achieving true openness and collaboration will require change in the mindsets of both scientists and lab leadership.

A timely post for solving the problems of WORLD 3.0. 

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I'm publishing the full text of my Law School's recent U.S. News and World Report rankings, primarily because I'm proud to say that Davis continues to deliver the goods on the diversity goals that made me choose it for my legal education thirty (gulp!) years ago.

I don't do much for Davis, despite how much it's done for me, both while studying for my J.D. and after.  It's not a name you toss around like Harvard or Yale or UCLA.  For anyone trying to make a decision about where to go to law school, here are the reasons why I truly loved my educational experience there:

• there were (and continue to be) only about 160 people in each class, making the atmosphere  as relaxed as law school likely can be; the faculty available for a chat; and, the "feel" of the school like a small town where people bring you casseroles when you're sick and cheer you on when you're engaged in a competitive endeavor;
• the quality of scholarship and standards in teaching were and are extremely high;
• the student body is diverse;
• there's ABSOLUTELY NOTHING TO DO THERE but study and hang out with your classmates (Davis is near many wonderful places -- San Francisco, Tahoe, gold country -- but Davis itself is precisely nowhere -- this is good for people who have a little ADHD and need to concentrate on their studies);
• they're one of the few west coast universities with real squash courts;
• the local legal community is tremendously supportive and small enough itself to provide opportunities for early real legal experience, like second-chairing trials, attending client meetings, participating in settlement negotiations, and meeting the Judges (both State and Federal) as a summer associate; and,  
• the local bench is among the finest in the State.

Amazingly, some of the best professors I had '77-'80 are still teaching at Davis:  Dick Wydick (who offered to bet me 100 to 1 that I'd pass the bar exam when I was freaking out about it the summer of '80 -- he also made this offer to my study partners, Peter Offenbecher and Sam Foulk -- I remember Peter musing aloud, "you know, it might be worth throwing the bar in July if I put enough money on the table" -- and, no, Peter did not take a dive); Floyd Feeney (who kindly hired me as a first year to help with a book on ancient criminal procedure); and, Bruce Wolk (to whom I'll ever be grateful for slipping helpful explanatory material in my student mailbox when my clueless questions in Fed Tax 1 made him realize I greatly needed help).  

The only burning alumni question I have:  is there still a pinball machine in the basement?

GO AGGIES! 

The Davis press release below.

UC Davis School of Law received high marks from its peers—faculty at other law schools and lawyers and judges throughout the United States—in the latest U.S. News & World Report ranking of America's Best Graduate Schools. The 2008 Edition includes an assessment of all 184 accredited law schools in the United States by peers and by lawyers and judges. UC Davis Law tied at 23 in the peer assessment category and at 32 in the assessment by lawyers and judges.

The report, released on March 30, 2007, showed UC Davis School of Law continues to rank in the first tier of all law schools, and while serving under 600 students is one of the highest-ranked small public law schools in the country.

“We are very excited to be recognized for our achievements particularly by our peers and those in the legal profession,” said Dean Rex Perschbacher, “although we encourage students and the public to look beyond national rankings and choose a school that meets the individual needs of each student.”

“Our school offers an exceptional legal education while retaining a close-knit community atmosphere through smaller classes and greater faculty interaction,” he added. “Those in the legal profession know the quality of our students, and our peers recognize the excellent scholarship and teaching by our faculty.”

U.S. News also recognized the Law School's strength in diversity, showing it among the top 25 in the United States in this category. This recognition is not new to Davis. In 2005, the National Jurist magazine ran a story on the “Best Schools for Minorities,” and named UC Davis School of Law as one of the very top law schools in the United States for minorities, with both a high minority enrollment and one of the most diverse law faculties in the country. The Princeton Review's 2006 edition of the Best 159 Law Schools ranked Davis in the top 10 for “Best Environment for Minority Students” and “Most Diverse Faculty.”

The school has a dynamic academic program with strengths in business law, criminal law and procedure, environmental and natural resources law, human rights and social justice law, intellectual property law, international law, and public interest law. The school also offers community clinics in the areas of family protection, immigration, prison law, and civil rights. In these clinics, second- and third-year students represent clients under the supervision of experienced faculty to develop their practical skills.

“We provide our students with comprehensive courses in a variety of legal areas and balance their coursework with real-life experiences in our clinics,” said Perschbacher.

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In response to my over-50 peers' dire predictions that the internet will make books with covers and typeset lines obsolete, I chortle back, "but I love the internet.  I love wikipedia. I love Youtube and Flickr and Google." 

They look at me like I'm nuts. 

"But what about newspapers," they say, "and reading and poetry?  What about sitting in an easy chair with a new novel in your hands and a cup of coffee by your side?"

"Books and newspapers don't hyperlink," I respond.  "Nor do they give me access to thousands of libraries.  With search capacity." 

"Here's the thing," I continue.  "I can sit on the couch in my L.A. Spanish stucco house -- built in 1928, at the very beginning of electricity and motorized mobility -- with my Dell computer on my lap, looking up occasionally at the vase of spring flowers on my coffee table, the bird of paradise just beyond my curtained window and the palm trees in the neighbors' yard across the street while I browse the Library of Congress for an article on the history of Islam." 

"And if books with covers become artifacts like 78-rpm records?  I'll have my artifacts here, in the bookcase behind me and on shelves in my office.  Perhaps we'll have public newspaper like we now have public television and radio, for the old folks among us.  No need to worry about someone acquiring monopoly control over the news.  The bloggers will continue to newscast and the ordinary citizen to upload to YouTube scenes of the local police tazering citizens.  And we won't have to cut down any more trees to make the paper on which to hold the words."

Does it get any better than that?

The point of this post?   I am once again burying the lede is favor of the aimless morning ramble before I jump back in to my real work -- the work they pay me to do. 

The point of this post is to ask you to go RIGHT NOW over to wikipedia's entry on mediation and make it better as suggested by John Helie in There Goes That Internet Thingy Again! in mediate.com this month.

Thanks John!

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I always wanted to have my own literary journal and, thanks to the internet, I have one --  the r.kv.r.y. quarterly literary journal -- where this poem -- Space Time is Curved -- resides.  For wikipedia's entry on Spacetime, click here.

Most of the poets and writers I publish are strangers to me.  They find the journal primarily through Poets & Writers Magazine, which has an inexpensive classified ad section.  Or they know other people who already published in r.kv.r.y.  Having the journal allows me to publish the work of my friends, all of whom are better poets than I.  Joe Mockus and Richard Wirick, for instance, whose work I've recently mentioned and who only happen to both be attorneys.  

The best thing about writing poetry, for an amateur like me, is that it slows the world down.  It makes me look more carefully.  It sends me to the bookstore to purchase Audubon Guides to the trees, flowers and birds I've never learned by name.  Curlew, whimbrel, nuthatch, and, yes, even booby, brown and blue-footed (sula leucogaster and nebouxii)  for those times when your poem needs a little whimsey.   Sycamore, hawthorne and laurelcherry trees.  Valerian, elder, thistle and honeysuckle.  It recalls the time when people had the time to notice and name the world around them.

As Shakespeare famously wrote:  a poet gives to airy nothings a local habitation and a name.

The second best thing about writing poetry in mid-life is reading it again.  Kinnell and Creeley.  Berrigan, Bishop and Bukowski.  Wright and Collins and Neruda.  Dickinson, cummings, Levertov and Auden.  Merwin, Sexton and Graham.  You could live your entire life inside the poems of just this handful of great  20th Century poets.  

r.kv.r.y. has a "favorite poets" page and we invite you to send us yours.  

This is a lazy Saturday post, waiting for my husband to arrive home from New York City.  And before the cleaning and shopping for Monday's Seder begins.  

I hope you're having a pleasant weekend too.

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(video by JWTNY whose other work can be seen here).

The business of lawyers is words.  Their precise meaning. How they function, alone and together. Sometimes a comma makes all the difference between winning and losing a case. Once, for a few tens of millions of dollars, one of my partners asked the Court of Appeal to rule that the word "sudden" meant "quick," not "gradual."  (case mentioned here)

No kidding.

And everyone was worried about the outcome.

So the law is a poet's profession.  Or, poets gravitate toward the law because, unlike poets, lawyers get paid to write.

The poets among us are so common that we have our own web site -- Strangers to Us All:  Contemporary Lawyer Poets -- constructed by Law Professor James R. Elkins at West Virginia University. 

Some of my friends are listed there -- Rick Wirick -- an insurance coverage attorney with the firm of Fainsbert Mase & Snyder LLP in Los Angeles.  Rick's book of prose poetry -- 100 Siberian Postcards -- will have American debut at Book Soup in West Hollywood in late April of this year (you can listen to Rick read some of these here).     

My old college friend Joe Mockus is also on Professor Elkins web site.  Joe is a criminal defense attorney in Oakland (Garcia, Schnayerson & Mockus) whose firm once represented Jello Biafra of the Dead Kennedys in a Free Speech case (listen to Biafra chat with prosecutor Guardino on an episode of This American Life here).  Joe's one of the best poets I know.  But he doesn't send his work out and I have to beg him for it so I can publish him in the literary journal I edit, the r.kv.r.y. quarterly.  You can find Joe's poems here and here. 

I am more indebted to poetry than I could ever tell you unless we were chatting over a latte and I was talking too much.

Enjoy the Billy Collins.  The poetry alone is wonderful -- touching.  The videos are amazing.  Thank you YouTube for putting the means of distribution into the hands of the artists. 

I cannot resist also giving you The Best Cigarette Poem Video.  Hypnotic. 

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An occasional sublime moment in the midst of our working days.

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It's Friday.  Time to chill out a little and take ourselves just ever so slightly less seriously.

Here, for your viewing enjoyment, a parody of Employment Conflict Resolution from the hilarious televsion series "The Office." 

Sadly, the video is no longer available on YouTube. 

See Death and Taxes Blog for the written transcript here.

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Thanks to Concurring Opinions for the day's only hilarity -- talking urinal cakes.  Unfortunately, the Concurring Opinions link to the Pioneer Press audio is broken. So here's the audio from the same program in New Mexico -- same cakes across the United Stakes, uh, States.      

OK, now I'm going to have to add a "humor" category to this blog.

Quote below from the Pioneer Press article referenced by Concurring Opinions. 

Guys who use urinals in some bars on St. Patrick's Day might get a special message about drunken driving.

The Minnesota Department of Public Safety is deploying "talking urinal cakes" in about 100 bars to encourage people not to drink and drive. In St. Paul, patrons may find them at The Liffey and Patrick McGovern's Pub on West Seventh Street.

The cakes, activated by a motion-sensor, offer a message with a woman's sultry voice saying, "Hey there, big guy, having a few drinks?"

The message is targeted toward primary DWI offenders: young men, according to the Department of Public Safety.

Each year in Minnesota, alcohol-related crashes account for around 200 traffic deaths. Last year, about 42,000 motorists were arrested for DWI, a record high.

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Network (above) skewers network televsion as it existed in 1976 and, more importantly, predicted a future media dystopia as close to hand as your remote control.     

In this scene, the President of the fictional UBS Network attempts to "convert" the network's insane news anchor to the theology of the global marketplace.  It's one of the most prescient and hilarious commentaries on money, power and global politics ever written.

Norman Lear has said of Network:  This is not a satire; it's a documentary.  

Rent it, buy it, watch it. 

You will find in Network the first imaginings of reality television in a country that was then celebrating the 200th Anniversary of the American Revolution and which had, only the year before, painfully extracted the last of its troops from Viet Nam.  Saturday Night Live was breaking network taboos in its first year on the air ('75-'76) and the Twin Towers had been standing sentinel over the foot of Manhattan for only three years.  

The following year -- 1977 -- I'd watch in amazement from the sidewalk near the New York Supreme Court in Foley Square as a mountain-climber from Queens,  George Willig, climbed the South Tower (2 WTC).   But I digress.

When Network was first released, I was working in the typing pool (IBM Selectric:  5 carbon copies) of a midtown law firm, studying for the LSAT and learning what it was like to be truly poor (rats in the lobby, cockroaches in the kitchen and la Migra pounding on our apartment door at 3 a.m. as  we listened to neighbors escaping through the building's otherwise unsued dumb-waiter system).  

When my husband and I had arrived in New York City the year before, it had been teetering on the edge of bankruptcy and its pleas for help from the federal government had been famously rebuffed, prompting the notorious New York Daily News headline: "Ford to City: Drop Dead."  

New York City thirty years ago.  New Orleans today.  Plus ça change, plus c'est la même chose.

Paddy Chayefsky's prophetic vision grows more eerily accurate with each passing year.  In 2006, this script was voted one of the top ten movie scripts of all-time by the Writer's Guild of America.

This posting has nothing whatsoever to do with mediation, negotiation, lawsuits, business or legal practice except that it is about power, the wielding of power and the illusion of power.

It's a Sunday digression.  

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Just the other day we were talking about tit for tat violence in Romeo and Juliet.  Today, USNews.com in Friends, Family and Foes, in Iraq, Sunnis and Shiites Fight, But Sometimes They Marry, brings us a Shiite-Sunni wedding worthy of Friar Tuck's imaginings when he married the star-crossed lovers. 

 "In one respect I'll thy assistant be," he says of the upcoming secret nuptials, "for this alliance may so happy prove, to turn your households rancour to pure love." (Act 2, Scene 3). 

It's hard not to have one's hope slightly buoyed by this symbolic gesture.

"The bride," USNews.com reports,

is a university student from a storied Sunni tribe, the groom a technician at an Iraqi cellphone company and the son of a prominent Shiite tribal leader. It could almost be a Baghdad version of Romeo and Juliet but with a twist--the marriage was arranged by their parents, in part as a willful symbol of defiance against the sectarian violence that has riven Iraq.

The unlikely nuptials might appear to be a doomed gesture in a place where tension between Sunnis and Shiites seems to keep escalating with random killings and tit-for-tat retaliations. Shiite families have been chased out of suddenly unfriendly Sunni neighborhoods, and vice versa. The sectarian strife has been aggravated by growing confusion over the loyalty of Iraq's Shiite-dominated security forces and a months-long delay in forming a new government.

But the wedding also serves as a reminder of the complexity of the Iraqi mosaic, where Sunnis and Shiites have long been deeply interwoven. Not long ago, a Sunni-Shiite wedding would have been unremarkable. But in today's Baghdad, it is a brave and fraught venture. For these two families, it also means wrestling with the uncertain future of their troubled nation--and placing what amounts to a high-stakes bet that, in part because of events like this one, Iraq will not descend into a full-fledged civil war.

For the full account, click on the title of the article above.

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Baz Luhrmann's hallucinatory Romeo and Juliet, the ultimate Shakesperean lesson in the dangers of fiercely playing Tit for Tat.   

The Americans are fond of explaining almost all the actions of their lives by the principle of self-interest rightly understood. In this respect I think they frequently fail to do themselves justice. -- Alexis de Tocqueville

We've mentioned these principles before:

• negotiators will reflexively play the childhood game of tit for tat (you cooperate, I cooperate; you defect, I punish; you cooperate, I cooperate again) because, as the game theorists tell us, we evolved as a human society as a result;
• negotiators are also inequality averse, just like the capuchin monkeys who act against their own apparent self-interest by refusing to work when one of their fellows begins making five times the salary for the same amount of work.  

Herbert Gintis, an Emeritus Professor of Economics at the University of Massachusetts, discusses these issues in Game Theory and Human Behavior.  

The point of the following excerpts from Professor Gintis' research is this -- what negotiators tend to call irrational bargaining behavior  -- not accepting an objectively  "good deal" -- is not necessarily irrational or "overly emotional."  It is simply driven by considerations that hard numbers do not explain.

Gintis explains: 

The inequality-averse individual is willing to reduce his own payoff to increase the degree of equality in the group (whence widespread support for charity and social welfare programs). But he is especially displeased when placed on the losing side of an unequal relationship.

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From the Law and Humanities Blog, we learn that Reading Literature Gives You More Empathy

(click on the image left for the Law and Humanities Institute, sponsor of the Blog)

How could this not be true?  At ten, I was reduced to sobs by the fate of a sled dog in Call of the Wild; longed to eat peppermints on a Brooklyn fire escape near the tree growing there; watched Atlanta burn with reddened eyes by flashlight while my sister slept peacefully in the next bed; and, came of age in sunny suburban San Diego reading Anne Frank's desperate hopes for a new life in her family's hiding place.    

Now the British Psychological Society tells us what every Lit Major has always known, "the more fiction a person reads, the more empathy they have."  Not only that, but

the better they perform on tests of social understanding and awareness. By contrast, reading more non-fiction, fact-based books shows the opposite association. That’s according to Raymond Mar and colleagues who say their finding could have implications for educating children and adults about understanding others.

Finding out how much people read is always difficult because it’s socially desirable for people to report that they read a lot. Mar and colleagues avoided this by asking 94 participants to identify the names of fiction and non-fiction authors embedded in a long list of names that also included non-authors. Prior research has shown this test correlates well with how much people actually read. Among the authors listed were Matt Ridley, Naomi Wolf (non-fiction), Toni Morrison and PD James (fiction).

The more authors of fiction that a participant recognised, the higher they tended to score on measures of social awareness and tests of empathy – for example being able to recognise a person’s emotions from a picture showing their eyes only, or being able to take another person’s perspective. Recognising more non-fiction authors showed the opposite association.

For the complete post and links to the source material, click here.  Who said we'd never put those endless hours of dreamy, solitary reading to good use?

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The Social Web - A World of Possibilities from the public relations/public affairs firm Tunnheim Partners provides the statistics for all the jabbering we do here about matriculating your law or ADR practice into the Web 2.0 University.  Excerpts below:

In a year when YouTube won Time magazine’s invention of the year and corporate CEOs were quick to create their own avatar – a virtual personalized identity – 2006 proved that “new media” now includes much more than blogs. The always-changing media landscape has forced public relations professionals to constantly re-examine the term “new media” and continuously find its hidden opportunities.

Gone are the days where a company could merely post information on a static corporate Web page and expect customers to find it. A survey by Ketchum and the University of Southern California’s Annenberg Strategic Public Relations Center found that nearly half of all industry professionals use their corporate Web site to post important company news and announcements, but only 6.8 percent of all customers will go to the Web site to find it. Today’s more socially minded Web user will look to more interactive online locations to influence their beliefs about a company, product or concept – including the virtual world.

Read the rest of the article and check out more Tunnheim advice here.

And if you don't know what Web 2.0 is, check out the O'Reilly Explanation which includes the following comparisons between Web's 1 and 2.

And no, we here at the Negotiation Law Blog don't know what half of these things mean.  The point is only that we're learning and we invite everyone else along for the ride.

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THESE BOOTS ARE MADE FOR BLOGGING

We had a great writing seminar with the brilliant and energetic Lisa Klerman of U.S.C. Law School, SCMA President Jan Frankel Schau of Valley Mediation Services and the tireless Phyllis Pollack, Chair of SCMA's Practice Development Committee, at the Los Angeles County Bar Association last night.

All participants walked out of the seminar with a writing/blogging marketing plan and some of the groups exchanged business cards, agreeing to act as "marketing buddies" to achieve the goals set at last night's session.

The Basics to Set Up Your Blog

Several attendees asked me to provide the links to blogging resources that I mentioned last night so here they are:

Google's Blogger -- where you can set up a blog free in about half an hour no matter how technologically over-50 you are.  There are other resources, like typepad, but I have no experience with them.

For broader instruction, Diane Levin at the On-Line Guide to Mediation and Tammy Lenski at Mediator Tech teach a four part blogging seminar that I attended just last month and which I highly recommend. 

Feedblitz syndicates your blog, i.e., permits you to put an email subscription box in your blog's sidebar and allows your subscribers to choose a direct "feed."  I have no idea how the RSS ("really simple syndication") feed works, but I use it myself and it's easy to set up at Feedblitz.   

I am indebted to Diane Levin for turning me on to MorgueFile, where you can get free images courtesy of a benevolent conspiracy of photographers who offer their stunning photographs free of charge.  Before Diane turned me on the this source, I used (and still use) istockphoto.com where most images cost a dollar.  Flickr also provides free images.

Google Alerts will send you articles and blog posts on any topic you choose.  Just put in a key term like "mediation," "negotiation," "insurance coverage," "family law," "health care industry," "community mediation," "restorative justice," "social psychology," etc. and google will deliver the web results to your email box.  (See also Google Tracking for Client Awareness at Netlaw Blog -- remember, your clients are Just Not That Into You; they are, however, into themselves).

Have I said "God bless google" recently?  God bless google, particularly for constructing a library of every book ever written still in existence today at books.google.com.  The New Yorker article on this dizzyingly audacious endeavor, Google's Moon Shoot, is here.

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I've been reading a lot about creativity lately because it is central to my practice as a mediator and central to the business opportunities of my commercial clients.  As Colin Powell says when speaking to business people, "to negotiate a deal, you need to be inside the other guy's decision cycle." 

Understanding the creative process in business is one of the ways I try to stay in my clients' "decision cycles." 

So why Juggling in a Cone? 

Two reasons.

HOPE AND CREATIVE SELF-EXPRESSION

First, it gives me hope for humankind.  That we follow the creative call and then spend hundreds (THOUSANDS?) of hours perfecting our heart's desire without realistic chance of material gain  makes me believe we WILL find solutions to global warming, tribal and border warfare, poverty and disease.  I can't help myself.  Juggling in a Cone makes me marvel, makes me laugh, lights up my world.

Second, Juggling in a Cone is all about exploring creativity with severe constraints.  There's not a lot of room in that cylinder.  Given its limitations, what might a juggler do?  Hit the play button and see if you're as enchanted as I am. 

TURNING LIMITATIONS INTO SOLUTIONS

In Turning Limitations into Solutions (the February online issue of Business Week) Marissa Ann Mayer, vice-president for search products and user experience at Google, says

Creativity is often misunderstood. People often think of it in terms of artistic work -- unbridled, unguided effort that leads to beautiful effect. If you look deeper, however, you'll find that some of the most inspiring art forms -- haikus, sonatas, religious paintings -- are fraught with constraints. They're beautiful because creativity triumphed over the rules. Constraints shape and focus problems, and provide clear challenges to overcome as well as inspiration. Creativity, in fact, thrives best when constrained.

Yet constraints must be balanced with a healthy disregard for the impossible. Disregarding the bounds of what we know or what we accept gives rise to ideas that are nonobvious, unconventional, or simply unexplored. The creativity realized in this balance between constraint and disregard for the impossible are fueled by passion and result in revolutionary change.

Having recently been turned on to cartoonist and copyrighter Hugh McLeod's Gaping Void comics (care of Geoff Sharp's eagle eye) I find that artists have been hip to the creativity-constraint principle for some time.  In McLeod's case, the constraint is the size of a business card.

In mediation practice -- the practice building part -- the constraint is generally expressed as a series of reasons one can't make a living at it -- the pro bono panel distorts the market, I'm not a judge, I'm too young, I did transacitonal work, I came to the market too late, there are too many mediators in Los Angeles, the commercial panels have the market all tied up, etc., etc., etc.

If we use these constraints rather than complain about them, we might find ourselves, well, juggling in a cone.

For excellent advice from an artist about pursuing your heart's desire, go to the extended entry, Advice on Being Creative .  I took the time to read this in full yesterday -  a highly worthwhile time commitment.  I recommend it to anyone searching for a solution to the intractable problem of "what are we to do with our one and only lives?" 

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