About Us

Victoria Pynchon

As the co-founder of She Negotiates Consulting and Training, I offer my services as a keynote speaker, trainer and consultant....

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She Negotiates

She Negotiates

The 33 cent wage and income gap is unacceptable and unnecessary. So is the cliché glass ceiling. Bottom line, our...

The Negotiation Doctors Are In At The Daily Muse

Starting this week with Questions to Ask Before Negotiating, the co-founders of She Negotiates Consulting and Training will be answering your negotiation questions (men's and women's) twice a month at The Daily Muse.

Our column, Ask the Negotiators, depends on you for its success.Research shows that negotiators learn best when working out their own bargaining challenges instead of attending classes where they're asked to negotiate hypotheticals whose facts are limited and often don't pertain to the negotiation environment in which men and women are required to have an often difficult conversation leading to agreement.

So please, send your toughest negotiation problems to us. We rarely achieve salary increases of less than 20% for our clients whether they're seeking a raise or making a lateral move. We've helped business people sell their small companies to larger ones, assisted others in having difficult conversations with their current employers as a last step before job hunting, and have helped organizations get their people working together as a team again.

There's no negotiation problem too tough for us and if we don't know the answer off the top of our heads, we do the research necessary or seek out the industry experts who can guide us - and you - in the right direction.

Here are my prior columns answering reader questions. Take a look at my co-founder Lisa Gates' profile here and decide who you'd like to ask or simply throw the question up for grabs by sending it to negotiation@thedailymuse.com. 

Ladies and gentlemen! Start your engines! Life is about to get easier and work far better and more remunerative.

We advise HR people as well so its not all employee related. We deal with companies, entrepreneurs, non-profits and individuals who are all seeking to get what they deserve - a happy, fair, productive and just workplace for everyone.

National Girlfriends Networking Day: See Soledad O'Brien's Spontaneous Offer to Feature WNBA Star in Documentary

Are You Negotiating From a Position of Weakness or From a Position of Power?

1. “Think powerful”
Job candidates are rarely in a position of power as interviewers decide the fate of their future career prospects. Yet, the winning strategy in these situations is thinking that one has power, in spite of the situation. As a candidate, how can you engineer a powerful mindset? Well, a simple trick is to remind yourself about a time you had power over a situation right before an interview, and invoke the precise feelings associated with that memory – feelings of confidence and competence, as well as decisiveness during decision making.
One of my recent research projects, Power gets the job: Priming power improves interview outcomes co-authored with Joris Lammers (University of Cologne), Derek D. Rucker (Northwestern University) and Adam Galinsky (Columbia University) tested just that idea: as part of a session of individual mock interviews, we assigned business school applicants to one of three conditions. In the first condition, applicants wrote a short essay about a time they had power just before entering an interview. In the second condition, applicants also wrote an essay, but this time about a time they lacked power. Finally, the last group did not write anything.
Then, we asked interviewers the likelihood that they would accept the candidate into a business school. When candidates went straight to the interview, interviewers accepted 47.1 percent of the candidates. However, the admission rate went up to 68 percent for those people in the group who wrote an essay about a time they had power, and fell to a low 26 percent for those who wrote an essay about a time they lacked power. Importantly, interviewers were unaware of the power manipulation we had given candidates. Thus, merely recalling an experience of high power increased candidates’ likelihood to be admitted by 81 percent compared to baseline and by 162 percent compared to those who recalled an experience of powerlessness.
Of course, there are other ways to engineer personal feelings of power. For instance, candidates can wear objects that make them feel powerful, such as a watch or a particular bag - anything that links you with feelings of power.
2. “Behave powerful”
Power is not only a mindset; it is also a behaviour. Small, almost unconscious moves signal power to an audience and can significantly change the outcome of an interview. In her recent TED talk, Amy Cuddy (Harvard University) provides an excellent summary of how non-verbal language can have a profound effect on how people are judged in contexts as varied as hiring or promotion interviews, a sales context or even a date. As such, physical poses such as wrapping legs, hunching or relying on one’s arms are many subtle signals of powerlessness that cast doubt on what candidates say, regardless of the content of the conversation.
The Virtuous Circle of Power
Interestingly, adopting “power poses” does not only affect how interviewers judge candidates, but also ironically reinforces candidates’ feelings of power. In recent research, Li Huang from INSEAD and colleagues had participants take powerful (for example, expansive postures) or powerless (constricted postures) poses and found the former behaved more powerfully than the latter, by taking action more often and thinking more abstractly, two well-known consequences of power. So, behaving in a powerful way is not only important for how interviewers perceive candidates, it is also a key driver of how candidates will behave!
Read more: http://forbesindia.com/article/insead/power-boosters-how-to-land-that-job-when-you-think-you-cant/35149/1#ixzz2VAQEbLlt

No matter where I go to teach negotiation strategies and tactics, people tell me they feel as if they're bargaining from a position of weakness. You'd think the lawyers at Intel, Qwest Communications, Warner Brothers and Sony Pictures Entertainment or the engineers and managers at Kraft Foods, all of whose people I've trained, would drape themselves in the power of their corporate brand.

Not so. More than 80% raise their hands when I ask them whether they're negotiating from a position of weakness.

That, I suppose, is because I haven't trained those companies' CEO's, GCs or Boards of Directors. But even then I'll bet I could flip a coin on their answer to the question. The Boards of Directors, after all, have to answer to shareholders and federal governmental agencies. CEOs must answer to their Boards and GCs to the CEO. Sometimes all of them feel intimidated by the lady in HR because Human Resources is the hot nuclear core of conflict in the organization.

What, then, can we do to increase others' perceptions that we have power, a perception that is more than half of our bargaining strength.

Over at Forbes today, we read about some powerful research done by several hot shot academics, including Adam Galinsky whose work I've featured at The Daily Muse and ForbesWoman.


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What Are Your Super Powers And What Are You Waiting For?

I just spent the weekend with a group of incredibly engaged, brilliant and successful women lawyers at the Vail Sebastian Hotel where I keynoted the annual Conference of the Colorado Womens Bar Association.

Four questions stirred the greatest interest.

  1. What are your super powers to get things done?
  2. Do you have (or need) the authority to use them?
  3. What can you use them to accomplish to further your own career?
  4. If you're not using them, why not?

Last night at the cocktail party after my presentation (slideshow below) dozens of women approached me to tell me what their "super powers" were.

  • Institutional Knowledge.
  • Ability to assign work.
  • Persuasiveness.
  • Influence over firm power brokers.
  • Willingness to study for and take foreign bar exams (a recurring nightmare in my book, but hey! "how is the firm recompensing you to study for and take it?")
  • Ability to promote younger lawyers.
  • Ability to form relationships with the firm's clients.
  • Speaking ability.
  • Writing ability.
  • Ability to: take a great deposition, write jury instructions, try a case.
  • A large social-professional network that can be tapped for favors and referrals.

And on and on and on.

If you have not made a list of your "super powers" please do so now. Ask yourself how they can benefit your career. Then ask yourself whether you're using them effectively to do so and if not, why not. 

Then go and prosper!


What Are Women Missing? National Girlfriends Networking Day!

This is your invitation to join The New Agenda, Ms. JD, She Negotiates, and the Women Lawyers Association of Los Angeles at Proskauer Rose in Century City on June 4, 2013, at 9 a.m. for National Girlfriends' Networking Day. We'll be networking, of course, as well as live streaming a stellar panel of successful women including Emmy Award winning journalist Soledad O'Brien, Editor-in-Chief of More Magazine Leslie Jane Seymour, angel investor and advisor of Women Entrepreneurs, Joanne Wilson, and WNBA player and coach, Taj McWilliams Franklin

This is also your invitation to attend the LIVE event in New York City and a half-dozen other live streaming events in San Jose, San Francisco, Los Angeles, Rochester and Short Hills.

Why should you attend the Second Annual National Girlfriends' Networking Day?


  • The women in your firm may mentor you (teach you the ropes) but not sponsor you (put their skin in your game).
  • Or the women in your firm may do nothing for you.
  • Or, worse, the women in your firm may sabotage you. (Men will too so don’t think this is about "cat fights" or "Queen Bees" or any other women hating tropes).

This is about the accumulation of wealth and power and no gender owns avarice or generosity. Speaking of which, a huge round of applause to Proskauer in Century City and Arnold & Porter in San Francisco for lending their offices and catering support to the live streaming events in San Francisco and Los Angeles.

Continue Reading

Decade's Most Popular HBS Working Knowledge Articles

Must Read for Mediators: the "Should I Work for Free" Flow Chart

Let Deb Sofield Increase Your ROI on Your Speaking Engagements

I had the pleasure of speaking at the Annual Meeting of the Women Lawyers of South Carolina last week, a more dynamic and women's-issue focused group of women lawyers than you're likely to find anywhere in this country.

I love speaking to women, particularly about negotiating their market value and shattering the glass ceiling one at a time and with one another's support.

I never intended to make speaking part of my career.  For four years I simply used it as a marketing tool to engage my market and prove my market value.  But when you do something long enough and work at it hard enough, eventually you'll want to monetize it.  So it was that I was sitting at lunch in South Carolina listening to Deb Sofield (above) give her fifteen rules for ruling the room and ensuring that the audience had a good time under her benevolent dictatorship.

Still, I was thinking, OMG!!! Deb's listing at least half the things I do badly!!  How am I expected to follow this????  And for the first time in years I had actual stage fright.

Here's the happy end to this story and the reason I want you to go to Deb's website right now and hire her, follow her, read her newsletter, and do whatever she says to do because my performance as a speaker immediately following her talking points improved a full 100%. And speakership is leadership and leadership is the brass ring. You need it to enter and stay in the executive suite; to "make rain" and retain clients; and to make anything you want to happen, happen, even if it's just getting the kids to bed on time (Deb's rule:  short sentences, big ideas).  Build a school in Africa or bring medical care to South Central Los Angeles.  Run for office (one of Deb's specialties).  Make the world a better place.

That's how powerful speaking can be after you've spent 20 minutes with Deb. So go to Deb's website now. Invite her to speak to your group of women and pay her very very well because she is one of the few women on the speaker's circuit today who can literally, spontaneously and instantaneously transform the quality of your life.

Then I'll tell you why speaking is negotiating. (cross-posted on the She Negotiates blog here)

Who's Too Big to Fail? We Are!

Cross-posted at She Negotiates

What does this man have that you don't?

A year-end 2009 salary of $21,340,547 during one of the worst year's in the history of his industry ~ banking.

Listen!  The recession is just another excuse for not paying you what you're worth.

How do we know?

Because the most effective negotiators on the planet ~ corporate CEO's ~ are finding the downturn to be the best time to squeeze every last living dollar out of their employers.

If they can do it, so can you!

 Here's the evidence:

Bank of America Corp.
Thomas Montag
2009 Total Compensation: $29,930,431
JPMorgan Chase & Co.
James Dimon
2009 Total Compensation:
Citigroup Inc.
John Havens
2009 Total Compensation: $11,276,454
Morgan Stanley
Walid Chammah
2009 Total Compensation: $10,021,969
The Goldman Sachs Group Inc.
Lloyd Blankfein
2009 Total Compensation: $9,862,657
Wells Fargo
John Stumpf
2009 Total Compensation: $21,340,547

 Whhaaaaaatttttt? do these men have that you don't have?

  • Social networks with rich and powerful people who sit on their Boards of Directors and influence policy makers and Wall Street power brokers
  • The self-created illusion that they are "too big to fail" /1
  • The persuasive argument that only they, with their unique combination of experience, education, knowledge, savvy, can-do-spirit, and leadership qualities can pull these banks out of the sinkhole of the recession.
  • Friends in very high places.
  • Chutzpah and shamelessness (not that we'd want to encourage this second character flaw in our readers).
  • Self-satisfaction.
  • Entitlement.
  • An employment history of asking for and receiving increasing levels of compensation based upon their salary negotiations at every career point possible (and every career point impossible)
  • the demonstrated ability to produce results (our readers do possess this strength but haven't used it to their greatest advantage yet)
  • the tendency to measure their market value by their value in the hands of their employer, not by what they "need" or what they are "worth" according to some internal metric that depends upon how they feel about thier accomplishments.


1/  This is where collective action comes in.  When we aggregate together America's employees, small business owners and homeowners, we get a non-corporate "entity" that is waaaayyyyyy bigger than some little piss-ant bank and it is we who are too big to fail.

three is the magic number . . .

. . . and the Supreme Court has it.  Check out The Female Factor over at Slate (excerpt below):

Social scientists contend that the difference is more than just cosmetic. They cite a 2006 study by the Wellesley Centers for Women that found three to be the magic number when it came to the impact of having women on corporate boards: After the third woman is seated, boards reach a tipping point at which the group as a whole begins to function differently. According to Sumru Erkut, one of the authors of that study, the small group as a whole becomes more collaborative and more open to different perspectives. In no small part, she writes, that's because once a critical mass of three women is achieved on a board, it's more likely that all of the women will be heard. In other words, it's not that females bring any kind of unitary women's perspective to the board—there's precious little evidence that women think fundamentally differently from men about business or law—but that if you seat enough women, the question of whether women deserve the seat finally goes away. And women claim they are finally able to speak openly when they don't feel their own voice is meant to be the voice of all women.

Over at She Negotiates, we use the power of women to support, encourage, cheer and brainstorm in every class we offer, with the greatest power coming to and from our post-graduate Negotiation Master Classes which are limited to only four women.  For additional information about how you can use woman-power to improve your bottom line, contact either Lisa or Vickie using our contact form or catch either one of us at our direct numbers.

This isn't about gender-war, this is about human peace and prosperity!

Thanks to Bruce Moyer, the Federal Bar Association's Government Relations Counsel for the head's up on this one.

Non-news of the week with an exclamation point: GC's should negotiate their legal fees

Wow!  Does any general counsel in the land truly not know this?  Here's the law.com headline - with emphasis, mind you, as if gold had been discovered in them thar hills.


'Enormous' Bargaining Chip: Survey Shows Law Firms Charging Clients Different Rates — for the Same Work!

Law firms' corporate clients are not created equal, if billing rates are any indication.

Firms are charging different hourly rates to different clients for doing similar work, according to an analysis of more than $4 billion in law firm billings that will be released in September.

Differences in billing rates are just some of the preliminary findings in the "Real Rate Report" by CT TyMetrix and The Corporate Executive Board. The report examines billing from more than 4,000 law firms, 50,000 individual billers, and 18.9 million invoice items from 2007 to 2009.

The data was collected from CT TyMetrix's clients. Law firms and corporate legal departments have been using the company's web-based financial and e-commerce software to handle ebilling and matter management for more than 10 years. About $30 billion in legal invoices have flowed through the company's systems, said Julie Peck, vice president of corporate strategy and market development at CT TyMetrix.

And the results of the report, once released, will be aimed at helping general counsel make better decisions about how and where to spend their money. The findings will be broken down by several factors, including geography, law firm size, staffing, and the types of matters handled.

"It will give general counsel an enormous amount of bargaining power," Peck said.

Read more of this is this is news to you here!

Mothers Day Issue of Blawg Review #263 is Up and Running at the She Negotiates Blog

We’re celebrating Mothers Day by posting Blawg Review #263 at the She Negotiates Blog for one obvious and some not so obvious reasons.  The obvious reason is the word “She.”  The not-so-obvious reasons are:  (1) Mother’s Day was a peace and reconciliation movement before it was a holiday; and, (2) peace exists only when we have the political will to seek and the negotiation tools achieve the resolution of conflict.

In addition to the main post, we've also posted Blawg Review #263 on our She Networks, She Succeeds, She Transforms and She Resolves pages (up at the top of the blog).

Transforming Rejections into New Business with "Influence Letters" from ForbesWoman

The following article is a must-read for these economically challenging times. Excerpt below and link to entire article at end of excerpt.  This also works for consultants, attorneys, trainers, mediators, and anyone else who is marketing their services to clients.

by Susan Adams

The woman was interviewing for a lucrative position as director of a sales team. After having three great meetings full of lively conversation about how she'd handle the job, she was optimistic. But then came the fourth and final interview, with the company's executive vice president. Things were going swimmingly until the interviewee asked a question designed to lock in the offer: "Do you have any issues with my candidacy?"
"Frankly, yes," the executive replied. "You're good with people, but you don't have the analytic background we need. Not only would you need to steer the sales team, but you'd need to analyze information and data too." Shocked, the woman left the meeting realizing the offer she'd thought was in the bag was gone.

In a high-pressure job search, is it ever possible to turn a no into a yes?

Absolutely, says Robert Hellmann, a career coach at the Five O'Clock Club, a career counseling firm, who also teaches career development at New York University.  Hellmann was coaching that very woman, and he helped her turn the situation around.

After every job interview, Hellmann advises, you should write not a thank-you note but what he calls an "influence letter." In this case, that letter became his client's key to getting back into the running

The letter should always address the conversation you've had and your skills and experience. First, in the interview, you should ask what challenges the company is facing and what the new hire will need to do as soon as she starts work. In the influence letter, address those challenges concretely, ideally by describing similar challenges you've tackled at a previous job and how you handled them.

Continue reading here.


Social Media for Lawyers, Mediators, Negotiators and Friends

I make these presentations because people ask me all the time how to use and maximize the value of social networking to build their businesses.  This presentation includes a YouTube video on building a network with Facebook Fan PagesSocial Networking 101

Negotiating Gender: The Old White Men Speak

And they do so in favor of diversity.  See commercial arbitrator and mediator F. Peter Phillips' November 2006 National Law Journal article:  ADR Continental Drift:  It remains a while, male game.  I promised prescriptions for change and here are a few sent to me by Peter Phillips this morning.  Peter was, as I am now, a member of the CPR Diversity Committee.

Once again, based upon my personal experience and that of tens of thousands of other women in commercial legal practice I continue to believe that until we are fairly represented on commercial ADR panels, both arbitration and mediation, we cannot expect significant change.  This may happen as a matter of the natural "aging" process of the field.  The ADR field looks now exactly like the legal field looked to me when I entered it in 1980.  Not surprising given the fact that ADR is historically a "retirement" field.  That is already changing, to beneficial effect.

For the adventuresome, Peter's pro-active recommendations below. I highly recommend, by the way, that you follow Peter's Business Conflict Blog.  It's one of the best out there.

(screen shot of google search for our local legal rag's "top 50 neutrals)

What if the country’s leading law firms—from which so many of our leading mediators and arbitrators emerge—had an incentive to encourage more diverse members of the firm to enter this field?

■ What if a benchmark survey were conducted to determine how often law firms suggest mediation to their clients; how often mediation is in fact tried; and how often diverse mediators are proposed to clients by outside lawyers and ADR provider organizations?

■ What if the property casualty insurance industry, as the largest consumer of legal services and of ADR services, conveyed its expectation that the firms that insurers pay for, when they propose mediators and arbitrators, will be expected to propose diverse individuals?

■ What if influential national ADR organizations combined forces to better reflect their corporate and legal constituents, and meet their customers’ expectations, by sharing information on excellent women and minorities who are not now on their lists, but should be?

■ What if initiatives were undertaken to encourage particularly promising women, younger people and minorities from firms to attend ADR colloquia, seminars and other events in order to network, learn and advance their visibility and recognition among the ADR community, as well as to contribute diverse views and perspectives?

■ What if a mentor program were designed and funded, pursuant to which younger female and minority attorneys could “shadow” established mediators and arbitrators (whether or not they are women or minorities) and establish skills and reputations thereby?

■ What if corporations and law firms intentionally engaged younger mediators who are women and minorities in smaller matters, so that those professionals would gain experience as neutrals and be better positioned for the larger cases?

■ What if scholarships were established to enable young people to be trained as mediators and arbitrators, with the expectation that a person thus trained would be skilled not only as a neutral, but more generally as a negotiator and client representative in settlement?

■ What if a very “early pipeline” were begun, and ADR institutions worked with Street Law Inc. (www.streetlaw.com), a national program that trains high school students in legal issues, or a similar organization to provide materials and information for children to become interested in ADR as a profession?

It is perplexing that this one aspect of the legal profession—a field that is otherwise so robust, so progressive and so creative—lags behind so miserably in satisfying client expectations for diverse practitioners. But there is no indication that it must be so. And with diligence, creativity and practical action, it will not long be so.

Here are more diversity resources from CPR.

Letter to a New Attorney on Web 2.0


(image from EdTechPost :  note on graph:  it doesn't have to be like this.  Twitter is a tool that can be used strategically as part of your marketing plan for a long, long time and it constantly gets better as the people who do these things build applications and as twitter adds new features; this is completely accurate about the start-up however)

Dear New Web 2.0 Attorney Inhabitant,

Welcome to the Island!  Here are a few of its founding principles and folkways:

  1. the natives are friendly networkers who want to share their interests; their friends; their colleagues; their knowledge; and, their experience with you;
  2. you may inhabit any part of the Island and as much of it as you wish; there are no borders here;
  3. no one is interested in your bio here; they want to get to know who you really are; if they're sufficiently interested in that (because you're engaging, friendly, helpful and authentic) they'll eventually get around to asking you what you do for a living (most of them will have intuited it from your interests, however, and won't need to ask);
  4. your primary purpose on the Island is to be of service to others;
  5. play nice;
  6. the Island doesn't require you to do anything - you may visit it and its inhabitants whenever you please; it is not your demanding, insistent, annoying, taxing "in" box; it is not email;
  7. the island boasts educational institutions (law blogs, for instance, and at least one legal University - Solo Practice U); bar associations (Commercial Arbitrators and Mediators and Patent and Intellectual Property Practitioners); exhibit halls (I've set up a booth to sell my book here); help desks staffed by professionals and CEO's (at LinkedIn here); playgrounds (Facebook, depending upon how you choose to use it); and, a lovely river right outside of town that you can wander over to watch, in which to fish for information, or, onto which you can launch a boat of any type, size or design - twitter).

Here are some helpful hints if you want to visit the Island's river - Twitter.  

  1. UNLOCK YOUR DOOR.  Nothing says "I'm not interested in you" like a velvet rope. Twitter, like all of web 2.0 is fanatically democratic.  If you get people in your network you don't want there (the Thai girls who want your sex-trade biz) you can simply block them.  
  2. to get started on twitter, amble on over to the twitter boat house of someone you trust and respect; follow everyone they follow unless they're following more than 500 people, in which case follow the people on their twitter "lists" (my list of must follow legal and other people is here).
  3. just watch the river for awhile.  Then retweet something someone says that interests you; the rest will follow.
  4. remember who you are on this river - an attorney who specializes in employment law, for instance - and "tweet" consistently with your identity, remembering that you can and should socialize; provide value 90% of the time (linking, retweeting) and promote yourself 5% of the time (MAX).
  5. don't wait to understand twitter-river before downloading tweetdeck.  Use it.  It's free.  It's easy.
  6. Lawyers who tweet can be found at Kevin O'Keefe's "LexTweet." LexBlog lawyers like myself are gathered together at LexTweet here.


Remember what Malcolm Gladwell said in the Tipping Point.

Your first degree connections (you/me) will bring you the least amount of new business because you already know them and have presumably maximized their value to you (that sounds harsh; it's not, but if I added heart, this post would be way, way too long). 

Your most distant connections bring you the most work because you may be the only lawyer they know.  Although the people I know (lots of lawyers) might be good for your business, the people who know the people I know and the people who know them will ultimately be of the most value to you.

Rock 'n roll & welcome to Web 2.0.

Looking forward to seeing you on the Island.



Blawg Review #234

Sociologist Elise Boulding has said that we live in a “200 year present,” a “social space which reaches into the past and into the future” -- a space in which “we can move around directly in our own lives and indirectly by touching the lives of the young and old around us.” Miall, Ramsbotham and Woodhouse, Contemporary Conflict Resolution.

What does the 200-year present have to do with conflict resolution week?  It reminds us that new forms never really completely replace the old ones.  We continue to employ every technique we've ever used to suppress, avoid, deny, resolve, transform, or transcend conflict, including force (violent and non-violent such as injunctions subject of a Trial Warrior Blog post this week); thievery (the Trade Secrets Blog); shaming (which Scott Greenfield does to bloggers "looking for fights and dumb as dirt" and which Volokh suggests we do to health insurers); bullying (solutions to which appear at the Citizen Media Law Project); torture (still with us at the Crim Prof Blog); cheating (Make Yourself Better with Their Secrets at Concretely Ambiguous) ingratiation (at the Law School Expert); persuasive argumentation; appeal to third party authority; bargaining; communication; and, problem solving (The Tao of Advice at the Business of Creativity). 

Whichever dispute resolution mechanism you use, it should be much improved if you take up  juggling (as reported this week at Idealawg).

Transformative conflict resolution of the type covered by New York City police officer, Jeff Thompson at Enjoy Mediation, requires accountability (by lawyers, for instance, to the principle of justice at Law21); recognition (at JD Bliss); apology, amends, reconciliation (at Opinio Juris); power with (negotiation and cooperation at the Ohio Family Law Blog) instead of power over (at the Election Law Blog); and, interests rather than rights (at the Gay Couples Law Blog).

No brand of law-giver or enforcer has ever entirely left the scene.  Cops, negotiators, mediators (on the international scene at the Business Conflict Blog); conciliators, arbitrators, trial attorneys (marking tattoos as exhibits over at LawComix), corporate lawyers, legislators  (fomenting a Franken Amendment at the ADR Prof Blawg); judges (whether elected or appointed at Legally Unbound), and, juries (who might be biased at SCOTUS Blog). 

And of course the gadflies (wolf protection lawsuits anyone? at  Point of Law). 

Win, lose, settle, enjoin (at Charon QC) or simply give up (6 Ways We Gave Up Our Privacy at CSO Security and Risk).  We regulate crime and prescribe punishment (Polanski at Sentencing Law and Policy and The End of an Era at Defending People). 

We wage war (at Prawfs Blog) and seek peace (at the Delaware Employment Law Blog) as conflict inevitably erupts over Obama's (embarrassing) peace prize (at Balkinization).

And, lest we forget our primary purpose, we bend our efforts toward justice (which, according to BLT is not necessarily available to card-carrying members of the ACLU).

My own personal 200-year present spans the life of my maternal grandparents who were nine years old in 1909, and that of my step-children’s children, who (assuming they procreate on a reasonable schedule) should be ninety-five'ish in 2109

My grandfather, born in 1900, witnessed the birth of electricity, saw the first automobile roll off an assembly line [2] and stood awestruck in a cornfield as one of mankind’s first airplanes took flight. [3]  Although we've progressed from bi-planes to jets and rockets (some of which may someday be green) we still fly balloons of the type first launched in 1783 -- both Goodyear Blimps and the backyard variety, covered this week by Legal Blog Watch as Law and More

asked here whether the shiny, flying, silver Jiffy Pop-looking craft tethered in the backyard of Richard Heene was an "attractive nuisance" under the law.

Grandpa's first war was, well, the First and his second was the Second,[4]  as if there'd never been any wars before the Great One. By the time I was born, mid-century, we'd fought the war to end all wars twice and knew we'd never survive a third

My imagined grandchildren, [6] born sometime between today and 2014, will not be strangers to any of my grandfather’s technologies. Despite the advent of compact fluorescent light bulbs, the early lives of my step-children's children will likely pass under the glow of the same incandescent lights that brightened granddad’s one-room school house. They will be transported to school in cars with internal combustion engines, learn the same alphabet from the same cardboard and paper books (as well as from the "e" variety) [7] and play many of the same games [8]  he did – hop scotch, jump rope and ring-around the rosy. 

Change will etch itself into the lives of my grandchildren as surely as it did my own, my parents' and my grandparents'.  Hybrids will give way to fully electric (and perhaps hemp-powered) [9] vehicles (effective or defective) and though electricity will continue to be  generated by hydroelectric dams, wind farms and nuclear power plants, some new and unimaginable source of power will surely push back the nights of my grand children's children. [10]

Law, politics, society and culture also exist in the 200-year present of conflict resolution.  [11] In my personal 200-year span, the law seems to have changed the most profoundly. Was it the law first and culture later?  Or do they weave our future together?

The first U.S. woman lawyer, Myra Bradwell, was admitted to practice a mere ten years before my grandmother was born. Mrs. Bradwell’s legal career was the subject of one of the sorriest U.S. Supreme Court decisions ever handed down, in which the Court opined,

The civil law as well as nature itself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender.  The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say the identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea for a woman adopting a distinct and independent career from that of her husband … for these reasons I think that the laws of Illinois now complained of are not obnoxious to the charge of any abridging any of the privileges and immunities of cities of the United States.


Another nineteen years would pass after Bradwell began her practice before she (and my nineteen year old grandmother) were guaranteed the right to vote. [13] And another 30 years would pass after my women's movement -- the Second Wave -- before we'd have our own  business magazine -   ForbesWoman (my part in it here).  And let us not forget that despite the 20th Century's great civil rights achievements, when America catches a cold, black America gets pneumonia.  See e.g. Problems All Around for Blacks in Big Law at Being a Black Lawyer.

My grandparents', parents' and step-children's 20th Century was dominated by genocide [14] on a scale and a technological precision unimaginable to our earlier forebears.  Mid-century brought with it the threat of nuclear annihilation but also liberated millions of people enslaved by colonialism.  We cured polio in my own lifetime with both "dead" and "live" vaccines (neither of them counterfeit) - a singular moment in scientific history during which no one took ownership of the cure and no one tried to stop others from seeking another, a problem Patently O addressed this week in Reverse Payments.

Whether god or satan, heaven or hell, war or peace "won" the twentieth century, the world's greatest peace-making body was created during it -- the United Nations.  And here in the U.S., the “living room war,” Viet Nam, coupled with the largest generation of adolescents ever to grace American society, ended the forcible induction of young men into the military[15]

With the recent discovery of our earliest ancestor, Ardi, our biological and social lives exist in a 4.4 million year now. Our physical bodies “evolve” in the womb along the same lines as did our species and, once born, we carry with us our earliest organs. [16] Most critical of these to conflict escalation and avoidance is our “fight-flight” mechanism – the amygdala.[17] And the most pertinent biological agents to promote the collaborative resolution of conflict are our “mirror neurons” which

 provide a powerful biological foundation for the evolution of culture . . . absorb[ing] it directly, with each generation teaching the next by social sharing, imitation and observation.


As “exquisitely social creatures,” our “survival depends on understanding the actions, intentions and emotions of others.” Id. That our misunderstandings and cognitive biases -- mentioned by Volokh on Paternalism and Michael Carbone on reactive devaluation at Mediation Strategies this week -- threaten our survival as a species is undeniable (cf. Lawyers Must Survive or Face Extinction at the Lawyerist)

How we’ve manage to survive despite our tendency to misread one another’s actions, intentions and emotions, is often the subject of those who advise us how to choose and move juries -- here -- Anne Reed at Deliberations (explaining why "they" don't see things like "we" do here); and, the Jury Room (explaining why pain hurts more intensely when we believe it's been intentionally inflicted here). 

The Most Effective Conflict Resolution Technology is the Oldest

One of our true original gangsters, Al Capone, is reported to have said that “you can get much further with a kind word and a gun than you can with a kind word alone” and one of our greatest Presidents, Theodore Roosevelt said “speak softly and carry a big stick.”

Capone and Roosevelt didn't know it, but they were talking about the most effective (and most ancient) form of conflict resolution – tit for tat. In 1980, political Scientist Robert Axelrod asked game theory experts to submit computer programs designed to prevail in a game that provided the highest reward to cooperating pairs -- the famous Prisoner's Dilemma. (See also Max Kennerly's excellent post on Game Theory and Medical Malpractice Settlements at the Philadelphia Litigation and Trial Blog).

The winner of Axelrod's competition was a program named tit for tat.  Tit for tat was programmed to cooperate [19]  with its first encounter with any other programmed player.  It  rewarded cooperation with cooperation (just as networking will reward the savvy lawyer over at Chuck Newton's Ride the Third Wave) and punished non-cooperation with retaliation. Because Tit for Tat retaliated in the face of non-cooperation (just as a former employee did according to Hell Hath No Fury at Chicago Law Blogger) it was never repeatedly victimized. And because Tit for Tat “forgave” non-cooperators upon their return to cooperative game playing (as some believe Mr. Polanski should be forgiven over at the Marquette U. Law School Faculty Blog) it never got locked into mutually costly chains of mutual betrayal. [20]

As Robert Wright, author of The Moral Animal explained, had Tit for Tat been tossed into the game with 50 steadfast non-cooperators, there would have been a 49-way tie for first place. But none of the players' programs failed to cooperate in at least some circumstances, leaving Tit for Tat the clear victor.  According to Wright, humans, like the programs in Axelrod's competition, are evolutionarily “designed” to cooperate under at least some circumstances. The engine and benefit of cooperation is present in our neurochemistry.  When scientists observed the brain activity of volunteers playing the Prisoner’s Dilemma game, for instance, they found that the participants' “reward circuits” were activated and their impulsive "me first" circuits inhibited when they cooperated. Cooperation, retaliation, forgiveness and a return to cooperation. Tit for Tat. 

Laws and Lawyers

First and most importantly, I suppose, are the social media signs that you're "tweeting" like a lawyer over at the Social Media Law Student Blog.  Why first or important?  Know thyself.  Everything else follows that.

We don't "dis" lawyers here at the Negotiation Blog.  We simply remind ourselves that our primary purpose is the promotion of justice, with a stable societal order closely behind.  Most people don't understand, for instance, that Shakespeare's famous the first thing we do, let's kill all the lawyers was not an insult.  In King Henry IV, Act IV, Scene II, Shakespeare's sentiment was not his own, but that of a revolutionary who wished to destroy the social order.

The historic "present" of laws and lawyers is in the thousands, not simply the hundreds, of years. Hammurabi (make of his choice for the memorialization of his laws what you will) was the sixth king of Babylon, remembered for creating -- in his own name (and likeness?) - the first written and systematic legal code. 

These laws provided for a mix of physical punishment - 60 lashes with an ox hide whip - ‘measure for measure’ awards (still with us in the form of lethal injection as covered by The StandDown Texas Project) – eye for eye, bone fracture for bone fracture – and monetary compensation – 20 shekels for tooth injuries – (preserved by workplace injury awards such as those discussed at the Workers Compensation Blog) depended not only upon the type of injury, but the social classes involved in the loss, i.e., ‘measure for measure’ sanctions were specified for losses among the upper classes while monetary awards were required for losses caused to and by commoners (reminding us that disrespect still too often turns on social status or "outsider" classification as discussed at Balkinization this week).  [23] 

For the wrongful killing of another, for instance, the victim’s kin were paid according to the social status of the deceased party. Thus the ‘man price’ for killing a peasant was 200 shillings and that for a nobleman 1200 shillings. Payments were not, however, tailored to the loss, but fixed according to types of affront, a distinction we continue to make when we punish intentional torts more severely than negligent ones.  [24]>

Criminal law and civil, it all comes down to a process that is "due" (a topic covered in a blistering post about tea-partiers and other "protectors" of the Constitution at the Criminal Jurisdiction Law Blog) and a set of guidelines against which we can exercise some small degree of control over our own commercial and personal futures (like those subject of Delays Not "Party Time, Excellent" for Subcontractor at the Construction Contract Review).

Lawyers, litigators and trial lawyers are too often demonized by the ADR community as if you could get someone to sit down to negotiate without first pointing the gun of litigation at their heads; I salute you (and myself, for that matter!) for bringing us all to the bargaining table.  See Steve Mehta's recent post at Mediation Matters, Factors When Peace Makes Sense for a note that touches upon the symbiotic relationship between litigation and mediation, litigators and mediators.

I shouldn't cite single legal blogs twice, but I cannot resist this quote of Scott Greenfield's on another pundit's view of the future lawyers have in store for them, i.e., 

shucking oysters for a living if we don't accept a future of lawyers being piece workers in factories, sending our work off to Bangalore in pdf files and complementing people on their choice of forms at Legal Zoom.

Legal Rebels:  the Sky is Falling at Simple JusticeCharon QC also weighs in on the ABA Legal Rebels project here.


Which came first? Public civil trials or private arbitrations? You’ll be surprised, I’ll wager, to hear that arbitration was one of the earliest forms of dispute resolution, practiced by the juris consults of the Roman Empire. Roman arbitration predates the adversarial system of common law by more than a thousand years. [25]

Ah, the glory of Rome! The juris consulti were (like too many mediators) amateurs who dabbled in dispute resolution, raising the question whether they (and we) should be certified or regulated as Diane Levin asks at The Mediation Channel this week.  The Roman hobbyists gave legal opinions (responsa) to all comers (a practice known as publice respondere). They also served the needs of Roman judges and governors would routinely consult with advisory panels of jurisconsults before rendering decisions. Thus, the Romans – god bless them! - were the first to have a class of people who spent their days thinking about legal problems (an activity some readers will recall Ralph Nader calling "mental gymnastics in an iron cage").

18th Century Dispute Resolution Technology:  The (Inevitably Polarizing) Adversarial System

It was Buckminster Fuller who famously opined that the "significant problems we face cannot be solved at the same level of thinking we were at when we created them."  If you keep this aphorism in mind for the remainder of this post, you'll likely have some extraordinarily innovative comments to make in the comment section below.

As the Law Guru wiki reminds us, we can trace the adversarial system to the "medieval mode of trial by combat, in which some litigants were allowed a champion to represent them."  We owe our present day adversarialism, however, to the common law's use of the jury - the power of argumentation replacing the power of the sword.

The Act abolishing the infamous Star Chamber in 1641 also granted every "freeman" the right to trial by "lawful judgment of his peers" or by the "law of the land" before the Crown could "take[] or imprison[]" him or "disseis[e] [him] of his freehold or liberties, or free customs."  Nor could he any longer be "outlawed or exciled or otherwise destroyed."  Nor could the King "pass upon him or condemn him." 

English colonies like our own adopted the jury trial system and we, of course, enshrined that system in the Fifth, Sixth, and Seventh Amendments.  Whether this 17th century dispute resolution technology can be fine-tuned to keep abreast of 21st century dispute creation technology (particularly in the quickly moving area of intellectual property) remains one of the pressing questions of legal and ADR policy and practice, particularly in a week in which a Superior Court verbally punished the lawyers before it for filing The Most Oppressive Motion Ever Presented (see the Laconic Law Blog).  The motion? 

Defendants['] . . . motion for summary judgment/summary adjudication, seeking adjudication of 44 issues, most of which were not proper subjects of adjudication.  Defendants’ separate statement was 196 pages long, setting forth hundreds of facts, many of them not material—as defendants’ own papers conceded.  And the moving papers concluded with a request for judicial notice of 174 pages.  All told, defendants’ moving papers were 1056 pages.

Id. (and ouch!)  On a less Dickensian note (think Bleak House) take a look at the IP Maximizer's post on IP litigation not being smart source of revenue for inventors

Mediator, author and activist, Ken Cloke, suggests that interest-based resolutions to conflict must replace power and rights based resolutions if we expect to create a future in which justice prevails.  As Ken wrote in Conflict Revolution:

Approaching evil and injustice from an interest-based perspective means listening to the deeper truths that gave rise to them, extending compassion even to those who were responsible for evils or injustices, and seeking not merely to replace one evil or injustice with another, but to reduce their attractiveness by designing outcomes, processes, and relationships that encourage adversaries to work collaboratively to satisfy their interests.

Evil and injustice can therefore be considered byproducts of reliance on power or rights, and failures or refusals to learn and evolve.

All political systems generate chronic conflicts that reveal their internal weaknesses, external pressures, and demands for evolutionary change. Power- and rights-based systems are adversarial and unstable, and therefore avoid, deny, resist, and defend themselves against change. As a result, they suppress conflicts or treat them as purely interpersonal, leaving insiders less informed and able to adapt, and outsiders feeling they were treated unjustly and contemplating evil in response.

As pressures to change increase, these systems must either adapt, or turn reactionary and take a punitive, retaliatory attitude toward those seeking to promote change, delaying their own evolution. Only interest-based systems are fully able to seek out their weaknesses, proactively evolve, transform conflicts into sources of learning, and celebrate those who brought them to their attention.

These are the words I leave with the readers of Blawg Review #234 because they are the ones that informed my personal and professional transformation from a legal career based on rights and remedies to one based upon interests and consensus. 

Whatever my own personal 200-year present was, is and will be, it is pointed in the direction of peace with justice, with an enormous and probably unwarranted optimism best expressed by the man after whom my law school was namedMartin Luther King, Jr.  - the arc of history is long, but it bends toward justice.

Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues. Next week's host, Counsel to Counsel, will devote its round-up of the week's best legal posts to the Great Recession.

[1]             See the WSJ Law Blog’s post on the evolving law on gay marriage this week – Procreat[ion] Not Required.

[2]             Alas, there will always be lemons over at the Texas Lemon Law Blog (save those repair invoices!)

[3]             See Ruth Bader Ginsberg Hospitalized at the Volokh Conspiracy, reporting on Ginsberg’s fall from the seat of an airplane before take-off.

[4]             See the Law History Blog on Brewer’s Why America Fights.

[6]             Grandchildren who will not, I hope, have to deal with my Alzheimers, the perils of which are described at the Slutsky Elder Law and Estate Planning Blog.

[7]             Though, of course, e-books will be read side-by-side with hard copy as paper and cardboard eventually goes the way of Colonial era hornbooks. See Downloadable e-Books Change the Face of Brick and Mortar Libraries at the Law Librarian Blog.

[8]              Those games will, of course, exist side by side the video variety, many of which are recommended as Tools for Special Needs Students and Educators at the Adjunct Law Prof Blog this week.

[9]               See Hemp and Audacity at the U.S. Ag and Food Law Policy Blog.

[12]             Alas there’s still a gender gap as described this week at Ms. JD.

[13]             Voting rights are still a matter of concern today, of course. See Judge Says Virginia Violated Rights of Overseas Voters at the Blog of Legal Times.

[14]             See Rachel Anderson’s Law Blog on the scope of immunity for foreign officials that Anderson believes may have important implications for Plaintiffs seeking recompense for genocide.

[15]             One generation wants out and the other wants in. See Don’t Ask, Don’t Tell, Don’t Teach at Sexual Orientation and the Law Blog.

[16]             Earlier scientific theory posited that each human embryo (see Embryo Mix-Up at the Proud Parenting Blog) passes through a progression of abbreviated stages that resemble the main evolutionary stages of its ancestors, i.e., that the fertilized egg starts as a single cell (just like our first living evolutionary ancestor); as the egg repeatedly divides it develops into an embryo with a segmented arrangement (the “worm” stage); these segments develop into vertebrae, muscles and something that sort of looks like gills (the “fish” stage); limb buds develop with paddle-like hands and feet, and there appears to be a “tail” (the “amphibian” stage); and, by the eighth week of development, most organs are nearly complete, the limbs develop fingers and toes, and the “tail” disappears (the human stage). It turns out that this one-to-one correlation was too simplistic, but it remains safe to say that our biological development still passes through several stages that “recapitulate” the evolution of our species.

[17]          The amygdala is a region of the brain that permits the formation and storage of memories associated with emotional events. It permits us to “read” the emotional responses of our fellows and is thought to facilitated our ability to form relationships and live and work in groups. It is also the source of our “fight or flight” response to danger.

[18] In Cells that Read Minds, New York Times Science writer Sandra Blakeslee explained:

Studies show that some mirror neurons fire when a person reaches for a glass or watches someone else reach for a glass; others fire when the person puts the glass down and still others fire when the person reaches for a toothbrush and so on. They respond when someone kicks a ball, sees a ball being kicked, hears a ball being kicked and says or hears the word "kick."

 “When you see me perform an action - such as picking up a baseball - you automatically simulate the action in your own brain,” said Dr. Marco Iacoboni, a neuroscientist at the University of California, Los Angeles, who studies mirror neurons. ”Circuits in your brain, which we do not yet entirely understand, inhibit you from moving while you simulate,” he said. ”But you understand my action because you have in your brain a template for that action based on your own movements. “

[20]             Check out the post on the Betrayal of Corporate Clients at the Investment Fraud Lawyer Blog.

[21]             Wrongful death compensation over at the Product Liability Law Blog.

[22]             Looking toward the future, the Neuroethics and the Law Blog predicts that in the “experiential future, we will have better technologies to measure physical pain, pain relief, and emotional distress. These technologies should not only change tort law and related compensation schemes but should also change our assessments of criminal blameworthiness and punishment severity” here.

[23]             This week Beck and Herrmann at the Drug and Device Law Blog note that “shame works wonders” in their post on the Free Speech Challenges to the FDA.

[24]             Intentionally left blank.

[25]             ADR professionals are often heard critics of the adversarial system, as can be seen over at the Australian Dispute Resolvers Blog where author Chris Whitelaw (really??) quotes the Journal of Law and Medicine as follows:

The adversarial system of medical negligence fails to satisfy the main aims of tort law, those being equitable compensation of plaintiffs, correction of mistakes and deterrence of negligence. Instead doctors experience litigation as a punishment and, in order to avoid exposure to the system, have resorted not to corrective or educational measures but to defensive medicine, a practice which the evidence indicates both decreases patient autonomy and increases iatrogenic injury.

 (Iatrogenic, by the way, is a fancy term for “we have know idea whatsoever what the source of this ailment is). Chris is looking for comments so run on over there if you’ve been thinking about medical malpractice litigation during the marathon American health care debates.


How to Manage Your Negotiating Team from Harvard Business Review

The last time I trained an in-house legal department, I asked every group manager this questionif I could leave a silver bullet behind, what would it be? 

The response was unanimous from this well-run Fortune 500 Company:  fix our relationship with the __________ Department:  it chronically undermines our negotiations with outsiders.  The  _________ Department was the only one sending none of its people to the two-day negotiation training.  An executive friend of mine said, "that's not surprising - no one can see a black hole."

This month's Harvard Business Review sees the black hole in every negotiation team in its September '09 must-read article, How to Manage Your Negotiating Team by Jeanne M. Brett, Ray Friedman, and  Kristin Behfar.

Despite the _________ Department's absence, I created groups of in-house attendees who represented each internal department and asked them to generate a list of the interests of their negotiating teams, including the _________ department, which is one of the recommendations made by Brett, Friedman and Behfar.

There's an executive summary at the link above but I'd shell out the money for a copy of the print magazine to have the full text of this article.  Here are the recommendations of the experts:

  • Plot out the conflicts
  • Work with constituents
  • Mediate conflicts of interest
  • Persuade with data
  • simulate the negotiation
  • assign roles to capitalize on team members strengths and interests
  • establish a plan for intrateam communication

I'll write a post a day about each of these strategies when I return from vacation.  In the meantime, litigators who work with teams inside the firm; who defend complex litigation with joint defense groups; and, who must bargain with others with very different interests (construction litigation comes to mind) should be thinking of the ways in which integrated negotiation planning could maximize the settlement benefits to be gained by strategic partners.

Negotiating the Power of Reciprocity with "The Go Giver"


A friend recently reminded me of a book review I wrote for one of those "get rich" books The Go Giver (below) for the sorely-missed Complete Lawyer.   I reprint it here in the Negotiation Blog because I talk a lot about the power of reciprocity in bargaining.  I'd summarize my response here, but I can't say it any better than I did below. 

The Go-Giver, A Guide to a Life Lived Richly

American business people have been writing self-help guides to financial success since Benjamin Franklin penned Advice to a Young Tradesman and Poor Richard’s Almanac. Business consultants Bob Burg and John Davis Mann add to this tradition a new parable -- The Go-Giver, A Little Story About a Powerful Business Idea.              

As the title suggests, Burg and Mann recommend that we discard “go getting” -- hard work focused on individual success -- in favor of “go giving” – authentically passionate work focused on the success of others. To demonstrate how material wealth follows generous action, Burg and Mann create an elusive but legendary business consultant “Pindar,” who shares his Five Laws of Stratospheric Success with anyone who promises to practice these principles in all their affairs.    

The pilgrim in this progress is “Joe,” an earnest and hard-working salesman on the brink of a third failed quarter. After promising to follow the laws Pindar teaches him, Joe meets a handful of spectacularly successful givers. These include former hot dog vendor Ernesto, who credits his restaurant and real estate empire to giving more than you take; Nicole, who owes her rise from school teacher to educational software titan to giving much to many; former insurance salesman Sam, whose many philanthropies thrive on giving without expectation of return; and, Debra, who learns to succeed in business by giving of her true self. Having quickly learned each lesson, Joe himself exemplifies Law No. 5 – the willingness to receive the bounty that flows from giving.  

Unfortunately, as a guide to financial success, The Go-Giver is more fairy tale than instruction manual. All of the business icons Joe visits ascribe their riches to acts of authentic generosity. It is apparent from the context in which these stories arise, however, that the key here is neither virtue nor the inherent satisfaction to be found in giving. The key is choosing the right people to give to – those with wealth, monied connections or the power to create economic opportunities for others.   

If we are moved to visit shut-ins; bring recovery meetings to incarcerated felons; or make micro-loans to third-world entrepreneurs, this book is not for us. This is focused giving and the focus is on the “haves,” not the “have nots.”  If we are among the unemployed; the sick; or, the elderly, we’ll need another set   of “Laws” for success  – chief among them laws guaranteeing the education; training; and, health care necessary to enable us to make use of the opportunities created by the Go-Givers’ generosity.  [1]

Walking the Razor’s Edge

Most Complete Lawyer readers are, however, the type of business people for whom The Go-Giver is written.   No matter where we appear on the legal economic ladder, as educated people with access to the justice system, we are well poised to engage in random acts of kindness for, and reap rewards from, those who are well situated to spread a little green.  [2]   So long as we successfully negotiate the razor’s edge between opportunism and genuine acts of generosity, Burg and Mann’s advice will likely redound not only to our emotional and spiritual well-being, but also to our financial success.    

Most readers will, of course, recognize Joe’s spectacular rise from failing salesman to coffee-bean multi-millionaire as the fairy tale the The Go-Giver all but announces itself to be. There is value here, however, in the quotidian acts of kindness in which Joe engages to satisfy Pindar’s requirement that he promptly practice the “Laws” conveyed.     

The most credible results of Joe’s baby steps on the road to becoming a generous human being are his improved relationships with his fellows. Practicing “not keeping track,” Joe foregoes telling his wife his own work-a-day worries, focusing his entire attention upon the challenges of her day. His reward? An entirely believable note of love and gratitude on her pillow the following morning. Practicing “giving more value” than he receives, Joe serves coffee to his workmates as they struggle to meet a collective quarter-end deadline. Though Joe reports “feeling like an idiot” in doing so, it is clear that the warmth and bemused surprise expressed by is co-workers is its own reward.     

The true lesson of The Go-Giver is not so much that material reward follows an expansive spirit, but that one’s daily pleasure increases with the size of one’s own heart. After all, when financial success eludes us – or crashes with the national economy – what we have to rely upon is not numbers on a ledger sheet, but the family, friends and neighbors who will see us through. If we give authentically without expectation of reward – because we “love to . . . as a way of life” – what we will reap is a life richly lived even if we do not thereby “get rich” in the process.

[1]  As the Labor Department tells us, in the year 2000, “high school dropouts were more than twice as likely as high school graduates to be counted among the 31 million American “working poor” while only 1.4% of that number possessed college degrees. See A Profile of the Working Poor – 2000, U.S. Department of Labor, Bureau of Labor Statistics at http://www.bls.gov/cps/cpswp2000.htm. One’s existing occupation – the job we have been lucky or well-placed enough to be trained to do -- is also highly correlated with financial success or failure. As the Labor Department reports, “[a]lmost 31 percent of the poor who worked during the year [2000] were employed in [low skill] service occupations . . . .,” including “[p]rivate household workers, a subset of service workers that is made up largely of women, were the most likely to be in poverty (20 percent)”. On the other hand, those engaged in executive, administrative, managerial and professional occupations had low incidences of poverty since “[h]igh earning and full-time employment are typical in these occupations.” 

[2] For a fascinating study of way in which social networks have benefited some and excluded others, including women and minorities, see University of Colorado History Professor Pamela Walker Laird’s book, Pull, Networking and Success Since Benjamin Franklin.


The ABC's of Social Networking from Anna Laura Brown

Negotiating Employment: A 12-Step Plan

This article (Relationships are Key in Job Searches) flogging this book (Whacked Again! Secrets to Getting Back in the Executive Saddle) landed in my email box from law.com this morning.

I have to say that I agree with magazine mogul Tina Brown that we're in a "gig economy" not a job economy.  What does that mean?  It means doing an inventory of your dreams right next to a realistic assessment of your skills, along with a time line for getting your own business up and running, with or without investors, remembering that in a "gig economy" barter is a perfectly acceptable alternative to cash and in the age of the internet (Networking Wisdom in Mentoring Circles) hundreds of marketing tools that can reach millions of people globally and thousands of people locally, are right beneath your fingers on the keyboard connected to the computer that brings you the most exciting set of opportunities since we decided to send men to the moon -- social networking (now there's a proper run-on sentence, the reward for which is buying myself a new copy of Elements of Style which every job-seeker and new entrepreneur should do post-haste since written communication is the key to successful online business development). 

That said, for those who NEED A JOB RIGHT NOW to pay off their law school loans (remembering that dischargable or not, we no longer have debtors' prisons), here's today's Law.com advice:

The book gives a 12-step plan for landing a new job: 1. finding passion and creating vision; 2. creating a brand; 3. creating a value proposition; 4. creating stories; 5. developing a marketing plan; 6. getting a message out; 7. creating a marketing document; 8. meeting the friend's friend; 9. power résumé; 10. preparing for an interview; 11. negotiating terms; 12. landing the job; and the next step.

The book emphasizes the importance of keeping up contacts after landing in a new job -- knowing that another may search may be ahead. But it suggests maintaining contacts by looking for ways to help other people with a "pay-it-forward" approach. "We all need help at some point," the book says. "The concept is that you are thankful for those who helped you in the past."

Villwock told the group that in his experience, the most successful CEOs and other professionals are those who are most passionate about their work. "When they stop having fun, that's when they stop and go on to the next job," he said.

He also advised the group that attitude and personal skills are as important as professional credentials. From observing executives, he said, "half their success has nothing to do with performance on the job. It has everything to do with ability to sell themselves and build trusted relationships."

If you substitute business plan for power résumé and starting the business for landing the job, you've got a perfectly great recipe for engaging the gig economy eagerly awaiting your contribution.  Listen up!  You didn't get the highest PSAT and SAT scores, graduate cum, magna or summa, ace the LSAT, study your $#@% off, learn lawyering skills, conquer your fear and pass the bar exam to be hat in hand looking to be someone's apprentice galley slave. 

Think about it and join the rest of the gig economy. 

We're looking forward to your unique and valuable contributions to the new economy right now!

The writing on the inside of the secret entrepreneurial decoder ring?  MONETIZE EVERYTHING!


Negotiating the Recession with a Legal Mutual Aid Society

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). 

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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. 


Developing Your Business Without Spending a Dime

A few days ago, in the wake of my social media presentation for the SCMA, I pulled out an old hand-out that mediator and USC Mediation Clinic Director Lisa Klerman and I used for a "write your way to success" seminar for the SCMA a couple of years ago.  I am pasting it here for the use of any mediator who is at a loss for a starting place to market his or her practice in these difficult economic times.

Write Your Way To Success:  A Workshop on Marketing Your Mediation Practice

            Vickie Pynchon and Lisa Klerman

Why Write Articles As A Marketing Tool?

1.    A reminder to your existing clients that you still exist
2.    Exposure to potential clients who don’t yet know you exist
3.    Become recognized as an expert in your niche
4.    Increase your prominence and credibility within the field
5.    Improve traffic with increased links to your website
6.    Expand your geographic reach
7.    Inexpensive
8.    No face to face selling
9.    You will master a known topic or perhaps even learn something new
10.    Writing can help you clarify your personal vision and goals

“Yes, But I’m Not A Great Writer” 

Not an acceptable answer.  If you can talk about an interesting topic or idea in your practice, then you can write about it. 

Tips to Get Started Writing:

Here is a simple approach to start writing your first article:

1.    Determine your target market – who do you want to reach?
2.    Ask yourself:  “What do I know that my target market would like to know?”
3.    Pick a topic, such as how to deal with difficult negotiators, cross-cultural mediations, etc.  Choose a topic that you find appealing and exciting.
4.    Ask: how would my target market prefer to receive information?  Blog, newsletter, print, electronic?  Short and punchy, or detailed and well-researched?
5.    Ask:  what about my articles will attract my market to me as a result of reading those articles?

  • voice
  • expertise
  • creativity
  • credentials
  • knowledge of industry
  • knowledge of legal specialty

6.    Write an outline of the points you want to make.
7.    Decide on three to five main points within your chosen topic that you want to share with the reader.  Do not overload the reader with too much information.
8.    Write it.  Put it aside for a day or so.
9.    Return to it with a fresh perspective.  Edit it, and send it out!

Blogs:  What’s All The Fuss About?

Law blogs (“blawgs”) have radically changed dialogue and scholarship on legal issues, leading Dahlia Lithwick, senior editor of the on-line magazine Slate, to recently observe:

The most compelling, cutting-edge, honest legal writing being produced in this country today is happening on the Internet, and the crop improves daily. From the fistful of judges (including Richard Posner) who maintain regular blogs, to the vast and growing number of law professors and law students who find the time to post daily, it's clear that the real bones and guts and sinew of the national conversation is happening online, and not in print.

Benefits of your own blog (a very short and incomplete list)

  • you can write about and link to people in your market (rule of reciprocity)
  • you can publish at will (for the instant gratification crowd)
  • you can generate subscribers
  • you can become an indispensable source of information your market needs to have but doesn't have time to read, summarize, locate, etc.

Benefits of publishing elsewhere

  • greater prestige
  • greater reach
  • targeted to a market that isn't yet aware of your existence/services

General Advice

Consider guest posting -- compare Blawg Review Guest Editor Pages

Write for Mediate Dot Com

  • A good place to get your publishing feet wet. 
  • Mostly read by mediators but you can pass these articles along to your clients. 
  • Mediate dot com itself packages these articles, which then appear on other mediators' web sites, increasing your presence on the internet. 
  • It is fairly easy to get published here.

Local and Specialty Bar Associations have newsletters and are always seeking content - learn their submission guidelines and turn your thoughts into an article for your market's reading pleasure.


Within the next month, I will:

  • write at least ___ pieces for publication in ____ publications
  • gather information about __________
  • post entries in the following blogs: ____________
  • interview one lawyer in my market for a short article about an area of interest to him/her for publication in _____.
  • interview one __________ in my market via web cam & send it to any blogger who writes in your niche practice  (5 minutes or less)

One thousand non-billable hours a year to build a mediation practice

 With many apologies for the incomprehensible blurriness of this interview with Woody Mosten conducted in the noisy exhibitor ballroom at the NYC Sheraton Hotel during last week's ABA Dispute Resolution Conference, I nevertheless provide the interview because of the importance of Woody's message. 

Woody consults with attorneys who wish to make the shift from legal to mediation practice, continues to mediate himself, authors books on mediation and career development and conducts training on mediation practice and professional development.  As Woody's web site states:

Forrest “Woody” Mosten has an international reputation for high quality mediation training from introductory courses to advanced supervision for highly experienced mediators. He maintains an intense focus on cutting edge issues in law and the craft of mediation skill building, and enjoys helping other professionals build their own profitable mediation practices.

Woody Mosten's Mediation Training is an Approved Continuing Education Provider by the California State Bar CLE & Family Law Specialization, the California Psychological Association Accrediting Agency, and the California Board of Behavioral Sciences. Most courses are approved by the Association for Conflict Resolution.


Negotiating the Marketplace with Social Media

Negotiating Practice Development in Hard Times

This month, ADR Services, Inc. will host my presentation to the Southern California Mediation Association’s Professional Development Committee meeting on social networking to build your mediation practice.
On Tuesday, April 21, 2009 at 7 p.m. I will speak on the use of social networking tools to build your mediation practice under the auspices of the SCMA Professional Development Committee. 

Here's the announcement ADR Services just sent out to its neutrals. 


All local mediators are also invited to attend, but please RSVP so we can both get a head count and to give your name to the front desk.

Victoria, who blogs on negotiation, mediation and arbitration at the IP ADR and Settle It Now Negotiation Blogs, will discuss all forms of social networking, including the use of LinkedIn, Face Book, Twitter, ning and blogging to raise your profile locally, nationally and internationally. The meeting will take place at our 1900 Avenue of the Stars address.
Victoria will also be speaking on this topic at the 2009 Small Firm & Sole Practitioner Conference to be held at the Los Angeles Convention Center in June.
Southern California Mediation Association
Event: Using Social Networking Tools to Build Your Mediation Practice, featuring Victoria Pynchon, Esq. of ADR Services, Inc.
Tuesday, 21 April 2009
Time: 7:00 p.m.
Location:          ADR Services, Inc.
                        1900 Avenue of the Stars, Suite 250
                        Los Angeles, California 90067

RSVP to vpynchon@adrservices.org

Negotiating Emotion (and Client Development) with Arnie Herz at Legal Sanity

(image by the great Charles Fincher at LawComix)

Thanks first to LexBlog for giving yesterday's post here a shout-out but more importantly, thanks to LexBlog for giving Arnie Herz' post at Legal Sanity Why lawyers should get emotional with clients coverage in the same daily compilation of LexBlog client posts, a tremendous resource I highly recommend you include on your news reader.

You'll see from my lengthy comment there that Arnie is singing my song about the law and emotion and in particular, the fact that we cannot make decisions without emotion something every trial lawyer, negotiator, mediator and sales person knows down to the knuckles of their spine.  Excerpt from Legal Sanity below.

Here are two facts:

  • There’s a client service deficit in the law.

  • Lawyers tend to regard emotions – their own and other people’s – as irrelevant to their work.

At first glance, these two facts seem unrelated. But they’re actually closely (even intimately) connected. 

Some time back, I posted on the interplay of emotions and client service in this new era of customer control. I linked to a ClickZ article citing a (then) new book by Dan Hill called Emotionomics: Winning Hearts and Minds. Launching from the premise that humans are primarily emotional decision-makers, the book discusses how emotions factor into our business opportunities in the marketplace and workplace. 

Picking up on this point from a slightly different angle, in a recent post, designer and marketing mentor Peleg Top says, Go ahead, get emotional. Top notes that, in marketing (and, I’d add, in providing) our services, “an effective way to generate action is to tell a compelling story, one that hits your customer’s emotions.” Suggesting that most service providers miss this mark, he observes . . .

For the remainder of Arnie's great post, click here.  And here's another great link on the same topic from Cutting Edge Law - the illicit relationship of lawyers and emotion.

More on the effective use of emotion in the negotiation of settlements soon.


Negotiating the Recession with Social Networking

If you want to negotiate from a position of power, you need to know Robert Cialdini's Rules of Influence:
  • Reciprocation - People tend to return a favor. Thus, the pervasiveness of free samples in marketing. In his conferences, he often uses the example of Ethiopia providing thousands of dollars in humanitarian aid to Mexico just after the 1985 earthquake, despite Ethiopia suffering from a crippling famine and civil war at the time. Ethiopia had been reciprocating for the diplomatic support Mexico provided when Italy invaded Ethiopia in 1937.
  • Commitment and Consistency - If people commit, orally or in writing, to an idea or goal, they are more likely to honor that commitment. Even if the original incentive or motivation is removed after they have already agreed, they will continue to honor the agreement. For example, in car sales, suddenly raising the price at the last moment works because the buyer has already decided to buy. See cognitive dissonance.
  • Social Proof - People will do things that they see other people are doing. For example, in one experiment, one or more confederates would look up into the sky; bystanders would then look up into the sky to see what they were seeing. At one point this experiment aborted, as so many people were looking up that they stopped traffic. See conformity, and the Asch conformity experiments.
  • Authority - People will tend to obey authority figures, even if they are asked to perform objectionable acts. Cialdini cites incidents, such as the Milgram experiments in the early 1960s and the My Lai massacre.
  • Liking - People are easily persuaded by other people that they like. Cialdini cites the marketing of Tupperware in what might now be called viral marketing. People were more likely to buy if they liked the person selling it to them. Some of the many biases favoring more attractive people are discussed. See physical attractiveness stereotype.
  • Scarcity - Perceived scarcity will generate demand. For example, saying offers are available for a "limited time only" encourages sales
The internet is a great place to establish yourself as authoritative; a wonderful venue to do people favors; a great place to create a community in which you become well liked; and a fabulous forum to create social proof of your value.
We call the use of the internet for these purposes "social networking."
An actual but "virtual" friend of mine, Jackie Hutter of the IP Maximizer Blog, has used social networking to the greatest legal marketing advantage as anyone else I know. 
Here's Jackie's recent power point on the in's and out's of creating your online market through an online presence. Check it out.

Your Negotiation Partner is Not Your Adversary

Thanks to Diane Levin at the Mediation Channel for pointing me to a recent post by Ken Adams about the adversarial versus the "meeting of the minds" approach to contract drafting.  Thanks to both!

Contracts as a Relationship-Building Tool

That’s a long way from my let’s-have-a-meeting-of-the-minds approach. But I’m so buried in detail that I find it useful to be reminded periodically that contracts serve a broader function than mitigating your risk or handcuffing the other guy. I received just such a reminder in the form of this blog post by Douglas R. Griess of the Denver law firm Dymond Reagor Colville.

Some people regard the contract process as an adversarial one. I encountered a great example of that recently: someone I’ve been corresponding with used the word “opponent” in referring to a lawyer representing the other side in a deal. When the other side is the enemy, you’re free to indulge in “creative ambiguity” and other shenanigans.

Diane, who writes the best mediation blog in the country preceded my entry into the blogosphere by years.  She could have treated me like a competitor.  Instead, she taught me how to use html code (that's how long ago in blog years we "met"); hipped me to the folkways of the blogosphere; introduced me to her best professional contacts; and, all but baked me a hot apple pie.

If it works here on the internet - collaboration instead of competition - which is where the 21st century is heading mind you -- online -- it should work equally well in all of our professional and business dealings, particularly as we struggle with the one big failing economy that will rise when one of us rises and fall again when one of us falls.

Just sayin' . . . .

Online or Off, The Winning Technology to Create Community is Respectful, Collaborative and Reciprocal

Check out Liz Straus' 25 Traits of Twitter Folks I Admire and 25 Folks Who Have Them.  These "traits" are in fact disciplines.  Achieving them on a consistent basis is work but work worth doing.  Use them to guide your way in the new year and your conflicts with your fellows will decrease and your fortunes rise!  Thanks Liz!  Click on the link above for the Twitter "Folks" who have these traits and follow them.

  1. don’t seek to be the center of any universe.

  2. find great conversations and get to know the people there.

  3. realize that every venue has it’s own culture and rules.

  4. do their own talking and their own listening.

  5. talk mostly about the accomplishments of others.

  6. ask intriguing questions that invite others to join the conversation.

  7. don’t worry when folks don’t respond to something they say.

  8. have time for new friends, talk to them, listen to them, read their sites and bios, ask them questions — avoid assumptions.

  9. have a different conversation with every individual and every business.

  10. take embarrassing or private conversations offline.

  11. are inclusive and encourage folks who exclude people to exclude themselves.

  12. shout out good news, help in emergencies, and celebrate with everyone.

  13. say please, thank you, and you’re welcome, and mean them.

  14. are incredibly curious about what works, what doesn’t work, seek feedback often, and look to improve what they do.

  15. study the industry and trends, watch how things occur, share information about those freely, but never break a trust.

  16. offer advice when people ask. Help whenever they can.

  17. aren’t “shameless.” Ask for help in ways that folks are proud to pitch in.

  18. are constantly connecting people and ideas in business conversations that are helpful, not hypeful.

  19. get paid to strategize business, build tactical plans, but won’t “monetize” relationships.

  20. ignore the trolls.

  21. keep their promises.

  22. can be transparent without being naked … most of us look and behave best in public with our clothes ON.

  23. listen to the hive mind, but think their own thoughts.

  24. send back channel “hellos” to friends when there’s no time to talk.

  25. understand that the Internet is public and has no eraser.

The relationships with people — social in social media — is what is changing things. It makes a business experience worth looking forward to and turns a transaction into a relationship. It’s different online because I can’t see you. When I meet folks who make that distance and darkness disappear, I respect and admire them.

Negotiating Women: Never Negotiate Out of Fear, But Never Fear to Negotiate --

Video below is part I of an interview on negotiation challenges, strategies and tactics for women with

Vicki Flaugher, founder of SmartWoman GuidesThe full audio of the video is here along with Ms. Flaugher's kind comments about our conversation.   Ms. Flaugher describes her site resources as follows:

If you’re a beginning female entrepreneur or a women who is thinking about starting in business for herself, you have found your tribe. You have arrived at a safe place to talk about business. Especially if you are 35-55 years old, you are going to love this site because that’s a magic age time. You really discover who you are during those years and finally decide to do what you love instead of just what you’re “supposed” to do. The spirit of that revelation and all the promise it holds is why this site was created.

Now, Part I of Negotiating Women!

"Never Fear to Negotiate" from JFK's Inaugural Address with video here.

So let us begin anew -- remembering on both sides that civility is not a sign of weakness, and sincerity is always subject to proof. Let us never negotiate out of fear, but let us never fear to negotiate. Let both sides explore what problems unite us instead of belaboring those problems which divide us.

Let both sides, for the first time, formulate serious and precise proposals for the inspection and control of arms, and bring the absolute power to destroy other nations under the absolute control of all nations.

Let both sides seek to invoke the wonders of science instead of its terrors. Together let us explore the stars, conquer the deserts, eradicate disease, tap the ocean depths, and encourage the arts and commerce.

Let both sides unite to heed, in all corners of the earth, the command of Isaiah -- to "undo the heavy burdens, and [to] let the oppressed go free."

And, if a beachhead of cooperation may push back the jungle of suspicion, let both sides join in creating a new endeavor -- not a new balance of power, but a new world of law -- where the strong are just, and the weak secure, and the peace preserved.

All this will not be finished in the first one hundred days. Nor will it be finished in the first one thousand days; nor in the life of this Administration; nor even perhaps in our lifetime on this planet. But let us begin.


Survive with the Fittest Lawyers on Evolution Day with Blawg Review # 187

Leave it to a legal marketing blog -- Lawyer Casting - to choose Evolution Day for its first entry into the BlawgReviewOSphere.  As blogger Joshua Fruchter explains in Blawg Review #187, because the anniversary of Charles Darwin's publication of The Origin of Species on November 24, 1859 is inextricably intertwined with the idea that only the fittest survive, Evolution Day should be celebrated with advice for survival.  And so it is.

For those of us who toil the legal fields, Fruchter suggests a range of survival options including

There's advice for law firms here as well, so crawl on out of the loser gene pool and make your way over to Blawg Review # 187.  The survival of the legal species might just well depend upon it!

Note that Eric Turkewitz at the New York Personal Injury Law Blog  will host Blawg Review #188.  Anyone interested in participating in future blog carnivals should take a look at Blawg Review, which has information about next week's host and instructions on how to get your blawg posts reviewed in upcoming issues.

Finally, in true celebration of Evolution Day, take a look at some of the most enduring misconceptions about Darwin's paradigm breaking theory here, including the fact -- noted by Fruchter -- that Darwin did not originate the phrase "survival of the fittest."


*/ Pepper Hamilton is podcasting??????  A short but vivid season of my legal career was served as a Pepper associate back in the late '80s (Alum Network here) when this grand old Philadelphia law firm turned 100 at which time it was still using quill pens - at least in the Philly office.  In the Los Angeles office, we associates routinely gathered in the library (yes! with books) and were required to share the one Lexis/Nexis research station which we were forbidden to use except in the most dire circumstances and with pre-approval.



The Toughest Negotiation - Time to Build Your Practice

By Guest Blogger Renée Barrett aka AAARenee 

One of my favorite movie quotes is from Angelica Houston’s character in Ever After. As the wicked stepmother, she declares to her favorite daughter

Darling, nothing is final until you're dead, and even then, I'm sure God negotiates.

Although I cannot speak to the question whether God negotiates, I have found the first part of the formulation to hold quite true. I have learned that if I am persistent, passionate, and willing to see my challenges and opportunities from a variety of angles, I am usually able to find a creative solution to a problem and identify common ground with someone with whom I have a dispute.

Whether it’s getting a customer service agent to empathize with my situation, haggling to pay wholesale instead of retail, or building consensus amongst a range of strong personalities, there is always a way to state your case and persuade your audience to see the world through your eyes. 

There is one challenge that I have discovered to be most daunting for professionals to negotiate -- the management of their time. 

Time is our most precious nonrenewable resource and as such, we put a premium on it. We attempt to prioritize and guarantee a return on our investment. Often we are left feeling that an activity was either not worth our time or took so much time that we were unable to sustain the task's momentum.

Between work and life, we struggle to find balance and sanity.

My work with attorneys -- helping them to build their practices; assisting them in overcoming their own internalized judgments about marketing and business development -- requires me to help them re-negotiate the way in which they allocate their time.

I empathize.  It is a daunting task to find a comfortable balance between one's professional and personal lives when you are forced to measure it out in six minute increments.  Despite many attempts to eliminate or modify the present system by which we value legal word -- the billable hour remains the entrenched and painful lens through which a lawyer's daily practice is viewed. Given this historic approach, it’s no wonder than that Web 2.0 activities (blogging, online social networking, & wikis) are met with such resistance.


While it is true that there is no one size fits all solution for growing a legal practice,  there is one excellent way to refocus the discussion.

I've never worked with an attorney who didn't agree that the practice of law is a relationship-driven business. Relationships take time to develop and require nurturing, both of which can be streamlined with Web 2.0 tools. If used correctly, there are numerous opportunities online to have a "deep dive" conversation - one in which attorneys can quickly learn a potential client's business, current needs, and future risks.

When someone is in pain, there are opportunities to help them find a solution and be of value. Relationships that would take years to develop offline can accelerate faster online because -- for better or worse -- the internet encourages candor.


If you are struggling with how to do more with less in these tough economic times then reconsider making a small investment of your time in the mostly free Web 2.0 resources.  

The sense of community, collaboration and reciprocity that exists in online social networks can quickly translate into marketing opportunities that are speedily turned into new engagements. If you contribute positively and regularly to the online conversations at Q&As (LinkedIn), subject matter listserv forums, blogs, and, most recently, twitter, you are highly likely to improve your "know, like and trust" stock.  

In the end, professionals who are able to renegotiate their time priorities to set aside a few hours a week to invest in online-relationship-building, will be rewarded many times over by the ease with which your network can be immediately deployed for your benefit or that of your clients. 

If you find Web 2.0 daunting, ask a tech-savvy professional friend to advise you or, better yet, give me a call!

Renée Barrett is a business development & marketing consultant, specializing in change management, professional development, branding, social networking, and client relationship management.

Hope, Safety and Innovation

The first thing we mediators are taught (after digesting the imperative to "be conscious") is that people in conflict need to be in an atmosphere of hope and safety to be able to:  (1)  recognize the point of view of another; (2) be accountable for his/her own "part" in the dispute; and, (3) generate creative solutions to bust past impasse.

This is the reason one of the post categories over at the IP ADR Blog is "Innovate, Don't Litigate," which is the dispute resolution mantra of Sun Microsystems CEO Jonathan Schwartz.

That said,  I am happy to link my readers to The Financial Crisis' Silver Lining over at Harvard Business Publications.

Perhaps the good times are in fact dead. And certainly someone thinking of forming the umpteenth "Web 2.0-widget-to-grab-audience-and-find-advertisers" ought to pause to think whether they really have some kind of defined competitive advantage that can translate into a sustainable business.

But real customers continue to face real problems. And as always, innovators who figure out different ways to solve those problems--and make money doing so--will have opportunities to create new growth businesses. In fact, the creative destruction unleashed by a crisis always opens up opportunities for innovation.

As a simple example, consider a New York based startup called On Deck Capital, Inc. As described in Monday's Wall Street Journal, the company loans money to small businesses. Instead of relying on individual loan officers to pour over episodic financial information and make decisions, the company has an algorithmic approach that uses software to analyze a company's day-to-day activities in a non-obtrusive way to assess credit worthiness. Its loans feature higher interest rates than loans from most banks, but lower than alternative sources.

The company launched in May, and has already distributed $10 million in loans. It has suffered very few defaults. The current credit crisis and hesitancy of many banks to loan to even the best-run small businesses creates substantial opportunity for On Deck to extend its model.

Llssez le bon temps roulez!

Blawg Review #178 Celebrates One Web Day

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!

Seven Ways to Improve Your Working Relationships

Thanks to Kevin's Remarkable Learning Blog (a fellow Forbes Blog Network member) for his  Seven Steps for Mending Broken Business Relationships

Each of the seven steps can help litigators de-escalate the conflict inherent in litigation before all-important settlement negotiations, whether they are conducted with the assistance of a third party neutral or not. 

One or more of them might also help ease tension in the law firm -- a very tense place these days given the recession, lay-off's, the de-equitization of partners and the shedding of non-productive practice groups or of those that might conflict with the law firm your firm is about to merge with. 

It's a rough time.  Let's all be a little more careful of our social capital there. 

We're going to need it.

Decide. The first step is you must decide that you want to improve the relationship. The precursor to this step is recognition - recognizing that the relationship needs improving - but the heart of this is the decision that this relationship matters enough for you to make the effort required to improve it. Without this decision, nothing else matters.

Forgive or let it go. If you feel the other person has done something to cause the rift or break-down, you must either forgive them or let go of your issues with it. Without this step, the steps that follow may help some, but will be limited in their success.

Take ownership. Recognize your role in the relationship, and take ownership and responsibility for it. Yes, deciding and forgiving are accountability actions; but being clear that regardless of the situation you have played a role in the change to the relationship is critical to your success in repairing any damage. Otherwise you are only blaming the other person - which cripples your chance for improvement.

Make your intention clear. Once you have decided to take actions to improve the relationship, your behaviors will change. Take the time to explain your decision and your intention to improve the relationship. Let the other person know that both the situation and the person matter to you, and you want a better relationship. This cements your commitment and communicates your intention to the other person.

Assume positive intent. While I have long believed this concept in a variety of situations, a colleague recently expressed it this way and it makes the idea completely clear. Assume the other person was - and is - acting in good faith. Will you be wrong sometimes? Perhaps. But by starting from this assumption you will immediately change your perception and therefore your behaviors toward that person.

Listen more. We all know how important listening is and how good it makes us feel when we are truly being listened to. Grant that gift to the other person. Listen intently, carefully and actively. Not only will you understand them (and their perspective) better, but they will trust you more and the relationship will build from their perspective.

Make an effort. Deciding is one thing. Doing is quite another. If you want better relationships, you must make the effort - it will seldom, if ever, happen automatically.

For the full post (well worth reading) click here.

Summer Associate Advisory: The Staff Knows More Than You Do

The Wall Street Journal Law Blog (Don't Wear Flip-Flops and Other Advice for Summer Associates) points us to a valuable new site for young associates (and would-be associates) -- The Hiring Partner's Office.   Whether or not this anonymous blog is posted by a hiring partner or a savvy summer associate makes little difference to the quality of the advice provided.  Check out Top Ten Things that Annoy Your Hiring Partner, one of which recognizes what most summer associates don't yet know -- the power in the firm as far as you're concerned, rests with people you might be naive enough to believe are "beneath" you. 

Number three on the list of what not to do this summer is --     

Being rude to support staff. If you say thank you to everyone who helps you, you would be amazed at how the staff will respond. Support staff work hard to help make you and the firm look good to clients and other third parties. DO NOT treat them like doormats. DO treat them with respect and show your appreciation.

Why do we mention this in a negotiation law blog?  Because you need to know who the secret stakeholders are when you are attempting to resolve any conflict or broker any deal.  They are not who they appear to be. 

And, head's up!!  "Your" secretary has been "practicing law" for decades.  S/he knows the judges, the court reporters, the clerks at the courthouse and the pecking order in the law firm.  S/he also knows where the bodies are buried.

Be nice.  Be teachable.  Learn.  Thrive.

Negotiating Your Mid-Life Career Crisis with 360 Career Coach Lisa Gates

Practicing law, particularly litigation, is often frustrating, sometimes humiliating, and frequently simply dispiriting.  On the other hand, the practice of law can be thrilling, intellectually stimulating, challenging, absorbing, and a darn good way to make a good living.

When you shift the purpose of your legal practice from winning cases (litigating) to negotiating settlements (mediating) you also shift your focus from solving intellectual legal puzzles to serving individual party interests.  As a result, you give considerably more thought on a daily basis to what makes people really happy, or, at a minimum, fairly well satisfied.  

That's why you find "work life balance" and career advice in a negotiation blog -- because you cannot negotiate what you really want in exchange for what you do unless you are able to plumb the depths of your own true desire and discard any out-moded ideas about what "should" make you happy.

For these reasons I bring you a dynamite (and very funny) article by career coach Lisa Gates of 360 Alliance Coaching. If you're slogging around not knowing what to do with your early- mid- or late-legal-career-crisis, you couldn't do any better than to book a few sessions with Lisa. 

Her excellent post -- 29 Worn Out Perspectives in Need of the "Oh Really" Factor -- from LifeHack below.  

We all have places in our lives where we get stuck, augured in by a particular belief like, “work is hard,” or “children are too expensive,” or “politicians are evil.” To make matters worse, we often can’t distinguish between the truth and a disempowering belief because we attach little refrains like, “that’s just the way it is.” It’s as if our minds have become the honeymoon destination for Archie Bunker and Nurse Ratched.

If we really listen, we will hear a quality of flatness, resignation or a dissonant righteousness in our speaking. To bring choice, openness, and inquiry back into your reality try adding the challenge “oh really?” to these 29 worn out perspectives (or your own) and turn up the heat on those victim-making, life-killing, soul-sucking, war-making phrases that have been sapping your fulfillment.

1. I don’t have the time.
2. Everything on my to-do list is important and essential.
3. I can’t quit. If I do, everything will fall apart.
4. If I take time off, I’ll lose my game.
5. Nobody will hire me, I’m too old.
6. You’re supposed to get married and then have the baby.
7. Get your diploma, go to college, get a master’s, get married, get a career, have a family, grow old, die.
8. I need an MFA to get published.
9. Art is good, but if you want to make a living, you have to get a real job.
10. I am a complete loser without my [to-do list] [blackberry] [iphone] [rolodex].
11. You’re a loser if you use a rolodex.
12. I can’t delete all those emails.
13. You have to get a telephone. Everyone has a telephone.
14. Nobody will respect me if I don’t have a Ph.D.
15. I have to know how it ends before I begin.
16. You have to start at the bottom if you want to get to the top.
17. A black man can never be president.
18. My vote doesn’t count.
19. Women over 50 should not have long hair.
20. I’m not creative.
21. Investing is pointless as my age; I should have started years ago.
22. It’s all my mother’s fault.
23. It’s all your mother’s fault.
24. I don’t have any choice.
25. If I don’t make it by 30, I never will.
26. If you’re an artist, you need a career to fall back on.
27. Finding love is just not in the cards for me.
28. I’d rather travel, but I have to get a degree first.
29. There’s nothing I can do about it (the all-time favorite).

Now that you’ve disrupted the homeostasis, what other perspectives are now clamoring to be heard?

About Author: Lisa Gates is a coach and completion catalyst - the crazy glue on the soles of your sneakers that keeps you committed to your book, your project, your big idea. Committed to inspiring the leadership possibilities of livelihoods in action, Lisa has three words for all idea-crazed writers, entrepreneurs and dreamers: Someday is now. Find her at 360 Alliance Coaching.

Negotiating Law Firm Happiness: Partnership Compensation

I've got a little series on law firm happiness going on over at the tremendous workplace law resource Connecticut Employment Law BlogDan Schwartz, the dynamite Blog Meister behind Connecticut Employment Law had to take a blog break  while actually TRYING A CASE (yes, people still DO).  While working, he filled his excellent blog with guest posts, including my three-part series ending with partnership compensation today.  

Call me an idealist, but some of the suggestions made in my current post over at the Connecticult Employment Law blog are taken from Lauren Stiller Rikleen's exhaustive analysis of the modern law firm's ills and potential remedies in Ending the Gauntlet, my review of which will appear in this section of the Complete Lawyer's next issue so keep a look out for it!


More on Knowing What You Want Before You Negotiate for What You Need

Achieving Your Heart's Desire: A Very Brief "How To"

Why talk about achieving your heart's desire in a blog dedicated to negotiated resolutions of disputes?  Because you must know how you value a thing before you can even begin to think about negotiating a price for it.

This week, over at the Connecticut Employment Law Blog, Part II on my series of posts on negotiating  partnership compensation will appear.  (Part I is here).  If we don't know what we really want, we are more apt to accept in compensation for our life's work what one author has called "frozen desire" -- money -- even when money fails to satisfy.  (See Frozen Desire, The Meaning of Money here)

Because I made (and am continuing to make) a career transition and because my new career is truly  my own heart's desire, I offer the following advice from the middle of the road toward my own unique kind of success -- a success that includes but does not entirely rest upon money as a measure.  

  • Give up whatever it is you are currently addicted to -- money, property, power, prestige, safety, drugs, alcohol, food, spending, cheating, clinging, worrying, or even simply saving against an uncertain future.
  • Find your "bliss"
    • I didn't know what this was until I was ready
    • I wasn't "ready" until I conquered numerous other challenges 
    • Your "bliss" doesn't occur to you overnight and it changes over time
    • Your "bliss" generally takes more than one form
    • sometimes life has to rip out of your hands that which you already possess before you are ready to pick up the new thing and start working on it 
    • in other words, you can't do the new thing until you've pretty much completely finished with the old 
  • Ignore "sunk costs."  In my case,
    • tuition for LL.M
    • cost of professional training other than LL.M
    • sweat equity
      • pro bono panels
      • writing
      • speaking
  • Don't let people tell you that it cannot be done
    • there are a thousand, a million reasons why something cannot be accomplished and only one reason it can -- you are committed to doing it
    • people who say you can't are more frightened than you are about their own ability to alter their destiny -- be kind to them but do not let them deter you
  • Don't give up when it -- whatever "it" may be -- doesn't happen right away
  • Be flexible
  • Fill in the lean times with stuff you already know how to do
    • I, for instance, write, legally and "technically"
      • I have a range of writing "rates" according to the task
      • I charge more for legal briefs
      • I charge less for the occasional odd job when someone who needs a little writing done thinks -- oh Vickie would be the perfect person to do this!
    • I'm not too good for anything that provides me with income
    • Nevertheless, I set my rates at "market" as soon as I believe I have the education, training and experience to justify it
  • Give freely of yourself without expectation of reward
  • That said, barter
    • what you used to do has more value than what you're now beginning to do
    • don't hesitate to barter your old services in service of the new
  • Build a social and professional network
    • you are now in possession of plentiful seeds of your new venture
    • toss them everywhere; spread them promiscuously
    • don't let anyone tell you that so and so cannot give you work -- everyone can give you work, even people who others see as your competitors
    • you have no competitors -- your market is big enough for you
    • your network should be both online (LinkedIn, Face Book and the like) and off-line (Bar and industry associations)
  • Be a program of attraction rather than promotion
    • be a problem solver
    • walk your ADR talk
    • let people wonder what you do and tell them only when they ask
  • Market your own backyard
    • you know certain types of people, professions, industries and commercial enterprises better than others
    • market them
    • remember Colin Powell's advice -- the most important information to an international diplomatic negotiation is "being inside the other guy's decision cycle."
    • it's easier to market the people you know than those you don't
  • Be passionately committed to your own success. 

Until one is committed, there is hesitancy, the chance to draw back-- Concerning all acts of initiative (and creation), there is one elementary truth the ignorance of which kills countless ideas and splendid plans: that the moment one definitely commits oneself, then Providence moves too. All sorts of things occur to help one that would never otherwise have occurred. A whole stream of events issues from the decision, raising in one's favor all manner of unforeseen incidents and meetings and material assistance, which no man could have dreamed would have come his way. Whatever you can do, or dream you can do, begin it. Boldness has genius, power, and magic in it. Begin it now. Goethe

The world comes into existence as you move toward it.  Paul Auster

Whatever happens. Whatever
what is is is what
I want. Only that. But that.

--Galway Kinnell 
New Selected Poems, Mariner Books, 2001


"Coerced to Settle By Attorneys"

Sometimes reading my statistics page is the best way I have of taking the pulse of my readers and diagnosing the current actual rather than the aspirational state of settlement and mediation practice.

Listen.  Only the squeakiest client or party wheel will tell you that he is feeling coerced into settling the litigation that has become a millstone around your neck.

I'm talking to attorneys here -- but settlement officers, judges and mediators should pay attention as well.  Whether you're representing the CEO of a Fortune 500 Company or the 60-year old man who slipped on the iconic darkened bananna peel in the produce section of the local Ralphs, at some point during settlement negotiations your clients are going to suspect one or more of the following:

  1. you're tired of his case and want to get rid of him
  2. you're in cahoots with opposing counsel, with whom, frankly, you have a far more enduring if not affectionate relationship than with your client
  3. you and your old buddy the mediator or settlement judge/officer have joined forces to to compel him to give up his legal rights in exchange for less money than you, his attorney, told him he was likely to recover two years ago
  4. despite his protests, you, the mediator and opposing counsel keep saying the fact most important to his case  is "irrelevant" to his chances of recovery
  5. when you talk to opposing counsel or the mediator about the case, he doesn't even recognize what you're talking about -- this is not the same case he brought to you to try two years ago
  6. he feels extorted and no one is paying any attention to that
  7. he feels like he's being sold down the river and no one is paying any attention to that
  8. he paid his you and your law firm tens of thousands, hundreds of thousands, millions or tens of millions of dollars in attorneys fees and he thinks he could have settled the case for the sum that's being offered/demanded now before he paid you to litigate this case to the settlement conference.
  9. he's really really irritated now -- angry even -- though he doesn't get angry; he gets even, and he'll have no trouble spending another few million on attorneys fees so show that lying, cheating so and so in the other caucus room a thing or two
  10. he's a successful business man and he's never been treated with so little respect before.

Now let me tell you something else.  If these thoughts are some of those which race through your clients' minds during settlement conferences, your mediator should be sufficiently alert to the changing temperatures in the room to address them. 


Because the mediator's job is not to settle the case.


The mediator's job is to:

  1. assist you in helping your client understand the options available to him
  2. assist you in delivering bad news to your client in a way your client can hear it
  3. assist you in negotiating as good a settlement as possible for your client without making your client feel as if he has no other options
  4. assist you in resolving for your client the justice issues that your client originally brought to you to resolve
  5. assist you in helping your client recognize and set aside the emotional experience of the settlement conference for the purpose of doing a sober cost-benefit analysis
  6. assist you in helping your client recognize that legal cases change over time; sometimes getting better and sometimes getting worse, usually both in the discovery process -- this is not the case your client originally brought to you -- untarnished by the harsh adversarial systems but puts "facts" to a more exacting test than any other process in business, political or social life
  7. assist you in helping your client recognize his own fallibility, potential for error, and accountability for his part of the harm for which he is seeking recompense
  8. assist you in helping your client recognize that the other side -- evil, destructive and hateful as it may well be -- also has a few items of "truth" and "justice" on its side of the balance sheet
  9. assist you in helping your client make an informed decision without pressure from anyone whether he wishes to accept less than he wants to or would like to take his chances at trial
  10. assist you in walking away from the mediation or settlement conference with your client clapping you on the back and saying, "great work, John.  If I'm ever in need of a litigator again, rest assured it's to you I will come.  I'll tell my friends on the block or on the Board of Directors that you're the man.

How do we accomplish these ten aspirational goals together -- attorney and mediator and client?  Stay tuned.

The Jerry McGuire video above is for our clients -- with whom we do not share just how hard we are working and what a toll it takes upon us because that's what they've paid us to do -- and paid us handsomely I might add.

Why You Should Read Making Mediation Your Day Job

Making enough money doing what you love to do? No?

Butcher, Baker, Candlestick Maker, Doctor, Lawyer, Native American Chief, here's the book you must buy and read immediately -- Making Mediation Your Day Job: How to Market Your ADR Business Using Mediation Principles You Already Know

First, Mediation Earth Mother, Scholar and Entrepreneur, Diane Levin's review:

Shakespeare once wrote, "This above all: to thine own self be true." These words, written 400 years ago, resonate today. They do so especially for the many professional mediators who cringe at the very thought of marketing -- with its associations with shameless self-promotion, glad-handing, and cold-calling. For many mediators, marketing just feels wrong.

Now, at long last, there's a guidebook that achieves something no other mediation marketing resource has done. It helps mediators do the impossible: become more effective marketers and remain true to themselves and their work. Dr. Tammy Lenski, a mediator and mediation marketing coach who has run her own successful practice since 1997, has created Making Mediation Your Day Job, the definitive resource for mediators who want a realistic, practical blueprint for marketing their practice.

The clue to Dr. Lenski's formula for success is in the second half of the title of the book: How to Market Your ADR Business Using Mediation Principles You Already Know. She asks readers, "Would you enjoy marketing more if your primary aim isn't selling and self-promotion? I'm betting most of you would say yes." Like the skilled practitioner she is, she reframes, inviting readers to see marketing anew, "as dialogue or as a learning conversation", something mediators already know how to do, and do well.

Using humor, anecdotes, and real-life examples drawn from her clients, her students, and her own experience, Dr. Lenski encourages her readers to step outside their comfort zone and draw upon the professional skills they already have to build opportunities. She also offers sensible productivity tips, business planning advice, and useful exercises that help mediators master marketing.

What also distinguishes this work from the numerous resources available now on mediation marketing is its emphasis on professional integrity -- on honoring the profession through a commitment to mediation excellence. Dr. Lenski reminds readers that it's not just good marketing that matters; mediators also have a duty to uphold standards of excellence and develop their professional skills. She wisely observes, "In the end, it's the quality of the work you deliver that's going to help keep the clients coming."

More than a book, Making Mediation Your Day Job functions like an honest conversation with a wise and caring friend. Dr. Lenski writes as someone who has been there and understands where and why any of us get stuck when it comes to marketing. She's there to nudge us forward, with encouragement and straight talk. Making Mediation Your Day Job offers authentic, real-world advice for mediators who want to use marketing to take their practice to the next level -- and all the while stay true to themselves and their work.

And mine -- both of which can be found on amazon.com where you'll be purchasing Dr. Lenski's book today, yes?

I just finished consuming Making Mediation Your Day Job: How to Market Your ADR Business Using Mediation Principles You Already Know.

When I say "consuming," I'm talking about the way we exhaust our appetites over a Thanksgiving dinner plate -- eager, greedy and far too quickly -- before pausing to wonder where the turkey, potatoes, gravy, green beans and yams could possibly have gone.

Teacher, trainer, and mediator, Tammy Lenski is less than candid when she says this book is about marketing our ADR Business. This book is about locating and achieving our dreams. But Dr. Lenski doesn't stop there. She goes on to provide practial advice about making our living by living our dreams.

Why such effusive praise for a short book on marketing a mediation practice? Because it's not a "how to" but a "why" and a "what," with workshop questions to help us fill in the gaping holes of our lives.

This book does what no other career or marketing guide I've ever read even seeks to accomplish. It inspires and guides. It suggests reaching for the stars with our feet firmly planted on the ground. It asks us to look inside our very own hearts; to assess our strengths and weaknesses; and, to measure the width and depth and breadth of our desires. Then it gives us the action plan we've all been waiting for. The one that helps us make ME, INC. our day job.

It would be unfair -- selfish even -- to recommend this book only to mediators. Why would we withhold this practical wisdom from the aspiring lawyers, chefs and novelists in the world? Why would we deny the entrepreneurs and financial wizards; the actors and the politicians of the benefits of Dr. Lenski's ground-breaking work? It wouldn't be nice; it wouldn't be fair; it wouldn't be right.

And in this I do not exaggerate even a little. 

How Rich are We? A Modest Response to Geoff Sharp's Mediator Salary Post

Before a wave of emotional despondency descends upon rank-and-file mediators from Geoff Sharp's revelation that median mediator income hovers around $67,000, let's get a little perspective.

First, if you are making $67,000 per year, you are the 52,428,447 richest person in the world and are in the top .87% of the wealthiest people worldwide.  See Global Rich List to end your week on a note of gratitude with a donation to the charity of your choice. 

 Chart from PayScale.

OK.  You don't compare yourself to the people living on less than one or two dollars a day, even though that's the first item on the list of your myriad blessings.  Half of the world's population -- nearly three billion people live on less than two dollars a day.

Check to charity or for a microloan written yet?

But you don't compare yourself to half the world's population.  You compare yourself to attorneys -- a profession you chose not to pursue or that you left to be happier.

The median salary for attorneys who have been in practice between one and four years is -- oh my goodness!!  -- just a couple grand less than the median income for mediators!

And remember, an attorney who has practiced between one and four years has been devoting him/herself to the law for between four and seven years -- the first three of which s/he was spending tens of thousands of dollars for a law degree and earning either precisely -- or next to -- nothing.

So.  If you've been mediating for between four and seven years and are making something between $50,000 and $100,000 per year, you are doing every bit as well as the median attorney.

Does your weekend look any brighter now?

The NYTimes Dissects Lawyer Unhappiness with a Note on Following Your Dreams

If you haven't seen it referenced by a hundred law blogs already, here's your link to the New York Times article The Falling-Down Professions, parsing not only legal, but also physician unhappiness.

Of all the fool's gold mentioned there (property, power and prestige) the article does contain one note of true value that attorneys might be missing in their practices:

Especially among young people, professional status is now inextricably linked to ideas of flexibility and creativity, concepts alien to seemingly everyone but art students even a generation ago.

“There used to be this idea of having a separate work self and home self,” . . . [Richard Florida, the author of “The Rise of the Creative Class: And How It’s Transforming Work, Leisure, Community and Everyday Life”]  “Now they just want to be themselves. It’s almost as if they’re interviewing places to see if they fit them.”

The Choices We Make

In 1975, I was fresh out of college and typing in a typing pool in Midtown Manhattan.  I still believed my sixties values at the time -- you know -- that meaningful employment was more important than money.  I was -- not surprisingly -- just about as opinionated then as I am today and precisely as willing to share those opinions with anyone, regardless of hierarchy.    

So it is that I recall a conversation I had with a young lawyer whose typing I did.  He was relatively fresh out of Berkeley (Boalt) Law School.  He wanted to be an historian, but the Ph.D's at the time were mostly driving cabs.  He'd already left Sullivan & Cromwell for a captive midtown Manhattan law firm because S&C had given him such tasks as color-coding a map of the United States with the insurance programs available in each one.  He'd even saved it.  Pulled it from his top desk drawer.   A momento of the life he'd avoided.

But he wasn't finding happiness at this smaller firm with more hands-on work either .

He was about to marry the young woman he was living with when it seemed time to marry and they were looking for a house in the suburbs.  They were thinking of having a baby.

Here's the cheeky part:  "don't do it," I urged him.  "You'll be chained to this unhappy job for the next quarter-century."  

Why did I believe this strongly enough to confront my superior in this way? 

Because my entire generation had rebelled against just this type of life.  We believed in following our dreams.  We had the audacity to believe we could be happy.

The "Ending" You'd Predicted, Pretty Much

This young attorney's children are all grown-up now.  And he wouldn't, of course, trade them for anything in the world.  He finally left practice in his fifties, after his children graduated from college, to pursue that doctoral degree in history.  

Shortly after -- before he had the Ph.D in hand -- his doctor gave him bad news.  He has (still in his fifties) a particularly fast-growing and deadly cancer.

So . . . . Listen . . . .

Follow your dreams.  

Along the way, if you don't put it off, love will come and commitments will be made.  Children will follow with the joys and sacrifices they entail.  If you are robustly participating in your own life, these events will take place. You will be successful and you will fail. 

Your failures will be your greatest teachers.  And sometimes, those failures will be sufficiently dramatic to release you from the bondage of the fool's gold we all haplessly follow from time to time -- status and  stuff instead of satisfaction.  

That, at any rate, is how my life has rolled out and the lives of my friends and colleagues.

Take the long view.  Then commit to the present with passion.  

(I've written elsewhere why sometimes lawyers are unhappy -- here and here for instance -- but I promise some "why we're happy" posts in the New Year!)

Make it Rain, Make it Rain, Make it Rain

We know it's short notice, but if you can make it to the Ritz Carlton in San Francisco on January 15 (and shouldn't any excuse do?) don't miss the Lexis/Nexis Women in the Legal Profession Summit -- Rainmaking, Negotiating and Collaborative Development.

Ruth Kahn (Steptoe) and Marcia Pope (Pillsbury) are making the following high-powered conference happen to start your new year developing or growing the practice of your dreams!


In 2006, The New York Times® reported that only 17% of partners at major law firms nationwide were women—and according to a National Association for Law Placement study, less than 5% were managing partners. In a recent survey, less than 15% of general counsel at Fortune 500 companies were women, according to the ABA. These statistics raise the question: Is the glass ceiling giving way in the legal industry?

[note that we also recently learned that women in the same practice and geographical areas also charge less than men!]

At the LexisNexis Women in the Legal Profession Summit: Rainmaking, Negotiating and Collaborative Development, you’ll hear about the techniques and approaches that successful female attorneys have employed to overcome the odds and achieve equal status in their firms or legal departments. And you’ll hear from in-house speakers from Chevron, The Clorox Company, Starbucks Coffee, LexisNexis Examen and Union Bank of California. You’ll get:

  • Techniques for overcoming gender bias and improving the inclusion of women in practice 
  • Strategies for leveraging your strengths to create leadership and rainmaking opportunities 
  • A better understanding of what work/life balance is and ways to achieve it 
  • Insight into how others perceive your communication style and what you can do to translate it into effective negotiating skills 
  • Strategies for attaining partnership and for succeeding once you get there 
  • Insight from a corporate roundtable on how the panelists got where they are today 
  • And much more

From impressive speakers, including:

  • Linda Marks, director of training and consulting, Center for WorkLife Law University of California, Hastings College of Law 
  • Laurie Stein, Esq., senior vice president & general counsel, The Clorox Company 
  • Patricia Gillette, Esq., Orrick, Herrington & Sutcliffe LLP 
  • Silvia Garrigo, Esq., senior counsel, Chevron Corporation 
  • Dawn Patrice Ross, Esq., senior vice president, Union Bank of California 
  • Tina Bondy, Esq., corporate counsel, Coffee Master, Starbucks Coffee Company 
  • Hon. Rebecca Westerfield (Ret.), JAMS

Led in their discussions by two extraordinary co-chairs:

  • Ruth Kahn, Esq., Steptoe & Johnson LLP 
  • Marcia Pope, Esq., Pillsbury Winthrop Shaw Pittman LLP

In addition, a luncheon and a cocktail reception will provide opportunities for discussion of issues and strategies with colleagues and experts.



Do Good Looking People Negotiate Better Deals?

Both the Wall Street Journal Law Blog (Do Looks Matter in the Law?) and the ABA Journal (Good-Looking Lawyers Make More Money) are reporting -- the WSJ beside a photo of the none-too-beautiful but apparently universally "sexy" Matt Damon -- that good looking people -- even those in the legal profession -- make more money than their less comely peers

One of my favorite blogs, Deliberations, also covered this topic from the angle of jury persuasion in How to Be Better Looking here.

We've also covered this topic as thoroughly as we believe it deserves in the Power of Beauty here.

The executive summary?

Physical beauty creates a "halo effect" that leads us to believe that our better looking peers are smarter and more talented, generous and good-natured than the rest of us.  

The Lesson?

If we live life joyously and authentically, we will possess the qualities people automatically ascribe to the "beautiful" among us.  More imporatantly, we will have become beautiful by being the kind of person people imagine -- say -- Angelina Jolie or Matt Damon to be.

Negotiating Middle Age: the Judicate West Holiday Party; Sky Bar and Twisted Sister


(photo from Judicate West's home page) 

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

But that was just the beginning . . . .




. . . . then . . . .


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

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


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

 which makes me  . . . . .

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

AND of course

. . . .potential liability.




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

ROCKIN' . . . . .

Trust me on this one.

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

Settle It Now Joins the Forbes.com Business and Finance Network

(Notting Hill Gate by Paolo Margari)

What is that advertisement at the top of Victoria Pynchon's Negotiation Law Blog?

It's the first of several ads to be delivered on this site by Forbes.com.

Why is she junking up her blog with advertising; does she need the $$$ that badly?  . 

It's true that I will earn some income (a few dollars a month?  a couple of hundred?  I have no idea). 

But I'm not in it for the ad revenue.  

Why then?

Believe it or not, this blog is not merely a marketing device.  It is also an attempt to spread the good news of collaborative problem solving and interest-based negotiation to whomever those skills might help in their business and personal lives.  

Learning interest-based negotiation and mediation skills radically changed the quality of my life, my work and my personal relationships.  I don't just want to share that, I'll go all the way to say I have a mission to share that. 

O.K., But What Does This Have to Do With Advertising from Forbes.com

I'm joining the Forbes.com Business and Financial Network to bring the Settle It Now Negotiation Blog to as many people as might find it useful, most particularly business people and attorneys.

Forbes.com's homepage has -- drum roll please -- 20 million visitors a month. 

I have 5,000-6,000 visitors a month. 

I'd like to have more.

I'm truly hoping that the Forbes.com network will provide a greater array of information and advice to my existing five to six thousand monthly visitors and that the addition of my blog to the network will get the central message of this blog to more people.

What is your blog's central message anyway?

Here it is.  

A community thrives on collaboration and reciprocity.  All communities -- local and global -- thrive on collaboration and reciprocity.  And individuals living in collaborative and reciprocal communities are happier and healthier than those who don't.

The rest is implementation.  And practice.

So, let's see how this Forbes.com community can further that goal. 

Hop on board!  The train is getting ready to leave the station. 

But don't worry about being left behind.  We're a local so you can jump on any time you're ready!! 

Legal Assistant or Partner, Monster.com Has Solid Advice for Negotiating Your Compensation

For the complete article 3 Steps to Making Smarter Counteroffers :  Get the Compensation Package You Deserve by Michael Chaffers click here.

#1: Get Prepared

Before the negotiation begins, take the time to [do your] research . . . Establish a reasonable range for [compensation], a typical benefits package and common additional compensation (e.g., stock options, annual bonus, performance bonus). This work makes it possible for you to know the ballpark in which any satisfactory agreement has to fall.

Then, from those general points, determine the most favorable compensation package for you. You should be able to justify that package given the field in which you work (since compensation differs across industries) and your experience, expertise and credentials.

Make sure that this package addresses the real needs you have -- you will likely have trouble asking for more later if you overlook something. This package is your counteroffer.

#2: Be Firm

[S]elect[] a reasonable and appropriate counteroffer -- one based on the data you gathered in your research -- and stay[] there until the other side offers a persuasive reason for you to move.

By "persuasive," I mean an argument based on additional data or information that justifies a different figure or package than you had developed. . . . . An example of an unpersuasive argument would be "Your figure is too high. We can't do that."

#3: Be Wise

Keep the big picture in mind. Your goal in the negotiation is to reach an agreement that satisfies your interests -- not to win a battle between positions. If your counteroffer is not moving you closer to an agreement, do not hunker down and defend it to the death.

Instead, think of another proposal that addresses your needs and concerns and is supported by data, and put that out as another offer. Use your energy to generate solutions, not to fight battles.

Online Networking: Negotiating Your Own Levels of Risk

(disclaimer, right:  this is not the sky; photo by NilsGeyland)

Check out C.C. Holland's Law.com article Mind the Ethics of Online Networking about ethical problems that might arise if you use Linkedin, Facebook and the like to build your legal or neutral practice. 

If you're risk averse, Holland and lawyers she interviews advise caution.  

First, Why Do Those of Us Who Use Social Networking Sites or (Gasp!) Blogs, Take the Risks

Holland identifes a handful of internet lawyer pioneers, including your faithful blogger.

Colin Coleman, a business attorney in Needham, Mass., uses the networking site LinkedIn to build professional relationships and make introductions. Beverly Hills, Calif.-based Victoria Pynchon, who recently launched a commercial-litigation mediation practice, likes the way Facebook mimics a neighborhood and allows people to get to know her. And Southern California entertainment lawyer Richard Jefferson maintains a MySpace page to ensure his clients consider him cutting-edge.

While their focuses are different, all three attorneys share one trait: They've recognized the value of these social-networking sites to help support and expand their businesses.

Early adopter attorneys are clearly at the forefront of a new networking movement. At the same time, these pioneers are blazing ethics trails into previously uncharted territory.

Gee, I Didn't Feel as if I Was "Blazing Ethics Trails into Uncharted Territory."

O.K., I sound a little bit like a jerk when I'm quoted as saying

I'm a pretty ethical person and I'm not risk averse -- that's why you buy malpractice insurance.  I don't let fears of liability keep me from doing anything."

Particularly when it's followed by Holland's comment that "most standard malpractice policies would not cover an ethical or disciplinary violation regarding an advertisement or communication to potential clients."

I'd meant to conclude that remark with advice given me long ago:  that good relationships with your clients is the best guard against malpractice.  Even so, as Holland correctly notes, if I'm violating ethical rules, neither good client relations nor malpractice insurance will protect me.

And what I don't know can hurt me.  From Holland's article I learn that:

the LinkedIn site . . . testimonials -- e.g., "Jane is a fabulous attorney who really knows her stuff" . . . [run afoul of] . . . the California rules governing advertising and solicitation [unless the testimonial-carrying page] contains an express disclaimer. 

My LinkedIn testimonials are primarily from attorneys for whom I've provided mediation services.  Though of course they all differ, each offer the opinion that I'm a pretty darn good mediator.  Here are a couple of edited examples:

I have had the pleasure of using Ms. Pynchon on several high dollar (and some low dollar) mediation sessions. While the amounts in controversy varied, her results were always great. Did she mediate a settlement in every case - no (but she's come pretty close with a 90% track record).  .  . . Overall, for my tough cases, I always call Vick[ie] first [because] I know that Vick[ie] can find a way to reach compromise when others will give up or run out of creative options. . . . July 13, 2007

Top qualities: Great Results, Expert, Creative  Tappan Zee
hired Victoria as a Attorney in 2005, and hired Victoria more than once

Ms. Pynchon is a brilliant mediator. Not only does she have a natural talent for mediation, but she is committed to improving her skills through hard work and study . . . which translate into the ability to quickly analyze the facts and law of a case and then be able to talk to the attorneys and the parties knowledgeably. I recommend Ms. Pynchon without reservation.”

Top qualities: Great Results, Expert, Creative Lilys Mccoy
hired Victoria as a Mediation in 2005, and hired Victoria more than once

So I should disclaim these by saying, for instance, that although these lawyers thought I did a great job "results might vary and side-effects could include nausea, dizziness, upset stomach and  irritation"? 

I don't mean to make light of the issue, but I've never found disclaimers of any sort of much use to anyone.  And other than Tappan's comment that I generally resolved about 90% of his cases, these are all opinions as to quality, not representations of fact. 

Still, I do have a disclaimer on this blog, warning my readers that:  

This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. 

I suppose that's all I really have to say on my Linked In and FaceBook pages and I guess I'd better do so.  Today, in fact.

But d'you think I really need to say that the photo on those sites is two years old when I was twenty pounds lighter?

Radiohead's "Set Your Own Price" Marketing Strategy

Negotiation is marketing is sales is negotiation is marketing . . . 

So what's Radiohead got to do with it?  According to the Church of the Customer, greater access to consumer information and, of course, generating demand. 

See excerpt below and link to full article here.

Of more benefit to them now is building a database of buyers, bypassing the information black hole of so many retail channels. That's the value exchange.

And in a few months, Radiohead will partner with a label, which will manufacture a CD of the album. If the album is great (always a non-quantitative variable when it comes to art), it will have already created demand for the totem version of the album.

If scarcity isn't your primary method for generating demand, then getting your product or service into as many hands, mouths and minds possible is. The ideas, products or services that spread the most usually win.

Today and more so tomorrow, that means letting go of the control you're accustomed to.


Two Interviews, Two Great (Blush) Mediators

This month brings us interviews with two mediators -- Geoff Sharp -- who talks about his mediation practice and yours truly, who talks about, what else, business and practice development while wearing my literary writer and editor's hat.  

Gini Nelson has included in this month's Engaging Conflicts newsletter an interview with one of my mediation mentors, New Zealand's Geoff Sharp who writes the brilliantly witty and incredibly honest ADR blog Mediator blah blah.  

To whet the appetites of my mediator readers, here's a snippet of Geoff's advice about being a mediation chameleon.

Gini: Do you have a “conflict resolution hero,” and if so, who and why?

Geoff: Yes I do. It is the chameleon.   I have always thought that mediators are natural chameleons. Good mediators can’t have egos, or at least they can’t bring them into the room, and they must to some extent mould themselves on the day to the environment they find  . . . To me that is all to do with being self aware, reflective and having very good antennae to know what and how one should present. If not the chameleon it is a little pig out at our bit of dirt just north of Wellington here in New Zealand. This little black kune pig lives with about five horses in a field. I think it thinks it’s a horse. It regularly intervenes when there is a problem between horses. It is a bit like George Orwell’s Animal Farm!

To read the rest of Gini's interview with Geoff, click here.

The second interview is with "completion catalyst" Lisa Gates of the Intrinsic Life Design blog.  Lisa and I stumbled across one another on the List of Magical Women Bloggers.  She's a career coach for writers who describes her work in this way:

I am the crazy glue on the soles of your sneakers that keeps you committed to your book, your project, your Big Idea. I'm the kick in the pants you wish you had nine months ago when you birthed that Big Idea in the first place. I'm equal parts left-brain, right-brain and I have three words for all you lurking, burning, idea-crazed writers, entrepreneurs and dreamers: Someday is now.

Because I'm the editor of a literary journal and a writer when I'm not mediating or blogging, and because Lisa liked my journal (thanks Lisa!) she interviewed me about pursuing ones writing dreams, which the journal surely is for me.

Because mediators are also pursuing a dream, I provide a little bit of the interview with Lisa here.  If this excerpt interests you at all, you can find the entire interview on Lisa's blog here.

Lisa:  How do you market or carve out your niche in the literary journal landscape?

Vickie:  You just start networking. I was innocent. I downloaded Yahoo's free internet-design program, taught myself to use it and am continuing to use it to this day. I think the website costs me about $20/month and the ad in Poets & Writers costs $60 every other month. I just do it.

That's what I've learned since '04 about everything in life. You just start the thing. You take a single step in the direction of a dream and another the next day, and the one after that. Things begin to grow. People start to hear about you or tell their friends or post something on a blog like you're doing. You become a kind of attractor. I'm not new age so you'll have to understand that what I'm about to say is truly metaphoric and not a concrete belief.

I think the power of intention coupled with action creates a kind of force that becomes bigger than you are, and everything you've ever done aligns with that intention and becomes part of the engine of the dream.

I think both Geoff and I would say, whatever your dream, go for it!

Walking the Talk: Tit for Tat in a Collaborative and Reciprocal World

Many thanks to Christine Mast over at DRI's informative, timely and well-written newsletter The Business Suit for mentioning the Settle It Now Negotiation Blog.

Christine is a partner with the Atlanta office of Hawkins & Parnell, LLP, a litigation boutique with offices in Dallas and Charleston, West Virginia. Absent the IP sub-specialty (see the IP ADR Blog) her practice pretty much mirrors my own before I abandoned ship and landed here on ADR Island. 

Chistine's commercial litigation specialties include insurance coverage and professional liability, fields in which I labored for many years


If you're litigating a commercial case, are not a coverage specialist and have decided -- from reading the policy language -- that there's no coverage -- run to someone like Christine, or if it's a really really really big liability, my husband, Steve Goldberg over at Heller -- who litigated the World Trade Center coverage litigation on behalf of Silverstein's lender -- for counsel and advice.  It's not difficult -- it just requires specialized knowledge, knowledge many commercial litigators lack.  See the sad tale of Guess v. Jordache here.


Christine says she's new to the blawgosphere so I wanted to thank her for the mention of our blog by showing her how the whole machinery of the thing works == like a giant internet barter circle of the kind described by author-lawyer Patricia Williams in her groundbreaking work, An Alchemy of Race and Rights.  See also the Benefits of Barter here.

People say "tit for tat" when they want to focus on the aggressive side of that game -- you hurt me; I hurt you.  When talking about it's beneficial effects, they use the words collaboration and reciprocity.  You link to me, I link to you.

But remember, there's a code of excellence here in the blawgosphere and I won't link to www.AccidentLawyers.com just because they mention me (not yet).

I mention Christine's article and the entire Newsletter because it's a great resource and my readers trust me to steer them to good stuff.

Because I'm an aggregator.  See The Long Tail.

Queen Latifa from Chicago on the seemier Tit for Tat side.

So, what do you say, Christine?  Get your law firm to take the blogging plunge by talking to my good friend Kevin O'Keefe over at LexBlog.  Online networking and practice development is geometric, as is LinkedIn, both of which I highly recommend, whether you're building your own business or just expanding your "book."

And, hey!  Thanks for the mention!

Black Swans, Unknown Unknowns, Fire Hydrants and Other Pitfalls for the Unwary Negotiator

Thanks to my friend, the arbitrator and mediator extraordinaire Deborah Rothman for passing along a terrifically compelling book review about an amazingly astute account of the reasons why we fail and the ways we might avoid at least some of failure's pit-falls.

The site is the Motley Fool which I've understood for quite some time is one of the best sources for financial advice, which I have repeatedly completely ignored, and the book is Nassim Taleb's The Black Swan: The Impact of the Highly Improbable.  Really, this is a "must read" review.

Now if only there were enough hours in the day to read all of the good advice in the world, which is what this video is about (which I think I have either Gini Nelson or Stephanie Allen to thank.  You know what?  It was probably Tammy Lenski!)

The lesson of the video below?  Information technology is increasing at so fast a pace that the best we can do to prepare our children for the future is to teach them to learn.

Quiet the Voices. Then Follow Your Bliss. Gini Nelson's Interview with Victoria Pynchon

Right:  Steve (Goldberg):  Insurance Policyholder Coverage Counsel Extraordinaire and My Actual Bliss on "Our" Birthday -- May 1.

I am quite immodestly posting here Gini Nelson's Engaging Conflicts newsletter which contains an interview with me about my shift from litigation to mediation.

Because I recently taught the Deposition Seminar sponsored by the National Institute of Trial Advocacy, I have young lawyers and the challenges that face them on my mind. 

I'm therefore reprinting here that part of the interview reflecting the career questions so often asked by young lawyers -- is litigation the right career path for me. 

Though my own answer is, of course, unique to me, I think every litigator will find something of their own professional struggle briefly recounted here.

Gini: What is the best advice that you have been given? And what advice would you give a budding conflict specialist?

Vickie: Joseph Campbell, the brilliant and recently departed student and professor of comparative religions and mythology, long ago gave me advice I needed but was not ready to apply – follow your bliss.

I didn’t know what my bliss was and couldn’t find it. I had to spend a lifetime quieting a lot of other voices that were vying for my attention before I was ready. Voices that told me to prove to my dad how brilliant and successful I could be; that told me to compete and “succeed” by running the fastest and the farthest whenever anyone shot off a starting gun in my vicinity; that told me I needed property, (perceived) power and prestige to accept myself in all my human fallibility.

It took more than twenty-five years for me to realize the bankruptcy of those thoughts and to experience the results of that way of living.

Then a new voice entered my head and it spoke very very very clearly. “Why don’t you mediate?” it asked.

Two weeks later I took Pepperdine’s 42-hour Mediating the Litigated Case. A month after that, I enrolled in the Straus Institute’s LL.M Dispute Resolution program. And here I am. Following my bliss.

So I guess my answer to this question now that I have written my way to it is this – quiet the voices. Then follow your bliss.

Influences and mentors mentioned in the interivew:

Joseph Campbell (and I owe this to my 12th grade English teacher -- Mr. Higbee -- who assigned us Hero with a Thousand Faces when we were barely sophisticated enough to read it)

Peter Robinson of the Straus Institute of Dispute Resolution

Kenneth ClokeCenter for Dispute Resolution & Founder/President of Mediators without Borders

win win win win win win win

For a real win-win, see the Professional Women's Network of Southern California Blog, subscribe to the feed, and join us in September for our first working meeting.

All is revealed at http://www.womenlawnet.blogspot.com  

A Lawyer "Get's It" -- It's All About the Client, Not the Law

(photo by Scott Liddell; MogueFile

From this month's ABA Journal eReport, a refreshing article on client-centered legal practice -- The Chicken or the Client -- by Gerald Hecht of Hecht & Associates in Danbury, Connecticut.

And, yes, it is spiritual. 

Excerpt below:  

As a general practitioner, I help “real people with real problems,” and I have adopted that slogan as my professional credo. And it is a great answer to the inquiry “What kind of law do you practice?”

Grappling with the client, and not the chicken, enables the attorney to deal with the divorcing mother of three, the debt-ridden restaurateur and the juvenile offender. Another lawyer once told me, “We all know what the law is—the hard part is finding out what the client is.”

The public does understand this: but they just prefer to be entertained by that old razzle-dazzle (like the lawyer in the musical Chicago) and ignore the realities of the profession. It is said that people hate lawyers as a group but love their own lawyers.

For me and my practice, the proof of that is in the telephone. It rings. People want advice. People send money for that advice. It’s a nice system.

I have learned that the system is geared for the lawyer to assist the client, salve their wounds, remediate the problem and to obtain a goal. It’s almost spiritual.

Maybe We Should Re-Think That Coverage Decision

(The ultimate digression:  starting a post with a digression:  This beautiful blog was created, and is "hosted," by LexBlog, the only legal blog outfit in town worth talking to when you decide to drop blogger, typepad and the like and go professional).

That said (I don't say it enough -- thanks Kevin!) I learn from LexBlog's Blog today that Chubb Insurance has apparently reconsidered denying coverage to its attorney-blogging insureds.  And if I was going to reconsider a coverage decision, you bet your boots it would be my attorney-insureds that would make me re-consider the most quickly.

Here's Kevin's report: 

[Chubb] now says law firms publishing blogs will be covered by their malpractice policy so long as lawyers are not answering specific questions in a way that could be construed to be legal advice.

That from James Rhyner, worldwide lawyers professional manager for Chubb Specialty Insurance, in speaking with Lisa Berman, reporting for the New Jersey Law Journal (pdf of story).

Chubb does insure this new form of communication -- and will continue to do so within select parameters.

Ryhner also acknowledged, as reported by Berman, "[T]hat there have been no malpractice suits against blogging lawyers in the United States over bad legal advice. But he cites a U.K. suit involving Lloyd's of London that he is monitoring.

Building Your Practice with Geoff Sharp's "Don't Be Average" Chart

Geoff Sharp kindly passes along his dad's advice not to be average and to always be in mid-career in his brilliant article on Starting a Mediation Practice here. (chart is Geoff's own)

My dad's career advice?  Never be a civil servant or wear a hat.  Huh???  Some dads give sound career advice and others zen koans to chew on for the rest of your life.  We love them equally because, well, because they're our dads!

Somedays, however, thinking of this little chart is all that keeps my internal energizer bunny rev'ving.

Have a great weekend.

Advice for Women Rainmakers and Those Who Think They Can't

(BELOW, Katherine Hepburn and Burt Lancaster in The Rainmaker.  Dated and melodramatic.  But because this scene was my dramatic interpretation selection for high school speech tournaments in 1969, I can't think of rainmaking without recalling this scene)

Pull out that divining rod and begin prospecting for rainwater in your own backyard with marketing guru Sara Holtz's Women Rainmakers Blog.

Start with Your Mother Was Right Part II to get an idea of the ample marketing resources you already possess.  Resources that you need only begin to use.  It's EASY, say I, who developed not a LICK of business in 25 years of practice and am now a business development queen (since I only eat what I can kill). 

But it's not desperation that made me realize I had what it took to develop business.  It was simple necessity.  Everything else followed, without having to change my personality or do or say stuff that wasn't "me."  I'm not golfing or talking about the Final Four or pushing myself on the attorneys who have become my market.  But, this isn't about me.  This is about you.  Here's Sara Holtz's advice on that subject from "Your Mother was Right."  

Your mother told you that when others inquired about you, it was polite to reciprocate and ask about them. What she didn't tell you is it is also good for business development.

I was reminded of this during two recent conversations.

I was speaking with a (male) client. He is a funny, personable sort. In the course of our conversation, I asked him a number of questions - What was new with him? What were his plans for the holidays? What were his kids up to?

He didn't ask me a single question in return.

Least you think this is a "guy thing", I had a similar experience when having dinner with a (female) classmate from Law School. We had an entire dinner in which she failed to ask me a single question about myself or my family, even though that had been the focus of our conversation about her.

I was a bit puzzled in both situations. What do I make of this?  

That it was a missed opportunity to enhance their relationships with me. Carried over to the business development context, don't make the same mistake. Make a point to ask appropriate questions, learn about the other person, let them know that you are interested in them. It will strengthen your relationships. And strong relationships are good for business.

I'll add to this that both lawyers and neutrals are problem solvers.  You don't need to know what complicated antitrust problem your dinner companion is wrestling with (unless she's dying to talk about it).  Casual conversation over a relaxing meal will inevitably reveal some challenge your dinner companion is facing.

Be a problem solver.  I can now do this in minutes, holding a glass of soda water at any bar function anywhere anytime.  I do not tell people I am a mediator.  It tends to make them start looking over my shoulder for someone else to talk to.  They're afraid I'm going to try to sell them my services.  I simply ask lots and lots and lots of questions about them.  How's your practice?  Are you progressing as you want to?  How's the firm doing?  Are your associates getting the training they need, etc., etc.  At some point, I begin helping my new bar association friend with one or more of these challenges.  

Eventually they look at me with real interest and say "what is it that you do anyway?"  That's when I tell them, "I'm a professional problem-solver -- a mediator."  We exchange cards.  The business does not come directly and sometimes not at all.  But at the next bar association function, I often see my new old friend, ask how he's rising to the challenge we discussed when last we met.  He introduces me to someone else with kind words about how I helped him with, say, the paper clip supply in the mailroom.  Really, any  problem solving whatsoever will do.

This is how you build a network, a reputation and a business. If I'd known it was this easy, I'd have had a book of business before I was made (a non-equity) partner.  You can build yours too.  Starting now.

Professional Image: Trustworthiness, Caring, Humility and Capability

below, 360 degrees of l.a. subway by Masumi Hayashi

I've told my own hard lesson about projecting a positive professional image before here and here. 

There's nothing like a 360 review to get you thinking about why you're (pick one) not getting the plum assignments; being passed over for partnership; or, not winning the corporate "beauty contest."  There's a great Q&A over at HBS Working Knowledge with Laura Roberts, Assistant Professor of Organizational Behavior at the Harvard Business School on Creating a Positive Professional Image (before others do it for you).  Here's an excerpt and a link.  

Most people want to be described as technically competent, socially skilled, of strong character and integrity, and committed to your work, your team, and your company. Research shows that the most favorably regarded traits are trustworthiness, caring, humility, and capability.

Ask yourself the question: What do I want my key constituents to say about me when I'm not in the room? This description is your desired professional image. Likewise, you might ask yourself the question: What am I concerned that my key constituents might say about me when I'm not in the room? The answer to this question represents your undesired professional image.

My old friend and former legal associate, environmental attorney James Dragna at Bingham McCutheon, the best client developer in the business, used to say, "if people have the choice between someone competent they want to hang out with and someone they don't, they'll choose the guy [or gal] they trust and like."

Yes, you can improve your technical capability, but those other three qualities -- trustworthiness, caring and humility -- are choices we can make on any given day.  That's the good news.  Even if you never could get the punch-line to a joke right and don't care who the final four might be.  

The Difference Between Negotiation Strategy and Tactics






This January Seth Godin's [Marketing] Blog made a succint distinction between marketing strategy and tactics that is as applicable to negotiation as it is to business development.  "The right strategy makes any tactic work better," said Godin.

The right strategy puts less pressure on executing your tactics perfectly.

Here's the obligatory January skiing analogy: Carving your turns better is a tactic. Choosing the right ski area in the first place is a strategy. Everyone skis better in Utah, it turns out.

If you are tired of hammering your head against the wall, if it feels like you never are good enough, or that you're working way too hard, it doesn't mean you're a loser. It means you've got the wrong strategy.

It takes real guts to abandon a strategy, especially if you've gotten super good at the tactics. That's precisely the reason that switching strategies is often such a good idea. Because your competition is afraid to.

Thanks Seth!  Great advice!

Settling Lawsuits, Making Business Deals, Developing Business and Small Talk

Jack Welch shares a golf-cart with former President Bill Clinton 

We've mentioned the benefits of small talk for settling lawsuits before. 

In a recent post entitled What Am I Supposed to Know About  (thanks to mediator blah blah for directing our attention there) professional firm management guru David Maister, praises the marketing value of small talk.  In this post, he suggests that we might  want to be conversant with the following topics to hold up our end of a conversation at a dinner party or on the golf links with potential clients. 

  • Local politics
  • National Politics
  • International affairs not directly involving your own country
  • The latest tech gadgets
  • The latest fiction best-sellers
  • The latest non-fiction best-sellers
  • What’s hot on television
  • The latest art exhibition to open in your town
  • The popular music charts
  • Yo-yo Ma’s latest album
  • What’s good on Broadway this season
  • The latest movies
  • Local sports teams
  • Sports events not involving local teams
  • Latest theories of child-rearing

I'm tired already.  It's hard enough to keep up with what actually interests me let alone with what doesn't interest me in the least.  

Does that mean that my more eclectically knowledgeable mediator peers will be better able to settle lawsuits and develop business?  I don't think so.  Why?   Because they're really just not that into you. 

So here's the super-secret intergalactic decoder-ring mystery of small talk revealed.  Ready?  


You don't need to know anything about sports, local politics, literature, brain surgery, travel in Cambodia, statistical analysis, Islam, the movies, Anna Nicole Smith or the British monarchy.

In fact, the LESS you know, the better.


Because the less you know, the more interest you'll take in your fellows.  Show an interest in what your clients, potential clients and negotiating partners are interested in and you will make friends for life.

Eventually, these people will get around to asking what it is that you do, thinking it must be something pretty wonderful because you're one of the few people who appear to be smart and forward-looking enough to be so deeply interested in how fascinating they are. 

I tell students to whom I teach the art of taking pre-trial testimony, that this is the same principle as the one you use to pick up men in bars -- a talent I have not used in at least 20 years, having turned this dark art into a power for the good.

As we've previously noted, small talk settles lawsuits and greases the wheels of commerce.

The lawyer who gets credit for that new case from the Fortune 50 company is not alas, the lawyer doing the actual work.  It's the lawyer with the monthly golf date with general counsel or the CEO. And what that lawyer talks about on the links is not what she knows about the principle products of Paraguay or any other topic of general or specific interest.  What she talks about is whatever is of current interest in the GC or the CEO.

And the only way to know that, is to take a genuine interest in others and ask a lot of questions.

Blogging for Mediators 101 -- How to Get Started


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

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

The Basics to Set Up Your Blog

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

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

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

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

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

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

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

Continue Reading

Videos on Your Website? An Idea Whose Time May Come?

I stumble across these things. 

Here's a law firm in Philadelphia, the Beasley Law Firm that showcases its lawyers and touts its services in short video clips on nearly every web page.

In light of the new generation's prediliction to obtain its news, products and entertainment on the web, the Beasley firm might just be ahead of the curve.

           If you're not awash in a web of legal referrals like most of us are, it might be nice to hear and see an attorney before you pick up the phone and call or get into your car to drive on over.

What do you think?  You might want to take at our earlier post on the Women's Law Network Blog concerning the young Pittsburgh bankruptcy lawyer -- legally blonde -- who's building her business on MySpace.

It's a new world folks!

Fixed Pies and Third Place

In this week's New Yorker, James Surowiecki reminds us that "business is not a sporting event [and] victory for one company doesn't mean defeat for everyone else."

Surowiecki's article, In Praise of Third Place, concerns the fight for market dominance in the video-game industry.  

The players?  Microsoft's Xbox, Sony's Play-Station 3 and Nintendo's Wii.  

The takeaway? Good news for those of us who continually hector our fellows about collaborative problem-solving and the real social, political and environmental dangers of fixed pie thinking.

By not competiting for the number one video-game slot, Nintendo is "beating" its Goliath competitors.

[Nintendo] has five billion dollars in the bank from years of solid profits, and this past year . . . saw its stock price rise by sixty-five percent.  Sony's game division, by contrast, barely eked out a profit and Microsoft's reportedly lost money.

How could this happen to the Big Boys?  Surowiecki explains:

Markets today are so big -- the global video-game market is now close to thirty billion dollars -- that companies can profit even when they're not on top, as long as they aren't desperately trying to get there.

Want to perform like Nintendo?

The key is to play to your strengths while recognizing your limitations.  Nintendo knew that it could not compete with Microssoft and Sony in the quest to build the ultimate home-entertainment device.  So it decided, with the Wii, to play a different game entirely.  Some pundits are now speculating, ironically, that the simplicity of the Wii may make it a huge hit.

Here's a question for the evolutionary biologists -- of Life's Top Ten Greatest Inventions -- multicellularity, the eye, the brain, language, sex, photosynthesis, death, parisitism, superorganisms and symbiosis, how many arose from competition and how many from collaboration (or is the question itself too simplistic?)

Speak Your Clients' Language

Executive summary of "Six Sigma in the Legal Department: Obtaining Measurable Quality Improvements in Discovery Management," (KPMG Advisory) from the Corporate Library; See also KPMG's A Revolution in e-Discovery:  The Persuasive Economics of the Document Analytic Approach

There are two reasons for th[e Six Sigma] report.

First, the issue of discovery, especially "e-discovery" and the importance in litigation of computer files, has become one of vital importance for corporations as even one wrongly or carelessly provided document can have devastating consequences.

Second, legal departments are increasingly being expected to measure themselves along the same lines as operating divisions, and the "six sigma" management tool for setting goals and measuring progress has been proven to be particularly useful.

"The Six Sigma philosophy has had broad application across industries and has equal relevance to the legal profession. Corporate law departments—often viewed as a necessary cost of doing business—can benefit from measuring such important functions as ‘process management,’ ‘efficiency,’ ‘process improvement,’ and ‘cost savings.’  These issues resonate in the minds of GCs, CEOs, chief financial officers (CFOs), and other officers of Six Sigma–influenced organizations.

Outside counsel can benefit from understanding and adopting the Six Sigma approach to help their lawyers speak the same language as their clients from a problem-solving perspective, provide higher-quality deliverables, and improve customer service."

Six Sigma is a very stringent standard, allowing for no more than 3.4 defects per one million "opportunities" (tasks or decisions). This report uses Six Sigma to examine the elements of discovery production and ensure that the material provided is thoroughly understood and evaluated, and board members will find it useful in managing litigation risk.

My step-daughter, Julia Goldberg, who is in her second year at the Stanford Graduate School of Business, has the following to say about Six Sigma:

Six sigma is a quality control standard -- requiring that sub-standard products occur only .001% of the time, or six sigmas away from the mean in terms of mathematical deviations. Six sigma became all the rage in the 1980s or early 1990s, and is basically used for manufacturing processes.

There has been some backlash in applying six sigma for non manufacturing processes -- because it is VERY expensive. Companies have to get people certified in six sigma practices (people become certified and are called black belts) or bring in consultants.  At the end of the end of the day, the benefits are not always worth the costs, particularly in the case of, say, a bakery.

Thanks Julia!!

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