Negotiation Law Blog

Congratulations are in order to attorney Angela Haskins who is not only being installed as the President of the Women Lawyers Association of Los Angeles this Thursday evening, but who has had the wisdom to create a section for women in ADR ~ an idea whose time has come.

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!

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

I continue to bark at the moon.

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.

Recently, I suggested that surgeon-author Atul Gawande's Checklist Manifesto pointed the way toward a more effective and efficient means of responding to frivolous claims than potentially protracted litigation. Skeletal checklists for just such dispute resolution processes are already in daily use by peer mediators in our public schools.  Because those lists are scalable, they can be readily adapted to address conflicts of far greater sophistication and complexity with minimal effort.

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.

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Check out my first blog post on the Forbes.com legal blog, On the Docket, New York Anti-Bullying Law a Big Bad Idea.

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.

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).

I'm blogging about gender and negotiation this month because March is National Women's History Month and March 8th was the 100th anniversary of International Women's Day (commenced in 1910, a full decade before the Nineteenth Amendment would grant U.S. women the right to vote). 

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.

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.

When I posted Negotiating Gender:  Why So Few Women Neutrals? I had not yet found a source for the statistical representation of women neutrals on the American Arbitration Association Panel.  I've now located an article on the AAA website from December 18, 2006  (here) stating that women then made up 13% of AAA's national roster of neutrals. 

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.

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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)

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If you're following this blog but not Diane Levin's Blog The Mediation Channel, I have good news for you.  Diane is an extremely focused, disciplined and lively writer.  She's also one of the brightest and most canny negotiators, mediators and negotiation trainers I know.

Diane describes her series, Fallacious Argument of the Month, as follows:

With the goal of promoting clearheaded and reasoned debate and improving discourse, each month I skewer a different fallacy.

Before giving you entree to this excellent series, let me first note that these arguments do not justify any movement in your negotiation position.  Remember - you need a new number and a new reason to counter that new number.  If your mediator or negotiating partner expects you to give up something, he'd better have a darn good reason for you to do so.  If you're a lawyer representing a party, you can feel your client figuratively or literally tugging on your sleeve when you offer more or agree to accept less in the absence of a justification that makes business sense.

The Appeal to Authority

Argumentum ad Hominem (this one is so irritating it can create impasse where none previously existed)

The Red Herring

Confusing Cause and Effect

The Misleading Ellipsis (to which I add this caution ~~> the quickest path from respected advocate to deceitful scoundrel is the misleading ellipsis - Judge, Arbitrator, Mediator and Opponent will all distrust your bona fides from that date forward; if you can't think of a better argument, fall on your sword on this issue and create a better one just over the next hill).

The False Analogy

The Straw Man

Diane adds one new fallacious argument every month.  I'll endeavor to keep up with her.  But more reliably, get her RSS feed, add it to your google reader and never again be without the wisdom of this brilliant mediator and negotiation trainer and consultant.  That's her smiling face at top.  Visit her often! at The Mediation Channel.

The not so secret opinion among mediators is that attorneys make settlement more difficult.  Just as lawyers are heard to say that "litigation would be great if it just weren't for the clients" (a "problem" only class action plaintiffs' lawyers have actually resolved), mediators  tend to say "mediation would great if it weren't for the lawyers."

Esteeming the rule of law in America as I do (especially in the recent era of its greatest peril) I have never seen lawyers as a problem in facilitating settlement of the lawsuits they have been eating, drinking, sleeping and, dating for years longer than I've spent reading their briefs and engaging in some pre-mediation telephone discussions.  

I can't say lawyers are a problem because:  (1) they're my job; and, (2) they're "my people" in the "tribal" sense.  A few bad apples aside, lawyers are among the hardest working, most ethical, creative, multi-talented professionals I know.  And they are pretty much solely responsible for fighting the battle, on every common weekday, to preserve the rule of law as a bulwark against tyranny on the right and anarchy on the left.

It was therefore no surprise to see a recent Harvard Negotiation Journal article (thanks to Don Philbin of the Disputing Blog and his indispensable ADR Toolbox) that one group of academics has asked whether attorneys have a Negative Impact . . . on Mediation Outcomes.

Let's start with this particularly widespread canard from the article:

Attorneys may delay the settlement of a dispute through mediation for financial reasons. For example, the payment of professional fees on the basis of hours worked could motivate the attorney to delay the settlement of the dispute to increase the number of hours billed to the client  (citations omitted).  Such non financial reasons as a desire to build or preserve a reputation for “hardball negotiating” in highly publicized cases could also motivate an attorney to delay settlement of the dispute [which the authors don't mention often results in a far better outcome for the client].   In addition, attorneys’ (or their clients’) commitment to or belief in their case based on questions of justice or other principles [which are worth, in my opinion, greater attention that purely monetary outcomes] could also delay settlement until “defending the principle becomes too costly” (citation omitted). Finally, attorneys may wish to justify both their role and their fees with unnecessary interactions./1

Are we mendacious, self-serving, parasites of the "justice system," feathering our own comfortable nests as we attempt to preserve the "outdated" notion that the justice system is capable of delivering justice? I don't believe so, but let's not get all anecdotal about these questions when we have cold, hard statistics within reach.  What were the results of this study on the way in which attorneys might "get in the way of" a successful mediation?

Here's the bottom line assessment (please read the article yourself to draw your own conclusions).

The empirical data we collected in this study indicate that the presence of an attorney in a mediation does not significantly affect the settlement rate, the time needed to reach an agreement, the perceived fairness of the process, the parties’ level of satisfaction with the agreement, or the parties’ level of trust that the agreement will be honored. These results indicate that attorneys have much less impact than is claimed by those mediators who do not welcome their involvement in the mediation process.

Nevertheless, the results also demonstrate that the presence of an attorney does affect mediation outcomes in at least two ways: by reducing the parties’ level of satisfaction with the mediator’s performance and by reducing the level of reconciliation between parties.

So the Myth Busters of this study conclude that attorneys:

1. don't "significantly affect the settlement rate" /2
2. don't significantly affect "the perceived fairness of the process";
3. don't significantly affect "the parties' level of satisfaction with the agreement; and,
4. don't significantly affect the "parties' level of trust that the agreement will be honored."

This is the subjective viewpoint of the litigants, mind you, in a dynamic where the mediator often openly attributes the success of the mediation to the clients' attorney - an observation which is more deeply true than most mediators would care to admit with all their white horse hi-ho silver, magic bullet off-to the-rescue enthusiasm.

What did litigants report to the authors of this article?  They indicated that attorneys adversely affected mediation outcomes in two ways:  (1)  they reduced the parties' "level of satisfaction with the mediator's performance"; and, (2) they "reduced the level of reconciliation between the parties."

Of all of the purported effects of attorneys' presence at mediation - without whom, it must be noted, the parties would not likely be induced to sit down and mediate at all -- the only significant perceived difference is the failure of the mediation process to reconcile the parties - something in which the legal system has little to no interest.

Please read the article for proposed solutions to the reconciliation issue.  As to the remainder of the study's findings, I have this to say:

1. whenever two or more people are gathered together, the dynamics of the group more profoundly affect the outcome than do the contributions of any individual member of the group.  Our "reality," especially as it appears in a group setting, is "co-created."  See the New York Times must-read article on the Psychology of Terrorism and Retail Marketing at Google Books (the latter noting that because people live in a social world which is co-created in social interaction with others . . . . [they] can be thought of as both products and producers of the social world."  Id. at 218.)
2. try as you may, you will never be able to untangle the threads that create the intricate tapestry of a settlement; every member contributes something invaluable without which the precise result could not possibly have been achieved. 
3. who is therefore responsible for the good and who responsible for the purportedly bad results of mediation?  That's easy:  EVERYONE IS.

That being the case, we are all responsible for our outcomes - whether our contribution is "negative," i.e., resisting settlement, for instance, or "positive," i.e., problem solving the reasons given by Mr. Negative that the case simply can't settle on terms acceptable to all.  Remember your University philosophy class? Thesis, Antithesis, Synthesis.  We need people willing to state the negative to problem solve it positively.  The relationships cause the outcome, not one member of a group unless that member is a tyrant with loyal troops at his command. 

If you'll allow me a literary reference that justifies my own collegiate career and says far more eloquently than I ever could why we're all accountable, I first give you one of my favorite authors, Paul Auster (who you may remember as the screenwriter of the movie Smoke).

The world can never be assumed to exist.  It comes into being only in the act of moving towards it.  Ese est percipii.  Nothing can be taken for granted:  we do not find  ourselves in the midst of an already established world, we do not, as if by preordained birthright, automatically take possession of our surroundings.  Each moment,each thing, must be earned, wrested away from the confusion of inert matter, by a steadiness of gaze, a purity of perception so intense that the effort, in itself, takes on the value of a religious act.  The slate has  been wiped clean. It is up to [us] to write [our] own book. Paul Auster, The Decisive Moment from The Art of Hunger.

The second excerpt I will leave for your thoughtful consideration is by the greatest scholar of comparative religions to ever inhabit the planet - Joseph Campbell (skip the intro with the new age music).

Schopenhauer, in his splendid essay called "On an Apparent Intention in the Fate of the Individual," points out that when you reach an advanced age and look back over your lifetime, it can seem to have had a consistent order and plan, as though composed by some novelist. Events that when they occurred had seemed accidental and of little moment turn out to have been indispensable factors in the composition of a consistent plot. So who composed that plot? Schopenhauer suggests that just as your dreams are composed by an aspect of yourself of which your consciousness is unaware, so, too, your whole life is composed by the will within you. And just as people whom you will have met apparently by mere chance became leading agents in the structuring of your life, so, too, will you have served unknowingly as an agent, giving meaning to the lives of others, The whole thing gears together like one big symphony, with everything unconsciously structuring everything else. And Schopenhauer concludes that it is as though our lives were the features of the one great dream of a single dreamer in which all the dream characters dream, too; so that everything links to everything else, moved by the one will to life which is the universal will in nature.

It’s a magnificent idea – an idea that appears in India in the mythic image of the Net of Indra, which is a net of gems, where at every crossing of one thread over another there is a gem reflecting all the other reflective gems. Everything arises in mutual relation to everything else, so you can’t blame anybody for anything. It is even as though there were a single intention behind it all, which always makes some kind of sense, though none of us knows what the sense might be, or has lived the life that he quite intended.

Joseph Campbell - The Power of Myth, with Bill Moyers, as quoted in Derek Parrott's Blog.

Lawyers, mediators, clients, experts, consultants, legal assistants, and, yes, even your spouse with whom you consulted before today's mediation, every one of them is part of the "net of gems, where at every crossing of one thread over another there is a gem reflecting all the other reflective gems [so that] [e]verything arises in mutual relation to everything else, so you can't blame anybody for anything" and, by the  way, we can't credit credit nor bear all the responsibility for anything.  We are all capable.  We are all accountable.  And we all contribute something to the whole.

So we can stop pretending to be better than we are now.  We can all put down the burden and shame of our own entirely human fallibility; the myth that we ever do anything without the contribution of others; and, the pretense that we don't behave as badly, or as well, as other people do.  We're part of the team.  We're in it together.  Isn't that good news for the New Year?

And to give you a treat from having gotten this far, a scene that is all about seeing, from Paul Auster's Smoke.

____________________

1/ I'd be interested, of course, in what the authors consider to be "unnecessary interactions."

2/ This is a particularly interesting finding since mediators have also been found not to improve the settlement rate but only greater party satisfaction in several studies.

I find many of my law blogging friends over at Newstex.  Now I've joined them here. 

It used to seem odd to me that companies would bundle free blogs and that people would pay for the bundle.  With the advent of LawBox, the iPhone application that bundles federal and state codes along with law blog and law news content, I get it.  Not everyone's a BlawgReview Sherpa, paging through a news reader containing literally thousands of law blog posts every week for their possible inclusion in BlawgReview.  A pre-selected group of law blogs, usefully organized by category (mine is there under ADR) is well worth the money (only the State code materials requirement payment; the federal laws and blogs are free).

But allow me to disgress here to say BlawgReview #245 is brilliant and readable and funny, as we Blawg Review followers would naturally expect from the enviably multi-talented CharonQC.  In CharonQC's honor, he who has withdrawn his name from contention for the (admittedly King of the Anthill race for) Best Blawg Review of the Year (candidates here) we give you Sacheen Littlefeather, announcing Brando's rejection of the Best Actor Oscar (YouTube Video here).  Ms. Sacheen sent the Academy Brando's "regrets" by denouncing America's mistreatment of Native Americans on and off the screen. And here's Dustin Hoffman's eloquent 1980 speech (again, on YouTube) accepting the Oscar with "mixed feelings" for the extremely good reasons he mentions:  it's not the competition, it's the art.

The sixties.  They literally bled into the early '70s.  You really had to be there.

Below, Brando congratulating CharonQC for standing on his principles.

 Hey!  It's a New Year.  Let's all resolve to make it as fun as it is productive and even half as generous as it is empire-building (or protecting).  The Brits have a little to teach us about the loss of world hegemony so put CharonQC on your news reader to help you mourn America's status as a Super Power (an honorific I'm happy to pass along to some other freedom-loving country willing to play policeman to the world). 

We'd all do well to adopt the Brits' mordant sense of humor; their ability to soldier on under the worse circumstances; and, their willingness to bear the burdens of universal health care.

What does all this have to do with conflict resolution?  As the final chapter in the ABCs of Conflict Resolution (due out this Spring from Janis Publications) explains, Conflict is Our Zen Master? 

Why?  Because, as Ken Cloke observes in my interview with him about mindfulness and commercial mediation over at mediate.com,

every conflict we experience in our lives occurs at the intersection, or crossroads, between problems we now need to solve in order to grow, and skills we do not yet possess. So, for example, there are no two year olds who experience conflicts over romantic love, because romance is not yet on their agenda, and there are no ninety year olds who have conflicts over who gets to play with the blocks. With each level of growth and development, we experience fresh conflicts and at the same time transcend old conflicts that we not only successfully resolve, but develop the skills to move beyond. Helping people experience transcendence and evolve to higher levels of conflict and resolution is what I mean by the capacity of this field to do something really miraculous, something that is beautiful, but has an underpinning of logic and rigor.

In other words, conflict arrives on our door only when we need to learn something new and to challenge ourselves to learn a new set of conflict resolution skills, or to take a new point of view, that will move us past our current distress and into a higher level of conflict that befits the maturity we've achieved so far.  In that, conflict is our Zen Master.  I know.  Every time I complain about my husband to my best (Buddhist) friend, she says, "remember, Steve's your Zen Master," and I remember that my present distress has something to teach me about my ability to love, accept, forgive or transform before I will be able to move on to a greater level of compassion, skill, understanding, meaning and, yes, love.

That's my stream of consciousness this morning.  Happy new year to all!

(may I offer you a second helping of Jimmy Choo shoes with your turkey?)

Before sharing Brian Solis' succinct and brilliant post the Benevolent Acts of Reciprocity and Recognition and Highlights from the Research Project on Gratitude and Thankfulness (excerpt below) I want to once again make a few remarks about what we all seek to achieve with rights and remedies (particularly in the post-scarcity society in which we too often forget we live):

1. we want rights because we are genetically programmed and culturally conditioned to be fair (remember the Capuchin monkeys who, trained to work for "money" staged a sit-down strike when others doing the same work were compensated at five times the rate as their under compensated fellows);
2. rights are meant to guarantee us equal treatment in the distribution of public benefits and resources; and, equal access to public and private accommodations;
3. remedies are meant to restore private and public resources to those who have been deprived of them because some one; group; organization or governmental entity has broken one or more rules by which we have chosen to govern ourselves; and,
4. money is a means to an end, not an end in itself and each of us desires money for the same reasons - control of our own destiny (power; self expression); access to the benefits of the social contract (1. Freedom of speech and expression 2. Freedom of religion 3. Freedom from want 4. Freedom from fear); security against an uncertain future (access to medical services and a mimimal standard of living if we become unable to care for ourselves); meaningful occupation; the opportunity to be of unique service to our fellows; love; and, joy (monetary sub-goals such as a pair of Jimmy Choo shoes are also simply a [misguided] means to achieve these ends).

I have been taken to task for being "touchy-feely" or "new age" or of insufficient value to my "market" because I say these things repeatedly in public.  My "market," I'm told, would rather be right than happy; would rather someone lose so that they can win; and, believe the only thing anyone wants is money.

I don't believe it and I am committed to holding this space as a place-marker for my "people" who are suffering.  Which people are those?  Litigators. 

The challenge of this and every year:  How do we even begin to introduce the concept that we can more easily, efficiently and effectively satisfy the true interests of our fellows-in-the-social-condition than we can satisfy one individual's demand for preeminence over another? 

On our least divisive, most-inclusive and thoroughly secular holiday of Thanksgiving, we can begin to alleviate the suffering caused by zero-sum games with gratitude -- the benefits of which are being studied by a team of researchers at my legal alma mater, U.C. Davis.

Gratitude is the “forgotten factor” in happiness research. We are engaged in a long-term research project designed to create and disseminate a large body of novel scientific data on the nature of gratitude, its causes, and its potential consequences for human health and well-being. Scientists are latecomers to the concept of gratitude. Religions and philosophies have long embraced gratitude as an indispensable manifestation of virtue, and an integral component of health, wholeness, and well-being. Through conducting highly focused, cutting-edge studies on the nature of gratitude, its causes, and its consequences, we hope to shed important scientific light on this important concept. This document is intended to provide a brief, introductory overview of the major findings to date of the research project. For further information, please contact Robert Emmons. This project is supported by a grant from the John Templeton Foundation.

We are engaged in two main lines of inquiry at the present time: (1) developing methods to cultivate gratitude in daily life and assess gratitude’s effect on well-being, and (2) developing a measure to reliably assess individual differences in dispositional gratefulness.

Gratitude Interventions and Psychological and Physical Well-Being

* In an experimental comparison, those who kept gratitude journals on a weekly basis exercised more regularly, reported fewer physical symptoms, felt better about their lives as a whole, and were more optimistic about the upcoming week compared to those who recorded hassles or neutral life events (Emmons & McCullough, 2003).

* A related benefit was observed in the realm of personal goal attainment: Participants who kept gratitude lists were more likely to have made progress toward important personal goals (academic, interpersonal and health-based) over a two-month period compared to subjects in the other experimental conditions.

* A daily gratitude intervention (self-guided exercises) with young adults resulted in higher reported levels of the positive states of alertness, enthusiasm, determination, attentiveness and energy compared to a focus on hassles or a downward social comparison (ways in which participants thought they were better off than others). There was no difference in levels of unpleasant emotions reported in the three groups.

* Participants in the daily gratitude condition were more likely to report having helped someone with a personal problem or having offered emotional support to another, relative to the hassles or social comparison condition.

* In a sample of adults with neuromuscular disease, a 21-day gratitude intervention resulted in greater amounts of high energy positive moods, a greater sense of feeling connected to others, more optimistic ratings of one’s life, and better sleep duration and sleep quality, relative to a control group.

* Children who practice grateful thinking have more positive attitudes toward school and their families (Froh, Sefick, & Emmons, 2008).

There's more at the link!

Happy Thanksgiving.

I'd like to challenge all my favorite dispute resolution bloggers to find and post their favorite Thanksgiving Family Conflict Scenes in the movies.  Above - an era within the memory of some of us who were too young for the "key parties" but too old for the behavior depicted here.

Still, I DO remember the times, as well as the terribly unfortunate clothing and hair-styles.

I created this video years ago with my BFF and apologize for its poor visual quality (I was just learning).  But I can't duplicate this conversation about communication and peace making skills.  I'm posting it here for the first time. 

I spent my day Saturday at the annual convention of the Southern California Mediation Association (kudos to attorney-mediator Phyllis Pollack for a fabulous conference!)  Ken Cloke spoke eloquently on conflict systems and what mediators can do to "save the planet."  I took his presentation (characteristically and densely verbal) and added images to break up the text hoping that Ken won't mind supplementing the English language with pictures).

I highly recommend Ken's presentation (which was incredibly eloquent at the conference and not limited by the hard bruising text against text can do) as well as, of course, his brilliant and visionary book - Conflict Revolution.

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.

^[12]

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.

 ^[18]

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 Justice.  Charon QC also weighs in on the ABA Legal Rebels project here.

Arbitration

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 named:  Martin 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.

The following is the conclusion of an excellent post on the recent Pfizer-Justice Department settlement noting that it met "the People's" justice interests better than a judgment could have.  The full article, Settlement and Justice for All by Robert C. Bordone & Matthew J. Smith** can be found here at the Harvard Negotiation Law Review.

 More than honoring principles a court might champion, the negotiated settlement with Pfizer allows the Justice Department to secure commitments from Pfizer that would have been unlikely in a court verdict. In addition to the enormous cash payment, the settlement agreement allows for closer monitoring of Pfizer by Justice Department officials in the years ahead, ensuring corporate accountability and providing an extra measure of protection for consumers. As part of the deal, Pfizer entered into a Corporate Integrity Agreement with the Office of Inspector General of the Department of Health and Human Services and will be required to maintain a corporate compliance program for the next five years. While a judge might choose to retain judicial oversight in a particular case, federal courts typically lack the expertise or resources to provide the kind of enforcement needed to ensure a systemic and long-term remedy in a technical or highly specialized case such as this.

The Pfizer settlement represents the best kind of transparent, efficient, and wise government law enforcement. It holds Pfizer wholly accountable for its actions, sends a strong and clear message to the public that corporate malfeasance will not be tolerated, provides for ongoing enforcement, and it does it all at a fraction of the cost of trial. While many cases should proceed to trial for reasons of precedent and public policy, negotiated settlement – when approached with wisdom and aplomb – can be a most efficient and effective means of law enforcement.

For my own posts and mediation, negotiation and justice, see Delivering Justice in Community Mediation, Negotiating Justice:  Anchoring, Bias, Dad and Sotomayor, and Do Interest-Based Negotiation and Mediation Trade Justice for Harmony?

Thanks to Don Philbin for being one of the best navigators of quality in the ADRosphere!  "Friend" him on Facebook here.

________________

**/ Robert C. Bordone is the Thaddeus R. Beal Clinical Professor of Law at Harvard Law School and Director of the Harvard Negotiation and Mediation Clinical Program. Matthew J. Smith is a Lecturer on Law at Harvard Law School and a Clinical Fellow at the Harvard Negotiation and Mediation Clinical Program

Today's New York Times Op-Ed piece on "diplomatic engagement" (Terms of Engagement) as a strategy for "chang[ing] [Iran's] perception of its own interests and realistic options and, hence, to modify its policies and its behavior," offers good strategic negotiation lessons for mediators and mediation advocates alike.  As Crocker explains:

[E]ach case of engagement has common elements. Engagement is a process, not a destination. It involves exerting pressure, by raising questions and hypothetical possibilities, and by probing the other country’s assumptions and thinking. Above all, it involves testing how far the other country might be willing to go. Properly understood, the diplomacy of engagement means raising questions that the other country may wish to avoid or be politically unable to answer. It places the ball in the other country’s court.

Litigation is an extremely good way to "exert[] pressure," on your negotiation partner by burdening it with the costs of  waging the adversarial contest.  The litigation itself not only "rais[es] questions and hypothetical possibilities" but through the process of discovery, it also "probes [the opponent's] assumptions and thinking" and "test[s] how far [your opponent] might be willing to go" to achieve victory.

Parties disappointed with mediation and mediators are usually dissatisfied with the mediator's inability to engage in the final step of "engagement diplomacy" -- "raising questions that the [opponent] may use to avoid or be [positionally] unable to answer."  A good mediator is unafraid to raise those difficult questions with each side of a dispute.  But raising those difficult questions is not enough.  A good mediator must also be able to deliver bad news to the parties in such a way that the parties are able to hear it. 

If the goal of the negotiators -- the attorneys -- is to "change the[ir] [opponent's] perception of its own interests and realistic options and, hence, to modify its policies and its behavior," the negotiators and their clients must be prepared to:

• reveal to the mediator
  • hidden constraints preventing them from modifying their demand or offer; and,
  • hidden interests that must be served in order to justify any such modification
• candidly acknowledge (in separate caucus)
  • the weaknesses of their position; and,
  • any constraints on their client's willingness and ability to put their convictions to the test of a jury verdict or judgment by the court
• help the mediator help their clients understand that most litigation is based upon differing subjective experiences of the same "objective" series of events so that no one must admit that the other side is "right" and their own side is "wrong"

An example of the lengths to which people will go to be "right" is unfortunately provided to us today by the obituary of the first anti-abortion advocate to be shot and killed for his beliefs.  The slain activist spent years protesting outside the car dealership owned by Tony Young, who explained how the protests finally ended (from Slain Abortion Opponent Loved the Controversy)

Mr. Young said that after about three years of protesting outside his dealership, Mr. Pouillon came in and offered a truce. “ ‘Tony,’ ” Mr. Young said the exchange began, “if you would just agree that I’m right on my beliefs, I’ll stop.’

“I just told him, ‘Sure, Jim, you’re right,’ ” Mr. Young said, chuckling. After that, he said, Mr. Pouillon moved on.

Although few cases could so easily turn on the dime of a semi-sincere acknowledgement that the other side is "right," most attorneys would be surprised by how much value can be generated by acknowledging that the other side's version of the facts or the law is not crazy, evil, bizarre, intellectually dishonest or asserted in bad faith.  See The Biggest Lie in the Business:  It's Only About Money.  As I noted there:

The social scientists who study these things say that the way in which we respond to adversity "often reflects the fact that [our] prestige or status has been threatened more than the fact that [our] purchasing power has been diminished." Miller, Disrespect and the Experience of Injustice, Annual Review of Psychology (2002). In other words, the corporate C.E.O., like any other kid on the block, will retaliate when he feels he has been disrespected.

Conversely, research shows that business people are reluctant to recommend legal action if they believe that they and their company have been treated respectfully. 

By the same token that business people are reluctant to recommend legal action if they believe their company has been treated respectfully, they are often far more willing to settle litigation if they believe their positions have been heard and acknowledged as having been made in good faith.  For those headed toward settlement discussions or mediation, Crocker has good advice:

[B]y far the greatest risk of [diplomatic] engagement is that it may succeed.  If we succeed in changing the position of the other [side's] decision-makers, we then must decide whether we will take yes for an answer and reciprocate their moves with steps of our own.  If talk is fruitful, a negotiation will begin about taking reciprocal steps down a jointly defined road.  Engagement diplomacy forces us to make choices.

If litigators and their clients are aligned in the interest of settling litigation, they must prepare themselves to take "yes for an answer" by having in place a strategy of engagement that will permit them to reciprocate the other side's moves with steps of their own.  A good mediator should be capable of bringing all parties to the on-ramp of the road that counsel and their commercial clients are well-placed to and highly skilled at jointly defining.    

(right:  Bueno de Mesquita's "Logic of Political Survival")

The book at right was brought to my attention for the first time by this highlighted text in Good Magazine: 

In the foreboding world view of rational choice, everyone is a raging dirtbag.

What makes the Logic of Political Survival Relevant to negotiators is Bruce Bueno de Mesquita's application of game theory to international political problems such as the reduction of conflict between Israel and Palestine (quoted below).   

I'll have to admit that his claim to "produce a settlement [in litigation] that is 40 percent better than what the attorneys think is the best that can be achieved” -- also caught my attention and should draw my attorney readers into de Mesquita's world, first from Good Magazine's article The New Nostradamus and (at the end of this post, today's article in the Sunday New York Times).

First, de Mesquita's own words on the Middle East.

In my view, it is a mistake to look for [peacemaking] strategies that build mutual trust [between the Israelis and the Palestinians] because it ain’t going to happen. Neither side has any reason to trust the other, for good reason. . . . 

Land for peace is an inherently flawed concept because it has a fundamental commitment problem. If I give you land on your promise of peace in the future, after you have the land, as the Israelis well know, it is very costly to take it back if you renege. You have an incentive to say, ‘You made a good step, it’s a gesture in the right direction, but I thought you were giving me more than this. I can’t give you peace just for this, it’s not enough.’

Conversely, if we have peace for land—you disarm, put down your weapons, and get rid of the threats to me and I will then give you the land—the reverse is true: I have no commitment to follow through. Once you’ve laid down your weapons, you have no threat. 

The "rational" solution?

 In a peaceful world, what do the Palestinians anticipate will be their main source of economic viability? Tourism. This is what their own documents say. And, of course, the Israelis make a lot of money from tourism, and that revenue is very easy to track. As a starting point requiring no trust, no mutual cooperation, I would suggest that all tourist revenue be [divided by] a fixed formula based on the current population of the region, which is roughly 40 percent Palestinian, 60 percent Israeli. The money would go automatically to each side. Now, when there is violence, tourists don’t come. So the tourist revenue is automatically responsive to the level of violence on either side for both sides. You have an accounting firm that both sides agree to, you let the U.N. do it, whatever. It’s completely self-enforcing, it requires no cooperation except the initial agreement by the Israelis that they are going to turn this part of the revenue over, on a fixed formula based on population, to some international agency, and that’s that.

It actually gets much more controversial and interesting than this -- the "kicker" to the headline in Good Magazine reads:

Can a fringe branch of mathematics forecast the future? A special adviser to the CIA, Fortune 500 companies, and the U.S. Department of Defense certainly thinks so

If that intrigues you, you'll want to read the entire article here.  And you'll also want to read today's New York Times article on de Mesquita,

From David Sugarman's Oregon Class Action Blog, Bombshell:  State of Minnesota Sues National Arbitration Forum.

The State of Minnesota filed a lawsuit against National Arbitration Forum, a leading arbitration provider, claiming that NAF is a front for debt collectors and their law firms and not an independent arbitration service.  Here’s a copy of the complaint–it’s long–for anyone who is interested.

For Sugarman's full post, click here.

Though the National Arbitration Forum focuses on the arbitration of disputes, it also administers mediations.  For information on its mediation services, click here.

Check out Steve Mehta's recent post at Mediation Matters -- Negotiations Today Could Haunt You Tomorrow, once again confirming that the human interaction during the negotiation is more important to long term satisfaction with the deal than the raw economic benefit achieved.  As Mehta explains, a recent study reported Curhan, J., Elfenbein, H., Kilduff, G. Getting Off on the Right Foot: Subjective Value Versus Economic Value in Predicting Longitudial Job Outcomes From Job Offer Negotiations in the Journal of Applied Pyschology, 2009, V. 94, No. 2, 524-534 (.pdf)

found that the satisfaction with the experience the employees had during their job offer negotiations significantly predicted compensation satisfaction, job satisfaction, and turnover intention one year later.  By contrast, the actual economic value – meaning the value of the compensation package — achieved in the negotiation had no association with job attitudes or intentions to leave.

Interests In Employment Litigation

Just as the quality of the pre-employment relationship colors the entire workplace experience, so will a negative termination color the employee's retrospective view of the employment experience, thereby increasing the incidence of litigation.

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

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

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

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

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

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

Well worth a listen!

I'm re-posting below an article published in both the Los Angeles and the San Francisco Daily Journals (the local legal rags) about the dangers inherent in email communication.  I do so because I had several complaints about the use of abusive email by in-house counsel last week at my negotiation training as well as in my twitter network from attorneys exasperated with combative emailers who refuse to take telephone calls (see post about conflict avoidance here)

My advice?  Use the tried and true tit-for-tat strategy:  retaliate for uncooperative conduct and be quick to forgive as soon as your bargaining partners bring themselves back into line.  The advice I gave on twitter (@vpynchon) this morning was simple and pointed:  tell opposing counsel that you will program your email system to automatically delete all of their emails until they pick up the telephone and give you the courtesy of a return call.

Below, my Daily Journal article on the Dangers of Using Email During Litigation.

This story occurs in the spring of 2001, in a hotel room in Toronto, at 3 a.m., the morning of a deposition I've been preparing to take of an aging petrochemical engineer.

2001 is a  year I'd dreamed of since elementary school.  But the technological changes predicted in the science fiction of my childhood and adolescence are nothing like the "hi-tech" I'm living with now.  

Jordan Walerstein is the next year's Editor-in-Chief of the Cardozo Law School's Journal of Conflict Resolution.

Jordan talks about his interest in dispute resolution; the challenges faced by his generation of lawyers; and, the benefits of attending Cardozo Law School in New York City.

This video was shot at the ABA Dispute Resolution Conference in New York City last week.

The law school professor asked for a show of hands.

"How many lawyers are in the room?"

There was something about the way he shook his head, just slightly, from side to side, that communicated "too many lawyers," followed by a sigh that I read as  "I'm still going to smack them upside the head."  

I connected to my twitter network and tapped out  "now this speaker is going to dis lawyers - let me see if I can stay quiet." 

(image by the brilliant Charles Fincher at LawComix)

If disrespecting lawyers were an unusual event at ADR conferences, my "read" wouldn't have been so spot on.  But it's actually a category here:  the evils of litigation and its soulless practitioners. 

"The judicial system" began the law professor,

is a bureaucracy attended by people who are not employed by it.  Those people are lawyers who have been brain washed by law schools to eliminate emotion from their clients' conflicts; who have lost the ability to communicate with ordinary people; who strip context from conflict; and, who treat the people they represent like objects.

Ah.  Heartless functionaries of the evil judicial system.  Now that he'd brought it to my attention I could see that I'd spent a 25-year litigation career doing the work of the devil -- not caring about my clients; not awakening at 3 a.m. to craft a better strategy to vindicate their rights; failing to develop the courage (yes, courage) to stand in a courtroom, a shaky 28-year old kid, telling the Judge or a jury why they should grant my client the remedies available to him or her in law, equity and, yes, justice. 

A career in which I'd used my mind and body as a shield against repression and injustice for all of the individuals and entities I'd represented, including the rich and powerful, who deserve justice as much as the poor and inpecunious, whose fights I took up with the same vigor and dedication as the ones who'd paid my bills. 

Though the law professor apparently disagrees, I consider my work, and that of my colleagues to be worthy, even in those cases where insurance carriers were my clients, sued by their petroleum company policy holders who claimed entitlement to reimbursement for the intentional contamination of the soil under our feet and the groundwater some of us are required to drink.

Was this panel of law professors -- who wanted to put feelings and socio-cultural context and identity back into my clients' disputes -- simply unaware that I, a veteran of the successive civil rights movements of the mid-20th and early 21st centuries, am also a person with an identity and feelings, who has represented my clients with heart and passion and dedication in a socio-cultural context which has, at times, made my work not simply a social good, but a god damned heroic struggle?

But this isn't about me.  It isn't even about the flaws in the adversarial system or the profound imperfections in the chaotic state of mediation theory and practice today. 

This is about a conversation that mediators, lawyers and academics are not having and a rancor that inexplicably prevents us from taking the best of all systems to create something genuinely original and powerful.   

I'm inclined to believe that these predictable eruptions of anti-lawyer sentiment have something to do with power and who each "faction" believes possesses it.  The law professor of whom I speak, for instance, seemed envious when he said that the "bureaucracy of the judicial system has a monopoly on the coercive power of the state."  It was important enough for him to say it twice.  "Only the Courts can compel people to resolve their disputes in the adversarial system," he'd added.

If my reflex hadn't been to pick a positionally lawyerly response  during "audience participation" I would have, should have, asked how he could so thoroughly misread us -- his brothers and sisters in the law?  I also would have asked  him these questions:  

Do you really believe that attorneys -- those who sit before you today -- are the soulless, emotionless bureaucrats you say they are?

Is there something you would like those of us who remain in legal practice to do to help you help us help our clients?'

Are you envious of our coercive power?  Is it frustrating -- watching your cousins "at the bar"  -- use their power to compel people to attend to court proceedings when your own dispute resolution mechanism requires participants to volunteer?   

Is it painful to you that the people you believe will rise up and demand ADR solutions someday have not yet voluntarily knocked on ADR's door in sufficient numbers to create the non-adversarial legal utopia you long for?

Are we playing a zero-sum game here?  Fighting over territory?  Is my dispute resolution "turf" preventing yours from taking seed?  Is it impossible for us not only to co-exist, but to thrive in collaboration with one another? 

Do you really believe that we legal practitioners do not want the same social goods that seek?  The passably fair resolution of my neighbor's boundary line dispute?  The roughly just distribution of public goods?  The tolerably unbiased treatment of the governed by the government? In short, justice in an imperfect world? 

We are on the same team and we were all trained with the same intellectual rigor.  We require evidence to convict a man or woman of a crime, not hearsay, not speculation, not prejudice, but evidence.  The law and lawyers liberated more than half the citizenry from second-class status, at the same time that women and African Americans, Native Americans, "Chicanos," "Latinos," persons "of color" Muslims, Jews and Catholics fought to enter the American political and commercial "establishment" through the court system the professor reviles.

Instead of resenting and demonizing one another; instead of letting our own personal disappointments cause us to disrespect and demonize one another, why don't we all sit down, break bread, have a drink, take a walk in Central Park and find out how we might be of some assistance of each other.

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

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

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

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

RSVP to kenclokembb@gmail.com

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

As every lawyer knows and most students of high school geometry must learn in mastering "proofs," the answer often comes first, the rationale later.  I used to say, "I'm a litigator, I can rationalize anything."  As a mediator, my rationalizations have turned from the way in which facts can be shoe-horned into causes of action or affirmative defenses to the way in which harm arising from a dispute (including, most assuredly, the moral harm of injustice) can be monetized.

Now David Brooks in the New York Times (which appears to have disabled the "copy" function/1) tells us that philosophy has been sacrificed on the alter of emotion in his column The End of Philosophy. 

As Brooks explains, reasoning comes after moral judgment and "is often guided by the emotions that preceded it."  The good news is that those emotions are not merely competitive.  Brooks again:

Like bees, humans have long lived or died based on their ability to divide labor, help each other, and stand together in the face of common threats.  Many of our moral emotions and intuitions reflect that history.  We don't just care about our individual rights, or even the rights of other individuals.   We also care about loyalty, respect, traditions, religions.  We are all the descendents of successful cooperators.

My mediation experience teaches me that the "soft" arts of influence, empathy, community-building, and prejudice reduction, are as important (and often more important) to the successful (i.e., satisfying) resolution of a lawsuit than our prized ability to parse the evidence,  rationalize away the bad and privilege the good to sell our "proof" to judge or jury.

Most importantly, I find that when attorneys' clients leave a mediation with the belief that a certain rough justice has been obtained, they are more satisfied with the outcome, and with their attorneys' representation of their interests, than they might have been had they left with 10% more change jingling in their pockets.

The experts who study mediation tell us that "neutrals" don't make the difference between settling or not settling.  The cases will settle with or without us.  The difference mediators make is not settlement, but  client satisfaction.  Satisfied clients are  an absolute necessity for a successful legal practice at any time.  In these hard times, legal practices may fail in the absence of resolutions addressing the justice issues your client sought out a lawyer to resolve in the first place.

Money is the instrument.  But justice is the issue.

_____________

1/  More about this at IP ADR later today.

NB:  All names and situations altered to protect my own and my "opponents'" anonymity and to honor the confidential nature of the mediation.

This experience is going to take a while to digest.  First let me tell you what was GREAT about my recent mediation experience.

1. I hired an attorney who was a full-time, highly experienced mediator.
2. Because the mediation concerned a long-term contractual relationship with an emotional breach and immediate cessation of business, I choose a community mediator because I wanted someone skilled not simply in pressing the parties for compromise, but in  "transformative" (whole dispute) mediation (about which more later).
3. With two talented community co-mediators, I experienced the freedom of expression in joint session that confidentiality provides.
4. I learned how much courage it takes for all parties to face one another and talk about their own part in causing the dispute-creating series of events.  
5. I experienced the nearly invisible but critical support and encouragement provided by an "audience" (lawyers, mediators, insurance representatives) "schooled" "on the spot" in respectful listening.
6. Though the unguarded nature of my conflict-narrative and the pain caused by listening to my former partners' account initially felt like walking a tight rope without a net, as my story proceeded without interruption or apparent contempt from my "opponents" a great sense of comfort and freedom came over me.  I'm an old hand myself at creating an atmosphere of hope and safety so I didn't think that "trick" would work on me.  I found, however, that the mediators' ability to assure me of the confidential nature of the process and the benefits of frank discussion, enabled me to tell my truth, in as multi-dimensional, textured and admittedly fallible manner possible.  It amazed me -- as the client -- that so subtle shift in the atmosphere of the room would permit me to say, in all sincerity, that "though our experiences of the same series of events diverge wildly, I don't believe either of us is lying.  We've simply strung the facts together in a different way from opposing points of view."
7. The opportunity the co-mediators gave me to apologize for "my part in the dispute" while still  asserting the strength of my "position" that I would not be blackmailed, bullied or defeated, left me ready to settle or proceed without feelings of fear, shame, or anger.

To the extent I'll be able to tell this story (and I'm not certain I'll be able to until many years after its final resolution) the readers of this blog will be the first to know.

It's not magic.  It does, however, rest upon the mediators' wholehearted belief that human beings desire reconciliation as much or more than they desire money or the "stuff" that money provides.  It is premised on the elementary principle that the disputants would rather be happy than right.

Best advice to arise out of this session:  when you're mediating, hire an attorney-mediator to represent you just as you'd hire an insurance attorney if you had a dispute with your carrier.  One of the smartest decisions I've ever made.

Good resources for transformative mediation practice:

Institute for the Study of Conflict Transformation

The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition by Bush and Folger

Conflict Revolution, Mediating Evil, War, Injustice and Terrorism by Ken Cloke

Restorative Justice Online

Beyond Conviction (documentary on restorative justice in prisons)

Lawsuits arise from a process social psychologists call "naming, blaming and claiming."  I broke my toe last week (youch!)  when I was talking to my husband from another room and walking into a closet to hang up my jacket.  Jammed it on the door frame, once again engaging in the risk-courting activity of walking and talking at the same time.

If I were mentally ill, I suppose I could go so far as to name my husband as the source of my own lumpish carelessness; blame him for my injury; and, claim some sort of recompense beyond his willingness to kiss my toe to "make it all better."

"Well, I guess that doorway was just too narrow," my husband the litigator joked.  "I suppose you could sue the architect."

Much litigation flows from incidents nearly as foolish as this.  If you'd like to see a collection of such outrages, you likely already know where to go -- Walter Olson's Overlawyered where suits against McDonalds for obesity and the like can regularly be found.  Today's entry, about the alcoholic who sued Marriotts "after falling over a stairway while plowed" is a prime example.

Naming, blaming and claiming (as well as the litigation that flows from this process) will always be with us.  But if you have some degree of communication with the people likely to name and blame you before making a legal claim against you, an understanding of the social psychology behind that process may well help you understand and deal with the problem "on the ground," i.e., short of suit.

Today, I'm directing you to Attributing Blame — from the Baseball Diamond to the War on Terror as a good primer on the process and its underlying cause -- Fundamental Attribution Error.  Link courtesy of @JuryVox who any litigator or dispute resolver should be following on Twitter along with @annereed.

Whenever we witness something harmful or unexpected, we humans look to make attributions of causation, responsibility, and blame. Social psychologists have been studying the way we make those attributions for the last half century. Part of that research, known as attribution theory, focuses on how we draw inferences about how much control people exert over their behavior: the more control they appear to exert, the more we hold them responsible or blameworthy for the consequences of their actions. To assess control, we draw inferences about, among other things, whether the person acted volitionally or intentionally and about the person’s motivation. When we think an injurer acted intentionally and maliciously we attribute blame — which is accompanied by a desire to punish the injurer and to compensate the victim.

This naive psychology of blame attributions is fairly automatic and depends on more or less instantaneous impressions. And although our attributions result from inferences of, among other things, intent and motive, we are hampered by the fact that we cannot directly access someone else’s motives or intentions (in fact, we’re not very good at ascertaining our own). And, often, the individuals who we are judging have an interest in presenting themselves as innocent — regardless of the truth of the matter. In making attributions about another person’s harm-causing actions, therefore, we are often forced to rely on imperfect external cues. Conflict between individuals and groups often emerges precisely because attributional ambiguity leads to divergent interpretations and reactions. What a victim might perceive as outrageous, an injurer might construe as merely unfortunate or even richly deserved. The legal system is caught up in these attributional contests every day. For instance, most of tort law — in doctrine and in practice — is devoted to the question of resolving competing attributional accounts for the same personal injury.

Continue reading at the linked headline above.  My most popular article on this process - Conspiracy Theories and Granfalloons can be found here.

The British call layoffs "redundancies."    I prefer the American term - layoff -  because it focuses on the employer's need in times of economic stress ("I can no longer afford to pay you and so must lay you off) to the British locution which focuses on the employee's presumed inefficiency ("because your work is being performed (better?) by others, you have become redundant.")

Why the attention to semantics?  Because in times of massive law firm layoffs (see Law Shucks Lay-off Tracker here) you don't want today's efficiency become tomorrow's crushing legal liability. 

Lawyer Layoff Paranoia by the brilliant Charles Fincher at LawComix.com.

So how do you avoid the looming threat of litigation by laid off employees?  According to researchers, you terminate graciously, honestly, with expressed respect and compassion, and, if possible, with offers to help the laid off employee find work and replace critical benefits such as health insurance. 

Why do terminated employees bring suit?  It's not, as I'm always saying, just about the money. 

Researchers have found, for instance, that:

• Feelings of unfair, insensitive treatment at the time of termination had nearly twice the effect of the next most potent factor in bringing suit.
• Blame was not strongly related to the claiming process 
• There is some, but slight, support for the proposition that certain groups -- women and minorities - are especially likely to sue
• Perceptions of poor on-the-job treatment motivate lawsuits as much or more than an individual's belief in his or her ability to prevail in litigation
• the shorter the notice of termination, the greater the likelihood of suit

Finally, and most importantly for law firm management, the best predictor of a former employee's willingness to file claims for wrongful termination was highly educated respondents.

Researchers have also catalogued the most common on-the-job experiences that lead to litigation, including most prominently,

• negative experiences with supervisors;
• the belief that processes used by the supervisor are unfair.
• violations of procedural justice (the perceived fairness of the procedures by which outcomes are determined)
• perceived violations of equity and distributive justice  (the perceived fairness of outcomes)
• perceived violations of interactional justice  (the perceived fairness of the nuances of interpersonal treatment)
• survivors' attitudes toward their organization are strongly associated with their beliefs about the fairness of the manner in which their companies laid off other workers
   

"Blaming and claiming" activity (lodging grievances; seeking relief from the EEOC; retaining legal counsel to file suit) is strongly correlated with the manner in which employees are terminated.

Why?

Because Termination Causes Employees to Reevaluate Fairness in Working Conditions.  And you do not want to give employees the opportunity to reevaluate those conditions in light of their last employment experience - termination - unless that experience is positive.

The researchers have found that:

• people react strongly to nuances of treatment and style at the time of termination
• the quality of dismissal affects people’s decision to bring suit as much as termination itself.
• a fair, honest, and dignified termination should substantially reduce the temptation to retaliate through litigation.

The experts therefore recommend that employers:

•  treat their laid-off or fired employees with compassion and respect at the time of termination
• give several weeks advance warning to all laid-off or fired employees
• provide terminated employees with help in finding new employment
• give terminated employees honest accounts for the cause of their termination
• provide transitional alumni status to terminated employees when possible
• provide symbols of positive regard to terminated employees such as letters of reference, departure gifts or parties
• offer counseling services to terminated employees to ease the psychological shock of employment termination

According to a recent ABA Journal article entitled One Lawyer Layoff Saves an Average of $250,000 also notes that:

• some of the savings from layoffs is initially eaten up by severance payments
• at least one firm chairman indicated that the firm pays about $7 million in severance for every $10 million saved in compensation
• another firm chairman estimated that it takes about nine months before any savings are realized by lawyer layoffs.

If law firms don't want these savings to start bleeding red ink, they'd do well to study "naming, claiming and blaming" behaviors of terminated employees and to implement processes and procedures to reduce the potential for litigation flowing from these cost-saving measures.

For further reading, see my own Power Point Presentation from which most of the above statistics were taken here and the article from which most of that information was derived:  The Winding Road from Employee to Complainant here.

In Hijacked on the High Seas When Somali Pirates Attacked, They Kicked Off 56 Days of Drama Over the Fate of a Ship and 28 Crewmen, The Wall Street Journal details the negotiation strategy and tactics that resulted in the release of the hijacked ship and its crew.

(pirate photo from the cat dirl sez blog)

Excerpt below - "Mr. Christodoulou," the shipping company's negotiator, called himself "Gus."

Mr. Christodoulou made an initial offer, which he declines to reveal. The Somali negotiators -- first a man named Hussein, then another who called himself Abbas -- took the offer to the pirates. They called back the next day with a response.

"Hey Mr. Gus, the Somali gentlemen say the money is very less," Abbas said, according to Mr. Christodoulou. "They need more money."

Mr. Christodoulou didn't budge. The Somalis needed to feel they had squeezed every dollar out of the ship's owners, he had been advised, so he shouldn't increase his offer early.

"We want you to get the money and move onto another project," Mr. Christodoulou recalls saying. "But you have to understand, we have our limitations."

The conversations continued daily through December, with little progress. By the end of the month, the families in India were feeling desperate...

Tom Rozycki, Mr. Christodoulou's public-relations adviser, says he decided a new approach was needed to keep the families hopeful -- and away from the media. Publicity could empower the captors and delay the hostages' release, he believed. It would also be embarrassing for the company, making it even more difficult to face the families.

On Jan. 6, at the Hyatt Regency Hotel near Mumbai's international airport, Mr. Christodoulou met with the families of the crewmen.

Seeing Mr. Sharma's hunger-striking grandmother in the front row, he knelt beside her and held her hand. "Granny, your grandson is going to get out. And we want him to get out and come back to the healthy loving family that he left," he said, according to Mrs. Sharma and Mr. Christodoulou. That night, Mrs. Sharma ate some strawberry ice cream, her son recalls.

By mid-January, the pirates on the Biscaglia were growing frustrated. "They told us they were going to take us off the ship and hide us in the mountains," Mr. Khan, the crewman, says. The pirates gave him and the others a mobile phone to call home. "We all told our families that unless the company gave more money, we would be killed," Mr. Khan says.

Mr. Kapade, the chief engineer, says he realized the pirates were trying to pressure the company by terrifying the crew. When he spoke to his wife on Jan. 14, he lowered his voice and spoke in Hindi. "Pass on to others that we're fine," he whispered.

By then, Mr. Christodoulou says, he thought it was time to raise his offer. He declines to say what he offered, but says it was close to what he thought the Somalis would accept based on the range provided to him by experts: $700,000 to $3 million.

He set about trying to raise the money. He approached his own company's biggest investor, Regent Private Capital LLC, a private-equity firm based in Tulsa, Okla. Lawrence Field, Regent Private Capital's managing director, declined to discuss the conversation with Mr. Christodoulou. "Regent does not negotiate with terrorists or pirates or any kind of criminal," he said on Friday.

That evening, Mr. Christodoulou called Per Gullestrup, the Danish chief executive officer of Clipper A/S, a larger competitor in the chemical-transport industry. The two men hadn't known one another until both had vessels hijacked by Somalis. They had often commiserated.

Mr. Christodoulou told Mr. Gullestrup he was struggling to raise the funds. A few days later, Mr. Gullestrup called back. "We'd be happy to advance the money if that's what it takes," he said. That promise allowed Mr. Christodoulou to secure a loan for the purpose.

Buoyed by that success, Mr. Christodoulou decided to apply some pressure. He raised his offer slightly, he says, and told the negotiator: "You have 24 hours to accept this offer, or we have to retract it."

Over the next 24 hours, the two sides exchanged at least 20 phone calls. "Mr. Gus, this isn't enough money for the Somali gentlemen," the negotiator said several times, according to Mr. Christodoulou.

The next day, Mr. Christodoulou went a little higher, he says. At 12:30 p.m. on Jan. 16, Abbas called back: "The Somalis accept your offer. Thank you very much. It's really been a pleasure to work with you on this project."

If you live in Ohio, there's some hope that you can negotiate your way out of foreclosure with a Court-annexed foreclosure mediation program.  See Foreclosure filings rise in five counties at the the Crescent News. Excerpt below.

UPDATE:  Connecticut also has a foreclosure mediation program: See
Success For Mortgage Mediation in Connecticut?

Effective July 1, 2008, Connecticut established a mediation program for foreclosures.  Statistics available for the latest period ending November 30 2008 reveal some interesting detail.  Mediators are working diligently to rescue residential homes from the auctioneer.  However, the program is missing important components.

In the period of July 1st to November 30th, there were 9,917 foreclosures filed in the state, an average of 450 cases per week.  In that period, mediators successfully negotiated 519 cases so that homeowners got to remain in their homes.  This is just slightly over 5% of all cases filed.  Only 380 cases or 3.83% resulted in a modification of the mortgage terms.  Despite the hard work of Connecticut’s mediators, the state’s residents are not being protected from foreclosure.

UPDATE:  You can find a podcast about the New Jersey foreclosure mediation program on the New Jersey Law Blog here!  Here's the New Jersey Court's material for that program.

UPDATE:  Thanks to the ABA Dispute Resolution Magazine for informing us that Minnesota now also has a foreclosure mediation program.  See Minnesota Law Offers Foreclosure Mediation to Homeowners at the Foreclosure Listings blog here.

UPDATE:  Foreclosure Mediation Programs Commenced Under Local Ordinance in Providence, Rhode Island: Providence Foreclosure Ordinance Aims to Protect Renters (excerpt below):

 PROVIDENCE, R.I. (WPRI) - In an effort to protect families from foreclosure, Providence Mayor David Cicilline unveiled two ordinances Monday morning during a news conference in the city's Olneyville neighborhood.

The first proposal, Tenants Protection Against Foreclosures Ordinance , is meant to protect renters from eviction when their apartments are subject to foreclosure proceedings.

A proposed state law, that would have provided similar requirements, failed in the General Assembly last year. Rhode Island Housing Executive Director Richard Godfrey applauded Providence for stepping in to provide that protection.

The second proposal, Foreclosure Mediation Ordinance , would require financial institutions and property owners to engage in mediation with a HUD-approved counselor before moving ahead with a foreclosure.

UPDATE:  Lawsuit stops eviction in predatory lending case in California here.

"We have a court adjunct mediation program," said Schmenk. "The worst thing people can do is do nothing. The best thing is to get an answer filed on their behalf and open up a discussion with the mortgage holder to avoid it going to the foreclosure sale. Often times they can get something worked out with the lending institution short of losing their home."

When a foreclosed home goes up for auction bids start at two-thirds of the property's appraised value.

"Most time the lenders are holding significantly more than that in debt," said Schmenk. "We've noticed in a number of cases things get worked out and they are able to enter into some kind of accommodation that works for lender and mortgage borrower."

Schmenk encourages individuals facing foreclosure to take part in mediation programs.

There was a mediation just last week in Defiance County, said Cheryl Timbrook of the common pleas court. Overall, she said that they haven't had many requests for mediation so far.

Sonnenberg said Henry County has had a mediation program available for foreclosure for a year. She said there has been an increase in requests for mediation since the court started sending out information about the program as well as how to file an answer to the foreclosure summons received by defendants.

"I don't think many people knew about it before," she said.

Chris DelFavero, mediation coordinator for the state's Northwest Ohio Court Mediation Services, said he's seen an increase in individuals asking for foreclosure mediation. Northwest Ohio Court Mediation Services covers Henry, Defiance, Fulton, Paulding, Williams and Putnam counties. The program started last spring.

"With the help of the (Ohio) Supreme Court we established a process for referrals through the (county) clerk's offices," said DelFavero, who added that referrals started to pick up this summer. "Last month I had the most referrals since we started. I had 11 referred this past month. We started with just two or three a month, and now we have two a week."

DelFavero said that many cases involve jumps in interest rates, causing payments to increase or individuals who have seen a decrease in pay.

"Those are the cases we hopefully can resolve and come up with a repayment plan or refinance their rates," he said. "The general problem in the industry was the subprime rates. Some of it is the economy, with people losing their overtime. Sometimes loans are given based on people making $40,000 and then they lose their overtime so now they are making $30,000. They are working, but may have fallen four to five months behind. The lender usually will work with them."

The anger, suspicion and ill will that has characterized the first eight hours of this mutli-party, eight-figure antitrust mediation is about to heightened as I deliver Defendants' terms:  they will pay the settlement agreed upon in six equal yearly installments over three full years without any security to back it up.

Are you wondering what your mediator is thinking at times like this?

Aaaarrrrggggghhhhhhhhhhhhhhhhh!!!!!!!!!!!

That "thought" is momentary, however, like the cry you squelch when the trial judge does something like, say, grant the other side's motion to disqualify your expert witness during the second week of trial. 

I don't have a plan, but I do have ideas.  Just as my suggestion that we use a bracketed offer to break impasse had eventually done just that, I'm already thinking of ways that the parties' most intractable and conflicting positions might move them toward agreement.

"They can wait," defense counsel is saying, "or they can try the case in February and see if they can collect it," to which a principal adds,  "this puts them on our side for a change.  If we make the money we believe we can, they'll benefit too."

"I thought you said you knew you could," I say, laying groundwork for the contingency ahead. 

"Yes, absolutely.  We know we can."

Back in the Plaintiffs' caucus room, the parties and their counsel aren't simply angry; they're flabbergasted.

"They sand-bagged us," says Plaintiffs' counsel.  "We'll report this to the Judge.  They didn't come here in good faith.  They're deliberately wasting our time."  

After some calming discussion about why the cash-poor defense would deliberately pay their own attorney and one-half of my daily fee in bad faith . . . a question to which no answer ever eventuated . . . Plaintiffs and their counsel begin to confidently predict the defense's inability to make a single installment payment.  Plaintiffs believe the defendants have resources - secreted away somewhere - but will never use them to settle this case.

When the temperature of the room has diminished to that of the sun's surface rather than its core, I ask about the possibility of a stipulated judgment in the event of default. 

"In a sum you hope the jury will award you at trial," I proffer.  "If you're right; if they have no intention, nor any ability, to pay even the first installment, you'll be in the same position on default that you'd be in if you prevailed at trial.  And if they're capable of paying, they're much more likely to do so if the alternative is a mutl-million dollar judgment against them."

Though the total sum of the Stipulated Judgment is the main topic of discussion over the following two hours, the parties' insistent conflicting predictions for the future make it all but inevitable they will eventually reach agreement.  If the defense never pays, the Plaintiffs will have their judgment more or less immediately, without the burden of proving it up.  And if the defendants are good for their word that they can service the "debt" the settlement agreement creates, they never have to worry about this potential judgment becoming a reality. 

The Stipulated Judgment as Contingency Contract

As Professor Leigh Thompson of the Kellogg School of Management, Northwestern University, writes in The Mind and Heart of the Negotiator, the contingencies built into the parties' agreement (and the Stipulated Judgment providing for its enforcement) permit them to use their differences to reach agreement - betting on their own predictions for the future and protecting themselves against their worst fears about the other.  As Professor Thompson instructs:

Often, a major obstacle to reaching negotiated agreements concerns negotiators' beliefs about some future event or outcome.  Impasses often result from conflicting beliefs that are difficult to surmount, especially when each side is confident about the accuracy of his or her prediction and consequently uspicious of the other side's forecasts.  Often, compromise is not a viable solution, and each party may be reluctant to change his or her point of view.

Fortunately, contingent contracts can provide a way out of the mire.  With a contingency . . . differences of opinion among negotiators concerning future events do not have to be bridged; they become the core of the agreement. . . . [Parties] can bet on the future rather than argue about it.

Here, the agreement calling for a Stipulated Judgment of sufficient size to deter default, allowed the parties to:

1. bet on rather than argue about their different forecasts for the future;
2. manage their decision-making biases (overconfidence and egocentrism) by building them into the settlement agreement itself;
3. solve the trust problem by creating a contingency (judgment) against the unknown ability of the defendants to perform
4. diagnose the other side's honesty by "daring" him to bet on his own predictions
5. reduce risk through sharing the upside gain (defendant will pay) and the potential loss (defendant will default)
6. increase defendants' incentive to perform at or above contractually specified levels.

See The Mind and Heart of the Negotiator, The Six Benefits of Contingency Contracts, Box 8-2.

There's more, however.  The parties agree to the Stipulated Judgment in principle and sum during hour eleven and we've got three more hours to go.

Stay tuned!

It's 8 p.m. and you've just spent nine straight hours negotiating the settlement of complex commercial litigation with multiple parties that was filed before George Bush first took office.  The case has been up on appeal twice and is now scheudled for trial in February.  All defendants but the final three standing have settled.   Three of the principals have flown in from out of state and two of the attorneys have driven a few hundred miles to Los Angeles from their home towns. 

"Let's just write up the deal points," says Lawyer No. 1, yawning.  "We can write up the full agreement over the long weekend."

Lawyer No. 2 turns to me and says "Judicate West has a form, right?  Let's use that."

Before we go further, let me give you the complete, verbatim language of the online skeletal Judicate West form.

Date:_________________

Stipulation for Settlement


    VS.                           

IT IS HEREBY STIPULATED by and between the parties through the respective counsel or representative of each that the above-referenced case has been settled according to the terms memorialized herein below.  This document is binding on the parties and is admissible in court pursuant to Evidence code section 1123 and enforceable by motion of any party hereto pursuant to CCP section 664.6.                                                                                   

In order to facilitate the above specified terms of settlement, the parties further agree that on or before the          day of          they will execute or change the following:

• Settlement / Release Agreement   Prepared by _____plaintiff_____defendant

• Request for Dismissal     Prepared by _____plaintiff_____defendant

Other____________________________________________________________

All relevant parties must sign below.  Copies are acceptable in lieu of originals.

I know.  You didn't expect the case to settle.  At least that's what I've been hearing you all tell me since hour one of the mediation.  But now we're in hour nine and the basic deal points have been reached.  It's January 15.  Trial is in 30 days.  You have all the parties present and the mediator who has by now sussed out the BS; developed a good working relationship with all sides of the dispute; knows how hard the parties worked to get here; and, is unlikely to let the "devil" in the details sink the settlement ship.

What do you do?

My own answers in next post.

There's a great new LinkedIn Group Mediators and Peacemakers that anyone interested in the dynamics of conflict and its resolution should think about joining.  Recently, a group member posed this question:

How do you as a mediator recognize the signs of cross cultural differences and how do you resolve that type of dispute? How often do you come across this type of dispute?

I was thinking about how I might answer it when I noticed that my colleague and friend, mediation guru Lee Jay Berman, had taken the time to jot down his thoughts, which were better than any I was having, yet precisely expressed my own experience mediating conflict.

Here's what Lee Jay had to say:

I think that some is easy to recognize, like two Korean businessmen walking in with their counsel, knowing that they will have a value system that is based around how Korean businesses conduct themselves, and knowing that trying to overlay that onto an American legal system is going to be awkward for them.

But my belief is that NEARLY ALL conflicts are cross-cultural. The vast majority of what I see as cross-cultural conflicts don't present themselves as such at first glance because they may occur between two people of the same color skin, same nationality, same faith and even same family. I think we risk falling into the belief that cross cultural disputes only exist when we have people of different racial cultures at the table. We sometimes think we can turn our cross-cultural radar off when both people sitting there look the same to us. But to me, most conflict comes from different cutltural perspectives, different expectations based on how we were raised and what they see as "normal" or how people "should" conduct themselves.

The example I live with is that my wife and I were both raised Jewish, both families grew up with Christmas trees in our homes, too. We both went to UCLA, we both love sports, and the list goes on and on. When we married, we had the expectation that we would be relatively the same when it came to living our lives together. But when it came to communication styles, especially around disputes or disagreements, what we each learned from our families (the tribes in which we were raised and where we learned our norms) could not have been more different. Early in our marriage, this created constant cross-cultural disputes, which turned into conflict because of the assumptions we each made about what was the "normal" way to deal with disagreements. On paper, most people would never say that my wife and I were cross-cultural, but in real life, we had a huge cross-cultural rift that was invisible to most, and even to us at first.

The moral of this story is that we must ALWAYS be looking for evidence of cross-cultural issues, even when they don't present with different skin color.

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.

From E-discovery implications of Twitter at Lawyers USA

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I know whereof I speak.

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

The law firms that do this will survive the recession. 

Are mediators being hook-winked by clients who create artificial impasses for the purpose of procuring a favorable mediator's proposal?  Does the mediator's recommendation carry so much weight that the parties are subject to a manipulated mediator's proffer?  Does the mediator become just a tool of a party bent on flim-flam?   Or is all distributive bargaining flim-flam?

Check out John DeGroote's in-house point of view over at Settlement Perspectives and leave a comment.  I've already left two there myself.

I understand some lawyers are settling all their cases with mediators' proposals.  Why is that?  Are they savvier than their colleagues?  Or do they just need the authority of the mediator to "sell" settlement to their clients?

Jump in here or over at John's place.  Whether you're a mediator, a litigator, or a client, we'd both appreciate your fresh ideas. 

Friend and colleague Los Angeles attorney-mediator Linda Bulmash of ADR Services, Inc. advises  us to be consistent in negotiating the resolution of litigation in this month's LACBA negotiation tip.

The Power of Consistency in Negotiation and Mediation
 
When a person makes a public commitment to a course of behavior, the human psyche will push them to follow through with their commitment. For instance we break New Years resolutions because we seldom share them with others and usually do not write them down.

An interesting phenomenon occurs when the commitment is made public or a person pro-actively takes the first step to follow through with a course of action. An interesting research study found that although people are often unsure of their choice of the winning horse at a racetrack, they become much more confident of their choice once they place their bet. They are driven to consistency once they make a public commitment to a course of action.

Therefore experienced negotiators and mediators focus on getting people to publicly verbalize and/or write down each small commitment to follow a certain course of action (e.g. buy a car or resolve a dispute) knowing that once done publicly, it is highly likely that they will believe this is the best choice and will find a way to attain the object of their commitment.

Thanks, as always, for the great advice Linda!  And if you're looking for a local neutral, check out Lucie Baron's dynamite list of L.A. mediators here!

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

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

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

Now, Part I of Negotiating Women!

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

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

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

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

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

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

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

When I read accounts like the one below, I always ask myself, "what trespasses have I suffered that would permit me not to forgive?"

As she sat in her boyfriend’s car, a young Texas woman named Dee Dee Washington was shot and killed — an innocent bystander of a drug deal gone bad. For 14 years, the man who fired the shot, Ron Flowers, never admitted to killing her — not until, that is, Ron was admitted to the InnerChange Freedom Initiative® (IFI), the prison program launched by Prison Fellowship in Texas.

IFI applies principles of restorative justice by confronting offenders with the harm they have done to their victims. During one of IFI’s Victim Awareness sessions, Ron finally admitted that he did commit the murder, and he prayed that his victim’s family would forgive him. He wrote a letter to Dee Dee’s mother, Mrs. Anna Washington, expressing his repentance and deep remorse.

For her part, Mrs. Washington had written angry letters every year to the parole board, urging them to deny Ron parole. But when Ron confessed, Mrs. Washington felt an overwhelming conviction that she should meet the man who had killed her daughter.

Prison Fellowship staff carefully prepared Mrs. Washington and Ron for the meeting. Mrs. Washington finally could ask the questions that virtually every victim wants to ask: “Why did you do it?” “How did it happen?” Ron reassured her that her daughter was not involved in the drug deal. As Ron told her about the day that he killed her daughter, Mrs. Washington took his hands in hers and said, “I forgive you.”

I was in Houston for Ron’s graduation from IFI. As Ron crossed the stage to receive his diploma, Mrs. Washington rose from her seat and walked over to embrace Ron, the man who had murdered her daughter. She then told all of us in the audience, “This young man is my adopted son.”

From the blog of the First Baptist Church of Perryville.

Planning on partying like its 1999 to boast morale in your law firm?  Check out tips offered by Morrison & Foester in  Holiday Parties: Morale Boost but Employer Beware back in December of 1999, advice that is as timely today as it was then.  And remember, there's no conflict management strategy better than conflict prevention.  Here then are MoFo's excellent tips, which is just a small excerpt of the good advice to be found on the link above.

What Can Employers Do?

Short of assuming the role of "Grinch" and canceling the holiday party, what can employers do to protect themselves from liability for sexual harassing conduct during holiday parties?

First, employers should make sure that they have a comprehensive, written sexual harassment policy in place, including sexual harassment training in the workplace. Employers might also re-circulate the sexual harassment policy prior to the holiday party, or send a memo to employees reminding employees to act responsibly at the party and expressing a zero tolerance for harassing behavior.

Second, if the budget permits, employers could invite employees to bring their spouse, significant other, or guest. Although such an invitation will not rule out incidents of sexual harassment, it may reduce the likelihood of such incidents occurring, as employees may tend to act more responsibly and in a less flirtatious manner towards each other if they bring a spouse or special friend to the party.

Third, employers should monitor closely any employees who have a history of harassing behavior, or who have been involved in complaints of sexual harassment. If such an employee is observed engaging in any inappropriate behavior, he or she should be asked to leave the party immediately, and the employer should apply appropriate discipline upon the employee's return to work.

Finally, employers receiving any complaints regarding inappropriate behavior at the holiday party should treat such complaints seriously and should take prompt, effective steps to address the complaints. This includes interviewing the alleged harasser and harassee, talking to potential witnesses, and administering appropriate discipline if inappropriate behavior is found to have occurred. By taking prompt, remedial action to address complaints of harassment, employers can reduce and in some cases altogether eliminate liability for sexual harassment.

I kicked off the Thanksgiving  holiday season last year by having an argument with my friend and neighbor the rocket scientist about extraordinary rendition and the effect of immigrant workers on the economy. 

I knew I'd lost all sense of perspective around midnight as I continued searching for and emailing Tony articles that proved me right, while Mr. Thrifty snored softly beside me, intermittently awakening to say "I thought you said you were going to go to sleep?"

Embarrassing, but true.

This week, tens of millions of people will be sitting down to Thanksgiving dinner with friends and family they haven't discussed politics, sex or religion with for at least one full year.     

For those of you who find you just can't help yourself, I provide the following resources. 

First, I give you Ben Stein's Top Ten Tips for Having a Business Conversation -- appropriately entitled "How Not to Ruin Your Life." They will serve you at the Thanksgiving table every bit as well as they will save you from self-destruction at your next firm retreat.  

If you simply cannot avoid a political conversation this Thanksgiving, do yourself a favor by taking a brief look at the Public Conversations Projects' Eleven Ideas for Making a Hard Conversation Work before the relatives arrive. 

Finally, as much for myself as my for readers, I give you my own personal top six tips for Thanksgiving Day conversation.    

1.  Before diving in to a spirited dialogue about the use of fetuses for stem cell research with your second helping of mashed potatoes, ask yourself whether you are emotionally ready to resist the strong pull to hit your conversational partner over the head with a turkey leg.  If not, open your mouth only to say something kind or grateful or to shove another helping of stuffing into it.  

2.    If you just can't help yourself from responding to Aunt Gertrude's (somewhat drunken) assertion that "torture is too good for the terrorists at Guantanamo," any of the following will do.

Can I pour you another drink?

Uuh huh, uh huh, uh huh

go on

tell me more

how do you feel about that?

I couldn't have said it better myself; do let me call you a taxi.

3.  For the academically minded,

I have a couple of dozen articles on that issue.  If you'll give me your email address, I'll pass them along to you.

4.  For the cousin from Alabama, 

I'd love to get Rush Limbaugh's point of view on that -- please do drop See I Told You So  by the house before you leave for Montgomery tomorrow.

5.  Avoid stereotyping people from Montgomery, Alabama.

6.  As the Public Conversations Project advises,

Thinking before speaking is a good idea.

Have a great Thanksgiving and remember --Ben Franklin thought the National Bird should be a turkey! 

Think twice. 

Then think again and offer Aunt Gertrude another piece of pumpkin pie.

Click here for more Cartoon tips from Slowpoke thanks to David Giacalone of f/k/a.

Some attorneys and mediators make light of the power of the apology ("it's only about money").  My education, training and experience consistently suggest otherwise.

Today, we learn a lesson in heart-felt apology from Larry Bodine for a post I hadn't seen, but which Bodine himself admits was anti-Semitic.

"Elevator Pitch" Post Deleted I sincerely apologize for the crude and offensive "Elevator Pitch" post I put online last week.  In the clear light of morning, it is clear that it was anti-Semitic and repellent.  I want to thank all the people who commented and called me about it; I listened and took what you said to heart.

If you read on here you'll see that Bodine did not simply say "I'm sorry."  He removed the admittedly offensive post; disowned it; and, empathized with those who found it offensive by sharing his own family's WWII imprisonment story.

As my Second Track International Diplomacy Professor Brian Cox has written in his book Faith-Based Reconciliation

Words that heal include expressions of caring, concern, gratitude and affirmation.  [I]n demolishing the walls of hostility, we must be prepared to examine our own pattern of spoken words and embrace the practice of ethical speech. . . .

Because Bodine himself admitted the anti-Semitic nature of his post, it falls into the category of an identity-based conflict with some or all of his readers.  Though speaking from a religious or "faith-based" viewpoint, I always found Cox' prescriptions for resolution to work equally well from the point of view of secular humanism.  As Cox explains:

A faith-based reconciliation framework applied to an identity-based conflict . . . consists of six basic elements:  imparting moral vision, building bridges between estranged groups, a peace accord, advocacy for social justice, political forgiveness, and healing deep collective wounds.

More particularly, Cox recommends the following specific steps:

1.  Sharing life journeys and building common ground.

2.  Sharing perceptions of the conflict.

3.  Engaging in problem solving.

4.  Sharing how one has caused offense to the other.

5.  Exploring each community's narrative of history and perception of historical wounds.

If you read Bodine's spontaneous apology, you will see all of these elements contained in it.  This is not surprising because apology and attempts to re-build interpersonal bridges are hard-wired into us as toddlers.  As I wrote in "Shame by Any Other Name,"

Shame . . .  "acts as a powerful modulator of interpersonal relatedness and . . . ruptures the dynamic attachment bond between individuals." 30  When an individual has broken this bond, he wishes to recapture the relationship as it existed before it turned problematic. 31 Toddlers shamed by their mothers, for instance, naturally initiate appeals to repair the momentary break in the emotional bond resulting from the shame-inducing behavior. 32 This process is called self-righting. 33 It is natural and universal. 34 The shamed toddler reflexively looks up at and reaches toward his mother. 35 Even a preverbal child will spontaneously express this need to be held in an attempt to reaffirm both self and the ruptured relationship, to feel restored and secure. 36

A healthy and responsive mother accepts and assuages the child's painful feelings of shame, enabling the toddler to return to a normal emotional state, one in which love and trust are ascendant. 37 If the caregiver is "sensitive, responsive, and emotionally approachable," especially if she uses soothing sounds, gaze and touch, mother and child are "psychobiologically reattuned," the "interpersonal bridge" is rebuilt, the "attachment bond" is reconnected, and the experience of shame is regulated to a tolerable emotional state. 38

This may all seem excessively academic.  The point is that we all trespass on the feelings of others; those feelings are critical to our connection with one another; our connection with one another is fundamental to our individual well-being and our survival as a species; the urge toward reconciliation is therefore natural, as are our desire to be forgiven, our spontaneous expressions of remorse, our attempt to explain and normalize our bad behavior (we are all fallible and we have all suffered harm)  and our fellows' willingness to forgive, particularly when we bare ourselves and our histories to one another in the course of our effort to re-establish what joins us and to move beyond that which divides us. 

And for that lesson, we owe thanks to Larry Bodine this evening.

I have recently been asked by several lawyers to write a few posts on mediation and negotiation terminology not only because some attorneys are unfamiliar with these terms, but also because different mediators and negotiators use them to mean different things. 

Mediators, lawyers and negotiators who read this post are invited to add, correct, object, or suggest further refinements and to add their thoughts on further strategic and tactical uses and perils of the impasse-busters we discuss today - the bracketed offer and the mediator's proposal.

And because my readers may find this post as dry as bones, I once again offer the X-rated "Negotiation Table" as pretty #%$@ true and funny  (think Ari Gold). 

Bracketed Offer:  Party A makes an offer to bargain in the zone he wishes to see the negotiation move to.  This is often used when neither party wishes to step up to the line of probable impasse and it can also be used to re-anchor the bargaining zone.  Quite simply, Party A offers to bargain in the range of, say, $2 million and $3 million.  He offers to put $2 million on the table if party B is willing to put $3 million on the table, i.e., "I'll offer to pay you $2 million if you'll offer to accept $3 million to dismiss your suit."

If party B does not accept the bracket, party A will not be "stuck" with having actually placed $2 million on the table when the next exchange of offers and counter-offers begins.

Responding to a Bracketed Offer:  Party B can:  1.  respond with a counter-bracket, i.e., I'll make an offer to accept $3.5 million in settlement if you'll put $2.5 million on the table; or, 2.  refuse the bracket and ask for an unbracketed counter.

Mediator's Proposal: 

The basics:  the mediator chooses a number for the parties, making an "offer" to settle for, say $2.3 million which the parties are free to accept or reject.  It is a double-blind "offer."  If either party rejects the "offer" neither party knows whether the other accepted or rejected.  Acceptances are communicated only if both parties accept, in which case they have a deal.

The circumstances:  The parties should seek a mediator's proposal only when they have reached a hard impasse.  A hard impasse exists when both parties have actually put their true bottom line on the table or their next to the bottom line and they see no hope of it closing the deal.

The purpose:  Both parties believe they could convince their principal  to accept a deal that is more than they wanted to pay or less than they wanted to accept, but they cannot convince their principals to put $X on the table or accept $Y.  They hope to use the authority of the mediator to sell the deal to their principals.  If they are the principals, they are willing to settle for a number lower or greater than planned but not willing to close the bargaining session having made such a concession, which would have the effect of setting the floor or establishing the ceiling of all future bargaining sessions.

The Mediator's number:  I do not know whether there is a general practice among mediators about how they choose the number proffered.  When parties ask me to make a mediator's proposal (I rarely recommend one in the first instance) I explain my practice as follows:  When I make a proposal I am not acting as a non-binding arbitrator or early neutral evaluator.  In other words, my proposal is not a reflection of the value of the case.  The number I propose will be a number that I believe the Plaintiff is likely to accept and the Defendant is likely to pay.

In rare instances, the parties wish to continue bargaining in the event a mediator's proposal is not accepted by both parties.  I have permitted this in a few circumstances after explaining to the negotiating parties that it often causes resentment on the other side because they feel as if the party who wishes to continue negotiating is unfairly attempting to use the mediator's number as a new bench-mark from which to bargain. 

I highly recommend against continued bargaining after the rejection of a mediator's proposal on the day of the mediation.  It should serve as a hard stop because the parties respond to it as an ultimatum.  That's part of its power.  Take it or leave it. 

Just as you would not continue bargaining after indicating that you were putting your last dollar on the table, you should not continue bargaining (during that session) after the mediator has, in effect, put both parties' anticipated bottom lines on the table for them.

There appears to be no small amount of blame to spread around for the Republican's loss at the polls, much of it centering on Sarah Palin, as if she hadn't been hand-picked and thrown out to American conservatives as a "Hail Mary" pass.

Because scape-goating gives rise to oodles of litigation every year, let's talk briefly about having difficult conversations in which everyone "takes their part" in the loss experienced, failure suffered or mistake made.  

Time to pull out your hopefully dog-eared and battered copy of Difficult Conversations: How to Discuss What Matters Most by Douglas Stone, Bruce Patton, and Sheila Heen, reviewed by the good folks at BeyondIntractability.com not too many years ago.  As the Conflict Research Consortium Staff reviewers wrote, Difficult Conversations recomments that we:

start conversations from the perspective of a "third story" that describes (or at least acknowledges) the difference between the parties views in neutral terms. The opening should then invite the other party to join in a conversation seeking mutual understanding or joint problem solving.

Listening is a crucially important part of handling difficult conversations well. It helps us to understand the other person, and the feeling of having been heard makes the other more able to listen themselves. The key to being a good listener is to be truly curious and concerned about the other person.

Techniques that can help you show that care and concern include asking open questions, asking for more concrete information, asking questions that explore the three conversations, and giving the other the option of not answering.

Avoid questions that are actually statements. Do not cross-examine the other. Another technique is paraphrasing the other person to clarify and check your own understanding.

Acknowledge the power and importance of the other person's feelings, both expressed and unexpressed.

Each person must recognize that her views and feelings are no less (and no more) legitimate and important than anyone else's, and she is entitled to express herself. Once you have found the courage to speak, start by saying explicitly what is most important to you. Do not use hints or leading questions. 

Share the information, reasoning and experience behind your views. Help the other person to understand you by having them paraphrase, or asking how they see it differently.

Blame statements should be reframed in terms of contributions [of all parties to the trouble at hand]. You can't move the conversation in a more positive direction until the other person feels heard and understood."

Naming the dynamic. When the other party persistently puts the conversation off track, for instance by interrupting or denying emotions, explicitly name that behavior and raise it as an issue for discussion. This makes the other person aware of the behavior, and it brings out more unexpressed thought and feelings.

Problem solving is the final step. First, remember that it takes two to agree. The other party needs to persuade you just as much as you need to persuade her. Gather information and seek missing information. Ask what would persuade the other person.

Tell them what would persuade you. Ask them what they would do in your position. Try to invent new options for dealing with the problem, and consider what principles could guide a fair solution.

When the parties cannot find a mutually acceptable solution, each must decide whether to accept a lesser solution, or to accept the consequences of failing to agree and walking away. When a person does walk away, they should explain why, describing their interests, feelings and choices.

Re-framing the GOP's loss?  How about this?  The Dems and the GOP are natural correctives to one another every four years.  Things change.  Like the economy.  And the culture.  New generations arise to replace the old ones.  We evolve.  We also fail, stumble, falter, lose courage, miss opportunities, and resist change.

We Americans believe in the benefit of adversarial processes to course correct; to shine a light on the problems we might otherwise blind ourselves to; and, to see which ideas survive the harsh illumination of debate.  The transition of power from one party to another is the way we do things.  Instead of casting blame, we might all take a look at our personal and organizational contribution to things as they currently are -- which is none too good for anyone. 

Bottom line?  There's simply no advantage to be achieved by blaming Sarah.

by Guest Blogger Martin Golder

Empathy is not only a central tool In conflict resolution, but also a way of being.  And yet I remember that when I started in my first mediation course I was unsure of what it was. It even took a while to learn the difference between empathy and sympathy. In my search for a definition I encountered an old joke that I often now use to start a discussion on empathy.

There was a rich woman who wanted to have her portrait painted by a famous young artist.  She called the artist to her mansion and instructed him that she would like her portrait to be painted with empathy.  The young artist arranged for her sittings and commenced the work.  He would not let her see the painting until it was completed as he rejected any artistic intervention.  Finally the day came for the unveiling.  The family gathered round. The artist pulled back the cover.  And there was a gasp from the assembled group.  The portrait was magnificent, however there was a man standing behind the rich woman with his hand over her shoulder and stuck down the front of her dress.  The rich lady gasped, composed herself and said ’Young man, what is the meaning of this?’

The artist replied ‘Ma’am, I must confess that when you asked me to paint your portrait with empathy, I did not know what empathy was.  So I looked it up in the dictionary and the definition said ‘A fellow feeling in one’s bosom’.

Indeed!  A fellow feeling in one’s bosom is a fine definition of empathy if a little ambiguous.

Having come up with a definition I still then had a tremendous amount of difficulty learning how to actually achieve this ‘fellow feeling’. I would find myself at the mediation table with the parties whining at each other over some trivial matter (when compared to life, death and global warming) and I would be sitting there thinking ‘Get a life buddy. Stop whining’.  At the same time I would be saying  “That must have been really difficult for you to go through that experience” 

“Yeah! So right dude” would be the reply as the party felt heard.

It is amazing how the mechanical tools of mediation work even without the feeling.  I called it ‘mechanical empathy’. After each mediation I would write up a self evaluation and each time for several years I would comment to myself on my lack of empathy. After all if I had walked a mile in his shoes, maybe I would be whining just as much.  (Or as the old joke goes, I would at least have his shoes and he would be a mile away).  This was my burden (not a very heavy one, I give you), humour kept overcoming empathy.  It may be a British thing, my heritage I thought.  Crack a joke whenever an emotion looks like taking over.   

My mediation mentor once told me that I had the emotional development of a 2 year old.  When I recounted this to a group of women students they replied that they would have given me 12 years old and that’s about average for a guy!

So how to get from an EQ of a 2 year old to the ability to experience the real empathy that is the hallmark of a successful mediator and indeed a successful human being?

In a word ‘listen’.  That’s really the whole story. Just listen. Shut up and listen. Keep your opinions to yourself and just listen.  Gradually it becomes a habit.  Gradually you even understand what you hear.  Gradually as you really begin to hear, respect grows. This can be difficult at times especially if someone is shouting and using abusive language. However in the act of active listening the talker (or shouter) is calmed.

A few years ago during a mediation I experienced two parties transform from hissing in anger at each other to reconciliation in a moment. The trigger was an apology.  Much has been written on the power of apology and it is indeed one of the most powerful forces for transformational good.  The experience led me to look for other triggers that might cause transformation.  Silence and humour and tears all have power.

This search led me to explore some of the links between mediation and human spirituality. I learned to meditate using the Vipassana tecnique.  The ability of meditation to loosen the ego’s grip became a powerful tool to prepare myself for mediation sessions. The fact that a single letter separates meditation and mediation seemed somehow prophetic.  I learned an ancient learnable skill called Metta Bhavana.  This loosely translates as ‘Loving Kindness’ and is practiced by the conscious projection of good will.

One day as an unsuccessful mediation was winding up and I was preparing to send the parties out into the unresolved world with at least some encouragement about the good work that they had done in the mediation. I lent forward with good intent and focused body language and said

 

‘You know, I really feel for both of you.  This conflict does harm equally and I feel badly that you have been unable to come to a resolution today. I do however believe that both of you made significant efforts to get to a solution and that you each understand better what motivates the other.  And so as you leave please feel easy on yourselves and know that the work that you did here today was good work and may help you reach a solution soon.'

There was a silence. The energy between us all was real and intense. It was like a hug between warring relatives at a family funeral.   Then they sat back down and quickly settled.  I was amazed.

I tried the same kind of focused good will in other mediations and always found that it moved the parties forward. I continued my research into the roots and practice of the process.  The Magi who traveled to be at the birthplace Jesus did so saying “Peace on Earth and good will to all.”  They practiced this ancient skill of Metta Bhavana,  the conscious projection of good will, compassion and loving kindness.  The term ‘Pax Vobiscum’ in the Catholic liturgy is an expression of the practice.

Metta Bhavana is a five-stage skill that can be learned.  The first stage is to think of yourself in a kind and loving way.  This thought can then be extended to a person who  you like. The third stage is to think of a neutral person and the fourth and perhaps most difficult stage is to project loving kindness (peace and good will) to an enemy or difficult person.  The final stage is to expand the projection of good will to all.  There are many courses in the process often associated with Buddhism. There are even do it yourself web sites with exercises to teach Metta Bhavana.


The success I experienced with this technique made me want to share it with other mediators. I sent an abstract for a workshop to a conflict resolution conference and presented the technique to those who were interested.  The workshop was well received.  The same desire to share my experience led me to write this article.  I am beginning to believe that perhaps you need no other tools. If you can enter a space with absolutely zero judgment and project loving kindness the space will shift magically and to the benefit of those in it.  Indeed the word ‘magic’ is derived from the Magi.

The abstract for the course was Magic in Mediation

Role playing and case study of the use and impact of the transformational techniques that can literally move the participants through the looking glass into places that they never thought possible. There are many definitions of the nature of magic but I return to the techniques used by the followers of Zoroaster, the Magi, who were able to turn events to advantage by the conscious use of well intentioned will power. Compassion and Loving Kindness (Metta Bhavana) are the central tools. While these tools are useful to practitioners they are of course also central to a successful life.

This article has grown out of this workshop presented at the Conflict Resolution Network conference ‘Cultivating Peace’ in Winipeg, Canada in June 2006.

Martin Golder is a mediator, arbitrator and architect living in Victoria, British Columbia, Canada

Guest Blogger - Susan Cartier Liebel

First, I'm honored to be guest blogging while Vickie is away campaigning her heart out until November 4. I'm also a little intimidated to be here as I can't speak on negotiation with the authority Vickie can, after all she's a distinguished and honored expert on the topic.

However, I can speak on negotiation as a lawyer and a human being dealing with every day life. So in this post I will speak to both the skill sets which lawyers must employ every day of their lives both professionally and personally and the strange phenomenon which exists when lawyers are 'off' the job but are still known to be, or deliberately make others aware of the fact, they are lawyers. 

A lawyer in many ways can never really step away from their professional reputation unless it remains hidden from those we are negotiating with.  And you know exactly what I'm talking about.  How many times have you negotiated with a vendor or customer service representative and when you feel you are losing ground or the other person is not taking you seriously you pull out your trump card, "Well, I'm a lawyer."  What are you expecting?  Be honest.  You are expecting them to take you seriously now with the unspoken threat of legal action if they don't some how immediately capitulate or offer some type of concession to your demand.  You've implied you have this superior intelligence and set of skills and you are not afraid to use it to threaten their job.  How many times have you subtly threatened the same in a letter for a personal situation simply by using your business letterhead?  Gotcha. 

Well, what happens when the reverse is true?  When someone you are negotiating with uses your status as a lawyer to escalate the situation?  They don't treat you in the manner they would a friend or neighbor because they  assume you will be aggressive and immovable on a matter precisely because you are a lawyer?   They fire the first volley and create a situation where you have to defend yourself first by saying, "I'm not here as a lawyer. Why are you threatening me with legal action?"  You are ultimately responsible for de-escalating a situation simply because they know you are a lawyer.

This very thing happened to me with a neighbor and I had to literally work backwards from the implied threat of a law suit simply because I am a lawyer. And in it are some valuable negotiation skills I want to share with you.

I've lived in my home six years.  Both my neighbors are original owners having been there for more than 35 years.  In between my home and my neighbor to the right are 40 foot pine trees and several 60 foot hickory trees which are quite old.  My neighbor approached my husband and said he was going to take down two of 'his' trees, one of which sits on the edge of my property in an 'island' of trees bordered with decorative brick.  When I heard he wanted to take down one of 'my' trees I went to his home and asked why he wanted to take down one of 'my' trees?  He proceeded to tell me it wasn't my tree.  "Then why is it in 'my' island?"  "Because I told the original owner I had no problem with her using her decorative brick around it for aesthetic purposes.  But now I want to take it down."

Well, while this neighbor is a friendly guy, I don't believe he gives away freely that which is his.  He didn't like the leaves blowing into his yard and thought he could get away with claiming it was his.  I asked him if he would show me the property card because I really wasn't sure this was his tree and I really enjoyed the tree. (Up to this point all was done in a very nice, cordial, friendly way.)  His manner immediately changed, "I'm not showing you anything. I don't care if you don't want that tree coming down.  It's mine and it's COMING down.  And I know you're a lawyer and you can sue me if you want.  It will come down when you're not home.  And if you think that's going to bother you, wait till I take down all those pine trees in the spring."  He's screaming this as he points to the beautiful natural fence between our homes. And he has now also upped the stakes.

So, let's talk about the practical aspects of this.  First, he's a neighbor.  Second, he could very well take the tree(s) down when I'm not home and no matter what happens in any litigation, the tree(s) are gone and irreplaceable.  Third, I had no proof, just a very credible suspicion the tree was not his.  Fourth, he was taking the tree down within a week.  Fifth, he was immediately hostile and assumed because I was a lawyer I would threaten suit and use my magical 'superiority' that lay people fear in order to bully him.  He seemed to have taken all options for discussion off the table simply because I was a lawyer. He attacked first.

It would have been very easy to escalate this.  Here's what happened instead:

Me:  (Jack)...let's slow down here.  What's really going on?  This is not like you.  There's more to this.  Is something else bothering you?
Jack: No, nothing.  This is my tree and I'm taking it down whether you like it or not.
Me:  Jack, let's get away from the tree for a minute.  You're really edgy.  I'm not used to seeing you like this.  Is everything, OK?
Jack: (Pause)....Well, my aunt is in the hospital and it doesn't look good.

(This went back and forth for a while as he slowly revealed his aunt's condition, a woman who had raised him, and it was impacting him deeply.)

Me:  Now it makes sense to me why you're so on edge.
Jack: (He brings back the topic of the tree.) "Step on my porch, Susan and you'll see the top of that tree is dead.  I'm willing to pay to take it down."

All of a sudden, there is a subtle acknowledgment the tree isn't his.  But now he has also pointed to a reason I would want the tree to be taken down.  He would pay for its removal now or I could pay several hundred dollars for it later.  He is trying to find consensus..or reaching across the table.

The end result is I agreed to let him pay to take the tree down.  He did all the prep work around the tree and we both interviewed and agreed to the right tree service. After the tree was removed he told my husband he would not take down the pine trees that separated our properties. (I believe, although he planted those trees, he planted them with the agreement of our home's previous owner to do so on the joint border...a little tidbit I remembered from a previous conversation.)  But this gave him a chance to be gracious and conciliatory.

The end result:  I got what I wanted, someone else to pay for the removal of a tree which apparently was dead on top, no more threat of removal of the pine trees, no need to spend money on a property survey, either. He got what he wanted, the 'dirty' tree removed while we both got something else, preservation of our neighborly friendship and working together as a team on joint matters.  This 'partnership' has since extended into other neighborly issues like shopping for home heating oil as a group to have better negotiating power, etc.

It's very hard to un-ring the bell when someone assumes because you are a lawyer you are incapable of not acting like a lawyer in a situation where both parties need to feel like they are on the same footing.  And given most lay people's perceptions of lawyers and the casual way lawyers use their 'trump' card, is it any wonder.

At the heart of negotiation is listening twice as much as you talk and the ability to step into another person's shoes with genuine compassion.  In our 'negotiation' everyone walked away with more than what they wanted without litigation in spite of the fact one of us was a lawyer. This neighbor got a chance to reclaim his good neighbor status because I took the time to figure out the thorn in the lion's paw.

Susan Cartier Liebel is a national coach/consultant working with newly minted or well-seasoned lawyers who want to create and grow their solo practices.  She authors the popular blog Build A Solo Practice, LLC and is the creator of Solo Practice University - a revolutionary web-based educational and professional networking community for lawyers and law students.
 

There's nothing like getting a new Harpers in the mail to upset my idealistic dreams of a new America flourishing under an Obama administration.  Here's the opening November '08 Harpers slap-in-the-face for dreamy liberals like me:

After eight years of catastrophic Republican misrule—in the midst of economic crisis and rising unemployment, in a nation plagued by ruinous energy costs and inflation, bank failures, and staggering public and private corruption—an eloquent, charismatic, intelligent Democratic candidate was locked in a statistical tie with a doddering old hack whose primary argument for his claim to the most powerful office on earth is that he was shot down over Vietnam and tortured for five years. Indeed, this remained the case even after McCain demonstrated beyond all doubt, in his impetuous selection of a ludicrously unsuitable vice- presidential candidate, that he lacked the good judgment that is the primary qualification for the job. If the Democratic Party loses this election, then it should forever concede the presidency.

Ouch!  I read this magazine for the same reason I watch Fox News.  To upset my own comfortable ideologies.  That's the trouble with us liberals -- we're always fretting about being fair, when, according to Harper's Roger Hodge we're just a big bunch of conflict-avoidant pussies.  

Conflict in politics is not a metaphor, and as with any fight, the audience is likely to get involved. That is the essence of politics. A campaign that decides in advance that voters are tired of negative campaigning, that they are sick of partisan attacks and will respond only to positive messages, has stupidly left the field of battle. The people who truly dislike political combat are presumably among the 95 million who do not vote. Senator Barack Obama, a sophisticated and intelligent man with sophisticated and intelligent advisers, promises to change Washington, to eliminate the tone of partisan rancor, to foster a new spirit of brotherhood and cooperation. Poor lamb, he wishes to lie down with lions. But the Kingdom has not come.

The answer? 

Attack!!

Unfortunately, the sovereign voter can do little, on his own, to remedy the situation, especially if he happens not to live in Florida or Ohio. Yes, he can make a campaign contribution, a slightly more effective form of voting, but unless the Obama campaign decides to wage a more creative and destructive war, casting monetary ballots remains an empty gesture. (Of course one can also join the battle personally, perhaps by repeating the rumors about John McCain’s Alz heimer’s meds or the Sarah Palin sex tape.) Ultimately, we return to the problem of political will, to the Democratic Party, to the commitment of its party bosses to prevail, finally, in this election.

We can hope for change, that the Republicans will make some fatal error, or that Obama’s party will fight hard enough to persuade a decisive number of “low information” voters that John McCain is not only a liar but a menace to our children’s future. Recent precedents, however, are not encouraging. The Republican Party lied its way through eight years of criminal misrule while Democrats mostly just cowered in a back room. Now, faced with a clumsy deception about whether Sarah Palin sought an earmark for a small town in Alaska, Obama exclaims, “Come on! I mean, words mean something, you can’t just make stuff up.” Oh, yes, Barack, we can.

In the same issue that suggests we dirty our hands by calling John McCain a liar and the Bush administration's "misrule" criminal, we read that Obama is a detached blank screen upon which voters can project any quality they like (or dislike) because . . . well . . . his mother was lonely and so is he:

Obama wants to believe in the common good as a way of providing a fullness to experience that avoids the slide into nihilism. But sometimes I don’tknow if he knows what belief is and what it would be to hold such a belief. It all seems so distant and opaque. The persistent presence of the mother’s dilemma—the sense of loneliness,doubt, and abandonment—seems palpable and ineliminable. We must believe, but we can’t believe. Perhaps this is the tragedy that some of us see in Obama: a change we can believe in and the crushing realization that nothing will change.

See The American Void by Simon Critchley

This is usually the point at which my own McCain-supporting mother breaks in with "honey, you know, you can think too much."  And after years, decades really, of finding this refrain irritating, I finally agree with her about the thinking part if not about her taste in Presidential candidates.

Like the Obama caricatured in this month's Harpers as an ineffective dreamer as intent on replacing his deceased mother's lack of faith with liberal-Christian-do-gooding as Oliver Stone suggests "W" was intent on finally pleasing Daddy, I simply choose to have faith in the stated values of the Democratic party.  I continue to believe that over time, we can do better as a nation through consensus and problem-solving, collaboration and compromise, than we can by adopting the tactics of the world's strong-arm leaders and disciples of discord. 

The Good News

Assuming that the guy I think Obama is -- highly educated, articulate, and idealistically dedicated to serving the common welfare -- actually exist on the political scene (and I will not give up this faith any more readily that others would renounce their own religions) I believe them to be riding the bow-wave of transformation.  I have staked my professional life on this faith in my fellows' ability to work toward the common good, abandoning the extremely lucrative practice of legal battle in exchange for the far less financially rewarding practice of collaborative negotiated conflict resolution. 

Who are the real cowards here and who the heroes?  People who refuse to negotiate face-to-face "without pre-condition" ("we won't discuss settlement unless they're willing to put $10 million on the table first") and without the protection of several layers of legal counsel?  Or those who are willing to test the rectitude of their "position" by sitting across a table with their opponent to frankly discuss their mutual role in whatever commercial or personal catastrophe flowed from the intersection at which their (mis)fortunes collided? 

The social psychologists tell us that we live on the razor's edge of individual survival (me, me, me, me, me) and the collective good.  It is our great challenge as a species to live that which we cannot refuse to understand -- "we" cannot drill a hole in "their" side of the boat without sinking all of us.

So I will continue to brave reading Harpers (which discourages me) and risk the challenge to my world view of Fox News commentary (which so often enrages me) on the off-chance that my religion -- tolerance; compassion; collective effort; empathy and the like, has more staying power than the religion of hate; discord; and, denial. 

And I will also continue to believe that none of us could ever possibly be right.  

Only that we could potentially be happy.

Ending on a positive gaping void note with Hugh McLeod's greatest to date contribution to humanity:  How to Be Creative.  You can catch him on Twitter here.

I watched the debate last night with people who support my candidate.  They all also happened to be mediators, so they understand concepts like confirmation bias --the tendency to search for or interpret new information in a way that confirms one's preconceptions and avoids information and interpretations which contradict prior beliefs. It is a type of cognitive bias and represents an error of inductive inference, or as a form of selection bias toward confirmation of the hypothesis under study or disconfirmation of an alternative hypothesis.

I've been Twittering (shoot me! this is addictive behavior).  But all behavior has it's "up" side.  The "up" side to following my Twitter network's running real-time commentary of the debate was the exposure of my own (and my friends') confirmation bias.  I have both McCain and Obama supporters in my network and it was as if the two groups were watching entirely different debates.  And they were. 

Because nothing is objective.  Let me repeat that.  Nothing is objective.  Everything we hear, see, touch, smell and taste is filtered through our entirely personal experiences, the collective or "received" reality of the society (micro or macro) in which we live, and interpreted based upon those experiences, which are further complicated by universal cognitive biases and particular core beliefs (our "operating principles").

If nothing is objective, there is no truth beyond that which one has faith in. ("faith is the substance of things hoped for, the evidence of things not seen.")

Yes, I know, the scientific method.  But you and I don't test our beliefs, opinions, perceptions and conceptions by the scientific method.  We hear, we see, we smell, we taste, we touch and we respond.  We opine.  We believe we are right.

So I said to my friends in the middle of the debate, "we're an example of "confirmation bias" and they took issue with me. And I let it go because I wanted to listen more than to impose my own view of our collective experience.  And I was Twittering, lord help me, with some people who didn't share my bias.

I missed statements made by McCain entirely.  It was if I hadn't even heard them.  I was listening to confirm that which I already believed, which means I screened out what didn't fit my view of McCain or Obama and highlighted those statements that confirmed my existing beliefs.

This is what happens every time you try a case to a jury.  It's why the little "g" god of the market place created jury consultants.  It is also what happens everytime you try to settle litigation.  Litigation raises confirmation bias to holy writ.  Which is why the little "g" god of the market place created mediators.  Why?  Because the client has filtered his opening story through his own subjective experiences, which we, the litigators, devote ourselves to proving by cherry-picking the facts that conform to those experiences and disputing all those that don't.  By the time the parties and their counsel get to me, they're often in different galaxies.  And I need to help them remember, or realize for the first time, that their opponent has woven the disparate facts of "what happened" into an entirely different story, and has done so without "lying" about those events.  Just as importantly, the parties come to understand that a  jury might well "buy" their opponents tale as the "right" one.

Here's the more important point to getting a better deal:   your opponent is often nearly as interested in your acknowledgement that his version of the events might be as accurate as yours as he is in  "winning" the case.  When (or if) the parties clear this hurdle, they can get down to serious horse trading, benefitting both. 

So, forget the pundits.  If you believe your guy "won" last night, it's probably equal parts a measured opinion and a peculiarly subjective experience, one that you do not even know you've tailored to fit your own view of reality.

I like Obama because I believe he acknowledges this from time to time.  Not always.  But often enough to make me feel comfortable with him in a White House.  Am I right?  How could I possibly be?  We won't know anything until one of these men moves from campaigning to governing.

Lord help us all.

Bertolt Brecht wrote, "what times are these/when a poem about trees is almost a crime/because it contains silence/against so many outrages."

The same can be said for a post about negotiation strategy and tactics.

My friend and colleague, mediator and AAA arbitrator Deborah Rothman just returned from a very short vacation to Paris and the view from Europe is one of fear and growing alarm about the manner in which our political process has degenerated into hate-filled cries from the crowds at Republican rallies (see Rage Rising on the McCain Campaign Trail).

A waiter at a small bistro near the Champs-Élysées confided his fear that the  "nuclear code" could fall into the hands of a short-tempered or vindictive occupant of the Oval Office, a concern that I admit had been absent from my own consciousness before that moment.  Other Europeans with whom we spoke were mystified that more Americans did not exercise the right to vote, particularly in an election as important to the future of the world economy as this one is.

I returned from Europe more worried more about unruly mobs fueled by anger and fear than about the "smears" on Obama (against which you can take action here if you're so inclined - Truth Fights Back).

If the 20th Century taught us anything, it is this: we are all capable of genocide, and its lesser form, hate crime.

The Holocaust of European Jews

The Armenian Genocide

Lynching in the United States

Ethiopia's Genocide of the Anuak (21st century)

The Genocide of Native Americans in the United States (17th-19th Century)

The Cambodian Genocide

The Rawandan Genocide

The My Lai Massacre (Viet Nam War)

Bosnia-Herzegovina "Ethnic Cleansing"

The "Arab"/"African" Violence in Darfur

. . . . too many more to catalogue

WE ARE ALL CAPABLE

The Stanley Milgram Experiments (response to authority)

The Stanford Prison Experiment ("guards" abusing "prisoners")

RESOURCES

See The War Against Despair is Up to You New Media at Awaken Your Superhero thanks to Susan Carter Liebel on Twitter here.

(right:  my own blurry iPhone St. Chapelle photo where we heard a string sextet play Bach, Vivaldi and Mozart  this past week - sublime) 

Theodore Roosevelt on Mob Violence, Campaign Speech and the Rule of Law (9/28/1900 NYTimes report of "Governor" Roosevelt's response to mob violence in Roosevelt-Bryan campaign)

Tips on Avoiding Inflammatory Language from beyondintractability.org

Convention on the Prevention and Punishment of the Crime of Genocide here

Genocide Prevention Task Force (U.S. Institute of Peace)

United Nations Action Plan to Prevent Genocide

Genocide Prevention (U.K.)

Hate Crime Prevention Tips

The Nature of Hate (.pdf excerpt here) or buy the book here

Constructive responses to extremism from beyondIntractability.org

Mediating Evil, War and Terrorism:  The Politics of Conflict (by Ken Cloke)

Conflict Revolution by Ken Cloke and my review here

Constructive responses to terrorism from beyondintractability.org

Hate Crimes Research Network

PLEASE ADD YOUR OWN RESOURCES

Geoff Sharp at Mediator blah blah today asks the first academic question with which I was forced to grapple in my LL.M studies at the Straus Institute -- can you cherry pick transformative mediation techniques to settle commercial litigation?  

I realized I had re-entered the academy the day Joe Folger -- author, with Baruch Bush, of The Promise of Mediation -- said only transformative mediation "works" and its principles  must be strictly followed. 

(drawing courtesy of Charles Fincher at LawComix.com)

Why was this an echt academic moment?  Because the course I was taking from Joe -- "Ideologies of Mediation" -- had, before that moment, been suggesting that all ideologies interfere with durable, party-satisfying resolutions.  Now it seemed the problem wasn't with ideology itself but with the wrong ideology.  Hmmm, felt like law school.  Forget Pennoyer v. Neff.  It's all about this Buckeye case with the exploding boiler.

At the time, my litigator husband was skeptical of all mediators and all mediation techniques.  We took a long walk down a Malibu beach after one of Joe's classes while I tormented him with questions about ways in which mediators could help him settle the case he was then working on -- the World Trade Center insurance coverage litigation. 

Frustrated, I interviewed Folger and Bush -- raising Steve's questions -- which I crafted into a Q&A for mediate.com -- Can Transformative Mediation Work in Commercial Litigation?

Later, Ken Cloke (Conflict Revolution) would tell me "you are the technique," opening the door for me to use mySELF to best settlement effect, remembering old lessons while continuing to learn new ones.  See We Tell Ourselves Stories in Order to Live.

If you wonder why I'm such a joint session fanatic, it's due largely to Joe's and Baruch's teaching as well as my own experience mediating community disputes locally -- the only place true transformative mediation is practiced.  Engage the people with the problem and you're more than half way home.  You just have to be capable of getting the lawyers to trust you enough to give up just a tiny bit of control to help the process happen.

As another mentor -- Richard Millen -- taught me, people don't have legal problems, "people have people problems" which are burdened with justice issues. 

Choose your mediator wisesly, collaborate with him/her and you will not only settle the case, but emerge with a client who got what he/she/it hired you for -- to resolve the commercial problem and  the justice issue that called for the retention of a lawyer in the first place.

And if you're in the UK, check out Justin Patten's post on small companies missing the benefits of mediation -- complete with an offer of a free consultation. 

Because I'm heading for a swing state to campaign after the State Bar Convention and a brief vacation, I am starting a string of posts on talking about politics with your colleagues, friends and families.  There is a way to do this without harming your relationships.  In fact, understanding the stories, needs, desires and interests that drive one anothers' political positions is as fruitful to a personal relationship as an understanding of our negotiation partners' interests is to our business relationships.  

I had one of these conversations over dinner with a good friend recently whose judgment, wisdom, education and skill as a lawyer I respect highly.  And yet she did not seem to have been gathering any information in the past 7+ years about the issues that make my candidate the obvious choice for me -- the occupation of Iraq; our use of waterboarding to gather intelligence; extraordinary rendition; detainee rights at Guantanamo (see Detainees' rights subverted at Guantánamo, their lawyers say; A federal judge asks for statements from two guards accused of threatening a detainee here); education; health care; and, the economics of poverty, gender and race ("there is no racism in America").

We left that lengthy dinner as friends -- maybe even better friends that we commenced it -- even though I violated all of the first rules of productive communication, negotiation and mediation during the course of dinner -- create an atmosphere of hope and safety; be hard on the problem and soft on the people; ask questions about party interests, fears, needs and desires; and, share personal stories that have led to interests that too often mask themselves as hardened positions.

While reading the Guantanamo piece (above) this morning, I was reminded of an experience I don't spend much time thinking about -- my second year, second semester externship with the United States District Court for the Eastern District of California.  

I was the assistant to the District Judge's "Writ Clerk" who handled all petitions for writs of habeas corpus and prisoner's civil rights cases that crossed our Judge's desk.  Most of these petitions were handwritten by prisoners, who had (too much) access to a law library, causing their filings to be adorned with and obfuscated by 19th century legalese.  

"If you see a potential cause of action," the Judge instructed me, "deny the government's motion to dismiss and if you think I should grant a Petition for a Writ, bring it to me right away."

This was Sacramento.  I was suprised that this Republican-appointee was such a "liberal."  He wasn't.  He was simply and fiercely and unequivocably devoted to the rule of law.  

As I read the accusations of the detainees at Guantanamo -- who have only recently been granted the right to file Petitions for Writs of Habeas Corpus -- the pencil-scrawled papers I read day after day spring immediately to mind -- how hard I worked to make sense of them, repeatedly asking myself whether I could suspend my disbelief of the charges made by the prisoners against their guards, and doing what I'd been instructed to do, lean ever so slightly toward the conclusion that those in charge could possibly  be abusing the power that has been conferred upon them. 

Grant the Petition or deny the motion to dismiss, and eventually the truth, or something close to it, will appear.  Deny the Petiition or grant the motion to dismiss from the first and deprive ourselves of that which we have guaranteed to all of us -- the right to be charged with a crime (whether allegedly committed on the "battlefields" of the streets of Bahgdad or in the mountains of Afghanistan or at the liquor store down the street); the right to have the evidence arrayed against us presented to us; the right to legal counsel; the right to be heard; and, the right to have a neutral third-party decide whether we have been justly imprisoned.

The prisoner accusations recited in the Christian Science Monitor article have the ring of truth to me because they are so similar to those I recall being made by the prisoners who had unknowingly delivered their pleas into my young and inexperienced hands back in my Spring Semester of law school in 1979.  These are the experiences that shape us.  

Rules for having political conversations will follow. 

If you believe that law blogging is not only informative and entertaining, but capable of transforming our lives, our society, our culture and our legal system as well, run don't walk over to Peter Black's Freedom to Differ which not only rocks, it twitters, on One Web Day.  Surely this will be the BlawgReview of the year!

. . . .one recurring theme on this blog has always been a recognition of the value in a strong and free internet.  Therefore it is an honour to be able to host Blawg Review on Monday September 22, 2008, which is One Web Day 2008.  One Web Day was founded three years ago by Professor Susan Crawford from the University of Michigan, and she describes it as an "Earth Day for the internet".  The One Web Day website describes the day in the following terms:

The idea behind OneWebDay is to focus attention on a key internet value (this year, online participation in democracy), focus attention on local internet concerns (connectivity, censorship, individual skills), and create a global constituency that cares about protecting and defending the internet.  So, think of OneWebDay as an environmental movement for the Internet ecosystem. It’s a platform for people to educate and activate others about issues that are important for the Internet’s future.

If you'd like to host BlawgReview or submit to it, click here.  All future BlawgReview hosts please note -- THE BAR HAS BEEN RAISED!

The following important update on the recovery of bad faith treble damages from the lawyers at  Edwards, Angell, Palmer & Dodge

California Federal Court: Insured Plaintiff Can Seek Treble Punitive Damages For Insurer’s Alleged Bad Faith

The U.S. District Court for the Central District of California recently denied a motion to strike and allowed a plaintiff to pursue treble punitive damages against his insurer for the insurer’s alleged bad faith. Novick v. UNUM Life Insurance Co. of America, C.A. No. 08-02830-DDP-PJW (Aug. 7, 2008).

The insurer issued a long term disability benefits policy to the plaintiff in 1976, providing benefits should the plaintiff become totally disabled due to an accident sustained during the course of his career as a surgeon. In June 1992, the plaintiff filed a disability claim with his insurer after sustaining a spinal injury that allegedly prevented him from performing surgery. The insurer initially paid benefits to the plaintiff, but discontinued making the benefits payments on January 18, 2007. Shortly thereafter, the plaintiff filed suit against its insurer alleging breach of contact and breach of the covenant of good faith and fair dealing.

In his complaint, plaintiff seeks punitive damages pursuant to California Civil Code §3294, which allows an award of punitive damages for conduct that constitutes malice, fraud or oppression. The plaintiff also seeks treble punitive damages pursuant to California Civil Code §3345, which provides for an award of treble damages “in actions brought by, on behalf of, or for the benefit of senior citizens or disabled persons . . . to redress unfair and deceptive acts or practices or unfair methods of competition . . . [when] a trier of fact is authorized by statute to impose either a fine, or a civil penalty or other penalty, or any other remedy for the purpose or effect of which is to punish or deter . . . .”

The insurer argued that §3345 does not provide for the trebling of damages for insurance bad faith claims. The court reviewed the legislative intent behind the statute and determined that the legislature did not intend for the statute to be limited to actions that specifically mention unfair business practices. The court noted that, as bad faith claims redress unfair practices, §3345 applies to insurance bad faith claims. Accordingly, as the plaintiff alleges that the insurer acted in bad faith, the court held that the plaintiff is entitled to pursue his request for treble punitive damages.

Full text of opinion here.

I note today that yesterday's post was . . . . well . . . a little snippy.  

Now that I've managed to get my hands on a copy of Professor Murray's article on the privitization of justice (which I'll post as soon as someone gives me permission to do so) I have a few more observations that are more nuanced than my first reaction.

First, I note that much of Professor Murray's article focuses on arbitration agreements that are forced down the throats of consumers -- an injustice that is so far removed from one that might arise in a mediated settlement conference that I'd like to address it separately on another day.  

Second, I am not without criticism of court-annexed mediation practices -- those criticisms populate this blog in great number.  Nor am I naive or inexperienced enough to pretend that mediators do not effect party decisions even when they are represented by attorneys who are presumably mediation- and mediator-savvy.     

Nevertheless, re-reading Professor Murray's criticisms of mediation this morning, I am once again stuck by the number of untested assumptions upon which he bases his pretty radical suggestion that mediated settlement agreements be vetted by judicial officers. The major and minor premises of Professor Murray's accusation that mediation corrupts justice include the following:

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

Of all of the assumptions requiring testing before we impose a supervisory judiciary upon mediators, the premise that an objective, measureably "reasonable" settlement of any dispute exists is the one that most requires addressing.  

Because I could write a book on this topic, let me just highlight some of the factors that would make third-party vetting of mediated settlement agreements difficult to impossible. 

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

Examples of ways in which parties are able to resolve conflict in the context of their highly individual interests rather than the little buckets of rights and remedies into which we pour the facts of their dispute?

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

What I'd like Professor Murray and everyone who reads his article to understand is that we all share this justice problem.  The adjudication system is not working well for the people it was designed to serve.  The ADR options we've put in place to smooth out the rough edges of 18th century adversarial theory and practice are themselves insufficient to efficiently and fairly resolve 21st century conflicts.      

That's why I'm calling for a LegalTED Conference.  And if Professor Murray will forgive the snippiness of yesterday's post, I'd like him to be one of the members of  the Steering Committee.

A lessee of commercial office space complains that the common areas are not being properly maintained. The local high school has just banned Catcher in the Rye. Again.  A prestigious law firm fires a first year associate because he refuses to remove his new “tongue stud.” These seemingly disparate disputes have one quite obvious but ill understood characteristic in common – they are all examples of unresolved conflicts that have ripened into discrete disputes.

Pretend for a moment that you never went to law school.  I know.  It's hard.  But give it a shot.

Lawyers (those other people who went to law school) are are trained to understand, manage and remedy all disputes, no matter however different they might be, in a single, highly controlled manner.  

To help their clients deal with the problems mentioned here, lawyers will read the lease; research the latest Supreme Court rulings ("Fuck the draft"); and, study the statutes. Once they understand the facts that are relevant to the law, they “think like lawyers.”

How do they do that?  "Think" like lawyers?

First, they subject the facts and the law to as much scrutiny as any idea can bear before it disintegrates into the dust of first principles. They create a chronology of events, highlighting and tailoring the "story" of the conflict that "fits" the available "causes of action" giving rise to "rights" in their client, obligations in their "opponent" and remedies for the harm suffered.  

This "legal" dispute was once about a relationship between people.   Now it is an "actionable" claim in an extremely controlled process in which one of the parties will "win." 

That, of course, rarely happens because the legal system has become too expensive and the law too uncertain for most people to risk what used to be it's goal -- a jury trial.  

Lawyers recognize frivolous or baseless or "defendable" claims by observing just how uncomfortably the “facts” sit inside their opponent's “causes of action.” When called upon to justify their entitlement to get their client's claim before a jury (demurrers, motions for judgment on the pleadings, summary judgment motions, non-suits) the Plaintiff's attorneys can and will simply change the way the story is told.  They make the facts fit the law.  There's nothing wrong with that.  That's their job.  If the facts won't "fit" the law, lawyers apply themselves to the law's creative expansion. 

What attorneys do not learn in law school is how and why conflict develops into a dispute and then predictably evolves, usually getting more acrimonious and difficult to resolve.

My friends who are lawyers (I never went to law school, remember? and neither did you) tell me that they know how to escalate conflict but not how to de-escalate it.  They also tell me that they see a lot of injustice.  Sometimes the injustice arises because the laws themselves are unjust.  Sometimes the tragic and unfair consequences of human interactions just don't have any legal remedy.  And sometimes the legal process itself makes disputes worse -- more protracted, frustrating and expensive -- rather than better.  

In common law countries, like ours, where the law is forged in the fire of conflict, shouldn't attorneys be taught not only how to "win the case" but also how to dampen the flame?  Most litigators I know would respond with a resounding "no!"   

Conflict resolution that is not "handled" as litigation or arbitration is for some other professional to deal with.  Therapists come to mind.  Don't they help the parties deal with that most uncontrollable aspect of any dispute -- something not only lawyers but the law itself exclude from the legal action?

 Feelings.  Not just sad or mad feelings.  But the type of feelings that make teenagers shoot other teenagers on the streets of Los Angeles.  Feelings of loss, tragically unfair outcomes, powerlessness, rage and despair.

The purpose of this post and the new thread that it is meant to begin?  To start something radical.

If you're not aware of what I'm about to tell you, you should be.

Once a year, 1000 people are invited to the TED Conference in Monterey, California, to exchange something of incalculable value: their ideas. TED's mission statement is as simple as it gets:  

TED is devoted to giving millions of knowledge-seekers around the globe direct access to the world's greatest thinkers and teachers.

You can cruise the jaw-dropping results here.

(image links to the Photography site of Lars Kirchhoff)

I was just talking to a friend over coffee the other day about how we're using 18th Century technology (the jury trial) to solve 21st Century problems.  

Here's the idea.  A legal TED Conference. 

If you'll look at what TED accomplishes, you'll know what I don't mean.  I don't mean a conference to trot out any new/old "ADR" ideas -- mediate this, arbitrate that, create new rules and forms for the lawyers to use. 

No.

I mean creating the highest level think tank we can to first envision and then implement a dispute resolution technology that incorporates what we've learned since we first enshrined the jury trial in our Constitution more than 200 years ago.

I have one man in mind -- Larry Lessig.  But surely there are others.  The first step would be to suggest names for the coordinating committee.

Why do I think of TED?  Because what it envisions cannot be accomplished.  It cannot even be envisioned.  It's a fool's errand.  One I'd be willing to spend the rest of my own life working on.

Would anyone care to join me?

(Right, women protesting, 1912.  My own grandmother was 12 years old at the time this photo was taken.  By the time she was old enough to vote in 1921, she could vote)

Why women's voting rights and Hillary Clinton's DNC speech on a negotiation blog?  Several reasons. 

First, of course, is that fact that your blog author is a mid-20th Century woman who participated in the feminist movement in the early 1970's. 

I'm proud of the work we did at San Diego's Center for Women's Studies and Services (now the Center for Community Solutions). 

We trained women in the skills necessary to pass apprenticeship tests so they could gain entry into the skilled trades.  We opened the way for women to work at one of San Diego's largest employers -- National Steel and Shipbuilding.  We helped all women, including those who'd spent time in prison and battered women's shelters, find employment to help them break a cycle of poverty or move from the lower to middle classes by their own efforts and to provide better lives for their children.  

We were the so-called Second Wave women's movement, seeking and achieving the same education, training, work and respect that were only a white American man's entitlement when I was born in 1952.   

If you want to know what it was like for women when I was ten years old (1962) and my own divorced and single mother was working for $1.29 an hour selling bags and hoisery at a Leeds shoe store in San Diego, watch a single episode of Mad Men.  Follow "Peggy" who is opening professional doors long before there were any ceilings in men's rooms to crack.  Watch how women were treated and how little they thought of themselves.  Think of the way in which we were squandering our human resources by relegating my mother, your grandmother, to just a few honorable but limiting professions -- nurse, secretary, teacher.

(yes, this is the same typewriter I used in the typing pool at Arthur, Dry & Kalish in mid-town Manhattan in 1975; we had one woman attorney in the firm when I joined; she was in her 50's and was still an associate in trusts and estates)

The second reason I'm celebrating women's suffrage and Hillary's candidacy today is because you'll be negotiating with women.  We haven't shattered that glass ceiling but we've nearly done so.  You'll want to understand what motivates us, how we talk with you and how we talk among ourselves.  You'll want to know what feels offensive to us and what is respectful.  Most negotiation texts tell women how to negotiate like men or with men.  So late in the day, it's surprising that I'm unable to find any articles on what men should understand when negotiating with a woman.  

To negotiate our way into a better world in the 21st century, we'll need to understand one another better and learn to drop all of our stereotypes about men or women, black or white, Muslim or Christian.  

So let's all celebrate universal suffrage today.  Self-determination -- which is what mediation is all about -- democracy  liberty  justice.

Below, for your viewing pleasure, 1960.  

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

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

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

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

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

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

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

The Meta-Sources of Chronic Conflict

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

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

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

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

To read on, click here.

If you've been following the conversation between Settle It Now and Max Kennerly's Philadelphia Litigation and Trial Blog, you'll know that a "settlement unicorn" is composed of "two hostile parties on the verge of a lawsuit [who] get lawyers, almost file suit, and then, through deft representation, settle their differences peacefully and move on." 

I believe in Unicorns and Max doesn't so I've promised to keep my eyes open for appearances of that storied creature.  Previously, I have reported the Unicorn's appearance here (community mediation; potential lawsuit, no lawyers); here (litigation + lawyers who send the parties to community mediation); and, here (litigation + lawyers + clients who seek mediation without lawyers to resolve dispute).  

Today, I have a story of the Unicorn visiting the mediation room in a litigated case -- a case of the type that my (new) friend Max Kennerly suggests will not attract that shy beast because: 

The parties to a lawsuit do not have intertwined interests: they have directly adverse interests. Unless there's some possibility of a future relationship, the defendant doesn't want to resolve the conflict: they want the plaintiff to drop their frivolous claim. In their mind, their best alternative to a negotiated agreement ("BATNA") is for the plaintiff to crawl in a hole and die.

[My Comment:  the "intertwined interests" all parties to litigation have is the litigation itself with its attendant cost, delay, and, uncertainty, not to mention the discomfort "ordinary" people experience when plunged into the foreign environment occupied by attorneys with their strange "causes of action" and "affirmative defenses," their demurrers and JNOV's; their res ipsas and, most importantly, their view that only facts pertaining to a "cause of action" or "affirmative defense" are relevant to the injustice suffered by their clients.] 

[T]he plaintiff usually prefers imposing a conflict on the defendant (who the plaintiff believes cast the first stone) in pursuit of justice, an imposition they will only relieve for at least "full" compensation. . . .

The problem is that most parties don't consider their claims to be assets; the problem isn't that there's emotional baggage around the economic understanding, it's that the parties interpret their dispute as fundamentally non-economic.

[My Comment:  I've said before that all litigation is "fundamentally non-economic" -- it's about justice.  Though Max is one of the few practicing litigators who agrees with me, he does not believe in the existence of my solution -- a settlement conference or mediation conducted in joint session].

Hence a Mediation Unicorn with litigation and attorneys prior to any meaningful discovery.

I'm talking to a plastic surgeon whose artistry not only went unappreciated, but which gave rise to a lawsuit for battery and malpractice. 

The plaintiff is a model and an actor.  The surgery, she claims, left permanent scaring on her nose.  Her opening demand is $500,000.  I am trying to persuade the physician, his attorney, and the claims adjuster, not to walk out.  The plaintiff's deposition has been taken and the doctor's is scheduled for the following week.  No experts have been retained.  

The parties have made the rare effort to settle the case early in the litigation.

This is what the defense thinks about the opening demand in response to their good faith participation in an early mediation:  

%&*#%*#%@& and %&^@(% and *&$)*#! 

I am suggesting to the defense in separate caucus that they allow me to conduct a joint session in which the parties can talk about the surgery, the scarring and their post-surgical communications.  I explain that the Plaintiff is more angry than acquisitive.  She believes that the doctor disrespected her when she complained about the scarring. 

He denied that I had a scar.  He was rude and dismissive.  He disrespected me.  He had no bedside manner.  

She is one of the few personal injury plaintiffs who comes right out and says what so many plantiffs feel.  

I want him to suffer.  My attorney says he has to report any settlement in excess of $30,000 to the Medical Board.  I want to make him do that.  I want him to suffer as I have.  It's not about the money.  It's about accountability.  I want him to be accountable.   

The parties resist a joint session and we spend two hours negotiating in the strato- and nano-spheres.  $10,000.  $490,000.  $12,500.  $475,000. 

"We're getting nowhere," says Plaintiffs counsel.  "Tell them we're leaving." 

"The case will never settle.  This is a waste of time for my doctor and my claims examiner.  Tell them we're leaving. The case will never settle.  It simply won't settle.  The case cannot settle." 

Click Your Heels Three Times and Say "There's No Place Like Home."

Attorneys are fond of saying that all mediators do is "keep them in the room."  They might be right, but the difference is the room I keep them in.  It's a mediation room, not a conference room or a deposition room or a courtroom.  It's a room in which I ask the doctor if the feeling he has is something akin to a fish being hooked, pulled up out of the water and thrown onto the deck of someone's boat, gasping.  He cracks a smile for the first time that morning.

It's a room in which I say there must have been a miscommunication, a misunderstanding.  It's a room in which I say to the defense that the Plaintiff feels angry and disrespected.  It's a room in which I caution the Plaintiff that the physician is from a different culture than her own -- one where a doctor does not express empathy but only certainty in his skill and expertise. 

The claims adjuster asks me if I'd been able to see the Plaintiff's scar from where I was sitting -- across a conference room table.  I admit that I could not.  I acknowledge what is patent in the defense room -- the Plaintiff is blindingly beautiful.  A jury is unlikely to award her much in the way of damages.  I have said as much to the Plaintiff.  But she is angry and wants a pound of flesh.

I have another mediation in the afternoon.  I tell the defense we have fifteen more minutes.  The claims adjuster keeps repeating "the case will not settle, the case will not settle, the case will not settle." I take this to mean that the defense very much wants to settle the case. 

"If someone repeats something over and over again," my mentor Ken Cloke taught me, "that is the key to the resolution."  While that might be so, I haven't yet found a way to use that key to open any door.  But it is not really my case to settle.  It's my job to keep them in the room.

"I Want to See the Scar," says the claims examiner.

I wish I could take credit for the following but I cannot.  The Plaintiff's attorney says "why don't they go to the ladies room where my client can show Ms. Y the scar and together they can look at it."

I hear the click of the Unicorn's hooves in the hallway.  The plaintiff's attorney is male.  I don't believe he knows what he's suggesting.  He wants to send two women into one of the safest and most congenial, soul-bonding rooms in all of God's creation -- the women's room.

I know the case will settle.

We are finally in joint session.  The claims examiner says, "I want to tell you that I now see the scar.  I'm sorry I denied it.  We'd like to offer you $X to settle the case."

Did $X settle the case?  No.  But $X + $Y settled the case ten minutes later.

And just around the corner, you could see the shadow of the settlement unicorn rear up on its hind legs in celebration.

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UPDATE:  See the analysis of Thottam at May it Please the Court, noting that the "big print giveth and the small print taketh away."

Before further discussing the problems created by the Thottam holding, I'm providing a "brief" of the case about which I ranted and raved earlier here today.  

• THE FACTS: 
  • A mediation confidentiality agreement entered into by the parties in Thottam provided that “all matters discussed, agreed to, admitted to, or resulting from ... [the mediation meeting]...
    • "shall be kept confidential and not disclosed to any outside person . . . ;
    • "shall not be used in any current or future litigation between us (except as may be necessary to enforce any agreements resulting from the Meeting), and,
    • "shall be considered privileged and, as a settlement conference, non-admissible under the California Evidence Code in any current or future litigation between us.”  
  • One of the parties contended that a chart drawn up and signed by the parties during the mediation, 
    • was sufficiently certain to be enforced according to its terms; and,
    • was admissble into evidence under section 1123(c) despite its failure to satisfy any of 1123(c)'s requirements.
  • THE RULES:
    • Evidence Code section 1123(c) provides that a "written settlement agreement prepared in the course of, or pursuant to, a mediation, is not made inadmissible, or protected from disclosure . . . if
      • "the agreement is signed by the settling parties and any of the following conditions are satisfied . . .
      • "(c) all parties to the agreement expressly agree in writing . . . to its disclosure."Id. (emphasis added).
  • PROCEEDINGS IN THE TRIAL COURT
    • Without finding that the settlement "chart" constituted a "written settlement agreement" under section 1123, the Thottam trial court required one of the parties to testify about otherwise confidential mediation communications because the Confidentiality Agreement required the disclosure of mediation confidences "necessary to enforce any agreements resulting from the [mediation.]"
    • Apparently before Elizabeth could testify, the civil action to enforce the alleged settlement agreement was consolidated with other proceedings in the Probate Court,
    • at the trial of the consolidated matters, the Probate Judge refused to accept the settlement chart into evidence because it did not comply with the provisions of section 1123(c).
  • THE APPELLATE DECISION
    • the appellate court reversed the Probate Court's decision.
  • THE HOLDINGS
    • Section 1123(c)'s requirement that all parties to a mediated settlement agreement "expressly agree in writing . . . to its disclosure,"
      
      • may be satisfied by terms contained in a writing other than the alleged settlement agreement itself; and,
      • may be satisfied by terms contained in a writing executed before any alleged settlement agreement has purportedly been entered into.
    • Here, the Confidentiality Agreement satisfied those requirements; and,
    • The skeletal written settlement chart was enforceable because its material terms were, or could be made, certain. 
  • RATIONALE
    • Because the proceeding in which Appellant attempted to introduce the alleged settlement agreement was an action "to enforce what he claims is a settlement agreement reached in mediation," and,
    • the parties carved out of the Confidentiality Agreement any discussions that were "necessary to enforce any agreements resulting from the [mediation]"
    • the Confidentiality Agreement satisfied the requirements of section 1123(c); and,
    • the skeletal Settlement Chart was therefore admissible in evidence under that subsection.

This opinion threatens to blow a hole in sections 1119 and 1123 large enough to obliterate their protections -- protections that have been repeatedly enforced to the letter of the law by the Supreme Court in its fairly recent Fair v. Bahktiari opinion -- holding that parties to a mediated settlement agreement must include in it an express provision that they intend to be bound thereby -- and Simmons v. Ghaderi  in which the Court held that parties cannot impliedly waive confidentiality nor be estopped from asserting it.

Most Confidentiality Agreements I've seen (and used) naturally carve out an exception for the enforcement of a settlement agreement.  If you sign such an agreement after Thottam, you risk the enforcement of a non-1123-compliant "settlement agreement" and risk being required to disclose otherwise confidential mediation communications on the sole ground that one of the parties alleges that the opposition entered into an enforceable settlement agreement during the mediation.    

Were I attempting to resist the disclosure of mediation confidences my adversary claimed should be fair game under Thottam, I'd contend that the Thottam Confidentiality agreement, and hence its carve-out, was unusually broad and that the Court's holding should therefore be read narrowly and limited to its facts.  

As California lawyers know, the Second Appellate District has jurisdiction over matters litigated in the Los Angeles Superior Court.  It is therefore particularly important to take a look at the impact this decision might have upon matters mediated by the neutrals on that Court's pro bono or party pay panels.  All such parties are required to sign a Confidentiality Agreement that protects from disclosure all mediation-related "written" and "oral communication[s] made by any party, attorney, neutral, or other participant in any ADR session" except  "written settlement agreement[s] reached as a result of this ADR proceeding in an action to enforce that settlement."

Under Thottam, a colorable argument could be made that the mandatory Superior Court Agreement's confidentiality "carve-out" should be treated as either:

• an express agreement by the parties to waive confidentiality for the purpose of enforcing "written settlement agreement[s]" even if they do not satisfy the requirements of section 1123(c); and/or,
• a part of the alleged settlement agreement so that the two agreements together (confidentiality carve-out + non-compliant settlement agreement) satisfy the requirements of section 1123(c).

What to do?  Don't sign any Confidentiality agreement that could possibly be interpreted in a manner similar to the one subject of Thottam unless you want to risk the disclosure of mediation confidences arising from a writing that does not comply with section 1123(c).    

You can certainly refuse to sign the Superior Court's agreement in light of the Thottam holding.  I don't know as a matter of Court policy whether that limits parties' ability to use the Court's pro bono or party pay mediators. 

I'd have to say that this case puts confidences made in mediation sessions controlled by the Superior Court's Confidentiality Agreement at risk whenever one party is contending that the other entered into an agreement pursuant to a signed term sheet.

O.K., I can't resist giving you one more cartoon from Fincher's new blog.  He calls this one:  Fundamentally Similar Arguments. 

Read about it at theD&O Diary here.

BTW Blogger Kevin M. LaCroix, an attorney and a partner in OakBridge Insurance Services, Beachwood, Ohio, writes the most amazingly cogent and exhaustive analyses of insurance coverage issues I've seen anywhere on the internet. 

You might want to add him to your newsreader.