Angela was profiled in the Daily Journal today here.  As that profile noted,

Drawing on her years of experience in alternate dispute resolution, [Angela] is creating a section on women in ADR. The association has many ADR professionals in its membership, she noted, but this will be the first time it has had a section dedicated to women who have made great inroads into what had become a male-dominated practice.

Haskins also will keep a eye on addressing the changing dynamics affecting women lawyers. Two years ago, she said, WLALA President Kathy Forester of Munger, Tolles & Olson created a joint task force for women, focusing on how to make partner, stay partner and to make that be an important part of their career.

I'll be chairing the ADR Committee this year.  As part of Angela's Empowerment theme, the ADR Committee's activities will be highlighting its own "Women Do Refer" initiative ~ details here and at WLALA's web page here soon.

CONGRATULATIONS TO ANGELA!

Lautner . . . star of the “Twilight” movies, recently sued McMahon, the owner of an RV dealership in Irvine, Calif, for allegedly failing to deliver a customized vehicle in time for the shoot of his new movie, “Abduction.”

On Monday, McMahon presented what we can only consider to be an awesome solution to the dustup: settle it with pushups. That’s right: whoever can do more pushups — McMahon or Lautner — wins the lawsuit. Click here for the story, from the Hollywood Reporter.

McMahon and attorney Adam Obeid say the Lautners and their lawyers demanded $40,000 before filing the lawsuit. But they offered up a different idea: If Lautner shows up and wins the push-up contest, McMahon will pay him and his Shark Kid Entertainment the $40,000 to settle the case. If McMahon wins, he’ll donate the $40,000 to Children’s Hospital of Orange County.

“We’re taking a negative and making it into a positive to benefit the sick children at Children’s Hospital of Orange County,” McMahon said at the press conference. He says he has other sponsors willing to chip in if Lautner appears.

 

Can we afford not to learn and teach these skills?  Cross-posted at She Negotiates.

One last time!! before the door closes on the opportunity to have your picture in the WLALA Tribute book and to share two tables with your fellow neutrals at the WLALA annual Installation Dinner and Gala. 

I have three more places at the table and on that ad.  I need your check for $175 and a .jpg by Friday to put you in it!  Please, let's show WLALA how eager we are to cross-refer business.

This is a particularly good year to join us as we begin the first WLALA ADR initiative in its nearly 100 year history.

ONE HUNDRED YEARS! of women lawyers - way past time to reach and firmly occupy the higher reaches of the profession.  We've been graduating from the nation's law schools in nearly equal numbers with men for more than 20 years.  My own U.C. law school class (King Hall, '80) was 50% women thirty years ago.

The ADR pipeline is full of competent -- indeed glorious -- women.  Yet the statistics at the top remain grim.

Chopped Liver?

Why is your ADR practice not everything that Tony Piazza's or Eric Green's or even Steve Cerveris' is?  Research shows that both men and women have negative implicit attitudes toward women in leadership and authority positions.  The good news is that women are slightly less pre-disposed than are men to picture a man in a suit when they're looking for access to money and power.  I've had at least half a dozen women commercial litigators look straight at me and say "I don't know any women mediators."

Huh????

Followed by, "well their names are never on the lists [circulated in my firm]."

Women, with their slightly reduced inability to "see" women in authority positions, are our foot in the door. And the new WLALA ADR Committee is our opportunity to open that door wide.

As a member of the CPR-led Joint Task Force on Diversity, I have heard the verdict of JAMS and the AAA.  "The market has spoken.  Commercial lawyers just don't hire women and minorities."

What????

We're advocates, for goodness sakes.  When we come into town we have to register our skills of persuasion with local law enforcement authorities.  We're change agents, opinion makers, powerful holders of the keys to the kingdom. 

And the market has spoken? 

We make the market!

This year's ADR Committee is dedicated to closing the gaping void between men and women neutrals.  We're not going to ask for special treatment, picket the LASC's ADR office, pass new laws or burn our ADR certificates, Super Lawyer plaques, Ivy League diplomas, or our bras (not at this age!). 

We're going to market like no one has ever marketed before and we're going to do so as a group so that we don't each hesitate, as we women tend to do, to promote ourselves and our services.

2010 and 2011 will be the years in which top women will refer to other top women.  2010 and 2011 will be the years in which we close the income gap not only between men and women neutrals but between men and women lawyers (its 40% at the top).  2010 and 2011 will be the years in which we make a market younger women lawyers will be entering in the next decade and the one after that -- one in which they'll flourish after they grow weary of fighting over interrogatory objections and e-discovery.

How?

Marketing.  Proctor and Gamble does  not say, "well, the market doesn't want a new improved laundry detergent."  P&G asks "how?" not "can we?"  And it certainly never says "we give up, the market has spoken."

We're putting our first stake in the ground on September 16 at the  WLALA Gala.  There's no event more important for women neutrals to attend this year. 

Our current attendees will appear in two full-page ads in the Tribute Book and two color flyers to be distributed at the dinner. 

To date those women are Eleanor Barr, Joan Kessler, Lynne Bassis, Katherine Edwards, Laurel Kaufer, Linda Klibanow, Denise Madigan, Stephanie Maloney, Deborah Rothman, Jan Frankel Schau, Gretchen Taylor, Caroline Vincent, Diane Wayne, Linda Bulmash, Lisa Gates (my She Negotiates business partner), Kathy Balin, and Erica Bristol. 

We need three more women neutrals to fill table two.  If you want to sit at another table, ask a woman litigator to change places with you while whispering "cross-refer" in her ear.  The key is that you'll be there to network.  You'll show your support to WLALA by showing up and WLALA women (among the most entrepreneurial in the Bar) will see your beautiful face and panel affiliation or business name in the  Tribute Book while enduring the inevitably tedious speeches at these events. 

Do you want to double your income by 2012?  If we've lasted this long in a profession that was solidly male when so many of us were in high school, we can close this gap by coming together and just doing it.

And if the $175 is too steep a price during these recessionary times or if you'll be out of town or otherwise engaged on the 16th of September, please let me know that you want to be a member of the new WLALA Committee by return email.

Our first event will be an afternoon on arbitration in October with CPR CEO Kathy Bryan and other powerful women attorneys, GC's and CEO's who arbitrate, either as advocates, as clients or as arbitrators.  The panel will be moderated by complex-commercial AAA arbitrator Deborah Rothman.

Shock me!  Let's fill Table Three!!

I look forward to hearing from you and to kicking the last pitiful shards out of that darn glass ceiling.

Best,

Vickie

Victoria Pynchon, Esq., Incoming Chair, WLALA ADR Committee
ADR Services, Inc. and She Negotiates Consulting and Training

Here's a piece I missed in April on real litigation filed over virtual property in Second Life.

Architect David Denton spends much of his time on a lush tropical island, where he experiments with cutting-edge building designs and creates spaces for artists to showcase their work.

Never mind that the island only exists in the virtual-reality world of Second Life, a popular online venue where people interact via digital avatars. Denton, 62, said he purchased the island for about $700 — real money, not virtual cash — from its former owner, and considers it his property.

Here's the thought this article triggers.  If 90% of all litigation involving people (I'll skip corporate litigation and litigation brought to vindicate rights such as that declaring Prop 8 unconstitutional) will end with a retired Judge telling the people that litigation is too expensive and a jury trial too uncertain for them to bear, why don't we just litigate virtually (with Linden dollars!) giving the parties the experience of litigation that will eventually drive them to settlement?

I'm sure some smart programmer can come up with an algorithm for most personal disputes, including both factual templates and the application of simple legal principles.  A "ticker" could keep track of the dollars your virtual attorney is billing on your law suit's screen everyday.  Continuances, discovery motions, pre-trial proceedings and depositions could all be simulated.

Then the parties return from the virtual life of Second Life Litigation and sit down in the old fashioned way to negotiate a resolution to their dispute or, if necessary, hire a village elder trained in conflict resolution, sometimes called a mediator, to help them do so.

What we do, my friend, is discovery.  

Discovery. 

Saying that discovery is part of litigation practice is like talking about the wet part of the ocean.

How do you know when you're finally finished with legal practice?  When do the heavens open up and angels descend with the news that you've finally done enough and may now go and do that which you truly love? 

It's usually a discovery moment.

For one of my former law partners, it came on the heels of a five page meet and confer letter.  Single spaced.  When my friend's secretary came into her office with the written response, the expression on her face ranged between shock and amusement. 

"You're not really going to send this, are you?"

"Yes, I am.  Let me sign it."

"No no no no no no no.  I can't let you do this."

"Yes you can.  Let me sign it."

"Pleeeezzzzzzzzzzzzzzzzzz."

"Sign."

Here's the response that struck fear into the heart of an overworked legal secretary: 

Whatever.

And yes.  She sent it.

For those of you who have not yet reached the promised land of Discovery Whatever, I've got very very very good news for you.

The Discovery Referee Speaks!  And she is a Goddess.  Goddess Kathy Gallo to be exact.

Yesterday's post reminds us what we ought to know intuitively during our first deposition - the Court Reporter is the Goddess of the Deposition (my own stories of first encounters with the Sphinx of the Transcript are here)

I know of only one discovery referee who rivals my affection and respect for Kathy -- the brilliant,  persistent and omnipresent Eli ("and your backup argument would be?") Chernow.  Eli swore my dad in as Superior Court Commissioner before I went to law school.  That alone gives him a warm place in my heart.  He also let my step-son (then my paralegal) ask his first deposition questions in an antitrust action that had become so over-heated we needed the wise calm of a discovery umpire to get us from, "could you spell your name for the Court Reporter" to "I have no further questions of this witness."  Only my step-son (now at Irell) and Eli ever did understand the complicated Rand statistical study that underlay the plaintiffs' conspiracy allegations.

The Court Reporter

As Kathy rightly notes - the Court Reporter is the Goddess of the Deposition and don't you go forgetting it.  The Court Reporter is your very own home court advantage or you greatest nemesis.   You think the Sphinx of the Conference Room doesn't talk to her friends, the Discovery Referee, or opposing counsel if you disrespect her?  You think she doesn't have the discretion to transcribe or not transcribe every "um," "uh," and "arrrrrrr, um, uhhhhhh" you mutter as you struggle with the guy who says "yes," "no," "I don't know," and, "I don't understand your question, could you please rephrase it" for hours, even days on end. You think she can't make marking your own documents as exhibits the hell that populated your young adult law school dreamscape?  You think the Court Reporter in incapable of taking revenge?  

Think again.

How Do I Get from My First Admonition to My Final Discovery Motion without Humiliation?

Until a couple of weeks ago, the answer to this question was - you don't.  The only way to learn how to mark an exhibit, how to speak to a court reporter, know whether she actually strikes anything from the record, respond to a foundational objection, how to mark an exhibit without shame, how to respond to the other side's instructions not to answer and how to lead your professional life without yourself becoming a screaming  A**hole, was to first make a complete and utter fool of yourself.  That's how we learn to become lawyers young men and women.

Now that the Goddess of Discovery has arrived on the shores of the blogosphere, however, you might, just might, avoid humiliation and become a lean, mean discovery machine by clicking on Kathy's RSS feeder and reading her posts every single day.

Got it?

Got it!

Now go get 'em champ!

But before the solution,

The Problem

If your physician suggested 17th century medical treatment today - the use of leeches or "bleeding" to relieve your suffering -  patient and physician would soon be packed off to a quiet mental hospital for treatment.   Yet we continue to use dispute resolution processes little changed since the British abolished the Star Chamber in 1641 and enshrined the jury trial as the preferred Anglo-American response to conflict.

It is not simply the age of our adversarial processes that make them inefficient and ineffective today.   The system is inefficient because it has become encrusted with thousands of layers of procedural "improvements" over the course of 400 years - improvements that burden the ship of justice in the way barnacles weigh down ancient square-rigged Brigantines.  And they are ineffective because they are consistently and demonstrably prone to error.

As  the research reported in Beyond Right and Wrong:  the Power of Effective Decision Making for Attorneys suggests, the only sensible way to evaluate how well litigation is presently serving its purpose is to test the accuracy of the settlement decisions that resolve ninety percent of all lawsuits filed.  When researchers investigate those decisions, the error rates fly right off the charts.

According to Beyond Right and Wrong, Plaintiffs make so many settlement "decisional errors" that their interests would be better served by flipping a coin.   And though defendants make fewer such errors - they're still wrong 25% of the time.  And when they're wrong, they're very very wrong - averaging an unnecessary expense of nearly $1.5 million one time out of four.

If your contractor erred twenty-five percent of the time and if his error cost you $1.5 million on each of those occasions, you simply wouldn't hire him again.  Problem solved.  But what if all contractors erred to your considerable economic disadvantage 25% of the time?  What would you do? You'd reject contracting as a profession and seek out a new system for building a skyscraper, that's what you'd do.

The Solution

If you're skeptical about the ability of checklists to revolutionize legal practice, take a look at what they have done for the gamblers in the most sophisticated casino in the world - Wall Street.  In writing The Checklist Manifesto, Gawande interviewed three high-flying financial investors, all of whom controlled funds in the tens to hundreds of millions of dollars.  All were checklist aficionados.

Monish Pabrai runs a $500 million portfolio.  He told Gawande that his friend Warren Buffet had a mental checklist.  But "I'm not Warren," he said.  "I don't have a 300 IQ."  So Pabrai devised a written checklist based upon his own investment failures as well as on those he observed in the market place.

It turned out that the 300 IQ didn't immunize Buffett from error as effecitvely as a checklist.  Pabrai observed that Buffet and his partner, Charlie Munger, took a beating when they invested in an office and furniture leasing company during the dot.com boom.  Munger and Buffett, Pabrai said "saw the dot-com bubble a mile away" but they failed to see how dependent the company was on the bubble.  Munger himself acknowledged that he'd made a "macroeconomic mistake," one that Pabrai subsequently included in his checklist - make sure you've asked whether a company's revenues are over- or understated due to boom or bust conditions.

Transforming an Open-Ended, Haphazard Process into a Streamlined and Disciplined Protocol

Gawande's financial wizards described their pre-checklist processes as  "open-ended and haphazard."  Using a disciplined and goal-oriented process guided by a checklist provided them with twice the number of investments that were twice as profitable.  That's worth investigating if  "open-ended and haphazard" also describes the way we litigate disputes.

Because there is so much at stake when the government sues Microsoft for antitrust violations or a petrochemical company seeks coverage for the cost of investigating and remediating hundreds to thousands of toxic waste sites,  litigation costs are the least of a corporate client's concerns.   And though lawyers and law firms handling such cases make some effort to apply systematic, disciplined processes to litigation, they rarely manage to do so.

The Dispute Resolution Checklist

The manner in which human beings tussle with one another over power, property and prestige is not much different in adulthood than it is in middle school.  To the extent it is, these simple checklists can be deepened by applying the insights of cutting-edge negotiators like David Lax and James Sebenius who wrote the brilliant 3-D Negotiation.

The Peer Mediation Protocol Scaled to Address Commercial Litigation According to 3-D Negotiation's Insights

• Step One:  introduce everyone; explain the process; establish an atmosphere of cooperation; respect; hope; and, safety.

Step One of the Middle School dispute resolution checklist is a "communication" protocol.  Skyscraper contractors, airline pilots and surgical teams incorporate similar communication checklists into their procedures.  Gawande tells us that when each team member introduces himself by name, group cohesion is increased.  More importantly, so is the likelihood that all team members will be emboldened to speak up when something goes awry during a passenger jet's polar crossing or an emergency appendectomy.

Because people in conflict are both angry and afraid, the Middle School checklist includes instructions meant to calm fears and avoid outbursts -  listen; cooperate; be respectful; focus on the goal of solving the problem; give assurances that the parties will be protected from  emotional bullying and physical harm; and, express hope that a solution will be found.

To deepen the process, we look to one of Lax and Sebenius' negotiation "dimensions"  -- "the setup."  Setting the table for the negotiated resolution of a dispute, they counsel,

means acting to ensure that the right parties have been involved, in the right sequences, to deal with the right issues that engage the right set of interests, at the right table, at the right time, under the right expectations, and facing the right consequences of walking away if there is no deal.

Any effective litigation prevention checklist would first require that all potential stakeholders be identified - not just those individuals involved in the dispute itself, but also everyone who might be affected by the lawsuit's fall-out and anyone in a position to leverage the litigation by transforming it into an opportunity to make a business deal.  And though a place at the table will eventually have to be set for the obstreperous attorney who wrote the hostile "demand" in the first instance, when his place at the table should be set is a matter of preparation, strategy and tactics.

• Step Two:  Define the problem by discussing what happened and why; summarizing everyone's narrative in an effort to harmonize the similarities and throw the differences into sharp relief for later brain-storming
  

Sure, it's easier (and seemingly safer) to write an equally threatening response to the threatening demand letter.  But let's face it.  Those dueling letters almost invariably escalate the conflict, thereby diminishing the chance that anyone will be inclined to sit down and brain storm potential solutions.  Even if the choice is litigation, counsel should consider de-escalating the conflict in certain circumstances and build a "sit down" into the litigation schedule to avoid the spiral of accusation and counter-attack that litigation too often becomes.

Why, you might ask, should in-house counsel waste the human resources necessary to draw up a detailed and disciplined negotiation plan if the plaintiff's lawyer does not follow through on his threats?  This is the same type of push-back airline pilots gave in response to the the procedural checklists required to be reviewed and followed before they could so much as back their plane out of the gate and onto the runway.  In the absence of such checklists, however, we never would have had the "Miracle on the Hudson."

As Gawande reminds us, Captain Chesley B. "Sully" Sullenberger, III -- the 57-year old pilot who landed his Airbus A320 on the surface of the Hudson River with the grace of a glider pilot -- repeatedly rejected journalists' attempts to elevate him to the pantheon of American heroes.  In response to praise for his bravery, his wisdom, and his savvy, Sully remained adamant.  The "miracle" wasn't his.  It belonged to his team and to their "adherence to procedure."

It would have been easy, Gawande observes, for Sullenberger and his team to have skipped the checklist that day.  They collectively had more than 150 years of airline experience among them; they'd  run through the same checklists on thousands of occasions and had never been challenged to test their efficacy against failure.  Not one of them had ever before been involved in an airline accident.  What were the chances?  On that day, the chances of disaster were 100%, as was the crew's "adherence to procedure."

Dispute resolution protocols require that each stakeholder is permitted to tell his story and to have his story acknowledged, summarized, affirmed or rebutted.  We fail to include an interested party or cut off the "irrelevant" narrative of events at our peril.  Every communication is not critical, important or "relevant."  But some communications are.  If we drop the stitch of the one containing the solution to the dispute, the entire effort fails.

• Step 3  Identify the Issues at the table by creating an agenda, using active listening skills, retaining an open-mind, asking all present whether anything has been missed and identifying areas of miscommunication or incorrect assumptions.
  

As a prelude to exploring the negotiated resolution of a threatened lawsuit, both pre-negotiation and "at the table" investigative work must take place.  There is, after all, only so much we can learn without talking to our opposition.  As Lax and Sebenius caution, this step is the one where value is created.

As long as one or more parties care strongly about some aspect of the process or outcome, that aspect is a potential source of value in the negotiation.  So . . . "value" can mean a discounted cash flow.  But it can also mean precedent, relationships, reputation, political appearance, fairness, or even how the other side's self-image fares in the process . . . Value-creation falls into the "win-win" or "non-zero sum" aspect of the process because value creation benefits all parties."

Unlike middle school mediators, corporate negotiators have the ability and expertise to search for and locate opportunities to trade items of unequal value among the parties;  to parlay differences between the parties' appetites for risk and assumptions about the future into a deal more satisfactory than any compromise could be; and, to brain storm contingencies that must be met if the deal is to deliver the value implicit in its design.

• Step 4:  Finding solutions, in which the issues are addressed one at a time; the parties communicate their unique interests, and, how each proposal might satisfy one or more of them.

No matter how much "win-win" value the parties create, someone must still lay claim to that portion of the "pie" to which they believe themselves entitled. "At the table" tactics such as framing and anchoring; making concessions and demanding reciprocity; and, persuasively forwarding one's "case" for their fair share should be discussed by the settlement team in advance and checked off the list as the negotiation proceeds.  Though each step will not necessarily deliver value to the "right" party, the failure to take any one step contains within it the potential failure of the entire operation.

• Step 5 - Agreement and Closing - make certain you and your bargaining partners have the same understanding of the deal you've created and get that deal down into writing.
  

This step is another that both in-house lawyers and outside counsel consider  so basic that it shouldn't require listing.  The lawyers charged with drafting deals, however, create enough errors to support tens of thousands of contract litigators spending tens of thousands of hours fighting over the meaning and application of poorly drafted, ambiguous and sometimes incomprehensible contract terms.  Contract drafting specialists like attorney, speaker and author Ken Adams, should always be consulted when the stakes are high.  And when they're not high enough to justify retaining someone like Adams, they will always justify the inclusion of a drafting checklist drawn from the best manuals available, one like Adams'  Manual of Style for Contract Drafting.

I leave you with these nascent and incomplete checklists in the hope that their very existence might launch an industry-wide conversation in which we question the application of ancient forms of action and reflexive responses to claims that are more suited to a pre-industrial society than to our super-charged age of information.

It is not my intention here to describe the Jewish laws requiring (or suggesting) resolution before a Bet Din, only to attach some resources here and link to others.

A "layman's guide" to Jewish Law (.pdf) (recommends mediation as one way of resolving a disputes)

The story of the stolen Torahs and the Bet Din's purported practice of "splitting the baby" below, including a blog post indicating that a Los Angeles Superior Court had been asked to confirm a Bet Din decision as an enforceable judgment.

California Civil Court Asked to Confirm Bet Din's Ruling on Torah Scrolls

Judge Rules against Rabbi's Widow in Torah Case reporting that the Los Angeles Superior Court has thrown out a religious court's decision to award four disputed Torahs to an Orthodox rabbi's widow who claimed that the scrolls had been stolen by her late husband's assistant.

Rabbi's Widow, LA Shul Fight Over Torah Scrolls (containing the reference to "splitting the baby")

Additional Resources

Website for a Los Angeles Din Torah Counselor.

Traditional Jewish Arbitration Panels Find New Converts

For all those past and present Honors Moot Court Board Members out there, an article on the North American High School Moot Beit Din

The London Beth Din for my British readers.

Please feel free to add to these resources.

I know, opposing a law that seeks to prevent workplace bullying is like criticizing mom and apple pie.  Still.  More workplace litigation???  And why isn't the existing cause of action for the intentional infliction of emotional distress a perfectly good alternative for anyone who's truly "severely" damaged by "outrageous" conduct that goes beyond the bounds of human civility?

One of the great benefits of posting on this topic over at Forbes.com is the number of comments it generates.  Not because it insures "hits" but because it engages a far larger community in a constructive multilogue on an issue of genuine and important public interest.  Here's an excerpt:

According to a post in the Wall Street Journal Law Blog yesterday --  For Businesses, Bully Lawsuits May Pose New Threat -- New York's state Senate has passed a surprisingly bipartisan workplace anti-bullying law.

According to the Journal, the law would "allow workers who've been physically, psychologically or economically abused while on the job to file charges against their employers in civil court."

Economically abused????? The mind boggles.

The bill defines "bullying" broadly as  the "repeated use of derogatory remarks, insults and epithets" that the (mythical and chronically overly sensitive) "reasonable person" would "find threatening, intimidating or humiliating."

Let's give this proposal a second thought, particularly in the context of legal practice.  We lawyers do endeavor to "keep calm and carry on."  We have been known, however, to push ourselves and to be pushed past our tempers' limits.  We're human.  We're under a lot of pressure.  And we're fallible.

Read more here.

Why is three the magic number?

Recent studies have shown that it takes three women corporate board members to avoid the deliterious effects of group think on corporate decision making - my own supposition on the question "why three" being that one or two women easily risk falling into male group-think.  This isn't male bashing, by the way. I assume three men on an otherwise all woman's board would have a similar performance enhancing effect.  

1. Illusion of invulnerability –Creates excessive optimism that encourages taking extreme risks.
2. Collective rationalization – Members discount warnings and do not reconsider their assumptions.
3. Belief in inherent morality – Members believe in the rightness of their cause and therefore ignore the ethical or moral consequences of their decisions.
4. Stereotyped views of out-groups – Negative views of “enemy” make effective responses to conflict seem unnecessary.
5. Direct pressure on dissenters – Members are under pressure not to express arguments against any of the group’s views.
6. Self-censorship – Doubts and deviations from the perceived group consensus are not expressed.
7. Illusion of unanimity – The majority view and judgments are assumed to be unanimous.
8. Self-appointed ‘mindguards’ – Members protect the group and the leader from information that is problematic or contradictory to the group’s cohesiveness, view, and/or decisions.
   

When the above symptoms exist in a group that is trying to make a decision, there is a reasonable chance that groupthink will happen, although it is not necessarily so.  Groupthink occurs when groups are highly cohesive and when they are under considerable pressure to make a quality decision.  When pressures for unanimity seem overwhelming, members are less motivated to realistically appraise the alternative courses of action available to them.  These group pressures lead to carelessness and irrational thinking since groups experiencing groupthink fail to consider all alternatives and seek to maintain unanimity.  Decisions shaped by groupthink have low probability of achieving successful outcomes.

From What is Groupthink  at the Psychologists for Social Responsibility site.

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).

My article on this subject from which these slides were drawn, appears in the ABA's Law Practice Management Magazine for April, 2010, online here.

Today I stumbled over the post Women Deal with Conflict Differently than Men, reporting on a study done by the Program on Negotiation at Harvard in 2008.  Results of the study showed the following similarities between men and women including:

• Integrating, the ability to meet the needs of both parties; and,
• Compromising as a strategy, except women showed a "high level of agreement that every issue has room for negotiation"

The differences included:

• women's tendency to choose equal distributions when compromising which the researchers apparently ascribed to women's greater concern with fairness;
• competitiveness - with men scoring 25% more competitive than their female counterparts
• "smoothing," with women engaging in that behavior 20% more of the time than men - smoothing being defined as "giving in to the other party while ignoring one's own needs"
• avoiding or withdrawing with women doing so 30% more than men
• expressing feeling, with women apparently doing so "more" than men but no percentages are provided

We'll be working with gender differences through the end of the month of March and will likely discuss this data in more detail later.

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.

(make of it what you will, but I was definitely a boy-toy girl, i.e., trucks, cap guns, baseball gear and the like; no dolls - yeeccchhhhhh)

Here's the inside scoop - all of it anonymous - and gathered from people in a position to know, i.e., people who manage ADR panels, both in court-annexed programs and in the private sector.  These are observations from the national scene and no one should conclude that they refer to practice in Southern California or to panels with which I'm affiliated - I know a lot of people around the country because I blog and am pretty deeply wired into ADR practices and procedures both nationally and internationally.

1. even on pro bono panels, particularly in the more commercially oriented federal courts, panel users rarely choose women;
2. women are so seldom chosen as arbitrators that at least one urban arbitration panel stopped putting women on a local roster until the decision to "let the market choose" came to the attention of the organization's higher powers who likely saw this for what it was - intentional gender discrimination;
3. because "women don't refer" cases to private ADR panels, women's legal organizations are often excluded from those panels' marketing efforts; and,
4. women are leaving prestigious ADR panels to commence judicial careers or return to the bench because they cannot make a decent living in the commercial ADR sector.

I'm a Lawyer Who Happens to Also Be a Woman; Not a "Woman Lawyer"

I've avoided this topic because I don't like whining about circumstances that could possibly hinder my own career.  I'm not used to whining.  I'm used to working.  And as I've said many many times before, I did not experience gender discrimination as an inhibition to career advancement in commercial litigation.  During the early years of my practice (say, 1980 to 1985) the response to the flood of women entering the legal market was:  (1) we were explicitly told that we had to prove our mettle by taking the "heat" in litigation's "kitchen" - we accepted this challenge and met it; and, (2) we were supported by our law firms in response to biases in the market. 

(image right:  we were trying to figure out who to be)

How supported? 

Like this.

Client:  I don't want Vickie Pynchon assigned to this case (1983)

Senior Partner:  Why?

Client:  Frankly, I don't want a woman representing my interests in Court or any other venue.  I don't think they're tough enough and I don't think it will give my opponent the right impression of the power I want to project.

Senior Partner:  If you don't want Vickie on the case, you'll have to find another law firm because she's the best associate I've got.

As late as 1987, clients in an antitrust action told the senior partner on a case on which I was the senior associate that they didn't want me to take any of the significant depositions.  At first, the senior partner agreed.  Time passed.  He was a rain maker.  I was a worker.  I knew the facts far, far better than he did.  Critical depositions were scheduled.  The partner continued to assure the clients that he would take those depositions.  Then he "fell ill."  I was pinch hitter

The clients came, suspicious and angry.  They passed notes among themselves and some to me with suggested lines of questioning.  Eventually, the notes got crossed and I received one of the client-only communications. 

It said, "oh my god!! she's great!!"

I'm not blowing my own horn here.  Here's my experience with those few clients (half a dozen in a twenty-five year practice) who affirmatively stated a gender-bias to the "senior" male members of my law firm/s -  they judged my performance as simply brilliant because they had such low expectations.  Most women use this to their advantage, as do most litigators.  There's no better advantage to have in litigation than the low expectations of opposing counsel and there's no better way to impress prejudiced clients than to perform competently in their presence.

So what to do about gender bias in ADR?  Should we "listen to the market" and provide them with what "we" (think) they want?  Or should we respond to implicit bias in the profession by flooding arbitration and mediation panels with competent women (we do exist in sufficient numbers to easily accomplish this goal)?  As I've said to more than one arbitration panel executive "implicit bias will evaporate when the lists of arbitrators sent to the parties by the organization include five women and one man instead of six men or five men and one woman."

Finished?

We all have implicit biases, even women against women and Blacks against Blacks.

But, it's now well established that we want to be unbiased and that egalitarianism will trump implicit (unconscious) bias if we are reminded that we need to pay attention to those knee-jerk biases.  All we need to do is stop denying that we have prejudices. 

Here's some supporting research.  Two trials were conducted with mock jurors - in the first trial, race was overtly mentioned - a black man referenced race while robbing a white man.  In the second trial, the race of the accused (black) and his victim (white) was not an issue. 

So here’s the question: In which case do you expect White jurors to show more racial discrimination against the Black defendant?

If, like me, you said Trial A (the crime with overtly racial connotations) you would be wrong.  It may be counterintuitive, but there’s an increasing body of work suggesting that when race is overtly discussed as a factor in decision-making, prejudicial decision-making by whites decreases.

Samuel R. Sommers and Phoebe C. Ellsworth discuss this phenomenon in their paper White Juror Bias: An Investigation of Prejudice Against Black Defendants in the American Courtroom.  They believe that because “many whites embrace an egalitarian value system and a desire to appear nonprejudiced,” overt racial issues serve as a reminder to whites to avoid discrimination.  Conscious egalitarianism trumps subconscious bias. If race isn’t made an overt issue at trial, however, “contemporary norms of egalitarianism are not necessarily triggered” and thus,  unconscious bias may rule the day.

From Americans for American Values

• high profile campaigns marketing panel women on every arbitration and mediation panel in the country;
• the placement of far more women on private ADR panels (we who do it backwards and in heels, i.e., those of us who made it through the "gauntlet" of private legal practice, particularly those now of ADR-"age," who are among the most ambitious, dynamic survivors of an age when positive,  intentional discrimination might have stopped us; we've self-selected for across-the-board consistent excellence and really really hard work);
• arbitration panels should stop making it easy for panel patrons to unconsciously exclude women based upon implicit bias - it's easy to do so when there is only one woman on the list of potential arbitrators - once panels are fairly representative of the qualified women ready, eager and trained to serve, every list of proposed neutrals should reflect their percentage of the panel population, which should, at a minimum, be at least a third of all panel arbitrators;
• promote your women whenever you market;
• let your customers know you're promoting women because the Fortune 1000 has diversity and inclusivity goals they must meet; I've been told it's easier for them to meet those goals by hiring diverse arbitrators and mediators than to satisfy their goals by hiring diverse and inclusive law firms - this is a client interest that hasn't begun to be tapped and the client perspective (based on high-level conversations with executives who wish to remain anonymous) will be the subject of my next post.

The research supporting these suggestions for overcoming implicit gender bias in ADR?  I turn again to Americans for American Values.

In Color Lines in the Mind, a chapter in the book, Twenty-first Century Color Lines, Nilanjana Dasgupta, a Research Advisor to AAV, authored a summary of the research on combating implicit bias.  Dasgupta recommends three courses of action:  (1) increasing diversity in local environments; (2) enhancing motivations to be egalitarian; and (3) providing opportunities for people to practice being non-biased. We discuss these three tactics below before moving on to a discussion of specific studies.

Increasing the Diversity of Local Environments. Dasgupta’s research shows that increasing diversity and contacts between various kinds of people helps lower implicit bias.   This method has been shown to be successful both through increasing actual inter-personal contacts among whites and people of color in socially valued roles, and altering the media’s depiction of people of color.   Dasgupta states that:  “Explicit decisions on the part of media executives to give more air time to racial and ethnic minorities in news media, advertisements, TV shows and films is likely to go a long way toward increasing the visibility of these groups and creating unconscious associations linking such groups with positive images.”

Increasing Conscious Motivation and Control over Prejudiced Responses. While she acknowledges that implicit prejudice is “not easily derailed” by conscious thoughts, research shows that people have the capacity to “make themselves mindful about their thoughts and actions” and to monitor and correct their behavior to reduce prejudiced behavior.  For example, according to one study, “people who are vigilant and who train themselves to suppress negative stereotypes when they pop into mind can, over time, erase implicit bias from their thoughts”.

This series of posts is not without risks.  I've been told that the topic of implicit gender bias is "toxic," as if I didn't already know that.  No one wishes to go on record about it.  But silence is not the way we early pioneers of the Second Wave Women's Movement accomplished the following:

• elimination of "women wanted" and "men wanted" employment ads;
• Title IX, giving women the same rights as men to participate in collegiate sports
• granting married women the right to have credit in their own names
• equal pay for equal work
• opening the First Feminist Credit Union (we did that in San Diego when I worked for a Women's Center as a Vista volunteer in the early '70s)
• opening up the skilled trades to women, which included training women in "stuff guys know" like "what's a socket wrench" (also in the course of my work as a Vista volunteer)
• creating career opportunities for women outside those I grew up believing would limit my potential - wife and mother (not a bad occupation, but men got to be husbands and fathers without having to give up meaningful and remunerative work outside the home); teacher (K-12); nurse; clerical; social worker and all other "pink ghetto" jobs - not, again, to "dis" the jobs, but to say they are a very narrow box into which women of vastly different talents were expected to stuff themselves

And these are just representative; there are dozens more.

So here's the question I finally asked myself and one I'd like my ADR sisters to, at a minimum, pose to themselves.  Am I more afraid now of limiting my own opportunities by raising "toxic" subjects and potentially offending my market, then I was in my twenties?  "Yes."  The next set of questions - whether I was proud of myself; and, whether I was being a good role model to my niece, my step-children and my eventual step-grandchildren, as well as to the women lawyers who followed me in the profession - I had to answer those questions in the negative.  And I didn't like that.  If I don't have the courage to risk depressing my relatively good standard of living, what would I do when acts of true courage might be required of me?  I didn't like the answers.

This isn't really even courage.  It's simply the right thing to do.

Tomorrow - what's the client got to do with it?

As I noted in that post, diversity among private neutrals is extremely important as more and more litigation is being diverted to arbitration, particularly employment litigation in which allegations of gender discrimination are not (I believe) uncommon (I have no statistics on this either and ask that anyone who does to please send them along). 

Neither the public nor the private justice systems can deliver procedural justice in the absence of hearing officers that fairly represent the people and business entities being judged. As of May 2009, 212 full-time federal judges were women, more than a quarter of the federal judiciary.

The state judiciary is more representative of the population on which it sits in judgment.  Nearly a third of all state supreme court justices are women and in 22 out of 53 supreme courts, women make up at least 40% of the bench.   

The state and federal court figures above are all from a 2009 article, Diversity on the Bench (here).Gender diversity in the state trial courts also appears to hover around 20-30% female as revealed by a recent study on Racial and Gender Diversity in State Courts with outliers in the States you'd expect. A list of all 50 states after the jump.

Prescriptions for change in my next post.

(my online female ADR posse Stephanie West Allen, Gini Nelson - now practicing and blogging about Bankruptcy Law - and Diane Levin)

Recently, however, my all time favorite "old white man" (my husband) reported back from a training session on an arbitration panel whose name cannot be spoken that of 29 trainees, only two were women - and women of the type who give the old Astaire-Rogers joke "legs" - those who have done   everything Astaire did, but backwards and in heels.

This made me finally take a look at the composition of ADR panels.  What I found, at least in my own back yard, is that women, while under-represented, are likely fairly proportionally representative of the law school class years from which most neutrals are drawn, i.e., 1970 to 1990 with a tilt toward the earlier decades of the 70s and 80s.

Looking at the "Talk" Before We Examine the "Walk"

The American Arbitration Association (whose diversity we can neither assume nor refute given the absence of statistics on their panel membership) has the following to say about its commitment to diversity:

Our Shared Commitment to Diversity

Our integrity demands impartial and fair treatment of all people with whom we come in contact, regardless of gender, race, ethnicity, age, religion, sexual orientation, or other characterization. Our conflict management services put into practice our goal for the resolution of disputes between parties with different perspectives, experiences and backgrounds.

Because of the breadth of the AAA's work and the global reach of its services, we recognize the importance and contribution of a diverse work force, a diverse Roster of Neutrals, a diverse Board, and commit to respect and increase diversity in all our endeavors.

I recall that JAMS once had a diversity initiative, but I now find no mention of diversity in its Mission, Vision and Values Statement.  The JAMS Foundation appears to have funded one project that has diversity as its goal: it awarded $10,000 to Community Mediation Services in Jamaica, New York for its Intercultural Peacemaking Project for Youth "to help fund a program providing communication and conflict resolution training to youth from diverse cultural backgrounds and assisting them in becoming trainers of diversity and conflict resolution education for others."  It does not appear that JAMS has a diversity initiative for placing women, African-American or other under-represented "minorities" on its panel, nor even a statement of non-discrimination on its website.  If I'm wrong about this, I'd love to hear about it from a JAMS representative.

The International Institute for Conflict Prevention and Resolution, of which I am a member, has an active diversity committee, of which I am also a member, and is grappling with ways in which to increase the representation of under-represented "minorities."  We're making a concerted effort to address the problem and I send bouquets of early blooming parentheses )))((( to CPR in recognition of their commitment.

The Statistics Reveal the Problem

Despite the fact that my own law school class of 1980 was 50% women, the general national statistics at the time were that women comprised 33% of all law students graduating that year.  In the  thirty years that have passed since my own law school graduation, the percentage of U.S. women attorneys working remains less than their law school numbers in 1980, i.e., only 30% of the 1,104,766 practicing lawyers in the United States,  Even those numbers are misleading, however, for women neutrals, like me, who work in the commercial field (a field in which I labored as an attorney with hardly a hint of gender-discrimination for nearly a quarter of a century). 

Here's what the National Association of Women Lawyer's Annual 2009 Report on the status of women in the law has to say about women in positions of power at the type of firms that hire commercial mediators and arbitrators.

In 1980, 67% of law school graduates were men and 33% women. A decade later, by 1990, women had progressed to 43% of graduates. And by 2000, that number had increased to 48%.    For nearly two decades, women have started out in about equal numbers to men when they enter law firms as first year associates.

As steady as the increase has been for women entering the profession, that increase has not translated into staying power and advancement – rather there is a steady decrease of women at each higher position in firms. The impact? An ever decreasing source of women for partnership and leadership roles.

In the typical firm, women constitute 48% of first- and second-year associates, a percentage that approximates the law school population. By the seventh year, the ranks of women have dropped slightly to 45%.14  The gradual erosion of women heightens with seniority. On average, women constitute 34% of of-counsels, 27% of non-equity partners, and 16% of equity partners. This trend has not changed dramatically in a number of years despite the very substantial number of women law graduates who entered firms in the last 20 years.

In the typical one tier firm, where equity is the only form of partnership, 18% of equity partners are women. In two tier and mixed tier firms, by year ten, women comprise only 10% of equity partners. By year 15, women make up 17% of the equity partners and by year 25 it is 18%. The data suggest that not only are far fewer women than men achieving equity status, it takes women substantially longer to reach that goal.

Let's Take a Look at the Composition of the Most Successful ADR Panels

My panel, ADR Services, Inc. is owned not only by a woman, but by the hardest working women in ADR rock 'n roll, the indefatigable Lucie Barron.  Lucie does it backwards, in heels, while spinning 20 plates in the air.  It's exhausting just to watch her walk down the corridor!

ADR Services, Inc. has thirteen (rockin') women on its Southern California panel and 62 men -- 20% women.  JAMS has fourteen women to 61 male neutrals on its Los Angeles panel, close to 23% women.  Although both fall far short of the 33% women who occupied law school classes in 1980 when I graduated, no one should be surprised by these percentages given the fact that ADR neutrals are mostly drawn from law school classes between 1970 (when the percentage of women was ten percent and 1990 when the percentage of women was 43%, with most neutrals congregating at the older end of the spectrum).

How Consistently are Women Being Hired as Neutrals outside the "Pink Ghettos" of Family Law, Estates and Employment?

With no disrespect to my sisters laboring in the fields of family law, employment and trusts and estates, these fields have traditionally been associated with women because they are said to involve "a lot of emotion" whereas my field of practice - commercial litigation - has long functioned under the illusion that "reason" prevails over "emotion" (an illusion I've long said arises from the apparent belief that controlled rage is not an emotion).

Everyone who serves on an ADR panel knows that, while valuable, membership does not assure a steady stream of work.  If I had to make an educated guess (based on conversations with neutrals and discounting everyone's inflation of their own success) I'd say that far less than twenty percent of all ADR work was being done by the 20 percent of women on local ADR panels.  I'm not going to suggest that implicit bias or the paucity of women attorneys with power to make ADR decisions in the AmLaw 200 is solely to blame for this state of affairs.  I am, however, going to suggest that it plays a significant role in the choice of neutrals, a role which every male neutral I've spoken with denies and every female neutral I've spoken with confirms.

So Let's Look at Implicit Bias to Negative the Effect it May Be Having.

I'd be more than happy to learn that I'm wrong in this assumption -- lawyers - both men and women - tend to choose male neutrals over women neutrals based upon an implicit bias toward men and a misunderstanding about the power of mediation, i.e., that it's more about power than it is about influence.   I wish I had statistics to provide on this question and I urge any academic looking at ADR to make further study of diversity among the ranks of ADR practitioners -- an issue that should be a priority in the legal academic community as the U.S. justice system becomes more and more privatized.  In the meantime, take a look at mediator and negotiation trainer Diane Levin's posts on gender in ADR, including Disputant Perceptions of Gender: a Challenge for Women Who Mediate; Boys will be boys:  gender still an issue; Eliminating Gender Bias in Mediator Performance Evaluations; and Bias Hard to Detect in Ourselves.

Anecdotally I can tell you that 80 to 90% of the attorneys who hire me to mediate their litigated disputes are male.  I believe this has something to do with the fact that so few women survive the AmLaw200 race to partnership as explored in depth by Lauren Stiller Rikleen in her brilliant and comprehensive Ending the Gauntlet:  Removing Barriers to Women's Success in the Law. (my review of that book here).

Neutralizing My Own Implicit Bias

I've been engaged in a conscious effort to neutralize my own implicit gender bias since I began reading Ms. Magazine in 1972.  Yesterday, while writing the post on racism at my alma mater U.C. San Diego, I linked to the Harvard Implicit Bias Project and suggested that my readers take one or more of the Implicit Association Tests.  I took the Gender - Career Implicit Association Test.  According to Project Implicit, my data "suggest[ed] a moderate association of Male with Career and Female with Family compared to Female with Career and Male with Family."  Here's the chart of all responses to date:

I'm right there in the majority of all association test takers - moderately associating women with family and men with career.  This is my result despite the fact that I never had children; consciously associate myself far more strongly with career than I do with family; and, was actively engaged in the "second wave" women's movement beginning in my early twenties ('73) and ending when I started law school ('77). 

Neutralizing Your Own Implicit Bias to Avoid Conflict and Increase Flexibility

This is the article all test takers are directed to after getting their results (link immediately above) and here's the bottom line from that article:

All of us want to act in an unbiased, inclusive manner. All of us want to do the right thing ethically. All of us want to come to the right position after studying a legal point. None of us wants to be accused of bias, of unethical behavior or of being wrong on a legal point. Once we see that implicit bias and the feeling of certainty we're right are hardwired into our brains, we can laugh at ourselves and not be so defensive anymore. The urge to laugh at a racist or ethnic joke doesn't make us bad people. It is a manifestation of implicit bias we can inhibit. The tightening of our jaw, fists and gut, when another lawyer objects to our position is a manifestation of our mental sensation of certainty.

Maybe we're right and maybe not. Maybe there are a dozen different ways to look at the same problem that could lead to a more peaceful, expeditious and fruitful resolution. We cannot get there unless we recognize that no matter how smart we think we are, we are susceptible at all times of being wrong and of being tricked by our own mental sensation of certainty.

In Twenty-Five Years of Commercial Legal Practice, I Never Hired a Woman Neutral

As Project Implicit points out in referring test takers to Cutting Edge Law:

implicit bias based on racial and other stereotypes is universal. Implicit bias is unconscious. It dwells within the minds of even the most liberal and progressive lawyers. It operates in a subtle and insidious fashion.

I know I'm biased and I work against it all I can.  I was raised in the 1950's and 1960's, before and during the great civil rights movements of the latter half of the twentieth century.  Women were wives and mothers.  Few of them worked.  Dads were fathers, if at all, on special week-end days only.  Dads worked.  Mothers baked.  Blacks (we called them Negroes) lived in another part of town.  I never had a Black classmate until 1966 when I started high school.  Mark, whose last name I forget, became captain of the football team.  His father was a physician.  Mine sold life insurance door to door until he went to night law school after leaving my mom and marrying someone with a University degree.  No one in my family had attended, let alone graduated from, University.

I think of doctors and lawyers as male.  Still.  How frustrating is that?  And yet, I am finally improving.  Among the handful of neutrals I recommend there are now as many women as there are men.  And I have high hopes for the generations that follow mine - generations in which women were in the work force; where dads parented as much as moms; and, where professional accomplishment for women was as expected as it is for men.

The only way in which implicit bias will prevail is if we deny its existence.  By way of this lengthy post, I am suggesting that the paucity of women (to my own surprise) in ADR ranks is more historic artifact than it is the result of implicit bias.  I do, however, believe more women in ADR's ranks would be working more often in the absence of implicit bias.  I urge my readers to go to Project Implicit, take a few of their association tests and judge for yourselves whether unconscious biases are playing a part in driving your decisions.

Helping law students master the skills necessary to mediate civil harassment cases last week put me in mind of two recent items -- the e-Discovery Dystopia video posted over at Commercial ADR ( The Horror, The Horror); and, Jared Lanier's new book, You Are Not a Gadget:  a Manifesto excerpted this month in Harper's.

The Dystopia of e-Discovery lies at the bottom of the slippery slope created by the internet information avalanche as it intersects with loose rules for discovery ("reasonably calculated to lead to the discovery of admissible evidence") crafted when a few Bekins boxes of documents might relate to the subject matter of the action - a time before I personally became engaged in litigation involving millions of documents that were reviewed by associates and paralegals for at least a year before being shipped to the Philipines for coding by date, subject matter, author and recipient and then uploaded to a data base (the mid-90s).

You Are Not a Gadget (as you'll see below) refers to the international "project" of reducing qualities (primarily personality and desire) to quantities for the ultimate purpose of selling one another goods and services.  The reductive dimensions of this on-going process struck me as the way in which we are now training law students to "handle" the "facts" to which they'll "apply the law" as if they were going to spend their professional lives taking and re-taking the Bar Exam rather than helping their clients secure a relatively predictable future (the transactional lawyers) or resolve conflict without the bitter aftertaste of injustice in their mouths (litigators).

Those are the thoughts that were occupying me when I visited a local law school mediation clinic to guide a hypothetical mediation of a civil harassment action in which one or both of the parties were seeking restraining orders. I found the exercise slightly distressing.  After a year and a half of law school, the student mediator was already busily suppressing and avoiding conflict, pushing back against the parties’ attempts to tell their  conflict story -- one sufficiently emotional that they were willing to ask a Judge to enter an Order that would make either or both of them subject to arrest by the Los Angeles Police if violated.

Pause for a moment here to imagine the force of the anger and fear that would bring people to such a pass.

What distressed me was the degree of subtle coercion exercised by the student mediator to “move past” the past and “focus” on the future.  Because the students’ “purpose” in the Los Angeles Superior Court is to help the Judge avoid making a decision (charitably called "clearing the calendar") their efforts were focused on achieving an a restraining agreement rather than a restraining order or, alternatively, negotiating an agreement that included a stipulated restraining order.

The students did attempt to negotiate a “deal” that would resolve disputes outside the Court’s jurisdiction (loans of money; theft; a dispute over the terms of one party’s sub-tenancy; and, recompense for the physical violence at the heart of the request for the restraining order).  Their efforts to do so were, however, repeatedly derailed by the parties’ attempt to justify their own behavior; and, blame the other for causing the losses sustained.

Unable to obtain compliance with the admonitions to bury the past and focus on the future within the first few minutes of the hypothetical mediation, the student mediator suggested that the remainder of the mediation proceed in separate caucus.  I bit my tongue until the first separate caucus ended with one party making a “demand” that was better than he actually desired so that he would have “bargaining room.” At that point, I interrupted the session; brought the other party in from out of the cold and asked the student mediator what she is trying to achieve.

(continue reading after the jump)

Mediator “I’m trying to help them negotiate an agreement.”

Me: “Did you think it was necessary to separate the parties to help them reach an agreement?”

Mediator: “Yes.”

Me: “Why?”

Mediator: Because they’re too emotional to think clearly. We’ve been told to get the parties to put the past behind them and instead focus on the future.”

Me (to Respondent): “Are you able to discuss the resolution of this dispute unaffected by the past?”

Respondent: “No.”

Me: “Why?”

Respondent: “Because I’m right and he’s lying.”

Me (to Mediator): “Do you think you can help Respondent resolve this issue in separate caucus?”

Mediator: “I don’t know.”

Me (to Petitioner): “Do you think you can resolve the dispute you have with Respondent without referring to the past?”

Petitioner: “No way. You’ve seen just now what a liar he is; and I had to pay doctors for injuries he caused when he attacked me. I’m thinking of hiring a lawyer to sue him . . . .”

Me (to parties): “Is the past interfering with your ability to resolve these issues here and now in the present?

The Parties: “Yes.

I tell the students that the word “counselor” is not simply an honorific; that it is descriptive of their job as lawyers – to counsel their clients on the many ways in which they might resolve their disputes with others – including litigation, arbitration, and mediation. Though they won’t be mediating legal disputes in the near future (other than as volunteers) they will be representing their clients in mediations and instructing them how to best utilize the skills of the mediator to resolve the dispute without litigation (or without more litigation).

“But we’re not trained to be counselors,” the students protest.

And they are, unfortunately, absolutely right. A little more than a year ago, before they first stepped foot in law school, they would have intuitively known how to handle this entirely human and extremely familiar situation. Third graders in peer mediation tournaments display more facility at helping the parties take responsibility for the part they played in the dispute that brought them to mediation; open up rational lines of communication; encourage joint problem solving; and, reach agreement. They do not, however, do so by urging their school mates to “put the past behind them” and “negotiate” a “deal” to resolve their dispute.

(I do not mean to disrespect law students here.  They are being compliant with what they are being taught to do, as I'll expand on toward the end of this post)

I take a few minutes to model effective joint session mediation (as we do when we teach for NITA) by:

1. reminding the parties they were once friends;
2. asking them to talk to one another about how they first became friends;
3. asking them to describe to one another the first time they each began to feel that the friendship was slipping away;
4. asking them to take a sober look back at the physical altercation at issue in the civil harassment proceeding and tell one another what they believe they might have been able to do to resolve the problem at that time in discussion rather than in a physical fight; and,
5. after congratulating them for having the courage and honesty to "take their own part" in the dispute, asking whether they could muster up both the courage and the honesty necessary to brainstorm potential solutions to their mutual problem in a joint session with the assistance of the mediator.

They (still somewhat reluctantly but also a bit sheepishly) said that they would make the effort even though they were  not optimistic about their ability to achieve resolution. Then I turned the mediation back to the student mediator, who quickly obtained an admission from the Petitioner that, despite his earlier denials, he had borrowed $5,000 from the Respondent, only part of which he had paid back, which reflexively led to the Respondent acknowledging something he had done that he had earlier denied.

The parties were not nearing agreement, but were on the right track when time was called.

Afterwards, one of the student participants said to me, in genuinely shocked tones, that he had felt remorse even though it was only a hypothetical. “How could that happen?” he asked. “You lied about the money,” I responded,

and you will have a human response in a human communication even if you’re only role playing. We can’t help it. Humans are incapable of being unemotional. The key to resolving emotional disagreements in mediation is for the mediator to help the parties lower the level of emotion to the point where the parties can discuss their differences rationally. Anger, anxiety, fear and the like interfere with our ability to think clearly. We can’t pretend not to feel an emotion in response to someone who has hurt, injured, or even simply disrespected us. Nor can we “get past it” by suppressing or avoiding it. We can only “get past it” by communicating with the person who caused us the harm, while at the same time taking responsibility for our part in how the dispute went down in the first place.

What does this experience have to do with the future e-Discovery Dystopia in which artificial intelligence “handles” the “facts,” to which lawyers "apply" the law? 

First, there are no “facts” – only differing subjective experiences of the same event or series of events which the parties may or may not be able to reconcile or harmonize. If the parties continue to disagree about “what happened” they are usually able to accept the possibility that the basis of their disagreement is miscommunication rather than the other’s wrongful (even evil) intent. All of which takes us back to the flawed notion that disputes involve “facts” unmoored from “feelings” that could be unearthed and organized by an algorithm to which lawyers would apply “the law” which is divorced from the parties’ desire for “justice” – a fair result based upon a fair procedure.

But we do not have to imagine a sci-fi future to test the ability of present-day artificial intelligence (the Holy Algorithm) to “get the facts right.” All we need do is take a look at how the Holy Algorithm has done in achieving economic stability over the past few years.

As author Jaron Lanier wrote in You Are Not a Gadget,

In finance, the rise of computer-assisted hedge funds and similar operations has turned capitalism into a search engine. You tend the engine in the computing cloud and it searches for money. In the past, an investor had to be able to understand at least something about what an investment would actually accomplish. No longer. There are now so many layers of abstraction between the elite investor and actual events that he no longer has any concept of what is actually being done as a result of his investments. * * * The Facebook Kid and the Cloud Lord are serf and king of the new order. In each case, human creativity and understanding are treated as worthless. Instead, one trusts in the crowd, in the algorithms that remove the risks of creativity in ways too sophisticated for any mere person to understand. * * * Personal reductionism has always been present in information systems. You have to declare your status in reductive ways when you file a tax return. Most people are aware of the difference between reality and database entries when they file taxes, yet you perform the same kind of self-reduction in order to create a profile on a social-networking site. You fill in the data: profession, relationship status, and location. In this case digital reduction becomes a causal element, mediating between new friends with whom most information is exchanged online. That is new.

The law is also “personally reductive” – creating causes of action into which lawyers must first pick and choose the “relevant” facts satisfying the “elements” of the cause or count. We fill in the data constituting the legal claim and the factual reduction becomes a causal element, determining which disputes can be legally resolved with an award of damages (or other legal remedy) and which cannot.

Mid-way through our law school studies, we have forgotten the difference between reality and these legal “database entries,” the purpose of which is to eliminate emotion from the delivery of “justice.” No matter how “abstract and impenetrable” we make our “justice products”; no matter the effort we make to separate fictionally “objective” “facts” from hypothetically rational “law,” we will never be able to “separate the people from the problem.” Nor, thankfully, are we capable of escaping that which most strongly unites us – our very fallible, subjective humanity.

So let’s please teach our law students something about the psychology of conflict, particularly how it arises and how it might be profitably diminished rather than avoided or suppressed. They will, after all, be toiling in the hot cauldron of conflict for the next thirty to forty years. Their ability to “handle” the “facts,” suffused as they are with human emotion, will determine the success or failure of the legal project as well as the happiness and well-being of its practitioners.