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I do not recall the day on which I learned I spoke with an "American" or "West Coast" accent but I remember it coming as a surprise to me.  As Cristof, the director of The Truman Show says of his "creation," the happily oblivious Truman Burbank,  “We accept the reality of the world with which we are presented.”

The fact that people are still questioning whether a woman, an African American, a Latina or (gasp:  clearly for a more equitable society) a gay, bi-, Lesbian or transsexual, jurist will be "biased" by his or her unique perspective is dispiriting to say the least.  As many people in high (the New York Times, CNN) and low (twitter) places have rightly pointed out, no one asks whether a white man will bring his prejudices to the Bench.  Why?  Because white men "have no accent."  The dominant culture does not think of itself in terms of race (it doesn't have to) and the people with power (still primarily white men) do not need to ask themselves thorny questions about their attitudes toward their own race and gender. 

Here's an example from the New York Times:  Speeches Show Judge's Steady Focus on Diversity, Struggle

WASHINGTON — In speech after speech over the years, Judge Sonia Sotomayor has returned to the themes of diversity, struggle, heritage and alienation that have both powered and complicated her nomination to the Supreme Court.

She has lamented the dearth of Hispanics on the federal bench. She has exhorted young people to value immigration. She has mulled over the “deeply confused image” America has of its own racial identity. And she has used on more than one occasion a version of the “wise Latina” line that she has spent much of this week trying to explain.

Today is my father's birthday.  It is also the one-year anniversary of his death, so I'll ask you to forgive my stream of consciousness post.  I promise to tie it up in a bow by post's end. 

Dad -- a dust bowl refugee -- a lawyer at 42 and Bench officer by 52, used to say that there "should be dumb politicians, to represent the dumb people."  He was exaggerating, of course, to make the point that a representative government should represent all of the people and not just the privileged majority. 

Was Dad's life-view affected by his humble origins, his "struggle" to overcome his lack of a completed high school education and a culture of poverty, as well as the burdens of his gender in mid-Century America (burdens which assumed only men were obliged to work to support their families)?  You bet it was. 

Did anyone ask whether Dad was going to bring a white, male, depression-era, bias to the Bench?  No.  Did he?  Yes of course he did.  Still, Dad leaned as far away from his mid-20th Century white male privilege as he could, drafting "marital" agreements for gay clients from the late '60s until he went on the Bench; voting against his economic self-interest in every Presidential election (proudly asserting that he paid more in federal income tax than he used to make annually) and supporting all civil rights movements -- African-American, Chicano (the term of that day), women and gays. 

Dad was a good guy aware of his biases and willing to push against them.  It is not, however, possible for any of us to be without bias as this article in the Cornell Law Review -- Blinking on the Bench: How Judges Decide Case -- demonstrates. 

Below:  me and Dad, may he rest in peace.  9 June 1924 to 9 June 2008

I've had this article in my files for some time because it's about anchoring -- the principle that negotiators will be influenced by any number that enters the negotiation environment, no matter how random.  Below is an excerpt from "Blinking" demonstrating the power of anchoring on judicial decisions.  Note the repeated use of the word "intuitive" - a word usually associated with women but not only a woman's talent or trait. (All emphases supplied)

The first example of intuitive judicial decision making arises from studies of a phenomenon that psychologists call ―anchoring.  When making numeric estimates, people commonly rely on the initial value available to them.100 This initial value provides a starting point that ―anchors the subsequent estimation process.  People generally adjust away from the anchor, but typically fail to adjust sufficiently, thereby giving the anchor greater influence on the final estimate than it should have.In short, ―the number that starts the generation of a judgment exerts a stronger impact than do subsequent pieces of numeric information.

We have found that anchors trigger intuitive judicial decision making. In one study, we demonstrated that a demand made at a prehearing settlement conference [$10 million] anchored judges‘ assessments of the appropriate amount of damages to award. . . . The $10 million anchor influenced the judges. Judges in the control group awarded a mean amount of $808,000 and a median amount of $700,000, while judges in the anchor group awarded a much larger mean of $2,210,000 and median of $1 million.107 Table 5 shows the impact the anchor had on their judgment.

In another study, we tested whether a motion to dismiss would also affect judges‘ damage awards. We presented participating judges with a similar fact pattern and asked judges in the control group, ―[H]ow much would you award the plaintiff in compensatory damages? We gave the judges in the anchor group the same background information, but also told them that ―[t]he defendant has moved for dismissal of the case, arguing that it does not meet the jurisdictional minimum for a diversity case of $75,000.‖ We asked these judges to rule on the motion, and then asked them, ―If you deny the motion, how much would you award the plaintiff in compensatory damages?

Because the plaintiff clearly had incurred damages greater than $75,000, we viewed the motion as meritless, as did all but two of the judges.Nonetheless, the $75,000 jurisdictional minimum served as an anchor and resulted in lower damage awards from those judges exposed to it. The judges who had not ruled on the motion awarded the plaintiff an average of $1,249,000 (and a median of $1 million), while those judges who ruled on the motion to dismiss awarded the plaintiff an average of $882,000 (and a median of $882,000).112 Thus, the $75,000 jurisdictional minimum anchored the judges‘ assessments, as they awarded roughly $350,000 (or nearly 30%) less on average.

Both anchoring studies suggest that the anchors had a powerful influence on judgment. This was true both when the anchor bore essentially no relation to the magnitude of the claim and when the judges knew full well that they were supposed to ignore the anchor. In both cases, the anchor triggered intuitive, automatic processing that the judges were unable to override.

This is what we litigators and trial attorneys do for a living.  We try to "anchor" judges.  We "spin" the facts and expand the outer reaches of the law in the way that helps our clients.  We read judicial profiles to know as much about a Judge:  his or her background; politics; charities; family life and prior decisions as possible so that we can  'speak his/her language./**  No one knows better than litigators and trial lawyers how important an individual judge's background, ethnicity, political affiliations and the like are.

When I was litigating a 9-figure environmental coverage action, I routinely brought color-coded coverage charts that represented my point of view to every oral argument.  Opposing counsel always griped and the Judge always overruled his objections because my charts made the complex and sophisticated coverage analysis easier to understand (from my point of view).  What perplexed me was opposing counsel's failure to ever do the same.  The Judge ruled in my favor on every major issue before her and I guarantee you it wasn't because I was "right."

(below, a sample coverage chart)

Meta-Anchoring

As you can see from the coverage chart example, it's not just numbers entering the negotiation environment that influence decision-makers, it's also the way in which the information pertinent to the case is characterized.  I don't need to tell lawyers this, all of whom were weaned on this proposition:  if you don't have the facts, argue and law and if you don't have the law argue the facts.

In Lax & Sebenius' brilliant 3-D Negotiation, they recommend "meta-anchoring" your preferred negotiation resolution as follows:

To meta-anchor effectively, look creatively at various ways to characterize the negotiation problem.  some characterizations have clear implications for the appropriate kind of resolution, or at least the most appropriate prcess and personnel needed to get there.  For example, framing a negotiation as "a routine extension of an existing deal" may receive far less scrutiny than approaching it as a "new contract," even when the substantive issues are identical.

The authors go on to describe a negotiation in which a small company seeking to be acquired by a larger one "identified two likely competing meta-anchors."

The first viewed the transaction as the purchase of R&DCo on a stand-alone basis.  the second Viewed the deal as an attempt to create synergy by combining R&DCo's technological expertise with Acquirer's sales, maketing and distribution; by using R&D's technologies in other markets; and by using the buyer's greater size to win new sales for R&DCo.  In this way, it would be possible to divide that synergy between the two companies.

The approach adopted was as follows:

"Almost monthly, we turn down an approach from potential acquirers who want to value us on a stand-alone basis.  We're interested in talking to you because of the significant poential synergy between our two companies.  If you want to discuss how we value and divide the joint gains from combining our companies, we're very interested in talking with you.  However, if you only want to consider our stand-alone financials, you'll be wasting our valuable time as well as ours.  Do you think it makes sense to proceed?

The small company re-defined its value as it's future value merged with the Acquirer rather than its present unmerged value.  Then the small company suggested that the expanded value be divided equally because that value was due to both company's contributions in equal measure.  That's "meta-anchoring" at its best.

So back we come to Sotomayor and her nomination to the Supreme Court Bench.  Will she bring a viewpoint heretofore unrepresented there?  Yes she will.  Does that give her an unfair advantage over all the highly qualified white men who might have been nominated in her place?  I suppose it might but our job in populating the Supreme Court bench is not to find the numerically "best" person for the job (highest LSAT score; first in class; editor of law review; most charitable; most acceptable disposition) but the best person to round out the current bench so that it is somewhat representative of the people that it serves.

Dad would have supported Sotomayor and on his birthday I'd like to thank him again for instilling in me the values that make me a supporter too.

_____________________

**/  I heard Constitutional Law scholar and Dean of the new U.C. Irvine School of Law Erwin Chemerinsky speak at the annual Constitutional Rights Foundation dinner recently.  Rightly calling today's Supreme Court the "Kennedy Court," he admitted to pandering, saying "I'd put a photograph of Kennedy on my Petitions for Cert if I could."

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Here's a copy of the Judgment Confirming Final Arbitration Award.

Comment later.  In the meantime, Money Money Money from Cabaret.

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If you learn this single trick, Scout, you'll get along a lot better with all kinds of folks. You never really understand a person... until you consider things from his point of view.

Sir?

Until you climb inside of his skin and walk around in it.

To Kill a Mockingbird (from the screenplay)

 Best summary of the 140 page majority opinion (.pdf of opinion here) in Reading the Decision at the Daily Dish by Andrew Sullivan.  This opinion eviscerates and then upholds Proposition 8 as constitutionally inoffensive. 

John Culhane parses the prop 8 ruling:

The majority went on for almost 140 pages. In brief, their points — which I’ll next explore in somewhat greater depth — are these: (1) The California Constitution is easy to amend, and that’s not something we can change: (2) The deprivation of rights isn’t that big a deal, really, because all that’s been removed by Prop 8 is the word “marriage” rather than the rights that go with it; (3) Based on precedent and constitutional history, Prop 8 is a permissible amendment to the state’s constitution — not a more substantial revision, which would require prior submission to the legislatures (and a 2/3 approval) before going to the voters; (4) There’s no separation of powers problem here: Everyone’s doing their constitutional job; and (5) The Attorney General’s “novel” argument that certain rights are “inalienable” and therefore immune from the vagaries of majority rule, has no traction.

 

It sounds like a reasonable judgment to me. The job of supporters of equality is now to make the case for real substantive equality - in name as well as form. And to take that argument to the people of California.

The most important questions every negotiator must ask herself in maximizing the opportunity to make a deal that satisfies all parties' interests simultaneously are:  why do you want what you want and how do you think we might satisfy your desires and mine at the same time. 

Of course some demands are non-negotiable.  "Separate but equal" was not an acceptable option for African Americans in the South at the mid-point of the twentieth century and substantive marital rights without the word "marriage" is not an acceptable option for the gay community at the beginning of the 21st.  On the other hand, supporters of Prop 8 waged a misleading campaign suggesting that in the absence of Prop 8 the State would interfere with religious activities by requiring churches to sanctify marriages their religion does not permit.  The LDS and other churches' freedom to exercise their own religious practices free from interference by the state and gays' rights to civil marital rights (the only type of rights a secular society is permitted to grant) can be simultaneously satisfied.  And yet we raise money to fight on.

To reiterate:  yesterday's California Supreme Court opinion upheld Proposition 8 only to the extent that it bars the use of the term "marriage."  Because the Court held that Proposition 8 could not bar our gay and Lesbian citizens from any substantive marital right given to our heterosexual citizens, there is a not-yet-celebrated victory on one side and a not-yet-experienced defeat on the other.

And so, the messy business of democracy in a country guaranteeing liberty moves one step forward and one step back in a dance that wouldn't be nearly so rich in the absence of gay contributions to American culture.

See also this analysis from The Complex Litigator Blog ("everyone will be unhappy with the opinion").

The Existing Differences in California's Domestic Partnership Laws and Marital Rights Which Differences Should Now Be Considered Unconstitutional (I do not vouch for the accuracy of this analysis; I am not an expert in family law):

While domestic partners receive most of the benefits of marriage, several differences remain. These differences include, in part:

• Couples seeking domestic partnership must already share a residence, married couples may be married without living together.

• Couples seeking domestic partnership must be 18 or older, minors can be married before the age of 18 with the consent of their parents.

• California permits married couples the option of confidential marriage, there is no equivalent institution for domestic partnerships. In confidential marriages, no witnesses are required and the marriage license is not a matter of public record.

• Married partners of state employees are eligible for the CalPERS long-term care insurance plan, domestic partners are not.

• There is, at least according to one appellate ruling, no equivalent of the Putative Spouse Doctrine for domestic partnerships. ^[3]

In addition to these differences specific to state law, should the Defense of Marriage Act be found unconstitutional or repealed, married persons in California might enjoy all the federal benefits of marriage, including Constitutionally-required recognition of their relationships as marriages in the rest of the United States under the Full Faith and Credit Clause.

See also the Constitutional Law Prof blog comment on the Prop 8 opinion, particularly notingthe dissent of Justice Carlos Moreno

"based on his interpretation of California's equal protection clause, which is not only distinct from the Fourteenth Amendment, but also

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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.

Read on here.

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

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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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If you're worried about your law job becoming -- as they say in Britain - "redundant" or if you've already been laid off due to the recession, join Lawyer Connection which was born today as the result of a twitter conversation I had with Gwynne Monahan (who you can follow @econwriter).

Here's an exploration of what a mutual aid group is from the viewpoint of a social worker -- which speaks to me because I lived through my first husband's MSW in Social Work studies before he lived through my Law School experience (an eventual relationship-killer). 

Visit Lawyer Connection

From Andrew Cicchetti's Mutual Aid Based Group Work blog:

Mutual aid as group work technology can be understood as an exchange of help wherein the group member is both the provider as well as the recipient of help in service of achieving common group and individual goals (Borkman, 1999; Gitterman, 2006; Lieberman, 1983; Northen & Kurland, 2001; Schwartz, 1961; Shulman, 2006, Steinberg, 2004; Toseland & Siporin, 1986). The rationale for cultivating mutual aid in the group encounter is premised on mutual aid's resonance with humanistic values (Glassman, 2002) and the following propositions: 1) members have strengths, opinions, perspectives, information, and experiences that can be drawn upon to help others in the group; 2) helping others helps the helper, a concept known as the helper-therapy principle (Reissman, 1965) which has been empirically validated (Roberts et al, 1999); and 3) some types of help, such as confrontation, are better received when emanating from a peer rather than the worker (Shulman, 2006). Mutual aid transactions that occur amongst and between members stimulate cognitive and behavioral processes and yield therapeutic, supportive and empowering benefits for the members (Breton, 1990;Northen & Kurland, 2001; Shulman, 1986, 2006).

Obviously, we're not pursuing the therapeutic benefits of a mutual aid society as social worker Cicchetti is.  Having been a member of such a group (a community-based women's credit union in the early 1970's for instance) I can say that the experience is not only economically, but also personally, enriching.

Let's not wait for the economy to improve.  Let's start improving it TODAY.  We are the change we want to see in the world. 

JOIN US!!

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Here's part I of the Obama Notre Dame Speech YouTube Video (sorry about the intro footage).

There's a skip here (don't know how much of the speech is lost between video #1 and video #2)

OBAMA: Thank you, Father Jenkins for that generous introduction. You are doing an outstanding job as president of this fine institution, and your continued and courageous commitment to honest, thoughtful dialogue is an inspiration to us all. Good afternoon Father Hesburgh, Notre Dame trustees, faculty, family, friends, and the class of 2009. I am honored to be here today, and grateful to all of you for allowing me to be part of your graduation.

I want to thank you for this honorary degree. I know it has not been without controversy. I don’t know if you’re aware of this, but these honorary degrees are apparently pretty hard to come by. So far I’m only 1 for 2 as President. Father Hesburgh is 150 for 150. I guess that’s better. Father Ted, after the ceremony, maybe you can give me some pointers on how to boost my average.

I also want to congratulate the class of 2009 for all your accomplishments. And since this is Notre Dame, I mean both in the classroom and in the competitive arena. We all know about this university’s proud and storied football team, but I also hear that Notre Dame holds the largest outdoor 5-on-5 basketball tournament in the world - Bookstore Basketball.

Now this excites me. I want to congratulate the winners of this year’s tournament, a team by the name of “Hallelujah Holla Back.” Well done. Though I have to say, I am personally disappointed that the “Barack O’Ballers” didn’t pull it out. Next year, if you need a 6’2” forward with a decent jumper, you know where I live.

Every one of you should be proud of what you have achieved at this institution. One hundred and sixty three classes of Notre Dame graduates have sat where you are today. Some were here during years that simply rolled into the next without much notice or fanfare - periods of relative peace and prosperity that required little by way of sacrifice or struggle.

You, however, are not getting off that easy. Your class has come of age at a moment of great consequence for our nation and the world - a rare inflection point in history where the size and scope of the challenges before us require that we remake our world to renew its promise; that we align our deepest values and commitments to the demands of a new age. It is a privilege and a responsibility afforded to few generations - and a task that you are now called to fulfill.

This is the generation that must find a path back to prosperity and decide how we respond to a global economy that left millions behind even before this crisis hit - an economy where greed and short- term thinking were too often rewarded at the expense of fairness, and diligence, and an honest day’s work.

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Among the most frequently asked questions at my negotiation trainings are these:

1. how do you negotiate with a sociopath?
2. how do you negotiate with people who are:
   
   1. evil
   2. dishonest; or
   3. 100% irremediable jerks
3. how do you negotiate when you are powerless (or simply weak)

Whenever someone asks me about negotiating evil, I think of Ken Cloke's brilliant book Conflict Revolution: Mediating Evil, War, Injustice and Terrorism – How Mediators Can Help Save the Planet (my review of that book here).  Some time ago, when I had the bright but failed idea of launching an online conflict resolution journal, Ken kindly let me publish his article Mediating Evil, War and Terrorism the Politics of Conflict, some of which I quote below.  I like the way Ken framed the problem in his earlier book, Mediating Dangerously, as follows:

For those who live under fascism, oppression, or tyranny, or face a fierce, unprincipled adversary, or are afraid even to exercise their own freedom, it may become necessary to engage in conflict, resist oppression, reject settlement, and raise their voices against the silence of acquiescence . . . . [T]here are limits to the desirability of ending [certain conflicts] prematurely, without a fair and honest examination of the underlying issues, and without the full participation of people whose lives will be irrevocably damaged by them . . . Collaboration implies mutuality and partnership, and even compromise involves give and take, but fascism merely [takes] giving nothing in return.

Those who recall the free speech movement on college campuses in the mid-sixties (most notably at U.C. Berkeley) will remember at least some of the words spoken by FSM leader Mario Savio:

There comes a time when the operation of the machine becomes so odious, makes you so sick at heart, that you can't take part, you can't even passively take part, and you've got to put your bodies upon the gears and upon the wheels, upon all the apparatus, and you've got to make it stop. And you've got to indicate to the people who run it, the people who own it, that unless you're free the machine will be prevented from working at all.

One might criticize this rhetoric as being a bit overblown for the context in which the students were operating but they were young; had been taught in public schools to believe in and cherish freedom; and, were stunned to find that their on-campus speech was regulated, controlled, and, punished.  Savio's voice is the voice of all peoples who find their freedom suppressed or denied altogether.

So what do we, mediators and interest-based negotiators, do when confronted with tyranny?  Cloke's partial response (see full article here) is as follows:

Genuine, lasting peace is impossible in the absence of justice. Where injustice prevails, peace becomes merely a way of masking and compounding prior crimes, impeding necessary changes, and rationalizing injustices. As the Trappist monk Thomas Merton presciently observed:

  To some men peace merely means the liberty to exploit other people without fear of retaliation or interference. To others peace means the freedom to rob others without interruption. To still others it means the leisure to devour the goods of the earth without being compelled to interrupt their pleasures to feed those whom their greed is starving. And to practically everybody peace simply means the absence of any physical violence that might cast a shadow over lives devoted to the satisfaction of their animal appetites for comfort and leisure.... [T]heir idea of peace was only another form of war.

When millions lack the essentials of life, peace becomes a sanction for continued suffering, and compromise a front for capitulation, passivity, and acceptance of injustice. This led anthropologist Laura Nader to criticize mediation for its willingness to “trade justice for harmony.”

True peace requires justice and a dedication to satisfying basic human needs, otherwise it is merely the self-interest of the satisfied, the ruling clique, the oppressors, the victors in search of further spoils.

For peace to be achieved in the Middle East or elsewhere, it is essential that we neither trivialize conflict nor become stuck in the language of good and evil, but work collaboratively and compassionately to redress the underlying injustices and pain each side caused the other. Ultimately, this means sharing power and resources, advantages and disadvantages, successes and failures, and satisfying everyone’s legitimate interests. It means collaborating and making decisions together. It means giving up being right and assuming others are wrong. It means taking the time to work through our differences, and making our opponents' interests our own.

In helping to make these shifts and move from Apartheid to integration, the South African Truth and Reconciliation Commission found that for people to reach forgiveness, they needed to exchange personal stories of anger, fear, pain, jealousy, guilt, grief, and shame; to empathize, recognize, and acknowledge each other’s interests; to engage in open, honest dialogue; to reorient themselves to the future; to participate in rituals of collective grief that released their pain and loss; and to mourn those who died because neither side had the wisdom or courage to apologize for their assumptions of evil, or the evil they caused their opponents and themselves.

At the same time, they also needed to improve the daily lives of those who suffered and were treated unjustly under apartheid. Where shanty towns coexist with country clubs, peace cannot be lasting or secure. Where some go hungry while others are well-fed, terror and violence are nourished. In the end, it comes down to a question of sharing wealth and power, realizing that we are all one family, and that an injury to one is genuinely an injury to all.

Making justice an integral part of conflict resolution and the search for peaceful solutions means not merely settling conflicts, but resolving, transforming, and transcending them by turning them into levers of social dialogue and learning, catalysts of community and collaboration, and commitments to political, economic, and social change. By failing to take these additional remedial steps, we make justice secondary to peace, undermine both, guarantee the continuation of our conflicts, and prepare the way for more to come.

By the way, tomorrow is Ken's birthday.  HAPPY BIRTHDAY KEN!!!

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Cheryl Harris, Professor of Critical Race Studies at UCLA Law School talks about color-blindness as the bus we get on to take the journey to a post-racial society. What is the history of post-racial politics in America. What is its present posture and what do we have to learn from our history and our response to the elephant in the room?

The first of a series from the ABA Dispute Resolution Conference in New York City last month.

Professor Harris' bio from the UCLA Law School website below.

Cheryl I. Harris teaches Constitutional Law, Civil Rights, Employment Discrimination and Critical Race Theory. Professor Harris began her teaching career at Chicago-Kent College of Law in 1990, after more than a decade in practice that included criminal appellate and trial work and municipal government representation as a senior attorney for the city of Chicago. As the National Co-Chair for the National Conference of Black Lawyers for several years, she developed expertise in international human rights, particularly concerning South Africa.

Professor Harris was a key organizer of several major conferences both in South Africa and in the United States that helped establish a dialogue between U.S. legal scholars and South African lawyers during the development of South Africa's first democratic constitution in 1994. She is the author of leading works in Critical Race Theory including the highly influential Whiteness as Property (Harv. L. Rev.). Her work has also taken up the relationship among race, gender and property amd most recently has focused on race, equality and the Constitution through the re-examination of Plessy v. Ferguson and Grutter v. Bollinger.

In 2002 Professor Harris received a fellowship from the Mellon Foundation to co-host a semester long interdisciplinary working group and conference series on "Redress in Social Thought, Law and Literature," at the University of California Humanities Research Institute. She is a member of the Advisory Board of the Bunche Center for African-American Studies and is part of the Executive Council of the American Studies Association. Professor Harris is the recipient of the ACLU Foundation of Southern California 2005 Distinguished Professor Award for Civil Rights Education.

Does race and gender play any role in your mediations?  Head's up for an upcoming post on cross-cultural challenges in negotiating resolution to commercial litigation.

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If trust had a hologram for all of its forms -- honor, commitment, credulity, betrayal, reliance, and, confidence (harboring the "con" that playwright David Mamet has made his life's work) - that hologram would surely include images of the American Legal System.  We lawyers, mediators, arbitrators, legislators, and legal educators run on trust, or as much as we can generate, to resolve the disputes that are brought to us for resolution.  Some of us  craft legislation or regulations meant to prevent the calamities that breaches of private and public trust can create.  Because lawyers thrive on the creation, destruction and resurrection of trust, it is fitting that an attorney such as myself  be entrusted, from time to time, with Trust's Carnival.

"You Never Open Your Mouth Until You Know What the Shot Is"

The moment trust collapses -- perfectly dramatized in this clip from Mamet's classic Glengarry Glen Ross -- is played out in far less dramatic terms every day as Jim Connolly explained this week in Trust Me, We're Great! at Jim's Marketing Blog. To retain a customer's trust, says Jim, your product or service must be consistent with your hype. 

The salesmen in Glengarry Glen Ross expect nothing from the world other than that which they can forcibly rip from its grasp.  But there is honor among thieves.  Beneath Pacino's tirade is an implied homage to his fellow salesmen who trust one another to "know what the shot is."  How does such a trust community arise?  Online according to  Hannah Levenson at SWOM (the Society for Word of Mouth) in her lengthy and intriguing post -- The Importance of Social Media in the Marketing World.  As Levenson writes:

Trust is something all consumers want. Loyalty is something all businesses crave. But in today’s marketing world, one cannot exist without the other. “[Citizen marketers] are part of the mesh of a greater swath of fabric that interlocks everything together. The design of mesh ensures the fabric is evenly spaced. With this in mind, it is the open and transparent nature of shared production that enhances and illuminates what companies strive for but often misunderstand: loyalty” (Huba 173). Today two of the biggest problems a company has is obscurity and loyalty. Those companies that achieve trust are the ones that take risks and work hard to humanize themselves. They utilize the “greater swath of fabric” or in other words “social media.” Loyalty is the necessary seed for growth of a company. If small or large companies can utilize, blogs, podcasts, videos, comment boxes or any other type of social media they are setting the foundations for building a strong trusting community.

If you think you need an Italian and a Brit to create cross-cultural trust barriers, think again.  In the world of the con there are "men" who "live on [their] wits," and "company men" like Williamson who don't know "the first rule you'd know if you ever spent a day in your life."  If cultures can so brutally clash in the same country, the same town, and even the same sales room, how much greater attention must be paid to genuinely different cultural understandings in a global marketplace.  To prosper there, you'll want to run right over to  Cindy King's Blog on International Sales Best Practice, where we learn the key to international trust-building -- cross-cultural understanding.

When profanity and shaming don't bring our trusted partners into line, we appeal to a higher authority.  Here, Pacino tells Williamson he's going "downtown" to talk to "Murray."  He's going to have Williamson's job.  After the collapse of Enron, Lehman, and AIG; the imminent demise of the Big Three, and, the death of the fractionated mortgage market, Washington is the new downtown and the FTC the new "Murray."  Trust is sometimes insufficient and laws must be enacted to bring balance back to the marketplace.  And so it will be according to the Performance Marketing Blog which analyzes the Proposed new FTC Guidelines on Online Marketing here.

"You Don't Think Abraham Lincoln Was a Whore Before He Was President? He Had to Tell His Little Stories and Smile His Shit Eating Back Country Grin and He Did It Just So He Would One Day Have the Opportunity to Stand in Front of the Nation and Appeal to the Better Angels of Our Nature." Jack Stanton in Primary Colors

Is corruption the price of leadership?  The fictional Jack Stanton (a thinly disguised Bill Clinton) runs for President in Mike Nichols' tour de force, Primary Colors.  Above, Stanton explains  the necessity of cutting moral corners to achieve greatness.  Dr. Sam Vatkin writing at Global Politician this week might well agree as he teases out the pros and cons of corruption. Does "corruption run against the grain of meritocratic capitalism"?  Does it

skew[] the level playing-field; guarantee[] extra returns where none should have been had; encourage[] the misallocation of economic resources; and subvert[] the proper functioning of institutions.

Or does corruption "help facilitate the flow and exchange of goods and services in hopelessly clogged and dysfunctional systems and markets"?  Can it

"get things done" and "keep people employed"; serve[] as an organizing principle where chaos reins and institutions are in their early formative stages;  supplement[] income and help[] the state employ qualified and skilled personnel; [and] preserve[] peace and harmony by financing networks of cronyism, nepotism, and patronage.

In other words, does "just the right amount of corruption" build rather than destroy the trust that permits a social, cultural and political body to survive?  You must read Professor Vatkin's article for the answer, or at least one of the possible answers to this age-old question.

Combating corruption in economic life is more on the minds of Rakesh Khurana and Scott Snook at Harvard Business Publishing for Managers this week in their Manifesto for B-Schools.  Khurana and Snook urge B-school professors to  "be honest purveyors of the truth," presenting

solid arguments, and be[ing] clear about what we know and what we don't. We need to acknowledge the difference between truth and sophistry, and value the former over the latter. As researchers, we need to understand that a commitment to the truth does not mean we possess the truth. Truth evolves; we must gather evidence that can be critically assessed, and revise our ideas in the face of a new data or better a argument. Otherwise, our knowledge amounts to little more than rank ideology.

Khurana and Snook make other suggestions as well and their full post is well worth the read.

An optimistic view of the potential for global trust from a Chinese perspective can be found this week at The Globalist in Yu Keping's post on Harmonious Diplomacy and Global Governance (Part III).  The strategies of Harmonious Diplomacy, writes Keping

center on dialogue and negotiation, win-win outcomes achieved through cooperation, finding commonalities while reserving differences, and promoting an environment characterized by inclusion and openness. To reach maximum consensus, harmonious diplomacy requires equal, friendly and sincere dialogue and negotiation, and mutual trust as well as mutual respect.

These are sentiments with which I, a mediator, certainly agree.  And yet trust without confirmation can lead to ruin.  "Trust, but verify" was President Reagan's watchword, which is this week picked up by the Greenpeace blog, with the suggestion that our foreign climate crisis partners "trust but verify" American claims to U.S. support to be part of the solution rather than part of the problem.  As Philip Radford writes in The Whole World in His Hands,

Even though President Obama was elected on a platform of delivering action on global warming, and has passionately reiterated those pledges since becoming president, he will have to overcome enormous skepticism from his international negotiating partners. At this summit, it is they who will be repeating Ronald Reagan’s maxim about Soviet overtures at the beginning of the glasnost era: Trust, but verify.

There's no more trusted advisor than your physician.  You trust her not only to re-set your kids' broken arm but, in extremis, to take a buzz saw to your sternum, crack it open, and lift your beating heart up in her hands for repair or replacement.  This week, a surgeon at the Cervantes blog (the Surgeon and the Torture Memos) reflects upon the medical training that "habituated" him to cutting through human flesh with a knife ("the scalpel [now] merely an extension of my fingers") while he contemplates the role physicians played in authorizing torture at Guantanamo and further flung sites of extraordinary rendition.  The difference between the surgeon's tasks of "poking sharp objects into other people, removing organs and extremities, and switching parts between the dead and the living" on the one hand and those of interrogators at Guantanamo?  Trust. 

What renders a surgeon’s work different and humane, however, is not just the individual doctor’s desire to do the right thing by his or her patients . . . It is the surgeon’s commitment to and steadfast compliance with his profession’s code of ethical conduct. It is a constant awareness of the extraordinary trust that patients and the public place in their physicians, a trust that entails transparency and accountability in the patient-doctor relationship.

That trust, writes the doctor, has been "shattered" by the participation of our trusted professionals -- particularly physicians and attorneys -- in authorizing the torture that the current administration has (somewhat redundantly but now necessarily) outlawed. 

Well worth read and, by the by, the winner of the best literary post award for this month's Carnival of Trust.

The Director of the FBI Testifies that He "Followed the Protocol" (reported to the Justice Department) after Concluding That the CIA was Torturing Detainees

Speaking of lawyers (see the banality of evil here) Robert Ambrogi at Legal Blog Watch weighs in on Facebook lawyer and Chief Privacy Officer Chris Kelly's announcement that he might throw his online fedora in the ring for the office of California's Attorney General.   (Facebook Attorney Explores Run for California AG).  As Ambrogi notes, Kelly hopes to parlay Facebook members' "trusted online experience" into a two-hundred million member constituency.  Whether Facebook's responses to  serial mishaps with their members' private information is a trust builder only time will tell.

If you're continuing to repose trust and confidence in financial advisors in this post-Madoff world, check out Investor Watchdog's post from last week on the means to detect Financial Advisor Fraud.  Although the advice is commonsensical, too many of us do not take the simplest precautions to "trust but verify" the people to whom we entrust our financial future.  The advice?  Review account statements and activity promptly and only make checks payable to the custodian.  As "wealth advisor" Michael J. Chasnoff concludes:

While an advisor working as a fiduciary does add significant value, the investor is ultimately responsible for his or her financial independence and should take steps to stay engaged.

Finally, we have Influence, Trust and Authority from Future Buzz, outlining the indicators of social media influence as follows:

Influence is the power of someone to be a compelling force on the actions of others.  Robert Scoble is an influential person in getting us to try out new web services because he gets so jazzed about them we just have to try them out.

Trust is reliance on the integrity in someone (essentially confidence).  If you stop and think about it, we trust each other a great deal in the social web.  Consider something as simple as all the shortened URLs you click each day, we trust our networks won’t send us a spam link.

Authority is power or right delegated, given or in the case of the web earned.  Lawrence Lessig, a law professor who has written several books and works hard as an advocate of free culture on the web is an authority on copyright (amongst other things).

With these definitions in mind…

• . . . influence and authority are not necessarily personal, while trust is more abstract and difficult to measure because it is personal.

• We have trust with people on the social web and blogs we read because we form personal relationships with the people behind the content.  It is something that has been leeched from traditional media, and illustrates the shift in influence - from brands to people.

• [A]ttention + trust = authority.  Trust is the shortcut to both of these, thus explaining the earlier example of why someone with just 20 readers can be as influential or authoritative if not more so than popular people, at least to their networks. . . . .
  

There's much more of value to gain from this incisive post and I highly recommend you read it (in the event I have any influence to motivate you, authority to convince you or confidence to draw you into my own personal evaluation of blog post quality).

Want to become a charismatic leader?  It's not just about charm, it's also about trust according to the Leadership Expert post on Charismatic Leadership. "Academics," we're told, have identified the following four stages of charismatic leadership:

Creating a new vision: Charismatic leaders are able to assess unfulfilled needs and opportunities in their environment and project their vision for a future without any shortcomings.

Articulating the vision: The leader will be able to communicate his belief in the vision to his followers and convince them of its viability.

Building trust: The next phase of charismatic leadership involves engendering trust among group members and securing their commitment.

Achieving the vision: The leader will set a personal example and empower others in order to sustain motivation so that the vision can be realized. 

Most attorneys consider the phrase "law firm management" to be an oxymoron.  Trust me. Most of us were liberal arts majors. The only thing we ever endeavored to manage was our urge to put on tap shoes and sing Yankee Doodle Dandy or recite the Gettysburg address if stage or podium were nearby. Law firm management consultant Rees Morrison, however, believes in our ability to manage the business of the law.  In his recent post Which influences most in the selection process, the firm or the lawyer? he suggests that the choice of trusted counsel all comes down to relationship.

[W]hen matters are not so high profile as to tip the selection toward a name firm, it is the individual partner who draws the attention of those who select counsel. So long as the firm’s infrastructure is judged sufficient to handle the matter, it is the brain, style, experience, and judgment of the partner that makes the most difference.

As proof, if a respected partner leaves a firm, even in the midst of a major matter, most general counsel will transfer matters with him or her, accepting the disruption, nodding to the new firm, and demonstrating faith in the partner (See my post of Aug. 4, 2008: loyalty to law firms with 6 references; and Sept. 12, 2008: transfer matters to new counsel with 8 references.). The partner, not the junior lawyers let alone the other resources of the firm, makes all the difference (See my post of May 11, 2007: complaints about associates with 13 references.).

How could I, an inveterate "tweeter" (here) conclude the Carnival of Trust without mentioning Twitter?  You needn't take my word for its trust-building capacities -- take it from CoveyLink (Stephen Covey, he of the Speed of Trust). As Covey raves in his post Twitter's Speed of Trust ripple of influence:

[Twitter] scales the entire globe. It is both personal. . . . and professional,  I connect and communicate with like minded thinkers around the world. 

The . . . story that comes to mind is the significance of the realization of the transcendent potential of the world wide web so eloquently described by Christopher Locke at the turn of the century (the 21st century that is) in . . . his book thecluetrain manifesto:

“More important, all of us are finding our voices once again.  Learning how to talk to one another.  Slowly recovering from a near fatal brush with zombification after watching Night of the Living Sponsor reruns all of our lives.  Inside, Outside, there’s a conversation going on today that wasn’t happening at all 5 years ago and hasn’t been very much in evidence since the Industrial Revolution began.  Now, spanning the planet via Internet and World Wide Web, this conversation is so vast, so multifaceted, that trying to figure what it is about is futile.  It’s about a billion years of pent-up hopes and fears and dreams coded in serpentine double helixes, the collective flashback deja vu of our strange perplexing species.  Something ancient, elemental, sacred, something very very funny that’s broken loose in the pipes and wires of the 21st century.  There are millions of threads in this conversation, but at the beginning and end of each one is a human being… This fervid desire for the Web bespeaks a longing so intense that it can only be understood as spiritual.  A longing indicates something is missing in our lives.  What is missing is the sound of the human voice.  The spiritual lure of the Web is the promise of the return of voice.“ 

Twitter is clearly a giant leap forward in that direction.

Or as the poet Galway Kinnell has written, "if you tell your own personal story deeply enough, your voice becomes that of another creature on the planet speaking."  And that, my friends, is a voice you can always trust.

Thank you Charles H. Green for allowing me to host this carnival, and thanks Ian Welsh for his help.

(For the link to Charlie’s blog, Trust Matters click here!)

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I spent the day at an advanced mediation training session at the U.S. District Court in Los Angeles where I serve as a settlement officer. I came away troubled by the wide array of responses to questions concerning the mediator's "right" or "desire" or "need" to use deception in separate caucus mediation - the primary form mediation takes in Southern California litigated cases.

At the end of our session, I suggested to a fellow mediator that all separate caucus mediation is inherently deceptive. He is a sophisticated practitioner and knew exactly what I meant. My husband - a litigator of 35 years who is also (newly) on the District Court's Settlement Officer panel - recoiled at the idea.

Here, for your consideration, is an excerpt from a lengthy discussion of the issue from the Journal of the DuPage County Bar Association -- Defining the Ethical Limits of Acceptable Deception in Mediation by JAMS mediator the Hon. John W. Cooley (Ret.) 

[C]onsensual deception is the essence of caucused mediation. This statement should not come as a shock to the reader when it is considered in the context of the nature and purpose of caucusing. Actually, it is quite rare that caucused mediation, a type of informational game, occurs without the use of deception by the parties, by their lawyers, and/or by the mediator in some form. This is so for several reasons.

First, a basic groundrule of the information system operating in any mediated case in which there is caucusing is that confidential information conveyed to the mediator by any party cannot be disclosed by the mediator to anyone (with narrowly limited exceptions). This means that: (1) each party in mediation rarely, if ever, knows whether another party has disclosed confidential information to the mediator; and (2) if confidential information has been disclosed, the nondisclosing party never knows the specific content of that confidential information and whether and/or to what extent that confidential information has colored or otherwise affected communications coming to the nondisclosing party from the mediator. In this respect, each party in a mediation is an actual or potential victim of constant deception regarding confidential information — granted, agreed deception — but nonetheless deception. This is the central paradox of the caucused mediation process. The parties, and indeed even the mediator, agree to be deceived as a condition of participating in it in order to find a solution that the parties will find "valid" for their purposes.

Second, mediation rarely occurs absent deception because the parties (and their counsel) are normally engaged in the strategies and tactics of competitive bargaining during all or part of the mediation conference, and the goal of each party is to get the best deal for himself or herself.

These competitive bargaining strategies and tactics are layered and interlaced with the mediator’s own strategies and tactics to get the best resolution possible for the parties — or at least a resolution that they can accept. The confluence of these, initially anyway, unaligned strategies, tactics, and goals creates an environment rich in gamesmanship and intrigue, naturally conducive to the use of deceptive behaviors by the parties and their counsel, and yes, even by mediators. Actually, even more so by mediators because they are the conductors — the orchestrators — of an information system specially designed for each dispute, a system with ambiguously defined or, in some situations, undefined disclosure rules in which the mediator is the Chief Information Officer who has near-absolute control over what nonconfidential information, critical or otherwise, is developed, what is withheld, what is disclosed, and when it is disclosed. As mediation pioneer Christopher Moore has noted: "The ability to control, manipulate, suppress, or enhance data, or to initiate entirely new information, gives the mediator an inordinate level of influence over the parties."

Third, the information system manipulated by the mediator in any dispute context is itself imperfect. Parties, rarely, if ever, share with the mediator all the information relevant, or even necessary, to the achievement of the mediator’s goal — an agreed resolution of conflict. The parties’ deceptive behavior in this regard — jointly understood by the parties and the mediator in any mediation to fall within the agreed "rules of the game" — sometimes causes mediations to fail or prevents optimal solutions from being achieved.

Thus, if agreed deception is a central ingredient in caucused mediation, the question then becomes what types of deception should be considered constructive, within the rules of the mediation game, and ethically acceptable and what types should be considered destructive, beyond the bounds of fair play, and ethically unacceptable. Or, perhaps more simply, in the words of mediator Robert Benjamin, in mediation what are the characteristics of the "noble lie" — deception "designed to shift and reconfigure the thinking of disputing parties, especially in the conflict and confusion, and to foster and further their cooperation, tolerance, and survival"? Because formal mediation is generally viewed as "nothing more than a three-party or multiple-party negotiation," we can begin to formulate an answer to this question by examining the current limits of acceptable deception as employed by lawyer-negotiators.

New Zealand mediator Geoff Sharp blogged on this topic under the rubric "noisy disclosure" recently, noting that

Mediators can assist parties in reaching a zone of possible agreement by making limited and heavily filtered disclosures of the parties’ private concessions that the parties disclose in caucus sessions (Brown and Ayres call this “noisy” communication).

See my own short post on mediator predictions and false signals here. 

 I urge all my readers to comment, but particularly litigators like my husband who may not know what many mediators have apparently known for quite some time -- that they are making "filtered disclosures of the parties' private concessions" after promising to keep all separate caucus communications strictly confidential.

My husband assured me on the way home tonight that he will henceforth require all of the mediators he retains to guarantee him that they will not "signal" his negotiating positions, tactics or strategies to his bargaining partners.

Your thoughts?

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Although a California Court may properly sanction a non-party insurance carrier who possesses the authority to settle litigation for its failure to participate in a mandatory settlement conference, there is no statutory (nor inherent) authority given the Court to sanction the carrier or a party for its purported failure to negotiate in "good faith."  As the Court in Vidrio v. Hernandez (2d DCA) explained today:

In sum, even were we to agree with the trial court's assessment of the conduct of counsel and the [insurance] adjuster, the failure to increase a settlement offer or to otherwise participate meaningfully in settlement negotiations violates no rule of court and is not a proper basis for an award of sanctions.11 (See, e.g., Triplett v. Farmers Ins. Exchange (1994) 24 Cal.App.4th 1415, 1424 [“[w]e eschew any notion that a court may effectively force an unwilling party to settle by raising the specter of a post hoc determination that failure to do so will be evidence of failure to participate in good faith”]; Sigala v. Anaheim City School Dist., supra, 15 Cal.App.4th at p. 669 [“„[a] court may not compel a litigant to settle a case, but it may direct him to engage personally in settlement negotiations, provided the conditions for such negotiations are otherwise reasonable‟”].) [Defendant] filed an appropriate settlement conference statement; her lawyer and Mercury [the insurance carrier] attended the conference and participated in it. While the trial court‟s frustration at the parties‟ lack of movement is understandable, no more was required.
 

In particular, the Court of Appeal, held that the Court was not at liberty to "judge" whether the defendant and its carrier "should have" offered more than had previously been offered at a mediation either because the case was "worth" more or because the offer was so low in light of the attorneys fees and costs that would likely be incurred at trial.

I believe most mediators would approve of this ruling, even though it applies only to settlement conferences and not to mediations, the latter of which is protected from the Court's inquiry by Evidence Code section 1119.  Whether or not a mediator, a settlement judge, a party or a trial judge believes a defendant "should" offer more or a plaintiff "should" accept less by way of settlement, should not form the basis of an award of sanctions.  Not only would such a rule decrease citizens' trust and respect for the Courts, whose job it presumably is to provide a forum in which litigated disputes may be tried, such a rule would impermissibly chill the parties' Constitutional right to a jury trial.  

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Please join the Los Angeles Chapter of Mediators Beyond Borders on May 30, 2009 (.pdf) at the home of Ken Cloke and Joan Goldsmith in Santa Monica for conversation on global conflicts.  Contribute your  ideas, expertise, donations and support, in building conflict resolution capacity around the world.

May 30, 2009
2 PM ‐ 5 PM
At the home of:
Ken Cloke and Joan Goldsmith
2411 18th Street
Santa Monica, CA 90405
310‐396‐4664

Mediators Beyond Borders is a nonprofit network of volunteer mediators, arbitrators, trainers, facilitators, coaches, and experts in dialogue and similarskills. We are actively engaged in organizing projects to develop conflict resolution skills in the Middle East, Ghana, Liberia, Zimbabwe, Kenya,Nigeria, New Orleans, Colombia, Ecuador, Nepal, Yemen, Thailand, Cambodia, Kosovo, and other communities worldwide.

If you are unable to attend, please mail a tax deductible donation to Mediators Beyond Borders, a nonprofit 501 (c) (3) organization, c/o Ken Cloke and Joan Goldsmith, 2411 18th Street, Santa Monica, CA 90405.

RSVP to kenclokembb@gmail.com

This event is sponsored by MBB founding members Nan Waller Burnett, Ken Cloke, Dorit
Cypis, Joan Goldsmith, Woody and Jody Mosten, Susan Mullins, Anna Spain, Ron Supancic,
and the Los Angeles Chapter of Mediators Beyond Borders.

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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.

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Discouraged by the adversarial process?  Looking for lawyers who will handle your commercial dispute without going to "war" with all the expense and collateral damage that involves?

This excellent talk by Webb has been viewed 202 times, while "Drunk Lawyer" below has been viewed by nearly 300,000 people.  It's not surprising that drunken trial lawyers are far more entertaining than some old guy talking about attorneys bringing potluck to negotiate the resolution of a lawsuit. 

The question is this:  Do you want to pay for the entertainment of conflict or resolve it and move on with your plans to create a profitable future for your company and its employees.

"Drunk Lawyer" is, after all, free on YouTube!

Thanks to Cutting Edge Law for gathering together the Stu Webb and other videos on the revolution in legal practice that's being fomented right around the corner -- just about the time the BigLaw model fails along with dinosaurs like General Motors.

You didn't hear it here first.  But you will hear it here often.

This is the fourth video of this painful encounter on YouTube but it's the one in which the attorney is asked to "blow" a breathalyzer for the Court.

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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.

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It rarely gets any better than this.  Here's Elie Mystal's intro to tempt you into the the whole catastrophe.

Here at Above the Law, we thrive on taking a vat of hydrochloric acid to the veneer of the legal profession and exposing the original craftsmanship underneath. Nothing is sacred.

When given the opportunity to serve for Blawg Review -- the "blog carnival for everyone interested in law" -- I was excited to take Above the Law's brand of rousing rabble out on the road. How many "Sacred Cows" are out there? How many can I hunt and grill? And as Denise Howell might ask me on her "Yo Comments Are Whack" podcast: "how many cow jokes can you take in one week before you end up on a liposuction table?" Eric Turkewitz already tussled with Oprah this week, so the easiest mark has already been bagged.

Of course, ATL is also a news organization. So while I had high hopes of continuing my friendly banter with Loyola Law School Dean Victor Gold, the news of the week inexorably pushes me in one direction. Luckily, it turns out that the thing everybody was blogging about this week is the biggest sacred cow of all, and it is ripe for poaching.

Put down those canned objections to interrogatories and read on here.

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I've always recommended barter when cash is tight.  In an early post entitled The Benefits of Barter, I explained how interest-based barter is not simply for small-fry.

 AT&T used interest-based negotiation tactics and bartering in its 1999 fight with Comcast Corporation for the acquisition of MediaOne Group. All parties were at impasse until AT&T offered to provide Comcast with surplus AT&T cable systems that would fill Comcast's critical need for additional subscribers -- 2 million to be exact. In exchange, Comcast withdrew its $48 billion bid for MediaOne, leaving AT&T as the only potential purchaser in the field.

Interest-based negotitions such as the AT&T-Comcast deal go beyond evaluating the strength of the parties' "positions" (or muscle) by engaging them in a mutual exploration and assessment of everyone's needs and resources -- a process that can create new buisness opportunities or relationships that increase the value of Business A without concomitantly decreasing the value of Business B.

"This type of negotiation begins with all community resources and know-how with the goal of increasing the well-being of all stakeholders rather than assuring victory to one of them," I wrote.

For those of us in the wisdom business, much of what we have to barter is our ability to mentor and be mentored.  The Professional Women's Network of Southern California is, essentially, a "mentoring circle," in which each member teaches, each member learns, and each member connects every other member to her network. 

Now, the Women Lawyer's of Los Angeles is putting its wheels on recovery road by kicking off its existing Mentoring Circle Program to meet the challenges of the coming year. 

For a number of years, the WLALA Career Mentoring Committee has organized a West LA Mentoring Circle for WLALA members to meet and support each other's career development over lively dinner conversation.  These meetings have served as a forum for participants to share stories, goals and advice.  Over the years the women involved in the Mentoring Circle have become a close-knit group of champions for one another's success.

The WLALA Career Mentoring Committee is excited to expand mentoring opportunities for WLALA members by starting a Downtown Mentoring Circle.  If you are interested in mentoring others or benefitting from the experience of other WLALA members, please join us for the first meeting of our new Downtown Mentoring Circle at Bonaventure Brewing Company at 6:30 on January 29. 

Our discussion topic will be career goals and objectives for 2009.  Please RSVP to Jessica Pink (jlpink@allenmatkins.com) if you plan to attend.

Bonaventure Brewing Co.

404 South Figueroa St. Suite 418A
Los Angeles CA 90071
(213) 236-0802

We look forward to seeing you!

Your Career Mentoring Chairs,
Gigi and Jessica

Check it out!  And for women AND men professionals in all parts of the country, you couldn't do better by yourself and your business than to start your own mentoring circle.

Laissez les bon temps rouler! 

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Here's good news for the new year!

2008-2009 YouTube Contest - Ideals that Unite Us $2,500 scholarship for under 18 winner /        $2,500 cash prizes for 18 and over, People's Choice, and Classroom winners Winners also receive an expense-paid       trip to the awards presentation in       April 2009 Starting Sept. 1, 2008, Upload your video to:  www.YouTube.com/group/TexansOnJustice Create a three-minute-or-less video that captures your vision of the ideals that unite us as citizens of Texas. Be creative. You've got all summer to get those cameras rolling! This contest is open to residents of Texas and attorneys licensed to practice in Texas. To enter the "Ideals That Unite Us" contest: 1. Read and agree to the contest rules. 2. Make a video. Be creative! 3. Complete this online entry form

Thanks to Tamera Bennett for the link.  Follow her on twitter here.  Read her Copyright, Trademark and Entertainment Law Blog here.

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Book Review of Conflict Revolution; Mediating Evil, War, Injustice and Terrorism: How Mediators Can Help Save the Planet by Kenneth Cloke reviewed by Victoria Pynchon - Get more College Essays

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From E-discovery implications of Twitter at Lawyers USA

The social networking site Twitter.com allows users just 140 characters to describe what the user is up to – a post known as a "tweet."

But lawyers advising clients on e-discovery or using Twitter themselves need to realize that tweets are discoverable.

"Twitter posts are like any other electronically stored information," explained Douglas E. Winter, a partner at Bryan Cave in Washington, D.C. and head of the firm's Electronic Discovery unit. "They are discoverable and should therefore be approached with all appropriate caution."The increasing popularity of Twitter has made electronic discovery even more complicated.

Litigators!  Remember, you and your opponent(s) have a choice. It's not only in arbitration that you can make your own law, but by way of stipulated case management orders cooperatively crafted with an eye toward relative cost and likely benefit (ask me for a template!)

I don't need to tell you that clients are cutting back in 2009.  The litigation practice that thrives will be the most efficient and effective dispute resolution vehicle on the road.

And now, for your moment of zen - Charlie Dickens.

Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means. The parties to it understand it least, but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce without knowing how or why; whole families have inherited legendary hatreds with the suit. The little plaintiff or defendant who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled has grown up, possessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into mothers and grandmothers; a long procession of Chancellors has come in and gone out; the legion of bills in the suit have been transformed into mere bills of mortality; there are not three Jarndyces left upon the earth perhaps since old Tom Jarndyce in despair blew his brains out at a coffee-house in Chancery Lane; but Jarndyce and Jarndyce still drags its dreary length before the court, perennially hopeless.

Jarndyce and Jarndyce has passed into a joke. That is the only good that has ever come of it. It has been death to many, but it is a joke in the profession. Every master in Chancery has had a reference out of it. Every Chancellor was "in it," for somebody or other, when he was counsel at the bar. Good things have been said about it by blue-nosed, bulbous-shoed old benchers in select port- wine committee after dinner in hall. Articled clerks have been in the habit of fleshing their legal wit upon it. The last Lord Chancellor handled it neatly, when, correcting Mr. Blowers, the eminent silk gown who said that such a thing might happen when the sky rained potatoes, he observed, "or when we get through Jarndyce and Jarndyce, Mr. Blowers"--a pleasantry that particularly tickled the maces, bags, and purses.

How many people out of the suit Jarndyce and Jarndyce has stretched forth its unwholesome hand to spoil and corrupt would be a very wide question. From the master upon whose impaling files reams of dusty warrants in Jarndyce and Jarndyce have grimly writhed into many shapes, down to the copying-clerk in the Six Clerks' Office who has copied his tens of thousands of Chancery folio-pages under that eternal heading, no man's nature has been made better by it. In trickery, evasion, procrastination, spoliation, botheration, under false pretences of all sorts, there are influences that can never come to good. The very solicitors' boys who have kept the wretched suitors at bay, by protesting time out of mind that Mr. Chizzle, Mizzle, or otherwise was particularly engaged and had appointments until dinner, may have got an extra moral twist and shuffle into themselves out of Jarndyce and Jarndyce. The receiver in the cause has acquired a goodly sum of money by it but has acquired too a distrust of his own mother and a contempt for his own kind. Chizzle, Mizzle, and otherwise have lapsed into a habit of vaguely promising themselves that they will look into that outstanding little matter and see what can be done for Drizzle--who was not well used--when Jarndyce and Jarndyce shall be got out of the office. Shirking and sharking in all their many varieties have been sown broadcast by the ill-fated cause; and even those who have contemplated its history from the outermost circle of such evil have been insensibly tempted into a loose way of letting bad things alone to take their own bad course, and a loose belief that if the world go wrong it was in some off-hand manner never meant to go right.

Thus, in the midst of the mud and at the heart of the fog, sits the Lord High Chancellor in his High Court of Chancery.

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The National Law Journal's annoying practice of making its "best" content available only with a secret decoder ring forged in the fire of subscription dollars, nevertheless did not stop me from access to an intriguing article about arbitration's "e-discovery conundrum" (here for people with the secret code).

In Arbitration's e-Discovery Conundrum (thank you Mr. Thrifty for the copy) the author contends that:

. . . as litigation discovery techniques have become more prevalent in arbitration, arbitration has become just as time-consuming, expensive and burdensome. Without the benefit of an appeal process for the losing party, the primary remaining benefit for binding arbitration -- privacy -- is often outweighed by the other negative factors.

Parties and their litigation counsel have pointed to runaway discovery as one major reason why they have abandoned arbitration in favor of mediation in the United States and even internationally.

So how can "the long-recognized benefits of arbitration -- speed and cost savings -- be restored?"

(top:  is this what any of us went to law school for? Flowchart from Integreon)

The author recommends that the process must "address the needs and interests that led them to arbitration in the first place: to balance the need to discover those documents reasonably necessary for a party to prove its case with the cost, burden and time involved in producing such documents, while taking into account the need for fundamental fairness and to avoid surprise and trial by ambush."

Here's where reformers fail to get the direction the law is moving in.  It's not about finding a process that fits your needs - it's about creating the process that is tailor-made for your one and only completely unique and unrepeatable dispute.

The beauty of arbitration is not what it is.  It is what it can be.  The beauty of arbitration is that it allows you to make up your own $%#@^ law and procedure.  It restores control of the process to you.

What, you say?  Your opponent and you can't agree?  This is no longer a good enough reason, particularly because I do not see many attorneys making the effort to craft discovery and case management plans that reasonably addresses the parties' actual need for every document that someone marginally involved in the dispute might have once breathed upon.

I know whereof I speak.

The solution?  Sit down, for goodness sake, with your adversary, for as many days as it takes, to reach agreement about what each side actually needs.  Leave your huffing and your puffing, your posturing and your adversarial chops at the conference room door.  There will be plenty of time for all of that after the only people who actually understand the dispute -- YOU -- agree upon the type of process necessary to resolve it as efficiently and effectively as possible.

The law firms that do this will survive the recession. 

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We were talking about fairness over pizza with our neighbor last night.  Tony was pretty teed off at the unions, something I've heard a lot of from Mr. Thrifty over the past couple of weeks.  True to litigator form, however, Mr. T came to the defense of the "working man" when hearing his own opinions read back to him over cheese and pepperoni.

I've written a lot about justice here because we lawyers are in the justice-delivery business no matter how much we sometimes think it's only about money. See e.g., here and here.  I've also written about the desire for fairness being so universal that even monkeys will "strike" if they see a fellow worker "earning" more or better compensation (grapes trump cucumbers), going without food rather than working while seething with resentment.

Which brings us to Gail Collins' opinion piece in the NYTimes today about dogs shaking hands with men in white coats, bread, and the auto unions.

First the dogs.  As Collins writes:

Folks at the University of Vienna conducted a test in which dogs were asked to shake hands over and over and over again. If you have any experience with dogs, you will not be surprised to hear that they were absolutely delighted. And they didn’t care about being paid! The opportunity to perform the same trick endlessly with a stranger in a white coat was reward enough.

Then the researchers brought in new dogs that were given a piece of bread as a reward for every handshake. The uncompensated dogs watched, lost their innate love of mindless repetition and grew sullen.

“They get so mad that they look at you and just don’t give you the paw anymore,” said Friederike Range, one of the scientists.

So O.K. Dogs are secretly obsessed with fairness. (And bread. Who knew?)

Then the auto bail-out.  

The really hard lifting still lies ahead, and we cannot possibly do it if we’re going to dwell too much on the fairness thing. It’s just too easy for lawmakers to dodge the tough vote by reminding their constituents that somebody else is getting more breaks than they are.

Which somebody always is. If Senator DeMint’s constituents are going to riot over a bailout for the auto industry, they’ll wind up being met by tool-and-die makers waving torches and yelling about soybean subsidies. If the lawmakers from Alabama say their constituents do not want their tax money going to bail out Michigan, the people in Michigan are going to say that they never really enjoyed paying more taxes to the federal government than their state received in aid, while Alabama got a return of $1.61 on the dollar. And anytime a representative from the Great Plains opens his mouth, the people from New York are going to point out that while every state gets the same number of senators, there are more people waiting for a subway in Brooklyn in rush hour than inhabit all of Wyoming.We can really get tiresome on the subject. You don’t want to go there.

And finally, the solution.

Any mammal can obsess about fairness. (Did I mention how ticked off monkeys get if they find out they’re getting cucumbers while somebody in the next cage has a grape?) The real human trick is to get past the quid pro quo and try to focus on the common good.

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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.

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Thanksgiving Day begins a season that reminds many of us that our earliest negotiation experiences were those with our family. 

When I was a child, these were the issues on the Thanksgiving bargaining table

• Who gets to snap the wishbone (does anyone do this anymore?)
• Who gets to sit next to gramma
• Who sets the table and who does the dishes
• Whether my sister and I have to eat what we don't like (me cranberry sauce; she vegetables of any kind) to "earn" a piece of pumpkin (my sister) or pecan (me) pie

Later, in adolescence, the issues changed

• must I follow the parental injunction not to talk about civil rights, pre-marital sex, world poverty, and, the Viet Nam War ALL DAY long
• do I have to change out of my blue jeans, workshirt and desert boots for dinner
• may I have two Thanksgivings - one with my father & one with my mom & step-dad
• MUST I be nice to my sister's new husband
• and, of course, who sets the table and who does the dishes (some things never change)

Still later, when my sister and I had married and moved out of town

• whose table would we gather around for the holidays:  mom's, mine or my sisters
• how to accommodate the newly vegetarian in the family
• could I skip Thanksgiving in San Diego in exchange for Christmas there (without my mother bursting into tears)
• and, of course, who sets the table and who does the dishes

Thanksgiving is my own favorite holiday because there are no gift-giving obligations; everyone (more or less) celebrates the same holiday regardless of religion or national origin; there is no limit on the amount of cream and butter that can be consumed at a single sitting; and, everyone is expected to express gratitude rather than complaint.

Not everyone, however, is lucky enough to have family or even friends with whom to gather for Thanksgiving.  I have had these times in my own life, when Thanksgiving is a particularly forlorn and isolating day.  It's never mattered to me whether I was economically secure or poverty stricken on Thanksgiving.  What mattered were those Thanksgivings when I had no family with whom to gather and no friends with whom to share a holiday meal.  For those whose lack of family arises from outright rejection (many young gays in West Hollywood or throw-away kids on the streets of Hollywood) there are few days of the year that are more wrenching.

For the lonely and the forlorn this Thanksgiving, I'm posting the following resources and adding this:  not just the good, but the bad is fleeting as well.

Thanksgiving Service Opportunities

Around here, public officials and celebrities pretty much have the T-day soup kitchen duties cornered.  Don't despair if all of the opportunities to serve dinner on T-day are taken; there is much else you can do to be of service to those less fortunate than you.

Meetings, Meetings, Meetings

If you're in recovery in the Los Angeles area, I have good news for you.  Many of the daily 3,000 local meeting groups have 24-hour meetings over the Thanksgiving weekend and many serve Thanksgiving dinner.  Check the local directory (here) for a meeting near you (the national meeting finder is here). 

Those who are already trained to answer telephones at the L.A. Central Office might give Harvey a call and volunteer to serve as the saving voice on the other end of the telephone during hard to cover hours such as the midnight to dawn shift.  The most recent issue of Hello Central (here) notes that the

Los Angeles Central Office continues to be in need of volunteer telephone workers. The only requirement is a minimum of one year sobriety. We need people who will show up when they say they will. Contact Central Office: (323) 936-4343, and ask for Harvey or Langston.

Donating Food; Finding a T-day Dinner

My husband returned from our local farmers market the other day with the story of a woman in line who was making an entire Thanksgiving dinner just for herself and seemed cheerful about it.  Now there's a woman who's made peace with her life.  For those who might find the solo T-day dinner a tiny bit depressing, you could cook up dishes for others.  Here are some organizations to which you could be of service in that way.

• Family Learning Center in Denver
• The Greater Chicago Food Depository
• The United Food Bank in Mesa Arizona
• The Jersey City Community Thanksgiving Dinner (for those looking for a place to share Thanksgiving dinner with others in need - pass it on)
• Give to Nashville, Tennesee's From Hunger to Hope Campaign
• Donate a food basket in Durham, New Hampshire
• Gobble, Gobble Give in Los Angeles, California
• Share Your Blessings with a Family in Haiti
• Donate Food Baskets in Orlando, Florida
• Locate Other Local Food Banks at Feeding America

Visiting Shut-ins, the Elderly, the Sick

• take one of these ten suggested gifts to a local hospital or home for the elderly to distribute to those without friends or family
• deliver meals to shut-ins in Nashville Tennessee
• Visit the elderly in Cincinnati, Ohio

Here's what I learned one lonely Thanksgiving Day working on a crisis phone line.  Loving feels every bit as good as being loved.

Have a GREAT Thanksgiving!!

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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.

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.

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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.

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It's official!  I've joined the faculty of Solo Practice University™

Huh?

I don't see that University in any tier of the U.S. News and World Report's Law School Rankings!  And if it's not ranked for goodness sakes, does it even exist?

Yes, Virginia, a school for legal practitioners does exist "as certainly as love and generosity and devotion exist, and you know that they abound and give to your life its highest beauty and joy."

O.K.,Solo Practice University™ is not Santa Claus but it comes pretty darn close.

Solo Practice University™ is a revolutionary new web-based educational community that picks up where your legal education left off.

Learn from some of the most progressive lawyers, marketing pros, technology consultants and legal business giants how to:

* Plan, build and grow your private practice
* Differentiate yourself from the competition
* Attract and engage new clients more easily

… and much more. They just can’t teach you that in law school.

Need to transform your marketing strategy in these troubled economic times?  You can learn  not just how to blog your way into your desired market, but how to leverage what you love into how much you make from Blawgfather and SPU Professor Grant Griffiths.

Wondering whether to put rocket fuel into your networking vehicle by adding online social media?  You couldn't find a better teacher than SPU Professor Toby Bloomberg who has over 15-years of traditional strategic marketing experience and four years with social media through her company Bloomberg Marketing/Diva Marketing.

Are your clients peppering you with questions you can't answer about their rights and remedies in Cyberspace?  Then it is Christmas, Hannukah and Kawanza all rolled up into one when SPU Professor Brett Trout is teaching a course on intellectual property in cyberspace.

Whether your presence in Cyberspace is solo or in connection with a group practice, let SPU Professor Stephanie L. Kimbo help you hang out your virtual shingle. 

Don't yet know your way around the courtroom?  Thinking of adding criminal defense to your practice as a growth industry in troubled economic times?  Need to ask questions of a seasoned trial attorney that would make you feel inadequate to ask of your supervising attorney in the PD's office?  There's no better winter holiday gift than SPU Professor Scott Greenfield's semester-long course “The Practice of Criminal Defense - The Road to Perdition.”

Still waiting to take that first deposition?  Taking your 20th and can't stop worrying that the Court Reporter thinks you're just a tiny bit pathetic?  Don't know how to deal with obstreperous opposing counsel?  Afraid to run a line of killer cross-examination to re-position your case for summary judgment or settlement?  Wish you'd gotten the expert to admit that he'd consider the moon to be green cheese if his attorney had told him to assume it? (yes my partner did). 

Then you'll want to sign up for my Deposition Skills course based upon the NITA techniques I've taught for more than a dozen years and my own OJT during a 25-year commercial legal practice.

Let your real legal education begin at Solo Practice University™

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UPDATE:  Courtesy of Blawg Review #184 over at The Faculty Lounge is a link to the Voter Suppression Wiki Home Page.

CNN was reporting yesterday that in early voting the elderly gave up waiting to vote because they couldn't stand in line for 3+ hours.

Let's do what our mothers taught us to do when we were young:  stand up and give our seat to our elders!

Other suggestions for Tuesday:

• bring water, food to distribute to those in need on election lines
• bring as many folding chairs as you can carry for those in need
• engage the line by suggesting that it be organized according to need:
  • frail/eldery
  • those who MUST get to work
  • those with children or sick relatives at home
  • anyone else with a special need to vote quickly
• if the weather's bad, bring extra umbrellas; rain ponchos
• offer to drive people who cannot drive or walk to the polls
• knock on doors in your neighborhood, making sure that everyone who wants to vote:
  • knows where their polling place is
  • is able to get to their polling place
• for anyone who "can't leave home" for any reason (caretakers, primarily) offer to spell that person by "sitting" for them while they go to vote

If you have other suggestions to help our friends and neighbors participate in the democratic process that makes our nation great and guarantees our freedom to negotiate, please leave comments here!

I just learned the new issue of The Complete Lawyer is up!  Read co-columnist Diane Levin's

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Polling Place Finder Here from Vote411

 

You can search the system system to find out all you need to know about the electoral process in your state (Registration deadline, ID requirements, Voting Machines, etc) by either selecting a your state or customizing your search for specific information

Instructions: Select your state from the drop-down menu or map below to find information specifically for where you live.

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Help NPR Identify Voting Problems:  Entire NPR Post Below

If you have any voting problems, NPR wants to hear about them. As part of Twitter Vote Report – a project born out of a collaboration of volunteer software developers, bloggers and the NPR social media desk – we'll be monitoring voter irregularities, everything from long waits and broken voting machines to polling places with insufficient ballots.

An interactive map will track election problems reported by voters. The map will display eyewitness reports as they come in, so most of them will not be verified by NPR. As reporters look into some of them, you'll find stories in our voting problems page.

So, as you head out to vote, here's how to participate:

Text: Send a text message to 66937. Begin the message with the phrase #votereport, include your zip code and a very brief description of the problem.

Twitter: Send a tweet with the phrase #votereport making sure to include your zip and description.

iPhone and Google Phone: Download the iPhone app from the Education section of the iPhone app store. For the Google Phone go to the Android Market and search for "Vote Report."

YouTube:In conjunction with PBS and YouTube's Video Your Vote project, you can upload a video to report any problems you experience.

Also, if you need more detailed instructions, visit Twitter's help page and the project's homepage, where you will find a short video tutorial and lengthier explanation on how these tools are being used.

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UPDATE:  REPORT YOUR VOTE EXPERIENCES ON TWITTER VOTE REPORT HERE

Here's a helpful list from this morning's Today Show on how to insure that the vote you cast is counted thanks to LegalMaven at Twitter this morning:

1. Confirm your registration before you go to the polls
   
   1. here in Nevada, the early vote poll workers will check for you if you drop by one of the hundreds of nearby polling places
   2. here in Nevada, you DO NOT NEED TO VOTE AT ANY PARTICULAR VOTING PLACE if you vote on or before October 31.  You can vote anywhere you see a polling place.  Many of them are mobile units conveniently parked at your local Vons or Albertsons; in front of your gym; and, just about anywhere your local shopping day takes you.
   3. here in Nevada, call 455-VOTE if you have any questions about when, where and how to cast your ballot
2. On election day here in Nevada, you DO NEED TO VOTE AT YOUR DESIGNATED POLLING PLACE ON ELECTION DAY.  Call 455-VOTE to determine where that is.  Lines may be long even though Nevadans have been early voting for more than a week. 
3. Have proper identification.Though you need only to give poll workers the month and day of your birth here in Nevada (if you are not a first time voter) to SPEED THE LINE bring your sample ballot.  It contains information that poll workers can scan & you and your neighbors will be on your way to vote and back to your daily activities more quickly.
4. Don’t wear campaign t-shirts, buttons and the like.  They are prohibited at polling places here in Nevada because you cannot campaign within 100 feet of a polling place.  If you forget, pull a sweater over that t-shirt; turn it inside out; remove the button and you won't have any problems.
   1. I monitored the polls in early voting here in Nevada at three separate polling places before I begged to be put in the field.
   2. Campaign workers didn't turn anyone away on account of clothing.  There are McCain and Obama vote protection workers at most polling places in Nevada.  You cannot talk to them within 100 feet of the polling place but they will notice if you are turned away and will follow you out to make sure your problem is taken care of.

THE NATIONAL NUMBER TO CALL FOR QUESTIONS WITH VOTING IS 866-OUR-VOTE

THE NEVADA NUMBER TO CALL FOR QUESTIONS WITH VOTING IS 702-455-VOTE

The just resolution of disputes and freedom to negotiate your own contracts flourish in a democracy.  USE IT OR LOSE IT!

More voting resources in Nevada:

The Nevada Secretary of State (list of county clerks and voter registrars state-wide)

Election Information from the Nevada Women's League of Voters

Nevada Online Polling Place Finder

I'M ASKING LEGAL BLOGGERS IN EVERY STATE TO PLEASE POST THEIR STATE'S POLLING AND ELECTION INFORMATION:  PASS IT ON!

Nebraska Voting Info here courtesy of lindsycd at twitter.  Her Omaha law firm here!

Texas Voting Info here courtesy of madpoet at twitter. His website Mad Poets Anonymous here!

New York Voting Info here courtesy of Jeenaesq at twitter.  Her lawfirm website here!

Illinois Voting Info here courtesy of R. David Donoghue of Chicago IP Litigation who twitters here.  Thanks David!

Go to the Legal Maven Speaks for election Day tips for DC, Maryland and Virginia.  Legal Maven sez

I strongly urge any voter who encounters an issue at the polls to contact Election Protection at 1-866-OUR-VOTE. Attorneys will be manning the phone lines and will be able to quickly provide you with the information that you seek.

Also, if you happen to be an attorney who wants to protect the vote, consider volunteering at a polling place through Election Protection. You'll be there to help voters who have problems with voting, voting machine errors, accessibility problems and to report any voter intimidation going on at the polling place.

See Florida Voting Information at Collaborative Divorce Law of the Palm Beaches thanks to Pamela S. Wynn who twitters here.

California Voting Information at the IP ADR Blog which twitters here.

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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 ..

Preaching to the Perverted.

(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.

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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?

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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:

Winston Churchill:

Courage is going from failure to failure without losing enthusiasm

Theodore Roosevelt:

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.

Theodore H. White:

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

Soren Kierkegaard:

To dare is to lose one's footing momentarily. To not dare is to lose oneself.

Maya Angelou:

History, despite its wrenching pain, cannot be unlived, but if faced with courage, need not be lived again.

Margaret Chase Smith:

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.

Aristotle:

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.

Charles DuBois:

The important thing is this: To be able at any moment to sacrifice what we are for what we could become.

 

Clare Booth Luce:

Courage is the ladder on which all the other virtues mount.

Dorothy Thompson:

Only when we are no longer afraid do we begin to live

Eleanor Roosevelt:

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.

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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.

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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!

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After generously commenting on my own comments to his article on the Privitization of Justice (any chance I can get permission to publish it here Professor?), Harvard Law School Professor Peter Murray left a comment which I've decided to bring "upstairs." 

Murray assures me he is no "enemy" of mediation, reminding me that behind every accusation (mine) is a cry for help (mine) which I sometimes think this entire blog-effort consists of.  In Jerry McGuire's words, help me help you.  Professor Murray has graciously offered to do so by joining the (soon to be formed) steering committee of the LegalTED Conference about which you'll all see much more after the election. 

Professor Murray's comment below.

Ms. Pynchon's comments on my article on privatization of civil justice are right on. Of course the situation is nuanced. Mediation is an excellent technique to facilitate settlement of many, perhaps a majority, of the disputes which end up in the civil courts. My point is that having this service provided by private professionals rather than public servants increases the likelihood of economic influences playing a larger role than they would in a purely public institution. And mediated results, while providing some attributes that litigants cannot obtain in public judgments, does not provide others, namely a kind of vindication and creation of public norms to govern others.

I would be delighted to join a Steering Committee to set up a conference on these issues.

Let the conversation continue!

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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:

• there is only one set of "powerful repeat players" -- insurance companies -- who choose and use the services of mediators;
• the other set of repeat players -- plaintiffs' personal injury and employment counsel -- are more or less universally poorly equipped to either influence the mediator or to protect their clients from mediator bias;
• the easily influenced plaintiffs' bar, if not protected from mediator bias, will counsel their clients to voluntarily enter into sub-optimal settlement agreements that favor the interests of insurance carriers over those of their own clients';
• there is such a thing as an "objectively bad settlement" that a judicial officer would be  equipped to detect and remedy; 
• money paid to a "neutral" is the only pernicious influence on dispute outcome, as opposed to, say, racial, nationality, gender, and/or any other socio-economic differences between a judicial officer and a litigant or between the jury and a litigant; and,
• judicial officers are not subject to the influence of the repeat attorney-players who appear before them and socialize with them at Bar Association and other events.

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. 

• money is not the only reason people file suit nor the only basis for their decision to settle it;
• whether the litigation at issue is a $2500 slip and fall action between a local grocery store and its customer; or a billion dollar insurance coverage dispute between an insurance carrier and an oil company, the people and commercial players involved are at least as -- if not more -- concerned with injustices that the law does not address as they are with those that it can address;
• though mediated settlement agreements are partially based upon the cost of further litigation and trial, on the one hand, and the probability of victory times the potential jury verdict on the other hand, they are also based on party needs, desires and fears that have nothing whatsoever to do with legal causes of action such as:
  • a corporation's fear that it will not be able to overcome jury bias against commercial enterprises, particularly if that enterprise is engaged in providing liability and/or property damage insurance to its customers;
  • the fear of individuals that they will not be able to overcome jury bias against any marker of their marginalization from the dominant culture such as color, gender, nationality, sexuality or religion;
  • the desire that one's opponent acknowledge responsibility for the role he/she/it played in the events giving rise to the dispute and for the actions taken to resolve it, many of which further inflame the parties' experience of injustice; 
  • party desires for revenge; and,
  • party tendencies to "read" and "spin" the dispute in a way that is favorable to him/her/it in all particulars -- misperceptions that are often corrected in the course of joint sessions between the parties who actually experienced the injury-causing event.

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?

• a physician gives his consent to settle a malpractice action when he realizes that the Plaintiff is not attempting to "hold him up" but genuinely experienced the breast examination he gave her as an assault;
• the creditor agrees to settle for pennies on the dollar when convinced by evidence proffered during a confidential mediation session that the debtor would be bankrupted by any payment in excess of the offer (evidence not discoverable in litigation because it is not "relevant" to the causes of action alleged);
• garment manufacturers settle acrimonious copyright infringement litigation after their counsel allow them to have a confidential mediation conversation which cannot be used in court against them during which they learn that they have more in common -- and more ways to advantage one another economically -- than they have to fight about;
• a claims adjuster is brought to tears -- and seeks greater settlement authority -- by a father's frank confession in a confidential mediation conversation of the guilt he carries for the loss of his child in an automobile accident caused by the  high speed blow-out of an allegedly defective tire; and,
• family members not only settle their lawsuit but reconcile after years of self-imposed exile when they realize the "family" asset they've been fighting over is worth less to them than their love for one another. 

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.

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Let's be clear about one thing.  Mediators are not human Switzerlands. 

We have opinions, often strong ones, about issues like the rule of law in America, negotiated resolutions to intractable conflicts, the proper role of force against another sovereign nation and whether torture is a tool Americans ought to be using in the name of national security.  

Because we mediators spend so much time listening to litigants' competing stories of right and wrong, I don't think I'm going out on a limb to say that we "get" the great gray expanses that separate fear from understanding, anger from compassion and "the truth" from one's subjective experience of it.

What motivated this post was a recent challenge to a mediator's "right" to express his political beliefs in a mediation forum.  "You're supposed to be neutral," said the challenger.  "It's wrong and unprofessional to express your political beliefs here."

As the Presidential election nears, I want to clarify my own views on mediation neutrality, particularly my belief that we mediators do and should leave our neutrality when we close the mediation room door. Neither I, nor this blog, is "neutral" about the upcoming election.  I am actively campaigning to elect Barack Obama because I believe he is best suited to withdraw our troops from Iraq, reconcile ourselves with the world community, respond to conflict as a negotiator rather than as a conquerer would, and restore the damage done by the Bush administration to the rule of law in America.  If I cannot say this because I am fearful of offending some of my readers or concerned that some potential clients will choose not to use my services, I would count myself unworthy of the freedoms fought for by those who came before us.    

What it Means to Be an ADR "Neutral"   

Though there is disagreement among scholars about the precise nature of "mediation neutrality," a recent article on the subject at BeyondIntractability.com expresses my own view.  That article quotes negotiation gurus Kevin Gibson, Leigh Thompson, and Max Bazerman on the three distinct types of neutrality that mediators can and do practice.    

• Neutrality as impartiality, which holds that the mediator should be free of bias and should set aside his or her opinions, feelings, and agendas;

• Neutrality as equidistance, which focuses on the idea that mediators should try to give equal consideration to each side; and, 

• Neutrality as a practice in discourse.

These theorists believe, as do I, that it is part of a mediator's job to assist the parties in framing the problems and to lend guidance in expressing their tales of injustice to one another.   The mediator, say these scholars,  

gives each side a chance to talk about their positions and concerns, and then reframes these issues in a more neutral way so that parties are more likely to listen to and understand the other side's viewpoint[, t]hne helps the parties . . . explore settlement options and to move toward a solution that all can agree on.

Neutrality from this viewpoint "means that the mediator who facilitates this discussion should not have an interest in advancing the goals and positions of any party involved." 

Leaving One's Neutrality at the Mediation Room Door 

To help people resolve conflict requires a mediator to develop certain ways of listening; particular ways of communicating; and, specific ways of thinking about the malleability of "objective reality" in our subjectively experienced lives.  The practice of mediation is also revelatory of the raw power of people's affiliative desires -- their persistent urge to reconcile differences and settle accounts.  

When I leave the mediation room, I remain a mediator in spirit -- one who has seen the value of negotiated resolutions over the useof brute force and the power of collaboration over deference to an authoritarian decision-maker. 

I cannot express my preference for  Barack Obama any better than my friend and mentor Ken Cloke did in the electronic pages of mediate.com this spring.  As he concluded,

[c]apable international diplomacy requires open and committed listening, informal problem solving, prejudice reduction, collaborative negotiation, public dialogue, mediation, arbitration, ombudsmen’s offices, conflict resolution initiatives, and a panoply of proactive, adequately-funded resources that can be brought to bear on any problem. Positive examples can be found in every successful mediation and collaborative negotiation. Ideally, peace-making should receive the lion’s share of our national budget, allowing us to train every diplomat, and international representative in the most advanced mediation skills, include mediation in every treaty, and form an international corps of conflict resolvers, capable of building conflict resolution capacity globally, including in the US.

As mediators, we need to recognize that we also are global citizens, and responsible by virtue of our knowledge and experience for helping to save the planet. We need to weigh in on the important issues of the day that directly touch on our expertise, including not just who we negotiate with, but how we negotiate and why. Without it, Obama and the perspective he represents may succumb to those who think patriotism requires war and the slaughter of innocents. The time to speak up is now.

In electing a new President to lead us into a productive future, I believe, as do many of my mediator friends and colleagues, that Barack Obama is the clear choice.  If our political future is important to us, we will not hesitate to publicly lend him our support.

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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?

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If you've never been asked to perform a field sobriety test, raise your hand.  That's what I thought.  Only Ken Adams whose Dilbert post was one of my week's favorites.

And for the three of you who have not yet seen this video of why not to come to court drunk and how not to respond to the Judge's questions in an intoxicated state, see this hilarious video. 

The rest of us -- most of us - by the grace of whatever Higher Power we invoke in our darker moments - have not needed the services of Jamie Spencer at the Austin DWI Lawyer Blog, host of the Labor Day Edition of Blawg Review #175.

This week, Jamie brings us, among other great posts of last week:

Res Ipsa's tutorial on Firefox; Jordan Furlong’s radical suggestion that non-lawyers (ever heard of a "non-physician"?) can do a lot of good legal work without putting the rest of us out of work; Dan Hull's recommendation that first and second year associates be paid in experience rather than dollars (make law school one year and you're on Dan);  Lawrence Taylor's frightening image of cops with needles;  our sister blog's coverage of the recent FBI Blogger arrest and tips on negotiating with the FBI when they're on your doorstep; Susan Crawford's thoughts on nondiscriminatory Internet access; Randazza's trip down baby-boom lane in a "Fuck the Draft" leather jacket (yes, Gen X and Y, we'll be happy to receive your thank you notes for abolishing the draft now); Mark Hermann's post on enjoining a drug companies to give patients access to unapproved, experimental drugs; and much, much more. 

Check Blawg Review for submission guidelines to host Legal Literacy, a blog I've never visited but will now add to my Google reader as a good source for material on its topic -- building bridges between business and the law.  

Finally, my best field sobriety test anecdote from the police report:

Police officer:  Please recite the alphabet backwards.

Driver: (laughing)  Are you kidding?  I can't even do that when I'm sober!

Here's the web page for The Other Bar for any attorney who believes he or she may have just a tiny problem, perhaps a small issue, with drugs or alcohol.  There's no day quite like the day you finally realize that there's a single, relatively simple solution to an enormous number of personal and professional problems.

Step One:  We admitted we were powerless over alcohol—that our lives had become unmanageable.

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Although I do I try to steer clear of politics, I simply cannot resist during this compelling political week and particularly on this historic day. 

F. Scott Fitzgerald said that the mark of a first rate intelligence is the ability to simultaneously hold two contradictory ideas in your mind.  I aspire to having a first rate intelligence.  Particularly today. 

I do not support Obama because he is bi-racial.  Nor did I support Hillary because she was a woman.  I'm an old fashioned party Democrat.  The Republicans could nominate a gay disabled mixed "race" black and asian orphan from Spanish Harlem and I would not vote for him or her. 

I nevertheless pause the Negotiation Blog this evening to celebrate the great effort -- the individual and collective acts of heroism as well as the small daily tender merices -- that have moved us so far beyond the society in which I was raised -- one in which Southern de jure and the Northern de facto segregation was an accepted fact -- never to be altered.  

I was proud of all of us and of our legal system just a couple of weeks ago when the Bratz/MGA jury "outed" a prejudiced member of the panel who spoke ill of Iranians as a group in a case in which one of the defendants was of Persian ancestry. 

And I'm proud again today.  

That's it.  An executive summary of my optimistic heart.   Below, the pessimism that keeps me from walking off cliffs while gazing at the clouds.

I give you from Frank Pasquale's post at Concurring Opinions today -- Inspiration and Realism in Denver -- the pessimistic part from Patricia J. Williams.    

But there are many signs that the struggle is only beginning. Jacob Weisberg canvasses the lingering legacy of racism in the US, and Patricia J. Williams puts it in vivid detail:

[W]hile some of us are listening to the soothing tones of National Public Radio, a much larger audience—and larger by millions—is listening to Rush Limbaugh singing those subterranean fears of “Barack, the magic Negro,” or to radio shock jocks cackling about “jigaboos,” or to Pat Buchanan fretting that Obama is a radical, unpatriotic, extremist “elitist” to whom the liberal media hands a pass as a “special-ed,” “affirmative-action” candidate. Not that any of them mean it in a racist way. Hey, lighten up. Don’t you have a sense of humor?
 

We can continue to make this union more perfect. 

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(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.  

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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. 

Pathos.

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In honor of which, I'm excerpting and directing you to mediator Ken Cloke's article Thoughts on Mediation, Barack Obama and Our Political Future.

[T]ere are four fundamental issues underlying this Presidential campaign, though they are somewhat broader in scope than what the candidates and pundits have been discussing:

1. What will the future relationship be between the United States and the rest of the world in addressing global problems, from global warming and environmental devastation to war, hunger, and disease?

2. Will it be possible for us to significantly reduce the worst forms of prejudice, based on race, gender, sexual orientation, and national origin?

3. Will it be possible to shift our economic priorities from maximizing corporate profitability to universal health care, debt relief, and taking care of people?

4. Can we shift the political process away from character assassination, domination of campaign financing by the wealthy, dirty tricks, and the posturing, greed, ambition, and dishonesty that undermine its democratic purposes?

What do these issues have to do with conflict resolution? My view, [elaborated in my new book, Conflict Revolution: Mediating Evil, War, Injustice and Terrorism – How Mediators Can Help Save the Planet (Janis Publications, 2008)], is that these issues reveal an underlying source of chronic conflict that not only impacts each of us as individuals, but is perpetuated by social, economic and political systems that form the invisible backdrop, context, and environment within which all of our conflicts take place.

The Meta-Sources of Chronic Conflict

Over the broad sweep of history, we can identify three over-arching “meta-sources” of chronic conflict. These, in my view, are social inequality, economic inequity, and political autocracy. To these we can add a fourth, which is the environment within which they occur, be it natural selection, organizational systems, or the political institutions that reinforce these chronic meta-sources of conflict and constrict our ability to resolve them.

These meta-sources of chronic conflict, in combination, generate a “culture” of conflict, which consists of the ways we think about, address, and resolve our conflicts. This allows us to combine the four issues outlined above, naturally giving rise to a fifth:

5. Will we be able to transform our culture of conflict from one that is destructive and adversarial to one that is creative and collaborative?

These are obviously questions of enormous importance. Why should we think that mediators could have an impact on how they are decided? As an illustration, consider a key element in the Obama campaign and one of the key questions for many voters – should the US negotiate with its enemies?

To read on, click here.

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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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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!

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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.

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(photo from Wikimedia Commons -- an Example of What Does Make Us Happy -- Mastery, Accomplishment, Pride, Team Effort, and, yes, Winning (though winning is an emotional high that has a short half-life) 

Consider this a place marker to provide a plain English version of the Prospect Theory link I gave you yesterday.  While you're waing, here's a reminder of a fact we ofen cite here.

psychological research [concerning] happiness . . . . finds subjective measures of wellbeing are relatively stable over time, even in the face of large increases in wellbeing (Easterlin, 1974; Frank, 1997)

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In 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 retired judge bullying an "injured, situationally-weakened client with no negotiation skills" (cf. Max Kennerly's recent post at  the Litigation and Trial Blog) or disrespecting a marginalized defendant (cf. Dr. Ghaderi)  
• to a mediator who knows only how to repeat "trial is expensive and the result uncertain"
• to a settlement officer who does nothing more than shuttle numbers back and forth between two rooms
• to a "transformative" mediator who allows the parties free reign to "vent" their "feelings" without helping them get a grip on the very real and serious consequences of the negotiated resolution that has been proposed to them.  

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

• we can't predict the future (darn)
• we think so much like lawyers that we've fogotten how to talk to juries like normal people (cf. Gerry Spence)
• too few of us get to try enough cases to be any good at predicting results based on experience
• we're subject to all the cognitive biases every other human being is, including,
  • self-serving bias -- the tendency to evaluate ambiguous information in a way that "fits" our existing view of the world
  • egocentric bias --  recalling the past in a self-serving manner
  • hind-sight bias -- filtering memory of past events through present knowledge
  • bias blind spot -- the tendency not to compensate for our biases 
  • optimism bias — the systematic tendency to be over-optimistic about the outcome of planned actions
  • overconfidence effect -- when we say we're 99% certain, we're wrong 40% of the time
  •  fundamental attribution error -- the tendency to over-emphasize personality-based explanations for behaviors observed in others while under-emphasizing the role and power of situational influences and reversing this error when the behavior at issue is our own.
  • Just-world phenomenon — the tendency for people to believe that the world is "just" and therefore people "get what they deserve"
• We get so stuck in our positions that we fail to ask diagnostic questions that have been proven to result in significantly better negotiated outcomes for both parties.
• We're so averse to leaving money on the table that we walk away from negotiations without having learned that our respective "bottom lines" actually overlap

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.

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.

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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).

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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.

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!

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Who negotiates revenge? 

Lawyers, of course. 

In the criminal law, the negotiation ends either in a plea bargain or the Best Alternative to it -- trial.

Most civil lawyers don't think about revenge much.  When settling a case, however, they should understand their clients' desire for vengence if they want to break past the psychological impasse to giving up the ultimate reward in a society based upon the law -- vindication of a party's  position and punishment of the opposition by way of a jury verdict.

Today, the New York Times -- in Calculating Economics of an Eye for an Eye by Patricia Cohen -- brings us a better way to understand the primal need for vengence which, it seems, is based not only on our "human nature" but also on our acculturation and personal experience. 

Even Dr. Melfi wants revenge in a world where the "justice system is %$^#'ed up."

The good news for countries clinging to the rule of law (as we are despite the recent assaults upon it) is as follows:

vengeful feelings are stronger in countries with low levels of income and education, a weak rule of law and those who recently experienced a war or are ethnically or linguistically fragmented. Anthropologists tend to believe that vengeful feelings were useful in binding a family or group together in early human society. They were protective devices before states were established and did the job of punishing wrongdoers.

Check out the full article here.  H/T to Marginal Revolution here.

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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."

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I am writing an appellate brief.  I do this from time to time to keep my hand in the game.  I also do it because . . . . .  well, it's a heckuva lot easier to make money as a lawyer than it is to make money as a mediator.

Just saying.

Not only that.  Litigation is a heckuva lot more comfortable than mediation. 

Why?

• I'm right

          Alone in my office with Lexis/Nexis, Westlaw, and the cold appellate record I am right about my client's position, its version of the facts, and its read of the law.  I've read the other side's arguments and they're . . . wrong, wrong wrong.  They mis-state the factual record, cite irrelevant case law, construe the contract contrary to its plain meaning and misapply its provisions under their own recitation of the facts.  They elide, evade, fail to answer the hard questions, and mislead the court.    

• I'm on the side of truth, justice and the American way 

          I'm not only right.  I'm righteously right.  With this brief, I will correct every injustice my client has suffered, justify every humiliation I have suffered at the hands of the trial judge, vindicate myself for all of the times my client has doubted my first [perfectly right and righteous] evaluation of the merits of its case.  For this moment, as I sit at my computer alone, I live in a country and work in a system in which compromise is not necessary; loss need never be suffered; my client can be made "whole."

• The chaos of community is orderly and predictable 

          There is precedent for this messy business problem.  The courts have laid out the grid.  All I have to do is meet the 3 tests, satisfy the 4 conditions, perch the right facts on each of the 5 prongs, prove the elements of my rectitude.  All of my versions of the facts being true, true, true, there is only one right and predictable outcome possible.  It is the one I have always said was right.  Chaos will be vanquished.  Order restored.  

• I do not have to suffer loss

          Until the last appeal has been made to the highest court in the land, neither I nor my client need suffer loss.  We do not need to experience injustice; make an effort to make peace with our neighbors; accept the possibility that our memories are spotty; our analysis subject to criticism; our behavior less than laudatory; our reverses irreversible. 

• As long as I am writing this brief, the world conforms to my vision.

          As long as I am writing, I am not only potentially victorious, I live in a world of my own choosing, that conforms to my sense of the way things ought to be.  The characters in my world are good or evil.  There is no middle ground.  They are telling the truth or they are lying.  They live their lives by right principle or they are scoundrels whose evil deeds will surely be their undoing.  

• I am innocent again

          As long as this appeal lasts, I am a child again.  It is 1962 and I am in the fifth grade.  The Lone Ranger will always ride to the rescue. I do not yet have to worry about Tonto's place in the social and economic order of the day.  The cattle rustlers will be punished.  The hard working ranchers' goods will be returned.  Honor will be vindicated.  The bandits will be put behind bars or buried in their graves.  

 A fiery horse with the speed of light, a cloud of dust and a hearty "Hi Ho Silver!" The Lone Ranger.  With his faithful Indian companion Tonto, the daring and resourceful masked rider of the plains, led the fight for law and order in the early west. Return with us now to those thrilling days of yesteryear. The Lone Ranger rides again!

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O.K., the subject line was meant to shock you and to draw criticism for what I will admit is my greatest unresolved prejudicial default -- that white men over 65 who didn't participate in the  American cultural revolution of the late nineteen sixties and early 1970's did not and will never "get it." 

The Court opinion that triggered the headline and the recollections below is here.  The "executive summary" is as follows:  One of three arbitrators who cast the deciding vote on a plastic surgery malpractice case

• failed to disclose that he'd been censured while on the bench for making "sexually suggestive remarks to and asked sexually explicit questions of female staff members; referred to a staff member using crude and demeaning names and descriptions and an ethnic slur; referred to a fellow jurist’s physical attributes in a demeaning manner; and mailed a sexually suggestive postcard to a staff member addressed to her at the courthouse.” 
• The majority arbitrators deciding the malpractice case stated that the female claimant was not credible because the "severity of the symptoms to which she testified went beyond what she described to her doctors, adding, “This claimant has had five prior facial surgeries.”
• Similarly, in summarizing the claimant's expert’s testimony, these arbitrators noted, “One thing probably everyone can agree upon, after five facial surgeries, [claimant] could have done without a sixth one.”

Back to My Own History as Descriptive of --  But No Excuse for -- My Own Biases

We all have biases that we hide from others and some that we successfully hide from ourselves.  

We live, I'm told, in a 200 year present.  That means that my early life affects your life today.  After all, I'm an old white woman, about whom you may well have biases.  If I sit on your arbitration panel, you're going to want to understand those biases.  That's why I'm giving you a bullet-pointed history of what the world was like when I was forming my essential character at 17 years of age in 1969.

• the "want-ads" in the classified section of every major newspaper in American were categorized by gender -- "help wanted - women" and "help wanted - men"
• in my senior year in high school, my entire class took "preference aptitude" tests to give us an idea of what our future careers might look like -- the girls were given "pink" tests and the boys "blue" tests -- had I shown an aptitude for, say, math (and no I didn't) I would have been steered into nursing; my male friends into "medicine" as physicians.
• women were subject of explicit ridicule in magazine and newspaper cartoons -- we were airheads, bimbos, bad drivers, harpies or -- the "new" stereotype -- communist-longhair-folk-singing-America-hating-hippie-riot-inciting-"girls" who were alternately "men hating" or -- an old phrase -- "of easy virtue."

• it wasn't until the 1970's, when I was in college and already planning a career teaching English (after all, nursing required math-skills) that the idea of a career in the law for women as anything other than a secretary began to seem possible.
  • at Columbia Law School, the 1970 graduating class was only 8% female
  • by the year I graduated from law school in 1980, Columbia's female population had grown to a whopping 32%
  • although the enrollment of women in my law school class at U.C. Davis was nearly 50% in 1980, when I told my beloved mother in 1976 that I was going to apply to law school she said "why do that, honey?  Be a legal secretary, then you can marry a lawyer."
  • when my husband attended Yale Law School ('67-'70) he had seven women classmates
  • until the late sixties and early seventies, a woman desirous of an Ivy League university education had no choice but to go to a "woman's" school -- Barnard, Radcliff and the like.
• when I was in high school
  • abortion was illegal
  • married women were not entitled to their own credit cards
  • gender discrimination was both de jure and de facto -- it was o.k. to refuse to hire, sell to, rent to, deny membership to, etc. -- women
• when I  was practicing law (these all from the early '80s)
  • a partner for whom I worked told me that women weren't permitted at the local "men's only" club because "we don't want our wives there."
  • a Judge required me to identify myself as Mrs. or Miss and when I said I didn't think it necessary to identify myself by my marital status, asked "what are you some kind of [women's] libber?" (yes, I lost the motion)
  • I was advised by the few women attorneys senior to me not to get pregnant until after I made partner
  • secretaries were allowed to refuse to be assigned to a woman attorney
  • the first woman to make partner at my law firm was quite openly referred to as "the first muff partner" by her colleagues 
  • on the other hand, when a client said (of my assignment to its case) that the company did not want to be represented by a "girl," my partner told the client "then you don't want this firm representing you because she's the best associate I have"

I promise to work on my prejudices.  And I advise anyone who is about to appear before any dispute resolver -- be that person male, female, white, black, young or old, GOOGLE THEM FIRST!

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A tremendous effort accomplished today by Blawg Review # 167 at E-Commerce Law, bringing us at least one post from blogs in all 50 states organized by the date of their entry into the union.  Blogger Jonathan Frieden must have devoted much of any lawyer's cherished 3-day week-end to this effort, for which all legal bloggers should give him a hearty round of applause.

On the ADR front,  Jonathan gives us Oregon, admitted on February 14 (how very Oregonian) 1859 and The National Arbitration Forum Blog entry  Americans Increasingly Denied Access to Justice.  Here's the attention-grabbing lede.  Click on the link for the full post.

The latest California Bar Journal contains an alarming and attention-grabbing piece from the Bar President. In The neglected middle class, Jeff Bleich explained how hard it has become for the hardworking American to get their day in court.

"[O]ur legal system is increasingly serving only the wealthiest interests or the very poorest ones: those who have great resources and those who are lucky enough to get help through legal aid, despite the serious underfunding of that system."

And while we're thinking of the flag and all things  patriotic, here are a few random links on patriotism and justice.

Obama and the Flag (pin) from the Los Angeles Times.

Patriotism, Irony and Liberty from Sinners in the Hands of an Angry Blog.

Truth, Justice and the American Way from the Long View

Patriotism:  Not Just for Lapels at Abundance of Absurdities

Patriotism and Michelle Obama: A 4th of July Reflection from Anne-Marie Slaughter (Huffington Post)

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(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.

Read the full article here.

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). 

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Thanks to Diane Levin at the Mediation Channel for linking to this video of author Christopher Hitchens voluntarily submitting to water-boarding. 

I didn't want to watch it. 

I did anyway. 

It's the least we can do as we prepare to elect a new President in November.

Click here for the video.

Here's the ACLU post on the event.

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(Flag courtesy of the Tax Law Forum via photobucket)

First, thanks to A Man Among Mommies for copying the entire text of the Declaration of Independence which is must-reading in any year, let alone an election year.  I give you only the intro here:

In CONGRESS, July 4, 1776.
The unanimous Declaration of the thirteen united States of America,

When in the course of human Events, it becomes necessary for one People to dissolve the Political Bands which have connected them with another, and to assume among the Powers of the Earth, the separate and equal Station to which the Laws of Nature and of Nature’s God entitle them, a decent Respect to the Opinions of Mankind requires that they should declare the causes which impel them to the Separation.

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. . . .  

That whenever any Form of Government becomes destructive of these Ends, it is in the 

Continue reading here.  And check out Blawg Review for a moving video on the writing of the Declaration (mentioning the original denunciation of the slave trade contained in the first draft).

If you'd like to know why you have the day off from work today, take a look at Inflexion Advisor's July fourth post here.

The Pensacola Beach Blog celebrates the Fourth of July by warning us about the perils of the proposed FISA Act here. (hint:  our Constitutional Rights are once again at stake)

The Law Librarian Blog has recommended reading for the Fourth ('natch)

Rebooting Democracy: Ideas for Redesigning American Democracy for the Internet Age, an anthology of 44 relatively short essays, was released at Rebooting the System, the fifth annual conference sponsored by the Personal Democracy Forum.

Blogging the Boys celebrates the fourth with a short gratitude list to former civilizations (and some still chugging ahead) for our liberties (with a photo of a type never seen here that will warm the hearts of my male readers).

Comparative Quotes on Tyranny (Quotabull) at Scholars and Rogues. 

The Blog of Rights celebrates by giving us the ACLU's definition of patriotism: 

Patriotism doesn’t mean blindly following the will of a few. It means being part of an informed and involved citizenry. It means exercising dissent by speaking out when you don’t believe in what is happening. It means being constantly vigilant in the protection of civil liberties, and holding government officials accountable when they take aim at our freedoms. And above all, patriotism means loving this country so much that we will fight to protect the things that make it great for generations to come.

Underdog weighs in on the Continuing Struggle for Civil Liberties here.

By now, the United States government thrives on control backed by force, the threat of force, and punishment, not only through military might, but also through an overgrown and overbearing criminal "justice" system of police, laws, money, prosecutors, courts, and prisons; an overgrown national security system that leaves us little privacy, security, or sufficient liberty; and an overgrown spying and "intelligence" system.

Fortunately, a strong movement continues in favor of civil liberties and government by the governed rather than the reverse. The movement is led by the American Civil Liberties Union, fearless and skilled criminal defense and Constitutional lawyers, the drug legalization movement, and the list goes on.

July 4 is meaningless without an ongoing struggle for civil liberties. Now is the time to join that struggle.

Even on a National holiday, one legal blogger is still thinking about the 46.6 Million Reasons to Think about Settlement (the Ohio Employers' Law blog). 

And finally, the "out of the box" thinking we've come to expect from Conflict Zen -- the Declaration of Interdependence video.

HAPPY FOURTH OF JULY TO ALL MY READERS AND THEIR READERS AND THEIR READERS' READERS!! 

Whatever our political disputes, we Americans make the effort to be guided by the values of  Jefferson's Declaration.  

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Gini Nelson of Engaging Conflicts ran a six-part series recently on "Adding Cooperative Practice to the ADR Toolkit."  Her final part in this series -- linked supra -- is the final entry of Guest Blogger Law Professor John Lande’s posts.  Linked here is his article The Promise and Perils of Collaborative Law -- which is also linked in Gini's blog with her comments here.

Before you run over to Gini's site to read Lande's excellent post or his great article, I'd like to simply bullet-point some observations based upon my four-years of full-time mediation and arbitration practice.

• when I co-arbitrate with some of the best commercial arbitrators in the business -- these are Ivy League lawyers with many decades of experience representing Fortune 50 Companies in AmLaw 100 Law Firms, the ultimate decision changes many times during the course of deliberations and almost always could go either way.
• having spent a considerable time in the Los Angeles Complex Court as an experienced commercial litigator "externing" for credit to earn my LL.M in '06, I can tell you that the deliberations in chambers of these highly respected jurists is not much different that those in which I have engaged when sitting on an arbitration panel

The take away?  No matter who is hearing your case, your chances of winning are 50-50.  Flip a coin.  Think this doesn't apply to you?  I have arbitrated cases being handled by the top ten law firms in the country.  I have seen those same type of firms litigate and try cases in the Complex Court.  It's 50-50 friends.

Below -- observations on how you and your mediator can be "happy together."  (And the Turtles from 1967 so that you can have a little musical accompaniment to this post) 

Observations of End-Game Litigation from a Mediator's and Settlement Consultant's Perspective.

Despite years of inquiry and the review of millions of documents, sophisticated parties (Fortune 50) represented by dynamite law firms (AmLaw 50) haven't yet learned the most fundamental information about the following matters -- most of which are more important to the settlement of the case than the cost-detriment-benefit-position-driven-chance-of-victory settlement posture:

• what are the hidden interests that your opponent must satisfy before accepting a settlement that is below the number he once told his client should never under any circumstances be accepted?
• what are the hidden constraints upon your opponent's authority that must be removed before he can pay more money than he once told his client should never under any circumstances be paid?
• why was this litigation initiated in the first instance?
• who gave the litigation the "green light"?
• what are the probable consequences to the continued financial security of the person who gave the litigation the "green light" in the first place or who has authorized the defense bills for the last 5, 10, or 15 years?
• is the person who green-lighted the litigation in the first place still employed by your client?
• what are the probable consequences to the financial well-being of the corporation who must pay more than it wishes to pay or accept less than it wishes to recover?
• Who is the most frightened person in the room, i.e., whose hide might be sacrificed if the litigation settles for more/less than predicted, or, often worse, actually goes to trial.

There are so many of these settlement-driving and -inhibiting questions that only my own personal time contraints -- I must start my day's work -- make me stop listing them.  

Let me conclude with this however.  Never underestimate your client's reluctance to settle the case on terms that seem unjust to it.  This is the most important function a mediator can play on the day of settlement -- explaining justice issues to the clients and helping the clients de-demonize their opponent -- which occurs most easily in JOINT SESSION yet which most litigators would rather have their teeth drilled than attend.

O.K. I can't conclude without saying this.  If you have the courage to try a case, you possess the cajones to participate in at least one joint session to help the parties come to terms with the justice issues -- which are often driven by the conclusion, affirmed over and over again in the course of the litigation, that their opponent is an evil, mendacious