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Victoria Pynchon

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

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She Negotiates

She Negotiates

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

What to Do When Negotiation Turns to Squabbling

Negotiators—whether politicians or homebuyers—begin with bold concessions which rapidly shrink the gulf between opposing sides. But like curves approaching an asymptote in geometry, as they near an agreement they level off and struggle to bridge the final, though trivial, gap. The effect of their ongoing quarreling is that, by the end, their motivating goal is not so much to strike a deal or make a sale as to make the other side yield, on no matter how minor a point. The fact of winning a concession matters more than the concession's substance. Not who yields most, but who yields last, appears to lose. The negotiation grows more bitter, the less remains at stake.

(Thanks to friend Rex Stevens for passing this along from the Aphorisms and Paradoxes blog.)

I was over at White & Case* last week talking to its women about the perils of negotiation without the inclusion of face-saving mechanisms. As I told them, it's a common mediation experience for the parties to make concessions in the millions to tens of millions of dollars only to reach final impasse over which side is going to pay the mediation fee ($5K) they'd agreed to split before the session began.

That's not about money, it's about face.

We call this end stage simply the final impasse but when the end stage stretches out into a seemingly endless future, we call it a "hurting stalemate" which is what we've got in Washington right now.

So how do you break an impasse that may or may not turn into a hurting stalemate?

First of all, you ask yourself and then, if possible, your bargaining partner, what hasn't yet been put on the table. Parties often reach impasse because they're attempting to achieve a hidden goal that they believe their negotiation demand will achieve or help achieve. It's been suggested, for instance, that shutting the government down and then re-opening only those agencies that the Republican party would like to see functioning is not a bad consequence of the parties' failure to reach agreement, but a hidden goal. If you take a look at the list of agencies shut down, you'll see there at least half of the GOP target list for ending or lessening government regulation. The Department of Education. The Environmental Protection Agency. And that department Rick Perry couldn't recall was on his hit list during the Presidential debates.

If you have a bargaining partner who is in fact achieving a goal - as collateral damage - that it might not otherwise be able to implement, you need to surface the hidden agenda. Remembering the importance of face-saving for a partner who may have backed himself into a corner, it's best to first raise the hidden agenda behind closed doors. Any negotiation in which all items to be traded are not on the table is a failed or sub-optimal bargaining session.

Face. We have a saying among my people that you can't save your face and your ass at the same time. Although there's real freedom on the other side of losing "face," few people are willing to go in that direction. It usually takes the total and complete collapse of your particular house of cards before you're ready to see the benefit of coming clean. That being the case, you've got to help your negotiation partner save face and you can't do that by airing a commercial comparing your opponent to a squalling baby during the national broadcast of a Sunday football game. 

Bad move, Dems.

How might the GOP save face while backing down from the brink of economic disaster? Give them victory. They won the sequestration round of the Obama vs. the House negotiation. Give it to them. They already have it. Don't praise them. Complain about their victory far more often than you're doing now. 

The far right Tea Party politicians are not worried about re-election but the Democrats potential Republican allies (the moderates) are terrified of losing their seats if they vote . . . well . . . moderately. Find a way to provide them with election protection. I believe this has been done several times before with the actual infusion of funds into certain politicians campaign coffers. It's also been done with political support from hidden stakeholders. The Chamber of Commerce, for instance, once a hidden stakeholder, has now come out in support of re-opening the government and authorizing a raise in the debt ceiling. Good for it. Wall Street too has been putting pressure on the right to avoid the danger a shut-down and a subsequent default would have on the world economy.

We're talking about interest-based, mutual benefit negotiation strategy and tactics here. It's not rocket science. What are your bargaining partners interests - what do they fear, value, prioritize, prefer, and, need. What do you have of high value to them (giving them a victory) and low cost to you (giving them a victory they already won).

Finally, there's "spin." That old Washington game we litigators and negotiators call "framing."

For god's sake, please stop calling the damn act Obama Care. Did the administration not see the Jimmy Kimmel episode where, when given a choice, random folks on Hollywood Blvd. said they liked the "Affordable Care Act" but despised "ObamaCare."

As Dick Draper recommends - if you don't like the conversation you're having, change it!

Finally, as the television ads being run on cable in Republican strongholds last week amply demonstrated (as if we didn't already know) the Tea Party's marching orders weren't to govern but to bring Obama down. Why not give them Obama's virtual head on a platter?

Count up everything the Obama administration lost due to GOP opposition since his '08 election. Treat it as news. Because visuals are so important, particularly to the chronically uninformed, actually put Obama's head on a platter and run his defeats over the image. Treat re-opening the government and raising the debt ceiling as magnanimous acts of the GOP in the face of the AntiChrist who would bring the country down to serve his own interests. Give them victory without compromising anything.

There are dozens of other ways to break impasse. But let me stress that prolonging a hurting stalemate is easy. You simply publicly demonize the "other guy" and dance the macarena over his grave. 

JUST. STOP. IT.

And put into practice those best negotiation strategies and tactics that I guarantee you every politician knows.

*W&C is one of the top law firms for women and has earned its designation as such.

The Negotiation Doctors Are In At The Daily Muse

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

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

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

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

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

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

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

Power of Anger Ineffective against Powerful Negotiators

 

Researcher Gerben Van Kleef of the University of Amsterdam found that only low-power negotiators were strongly influenced by their opponent’s expressions of anger; they made larger concessions than when no anger was expressed. High-power negotiators barely seemed to notice the other side’s emotions; they identified their own true bargaining interests and offered only the concessions necessary to reach a good deal.
How can you gain this advantage?
Immediately before negotiating with someone you know to be emotional and demanding, reflect on a time you negotiated with a strong BATNA. Recall your sense of confidence and control. Generating psychological power can immunize you from your opponent’s angry tactics.

Listen.

We're all somewhat afraid of conflict, at least those of us who are not sociopaths.

Men and women both want their days to pass without having accusations hurled at them, without hearing what a frenemy is saying behind their backs, and without stirring their colleagues or clients to anger.

Women, however, do tend to react to a negotiation challenge somewhat more fearful of an angry response than do men.

I've said before that men can claim to be unemotional only because they don't believe anger to be an emotion and I think there's more truth to that than humor. 

I had a client once who was negotiating her bargaining partners toward a million per year. That's what everyone in her niche was making. The men with whom she was negotiating gave her many reasons why she was an outlier and worth less than her peers (all of whom were men and most of whom were twenty years her senior). But it was she who they listened to at industry conferences. She was the expert. They'd just found a cozy retirement niche.  

Eventually, of course, her bargaining partners grew testy and finally one pitched all all-out temper tantrum worthy of a two-year old, telling her she'd never succeed, never reach the heights of the profession she'd already scaled. Told her she was fooling herself. Told her she didn't deserve it. Told her to get a grip on herself and remember who she was.

We responded with the best negotiation tactic for a bargaining partner who betrays us. We played "tit for tat," punishing the miscreant proportionally by simply going 36 hours without returning his phone call. When he finally did reach her, he apologized and, on top of that, increased his last offer without responding to a counter. In other words, he apologized by bargaining against himself, just about the only rule young attorneys are taught by their elders. Not to bargain against yourself.

So if you're worried that your negotiation partner is going to get angry at you, don't worry. Not only is "tit for tat" a powerful game changer, but recent research cited by the Harvard Program on Negotiation shows that only low-power negotiators [are] strongly influenced by their opponent’s expressions of anger.

Those negotiators who didn't trust their own power made larger concessions than when no anger was expressed. High power negotiators, however, barely seemed to notice the other side’s emotions; they identified their own true bargaining interests and offered only the concessions necessary to reach a good deal.

Here's the best news, anyone who wishes can gain the "high power" advantage. According to Harvard, our best strategy, particularly if we're anticipating an emotion response is to reflect on a time you negotiated with a strong [alternative to a negotiated resolution]. Recall your sense of confidence and control. Generating psychological power can immunize you from your opponent’s angry tactics.

Got that? Add a power pose (arms above your head, hands behind it, standing tall to trigger a flood of testosterone) and you'll be the leader of the pack.

Vroooom, vroooom, vrooooom.

10 Reasons To Negotiate Instead Of Suing The Bastards

Now more than ever.

Mediation Awareness Week. See the televised event by clicking on the image and begin at the 57-minute mark.

Ten Reasons To Negotiate Resolution

1. The Los Angeles Superior Court has closed four court houses and dozens of court rooms. 

2. Time is literally money (see the time value of money).

3. The law (and your lawyer) only care about relevant facts - the most important part of your dispute may well not even be addressed, let alone resolved, by a jury verdict in your favor.

4. As your trial date nears, everyone - the judge, your lawyer, their lawyer, your spouse, your friends, and random acquaintances will urge you to negotiate a resolution with a neutral third party (a mediator).

5. Your attorney settles 90% of every case s/he litigates. S/he rarely goes to trial anymore. Ask her about the last verdict she won and then the one before that. If you have a skill (piano, golf, cooking a souffle) ask yourself how well you'd perform if you haven't used that skill recently or often.

6. Litigation is an extremely expensive board game, much of which is simply the cat and mouse exercise of discovery. Here's how it's played. I ask for documents. You object. I write you a letter demanding compliance. You write back refusing to comply and reminding me I have to "meet and confer" with you before we ask the discovery referee to intervene. We meet. We accomplish nothing. I make a motion (write a "brief") to compel you to turn over documents. You write an opposition. I write a reply. We pay the discovery referee to read our papers and listen to our oral argument. The discovery referee splits the baby in half or fourths or tenths. One of us asks the Judge not to sign off on the discovery referee's decision. More papers, more writing, more time, more of your money. The Judge, not a lion of courage, splits the baby again and refuses to award either party the costs of forcing compliance. Two months later (at least six have now elapsed) you get a stack of documents and a privilege log listing the documents that aren't being provided. I write you a letter demanding that you turn over documents on the privilege log. Rinse. Repeat.

7. As if the disrespect of the original dispute were not enough, I now get to sit you down in a conference room with a court reporter and spend a day or two asking you questions you don't want to answer. Often, the questions are asked in a disrespectful manner. When you complain to your attorney, he says "that's just the way the game is played." Focus on the word game. Are you having fun yet?

8. You get a bill for legal services rendered every month but you're no closer to resolution after receiving and paying 12 of these than you were on day one.

9. You're a business person. You negotiate business deals every day. Your lawyer does not.

10. You have given away any power you might once have possessed to resolve this dispute to a lawyer who does not understand your business, your life or the facts that drove you to seek legal advice in the first place.

Had enough? There are people out there - mediators - who are specially trained in helping you first communicate with your attorney and then helping you negotiate the resolution of your dispute with the "other side." Choose carefully. There are as many bad mediators there as there are litigators. My best advice? Negotiate the resolution of the dispute yourself even if it requires you to swallow your pride and to be the first one to say, "let's sit down and figure out how best to serve your interests and mine at the same time."

 

Negotiating a New Economic Paradigm

Settle It with Push Ups?

For an enlightened manly-man resolution to the patently insane prospect of litigating a $40,000 dispute, see the WSJ Law Blog post ADR Chronicles: Taylor Lautner Gets Settlement Offer for the Ages

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

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

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

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

 

prisons of peace

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

Virtual Property, Virtual Litigation and Real Resolution

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.

The Goddess of Discovery Arrives in the Blogosphere

A criminal defense lawyer I know used to ask me "just exactly what is it that you 'litigators' do everyday anyway?'"

What we do, my friend, is discovery.  

Discovery. 

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

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

It's usually a discovery moment.

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

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

"Yes, I am.  Let me sign it."

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

"Yes you can.  Let me sign it."

"Pleeeezzzzzzzzzzzzzzzzzz."

"Sign."

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

Whatever.

And yes.  She sent it.

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

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

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

Continue Reading

Can a Checklist Lead the Adversarial System Into the 21st Century?

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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The Bet Din: Religious Dispute Resolution

Los Angeles has large orthodox and ultra-orthodox Jewish communities.   I have, on more than one occasion, been introduced by mediation clients to the Jewish justice system - the Bet Din.  I have mediated business disputes that have already been to the Bet Din and those that were destined to go there.

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

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

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

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

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

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

Additional Resources

Website for a Los Angeles Din Torah Counselor.

Traditional Jewish Arbitration Panels Find New Converts

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

The London Beth Din for my British readers.

Please feel free to add to these resources.

 

 

Should We Be Creating a New Anti-Bullying Cause of Action

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.

Kagan and the Magic Number Three

More important than her religious background (Jewish) her Ivy League Credentials (Harvard) her progressive, liberal or conservative Democrat political leanings, is the prospect that Kagan's addition to the Supreme Court will result in the magic number of three women on the United States Supreme Court. 

Why is three the magic number?

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

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

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

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

Differences in Men's and Women's Conflict Negotiation Styles

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.

Resources on Women and Negotiation in Honor of Women's History Month

I'm sure you've noticed that we're celebrating negotiating women here this month in honor of International Women's Day and National Women's History Month.  Other than tomorrow night's free negotiating women teleseminar with super coach Lisa Gates, I'm celebrating by posting in one place all of my articles on negotiating women.

The Power of Beauty

Nature gives you the face you have at 20; it is up to you to merit the face you have at 50. -- Coco Chanel A local judge who has four beautiful young law students working for him this summer...

Tips from Forbes & a Word with Women: Negotiate Your First Salary

If you're entering the job market, you'll want to check out Forbes' Magazine's Tips for Negotiating Your First Salary. If you do not negotiate your first salary, you stand to lose half a million dollars over...

Ask for It: How Women Can Use the Power of Negotiation to Get What They Really Want

I didn't realize until I got onto the plane out of Seattle that Linda Babcock and Sara Laschever -- our morning plenary session speakers (Women Don't Ask: Negotiation and the Gender Divide) -- have written a new book -- Ask...

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

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

Is Hillary Negotiating Her Withdrawal? So Says Cokie

From Women on the Web's Conversation Today Cokie Roberts: 'Hillary Is Negotiating Her Withdrawal' with Lesley Stahl Q&A with ABC News correspondent Cokie Roberts. Excerpt below: LESLEY: Let’s talk about Hillary. I’m wondering, how do you explain..

Must Read for All Women Negotiating Law Firm Life

Below is my review in The Complete Lawyer of Lauren Stiller Rikleen's must-read book Ending the Gauntlet: Removing Barriers to Women's Success in the Law. Concluding paragraph: At bottom, this book calls for management practices that will benefit all attorneys...

Clinton Speaks on 88th Anniversary of Women's Suffrage

(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...

Negotiating Women at ForbesWoman

If you're a certain age, you'll remember women's magazines as mostly "Can This Marriage Be Saved" (The Ladies Home Journal to which PWNSC members Cathy Scott's and Cordelia Mendoza's mother was always submitting articles) or 101 Things to do with...

Negotiating Against the Grain of Gender

Yesterday, we talked about the different negotiation styles of men and women. Today, we're going to explore how men can benefit from learning women-speak and women can benefit from learning man-talk. All of the data relied upon and excerpted below...

Negotiation 101: Gender War or Gender Peace and Prosperity?

Although I am indisputably a "woman lawyer," I have never thought of myself in those terms. I'm a lawyer. And I'm a woman. I'm also a writer, a step-mother, a wife, a daughter, a river rafter, and an aficionado of...

Negotiating Women on New Day Talk Radio Easter Sunday Noon

(and, yes, I am not only old enough to remember the "Second Wave" Women's Movement, I took a quite serious role in it, first as an unpaid volunteer and later through the federal government's "Program for Local Service" at...

Negotiating Women: 5th and Final Part

Thanks again to Vicki Flaugher of SmartWomanGuides.com for inviting me to have this conversation with her about ways in which women can and do maximize their bargaining power. And yes we do talk about negotiating the purchase of an automobile...

Negotiating Women Part III

This segment of my interview with Vicki Flaughter is primarily about why women don't negotiate - to their substantial economic detriment - (see Women Don't Ask Here) and what they can do about it....

Negotiating Women Part II

In part two of Vicki Flaugher's interview with me, we discuss ways in which women can comfortably respond to aggressive zero-sum distributive bargainers and negotiate better business deals using their natural strengths. I'd like to once again thank Vicki Flaugher...

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

Video below is part I of an interview on negotiation challenges, strategies and tactics for women with Vicki Flaugher, founder of SmartWoman Guides. The full audio of the video is here along with Ms. Flaugher's kind comments about our conversation....

Negotiating Women: Free Teleseminar at Craving Balance

How to Negotiate Anything: Free Intro Thursday, Mar 18, '10 8pm EST Some researchers say that women's failure to negotiate working conditions, salary or other compensation--along with their hesitancy to seek what they're worth when they do negotiate--is one of...

Women Bloggers Proclaim National Women's History Month

Whereas American women of every race, class, and ethnic background have made historic contributions to the growth and strength of our Nation in countless recorded and unrecorded ways; Whereas American women have played and continue to play a critical...

Update on Gender Diversity in the Judiciary and in ADR

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...

Negotiating Gender: Why So Few Women Neutrals?

Although most of the major providers of alternative dispute resolution services tout their commitment to diversity in the ranks of their neutrals, the coloration of nearly all ADR panels continues to be white; the nationalities European; and the gender male....

Women, Negotiation and the Persistent Wage Gap

Thanks to Ed. at Blawg Review for passing along this (somewhat rambling but well worth watching) lecture at Stanford University by Deborah Kolb, the Deloitte Ellen Gabriel Professor for Women and Leadership at the Simmons College School of Management....

 

Negotiating Gender: The Old White Men Speak

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Here are more diversity resources from CPR.

Combatting Implicit Gender Bias in ADR

Now you know the disappointing statistics.  As women have populated the Bench, justice has become more privatized, lessening the benefits of diversity to those whose disputes lead them to Court; to arbitration panels and associations; or, to mediation panels.

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

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

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

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

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

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

How supported? 

Like this.

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

Senior Partner:  Why?

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

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

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

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

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

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

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

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Update on Gender Diversity in the Judiciary and in ADR

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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Negotiating Gender: Why So Few Women Neutrals?

Although most of the major providers of alternative dispute resolution services tout their commitment to diversity in the ranks of their neutrals, the coloration of nearly all ADR panels continues to be white; the nationalities European; and the gender male.  I generally endeavor to steer clear of this topic because I, as a commercial mediator and arbitrator, have a market that is primarily composed of white men between the ages of 40 and 65. And I don't, of course, wish to offend my market.

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

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

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

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

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

Our Shared Commitment to Diversity

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

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

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

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

The Statistics Reveal the Problem

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Neutralizing My Own Implicit Bias

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

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

Neutralizing Your Own Implicit Bias to Avoid Conflict and Increase Flexibility

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

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

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

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

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

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

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

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

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

 

Negotiating with Feeling One More Time

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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Motion to Compel Lunch: Granted

 

Thanks to Roger Wood at the Association Law and Other Musings Blog for passing along the Order for Lunch issued by the Maricopa County Superior Court (.pdf) excerpted below.  Roger generously shared this truly glorious Order (and supporting opinion that you can read in the .pdf) over at Construction Law Musings today in response to my Guest Post there ("How to Get Sued"). 

Thanks Roger!  This didn't just make my day; it made my year!

 

 Plaintiff’s Motion to Compel Acceptance of Lunch Invitation

The Court has rarely seen a motion with more merit. The motion will be granted.

The Court has searched in vain in the Arizona Rules of Civil Procedure and cases, as well as the leading treatises on federal and Arizona procedure, to find specific support for Plaintiff’s motion. Finding none, the Court concludes that motions of this type are so clearly within the inherent powers of the Court and have been so routinely granted that they are non-controversial and require no precedential support.

The writers support the concept. Conversation has been called “the socializing instrument par excellence” (Jose Ortega y Gasset, Invertebrate Spain) and “one of the greatest pleasures in life” (Somerset Maugham, The Moon and Sixpence). John Dryden referred to“Sweet discourse, the banquet of the mind” (The Flower and the Leaf).

Plaintiff’s counsel extended a lunch invitation to Defendant’s counsel “to have a discussion regarding discovery and other matters.” Plaintiff’s counsel offered to “pay for lunch.”  Defendant’s counsel failed to respond until the motion was filed.

Defendant’s counsel distrusts Plaintiff’s counsel’s motives and fears that Plaintiff’s counsel’s purpose is to persuade Defendant’s counsel of the lack of merit in the defense case.

The Court has no doubt of Defendant’s counsel’s ability to withstand Plaintiff’s counsel’s blandishments and to respond sally for sally and barb for barb. Defendant’s counsel now makes what may be an illusory acceptance of Plaintiff’s counsel’s invitation by saying, “We would love to have lunch at Ruth’s Chris with/on . . .” Plaintiff’s counsel. 1
___________
1 Everyone knows that Ruth’s Chris, while open for dinner, is not open for lunch. This   is a matter of which the Court may take judicial notice.

Read on by clicking on the .pdf above.

And how could I resist adding the "will you go to lunch!" scene from David Mamet's Glengarry Glen Ross.

Negotiating Fallacy: Diane Levin's Brilliant Fallacious Arguments Posts

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.

 

"Man" Up to Negotiate or Prevent Your Own Disputes at Sleeping Beauty's Castle

Conflict is in the house.  The evil fairy surrounded the castle with deadly thorns.  The "good" fairy put everyone in the castle to sleep.  Will you be the valiant Prince in your own dispute story?  Or are you the prize?  The beautiful one who would prefer to remain unconscious rather than address the great battle between good and evil represented here?  Did you hire a lawyer to resolve your dispute for you?  Will he make it to the castle in time?  Or will he spend the bulk of his energy erecting more obstacles to prevent your adversary from reaching you.  By the time both champions reach the castle, will everyone be too bloodied and broke to rise from your bed and put your house back in order?

Choose carefully and read the entire post at the Commercial ADR Blog:  The Other ADR:  Risk Management for the Cloud.

Do Attorneys' "Get in the Way" of Mediator Assisted Negotiations?

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.

 

Don't Leave Money on the Table or Pay Too Much for that Release this Year


 

Don Philbin, the author of this must-read article (click on the image for the .pdf) on the reasons you walk away from negotiations fearing you've either left money on the table or paid too much for what you receive in exchange, is an attorney-mediator, negotiation consultant and trainer, and arbitrator. 

Don has resolved disputes and crafted deals for more than 20 years as a commercial litigator, general counsel and president of communications and technology-related companies.  Don has mediated hundreds of matters in a wide variety of substantive areas and serves as an arbitrator on several panels. He is an adjunct professor at the Straus Institute for Dispute Resolution at Pepperdine Law School, Chair of the ABA Dispute Resolution Section’s Negotiation Committee, and a member of the ADR Section Council of the State Bar of Texas.

Don is listed in The Best Lawyers in America (Dispute Resolution), The Best Lawyers in San Antonio, and the Bar Register of Preeminent Lawyers.

Don's ADR Toolbox where this article can also be found is an indispensable resource for all attorneys negotiating the settlement of a lawsuit or a business deal (wait a minute!  the negotiation of a settlement is a business deal!)

And, it's not inconsequential that Don is one of the nicest guys I know.  If you're going to spend a day or a week or a month with a mediator or an arbitrator, you deserve not only the brightest, most wise and best prepared arbitrator or mediator, you also deserve to have a little fun in the process because . . . you know . . . the money simply isn't worth the unhappiness that comes when dealing with . . . . the other sort too often.

Happy new year (dispute) resolutions!

Ten New Year's (Dispute) Resolutions for 2010

 

  1. I will practice restraint of tongue and pen
  2. When my anger flashes, I will pause to remember that behind every accusation is a plea for help
  3. When in the midst of a rancorous debate, I will remember to ask for the story behind the opinion
  4. I will remember that each of my fellows is struggling with burdens that, if known, would cause me to respond to them with far greater kindness
  5. I will remember that I, too, am subject to fundamental attribution error - over-ascribing intention to those whose behavior causes me real or perceived harm and over-ascribing circumstance to any behavior of mine that causes others real or perceived harm
  6. I will strive to practice my primary occupational purpose:  to stay emotionally sober and to help others achieve emotional sobriety
  7. When I do cause others harm, I will promptly admit my part in it, apologize, make amends and strive to avoid similar behavior in the future
  8. Of the primary responses to conflict -- suppression, avoidance, yielding, resolution, transcendence and transformation, I will strive for resolution, transcendence or transformation
  9. I will keep in mind that it is usually better to be happy than to be right
  10. I will strive to accept the things I cannot change; to rise to the challenge of changing the things I can, and to seek the wisdom necessary to know the difference.

More conflict resolution meditations for the New Year here (at John Lassey's ADR Weblog) here (announcing the CPR Annual Meeting with keynote speaker Kenneth Feinberg, recently appointed as President Obama’s “Compensation Czar” to oversee executive compensation at companies receiving federal bailout assistance); here (Innovative Conflict Resolution's first post of 2010 - about conflict "left-overs"); here (Jeff Thompson's Enjoy Mediation rolling out a new blog template for the New Year); here (the Peace Talks Radio Series special on Seeking Peace on Earth); and, here (Amerika on Conflict Avoidance and How to Avoid it).

Two of my favorite bloggers ended their blog-year with gratitude for fellow bloggers - thanks for the shout out John DeGroote at the brilliant and necessary Settlement Perspectives (A Simple Thank You); and the Loree Reinsurance and Arbitration Law Forum's Acknowledging Some Kind Mentions from Our Fellow Bloggers).

O.K., Ladies and Gentlemen:  start your 2010 engines; it's going to be a busy and productive year!  Lord knows there's lots of conflict resolution work to do.

What's Gratitude Got to Do with It?

(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.

Legal vs. Mediation Narratives and Why They Matter

I taught legal process in the context of mediating litigated cases yesterday at the American Institute of Mediation.  I volunteered my time for the singular opportunity to be a co-presenter with the brilliant Doug Noll (buy and read everything he's written; follow him on Twitter; subscribe to the RSS feed of his blog; and, listen to his podcasts and radio show) and the equally brilliant and most successful "non-lawyer" litigated case mediator in the English-speaking world, Lee Jay Berman of the American Institute of Mediation (follow him; take his Institute's courses; and, listen to whatever he has to say because your negotiation and mediation practice will improve 100% immediately).

Because Doug, Lee Jay and I spent the entire day yesterday talking about legal rights and remedies as well as legal procedure in the context of negotiating the resolution of litigation, I was once again engaged in the soul-searching that always accompanies situations challenging my loyalty to the adversarial/rights-remedies business and stimulates my enthusiasm for the interest-based, consensus building, collaborative, problem solving negotiated resolution business. 

I was looking for something else this morning when I once again stumbled over one of my favorite articles on this issue, Client Counseling, Mediation and Alternative Narratives of Dispute Resolution (Spring 2004) 10 Clinical L. Rev 833 by Law Professor Robert Rubinson.

Before giving you an excerpt that should tempt you to download the article and put it on your nightstand, I want to say this: I work on the razor's edge of my lifetime career-investment in the adversarial system, on the one hand, and my new'ish passion for collaborative, interest-based negotiated resolutions to disputes, on the other.  I spent 25 years as a warrior who rightfully took advantage of my adversary's weaknesses.  I was not a problem solver.  I was engaged in a fight to the death on a pre-determined field with rules in which I believed for causes I knew to be just.  As a result, I approach all alternatives to the adversarial process with a litigator's skepticism, wariness and world-wearyness.  There is no kumbya in me.  It is only my intellectual curiosity that survived the beating my heart took from the world-weary, cynical, grizzled old defense attorneys who taught me how to practice law (as adversaries testing my mettle) in Sacramento thirty years ago.

Sic transit gloria mundi.

The engine that drives litigation's morality tale is that conflict resolution is a contest between parties, one of whom necessarily represents good and the other necessarily represents bad.  As a result, litigation seeks to designate who has committed moral transgressions by breaching legal norms (or, from the perspective of the defendant, who wrongfully accuses others of having done so).

The Story of Mediation subverts these norms by transforming this familiar morality tale into a story of collaboration. This subversion begins through how mediation conceives of conflict itself. Implicit in the Story of Litigation is that conflict represents a breach of the norms of conduct, thereby ripping the social fabric in some way large or small. In contrast, in mediation, conflict is a norm of conduct, a necessary byproduct of humans having distinct experiences and personalities and needs. Conflict is thus not necessarily a disruption of the moral order, and, indeed, can sometimes be productive.

Mediation's normalization of conflict, however, cannot eliminate what appears to be a deep-seated human need to understand experience in terms of struggles and strivings. Humans have great difficulty perceiving events as generated by causes beyond our control - what Amsterdam and Bruner evocatively describe as an inability to see events as "One Damn Thing After Another." We must instead "shape them into strivings and adversities, contests and rewards, vanquishings and setbacks."

The meta-narrative of litigation maps these "strivings" and "vanquishings" onto the struggle of one party against another and enlists the aid of the court to vindicate justice on behalf of the wronged party. In contrast, the meta-narrative of mediation seeks to map these "strivings" and "vanquishings" onto a collaborative struggle to resolve conflict. This narrative casts all participants as players in a process - collaboration - that is focused on reaching the common goal of successfully resolving or transforming a dispute. This story has moral entailments because collaboration is accepted as a social and moral good. Unlike litigation, however, this story does not generate a binary moral universe that divides the good from the bad, but, rather, a universe that values collaborative striving to achieve common ground and resolution.

This story places mediators in a role that is very different from the role played by decision-makers in litigation. Rather than being heroes of moral vindication to whom wronged parties appeal for justice, mediators promote and model collaborative striving to overcome conflict. This plays out in many accepted techniques in mediation. Mediators, for example, often seek "commitment" from participants to the process of mediation, although mediators are careful not to extend this commitment to a commitment to agree. This commitment to process is a proxy for a commitment to collaborate to seek to resolve conflict, thus incrementally moving participants away from contested litigation and towards collaborative problem solving. Similarly, mediators often "reframe" participants' statements in order to emphasize "common ground." This is also an effort to move parties away from a morally charged contest and into collaboration. Finally, mediators encourage and model collaboration through a positive message of optimism and progress towards resolution, even when (or, perhaps, especially when) impasse appears likely.

Moreover, mediation approaches the narrative movement from Efforts to Restoration of Steady State in a very different way than litigation. Whether the Steady State is Restored or Transformed constitutes what I have earlier characterized as a "fork in the road" in the Austere Definition of Narrative. The very language through which litigants seek redress of grievances - to "be made whole," "to pay your debt society" (with its implication that payment of the debt would return the ledger to balance), even the word "remedy" - implies Restoration. In contrast, mediation tends to reject Restoration as a state to which the parties (and society as whole) should or even can return. Rather, mediation seeks Transformation on the part of all disputants so that conflict is resolved.  It does so by embracing the notion that perceptions of the world (including perceptions of the actions of others) are unstable, thus enabling parties to appreciate alternative perspectives as a way to promote resolution of conflict. Mediation, therefore, does embody a plot that adheres to the narrative movement described by the Austere Definition, albeit in ways that are utterly alien to the morality tale of the story of litigation. The story of mediation can be characterized as follows:

Steady State: Whatever Each Party Views as Pre-Conflict

Trouble: Whatever Each Party Views as Constituting Conflict

Efforts: Collaborative Striving To Overcome Conflict as Modeled and Promoted by Mediator

Transformation of Steady State: A New Relationship Among Parties

Coda: Moving On

                           *                          *                        *

Continue Reading

Favorite Thanksgiving Family Conflicts: the Ice Storm

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.

How Not to Kill Your Relatives This Thanksgiving

I kicked off a recent Thanksgiving holiday season 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.

A little more than a week from today, 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 Project's 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 terrorists," 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.

Hope is a Choice: an Interview with Psychologist Anne LaBorde

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. 

 

Conflict Revolution: Mediating Evil, War, Injustice and Terrorism by Dr. Kenneth Cloke

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.

 

 

Mediators and Industry Knowledge, Game Theory and Understanding Conflict

Check out the range of opinions among litigators' clients on this still-hot topic in mediation circles over at the Business Conflict Blog (quickly becoming one of the most indispensable commercial mediation blogs on the web):  Should Mediators Be Expert in the Field of the Dispute?  Excerpt below.

Patrick Deane of Nestlé is senior counsel to the largest food company in the world, and the disputes he runs into involve distributors, retailers, suppliers and consumers in every part of the globe.  His ideal mediator combines logic and intuition; a concern for detail; and the knack of an epatheic listener.  He noted that commercial disputes — even financial ones — are seldom dry, but instead involve personalities, risk of loss of face, and other human attributes just as much as more personal claims do.  The question of subject-matter expertise was of little importance to Deane, compared to these essential qualities in a mediator who must be expert in a process that, at heart, is aimed at cost effectiveness.  “A lack of industry expertise has never caused a failure of the mediation process.

I must admit that when Tim Hughes (@vaconstruction) -- he of the Virginia Real Estate, Land Use and Construction Law blog and an avid ADR watcher -- tipped me off to this post, I read the question as asking whether mediators should be experts in the "field" of conflict - rather than in the industry in which the disputants are involved.

Here's my opinion (as if you didn't already know).  As Colin Powell says, the most important knowledge to have in international negotiations is the other guy's decision cycle.  I imagine the great predictor, the political scientist and Hoover Institute Fellow  Bruce Bueno de Mesquitas would say something along the same lines (see TED lecture below).  See also the NYT piece, Can Game Theory Predict When Iran Will Get the Bomb?

What is the "other guy's" decision cycle?  It is comprised of every interest he must satisfy and every person he is accountable to for the foreseeable (and probable unintended) consequences of that decision.  Personal injury attorneys turned mediators are well acquainted with the decision cycles of both Plaintiff and Defense counsel as well as with the interests, needs, and desires of injured Plaintiffs, on the one hand, and insurance adjusters and their supervisors on the other.  Employment attorneys turned mediators are also deeply knowledgeable about the decision cycles of counsel on both sides of the table (one usually specializing in employees and the other in employers) as well as with the interests, needs and desires of terminated, demoted, or harassed employees on the one hand and of employers - both large and small - who often feel as if the Plaintiff is little better than a highway robber.  Judges turned mediators are better acquainted than anyone else of the decision cycles of juries -- a jury verdict being the alternative to a negotiated resolution.

(Chart from Cultivating Piece)

You knew I'd come to my own "specialty" knowledge.  Some of it is industry specific -- insurance and  financial institutions, for instance, and the garment, manufacturing, health care, commercial real estate, construction, and technology industries.  Though my experience in these fields adds some value to my commercial mediation practice, what I'm most skilled at is knowing the decision cycles of commercial litigators and their business clients.  I understand, for instance, the clients' reporting relationships; the metrics against which their performance and that of their corporate superiors are measured; the impact of SEC reporting requirements in "bet the company" litigation; and, the effect settlements in nine or ten figures might have on upcoming plans for mergers or acquisitions. 

I can read a financial statement. 

At a minimum, I can ask the questions necessary to obtain the knowledge required to ascertain the interests that must be satisfied by both parties to transform the litigation into an opportunity to make a business deal.  And I know how to make the commercial clients happy with their attorneys' final resolution of the business problem burdened with the justice issue that brought the case into court in the first instance.

I am also schooled in the "field" of conflict resolution.  I understand at depth the cognitive biases --  universal tendencies in the way we think -- that inhibit rational decision making.  I know how conflict escalates and, more importantly, how it can be deescalated.  I understand the role emotion plays in decision making (particularly the emotion most common among business litigation clients - anger);  the gentle (and not so gentle) art of persuasion and, perhaps most importantly, the optimal negotiation strategies and tactics for the business problem at hand.

And, I know in the knuckles of my spine what keeps commercial litigators awake at night, worrying about the next strategic, tactical, legal or extra-legal move to make; how to explain to the client that the case has suddenly gone south; and, how to deliver that bad news to the client in a way he or she can hear it and successfully report it to the GC, the CEO, the Board of Directors or e ven the shareholders. 

I know this sounds like a lot of boastful self-promotion (it is).  Please don't take my word for it.  Anyone charged with finding, retaining and hiring a mediator to assist the parties in resolving a piece of hard-fought, sophisticated, complex commercial litigation would do well to check with his or her peers on any mediator's boastful self-appraisals.

This is what I recall of mediator-hunting, however.  I'd send out a list to my colleagues.  I'd invariably get back opinions that were all over the board.  He/she is great with clients but usually ends up splitting the baby in half.  He/she talks too much and listens too little.  He/she marginalized the client and made me look bad.  He/she charges $15,000 per day and is one of the go-to mediators for this type of case but I was unimpressed, as was the client.  This guy/gal can settle anything.  Brilliant.  Magical.  

So what's a beleaguered litigator to do?  Ask people you respect both inside and outside your law firm.  Ask how the mediator handles the "process dimensions" of the mediation.  Does he/she simply carry numbers and rationales back and forth between separate caucus rooms.  Can she give bad news to both sides.  Can he go beyond positional, zero-sum bargaining and into interest-based negotiated resolutions?  Is the client happy with the result and with the process?  After you've done this basic research, call the mediator yourself and ask him/her about the way in which she/he might handle the mediation of the particular matter you need to have resolved.   You should not only have the best information possible in making your choice, you should get a fair amount of terrific free advice and external brain-storming along the way.

I really just meant to cite the Business Conflict Blog and get back to revising The ABC's of Conflict Resolution - my second draft due on October 30.

So what's my answer to the question whether the mediator should have industry knowledge?  That answer lies, as most legal problems do, in the gray zone.  Industry knowledge helps.  But every commercial litigator knows that we can learn any industry if we have a basic understanding of how commercial enterprises work.  That's what I know -- commercial litigation -- and it is the reason I don't mediate personal injury or employment disputes with anyone below the rank of senior executive.  I don't know the right questions to ask and I don't know -- at depth -- the parties' or counsel's decision cycles. 

I can learn, but if you called me for a personal injury or employment mediator, I wouldn't recommend myself - I'd recommend someone like Janet Fields or Nikki Tolt at Judicate West (personal injury) or Deborah Rothman, Jay McCauley or Lisa Klerman at their own mediation shops (employment). 

For commercial mediation, I'd recommend the usual suspects (including, of course, myself) and Jeff Kichaven, Eric Green, Jay and Deborah, Ralph Williams (at ADR Services, Inc.), George Calkins and Jerry Kurland at JAMS (complex construction litigation); Les Weinstein (IP, particularly as an arbitrator); Mike Young (Judicate West and Alston + Bird); and, John Leo Wagner (Judicate West). 

I know I've left a lot of fine mediators out of this list but these are the ones who immediately spring to mind because I either have personal experience as a client or co-mediator or I have it on the authority of my husband, Stephen N. Goldberg, formerly at Heller and now at Dickstein Shapiro (author of the Catastrophic Insurance Coverage blog).

Enough!  Off to the real brains at hand -- Bruce Bueno de Mesquita at TED.

Blawg Review #234

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[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 JusticeCharon 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 namedMartin Luther King, Jr.  - the arc of history is long, but it bends toward justice.

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



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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[24]             Intentionally left blank.

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

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

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

 

The Annual ADR Issue of the Advocate is Out and Online

The Advocate - the Journal of Consumers Attorneys Organizations of Southern California publishes an annual ADR issue every year and this year's issue is a goldmine of mediation strategy and tactics.

From preparation to closing, some of L.A.'s most prominent mediators reveal the secrets of getting the best deal available for your clients. 

Read former CAALA Trial Lawyer of the year Sandy Gage's article on Getting the Best Results in Mediation and AIM founder, mediator and trainer Lee Jay Berman's Twelve Ways to Make Your Mediator Work Harder for You.

JAMS mediator Alex Polsky reveals the secrets to Negotiating Like the Pros, while ADR's Ralph Williams counsels readers on the many ways to avoid the Top Ten Mediation Disasters.

Mediator Phyllis Pollack who blogs and writes for the Federal Bar Association's Resolver also has a dynamite article here - Preparing for Mediation, Something to Ponder.

Another top mediate.com blogger and mediator Steve Mehta reveals Why Some Cases Don't Settle and Others Do while Judicate West Executive Vice President of Business Development Rosemarie Chiusano writes about Top Neutral Qualities from one of the best sources on mediator excellence -- the ADR service provider.

My ADR Services, Inc. colleagues Jan Schau, Michael Diliberto, Joan Kessler (the brains behind the entire issue!) and Leonard Levy round out the issue with Telling Lies, Telling Secrets (Schau); Opening Offers:  Who's on First (Diliberto); The Defense Reveals Mistakes that Could Cost Your Client Money; and Kessler's incisive executive summary of them all.

Finally, former defense attorney and Judicate West mediator Jack Daniels, honored for his ethics and fairness by COAC outlines the 10 necessary steps to mediation success.

Oh, yes, I'm here too with one of my mediation narratives, We Tell Ourselves Stories in Order to Live.

The online Advocate can be read like a magazine, complete with turning pages.  It's a pretty cool online journal format in addition to being a great contribution to the growing literature on best mediation practices. 

Dive in!  The water is warm and the natives are friendly.

Sure We Can Compromise, But Can We Negotiate Justice?

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

 

 

 

Yet Another Path to Attorney Malpractice in Mediation Proceedings: Coerce Your Own Client

Because the vast majority of my litigation and mediation clients were and are corporate entities or highly successful entrepreneurs, executives or managers, I was and am rarely in a position to coerce a client into doing something it didn't want to do. 

As a mediator, however, I hear stories.  

Some of the stories I hear are told by disgruntled individuals who feel as if they were coerced by their own counsel into settling their litigation during a mediationOthers have reported that they felt ganged up on by their attorney and the mediator.  Some have complained that they were unduly pressured to stay in the mediation process long after they were too tired or hungry to think clearly. 

These stories are troubling to any mediator who values the good reputation of the mediation process itself.  They should also disturb attorney mediation advocates.

Is it below the standard of care for an attorney to subtly (or not so subtly) pressure his or her client to settle litigation?  Under certain circumstances, I think it is.  Here's the bad news.  If a litigant is unhappy with the outcome of mediation, he or she is far more likely to bring a complaint (or lawsuit) against his or her own attorney.

In a 2006 article in the Ohio  Journal on Dispute Resolution TAKE IT OR LEAVE IT. LUMP IT OR GRIEVE IT: DESIGNING MEDIATOR COMPLAINT SYSTEMS THAT PROTECT MEDIATORS, UNHAPPY PARTIES, ATTORNEYS, COURTS, THE PROCESS, AND THE FIELD  Paula M. Young, Assistant Professor at the Appalachian School of Law cites Mel Rubin on "settle and sue" cases which Rubin suggests are on the rise among clients unhappy with the outcome of a mediation.  Rubin "also suggests that if a client is unhappy with the outcome of mediation, he or she is more likely to sue his or her attorney for malpractice. Id.

What might actionable attorney mediation malpractice look like?  Young cites the example of one woman who told the following story:

I refused to sign several times. My attorney then began yelling at me to “shut-up and sign the damn thing” I wasn't allowed to leave until it was signed . . . . The words, “NO I can't sign this,” fell on deaf ears. I was so unfamiliar with the process of it all and what it meant and what the outcome entailed.

Young has a systemic solution for problems like these:  procedural "justice" during the mediation itself and grievance procedures for dissatisfied litigants.  She writes:

To the extent the procedural justice research indicates that parties who perceive they have received procedural justice in mediation also perceive that the negotiated outcome in mediation is fair, we would expect that these parties are not likely to later sue their attorneys for malpractice. Even when the client has little trust in his or her attorney, a mediation process that enhances procedural justice allows the party to assess directly whether he or she feels exploited or mistreated in the process.

Even if the mediation process itself lacks procedural justice and the client accordingly remains dissatisfied and suspicious, a well-designed grievance system, emphasizing procedural justice from the client's perspective, may give the client the reassurances he or she needs. A client who suspects collusion between his or her lawyer and the neutral could seek the informed opinion of the regulatory body, without ever having to file a legal malpractice law suit.

Remember that we tend to stumble and fail when we're Hungry, Angry, Lonely (marginalized) or Tired (HALT) and so do our clients.  When I notice litigants flagging or attorneys losing their tempers, I suggest a walk around the block, a nutrition break (not eating more cookies) and, in extreme cases (someone becomes ill during the course of the session) reconvening at a later date.  Remember how powerful and all-knowing you appear to be to your clients and what a strange and frightening land the "justice system" is for those who are encountering it for the first time.  

There's no better defense to professional negligence actions that the quality of your relationship with your clients.  Keep channels of communication open.  Demand that your adversary and the mediator treat your client with respect.  At the first sign that a mediator is exercising undue influence on your client, say something, just as you would if opposing counsel were harassing your witness at a deposition.  Follow these dictates and you'll rarely if ever be worrying about calling your insurance carrier.
 


Diplomatic Engagement to Settle Your Commercial Litigation

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.    

Best Early Case Assessment Practices

I cannot recommend John DeGroote's Settlement Perspectives blog too highly or too often.  This week he praises CPR's new Early Case Assessment Guidelines.  Praise from John is hard to come by.  I join in his comments below and suggest that all my readers click on the link below for his excellent commentary.

The International Institute for Conflict Prevention & Resolution, known also as the CPR Institute, has recently published CPR’s Early Case Assessment ; Guidelines (2009), which are designed to “set forth a process designed to help businesses decide early on how to manage disputes, including identifying key business concerns, assessing risks and costs, and making an informed choice or recommendation on how to handle the dispute.”  They certainly meet their objectives.

Continue reading CPR Publishes Early Case Assessment Guidelines here.

Negotiating Rational Choice, Statistics and the Future of Mankind

 

(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,

Can Game Theory Predict When Iran Will Get the Bomb?

 

Closed Dutch Auctions from Mediator Ralph Williams, III

Ralph Williams August 2009 ADR Tip

 

 

_______________________________________________

When 50-50 partners break up, the Closed Dutch Auction is an effective way to set the buyout price. The partners exchange sealed bids stating the price at which they will sell their 50% share. The highest bidding partner "wins" and buys out the "loser" at the "loser's" price.

The price set by each partner must be realistic, because if he "loses", the partner will have to sell at the price he set. Setting too low a price has a double adverse effect; the "losing" partner will be the seller at the lower price.

Ralph O. Williams III
ADR: 310.201.0010

Direct: 818.986.8101

Mediators' Proposals: the Good, the Bad and the Ugly

At the close of the year, our good friend John DeGroote at Settlement Perspectives asked whether mediators' proposals had lost their utility.  Now that parties "know the mediator's proposal is coming," he wrote,

savvy negotiators angle for an advantageous impasse rather than a settlement. Compromise is no longer the goal of the mediation exercise; instead it becomes a play to the “neutral,” whose power to craft the mediation proposal will make her the real decisionmaker:

  • In cases where the mediator’s proposal will be based on who will pay what, the parties — or worse yet, one party — will spend valuable time and effort constructing an impasse when, in the absence of a mediator’s proposal as a fallback, he might have actually achieved a compromise settlement; or

  • In cases where the mediator’s proposal will be based on the value of the case, no one has an incentive to be candid with the mediator — so positions become more important than interests; or

  • In cases where the parties aren’t sure what will drive the mediator’s proposal, they dig into their positions and hope for impasse — with the most likely result being a mediator’s proposal predicated on those positions.

Just yesterday, a prominent local IP litigator, trial lawyer and deal-maker Robert J. Rose of Sheldon Mak Rose & Anderson graced the IP ADR Blog with a guest post on the utility of mediators' proposals here.  As Rose notes:

A reluctant plaintiff will make a large jump if the money is really “on the table.”  Defendants will come up with money they otherwise deny having, if it means that the case is really over.  It also eliminates reactive devaluation.

For those who skipped social psychology in college, reactive devaluation is what every lawyer is taught in the first year of practice, if not earlier.  "If the other side wants it," said my first mentor, "you don't, even if it seems like a good idea to you."  With that admonition ringing in the ears of every litigator, the need for mediators is obvious.  Given the dangers cited by DeGroote, however, the mediator's proposal may now be simply another way to "game" the mediator. 

I have two short stories to illustrate the reason I re-direct the parties to bracketing when they ask me to make a mediator's proposal. But first, let me explain that I am one of those mediators who used my "proposal" option to put a number on the table I thought both parties would accept even though it would be a stretch for both of them.  I usually tested these assumptions in separate caucuses by asking each side "if they came down to $X would you come up to $Y."  When the numbers didn't overlap, I'd gauge how much pain there might be for both parties to bridge the gap, along with other entirely subjective opinions such as:

  • how invested each side was in walking away with a settlement that day
  • how firm each side was in their assertion that they would not go below or above a certain number
  • whether either attorney needed help in bringing a little more reality to their clients before the parties would be ready to accept a proposal by the mediator; and,
  • how much "street cred" I'd developed with the parties personally so that they'd accept my estimate of the settlement price-point even if they wouldn't accept their own attorney's advice /*

The first time I felt manipulated into making a mediator's proposal that wasn't the best both parties could do occurred at the close of a particularly fractious commercial mediation. In the presumed Zone of Potential Agreement , my proposal was high on the side of the Plaintiff because I felt that the defendant had more "give" than did Plaintiff's counsel. 

I made my proposal and both sides accepted.  When I walked into the defense caucus to tell counsel that he had a deal, however, I was met with a burst of laughter, the clapping of hands and the following statement:  "I was prepared to take less; that's a great deal.  Thanks so much."

Everyone Lies to the Mediator

That was the hardest lesson I'd had to date in the truism that EVERYONE lies to the mediator.  You do not get to lie to the mediator twice, however, so I caution anyone who's feeling that she put one over on the mediator either to keep it to herself or never to hire that mediator again.

Still, I took a lesson from the attorney's merriment.  I realized immediately that he was not the only, nor the first, attorney to manipulate me.   He was simply the only one to let me know it.  I don't like being manipulated.  But that's what litigators are trained to do.  We call it "persuasion."  Still, I didn't like the look of my mediator's finger prints on that settlement, one that now appeared unduly influenced by my credulity.  

So that's reason no. 1 -- an extremely strong reason no. 1 - why I don't' like to make mediator's proposals and why counsel might ask themselves whether they want to continue asking for them.

"If We'd Wanted a Third Party to Decide, We Would Have Arbitrated This Case"

The quote above is from an attorney who represented one of the parties in the largest and most sophisticated commercial case I've mediated to date. We were at the end of day two and the parties -- who had traveled great distances to meet in a neutral city -- were nowhere near a landing point.  I was a sufficiently experienced mediator to land the case, but new enough to feel as if I'd run out of options when I suggested making a mediator's proposal.  

"I didn't hire you to have a third party make my decision for me," said counsel.  "If you want to get the parties closer together, why don't you suggest a bracket?" (for a explanation of bracketing, see my colleague Ralph Williams' article Introducing Deal Points - the Basics.)

I'd used brackets as a means of testing the parties' true distance before that day ("if he went to $X would you come down to $Y?") but I'd never made a mediator's proposal that was a bracket, i.e., "I suggest that the defendant put $X on the table if plaintiff will reduce its demand to $Y."

Although we didn't settle the case that day with a bracket (it took four full months of follow-up telephone negotiations to do that) I took counsel's point to heart.  The parties don't hire me to make a decision for them.  They're much happier when they get to make the decision themselves.  Even though the parties do decide whether to accept the mediator's proposal, it hasn't come to them as the result of their own hard work.  That being the case, the agreement reached is far less durable (subject to failure based upon nit-picking deal points after the agreement has been reached in principle) and far less satisfying than one achieved without the mediator's thumb on the scale.

I decided to stop making mediators' proposals more than two years ago.  In all that time, however, I've never refused to make one.  Rather, I've suggested alternative ways of achieving resolution, at least one of more of which settled the case in every case where the parties asked for a mediator's proposal.  

I'd like to hear thoughts on these points -- manipulation and party satisfaction -- from my litigator readers as well as my mediator readers.

More mediator thoughts on mediator proposals here:  The Mediator's Proposal at Mediation Meditations.

________________

*  I say this with the following caveat:  I would never attempt to influence clients to do something other than what their attorneys advise.  From time to time, however, the attorney needs to make the mediator the "bad cop" in the negotiation so that the client will not feel as if the attorney is no longer fighting for his interests.  I only play "bad cop" with the attorney's advice and consent.  My job is to get the settlement concluded making the attorneys look good, not bad.

Negotiating Cooperation

Update on the $4.1 Billion Arbitration Award Confirmed as Judgment by Los Angeles Superior Court

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

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

 

Negotiating with Difficult People for Lawyers

Structured Settlement Traps for the Unwary

I would not ordinarily post a power point presentation that is someone else's marketing vehicle.  Nor would I generally post a power point that is meant solely for the benefit of one side of any dispute (here, plaintiffs' personal injury attorneys).  I read though the entire lengthy presentation, however, and thought it contained some good tips over a broad range of issues that could well be useful to attorneys, clients and mediators in settling personal injury litigation involving the use of structured financial products.  So with all disclaimers considered given (not my opinions; don't vouch for accuracy, etc.) I uploaded the below presentation for anyone who might find it a useful jumping off point in this complex arena (i.e., it invovles arithmetic if not actually mathematics!)

 

HOW You Negotiate More Important than WHAT You Negotiate

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.

 

Negotiation Training Now!!

Conflict is Inevitable, Combat Optional from Justin Patten at Human Law

British mediator and blogger Justin Patten (Human Law) has a terrific piece in his ezine today entitled Conflict is inevitable, combat is optional – how to negotiate without falling out.  Justin responds with sympathy to a recent survey calling his fellow Brits "the angriest nation in Europe," noting that the

wave of redundancies sweeping across the nation is forcing a number of employers, employees and their advisors such as lawyers and trade unions into conflict situation. As customers become slower and slower at paying added pressure is created for their suppliers and relationships become strained.

Because the "approach taken by those involved and their attitude in dealing with the conflict will have a significant impact on the outcome and the costs involved in finding a solution," Justin provides the following easy to implement solutions:

1 Avoid macho posturing – In an attempt to hide the weakness of their position some people are all bluff and bluster in conflict situations. . . . . (more)

2 De-personalise problems – My experience of disputes is that often things can happen due to personal issues between the individuals. It can be difficult to take the personalities out of a matter but believe me there are clear benefits. . . . (more

3 Focus on your own emotions – In many work environments there are unwritten rules that emotions are not to be expressed. Is this really wise?  . . . (more)

4 Listen – Effective communication starts with the speaker taking responsibility for understanding the language, perspective and experiences of the listener. . . . (more)

5 Analyse the Conflict – Research on problem solving indicates that the effectiveness of solutions increases significantly once the real problem is identified. . . . (more)

Justin Patten handles conflict for a living and whilst as a litigation solicitor he is familiar with the combat zone of the court room he much prefers to work with clients to achieve mediated solutions through negotiation and agreement. Contact Justin on 0844 800 3249 or email Justin here.

Further reading:

Negotiating for Excellent Results

Human Law Mediation has just published a new White Paper – Negotiating for Excellent Results – which contains advice and tips on how to negotiate with power and persuasion in conflict situations. You can download a PDF version of the White Paper here.

Keeping Away from Court Room Battles and Employment Tribunals

A White Paper with advice on How to save money, maintain business relationships and avoid negative publicity by embracing the power of mediation to resolve business and employee disputes. Download the PDF here.

You can subscribe to Justin's invaluable eZine here.

Dealing with "Jerks" - Tit for Tat in an Email World

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.  

There are no one-man jets cruising the skies; no robots running my errands or cooking my dinner; no tele-transportation; and, on the political scene (it's not yet 9/11) no Big Brother

My personal 2001 "future" is mostly about my instantaneous access to information and "real time" communication via the "killer app" -- email -- telegraphic, spontaneous, unnuanced, and about to get me in a great deal of trouble.  (See Vanity Fair's must-read oral history of the internet here.)  

There's an associate back in Los Angeles, you see, the quality of whose work and the strength of whose dedication to the case at hand is in alarming decline.  More troubling, his work is deteriorating at the same time I'm taking old fashioned passenger jets from province to province to take the testimony of as many witnesses still living who know how 500+ toxic waste sites got that way in the first place.    

Did I say it's 3 a.m.?  The associate I'm thinking about failed to get me the outline I need for tomorrow's deposition on time -- or at all.  The "hard copies" that were supposed to be waiting for me when I arrived at the hotel have gone missing.  I'm tired.  I'm hungry.  I'm lonely.  And I'm angry. 

Worst of all, I'm composing an email to my  associate about my considerable disappointment in his recent performance.  There is a moment, a split second, in which my finger hovers over the "send" button while a rational voice in my head says "no."  Then I push "send."

Email Makes Settlement More Difficult  

More and more often when I'm meeting counsel on the morning of a mediation, they're also meeting one another for the first time.  In fact, they often have not even previously spoken to one another unless they've met in Court ("good morning, counsel") or in depositions (eyes averted; objections made).  Increasingly, by far the vast percentage of their communications have taken place via email.  

And that's a problem. 

Conflict Escalation

There's no question that litigation escalates whatever conflict existed when our client first walks in our door.  We don't, after all, make requests.  We issue demands.  We don't seek concessions.  We insist upon them.  We don't make inquiries.  We require responses.  And we're not such great listeners.  Rather, we impatiently tap our feet in Court, waiting for counsel to finish his argument (which we've heard dozens of times before) so we can press our case.

Are these bad things?  Not necessarily.  So long as we understand what we're doing and the likely results our conduct will have, escalation is not necessarily worse than maintaining a steady state or even deescalating conflict.  

The problem for most of us is that we don't know what we're doing and we don't understand the breadth and depth of the likely repercussions.  

In Conflict Escalation: Dispute Exacerbating Elements of E-Mail Communication, author Raymond A. Friedman of the Owen Graduate School of Management at Vanderbilt University quotes conflict specialists Rubin, Pruitt and Kim on the difficulties caused by escalation tactics and strategy.  According to Rubin, et al., escalation is 

"an increase in the intensity of a conflict as a whole.”  Escalation is important . . . because when conflict escalates it “is intensified in ways that are sometimes exceedingly difficult to undo.”  One reason why escalated conflicts are so hard to undo is that when more aggressive tactics are used by one side they are often mirrored by the other side, producing a vicious cycle.

Email, Friedman argues, unnecessarily, and often drastically, escalates conflict in ways none of us fully appreciate.  Unlike conversation -- in person or by telephone -- we are not

physically present with others, can’t see their faces or hear their voices, and can’t give or get immediate responses. The lack of contextual clues . . . impose high “understanding costs” on participants in e-mail interactions, making it harder to successfully ground the interaction. . . . /*  [T]the inability to carefully time actions and reactions . . . makes communication less precise.  

E-mail Not Only Lacks Social Clues, it is "Profoundly A-Social." 

Sitting in my Toronto hotel room at 3 a.m., reviewing online documents for tomorrow's deposition and now "penning" an email to my errant associate, I am, argues Friedman, not simply making communication more difficult, I have become "profoundly asocial" as my associate will also likely be when he reviews my email the following day.  "E-mails," writes Friedman,

are typically received and written while the writer is in isolation, staring at a computer screen – perhaps for hours at a time, so that awareness of the humanness of the counterpart may be diminished.

As evidence, Friedman cites research in which subjects played the "prisoner's dilemma" game against a computer.  Not only did the gamers act asocially in this context, "many continued to act asocially even when told that they were now playing with people (through the computer)."

E-mail, Friedman concludes, "often occurs in a context devoid of awareness of human sensibilities."

The Precise Difficulties Caused by E-Mail Communications?

Use of aggressive tactics. If e-mail communication encourages the use of more aggressive tactics during a dispute, or makes a counterpart’s tactics appear more aggressive, then escalation will be triggered.

Changes in view of other. Escalation is more likely if e-mail causes negative changes in psychological processes (e.g., perceptions and attitudes) towards the other, such as (1) seeing the other as unfair, (2) lessening empathy toward them, (3) increasing deindividuation and anonymity, or (4) or seeing the other as immoral.

Weakened interpersonal bonds. If e-mail weakens social bonds with the other, then escalation is more likely (e.g., due to reduced inhibitions for aggression).

Problems are difficult to resolve. If the communication limitations of e-mail (e.g., asynchrony deficits) make problems more difficult to solve, conflict may be escalated as frustrated disputants move from mild to more aggressive strategies to achieve their goals.

As a result, says Friedman, there are "higher rates of escalation when disputes are managed via e-mail than via face-to-face communication or other relatively rich media . . . such as telephone conversations." /**

Back in Los Angeles the Following Day

You knew this story was not going to have a happy ending.  What a cranky, tired, stressed partner types into her computer at 3 a.m. and what a fully awake associate reads with his morning coffee the following day are, as Friedman stresses, two quite different things.  And though I've rarely had a face-to-face disagreement with a colleague that cannot be mended by further communication, apologies, explanations and the like, this particular communication caused a rift that I was unable to heal.

This experience from several years ago, coupled with my recent mediation experiences, makes me want to advise, exhort, plead, beseech, entreat and pray that you commence every litigation with a telephone call rather than a "demand" letter or email.  And that you continue to communicate with opposing counsel by telephone or, even more radically, in person over a meal, throughout the litigation to make sure channels of communication are as open and clear as possible.

The difficulties saved will not only benefit your personal life (reduce stress, increase fellow-feeling and the like) but will benefit your client as well -- in case efficiencies and better settlements all around.     

 

______________________

*/  "Grounding" is the process 

by which two parties in an interaction achieve a shared sense of understanding about a communication and a shared sense of participation in the conversation. Grounding is important because “speech is evanescent...so Alan must try to speak only when he thinks Barbara is attending to, hearing, and trying to understand what he is saying, and she must guide him by giving evidence that she is doing just this."

** /  There's much more to be learned from this article, but these highlights should tell you whether further reading is in your interest or worth your time. 

The Question is Not WHETHER But HOW MUCH Your Mediator is Deceiving You

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Your thoughts?

Victoria Pynchon Now Available on AAA's Non-Binding Dispute Resolution Services Panel for Businesses and Consumers

The American Arbitration Association announces a new set of dispute resolution services for businesses and consumers, including new panel members of which I am one.

Mediation and non-binding arbitration are processes that offer parties opportunities to settle their disputes. Pursuing settlement helps clients to reduce the total cost of conflict management in their organizations, provides flexibility and protects valuable relationships with partners
and customers.

The American Arbitration Association®’s (AAA) Non-Binding Dispute Resolution Services for Businesses and Consumers is a suite of settlement services and solutions that include:

  • Mediation

  • Non-Binding Arbitration

  • Non-Binding Arbitration and Mediation Contract Clauses Guide

An important element of the suite is access to AAA staff facilitators who stand ready to aid parties in selecting the settlement options most appropriate for their needs and the circumstances at hand. To reach a facilitator, simply select the “Contact Us” option below to send an email requesting information
and assistance
.

Here are the consumer procedures.  You can also find these rules on the commercial dispute resolution page here.  And here's a .pdf download of dispute resolution clauses geared toward the business and consumer dispute resolution services provided by the AAA.

Separating the People from the Problem at the ABA DRS Conference

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.

You Must Create Disputes to Resolve Conflicts: Contingent Business Interruption Coverage

Most people think ADR professionals believe that all conflicts are bad.  Quite the contrary.  Those of us who are trained and practiced in dispute resolution understand that conflict must ripen into one or more disputes for society to evolve along the arc of justice. 

The social psychologists tell us that disputes arise whenever one person or group begins to believe that their deprivation arises from someone else's satiation.  I'm not getting fed because my next door neighbor is.  I was not promoted because my co-worker was.  I didn't gain admission to my chosen University because “less qualified” students were admitted under affirmative action guidelines.  K-Mart suffered crippling market share losses because its competitors, Wal-Mart and Target, engaged in unfair competitive activities (purely hypothetically). 
 

Listen to author, mediator, teacher and scholar Ken Cloke on conflict.  "Conflict," he writes,

is the sound made by the cracks in a system, the manifestation of contradictory forces existing in a single space.  Many . . . conflicts represent the points of weakness in a organizational [or political or commercial] system.

 

To "make room" for those "contradictory forces" we often must raise a ruckus or ask for something we never believed we might be entitled to.  Say, gay marriage.

Which takes me (at long last) to Scott Godes' recent post on contingent business interruption coverage

Huh?

Listen.  Your interests are at -- at best -- in perceived conflict with those of your insurance carrier.  That's why the entire field of bad faith insurance law was developed.  Corporations once had a cozy, apparently non-conflictual relationship with their carriers because no one questioned the carriers when they said a claim wasn't covered.  That was before catastrophic losses caused Fortune 500 corporations to call creative attorneys and specialties like environmental insurance coverage law were created. 

Today, Dickstein Shapiro attorney Scott Godes creates a quiet and restrained ruckus by raising a  conflict to the level of a dispute -- by way of his post Ensuring Contingent Business Interruption Coverage.  Excerpt below:

Today, Insurance Law360 published a piece that I wrote regarding contingent business interruption coverage.  Are you wondering what is contingent business interruption insurance, and whether your business needs it?  I gave an overview of the coverage in the article:

First, an overview of contingent business interruption coverage. “Regular business-interruption insurance replaces profits lost as a result of physical damage to the insured’s plant or other equipment; contingent business-interruption coverage goes further, protecting the insured against the consequences of suppliers’ problems.” Archer Daniels Midland Co. v. Hartford Fire Ins. Co., 243 F.3d 369, 371 (7th Cir. 2001) (“Archer v. Hartford”).

For full post click here.

Convoluted I know; welcome to my stream of consciousness.

Settling Lawsuits: Money is the Instrument but Justice is the Issue

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.

 

Getting Your Opponent to the Bargaining Table without Appearing Weak

Transparency Will Eliminate Unnecessary Wariness Between Parties (.pdf)

from the April 1, 2009 Daily Journal

 
 

FORUM COLUMN

By Victoria Pynchon

As a mediator, the question I hear most frequently from lawyers is "How do I convince my opponent to sit down and negotiate without losing my competitive advantage?"

Believe it or not, the answer is transparency.

If you can remember way back to last July, when firms like Microsoft and Yahoo were still engaging in business as usual, you might recall that a merger fell apart because Yahoo was acting "weird." At least that's what Microsoft's chief executive, Steve Ballmer, told the Wall Street Journal.

"We had an offer out that was a 100 percent premium on the operating business of the company and there wasn't a serious price negotiation ... until three months later. It was a little ... weird."

Lawyers know that three months rushes by in the blink of an eye. The board of directors meets. It seeks an analysis from the mergers and acquisitions people, who consult with outside counsel's antitrust department, which renders a decision but whose members first have to chat with the tax guys. Then there are the IP people with whom to discuss license agreements and, of course, the managers in the human resources department, who may or may not have advice about executive parachutes - platinum, golden or brass.

And yet the Yahoo-Microsoft merger fell apart because Microsoft felt that Yahoo's delay was "weird."

Let's go back to what every trial lawyer knows. In the absence of information, people make stuff up. Weird stuff.

And the stories we tell ourselves about our uncommunicative commercial partners do not include one where the other guy is laboring day and night to fulfill our fondest desires. No. In the absence of information, we weave elaborate conspiracy theories in which our opponents are scheming to fleece us of our rights, obstruct our prospective economic advantage and turn our world upside down.

Your dentist can tell you what your opponent wants to be told. A fully illustrated pre-game outline of the upcoming procedure that goes something like this "First I'll put a little numbing cream on your gum. That way the shot of Novocain won't hurt too much. Then I'll drill," she'd say, holding the fearful appliance up and switching it on. "It may sound louder in your mouth than it does here in my hand, but I'll only have it on for about five minutes, after which ... etc., etc."

So how do you get your opponent to the bargaining table without sounding weak?

You say "Listen, Ted, I know both our clients believe their cases are as good as gold but after an initial round of discovery, it's my practice to call a timeout to discuss settlement."

Pause.

"How does that sound to you?"

Ted says it sounds all right. Which it does. Because Ted's got three incredibly acrimonious cases in his practice right now. Last year, one of his adversaries served an ex parte application with three bankers boxes of exhibits the day before Christmas. At 4:59 p.m.  And she scheduled the hearing for hearing on the day after Christmas. Sure, the judge would deny it, but Ted couldn't assume anything. He worked 15 hours on Christmas Day.

So it sounds good to Ted.

More important to your own litigation plan, your opponent has just agreed to come to the bargaining table, even though the actual meeting won't be held for several months. When the appointed hour arrives, you will not have to ask for a settlement conference at a time when it might show weakness on your part. It's part of the plan.

For the remainder of the article, click here.

Litigation in Plato's Allegory of the Cave

Think of the cave as being "your side" of "the case" -- the facts that fit within the "elements" of the cause of action that will entitle your client to a remedy.

Think of the outside world as representing the lived experience of both parties with all of the texture, ambiguity, dimensionality, particularity and depth of human experience and the particular experience of injustice.

How far outside of the cave are any of us willing to venture?

Hat tip to @BILL_ROMANOS for leading me to this fabulous claymation of Plato's Allegory of the Cave.

 


Watch The Cave: An Adaptation of Plato's Allegory in Clay in Animation  |  View More Free Videos Online at Veoh.com

"Winning" the Negotiation with Insights from the Social Psychology of Conflict

Greater Negotiation Flexibility Results in Greater Anger?

Thanks to Anne Reed at Deliberations for "tweeting" (@annereed) the article Flexible Approach To Acute Conflict Results In More Frustration and Anger, Study Shows.

The research subject of the article suggested that having a more flexible approach to resolving an acute conflict interaction results in more frustration and anger.

I'll need to see the study itself to be convinced.  The study described merely suggests that people offering a greater number of solutions to a party pre-instructed to stonewall will become angrier than those offering fewer solutions, i.e., that those who persist in trying, and failing, to resolve a conflict, get more and more angry and frustrated than those who give up more easily.

This does not suggest to me that "greater negotiation flexibility" necessarily results in a greater degree of anger in the negotiation dyad, but only in the person attempting to resolve a dispute that his partner has been instructed to resist.  Though an apt description of the adversarial process, this is not a fair depiction of persistent attempts to negotiate resolution where the negotiators are given a fighting chance of closing a deal.

As the article explained, study participants were told that a neighbor was playing music too loudly and instructed to ask that it be turned down.

During the interaction, the [participants] followed a script of uncooperative responses such that the task could not be resolved.

"We categorized the verbal responses of participants during the task into seven types of negotiation strategies, including problem-solving and aggressive/threatening. Individuals who used a smaller set of strategies were considered less 'flexible' than those who used a greater variety of strategies," Roubinov said.

The [researchers] . . .  also looked at the intensity of participants' facial expressions of anger or frustration, and measured participants' biological response to the task using cortisol, a stress hormone.

"Our results indicated that greater flexibility may not be the healthiest approach," Roubinov said. "Unlike less-flexible participants, those who tried a greater variety of responses showed more intense facial expressions of anger and frustration. Cortisol levels in more flexible participants also reflected an unhealthier biological response to stress than the less flexible participants."

Of course persistent participants become increasingly frustrated (and angry!) when their multiple suggestions to resolve a dispute are met with stonewalling from their negotiation partner.  This doesn't suggest, however, that "greater [negotiation] flexibility" is not healthy.  It suggests that stonewalling leads to anger, one of the reasons that mediators are employed to help all participants in a negotiation generate potential solutions.

I'll look forward to seeing the study when it's released but based upon this article, I'd say the conclusion drawn is misleading broad and unduly pessimistic.

Conflict Resolution: When a Mediator is the Client

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)

 

Don't Skimp on Negotiation Skills in the Downturn

I've scaled my MCLE way back this year, including any continuing education that requires travel unless, of course, it's something I'm speaking at to continue growing my business.  Some MCLE courses, however, stay on my radar -- particularly those that don't require me to leave the office and that teach me skills to help me thrive in hard times.  This IP settlement webinar is one of those continuing education courses I'd attend unless I thought I was already the best settlement attorney I could be.  So seriously consider joining me and Chicago-IP lawyer extraordinaire R. David Donoghue of Holland + Knight for Hard Times? Learn How to Negotiate the Best IP Litigation Resolution

ADR in IP Litigation from ALI-ABA

Wednesday February 18, 2009 from 1:00-2:00 pm EST

Why Attend?

In a difficult economy, intellectual property protection and assertion is more important than ever. The combined stressors of a poor fiscal climate and shrinking legal budgets place a significant strain on any business dependent upon IP assets. as companies face difficult economic decisions, it is increasingly difficult to fit the expense and extended uncertainty of copyright, patent and trademark litigation into a forward looking business plan. This one-hour seminar explores the use of alternative dispute resolution as a means of protecting intellectual property and business activity, while minimizing the expense and devotion of time related to traditional IP litigation.

What You Will Learn

This program examines how to move an IP dispute toward alternative dispute resolution; best practices for controlling the expense and length of the process; and best practices for successful alternative dispute resolution. Whether you are an experienced IP practitioner or simply one grappling with IP issues in your general commercial practice, knowing how to offer your clients a wide array of ADR options might make the difference between a practice that survives and one that thrives. The seminar will cover the following topics:

How to choose between litigation and ADR.

  • The most successful strategies for guiding your dispute into the best ADR forum at the most productive time.
  • The five basic rules of “distributive” or “fixed sum” bargaining that will give you the “edge” in all future settlement negotiations.
  • The five ways to “expand the fixed sum pie” by exploring and exploiting the client interests underlying your own and your opponents’ legal positions.
  • The Ten Mediation/Settlement Conference Traps for the Unwary.

Invest just 60 minutes at your home or office to learn about alternative dispute resolution in the IP field from this duo of experts. This audio program comes to you live on Wednesday, February 18, 2009, 1:00-2:00 pm EST, via your phone or your computer. Materials corresponding to the course may be downloaded or viewed online.

Lawsuit-Proof Your Business to Cut Costs in Downturn

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.

Pre-Trial Discovery Decreases Likelihood of Settlement

From the Department of Counter-Intution we learn that our general assumption about pre-trial discovery -- that the open exchange of information will help align the expectations of disputants and increase efficiency by facilitating settlement /1 -- is probably inaccurate.

In When Ignorance is Bliss:  Information, Fairness, and Bargaining Efficiency, George Loewenstein, Department of Social and Decision Sciences and Don A. Moore, Graduate School of Industrial Administration, at Carnegie Mellon University, tell us that when "information . . . is complex or ambiguous enough to allow for different interpretations" by opposing counsel,

[s]elf-serving interpretations of fairness encourage biased estimations of the probability of prevailing in court and lead people to hold out too long, fight too hard, and settle too slowly.

Simply put, because we interpret incoming information as confirming -- and often strengthening -  our existing views, the "convergence" of adversarial views pre-trial discovery proponents hoped for, does not occur.  Rather, discovery tends to increase the parties' belief in the rectitude of their analysis, thereby proportionally decreasing the potential for settlement.  As Loewenstein and Moore explained:

In studies examining the self-serving bias, the magnitude of the bias was an extremely strong predictor of impasse, and two different manipulations that eliminated the bias led to close to 100 percent settlement compared to an impasse rate of about 25 percent in the absence of such debiasing.

The full article is well worth reading even though much of it is burdened with academese.

Because we attorneys pride ourselves on being able to "see the other side," here's an article entitled Confirmation Bias in Complex Analyses about a study in which intelligence analysts were provided with an analytic tool to help them overcome confirmation bias.  The tool -- Analysis of Competing Hypotheses -- was an

hypothesis testing matrix,” where the rows represent the evidence, the columns the hypotheses under consideration, and the cells the extent to which each piece of evidence is consistent or inconsistent with each hypothesis. The goals of the ACH matrix [were meant] to overcome the memory limitations affecting one’s ability to keep multiple data and hypotheses in mind, and to break the tendency to focus on developing a single coherent story for explaining the evidence—a tendency which [other researchers] hypothesized create[d] predecision distortions (and presumably the confirmation bias).

ACH [was] hypothesized to offset confirmation bias by ensuring that analysts actively rate evidence against multiple hypotheses and reminding analysts to focus on disconfirming evidence.

Absent the template, the process sounds a lot like that we attorneys use to test our theories and evaluate those of our opponents'.  Alas ACH provided the least amount to help to those study participants with professional analytic experience.  As the authors report, "ACH had no impact at all" on the professional analysts' tendency to give greater weight to the evidence that supported their theories and less to that which disconfirmed them.

What to do?  I'll attempt to find an answer before writing my next post.

______________________

Loewenstein and Moore quote Richard Posner on this expectation as follows: 

a full exchange of information…is likely to facilitate settlement by enabling each party to form a more accurate, and generally therefore a more convergent, estimate of the likely outcome of the case.

Richard A. Posner (1986:525) Economic Analysis of Law (3rd ed. Little, Brown 1986)

The Most Efficient Conflict Resolution is Prevention: Avoiding Suit During Era of Massive Lay-offs

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.

Litigation, Negotiation, Mediation, Oh My! The CharonQC Podcast

It's the British, of course, who we have to thank for the common law, the adversarial system of justice and that most lyrical denunciation of lawyers' passionate pursuit of legal procedure, Bleak House.  Charon QC is a serial podcaster, writer and producer of the satiric online soap opera West London Man, founder of the largest private law school in Great Britain, and all around QC about town.

My postcast interview with the great QC is here and his own is below.

Podcast 94: US lawyer Victoria Pynchon on ADR, mediation and settlement in the USA

Today I am talking to Victoria Pynchon, a US lawyer based in Los Angeles, California. She was a commercial litigator and trial attorney for 24 years before shifting her practice from representing clients in court to helping lawyers settle lawsuits hat involve greater risk, expense or time than their clients wish to expend. She this work through Judicate West Dispute Resolution Services, serves as a private judge (arbitrator) for the American Arbitration Association, is an adjunct professor at Pepperdine University and blogs at IP ADR and Settle it now. Interestingly Vickie also acts as a sherpa for Blawg Review the international rolling carnival of law bloggers and is on Twitter.

So who is Charon QC?  Let him tell you himself in this Podcast Interview at Family Lore, the blog of British family law attorney John Bolch.  To get an even better idea of Charon QC and the many reasons to read his blog, I give you his own introduction to himself at Charon QC the Blawg.

“Charon QC” is a lawyer, after a fashion, but is not a practitioner. He has taught law for many years - and, to his surprise, still enjoys law; although he enjoys other academic interests as well. Law is fascinating more in the human interest than the letter, but compared to literature, science or philosophy, it does not engage the mind in quite the same way. He awarded himself the title QC when the Lord Chancellor suspended the award for real lawyers. Now, as no-one can instruct him in any matter, or would wish to, he is free to comment as he wishes on matters which catch his attention. He is, of course, a figment of a febrile imagination . He drinks Rioja - in fact he will drink any red wine, smokes Silk cut, reads all the newspapers (3 Tabloids 4 broadsheets…most days) , has a passion for motorbikes and sips espressos three time a day - ordering two each time. He sleeps for 4 hours a night - but that is his problem. He gets up and starts work (sometimes, it has to be said… writing a blog post) between 3.30 - 4.00 every morning…

He is also a habitue of The Bollo and The Swan in Chiswick/Acton - and some other well known bars in London. When he finds a meal he enjoys - he eats it every day until he can no longer face eating it again. At breakfast, he always has one egg, two slices of toast, two slices of bacon, some baked beans, two espressos, a glass of tap water and an undisclosed number of Silk Cut cigarettes - and always starts eating the egg first… on a bit of buttered toast; turning the plate around so the egg is conveniently on the right hand side of the plate. He did not know he did this until it was pointed out to him by several friends. Breakfast takes approximately 35 minutes and is often taken while reading his tabloid of choice and The Indie… and then it is but a short motorbike ride back to his Staterooms where the day can begin. Breakfast is at 7.00 and more often than not Charon sits at a table outside - even in very cold weather - so he can keep an eye on the world as it goes by. He can also smoke outside without offending other early risers.

Negotiating with Pirates: Squeeze Every Penny Out of the Deal

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."

When Negotiation Fails, Do You Flip a Coin? Grab a Random Stranger?

Wheat and Chaff: Juries and Litigation

Let me tell you a short story.

A senior in-house lawyer is meeting with the CEO to talk about a problem the in-house lawyer had been asked to solve.  The in-house lawyer describes how his efforts at negotiation had failed, so he had taken steps to find a random person off the street so that person could resolve the problem for the in-house lawyer.  The CEO looked at the in-house lawyer like he was out of his mind.  The in-house lawyer, now worried by the CEO's reaction, asked if the CEO would feel better if he instead chose 12 people randomly from off the street.  The CEO fired the in-house lawyer.

Does anybody think the CEO is crazy?  Me either.  But let's rerun the story with three extra sentences.

For remainder of story, run right over to Patrick J. Lamb's blog, In Search of Perfect Client Service.

Knowing that a bench or jury trial is the only Better Alternative to a Negotiated Agreement (BATNA) what's a concerned CEO to do?  No, I'm not going to say "hire a mediator."  I'm going to say this.  Hire a litigator who understands and is skilled at interest-based bargaining.  The mediator, after all, is your last option.  You need an attorney who maximizes the potential for the best negotiated resolution possible at every major turning point in the litigation.  If you've hired a hot-head litigation firm, that's good.  There's absolutely nothing wrong with playing hardball.  Just make sure you also have available the litigation marital counselor -- at least one attorney in the hardball lawfirm, or settlement counsel outside of it, who is able to call a cease-fire and bring the parties to the negotiation table.

I like what Patrick J. Lamb has to say in his blog and in his bio.  He's got big firm background and 21st century thinking.  If I were looking for a business litigator/dispute resolver/efficiency machine, it's to people like Patrick I would go.

Also, see today's post at the IP ADR Blog about patent infringement jury trials and what you don't know about what your jury is thinking can hurt you.

 

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Negotiating Foreclosure

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?

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."

Devil in the Details: the Deal, the Whole Deal and Nothing But the Deal

It's getting very late in hour eleven of the mediation and everyone is tired and cranky.  We've agreed upon:

  • the total sum of the settlement;
  • the period of time over which the settlement will be paid;
  • the Stipulated Judgment in the event of default; and,
  • the amount of the Stipulated Judgment (far more than the agreed upon settlement sum).

We could put these terms in a skeletal settlement agreement right now; include the "magic language" from Evidence Code section 1123 that will permit enforcement of the mediated agreement; and, let everyone get on the road, onto a plane and into bed.

Because these parties couldn't agree on what year it is, however, no one balks at my suggestion that we write up the entire deal -- settlement agreement with mutual general releases; the Stipulation for the Entry of Judgment; and, the proposed Stipulated Judgment itself.

The first problem is everyone's failure to bring a form Settlement Agreement and Mutual Release, let alone one that included enforceable terms for the entry of a Stipulated Judgment in event of default.   

ADVICE???  Carry these documents on a "flash" or "jump" drive whenever you're going to a settlement conference or mediation.  Heck, carry them with you to the first day of trial where you might be startled to learn that your adversary is prepared to settle the case right now!

Fortunately, I had access to my own files which contained detailed forms for everything we needed, forms I offered to counsel as guides. I did so only with the express understanding that I did not recommend my own forms as adequate, complete or enforceable.  

I'm just the mediator, not the legal representative of the deal in loco parentis.

It's a good thing we made the effort to fully document the deal because it threatened to fall apart over all of the following terms:

  • the dismissal of ancillary proceedings
  • forbearance from inducing future actions by non-parties
  • liquidated damage clauses for the breach of certain critical deal points
  • indemnification for future actions if induced by certain of the parties

Each of these items required separate negotiation and compromise and as to each I helped the parties calculate the degree of possible misbehavior by their adversaries and the protections that might "fit" the probable harm.  I do not believe the parties would have been able to resolve these terms (as well as others too confidential to mention) without third party assistance.  One was so difficult to predict both the series of possible events and potential remedies that we provided for arbitration of that term alone in the event of alleged default.

When we all finally left the building at one in the morning, we had fully completed paperwork, signed by all parties in hand. 

And yes, I was the only one present who could type.

 

Devil in the Details: Sticker Term Shock

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!

 

The Devil in the Details: When Do You First Talk Terms?

As you'll recall, we're in hour nine of the mediation.  The parties have finally agreed to settle the antitrust litigation the Court ordered them to mediate ("we won't settle; we'll only be here for an hour"). 

Defense counsel wants to write up the "deal points" and make a quick getaway.  Before she does so, we have the following conversation.

"We'll need three years to pay it."

I fake calm.

"Your security?" I ask, my mind racing to the other room where an already unhappy set of plaintiffs are sitting.

"We don't have security.  I told you my clients are broke.  I also told you we'd need terms but you didn't want to talk about them."

This is true.  From hour one the defense insisted they'd need to pay over time and the Plaintiffs wanted to know what terms the defense was thinking of.  Throughout the day I'd told them both the same thing:  "let's see if we can agree on a number before we start talking terms."

I have reasons for this.  They are as follows:

  • once people have agreed upon a number, it's far more difficult for them to walk away from a deal; the Plaintiffs have already begun to think about what the money will mean to them and the defense has begun to imagine life without the litigation;
  • people are risk averse.  So long as there is no (or only minimal) money on the table, it's easy to refuse to engage in the often difficult process of readjusting their expectations and compromising their desires.  When there's enough money on the table to make both parties want to settle, walking away involves loss.  

This is often the trickiest part of the mediation.  The three-year time table and absence of security is, I know, enough to blow up this deal.  I'm going to take heat from the Plaintiffs' side, for resisting their efforts to learn the Defendants' terms before they spent an entire day agreeing upon the price.  I don't, however, regret my decision.  If these terms cause the negotiation to break down now, they certainly would have done so in hour one.

How I help the parties negotiate what is poised to become a rancorous impasse in the next post.

 

You've Settled? With a Term Sheet? The Devil in the Details

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.



Do You Need to Understand Your Legal Rights to Serve Your Interests?

Daily Journal Newswire Articles
www.dailyjournal.com
© 2009 The Daily Journal Corporation. All rights reserved.


 
FORUM (FORUM & FOCUS)  •  Jan. 08, 2009
Every Case Is a Winding Road

FORUM COLUMN

By Victoria Pynchon

I have a confession to make. I am about to become embroiled in litigation. Though I preach the religion of negotiated resolution, I've nevertheless hired litigation counsel to assert my rights and pursue my remedies.

This is one of those moments when the rubber of our ideology meets the road of personal circumstance, the moment we are called upon to decide to walk our talk or take the more familiar road.

For more than 30 years - first as paralegal, then as a law student and finally as a commercial litigator - I'd been swimming in the waters of legal rights and remedies. The adversarial ocean had become so familiar a habitat that it rarely occurred to me that I was under the surface. One day toward the end of my first year of mediation practice, a much more experienced friend hooked me by the cheek and threw me on the deck of his ship, where I was gasping for air.

He'd asked me to co-mediate a will contest without the benefit on my clergy - lawyers with experience in the field. The "fish out of water" conversation that ensued went something like this:

Joe Mediator: "The family doesn't want to hire a lawyer. They just want to mediate."

Vickie: "But I know absolutely nothing about wills, trusts and estates. The parties need to talk to a lawyer first to learn their rights and remedies."

Joe: "You still don't get it, do you?"

Vickie: "Get what?"

Joe: "It's not about rights and remedies. It's about interests."

Vickie: "But how can they evaluate their interests without knowing their rights and remedies?"

Joe: "Because they're not interested in what the law says - they want to do what they believe is right for them as a family under the circumstances."

These people wanted to resolve a legal dispute without knowing their legal rights? Were they nuts? I understood "interests" - they were all the rage in ADR circles - the desires, fears and needs of the parties that drove them to take legal positions. Sometimes those interests were non-economic - the need for revenge, the desire to be personally accountable, the fear of failure, the hope for forgiveness and reconciliation. Others, though economic, could not be remedied by way of damages - better access to foreign markets, for instance, or wider distribution chains; the acquisition of better manufacturing processes; or, the retention of executives with "pull" in Washington. But all of those matters were secondary to legal rights and remedies, weren't they? You had to know what your rights were.

To read entire article, click here.

Here's a .pdf of the article taken from the "hard copy" of the paper.

 

Conflict: It's ALL Cross-Cultural

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.

It's Not About the Money; It's About Justice

I'd stop flogging this dead horse if I didn't have to weekly convince litigants of their own enduring human tendency to prefer relative well-being over absolute material possessions.

This week, that "news" is brought to you by the New York Times to explain why a surprising number of us have not been made terribly unhappy as our financial fortunes decline.  As Op-Ed contributor Sonja Lyubomirsky (of The How of Happiness: A Scientific Approach to Getting the Life You Want) observes today:

the economists David Hemenway and Sara Solnick demonstrated in a study at Harvard, many people would prefer to receive an annual salary of $50,000 when others are making $25,000 than to earn $100,000 a year when others are making $200,000.

Why? Because we "care more about social comparison, status and rank than about the absolute value of our bank accounts or reputations."  In other words, we're more concerned with justice (fairness) than we are about the money.  Which is why our clients have sought out our help with their personal, financial and commercial problems -- because we're in the justice business.  When we understand this, the negotiation of financial settlements becomes a whole lot easier because there are many more ways to deliver justice than by throwing money at it.  

Read the full (short) article Why We’re Still Happy here.

 

 

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

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

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

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

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

  4. do their own talking and their own listening.

  5. talk mostly about the accomplishments of others.

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

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

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

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

  10. take embarrassing or private conversations offline.

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

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

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

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

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

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

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

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

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

  20. ignore the trolls.

  21. keep their promises.

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

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

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

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

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

For Your Attorney Holiday Book Gift List: Conflict Revolution

e-Bleak House: Twitter "Tweets" Discoverable

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.

 

 

Can You Spell Autistic Hostility? Bertuzzi/Moore Mediate

As CR Info explains

People tend to break off interaction and communication with those they dislike. When this happens people become stuck in autistic hostility, that is, their hostility is perpetuated by their refusal to communicate.

One-time Colorado Avalanche forward Steve Moore and former Vancouver Canucks winger Todd Bertuzzi met in Toronto on Monday for a court-ordered mediation hearing in an effort to prevent a lawsuit from heading to court.

It was the first face-to-face meeting between the two since Bertuzzi's infamous sucker punch during a March 8, 2004, game in Vancouver that ended Moore's career.

Let's see.  That's nearly FIVE YEARS with no communication.

Read this article.  Rinse.  Repeat.

From cbcsports.ca with h/t to @DalydeGagne in my twitter network.

Arbitration and E-Discovery: Make Up Your Own #^%@ Law!

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. 

To Arbitrate or Not Arbitrate Securities Fraud, That is the Question

FINRA Securities Arbitration or Class Action Lawsuits?

A common question asked by investment fraud victims is whether they should partake in a class action lawsuit of a securities arbitration claim. Often, investors are presented with a choice of either partaking in a class action lawsuit or FINRA arbitration action. As a general rule of thumb, investors are better off avoiding class action lawsuits. The recovery rate in class action lawsuits tend to be paltry. Please realize this is not always the case but it is very common.

The main reasons for why FINRA securities arbitration actions are typically better than class action lawsuits for investors include the following reasons…

Continue reading here.

By the way, I'm not expressing any opinion on this issue at the moment.  Just pointing you to one lawyer's view.

The Mediator's Proposal: An Idea Whose Times Has Passed?

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. 

Face-to-Face Conversations Powerful Resolution Tool

From this coming Monday's Forum Column in the Los Angeles Daily Journal (byline V. Pynchon):

 

Psychologists tell us that we are not only "meaning making" beings, but that we are all born conspiracy theorists. Viewing a field of nonsensical, unrelated data, we naturally begin to "connect the dots" - to organize the information into a coherent, and often compelling, narrative.

Pattern making or conspiracy theorizing is a human survival mechanism. We have never been the fastest or the biggest creatures on the planet. We don't have the sharpest teeth or blend in all that well with the scenery. Our soft, easily punctured skin is not covered with a protective shell. In a pinch, we can't take a running leap and fly away from land-bound carnivores who might make us their prey.

We are, however, the canniest creatures on the planet. To avoid the tiger who made lunch of our best comrade, we surveyed the scene and committed the pattern of otherwise unrelated details to memory. Five banyan trees, a narrow stream, and, a pile of rubble left by a recent avalanche means "there are tigers here."

Couple this with Fundamental Attribution Error and you have all of the ingredients necessary to blame inadvertently caused harm on elaborate conspiracies cooked up by our untrustworthy companions - Fundamental Attribution Error being our universal tendency to over-emphasize the role of others' negative personality traits to explain why harm befell us.

So it is with our legal adversaries. Once the channels of communication have been severed by the filing of a lawsuit, attorneys and clients alike begin to make up "what really happened" based on predispositions, scattered conversations, faulty memories and scraps of documentation.

 

Continue reading Monday's Daily Journal Forum Column here.

 

A Single Ray of Resolution Optimism in the Darkest Movie in American Film History

Must read:  Embracing Conflict's analysis of Dueling Banjoes in Deliverance written by  Niel Denny, a Collaborative family solicitor working in the South West of England who is a member of my twitter network here: @nieldenny.

Excerpt and video below but a reading of the entire post is a must for anyone looking for reasons to believe that we can reach one another across political, cultural, religious, social and economic divides.

The music develops by a process of answer and call. One of them plays a riff, or a short section of music, which is then followed by the other. They react to one another responding to and developing upon the riff they have just heard. By doing so they produce this amazing music in a memorable scene that is part of cinema folklore.

It represents a rare moment of optimism in what is an otherwise unbearably dark, oppressive film.

In the process of exchanging these riffs the protagonists are effectively collaborating. They are communicating. We can see their riffs as an analogy for talking. The riffs work where the spoken word does not. Drew and the Banjo boy clearly develop and enjoy a relationship while they are playing.

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

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

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

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

Now, Part I of Negotiating Women!

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

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

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

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

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

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

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

 

Small Lessons for Lawyers and Business People in Building Community

Restorative justice is the criminal version of civil mediation.  It stresses accountability, admission of guilt, forgiveness and reconciliation.  It is the basis for Truth & Reconciliation Commissions that address harm done by one group of people to another that is rarely redressable by a criminal justice remedy.

Because there are so many lessons to be drawn from restorative justice principles and practices for the resolution of commercial disputes of all types, I occasionally post blog entries written by those who are involved in the restorative justice practice.  Here, for instance, is a story of community building drawn from the Restorative Justice and Circles blog.

I live in a small town 30 miles east of St. Paul in Western WI. There are several rent controlled apartment buildings in my neighborhood. When I first moved into the neighborhood (over 10 year ago), I noticed many of the children from the apartment buildings wandered around the neighborhood unsupervised in the summer time. Since I have an in ground heated pool in my back yard, and am a former life guard, I decided to open my pool to the neighborhood children one day per week during summer vacation. The response has been overwhelming. I have children of all ages show up on “open swimming” days. Many have no towels or swim suits and just jump into the warm water…clothes and all! They are so excited to swim in the pool. Two little elementary school aged girls were regulars this past summer and I was able to spend time getting to know them.

September came around and I closed the pool down. I decorated my house with scarecrows, corn, and pumpkins. One Saturday morning in early Sept my door bell rang. I opened the door to find my two little summer swimming friends. They were standing on my front porch with two new girls. The two new girls were unfamiliar to me. One of my little swimming friends said, “Mrs. Cranston these two girls stole your pumpkins. We made them come back and return the pumpkins and tell you they are sorry.”

Restorative Justice: Accountability and Forgiveness

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.

 

 

 

How We Tell the Tale Determines How We Resolve the Problem

People who are joined together by a dispute -- which includes everyone engaged in litigation and their attorneys -- are suffering more than most from a universal cognitive bias known as fundamental attribution error.  FAE is one of the ways we explain our troubles to one another. 

If we have suffered misfortune and are able to attribute our loss to the actions of another, we will universally attribute the series of events resulting in our loss to the bad intentions or evil character of the person we lawyers call "the defendant." 

If we are the defendant, we will universally attribute the series of events resulting in the injured party's loss to the circumstances causing Plaintiff's harm (or, of course, to the Plaintiff's evil intentions). 

The attribution of harm primarily to character or motive on the part of the victim and primarily to circumstance on the part of the accused is fundamental because it is hard-wired into the way we think.  It is an attribution error because it attributes effect to a particular type of cause.  It is error because all human activity and the inevitable conflicts that arise from it

"take[s] place not only between individuals, but in a context, culture and environment; surrounded by social, economic, and political forces; inside a group or organization; contained by a system and structure; among a diverse community of people at a particular moment in time and history; on a stage; against a backdrop; in a setting or milieu."

See Ken Cloke's Conflict Revolution (this from the Introduction) here and my review of it at The Complete Lawyer here.

In other words, all events, conflicts, injuries, and benefits, all causes and effects are determined both by human actors and by circumstance.  We are the cause and the effect of everything that surrounds us and everything that we surround.

How does this knowledge help us resolve our disputes and why does the way we tell our stories hold the key to resolving them?   I could give you more explanations from the field of social psychology or I could simply tell you a story.  In this case, I tell the story of a book of stories written by Malcolm Gladwell who writes about the stories we tell ourselves and one another about success. Gladwell, we're told, introduces us to Bill Gates as

a young computer programmer from Seattle whose brilliance and ambition outshine the brilliance and ambition of the thousands of other young programmers. But then Gladwell takes us back to Seattle, and we discover that Gates’s high school happened to have a computer club when almost no other high schools did. He then lucked into the opportunity to use the computers at the University of Washington, for hours on end. By the time he turned 20, he had spent well more than 10,000 hours as a programmer.

At the end of this revisionist tale, Gladwell asks Gates himself how many other teenagers in the world had as much experience as he had by the early 1970s. “If there were 50 in the world, I’d be stunned,” Gates says. “I had a better exposure to software development at a young age than I think anyone did in that period of time, and all because of an incredibly lucky series of events.” Gates’s talent and drive were surely unusual. But Gladwell suggests that his opportunities may have been even more so.  

Continue reading the NYT Sunday Book Review of Gladwell's new book, Outliers, here.

More on using dual narratives to help you settle litigation tomorrow (or later this afternoon)

Negotiating Potential Liability at Holiday Parties

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.

Blog Bites Bar ; Goes to Court

See the Complaint here.

h/t to @taxgirl

As the ABA Journal explains:

A law firm contends new Louisiana lawyer advertising rules slated to take effect in April will restrict its right to comment on Twitter, Facebook, online bulletin boards and blogs.

The Wolfe Law Group filed a federal suit today challenging the rules, claiming they would subject each of the firm’s online posts to an evaluation and a $175 fee, according to a press release. The construction law firm says in the suit that its own blog may qualify for an exemption for law firm websites, but its comments on other blogs would not.

The firm claims the rules would restrict its First Amendment right to speak freely about its trade. To make its point, the law firm has launched a blog called Blogging is Speaking.

Sometimes your business or professional negotiation has to take place in Court.  This is an example.

Negotiating Thanksgiving Conversations

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.

 

Feeling Extorted? Mr. Molski's Serial ADA Litigation and Why We Settle

Many in the legal blogosphere are buzzing about the recent Supreme Court decision letting stand a Central District injunction barring wheelchair-bound Jarek Molski from filing further ADA accessibility cases in our local federal trial court here in Los Angeles.  See Justice Berzon's and Kozinski's spirited dissents to Ninth Circuit's Per Curiam refusal of the Petition for a full panel re-hearing here.

Mr. Molski was declared a vexatious litigant by the California Central District federal court back in 2004.  See Wendel Rosen's excellent report of that case here Molski v. Mandarin Touch Restaurant, 347 F. Supp. 2d 860 (C.D. Cal.2004) (declaring Molski a vexatious litigant and requiring court approval prior to his filing future lawsuits); aff'd Molski v. Evergreen Dynasty here.

Still active is Molski's case in the Eastern District of California which was recently permitted to go forward by the same Ninth Circuit Court of Appeal.  As the Ninth Circuit explained the factual background of Mr. Molski's "serial litigation,"

[Plaintiff] Molski and his lawyer Thomas Frankovich (“Frankovich”) were purportedly in the business of tracking down public accommodations with ADA violations and extorting settlements out of them. On cross examination, Molski acknowledged that: he did not complain to any of [the defendant's] employees about his access problems; he had filed 374 similar ADA lawsuits as of October 8, 2004; Frankovich had filed 232 of the 374 lawsuits; even more lawsuits had been filed since that date; Molski and Frankovich averaged $4,000 for each case that settled; Molski did not pay any fees to Frankovich; Molski maintained no employment besides prosecuting ADA cases, despite his possession of a law degree; Molski’s projected annual income from settlements was $800,000;2 Molski executed blank verification forms for Frankovich to submit with responses to interrogatories; they had also filed lawsuits against two other restaurants owned by Cable’s; they had filed a lawsuit against a nearby restaurant; and Sarantschin obtained up to 95% of his income from Frankovich’s firm for performing investigations for ADA lawsuits.

See Molski v. MJ Cable, Inc. here.

Despite these apparently damning facts, in its 2007 affirmance of the vexatious litigant finding, the Ninth Circuit noted some of the reasons why Molski and his lawyer could not be condemned for their pursuit of serial ADA litigation.  The ADA, noted the Court,

does not permit private plaintiffs to seek damages, and limits the relief they may seek to injunctions and attorneys’ fees. We recognize that the unavailability of damages reduces or removes the incentive for most disabled persons who are injured by inaccessible places of public accommodation to bring suit under the ADA. See Samuel R. Bagenstos, The Perversity of Limited Civil Rights Remedies: The Case of “Abusive” ADA Litigation, 54 U.C.L.A. L. Rev. 1, 5 (2006).

As a result, most ADA suits are brought by a small number of private plaintiffs who view themselves as champions of the disabled. District courts should not condemn such serial litigation as vexatious as a matter of course. See De Long, 912 F.2d at 1148 n.3. For the ADA to yield its promise of equal access for the disabled, it may indeed be necessary and desirable for committed individ- uals to bring serial litigation advancing the time when public accommodations will be compliant with the ADA.

But as important as this goal is to disabled individuals and to the public, serial litigation can become vexatious when, as here, a large number of nearly-identical complaints contain factual allegations that are contrived, exaggerated, and defy common sense. False or grossly exaggerated claims of injury, especially when made with the intent to coerce settlement, are at odds with our system of justice, and Molski’s history of litigation warrants the need for a pre-filing review of his claims. We acknowledge that Molski’s numerous suits were probably meritorious in part—many of the establishments he sued were likely not in compliance with the ADA.

On the other hand, the district court had ample basis to conclude that Molski trumped up his claims of injury. The district court could permissibly conclude that Molski used these lawsuits and their false and exaggerated allegations as a harassing device to extract cash settlements from the targeted defendants because of their noncompliance with the ADA. In light of these conflicting considerations and the relevant standard of review, we cannot say that the district court abused its discretion in declaring Molski a vexatious litigant and in imposing a pre-filing order against him.

In other words, when the legislature puts the enforcement of the ADA in the hands of disabled individuals without permitting them to recover damages, you can't blame private attorneys for working the market created for the private enforcement of public laws even if you can blame them for the manner in which the market is worked.

So what does this have to do with the settlement of litigation and, in particular ADA Litigation?

Because these accessibility cases always cost more to defend than to settle and because they're often indefensible, the rational business decision is simply to settle the darn things.  

No one, however, wants to be extorted.  And in the few ADA cases I've mediated, it's the principled refusal to pay money at the point of a gun that interferes with a business establishment's willingness to do the economically "rational" thing rather than, say, try it;  appeal it to the Ninth Circuit; and, pursue it to the Supreme Court of the United States.

For those representing defendants who are feeling extorted, I offer my own (previously posted) ADA mediated settlement story below.


Continue Reading

How to Apologize on the Internet: Larry Bodine Comes Clean

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.

 

 

Will Dems Ban Mandatory Consumer/Employee Arbitration?

This just in on the same day I attended the AAA's Expedited Case training.  As an ADR practitioner I favor party "choice and voice" in all dispute resolution venues, meaning that I frown on adhesion contracts of all types, including those that are unfairly imposed upon consumers and employees.  The devil in the detail, of course, is the meaning of the term "unfairly."  I am unfamiliar with the proposed law subject of this article and neither support nor oppose it.  Just keeping my readers informed.

Democratic Party control could ban mandatory arbitration, expert says

11/17/08

Jan Dennis, Business & Law Editor
217-333-0568; jdennis@illinois.edu

LeRoy
Click photo to enlarge
Photo by L. Brian Stauffer
Michael LeRoy, a professor of law and of labor and employment relations, says Democratic Party control in Washington could restore lawsuits as an option for workers and consumers now forced to settle disputes through mandatory arbitration that gives employers and businesses an unfair edge.
CHAMPAIGN, Ill. — Democratic Party control in Washington could restore lawsuits as an option for workers and consumers now forced to settle disputes through mandatory arbitration that gives employers and businesses an unfair edge, a University of Illinois labor law expert says.

Michael LeRoy predicts a bill sponsored by Democrats that would bar companies from imposing arbitration will likely be approved next year when Democrats take over the White House and add to their majorities in Congress.

The measure, introduced last year but stalled by the prospect of a Bush administration veto, would halt a shift that has grown since a 1991 U.S. Supreme Court ruling allowing firms to require arbitration rather than courts to resolve disputes, he said.
For full article click here.

Here's the summary of the bill courtesy of the Consumerist:


Arbitration Fairness Act of 2007 - Declares that no predispute arbitration agreement shall be valid or enforceable if it requires arbitration of: (1) an employment, consumer, or franchise dispute, or (2) a dispute arising under any statute intended to protect civil rights or to regulate contracts or transactions between parties of unequal bargaining power.

Declares, further, that the validity or enforceability of an agreement to arbitrate shall be determined by a court, under federal law, rather than an arbitrator, irrespective of whether the party resisting arbitration challenges the arbitration agreement specifically or in conjunction with other terms of the contract containing such agreement.

Exempts arbitration provisions in collective bargaining agreements from this Act.

Negotiation/Mediation Terms of Art

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.

 

 

Are Women Better Mediators Than Men?

First she's all about the election and now she's back to post-mid-Century America's gender wars?  Say it ain't so, Vickie!

These are just statistics from an extremely limited sample that tells more about this particular program in this particular place concerning the particular types of cases being mediated than they are about the relative abilities of male and female mediators.

I'm unaware, however, of any controlled studies on gender differences in mediation results.  I do know that there's a gender imbalance in the profession and have had panel administrators acknowledge on the QT that even when they're choosing mediators or settlement officers pro bono lawyers tend to choose men most of the time.  

So for women struggling in the profession, here's your moment of zen.

Examining the graphical representation of mediator gender and settlement rates, one can see that there are male mediators who settle cases at higher than average rates, as well as female mediators who settle cases are lower than average rates. Nevertheless, it appears that most of the popular mediators who settle cases at higher than average rates are women, while the majority of popular mediators who settle cases at lower than average rates are men.

Some may object to this “battle of the sexes” analysis on the grounds that men and women should be treated as equals. Based on our data, however, male and female mediators are not statistically equal with respect to the rate at which they settle cases. Whether this “good” or “bad” is more a matter of philosophy than statistics.

In her book In a Different Voice, Carol Gilligan described how men and women think about moral conflicts differently. Her research suggests that men tend to consider conflict in terms of rights while women generally view conflicts in terms of dynamic relationships. Accordingly, a “female” approach to conflict resolution may be better suited to the process of facilitating mediated settlements than a “male” approach to conflict.

For a colored chart and remainder of post, see Correlation of Mediator Gender to Settlement Rate at Practical Dispute Resolution here.

When I think of my own experience as a neutral for the past four years and compare it to my experience as an attorney in the first four years of my practice 1980-1984, I can only say that it is somewhat similar.

What made the difference in the years that followed?  Women flooding the profession.  As women litigators and bench officers begin to retire, I suspect that we'll begin to see greater use of women neutrals.  And no, I do not believe that the paucity of women on commercial mediation panels nor what I believe to be their greater struggle to build a thriving practice there is based upon conscious sexism.

Like the tendency to prefer judges over attorney mediators (a preference I believe to be waning) I believe that the sub-conscious preference for male over female mediators arises from a continuing misunderstanding among members of the bar about what settles cases.  Too many attorneys continue to believe that they need a mediator who can overpower the will of their adversary.  And if you're looking for raw power (particularly the power of authority) in American commerce and law, you will naturally choose the judge over the attorney and the man over the woman.

I haven't written about this in the past because it is a topic that tends to divide people and it is not my intention to start a tiny gender war in the tiny world of mediation.

But when these statistics started pouring into my in-box, I couldn't ignore the topic any longer.

Please feel free to comment.

Because All Great Negotiations Are Performance Art

Bob Dylan on Creativity
View SlideShare presentation or Upload your own. (tags: dylan bob)
. . . with thanks to @guykawasaki for tweeting the dylan slide show!

Fact that Class Settlement Was Reached in Mediation Does Not Prevent Objectors from Discovering Factual Basis for Mediated Terms

Excerpts from Kullar v. Foot Locker Retail, Inc. below.  Comment will follow.

[T]he fact that the settlement was reached during mediation to which Evidence Code section 1119 applies does not eliminate the court’s obligation to evaluate the terms of the settlement and to ensure that they are fair, adequate and reasonable. If some relevant information is subject to a privilege that the court must respect, other data must be provided that will enable the court to make an independent assessment of the adequacy of the settlement terms.

[T]he fact that communications were made during the mediation and writings prepared for use in the mediation that are inadmissible and not subject to compulsory production does not mean that the underlying data, not otherwise privileged, is also immune from production. (Evid. Code, § 1120 [“Evidence otherwise admissible or subject to discovery outside of a mediation . . . shall not be or become inadmissible or protected from disclosure solely by reason of its introduction or use in a mediation . . .]; Rojas v. Superior Court (2004) 33 Cal.4th 407, 417; Wimsatt v. Superior Court (2007) 152 Cal.App.4th 137, 157-158.)

Foot Locker’s payroll records, for example, if relevant to the quantification of the claims being settled, are subject to discovery and may be introduced in opposition to the settlement even if they were disclosed to class counsel during the mediation, and even if class counsel was shown only a summary or analysis of those records that is not itself subject to production because prepared for use in the mediation.

                           *                           *                      *

Following the opportunity for limited discovery, the trial court should redetermine whether the proposed settlement is fair, adequate and reasonable. The court may and undoubtedly should continue to place reliance on the competence and integrity of counsel, the involvement of a qualified mediator, and the paucity of objectors to the settlement. But the court must also receive and consider enough information about the nature and magnitude of the claims being settled, as well as the impediments to recovery, to make an independent assessment of the reasonableness of the terms to which the parties have agreed.

We do not suggest that the court should attempt to decide the merits of the case or to substitute its evaluation of the most appropriate settlement for that of the attorneys. However, as the court does when it approves a settlement as in good faith under Code of Civil Procedure section 877.6, the court must at least satisfy itself that the class settlement is within the “ballpark” of reasonableness. (See Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499-500.)

While the court is not to try the case, it is “ ‘called upon to consider and weigh the nature of the claim, the possible defenses, the situation of the parties, and the exercise of business judgment in determining whether the proposed settlement is reasonable.’ ” (City of Detroit v. Grinnell Corp., supra, 495 F.2d at p. 462, italics added.) This the court cannot do if it is not provided with basic information about the nature and magnitude of the claims in question and the basis for concluding that the consideration being paid for the release of those claims represents a reasonable compromise.

By remanding we do not suggest that the proposed settlement ultimately may not pass muster. We hold only that the trial court may not finally approve the settlement agreement until provided with sufficient information to assure itself that the terms of the agreement are indeed fair, adequate and reasonable.

Trial Skills, Deposition Skills and IP Negotiation Skills Programs

Here are my upcoming speaking and teaching engagements in November and January!

I'm baaacccckkkkkkkkkkkkkkkkkkkk!!!!!!!!!!


Judicate West Neutral and IP ADR Mediator and Blogger Victoria Pynchon.

Coach/Instructor, National Institute of Trial Advocacy: Building Trial Skills
Location: Loyola Law School Los Angeles
City: Los Angeles, CA
Dates: 1/2/2009 - 1/8/2009
Director: Williams, Gary C.

This is a week-long intensive program for new and/or experienced attorneys who need to learn/brush up on their basic trial skills.  If you can take the time, your entire practice will benefit from the experience.


BrightTALK Intellectual Property Summit here! on November 11, 2008 Webcast Free

Negotiating a Settlement in IP Litigation

   12:00 pm
   Presenting Victoria Pynchon, Judicate West, CPR, Settle It Now, IP ADR Blog

And coming soon!  Deposition Skills Training (NITA techniques) at Solo Practice University!!

 

Faculty @ SPU

Difficult Conversations 101: Blaming Sarah

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.

 

 

Negotiating a Conflict-Resolved Workplace

Want a horror story for Halloween?

Remember that Heller Ehrman collapse?  Seems that you don't get COBRA benefits if the health plan your former employer maintained is kaput because it has gone out of business.

Now think, pending surgery, no health insurance, pre-existing condition. 

Why do I lead a post about resolving work-place conflict with bankruptcy and tragedy?  Because no 100-year old AmLaw100 firm fails so spectacularly without having made some conflict resolution mistakes.

Can you eliminate conflict in the law firm?  Hellllloooooooooooooooo???????????  We're lawyers who Anne Reed at Deliberations this morning reminds us have been characterized as . . . well . . . sharks with

skin that is tough and rough -- covered with thousands of tiny hard teeth call denticles that abrade any passerby made of softer stuff. Lawyers are also thick-skinned. Easily identified by their humorlessness and abrasive personalities, they are the bane of many social gatherings.

Ouch!

What to do?  Apologize when your "denticles" abrade passersby, but more importantly, ask yourself the most important Bob Sutton-inspired organizational wellness question noted over at The Non-Billable Hour this morning:

 What Happens When People Make a Mistake?

 

 

The Journey to Empathy Begins with Listening and is Nurtured by Meditation

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

 

Mediating? A Savvy Plaintiff's Attorney Tells You How

by Guest Blogger Brian Herrington


Don’t Agree To Mediate Too Soon In The Litigation

The mediation of litigated cases involving personal or economic injury should mainly be about money. Unless the issues of law and fact have been fully fleshed out, mediation sessions get bogged down in contentions about ultimate facts and conclusions of law that neither side can "win."

Let’s take a drug case in which the drug causes a signature disease that only has 3-4 causal connections.  Until the defendant knows my client’s medical history and definitively understands that the only causal connection present in my client’s case is the drug at issue, the defendant cannot fully appreciate the strengths of the plaintiff's case, leading to an unbridgeable divergence in the two sides' valuation.  On the other hand, if I’ve not yet conducted adequate discovery to learn that the drug didn’t contain the offending agent until after my client quit taking the drug, then I’m going to waste my time – and everyone else’s – by asking for 7 figures.

If the attorneys are making arguments that sound like summary judgment motions during a mediation, both parties are wasting their time. No one should proceed to mediate before they know what they  agree on and what they disagree.  Ideally, the parties should agree upon as many facts and legal issues as possible before sitting down to negotiate settlement. 

Make Sure The Money Person Is There

I will no longer attend a mediation unless the individual authorized to write the settlement check is present.   None of this, “We have to get on the phone and see what corporate says” for me. You do not want to mediate with defense counsel only.  It’s much easier for an adjuster or other money person to hold tight at a number when he/she doesn’t have a plane to catch. In fact, one of the first things I ask the corporate representative at a mediation is, What time is your flight?  This information usually tells me volumes.

Make Sure The Mediator Knows Who to Talk to Before the Mediation Begins

Assuming there’s only one plaintiff and one defendant, there are no less than four parties that the mediator may need to direct his/her attention to: (1) defense counsel (2) the corporate representative of the defendant (3) plaintiff’s counsel and (4) the plaintiff. In any given litigation, one or more of these parties could be the source of impasse. Usually my clients are very well-oriented on where we need to be money-wise heading into mediation. The occasion does arise, however, when I need the mediator to help me help my client understand that his or her expectations of recovery are unrealistic.  On those occasions, I instruct the mediator confidentially that my client needs a little reality testing if the case is going to settle. 

All of us sometimes have unrealistic expectations.  I certainly can, as can  defense counsel or the corporate representatives.  The point is the mediator needs to know who needs to be talked to a little more than the others. I encourage any mediator with whom I work to accept confidential settlement letters. In these letters, I mention which parties I think might be barriers to settlement.

If you have a mediator who only talks to the lawyers, you’re probably in for a long and unsuccessful day. Or, given the situation, it may be the clients who are being hard-headed. In these instances, the mediator needs to talk right past the lawyers and speak directly to the clients. As a plaintiff’s lawyer, I won’t deal with a mediator who won’t talk directly to my client or the corporate representative.

The lawyers' job is to represent their clients and the mediators job is to bring the lawyers together. If the lawyers are in the way, the mediator needs to ignore them for a while and deal directly with the clients.  Ensure that the mediator you’ve agreed to will do this.

Before The Mediation Set A Time Limit For Real Progress

This last point is something that I’ve only started employing in the last few years, and it’s worked wonders. In a courteous and professional tone, I inform defense counsel that if we’ve not made sufficient progress by a certain time or within a certain number of hours – usually 2-3 – then I will leave.  What constitutes “sufficient progress” is case-specific, and you’ll know it when you see it. I give this caveat to defense counsel so that there’s no misunderstanding at the mediation. If, by all reasonable measures, my case is worth 7 figures, I’m not going to spend 6 hours trying to get to 6 figures. I simply will not let that happen to me anymore.

By informing defense counsel ahead of time that I won’t stay more than a couple of hours unless I see real progress, I’ve managed to avoid many of the lowball offers that usually start the defense side of the mediation. Or, if I get a lowball offer, the numbers start increasing once I remind the mediator and defense counsel that I will leave if substantial progress isn’t made.

Of course, this point applies equally to plaintiff’s counsel. I can’t start off at $10 billion dollars like Dr. Evil with a law degree. I make sure that my offers are within reason so that I can be justifiably indignant if defense counsel starts playing games with the offers.

One Size Does Not Fit All

As I said at the beginning, there is no foolproof way for the plaintiff lawyer to approach mediation. There are numerous approaches and many depend on the parties involved. These are some of the broad categorical approaches that I take and they’ve worked for me.  I hope that you find them useful as well.  Happy mediating.

About The Author

Brian Herrington is the founding partner of Herrington Law, PA in Jackson, Mississippi. Licensed in Mississippi and Tennessee, Brian litigates consumer class actions, cases involving defective drugs and medical devices, and personal injury cases all over the country.

You can obtain more information about Brian's practice by going to Herrington Law PA’s main website here. Brian blogs on numerous issues relevant to litigation at Mississippi Consumer Lawyer here.  You can also follow Brian on twitter at twitter.com/brianherrington.

Why Common Sense, Compassion and Listening Twice As Much As You Talk Are The Best Negotiation Strategies In Law and Life

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.
 

Rock Paper Scissors Dispute Resolution

Thanks to Tammy Lenski over at Twitter (follow her!) for passing along Pop Crunch's photo of the best dispute resolution street sign ever posted (with all due deference to NYC's "Don't Even Think About Parking Here."

I can't download it to post it so you must click here for it to make your conflict resolution day.

Image below links to Random Images.

Obama and the Politics of Despair

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 CreativeYou can catch him on Twitter here.

 

 

Hope, Safety and Innovation

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

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

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

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

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

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

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

Llssez le bon temps roulez!

What We Think We Know Can Hurt Our Negotiating Position

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.

 

Blawg Review # 181 Celebrates International Conflict Resolution Day

It's effective, it's efficient and it's client-centered.  Just what we need to weather the financial storm.

 What?  The mediated resolution of litigated cases. 

Nobody blogs it better than Diane Levin at the Mediation Channel, who hosts Blawg Review # 181 in celebration of International Conflict Resolution Day.   BR's anonymous Ed. recently had these kind and grateful  words for Diane:

We'd like to take this opportunity to thank Diane for her many contributions to Blawg Review, having now hosted four outstanding presentations -- #43, #94, #130 and #181. Behind the scenes, in her role as a Blawg Review Sherpa, Diane has made contributions to many other issues of Blawg Review, too. So, speaking for myself and all the other Blawg Review hosts she's helped along the way, we'd like to say thanks a bunch and give you this extra little bit of link love to show our heartfelt appreciation.

Tomorrow I'll start my day by reading, and giving my own readers a head's up on what looks to be one of the best Blawg Reviews of the year by the best ADR blogger ever.

Anyone working up the nerve to host, click here. Lesser mortals can submit their week's best post by taking a look at the submission guidelines here. Next week Blawg Review  will appear at ..

 

Preaching to the Perverted.

(totally unrelated photo; just getting my iPhone photos from Paris in the mix)

But what a Blawg Review Diane has given us.  Thank goodness it's Columbus Day or I'd be short-changing my actual work-work by reading #181 half the day and its links the other half of the day.  And don't expect Diane to limit herself to mediation.  Most of us are also lawyers, after all, so she also covers the best legal posts of the week on the topic of the law, legal practice, life as lawyers -- the "whole catastrophe" as Zorba said. 

Geoff Sharp is spot on in urging you to read Blawg Review #181.  It could be malpractice not to do so!!

Brilliant Diane!  Thanks.


 

 

What Times are These? The Unruly Tyranny of Mobs

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

 

Helping Employees Help You Help Them

Earlier this week I was asked the following question by a concerned General Counsel:  how can we help our employees grapple with on-the-job justice issues without leading them to believe that our proposed solutions are untrustworthy.  

The problem, as eloquently described by a lengthy email posing the question, is one that all employers face, large and small.  For this GC to have thought that mediators might make a difference is particularly heartening on a day when mediator Justin Patten was reporting that mediators are the furthest thing in a UK company's mind when dealing with conflict.  

(above, the work of the brilliant Hugh McLeod)

To understand the depth of the problem posed, I'm providing you with the full email sent to me:   

Victoria:

I just read your blog post of September 15, 2008 regarding Peter Murray's article (which I have not read yet). I was having a discussion today with my Director of Human Resources, and raise a related issue.

Our company spends an inordinate amount of time explaining disability, workers comp and federal employment law to employees who misunderstand what their rights are, or do not give us the right information to help them get the help they need.

Of course, we are the big bad employer, so any information we give them is suspect. I have considered hiring a social worker as a case manager/advocate for these people, but that position would just be interpreted as another tool of the evil employer out to keep them out of work/make them go back to work in violation of their best interests, so it would be a waste.

We would LOVE if there was an independent agency that would assign a case worker, not to work as an attorney for the employees, but as an advocate to help them understand their rights and access the system correctly. I would gladly pay to fund this service.

Then I realized, if the employer, or a group of employers, funded this employee advocacy agency, employees would think the advocates were biased toward the employers and were just in a sham relationship to deprive them of their rights to serve the interest of the employer.

Now, I do not believe this would be the case. I trust in the professionalism and ethics of mediators, but I do believe that uneducated and single users would form that opinion. Professor Murray's opinion reinforces that conclusion, even though at first glance, he would seem to be "educated."

But, is bigger government the answer. My experience with the EEOC is that they want employers to do MORE than is required by law. We have had success with mediators after complaints are filed, but my goal is to get the employees what they need when they need it, not have a mediator help us fix it after time has run out.

What are your thoughts on this?

The Problem as Cognitive Bias

I've highlighted the sections of the GC's email that raise the problem of reactive devaluation -- our tendency to devalue and resist anything our "opponent" offers to us.  Most attorneys were taught reactive devaluation as first year associates -- "if opposing counsel wants it, you don't." 

As the linked article -- Reactive Devaluation in Negotiation and Conflict Resolution -- notes:

One can be led to conclude that any proposal offered by the “other side”—
especially if that other side has long been perceived as an enemy—must be
to our side’s disadvantage, or else it would not have been offered. Such an
inferential process, however, assumes a perfect opposition of interests, or in
other words, a true "zero-Sum" game, when such is rarely the case in real-
world negotiations between parties whose needs, goals, and opportunities
are inevitably complex and varied.

Combatting Reactive Devaluation in the Workforce

Cognitive biases such as reactive devaluation are not random artifacts of an irrelevant evolutionary past.  They are built-in protections against deception by our friends as well as by our adversaries.  There is only one lasting protection against this bias -- to engage in clear communication with your work force on a daily basis concerning the mutual and complementary interests of employer and employee; to express your belief in your interdependence in word and deed, i.e., by engaging in dialogue and activities demonstrating  benevolent intent; and to willingly listen to one another's complaints, understanding that one man's benevolence is another's bondage. 

As recent legal news touching too close to home (the Heller dissolution) bears out, the workplace will not work if the middle or the bottom collapse.  If human resources are your greatest capital asset, attend to the wisdom of Adam Smith Esq. on Heller's recent failure:

"Our assets go down in the elevator every night."

Take that bromide seriously.

You must give people a persuasive reason to come back "home" every Monday morning.they go down the elevator every night and must have a good reason to come "home" the next day. 

Asking Diagnostic Questions and Using Transformative Mediation Methods

I repeatedly tell my clients what I've learned from the academics who teach negotiation strategy and tactics at elite business schools throughout the country -- 93% of all negotiators fail to ask their bargaining partners diagnostic questions the answers to which would dramatically improve the benefits of the bargain to everyone. 

What's a diagnostic question?  One that would reveal our bargaining partners' needs, desires, priorities, preferences and motivations.  I'm no employment expert, but I have participated in the management of law firm personnel as a partner and have been managed by others throughout my professional life.  As a full-time mediator for more than four years, I have also asked hundreds if not thousands of diagnostic questions to help litigation adversaries understand one another's motivations, to reframe those motivations as non-threatening, or, at a minimum, the result of ordinary human fallibility, and to explore the parties' mutual and complementary interests. I also remind my parties and myself as often as possible that you cannot drill a hole in the other guy's side of the boat without making your own side sink to the bottom of the lake as well.

As the transformative mediators who have been most successful in workplace disputes tell us, our job is to assist the parties in moving from fear and powerlessness to accountability and mutual recognition of the interests of the other.

Empowerment, according to [the fathers of the transformative paradigm] Bush and Folger, means enabling the parties to define their own issues and to seek solutions on their own. Recognition means enabling the parties to see and understand the other person's point of view--to understand how they define the problem and why they seek the solution that they do.

(Seeing and understanding, it should be noted, do not constitute agreement with those views.)

Often, empowerment and recognition pave the way for a mutually agreeable settlement, but that is only a secondary effect. The primary goal of transformative medition is to foster the parties' empowerment and recognition, thereby enabling them to approach their current problem, as well as later problems, with a stronger, yet more open view. This approach, according to Bush and Folger, avoids the problem of mediator directiveness which so often occurs in problem-solving mediation, putting responsibility for all outcomes squarely on the disputants.

Rights and Remedies vs. Interests

It's not surprising that employees just don't seem to "get" the legal rights and remedies company HR departments keep trying to explain to them.  They don't make any sense absent legal training.  

People who are not lawyers simply don't understand why there is a legal remedy for one type of injustice but none for another that feels just as unfair.  Let's take our patchwork of Constitutional protections for employees.  As an life-long ACLU member, I'd be the last to denigrate them.  But we have to understand that we've created a "fair" workplace for only some of our citizens, not all of them. 

Women, people over 40, under-represented minorities and the like, can take the square peg of their unfair work treatment and cram it into the round hole of a viable cause of action.  If an employee does not want to cry "gender discrimination" even though she's being treated badly on the job, or if he has no bundle of legal rights to assert, there is no remedy for a termination that feels (yes, feels) wrongful.  Remember, it took us lawyers quite some time for the legal worldview to "click" and we were immersed in it, drilled in it and eager to learn it.  Employees just want someone to listen to their problem and to help them resolve it.  They don't want to know the wage-hour laws, the need to exhaust administrative remedies with the EEOC and the like.  

Employees and employers have people problems with justice issues, not legal problems with "irrelevant" emotional responses that get in the way of resolution. 

Expressed emotion is the key, not the lock. 

It is we -- the lawyers -- who legalize and monetize injustice, shutting our clients down when they try to explain what the problem really is because it's irrelevant to the legal solution.

If you're old enough to remember the lingering moment in United States history when our educational institutions went from white, on the one hand, to multi-hued, on the other, you'll know intimately how you deal with reactive devaluation.  You get to know one another.  Do this and Kaneesha is not "black" or "African American" but a well-known acquaintance or dear friend.  The same is true for employers and employees.  Create activities in which (alleged) oppressor and (purported) oppressed come together to engage in mutually productive (Habitat for Humanity springs to mind) and mutually enjoyable (basketball?  girls nights out?) activities.  At the holiday party, don't relegate the "underlings" to their own table.  Walk your talk.  Destroy the hierarchy everywhere except where it's actually necessary to get work done. 

I can't describe the benefits of interest-based resolutions over rights-based solutions any better than does my mentor and friend, Ken Cloke, in his brilliant new book -- Conflict Revolution.

[r]ights-based processes . . . generate winners and losers, undermine relationships, and result in collateral damage, . . . Since rights rely on rules, change is discouraged, though not prevented, and conflicts are settled rather than prevented or resolved.

This is not easy work. As a mediator, I know how elusive Cloke’s “outcomes” can be

--  outcomes [in which] both sides win and no one loses, when former adversaries en-
gage in meaningful dialogue and reach satisfying agreements, and when power is exercised with and for each other by jointly solving common problems.

I have, I am afraid, given my GC a problem rather than a solution.  More accurately, I've suggested an altered way of looking at the problem without a great deal of detail about crafting a solution.  Not only could people better versed in employee relations write books on this topic, they have.  Therefore, I'm asking my good ADR blogging buddies to please chime in here for you.

Diane LevinGeoff SharpBlaine DonaisOmbuds Blog? John DeGrooteNancy HudginsStephanie West Allen Gini NelsonTammy Lenski?

 

 

 

Mediation Ideologies and Settling Your Commercial Litigation

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. 

Negotiating the Economy: You Can't Save Your Face and Your Ass at the Same Time

See Marginal Revolution's post today The problem is that both of you are right citing David Brooks for the proposition that the "failure to pass the bailout represents a massive failure of American governance and leadership, most of all at the Congressional level. That's true even if you think, for other reasons, that the bailout was a bad idea. (Can any hero be cited in this debacle?)"

There are no heroes in this crisis -- only leaders and representatives of the people, many of whom are now being seriously burned, most particularly in their retirement accounts.  

If inaction is the answer (which I doubt -- see the Harvard Working Knowledge round-up of solutions from the smartest people in the room, here) our representatives should say so.  If they're afraid of looking bad, we should get rid of the bums.  If they're angry at Nancy Pelosi, they should get over it.  Though Pelosi's speech is an example of the way that being hard on the people rather than on the problem can cause negotiations to break down, surely our elected representatives realize they can't pout their way through this crisis.

We need in Congress what every negotiation requires:  preparation, communication, collaborative problem solving and, in this particular bargaining session -- courage, which Webster's defines as

"the attitude of facing and dealing with anything recognized as dangerous, difficult or painful instead of withdrawing from it; quality of being fearless or brave; valor. The courage of one's convictions or the courage to do what one thinks is right."

Come to think of it, all negotiations require courage.

So get back up on the donkey, Congress; be prepared; be principled; be brave.  We're counting on you.

And for those who aren't afraid to admit that they don't know the difference between a strategy and a tactic, here's a brief tutorial.

Here's more from Harvard (link here to full article)

If ever there was a time for resonant leadership, it's now. We need to rise above panic. Panic kills. Really, it does. If you're caught in a riptide (which we are) and you freak out, flail, fight it, you will die. If you smell smoke in the house and run wildly around gathering things you will die. If you freeze in your bed and hope the smoke is outside, not inside, you'll die.

This is not a time to give in to panic. Of course we are scared. It would be stupid not to acknowledge that the economic world as we know it -- knew it -- has changed fundamentally and forever. Actually it probably changed a while ago. We just ignored it, covered it up. So we are justifiably terrified. Now what?

Let's do something with our feelings, rather than let our emotions do something to us. Fear has its place -- it gets our attention. But we can't let it paralyze us. This is a time to breathe deeply. To think about what is most important -- family, life, health, love, purpose. And for my countrymen and women -- let's think about who we are as Americans. We can move beyond fear. What's beyond fear? Hope. Creativity. Resilience. Compassion. Courage.

Back to my daughter Sarah for a minute. She's at work today, in good spirits and having fun helping to create an awesome TV special about an inspiring American hero. My brother --also at work, creating. That's what he does--he creates new solutions for new problems. And me? I'm at work too. I spent the day with my team, a group of incredible people who dedicate their lives to others.

No, it won't be easy. But yes, we can make it, and we can make a better world too. That is not a noble goal, it is a necessary goal.

A final word. Common wisdom, backed up by research: hope, optimism, good humor and compassion (among other positive emotions and experiences) can literally free us from the deadly psychological traps of panic and anger. It takes tremendous self-management. But we can do it.

Courage quotes to remind all of us who we are:

Winston Churchill:

Courage is going from failure to failure without losing enthusiasm

Theodore Roosevelt:

It is not the critic who counts, not the man who points out how the strong man stumbled, or where the doer of deeds could have done better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood, who strives valiantly, who errs and comes short again and again, who knows the great enthusiasms, the great devotions, and spends himself in a worthy cause, who at best knows achievement and who at the worst if he fails at least fails while daring greatly so that his place shall never be with those cold and timid souls who know neither victory nor defeat.

Theodore H. White:

To go against the dominant thinking of your friends, of most of the people you see every day, is perhaps the most difficult act of heroism you can perform

Soren Kierkegaard:

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

Maya Angelou:

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

Margaret Chase Smith:

Moral cowardice that keeps us from speaking our minds is as dangerous to this country as irresponsible talk. The right way is not always the popular and easy way. Standing for right when it is unpopular is a true test of moral character.

Aristotle:

Moral excellence comes about as a result of habit. We become just by doing just acts, temperate by doing temperate acts, brave by doing brave act.

Charles DuBois:

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

 

Clare Booth Luce:

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

Dorothy Thompson:

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

Eleanor Roosevelt:

You gain strength, courage, and confidence by every experience in which you really stop to look fear in the face. You must do the thing which you think you cannot do.

Negotiating Politics: The Issues: Guantanamo

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. 

Mediators Give California Budget Crisis Advice

From the Sacramento Bee's Political Editor Amy Chance, Q&A: Mediators brainstorm on how to fix the state budget process

As California's longest budget stalemate in state history ground to a close, six professional mediators met with The Bee's Capitol Bureau last week to offer their thoughts on building a more functional state budget process.

Their advice in a nutshell: Improve lawmakers' communication skills, train them and their aides in mediation techniques, set up a structured negotiation process long before budget deadlines approach, agree on common goals, build trust by reaching incremental agreements – and don't expect perfection.

– Amy Chance, Bee Political Editor

For full Q&A, click here.

 

Blawg Review #178 Celebrates One Web Day

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

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

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

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

Private Means for Public Justice? Professor Murray Responds

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

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

Professor Murray's comment below.

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

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

Let the conversation continue!

 

Potential for Treble Damages Adds Weight to Settlement Demands for Bad Faith

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.

John DeGroote's Settlement Perspective is the Great New Kid on the Block

John DeGroote of Settlement Perspectives soon to appear at Mediate.com Featured Blogs.  The missing link between mediators and litigators. 

The client!!

Now we just need a blogging claims adjuster and we can bring peace to the Middle East.

Below are John's impressive credentials.  We meant to meet for a "quick" cup of coffee.  We talked negotiation strategy and tactics for nearly three hours.

As I review websites I often wonder about the experiences of the authors and the biases they bring, so I feel I should disclose mine for those who want to know more. I have been fortunate to work with two “hands on” in-house legal teams, with settlement negotiations handled primarily by employed lawyers rather than their law firms. I am also lucky to have practiced in law firms with true trial lawyers who generated genuine negotiating leverage whether settlement was their objective or not. Through these experiences I have settled cases threatened, pending or mediated in about 20 states - from Montana to Florida and from New Hampshire to California - and have managed the resolution of disputes around the world. Working with and against some very good lawyers and employing some of the truly legendary mediators, I feel fortunate to have seen a real cross-section of styles and approaches. In almost all of these cases I have had the opportunity to work behind closed doors with the people who really decide when cases settle - CEOs, CFOs, General Counsel, COOs, individual plaintiffs, insurers, board members, auditors, and more.

More on Mediation's Corruption of Justice

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;
  • 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.

Negotiating Politics: Mediators and Neutrality

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

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

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

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

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

What it Means to Be an ADR "Neutral"   

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

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

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

    • Neutrality as a practice in discourse.

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

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

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

Leaving One's Neutrality at the Mediation Room Door 

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

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

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

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

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

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

 

An Idea Whose Time Has Come: A Legal TED Conference

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?

Clinton Speaks on 88th Anniversary of Women's Suffrage

(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.  

 

California Courts Let You Have it Your Way: Arbitrate and Appeal the Award

(while we're walking down memory lane anyway, "Have It Your Way" from 1976) 

When I ask litigators why they don't choose arbitration over litigation before unpredictable judges in a crowded court, their answer invariably is "because I can't appeal the ruling."   We cling to appellate review even though we appeal fewer cases than we try -- which is a very small percentage of our case load as it is. 

Not surprising, however, we litigators, as Max Kennerly recently noted, tend to be risk-averse, not risk-embracing (h/t Blawg Review # 174).  To give up that one last chance for our client to be vindicated and for us to be triumphant is generally just too much for us. 

Now we can have our arbitration cake and and follow it up with appellate ice cream.  Yesterday, the California Supreme Court in Cable Connection, Inc. v. DirecTV  held that arbitrating parties' agreement to seek appellate review of legal errors is enforceable in California State Courts despite its uneforceability in federal court.  As the Supreme Court explained:

On the first question, the United States Supreme Court has held that the Federal Arbitration Act (FAA; 9 U.S.C. § 1 et seq.) does not permit the parties to expand the scope of review by agreement. (Hall Street Associates, L.L.C. v. Mattel, Inc. (2008) __ U.S. __ [128 S.Ct. 1396, 1404-1405] (Hall Street).)

However, the high court went on to say that federal law does not preclude “more searching review based on authority outside the [federal] statute,” including “state statutory or common law.” (Id. at p. __ [128 S.Ct. at p. 1406].) In Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1 (Moncharsh), this court reviewed the history of the California Arbitration Act (CAA; Code Civ. Proc., § 1280 et seq.).

We adhere to our holding in Moncharsh, recognizing that contractual limitations may  alter the usual scope of review.

The California rule is that the parties may obtain judicial review of the merits by express agreement. There is a statutory as well as a contractual basis for this rule; one of the grounds for review of an arbitration award is that “[t]he arbitrators  exceeded their powers.”  (§§ 1286.2, subd. (a)(4), 1286.6, subd. (b).)

Here, the parties agreed that “[t]he arbitrators shall not have the power to commit errors of law or legal reasoning, and the award may be vacated or corrected on appeal to a court of competent jurisdiction for any such error.” This contract provision is enforceable under state law, and we reverse the contrary ruling of the Court of Appeal.

Don't Like Mediation Confidentiality? Hold a Settlement Conference Instead

 

 

AUGUST 25, 2008 | FORUM

If You Know the Case Law, Litigation Doesn't Have to be Robotic

By Victoria Pynchon 

Here in California, there's no stronger rule of confidentiality than that applied to a mediation. It cannot be impliedly waived like most privileges, including the near-sacred attorney-client privilege. Simmons v. Ghaderi, 2008 DJDAR 11107. You cannot be estopped from relying on it. Eisendrath v. Superior Court, 109 Cal.App.4th 351 (2003). And if you want your mediated settlement agreement enforced, you must strictly comply with the requirements of Evidence Code Section 1123. Fair v. Bakhtiari, 40 Cal.4th 189 (2006).

Insurance policy-holder counsel Kirk Pasich of Dickstein Shapiro has criticized nearly all recent interpretations of mediation confidentiality by the California Supreme Court on the ground that they permit insurance carriers to use mediation proceedings to engage in acts of bad faith.

"Why should a carrier get a license to act in bad faith in mediation," Pasich asked, adding, "Cases settled, and still settle, in mandatory settlement conferences without that same shield. I don't think a process should exist that encourages, rather than discourages, a party from acting in bad faith."

Why, indeed?

If you do not understand the differences between settlement conferences and mediations, you are not alone. My informal surveys indicate that litigators believe there's no difference whatsoever between the two and few mediators are able to distinguish between them despite their training in the field. Nor have California's courts been of any real assistance.

What's in a name? Here, plenty. The application of California's Rules of Evidence to mediations has such significant potential economic consequences that mediator and litigator malpractice actions are surely looming on the horizon.

What type of misbehavior can occur in a mediation? Here are just a few examples: One party can make a misrepresentation of material fact on which the other relies in entering into a settlement agreement; as Pasich notes, an insurance carrier can act in bad faith; one mediating party could tortiously interfere with a third party's contract or prospective economic advantage; or the mediating parties can enter into a collusive settlement agreement, depriving the settling parties' co-defendants from learning facts necessary to challenge the settlement in a "good faith" hearing.

Even if all parties have expressed complete agreement during the mediation, which they then memorialize in a term sheet, absent strict compliance with the requirements of Evidence Code Section 1123, no evidence probative of that agreement will be admissible in a California court.
If the mediating parties are engaged in a settlement conference, none of this potentially bad behavior would be protected.

Given the potentially significant adverse economic consequences that can flow from a mediation, California's courts have clarified the differences between the two procedures, right?

Not so much.

If you have a DJ subscription, continue reading here.


 


Enforcement of Mediated Settlement Agreements in California - Get more Legal Forms

Settlement Unicorn Appears in Malpractice Mediation!

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.

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.

Seven Ways to Improve Your Working Relationships

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

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

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

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

We're going to need it.

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

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

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

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

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

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

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

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

Daily Journal ADR Articles -- Updated Regularly

This page can always be found under Links to the left. 

Pass Court, Go Directly to Mediation

This just in from Sydney,  Australia. 

I imagine the results are as good or better here in the States, particularly in Los Angeles where mediation practice is both broad and deep.

 

Couples, families choosing mediation in battle of wills

DE FACTO couples disputing about property after splitting up, and siblings fighting over their parents' wills, are increasingly using mediation rather than dragging their battles through the court system.

The latest figures show that NSW Supreme Court registrars had done as many mediations in the first half of this year as they had done in total last year as people realised they could sort out their disputes on their own terms, in privacy, rather than in front of a judge, the Attorney-General, John Hatzistergos, said.

Most disputes were resolved without going any further, freeing up courts and judges for other matters, he said. "It is very encouraging that so far this year 59 per cent of the mediation sessions have concluded with the litigants resolving their dispute," Mr Hatzistergos said.

"Mediation ensures cases . . . . continue reading here.

The Trouble with Thottam: Mediation Confidentiality At Risk

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.

New Case on Enforcing Mediated Settlement Agreements Muddies the Waters Again

The new Estate of Thottham case on the enforcement of mediated settlement agreements is troublesome because

  • it appears to contravene the holding of the Supreme Court in Fair v. Bahktiari (full opinion here)
  • it turns upon the interpretation of one ambiguous sentence in the parties' confidentiality agreement which I'm almost certain was not meant to create an exception to (or satisfy the requirements of) Evidence Code section 1123(c)
  • it shows a remarkable persistence in the trial and appellate courts of the desire to enforce term sheets in non-compliance with the Evidence Code, privileging finality over the the parties' reasonable expectations that all the proclamations about confidentiality will be honored.  
  • it creates uncertainty in the law, making it difficult for attorneys to guide their clients before, during and after mediation proceedings.

This is a ripe area for malpractice actions -- binding parties to agreements they later claim were not reached.  The Supreme Court keeps saying -- we mean what we say (Simmons v. Ghaderi) -- no exceptions to the requirements of 1123(c).  Nevertheless, the trial and appellate courts find enforcing skeletal mediation term sheets (this one was a chart) nearly irrisistable.  They just can't seem to get their minds around the idea that the point of mediation -- a non-legal process -- is to create a durable agreement that the parties all want to enforce.

If a mediated agreement were a consumer contract, there'd be a cooling down period during which the "buyers" could re-think a decision made in the heat of the moment with mediators and attorneys leaning on them to settle or else . . . . you know . . . whatever the parade of horribles is.   

Are parties bullied into settlement by mediators and even by their counsel?  Let's look again at the definition of bullying:  the repeated and deliberate abuse of power by one person or group of people over another person or group.

I'm not suggesting that mediators and attorneys know they are abusing the power of their position and authority to "persuade" the parties to accept a settlement that leaves the taste of injustice in their mouths.  We just sometimes forget how much power we possess and how overwhelming our importuning can feel to someone unfamiliar with the legal system.  Think about how helpless you feel trying to communicate with someone who speaks another language.

I've observed mediations in which the mediator -- repeatedly and, it can only be said, deliberately -- abuses his or her authority to gain the consent of parties who are clearly not comfortable with settling their case on the terms proposed and are certainly not satisified with the "deal."

Keep 'em in the room; wear them out; highlight their fears; diminish their hopes and then, when they're at their weakest, put a pen in their hand, ask them to sign and then elevate that signed agreement above all else because what we're after here is efficiency, brother, not justice -- a term too many mediators feel forced to put in quotes.  "Justice."  As if it could possibly be anything other than a cynical joke.

OK.  I misused this post to rant.

I'm going to come back and "brief" this case for you next, highlighting the traps for the unwary and commenting on the form agreement used by the Los Angeles Superior Court ADR panel -- a form that is now mandatory.

HEAD'S UP FOR THE NEXT POST NEW LAW STUDENTS -- THIS IS WHY IT'S IMPORTANT TO LEARN HOW TO DE-CONSTRUCT A LEGAL DECISION AND TEASE OUT THE HOLDING FROM THE RATIONALE, THE RULES AND THE DICTA

This Met News report, accurate as it is, doesn't do justice to the traps and troubles lurking here.

Evidence Code Sec. 1123(c)'s exception to mediation confidentiality--providing that a written settlement agreement prepared in mediation is not made inadmissible or protected from disclosure if signed by parties, and all parties expressly agree in writing to disclosure--applied in appellant's civil action to enforce chart prepared during mediation and signed by all parties which appellant claimed was a settlement agreement because estate beneficiaries, in agreement to mediate dispute over distribution of assets, agreed all matters discussed or agreed to in mediation would be kept confidential and not used in any litigation among them "except as may be necessary to enforce any agreements resulting from" mediation, and because chart--setting forth material terms which were sufficiently certain to provide a basis for determining what obligations to which parties had agreed--was a "settlement agreement."

Estate of Thottam - filed August 13, 2008, Second District, Div. Four Cite as 2008 SOS 4917
 

Demonizing the Opposition

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

Competitive Position-Based Negotiation Tactics from the California Lawyer

(right, more fabulous Fincher)

Thanks to mediator Tom Matychowiak for alerting me to "Managing Expectations in Mediation," by Dan L. Stanford (under "Expert Advice" in this month's California Lawyer).  

Tom noted that while most of the article addresses the management of client and adversary expectations, it concludes with these paragraphs:

Once you know who the mediator will be, always contact him or her and try to meet in advance of the mediation. If that is not possible, have a pre-mediation telephone conference. Focus only on the strengths of your case: If you represent a plaintiff, talk about the clear liability evidence, significant damages, your client's expectations of a big award, problems with the credibility of the defendant, and your willingness to try the case. Set the bar high. If you represent a defendant, focus on the strengths of your defense, including technical defenses, any persuasive evidence, and any credibility issues the plaintiff might have. Set the bar low. From both perspectives, provide the mediator with everything that serves your interests. [emphasis in the original]

At the mediation, continue this effort and work even harder at it. If the other side convinces the mediator that you will accept a lesser result than advertised, your chance of success will plummet (and you may end up facing a very unhappy client). On the other hand, if you convince the mediator that your adversary is willing to give more to settle than is on the table, you may well be on the way to having a successful outcome and a satisfied client.

Comments?

$50 million in insurance limits exhausted before a trial date is even set?

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.

Mediator Meltdown and Dancing in the Streets

There's now a genuine reason for summertime dancing in the streets.  Charles Fincher of Law Comix has started a new blog here!!

 

Today's ADR offering below:

Why hasn’t the American Lawyer syndicated Fincher’s work for a nice little bundle of cash?

Hey!! AmLaw Editor!! Are you seeing these cartoons? Are you hearing the laughter in the hallways breaking the stress of daily practice? Are you understanding how many more pairs of eyes Fincher's work will deliver to you and your advertisers?  

Maybe you need to see this one:

Maybe Fincher just won't let his work appear there?  Or is he holding out for syndication in the New York Times?  The Wall Street Journal?  My small reader pool LOVES these and now they can subscribe via RSS feed over at the LawComix Blog

Thanks Charles!

 

Negotiating Armed Conflict

Thanks to the Daily Kos for citing us to A Possible Mediation/Peace Proposal for Georgian Conflict from Mirror on America.

Here are the first four suggestions, click on the highlighted article for the full discussion.

Efforts Should Focus on the Following:

1. Establishing a ceasefire to allow for the treatment & evacuation of the wounded and to establish a safe humanitarian corridor for civilians to evacuate. Establish access for Red Cross & other NGO’s.

2. Get all military forces to pull back either completely or partially to establish a demilitarized buffer zone. Deweaponize the area. This will reduce the number of clashes.

3. Establish a more permanent ceasefire and begin negotiations on the long-term status of South Ossetia.

4. Make sure rebel groups stand down and are part of negotiations.

If you don't think armed conflict can be negotiated, check out Arbitrating Armed Conflict by Adir Waldman

Joint Sessions and Unicorn Settlements

Max Kennerly over at Litigation and Trial has graciously and profusely responded to our call for comments about the road-blocks to achieving optimal negotiated resolutions to litigated disputes.

Because Max and I are straining toward the same goal every litigant does when the burdens of a lawsuit begin to outweigh its anticipated benefits, I'm going to include my readers in the conversation.

Our Interests are Adverse, Not Mutual or Intertwined

Max suggests that the hypothetical "business school" negotiated resolution doesn't provide litigators with much guidance in resolving litigated disputes because the buyer-seller-mutual-or-intertwined-interest template cannot be comfortably laid over a conflict between parties whose interests are entirely adverse.  As Max explains:  

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

Same with the plaintiff. Unlike buyers and sellers, who usually don't get much joy out of their 'conflict' as a conflict, the plaintiff usually prefers imposing a conflict on the defendant (who the plaintiff believes cast the first stone) in pursuit of justice, an imposition they will only relieve for at least "full"  compensation. 

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

Before moving on to adverse/intertwined/mutual interests, I want to emphasize that what the parties "interpret . . . as fundamentally non-economic" is the key to the settlement of litigated disputes -- not a roadblock. 

Nor can the feelings that accompany litigation be called  "emotional baggage" unless we interpret the desire for justice as pathology. 

This hunger for justice is so fundamental to our social relationships that even  primate relatives like  capuchin monkeys will deprive themselves of food if they sense it is being distributed unfairly.  In capuchin monkey land, injustice appears to consist of being required to do five times more work to "earn" the same benefits as another.  

People seek out lawyers rather than therapists to resolve the emotional issues that accompany conflict -- because they believe themselves to be victims of  injustice and lawyers are in the justice business.  Our clients have not simply suffered an injury (tripped over their own feet) but have a wrong (stumbled over a trip wire placed in their path by a malicious or careless actor).  We can explain until we're blue in the face that money is the only remedy the law can provide.  Our clients will continue to seek justice and will not easily settle for money alone.  

"The Unicorn Settlement"

Max asks that I acquaint him with the Unicorn -- the state "where two hostile parties on the verge of a lawsuit get lawyers, almost file suit, and then, through deft representation, settle their differences peacefully and move on" Unicorns. Excluding business disputes where the parties have an existing and potentially mutually beneficial on-going relationship, this type of settlement, says Max, is a myth.  He explains:

I entered the law expecting The Unicorn to be rare but real; by this point, I have been trained by defense lawyers not to bother to check for it. I still usually do, throwing out what I think is a perfectly reasonable offer early on, which is routinely ignored or dismissed by a letter that gratuitously refers to my claims as baseless, frivolous, or made in bad faith.

So that's my biggest question to you: how do you suggest I get defendants, prior to the courthouse steps, to even enter the mindset that there's a valid claim and mediation / settlement should be considered? Reframed in words closer to your post: what can I do to (a) get the joint session to happen and (b) ensure everyone's in the right mindset?

The Conditions in Which Unicorns Flourish

When I started practice -- in 1980 -- I did so in a small community -- Sacramento -- where everyone was a "repeat player" with everyone else.  Perhaps more importantly, you could file a suit in year one and try it to a jury in year two.  Not only defense counsel, but insurance adjusters, knew which plaintiffs' attorneys would try cases and which would not.  They also knew which ones could persuade a jury to bring back a hefty award.    

Though I only handled personal injury litigation for my first two years of practice (after which I changed firms and moved on to commercial litigation) I saw dozens of "unicorns" in my first few months of practice.  As the junior-most attorney in a small P.I. practice, I settled hundreds of cases without ever filing a lawsuit -- on the telephone with insurance adjusters.  (A really, really good reason to leave PI practice, but that's another story). 

I settled these cases in the world of "three times specials" at a time when and in a place where everyone knew one another and used a common metric to evaluate potential liability and damages.  In that environment, Unicorns flourished.

Unicorn Hunting in the 21st Century

Max isn't asking me to shoot ducks in a barrell here.  He's asking me to deliver the holy grail of mediation -- how to convene an early settlement conference in which the parties (and their attorneys) are united in a desire to settle litigation without protracted discovery or pre-trial procedural wrangling.  

I hate to keep leaving my readers on the edge of a satisfactory resolution, but I DO have work to do and will return to this -- and Max's further observations -- soon, really soon.  Stay tuned.  And join the conversation by leaving your own comments here.

Face-to-Face: Emotion in Conflict Resolution

We've been having a blog-versation about joint sessions this past week thanks to attorney Gavin Craig, workplace conflict mediation trainer Guy Harris (see also An Attitude of Curiosity - continued) and Pennsylvania litigator and blogger Max Kennerly.

Kennerly says:

sometimes I don't want to discuss the case. Sometimes either we're at the end of the road or you're not even on our road, and I'm not going to humor you and your insufficient offers and your attempt to use social influence on me. Indeed, many of my best offers come after cancelling settlement conferences before they happen.

Just something to keep in mind. Every trick you know is a trick that can be played on you and/or your client.

While Craig recalls a mediation in which a joint session hardened the parties' positions as follows:

The mediator decided at the last minute that it would be nice to see if we could all meet and agree in a joint session.

In his defense, he had the advantage of reviewing the positions of both parties in their submittals. There was no warning that the mediator was going to try to help the parties come to an agreement in a joint session.

What I remember most was my client getting so incensed by the positions of the other party in the joint session. Unfortunately my client hardened his position – not helpful in mediation – and apparently the other party did the same. I think the theory about eye-to-eye meeting and negotiations is absolutely correct.

The problem is that parties bring so much emotion into a settlement discussion that I think they need to stay separate from the people creating the emotion before they can calmly assess the best course of action.

What interests me most about Craig's comment is this:

I think the theory about eye-to-eye meeting and negotiations is absolutely correct. The problem is that parties bring so much emotion into a settlement discussion that I think they need to stay separate from the people creating the emotion before they can calmly assess the best course of action.

I'm going to be writing about this conversation all week and invite others to please comment.

Right now, I'd like anyone interested in the resolution of conflict close to home (the neighbors; the  PTA President; the woman sitting in the cubicle next to you stripping laquer from her nails with industrial strength polish remover; the entire HR department; your boss, etc.) to read It Took a Villain to Save Our Marriage in the Style section of this Sunday's New York Times.

Here's the "money shot" for anyone who has ever mediated neighborhood disputes in a community mediation center as I do pro bono.

Then while the rest of the block kissed goodnight, I stomped down the street in the dark to Blocker’s house and pounded on his door.

He opened it, shirtless and calm; it unnerved me. I’m sure I looked crazed. I felt my face puff up. “Stop taking our signs!” I said.

There was a shift. It was he who had the advantage now — I was on his porch, and drunk.

But Blocker didn’t say anything mean. He didn’t seem angry, as he should have been, that I had bothered him late at night; he didn’t threaten to call the police. We stood close, inches away. There was an intimacy in our strange hate.

“I didn’t take them,” he said. “Seriously. The city picks them up sometimes. I know where they put them. I could check if you want.”

No, I didn’t want. But I thanked him, and walked home both shaken and comforted, and thinking Anthony would kill me if he knew I had crossed enemy lines like that, alone. I didn’t tell him.

There was one more encounter. Blocker drove by me in his car. He slowed and rolled down his window, and instead of grunting or sneering, he said, “Did you find your signs?”

“No. I didn’t look.”

We exchanged a few more words — about the weather, his dogs — but it was quick. He drove off, and a few weeks later we moved.

A trained and skilled mediator would take advantage of these two fleeting moments of concern on the part of "Blocker" who is the bully in this story with a heart-rending conclusion. 

Read it?

Now assume that these people -- all three of them and maybe a few additional neighbors as well -- belong to a homeowners' association with the power to fine the HOA "outlaw," making the fines a lien against his property.  Now its a legal dispute.

Ask yourself, what do the parties' legal positions have to do with the resolution of the conflict?

Leave your thoughts here -- down in the comments section -- and I'll be back soon to discuss the New York Times conflict resolution hypothetical based not only on my experience mediating the resolution of litigated commercial disputes, but also based on my pro bono community mediation experience and on the studies that earned me an LL.M that's purportedly not worth the paper its printed on (a judgment that could be just as easily applied to my Bachelors Degree in English Literature were it not for its transmogrification into a ticket to practice law).

Bonus Question:  do we really want to dedicate our lives to the satisfactory resolution of conflict -- which is what the law, after all, is all about -- or would we rather, like the author of It Took A Villain, take the pleasure to be had in the state of high dudgeon, self-righteousness, and passionate engagement with someone who is an easy target to blame for our own unhappy life circumstances?

Double Bonus Question for Lawyers Practicing in Los Angeles:  Would you let the Los Angeles Superior Court choose your trial attorney or your marriage and family counselor from a panel of people who have had 28 hours of training in their "professional" field of practice just because the first three hours are free?  

What's Prospect Theory Got To Do With It?

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

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

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

Joint Sessions and Settlement -- Trick or Treat?

In the actual news (the New York Times) are the results of a new study finding that

most . . . plaintiffs who decided to pass up a settlement offer and went to trial ended up getting less money than if they had taken that offer . . . 

Plaintiffs, however, are not the only ones who made the "wrong" decision -- defendants were mistaken in 24% of the cases.  Defense errors, however, were far more costly. 

getting it wrong cost plaintiffs . . . about $43,000 . . . For defendants, who were less often wrong about going to trial, the cost was . . . . $1.1 million.  

What to do?

It's no answer to say " take the last best settlement offer,"  though one party or the other will 80 to 90 percent of the time and often on the courthouse steps, i.e., at the point of a gun when decision-making is at its most flawed. 

Nor, I must concede, is the answer simply mediation, which is, after all, pretty much a pig in a poke.  Why?  Because mediation practice ranges all the way from

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

A friend of mine who is a psychoanalyst once told me that patients get better in therapy despite their analysts' "technique."  It's the relationship that's curative, she told me.  A patient in need will find the water of healing in the desert of a therapist's theory.  If the same can be said of mediation -- that it's the relationship that's curative -- the question that naturally arises is whose relationship?  

Why the disputants of course, which is why I recommend joint sessions.  Not stylized adversarial position-based, chest-thumping, shoe-banging joint sessions ("we will bury you") but interest-based, inquisitive, collaborative, reality-testing mediator-and-attorney directed negotiation sessions. 

Before talking about joint sessions, however, let's look at the problem every litigator faces when advising his/her client whether to accept, make, or reject a settlement offer.  

The Problem in Bullet-Points

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

Joint Sessions

My friend Judge Alexander Williams -- the soon to retire full-time settlement Judge in the downtown Los Angeles Superior Court -- has the following poster hanging in his jury room.

The surface is what the lawyers know.

The depth and breath; the texture and particularity; the details of the dispute and the desire for justice that exists on both sides, is known only to the litigants.  And they haven't (and won't) tell you what they know or want.

Why you should never leave a mediation or settlement conference without letting a skilled mediator facilitate a joint session in which the litigants can explore their joint interests and conflicting goals will be the subject of my next post.

See also Nuts and Boalts (You Had Me at Your Initial Offer) which directs us to Prospect Theory as a good explanation for our settlement errors.

Negotiating Influence: How to Help Your Opponents Change Their Minds

I have alot more to say about this but for the moment am simply linking you to an article at Cognitive daily demonstrating the known fact that you are far more likely to persuade another if you are making eye contact with him.  

And still opposing parties resist sitting in the same room with one another when attempting to settle litigation!

There is a considerable body of research showing that eye contact is a key component of social interaction. Not only are people more aroused when they are looked at directly, but if you consistently look at the person you speak to, you will have much more social influence over that person than you would if you averted your gaze.

For full article, click here.


Confidentiality Means Never Having to Say We're Liable

(image:  Le Silence O Redon)

In today's Daily Journal, reporter Greg Katz writes  that DESPITE RULES, NEUTRALS ARE RARELY BLAMED WHEN THEY MEDIATE AND TELL.

"What happens," asks Katz, "when a mediator is accused of breaking mediation confidentiality, the thing many mediators say is essential to their craft?"

The answer: probably nothing.

As Katz reports, the Simmons v. Ghaderi opinion that made mediation confidentiality iron-clad, arose from a mediation in which the neutral provided a sworn declaration to the Court reciting "details about [his attempt] to persuade Ghaderi to sign her consent," among other things.  

Ron Kelly, an architect of the state's confidentiality statutes, opined that the Declaration filed by the mediator in the Simmons case breached "Evidence Code Section 1121, which forbids mediators, in most instances, from reporting to the courts anything that takes place in their mediations."  Kelly concluded by saying,

If you were going to go after a mediator for malpractice, it seems like an open-and-shut case of violating the law would be a good start, don't you think?

Yes I do.  Yet local attorneys and mediators seem unconcerned.  Lucie Baron of ADR Services told Katz that her panel of neutrals had no policy on the matter because the mediators -- after all -- are attorneys and independent contractors to boot.  They don't, she noted, ask her for legal advice. 

Not a bad call on Baron's part.  But what about the neutrals? 

Their lack of attention to the spectre of "open-and-shut" malpractice litigation is perplexing.  Though the Simmons mediator could colorably claim that the law of confidentiality was unsettled at the time he submitted his declaration -- or that the factual scenario before him permitted the disclosures made -- in a post-Simmons environment, neutrals cannot be so sanguine.  Any disclosure of any communications during a mediation by the neutral would likely be actionable so long as it caused one of the litigants appreciable harm.     

When someone is unhappy with a result -- as too many litigants of mediated settlements are /* -- they search the field for people to blame. 

So far, mediators haven't been among the potential culprits.   

I wouldn't count on that situation lasting much longer.

_____________________

*/  More on this topic soon.

Neutrality, NFL Referees, Federal Judges and Mediators

I'm just back from a Judicate West retreat where we discussed the legal, practical and ethical issues of "neutrality."  So it is with no small amount of interest that I read Concurring Opinions provocative post I Trust NFL Officials More than I Do Federal Judges (h/t Quizlaw).  

Here's what Erik Lillquist has to say about the NFL official/federal judge comparative neutrality quotient:

My motivation for the title of the post is that I think NFL officials are actually better than judges on a number of these scores. For instance, NFL officials do not have the repeat-player problem. Furthermore, NFL officials are graded on all their calls, from every game, ensuring that the same calls are being made in all situations (and these days, they have to contend with the possibility of instant replay review on every call). And unlike federal judges and (to a certain extent) major league umpires, NFL officials are subject to the real possibility of termination for poor performance, something that cannot happen to Article III judges and rarely happens with major league umpires. As this LA Times article notes, between 2004 and 2007, there was actually more new Supreme Court justices than new (full-time, I assume) major league baseball umpires. In the NFL, on the other hand, turnover is more common. Because being a NFL official is so relentlessly competitive, the result is that (I think) NFL officials are more likely to get the call right than your typical judge (or umpire). 

To say neutrality is not precisely defined in mediation theory and practice is a vast understatement.    Consider these definitions of neutrality as reported in a "Knowledge Base Essay" on Neutrality at Beyond Intractability.

According to experienced mediator Robert Benjamin, neutral mediators:

  • will not intervene in the substance of the dispute;
  • are indifferent to clients' welfare;
  • have no relationship with the parties outside of the mediation;
  • will not attempt to alter perceived power balance differences;
  • are disinterested in the outcome; and
  • are unconcerned with the impact of the settlement on unrepresented parties. 

In contrast, Kevin Gibson, Leigh Thompson, and Max Bazerman (1996) identify three distinct conceptions of neutrality.

  • Neutrality as impartiality, which holds that the mediator should be free of bias and should set aside his or her opinions, feelings, and agendas.
  • Neutrality as equidistance, which focuses on the idea that mediators should try to give equal consideration to each side.
  • Neutrality as a practice in discourse. Mediators are supposed to shape problems in ways that give all speakers a chance to tell their story in a way that does not contribute to their own de-legitimization or marginalization.
  • The mediator gives each side a chance to talk about their positions and concerns, and then reframes these issues in a more neutral way so that parties are more likely to listen to and understand the other side's viewpoint. 
  • Then the mediator helps the parties to explore settlement options and to move toward a solution that all can agree on. Neutrality means that the mediator who facilitates this discussion should not have an interest in advancing the goals and positions of any party involved.

Similarly, Rachel Field (2000) points out that the term 'neutrality' encompasses "issues such as

  • a lack of interest in the outcome of the dispute,
  • a lack of bias towards one of the parties,
  • a lack of prior knowledge of the dispute and/or the parties,
  • the absence of the mediator making a judgment about the parties and their dispute, and
  • the idea that the mediator will be fair and even-handed." 

Thoughts from our readers?

It's Never Just About Money: The Wilson Sonsini Settlement

Big or small, litigation is never just about money.  Nor is settlement just about the strength of the parties legal positions or even the relevant facts.  Here, as reported by the Wall Street Journal Law Blog in Is It a Settlement? Wilson Pays Brocade to be Released From Backdating, its also about relationship and cooperation and respect.  Who knew?

So why would the S[pecial Litigation Committee] release [Wilson Sonsini] and Larry Sonsini? The SLC wrote that it weighed the opinion of a legal ethics expert as well as testimony and documents related to Sonsini and the firm’s roles at Brocade. It also listened to Sonsini and his firm’s “contentions that Brocade employees misled WSGR about stock-option grants” and that the firm had negotiated a good settlement with the SEC and helped avoid DOJ action against Brocade. The committee also considered the firm’s longstanding relationship with Brocade and the firm’s “willingness” to help the company resolve any “outstanding questions” about the backdating.

For the entire WSJ Law Blog post, click here.

Below -- Annie Lennox' Money Can't Buy It -- with a little Demi Moore Striptease for our gentlemen readers' mid-week enjoyment (with apologies to the puritanical and those who simply can't abide Demi Moore).

The IP Executive Summary of Blawg Review # 171

There's been some salacious commentary (such as WAC's Like a Vixen) about Blawg Review # 171.  I just want to say to anyone who missed the sexual revolution -- on either side of the generation gap -- we're sorry to have started it all.  We just never really left high school.

We've also heard some complaints that the most recent Blawg Review is just too darn long.  In honor of our sister blog and those attorneys who are still billing 2400 hours/year, we give you the IP Executive Summary of the Virgin Blawg Review #171 below. 

Isaac Newton.  The Straight Dope thinks the virginity of this octogenerian scientist and mathematician is less surprising that the fact that the math gene somehow keeps perpetuating itself.   We consecrate Newton's virginity to this week's best IP and IT posts.  William ("I am virginal") Patry is asking questions about the government's engagement in copyright infringement  but it is  Patry's final blog post that we celebrate as a true virginal moment.  Pause here.  

My late mother, aleha ha-shalom, told me repeatedly that I had a religious obligation to learn every day, and I have honored her memory by doing exactly that. Learning also involves changing how you think about things; it doesn't only mean reinforcing the existing views you already have. In this respect, Second Circuit Judge Pierre Leval once said that the best way to know you have a mind is to change it, and I have tried to live by that wisdom too. There are positions I have taken in the past I no longer hold, and some that I continue to hold. I have tried to be honest with myself: if you are not genuinely honest with yourself, you can't learn, and if you worry about what others think of you, you will be living their version of your life and not yours.

Other IP bloggers have, of course, reflected on Patry's Final Blog Words here and here

Back in the worldly word, Patently O -- which promiscuously shares itself with millions of readers every year -- turns its pen over to David McGowan who discusses why we should not interpret the recent Quanta decision too broadly Lou Michels suggests we be the masters of our own domains, using the the recent San Francisco IT fiasco as a cautionary tale -- don't let a single person have control of all the keys to your kingdom.

 

We've heard tell that reading your iPhone has replaced the cigarette for post-coital bliss, in which case you'll be glad to hear Brett Trout at BlawgIT suggest that you might soon be watching television from that device.  Protection, protection, protection.  In a software license, boilerplate integration and non-reliance terms might not insulate a firm from claims based upon its salesfolks "over"promises.  Elsewhere, at least one IP Blogger wonders whether blog content licensing might be dying for lack of buyers? (people pay for Blog content while I give it away for free?????)

The IP Dispute of the Week, of course, is Hasbro's suit against Rajat and Jayant Agarwalla for their Facebook hit Scrabulous.  Scrabble itself was invented during the Depression by Alfred Mosher Butts, an out-of-work architect.  How did he do it?  As the New York Times explained in its review of Steve Fastis book, Word Freak (Zo. Qi. Doh. Hoo. Qursh) Scrabble's inventor assumed that the game would work best if the game letters  "appear[ed] in the same frequency as in the language itself."  So he

counted letters in The New York Times, The New York Herald Tribune and The Saturday Evening Post to calculate letter frequencies for various word lengths. Playing the game with his wife, Nina, and experimenting as he went along, Butts carefully worked out the size of the playing grid (225 squares, or 15 by 15), the number of tiles (100), point values for the letters, the placement of double- and triple-score squares, the distribution of vowels and consonants, and so on.

In response to the Hasbro lawsuit Ron Coleman at Likelihood of Confusion asks "How Many Points is Infringement?" -- one of those rare legal questions that actually has an answer rather than 20 more questions.     

If Player 1 opens with "fringe" (double word) for 24 points; Player 2 follows by slapping an "i" on the triple word score followed by an "n" for "infringe" and 33 points; and, Player 1 responds with "ment" for 19 points, the combined score for "infringement" is 75 points. Our readers can do the math and moves on "trademark" and copyright." 

On the matter of greater moment --  Will the ax fall on Scrabulous -- Jonathan Zittrain at The Future of the Internet answers his own question in the affirmative based on the name alone, opining that by calling it "rainbows and buttercups” instead of “Scrabulous” there’d be little claim of brand confusion but noting the "residual claim that the Scrabulous game board infringes the copyright held in the Scrabble game board."  More on Scrabulous and its replacement with Word Scraper at the Video Game Law Blog here. (Mr. Thrifty's and my first game of Word Scraper here!) 

Has anyone recently said God bless the best IP aggregator in the universe -- the IP Think Tank's Global Week in Review?  This week IPTT points to the following posts on the Hasbro Scrabble debacle -- (Spicy IP), (Techdirt), (The Trademark Blog), (Out-Law), (Law360).  While we're talking IP aggregation, check out Patent Baristas' regular Friday IP Round-up.  All around aggregators include Anne Reed's (Deliberations) reading list and Kevin O'Keefe's LexMonitor.

Both Geoff Sharp and I picked up 8 impediments to settling patent cases on appeal (a desire for "justice" is not an impediment but a means to settlement).  While we're taking an ADR angle, Virtually Blind's post Second Life Lawsuit Avoided; Law is Cool's Love, Actionable; and,    Slashdot's recommend reading of the week (The Pragmatic CSO) are all well worth a look.  

Slashdot also reminds us that IP prevention is worth a pound of IP litigation with the post WB Took Pains to "Delay" Pirating of the Dark Knight as follows: 

"a new studio tactic [is] not to prevent piracy, but to delay it . . . Warner Bros. executives said [they] prevent[ed] camcorded copies of the reported $180-million [Dark Knight] film from reaching Internet file-sharing sites for about 38 hours. Although that doesn't sound like much progress, it was enough time to keep bootleg DVDs off the streets as the film racked up a record-breaking $158.4 million on opening weekend. .  . The success of an anti-piracy campaign is measured in the number of hours it buys before the digital dam breaks.'"

If you're sufficiently virginal to believe in magic, check out the Law and Magic Law Blog's announcement of the dismissal of a defamation lawsuit against Magic Mag as protected opinion while Ernie the Attorney has at least one more make to make your iPhone magic here.

Meanwhile, the Legal Talk Network gathers together bloggers and co-hosts, J. Craig Williams and Bob Ambrogi to welcome Attorney Kevin A. Thompson from the firm Davis McGrath LLC, and Lauren Gelman, Executive Director of Stanford Law School's Center for Internet and Society to discuss Viacom's suit against Google's YouTube for the violation of its copyrights in a $1 billion lawsuit.

Because I used to type patent applications for Uniroyal (IBM Selectric - 5 carbon copies) I get a sweet whiff of nostalgia from Wiki Patents -- like this one -- Flexible Row Redundancy System 7404113 -- a row redundancy system is provided for replacing faulty wordlines of a memory array having a plurality of banks. The row redundancy system includes a remote fuse bay storing at least one faulty address corresponding to a faulty wordline of the memory array . . . .  Another available data base for the engineering-attorney crowd is the subject of  Securing Innovations post IBM Technical Disclosures' Prior Art Data BaseConcurring Opinions covers IP in the News this weekPeter Zura's 271 Patent Blog considers a patent that was a "Colossal Waste of Time" and  IP Kat curls up with Small and Sole.  

Next week, the Blawg Review will be hosted by the Ohio Employer's Law Blog which we expect will be far more respectful of BR's readers' political, religious and sexual sensitivities than this one was.  Thanks for letting us play.  And a very, very, very good night!

Slow Down -- Trial Lawyer Practicing Tranquility Nearby

ImageChef.com - Custom comment codes for MySpace, Hi5, Friendster and more

Check out Underdog's Blog post Practicing non-anger if you're feeling stressed and cranky.   Because there's a riot of unruly pre-school children residing inside of me, I too center myself as often as possible by remembering that everything is internconnected.  Here's what DUI attorney Jon Katz does to keep himself from boiling over.  

One approach I try to use in staying consistently calm and not angry is in focusing on how everyone ultimately is interconnected. Those who reach such a view from a deeply-held religious perspective -- which I do not, still remaining an agnostic who is into Judaism and Buddhism nonetheless -- might have an easier time sticking to the view than I do.

In any event, the more we see that we are interconnected, the less we will be tempted to cause disharmony to others and the more we will want to help everyone rise as we rise, and not to try to pull them into a ditch even if we find ourselves in one.

Read the remainder of the post here.

I was just telling Mr. Thrifty over the dinner dishes that my life as a litigator got far far better when one of my biggest and most enduring pieces of litigation was assigned to Judge Carolyn Kuhl over at the Complex Court here in Los Angeles.  She set such an even-tempered example that opposing counsel and I aspired to live up to it.  We wanted to please her.  Everything got better after that.  

That led me to think about the way Judges' ill tempers effects their dockets.  The Judge bats the attorneys around the courtroom like cat toys and they begin to behave like caged animals on an electrified grid.  The attorneys behave badly and that irritates the Judge who demeans and belittles them.  The attorneys then demean and belittle each other and everyone is trapped in the vicious cycle. 

Maybe if Judges realized that they have this effect on attorneys, they'd adjust their own attitudes and see the attorney wrangling before them chill out a little.

Thanks for the wise words, Jon.

Negotiating Bankruptcy

My favorite local bankruptcy mediators

Ben Siegel of Buchalter (left)

former bankruptcy judge Herb Katz (right)

Bankruptcy mediation catches on nationwide

A decade ago, there were only a handful of mediation programs in bankruptcy courts.

Long associated with family law disputes, mediation programs were slow to catch on in complex business litigation, including bankruptcy cases.

But that's changing.

More than two-thirds of the 90 bankruptcy courts have mediation available, according to Robert Niemic, senior attorney at the Federal Judicial Center. Even more offer some other form of alternative dispute resolution, such as judicial settlement conferences.

In the U.S. Bankruptcy Court for the Central District of California, more than 3,800 cases have been referred to mediation since 1995. About 64 percent of those cases were resolved through settlements.

To keep costs down, the first day of mediation is free. Parties choose from a list of 200 attorneys and non-attorneys, such as accountants and financial experts, who volunteer as mediators.

Chief Bankruptcy Court Judge Barry Russell, who launched the mediation program in 1995, said that most cases settle in a day, producing major cost savings for both the court and the parties involved.

For full article, click here.

Change Your Definition of Winning?

Change your definition of “winning” to include the business perspective. “Winning for the business” may not mean victory in a trial but preserving management time and protecting the business’s reputation and brand.  From Early Case Assessment from Seagate Services.

Seagate is selling an e-discovery product (reason number one for leaving commercial litigation now -- e-discovery).  But the quote above nails my own attitude toward resolving complex commercial disputes.

Negotiating Revenge

Who negotiates revenge? 

Lawyers, of course. 

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

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

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

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

 

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

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

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

Can You Say What You're Writing to Opposing Counsel Face-to-Face? Would you Want to?

Thanks to David R. Donoghue at the Chicago IP Litigation Blog for picking up my recent Daily Journal article on the Dangers of Email in Litigation and running with it in A Call for Face-to-Face Communication in Litigation.  As David comments:

It is no surprise that increased aggression in a naturally aggressive proceeding has negative consequences. For example, parties that often meet for the first time at a mediation or settlement conference arrive not trusting or respecting each other, making resolution much more difficult. Pynchon suggested a somewhat radical solution to the email problem -- live meetings with opposing counsel. She suggested that you routinely have live meetings with opposing counsel throughout the course of a litigation, including perhaps even doing some meetings over a meal. The face-to-face contact would generate the trust and respect needed to resolve issues that always arise during a litigation. I have always advocated live meetings with co-counsel in a multi-party litigation. Email communications (or even conference calls) tend to get out of hand and the parties tend not to pay enough attention to others' positions. I am going to expand that practice to opposing counsel.

One other thought, that I do not know if Pynchon will agree with. Those who still avoid email and continue using letters as a main communication means are not off the hook. I started practicing when letters, not emails, were how you communicated with opposing counsel. Those letters tended to be far more aggressive than the attorneys were in a live conversation. And I suspect people tended to read extra aggression into the letters they received. I do not know if aggression is stronger in emails than letters, but the same problem exists whether you hit send, hit print or use a pen to write to opposing counsel.

Looking for help with your communication skills?  Though directed at teachers, here is a list of Six Ways to Improve Non-Verbal Communication Skills that will assist lawyers and their clients in resolving conflict face-to-face. 

 

And then the juror applauded . . . .

Thanks to Anne Reed at Deliberations for following California case law on juror misconduct and bias.  I won't steal her thunder -- click here for What is the Sound of One Juror Clapping?

I will, however, provide the appellate court's comment on human fallability -- a recognition we all need to carry into any settlement conference or mediation with us.  Vast conspiracies are the rare one-off.  As Al Gore once said -- we think we can evacuate the planet but not New Orleans?  It's our human capacity for error coupled with our human tendency to search the field for someone to blame that accounts for most unresolved conflict.  Here's the local Met News article on the opinion and the appellate opinion itself (from our own Second District here in Los Angeles): 

"The jury system is fundamentally human, which is both a strength and a weakness. . . . Jurors are not automatons. They are imbued with human frailities as well as virtues. If the system is to function at all, we must tolerate a certain amount of imperfection short of actual bias. To demand theoretical perfection from every juror during the course of a trial is unrealistic."

Missouri Employers Can't Lock Employees in Arbitration Chains

Thanks to ContractsProf Blog for the following: 

In late June, the Missouri Court of Appeals addressed the legal enforceability of a program adopted by Hallmark requiring employees to arbitrate employment disputes. The court held that Hallmark's ADR program did not constitute a contract and that there was no consideration to bind the employees to the promise to arbitrate claims.

The employer's arguments in favor of enforcement in this case were very much like those argued by O'Melveny & Myers here in California with the same result in the Ninth Circuit  --  the employee was not bound by an agreement by continuing to work after all employees were notified that their continued work for the company would constitute consent to being bound by the arbitration provision.

Check out the ContractsProf Blog analysis here.  We particularly like this comment by the Court:

The idea that an employer can create any legal contract it dares to create (based on a condition of at-will employment) cannot be sustained upon reflection. Imagine, for instance, an employer publishing a memo to employees stating that:

Anyone who continues to work for us through next Monday will be conclusively deemed to have agreed, as a condition of remaining in our employ through that date, that you will contribute twenty dollars per month over the next ten years to the National Association of Manufacturers (NAM), whether or not you remain employed here during that time. If you do not agree, you will need to resign your employment immediately, because by continuing to work, you are agreeing.

Yes, I did see the Beatles play the Hollywood Bowl in 1964, with an emphasis on SEE -- couldn't hear a thing!  Just a little nostalgia for my boomer readers.
 

Enforcing Mediated Settlement Agreements Post-Simmons v. Ghaderi

Update:  there's a good discussion of the holding and rationale at the Complex Litigator -- Simmons v. Ghaderi: mediation privilege trumps allegation of oral settlement agreement here.

I'm re-posting this "how to" now that Simmons v. Ghaderi has been decided.  You no longer have even a fighting chance of enforcing a mediated settlement agreement that fails to comply with the Code.  So here's the procedure, as recommended by my and Deborah Rothman's article in the Daily Journal in November 2006 -- Take Steps to Ensure that Mediated Settlement Agreements Can Be Enforced. 

Assuming your client insists on orally memorializing the settlement reached in mediation, you must comply strictly with Evidence Code Sections 1118 and 1124. An oral agreement reached during a mediation can be proven and enforced only if (1) its terms are recited to a court reporter or recorded by a sound device in the presence of all parties and the mediator, (2) the parties expressly agree to those terms on the record, (3) the recording is reduced to writing and signed within 72 hours of its recordation and (4) all parties to the agreement expressly agree in a writing, in the sound recording or in the reported record that the signed written transcript may be disclosed.

Th[e] procedure for enforcing an oral settlement is so technical and cumbersome . . . (counsel and mediators rarely have court reporters standing by or tape recorders in their breast pockets), that we recommend against it.

We instead suggest that the parties document all settlements in writing, even if the writing contains only skeletal deal terms and even if someone has to begin drafting it at 2 a.m. The agreement should provide that the parties intend it to be enforceable or binding and that all parties expressly agree in writing to its disclosure. . . . If an action is pending between the parties, the memorandum of understanding should be made enforceable under Code of Civil Procedure Section 664.6.

See also the Supreme Court's decision in Fair v. Bhaktiari, interpreting the phrase "words to that effect" in section 1123(b) as requiring a written mediated settlement agreement to "directly express the parties’ agreement to be bound by the document they sign."

Almost right will not do.  You must strictly comply with these provisions or your mediated settlement agreement will not be enforceable.

Simmons v. Ghaderi: When the Legislature Said Mediation Was Confidential, It Meant What it Said

Today, the Supreme Court handed down a unanimous ruling in the long-awaited Simmons v. Ghaderi case about which I've commented on many occasions -- both on the importance of the confidentiality laws the Supreme Court held were air-tight today and on the process itself as a common example of a failed mediation proceeding.

Highlights from the opinion:

  • "The Legislature chose to promote mediation by ensuring confidentiality rather than adopt a scheme to ensure good behavior in the mediation and litigation process."
  • [T]he legislative history of the mediation confidentiality statutes as a whole reflects a desire that section 1115 et seq. be strictly followed in the interest of efficiency. By laying down clear rules, the Legislature intended to reduce litigation over the admissibility and disclosure of evidence regarding settlements and communications that occur during mediation. (citation omitted).  Allowing courts to craft judicial exceptions to the statutory rules would run counter to that intent."
  • In Foxgate,  we reasoned we "were bound to respect the Legislature’s policy choice to protect mediation confidentiality rather than create a procedure that encouraged good faith participation in mediation. Thus, we held that evidence of a party’s bad faith during the mediation may not be admitted or considered." 

Here's the appellate decision that was reversed on nearly every ground raised in Justice Aldrich's compellingly well-reasoned dissent.

Here are our previous commentaries:

Take Steps to Ensure Mediation Agreements Can Be Enforced (co-authored by local arbitrator and mediator Deborah Rothman, first published in the Daily Journal)

You Say Waiver, I Say Estoppel, Let's Call the Whole Thing Wrong -- Another Look at Simmons v. Ghaderi  

If I Settle, It Will Mean that I Killed Her -- Anatomy of a Failed Medical Malpractice Mediation, at the National Institute for Advanced Conflict Resolution

Here's a veiw that opposes my own -- Kirk Pasich Replies:  the Mediation Privilege and Bad Faith Carrier Conduct.

Summer Associate Advisory: The Staff Knows More Than You Do

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

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

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

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

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

Be nice.  Be teachable.  Learn.  Thrive.

Even if They're Just Hoops to Jump Through ADR Clauses are Worth Getting Right

Bob Hunt over at Realty Times has a nice consumer-friendly article entitled Californa Court Holds That Mediation Provision "Means What It Says".  /*

As Hunt writes, 

The standard residential purchase contract in California is produced by the California Association of Realtors® (CAR). It contains two sections that are easy to overlook or to take as “boilerplate”, but that can be very important if things go awry between the parties. One of those sections deals with attorney fees, providing that, in the event of any proceeding between buyer and seller, the prevailing party shall be entitled to attorney fees and costs from the non-prevailing party. The attorney fee section contains an exception, however, and that exception is spelled out in the portion of the contract referring to mediation. There it is said that, if either party initiates an action “without first attempting to resolve the matter through mediation, or refuses to mediate after a request has been made, then that party shall not be entitled to recover attorney fees… .” [my emphasis] /*

When Mr. Thrifty and I purchased our house in '02, we were presented with one of these form contracts.  I'm a lazy form contract signator myself.  Negotiation training or not, I generally assume these contracts are "take it or leave it" and I sign them accordingly.  /**

Not Mr. Thrifty.

"What's the procedure?"  I recall him pressing our real estate agent.    "When is the demand for mediation supposed to be made and how are the parties supposed to conduct it and what happens if the parties can't reach agreement on the mediator to conduct the process?"

He was having none of it. 

"I'm crossing it out," he said, as blue ink flowed over the mediation provision and our agent let out of small gasp of dismay.

By that time, everyone was so "bought in" to the sale, that Mr. Thrifty's effort to strike  the form language prevailed.  No mediation necessary in this household!

Beware of Form Contract Language

As Bob Hunt explains, the Lange Court gave the back of its hand to the contention that it was "too difficult" to make the required demand for mediation.  

“If the [sellers] could be found and served with a lawsuit by mail, they could have been sent a mediation demand by mail[,]” [held the Court]  All that the plaintiff had to do was attempt to mediate before he filed suit; and he didn't. Quoting a related case, the court noted that the mediation provision “means what it says and will be enforced.” 

Though it's not surprising to find bare bones ADR provisions in industry form contracts -- bones so bear that their meaning must be litigated -- defeating the purpose of the summary proceedings provided for -- it is surprising to find attorneys continuing to paste form contract language into their client's negotiated agreements.  This is particularly troublesome when what's at stake -- the attorneys' fees -- makes the difference between bringing litigation or not or settling litigation or not.

If it's worth putting a clause into your contract, it's worth spending the time to imagine what might happen if circumstances triggering that clause arise.  If you're practicing in a firm with both transactional and litigation attorneys, I highly recommend that the wordsmiths run the "standard" ADR, attorney fee, choice of law, and venue provisions by the litigators who have undoubtedly already tested these provisions in the fire of conflict.  You won't be sorry you did.       

_______________________

*/  The case -- Lange v. Schilling -- was originally ordered not not to be published.  Had that Order stood, the case would not create precedent under California law.  As the reader of the linked opinion can see, however, it was subsequently ordered published and can be cited as authority. 

**/  The form contract language at issue reads as follows:

Buyer and Seller agree to mediate any dispute or claim arising between them out of this Agreement, or any resulting transaction, before resorting to arbitration or court action. . . . If, for any dispute or claim to which this paragraph applies, any party commences an action without first attempting to resolve the matter through mediation, or refuses to mediate after a request has been made, then that party shall not be entitled to recover attorney fees, even if they would otherwise be available to that party in any such action.

Are Discovery and Pre-Trial Victories the Only Big Game in the Litigation Hunt?

The quote below (though unduly harsh)  points to a problem we've had in the AmLaw 200 since most cases became too big to try. 

I'm coming back to this, promise. 

Now I'm just linking to John Wade's (as always brilliant) article -- Judicial Decision Making in Australia -- that quotes it.

“Because litigators rarely win or lose cases, they derive job satisfaction by recasting minor discovery disputes as titanic struggles. Younger lawyers, convinced that their future careers may hinge on how tough they seem while conducting discovery, may conclude that it is more important to look and sound ferocious than to act co-operatively, even if all that huffing and puffing does not help (and sometimes harms) their cases. While unpleasant at first, nastiness, like chewing tobacco, becomes a habit… Without guidance as to appropriate conduct from their elders, either at the firm or at the bench, it is easy for young lawyers not only to stay mired in contumacious, morally immature conduct, but to actually enjoy it.”  D Yablon, “Stupid Lawyer Tricks: An Essay on Discovery Abuse” (1996) 96 Columbia Law Rev 1618.

 

Mediator Geoff Sharp Up Close and Personal (with Vickie Pynchon tagging along)

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 2008 The Daily Journal Corporation.
All rights reserved.
-------------------------------------------

June 23, 2008

POPULAR ADR BLOGGER GETS SOME FACE TIME IN LOS ANGELES
By Greg Katz
Daily Journal Staff Writer 

SANTA MONICA - Nearly everybody in the Southern California mediation community knows the face of mediator Geoff Sharp but not too many have met him.

That's because the New Zealand-based mediator's scruffy mug sits atop his popular ADR blog, Mediator Blah ... Blah ..., at mediatorblahblah.blogspot.com.

Sitting down for coffee at a beachfront hotel with Los Angeles mediator and fellow ADR blogger Victoria Pynchon, Sharp said his blog is what got him his ticket for this trip to Southern California.

He was in town at the request of the Pepperdine University School of Law, giving a lecture at the Straus Institute for Dispute Resolution's annual summer dispute resolution conference last week.

"For someone like me to get to Pepperdine - why would you ask a farm boy like me?" Sharp said, laughing. "The blog's the only way that I talk to these people."

Sharp's witty and concise blog helps chart the course of the online mediation conversation. There are about 150 ADR blogs worldwide, according to one blogger, and many of them link back to Sharp's.

He blogs a potpourri of ADR links, anecdotes and opinions on a wide range of mediation topics, most of them relevant to both local and international audiences.

In one recent post, he chided some "lazy" neutrals who have given parties the impression that mediation is "a process where you show up at a downtown building but never speak to, or even meet, the room full of people with whom you have your problem and whose cooperation you require to solve it."

In another post, Sharp described a mediation in which a lawyer asked him to calculate the hypotenuse of a right triangle.

Sharp said he initially was worried that he couldn't do it.

"But I am pleased to report dear reader, that I was equal to the task," he wrote.

Sharp also broaches sensitive subjects, writing at length about how difficult it is for mediators to build their practices.

But whether the difficulties of mediation are financial or mathematical, he wouldn't think about going back to litigating.

In the late 1990s, Sharp left his litigation practice at Bell Gully, a large New Zealand law firm, to start mediating.

Sharp is now a member of the advanced mediation panels for both of New Zealand's widely recognized mediation training organizations, LEADR and the Arbitration and Mediation Institute of New Zealand.

He also is consulting with the International Mediation Institute on its proposed mediator qualifications standards. Mediator standards are a frequent subject of his blog posts, as well.

He said he relishes the freedom he gained from leaving a big firm, though mediating often proves lonely.

"If you ask why [mediators] blog, it's because we're so solitary," Sharp said.

Becoming an ADR blogger, he said, was like making friends "on the same block in a new town," even though most other bloggers are in other countries.

Sharp said that blogging about mediations, with their strict confidentiality rules, can be complicated.

At first, he would post about specific events in mediations, such as one lawyer who wore his Bluetooth headset throughout a mediation, even when he "went to the john," Sharp said.

Was it blinking?" Pynchon chimed in.

But now, with a wider audience, Sharp focuses on the more philosophical and legal issues in mediation. When he wants to tell a particular story, he embellishes the events that happened in mediation so no one feels their confidential conduct is being publicized.

"I haven't let the facts get in the way of a good story," says the disclaimer on his blog.

Pynchon, who writes the popular ADR blog Settle It Now, at negotiationlawblog.com, said that even when bloggers are careful, mediator blogs can disturb parties. One party recently came to Pynchon asking whether a post referred to that party's case.

It didn't.

Another post, about the California Supreme Court mediation confidentiality case, Simmons v. Ghaderi, provoked the defendant to call Pynchon personally.

"It's like having a cartoon character come to life," Pynchon said of being contacted by someone she only knew through reading briefs and opinions. Simmons v. Ghaderi, 143 Cal.App.4th 410 49 Cal.Rptr.3d 342 (2006).

But despite the occasional hassle, blogging has become a way of life for the two mediators.
"For me, blogging and dispute resolution rest on the same principles: collaboration and reciprocity," Pynchon said.

Sharp nodded his agreement.

"I don't do this profit," he said with a smile. "I do it for ego."

The Comforts of Litigation

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

Just saying.

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

Why?

  • I'm right

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

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

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

  • The chaos of community is orderly and predictable 

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

  • I do not have to suffer loss

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

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

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

  • I am innocent again

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

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

Insurers with Potential Coverage Must Personally Attend Mediation Sessions

Head's up insurance carriers and their counsel!

Noting the benefits of appellate mediation and the desirability of participants attending in person, a California appellate court warned insurers in Campagnone v. Enjoyable Pools & Spas that even the potential of coverage requires a representative with full settlement authority to attend court-ordered appellate mediations in person, unless excused in writing by the mediator. Further, the court warned parties and counsel that they may also face sanctions if they fail to notify insurers with potential coverage about appellate mediations. The court noted that California’s strict mediation confidentiality provisions prevent mediators from disclosing whether anyone fails to attend, but that an aggrieved party may do so in seeking sanctions from the court. The court withheld sanctions in this case only because no previous opinion had spelled out these requirements, even though the insurer was only liable for amounts in excess of $3 million and the judgment in the trial court was $2.4 million.

Campagnone v. Enjoyable Pools & Spas, No. C055050 (Cal. App.3d Dist., May 30, 2008)


Thanks to Keith Seat Mediation Newsletter for the case.

And thanks to arbitrator and mediator extraordinaire Deborah Rothman for passing this along to me.  (speaking of gender politics, Deborah graduated with the first class of women to be admitted to Yale University)

Dispute Resolution by Old White Men: Gender Prejudice Sinks Abriration Award

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

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

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

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

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

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

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

  • it wasn't until the 1970's, when I was in college and already planning a career teaching English (after all, nursing required math-skills) that the idea of a career in the law for women as anything other than a secretary began to seem possible.
  • when I was in high school
  • when I  was practicing law (these all from the early '80s)
    • a partner for whom I worked told me that women weren't permitted at the local "men's only" club because "we don't want our wives there."
    • a Judge required me to identify myself as Mrs. or Miss and when I said I didn't think it necessary to identify myself by my marital status, asked "what are you some kind of [women's] libber?" (yes, I lost the motion)
    • I was advised by the few women attorneys senior to me not to get pregnant until after I made partner
    • secretaries were allowed to refuse to be assigned to a woman attorney
    • the first woman to make partner at my law firm was quite openly referred to as "the first muff partner" by her colleagues 
    • on the other hand, when a client said (of my assignment to its case) that the company did not want to be represented by a "girl," my partner told the client "then you don't want this firm representing you because she's the best associate I have"

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

$29 Million P.I. Arbitration Award: the Mystery Here: Why Did the Plaintiffs Want to Avoid a Jury Trial?

(RIGHT:  ARBITRATOR PRATT)

See this article from the Fresno Bee -- $29 million awarded in fatal Kings Co. apartment fire --Couple and 3 children died as relatives watched the inferno (excerpts below). 

In one of the largest wrongful death judgments in Kings County history, relatives of a young couple and three children who died in a devastating apartment fire won $29 million Tuesday.

Derik Faubion and his fiancée, Michell Mattison, both 19, perished in the fire at the Northgate Apartments along with their 2-month-old daughter, Hayden Allison Faubion. Two siblings of Mattison -- Lexus May Bisnar, 4, and her brother Ariel Nel Bisnar, 2 -- also died.

Retired Judge Daniel Pratt, acting as an arbitrator in the case, ruled Lemoore Real Estate and Property Management was negligent in maintenance of the 23-unit apartment complex at 226 E. Hazelwood Drive.

A key piece of evidence was a letter from the property management firm to tenants that stated "smoke detectors are not in place in most units." The letter was written six months before the fatal fire, court records show. . . .

Both sides agreed to let Kings County Superior Court Judge Thomas DeSantos assign the case to an arbitrator to avoid a jury trial. DeSantos chose Pratt, a retired judge in Southern California.

Pratt ruled in favor of the plaintiffs after hearing one day of testimony from Lemoore residents, firefighters and investigators. Pratt also viewed photographs of the plaintiffs who cried as they stood helpless outside the burning units. . . . 

"This is one of the saddest cases I have ever seen," said Marderosian, who has been practicing law since 1977. "It not only shocked the city, but wiped out the next generation of two families."

Hat Tip to Lawyers USA.

ADR Column The Human Factor Takes Flight at The Complete Lawyer

In the last three issues of The Complete Lawyer (see the LACBA issue here!) Stephanie West Allen, Diane Levin, Gini Nelson and I have been tuning up our conflict resolution violins.  In this issue's The Human Factor column, the four of us once again share our TCL space to talk (ever so briefly) about the ways in which conflict resolution techniques can help lawyers achieve that elusive goal of a blanced work-life.

Gini Nelson calls conflict avoidance (one of my favorite techniques in "real life") "deferred relationship maintenance,"  which nails this way of handling our personal lives on the head.  Read all about it here.

Diane Levin (here) addresses the problems none of us like to talk about -- dysfunctional workplaces, noting that

Our ability to connect with others, gain their trust, influence and motivate them is the social lubricant that makes businesses thrive. In fact, Dan Hull, an attorney I admire for his focus on client service, once wrote, "Treat each co-worker like he or she is your best client." He's right—nurture relationships for a healthier law firm.

Stephanie West Allen (here) our resident brain science afficianado (see Brains on Purpose) notes that

Our brain likes to be fuel efficient; by discerning patterns, it saves energy. It studies the situations at hand, whether they are protracted mediations, playful exchanges with a partner, or steely verbal duels with opposing counsel, to see if they resemble a situation it has seen in the past. We then base our judgments on that unconscious notion of past—but we are not always fully aware of the present. Yesterday's solutions do not always fit today’s problems.

If you read this blog on a regular basis, my contribution to this issue -- Let's Start Talking About What We Genuinely Value -- will sound pretty darn familiar; here's 'the problem" at its source -- click here for at least one solution.

According to the Global Rich List, AmLaw 100 associates are among the top .01% richest people in the world. Mid-level AmLaw partners are in the top .001% and beyond that the GRL stops counting. Though of course we do not.

If a comparison of our salaries with these galactic levels of compensation make us unhappy, it is unlikely that the following knowledge will make us happy—three billion people live on less than $2 and 1.3 billion on less than $1 per day. Why does this knowledge leave us untouched? Because we don’t compare ourselves to the rest of the world. We compare ourselves to the guy sitting in the office next to us.

So how did we—some of the smartest, richest, most creative, energetic and best educated people in the world—get so unhappy about money? I personally blame it on the American Lawyer even though, like drug dealers and the paparazzi, legal journalists wouldn’t be concentrating on profits per partner unless we were all so avid to know them.

Beginning with the next issue of The Complete Lawyer we'll be taking turns writing the column.  If you like what any of us have to say about ADR's value in your work and life, stay tuned!  There will be much, much more!

The rest of the issue is also well worth reading.  The focus is on EXIT STRATEGIES -- a topic not reserved for those contemplating retirement (though our interests are addressed here as well).  This is one profession where people start talking about exit stragies around the second week of the first year of law school.  So check it out!

The Star Spangled Blawg Review Asks About Justice

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

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

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

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

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

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

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

Truth, Justice and the American Way from the Long View

Patriotism:  Not Just for Lapels at Abundance of Absurdities

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

Sunday Times Report: Truth Commissions and Negotiating with the Enemy

(image from Art Throb featuring the work of South African artist William Kentridge)

Just in case you're out on the beach, in the mountains, or spending a lazy July 4th week-end around your best friends' swimming pool, here are the ADR-worthy articles you've likely missed in today's Sunday New York Times.

From the Op-Ed page, Nicholas Kristof recommends an American "Truth Commission" for our treatment of "detainees."  Excerpt and link below:

When a distinguished American military commander accuses the United States of committing war crimes in its handling of detainees, you know that we need a new way forward. 

“There is no longer any doubt as to whether the current administration has committed war crimes,” Antonio Taguba, the retired major general who investigated abuses in Iraq, declares in a powerful new report on American torture from Physicians for Human Rights. “The only question that remains to be answered is whether those who ordered the use of torture will be held to account.”

The first step of accountability isn’t prosecutions. Rather, we need a national Truth Commission to lead a process of soul searching and national cleansing.

That was what South Africa did after apartheid, with its Truth and Reconciliation Commission, and it is what the United States did with the Kerner Commission on race and the 1980s commission that examined the internment of Japanese-Americans during World War II.

Today, we need a similar Truth Commission, with subpoena power, to investigate the abuses in the aftermath of 9/11.

We already know that the United States government has kept Nelson Mandela on a terrorism watch list and that the U.S. military taught interrogation techniques borrowed verbatim from records of Chinese methods used to break American prisoners in the Korean War — even though we knew that these torture techniques produced false confessions.

It’s a national disgrace that more than 100 inmates have died in American custody in Afghanistan, Iraq and Guantánamo. After two Afghan inmates were beaten to death by American soldiers, the American military investigator found that one of the men’s legs had been “pulpified.”

Read the rest of the column here, remembering that we're only as sick as our secrets.  For more on Truth Commissions, click here, here and here.

"We don't negotiate with terrorists or enemy states."  Really?  In Speaking with the Enemy, an NYT multi-media page gives a sampling of how modern American Presidents have made contact with our adversaries.

Here's the good news from the accompanying article, For Some Foes the Chat.  For Some the Cold Shoulder.

[T]he reality is that more times than not, American presidents sweep into office proclaiming black-and-white absolutes about their foes, and end up leaving office having used everything from secret talks and back-channel negotiations to full-fledged summit meetings.

Read the full article here.

While others surf and bar-b-que, I'm using the week-end to post the Summer 2008 issue of the r.kv.r.y. quarterly literary journal.  Here's the proof of the new cover!  A labor of love (and proof of my husband's enduring patience -- thanks honey! for putting up with my 10,000 projects). 

Don't Send that Email; Pass Me the Pliers!

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.  

 There are no one-man jets cruising the skies; no robots running my errands or cooking my dinner; no tele-transportation; and, on the political scene (it's not yet 9/11) no Big Brother

My personal 2001 "future" is mostly about my instantaneous access to information and "real time" communication via the "killer app" -- email -- telegraphic, spontaneous, unnuanced, and about to get me in a great deal of trouble.  (See Vanity Fair's must-read oral history of the internet here.)  

There's an associate back in Los Angeles, you see, the quality of whose work and the strength of whose dedication to the case at hand is in alarming decline.  More troubling, his work is deteriorating at the same time I'm taking old fashioned passenger jets from province to province to take the testimony of as many witnesses still living who know how 500+ toxic waste sites got that way in the first place.    

Did I say it's 3 a.m.?  The associate I'm thinking about failed to get me the outline I need for tomorrow's deposition on time -- or at all.  The "hard copies" that were supposed to be waiting for me when I arrived at the hotel have gone missing.  I'm tired.  I'm hungry.  I'm lonely.  And I'm angry. 

Worst of all, I'm composing an email to my  associate about my considerable disappointment in his recent performance.  There is a moment, a split second, in which my finger hovers over the "send" button while a rational voice in my head says "no."  Then I push "send."

Email Makes Settlement More Difficult  

More and more often when I'm meeting counsel on the morning of a mediation, they're also meeting one another for the first time.  In fact, they often have not even previously spoken to one another unless they've met in Court ("good morning, counsel") or in depositions (eyes averted; objections made).  Increasingly, by far the vast percentage of their communications have taken place via email.  

And that's a problem. 

Conflict Escalation

There's no question that litigation escalates whatever conflict existed when our client first walks in our door.  We don't, after all, make requests.  We issue demands.  We don't seek concessions.  We insist upon them.  We don't make inquiries.  We require responses.  And we're not such great listeners.  Rather, we impatiently tap our feet in Court, waiting for counsel to finish his argument (which we've heard dozens of times before) so we can press our case.

Are these bad things?  Not necessarily.  So long as we understand what we're doing and the likely results our conduct will have, escalation is not necessarily worse than maintaining a steady state or even deescalating conflict.  

The problem for most of us is that we don't know what we're doing and we don't understand the breadth and depth of the likely repercussions.  

In Conflict Escalation: Dispute Exacerbating Elements of E-Mail Communication, author Raymond A. Friedman of the Owen Graduate School of Management at Vanderbilt University quotes conflict specialists Rubin, Pruitt and Kim on the difficulties caused by escalation tactics and strategy.  According to Rubin, et al., escalation is 

"an increase in the intensity of a conflict as a whole.”  Escalation is important . . . because when conflict escalates it “is intensified in ways that are sometimes exceedingly difficult to undo.”  One reason why escalated conflicts are so hard to undo is that when more aggressive tactics are used by one side they are often mirrored by the other side, producing a vicious cycle.

Email, Friedman argues, unnecessarily, and often drastically, escalates conflict in ways none of us fully appreciate.  Unlike conversation -- in person or by telephone -- we are not

physically present with others, can’t see their faces or hear their voices, and can’t give or get immediate responses. The lack of contextual clues . . . impose high “understanding costs” on participants in e-mail interactions, making it harder to successfully ground the interaction. . . . /*  [T]the inability to carefully time actions and reactions . . . makes communication less precise.  

E-mail Not Only Lacks Social Clues, it is "Profoundly A-Social." 

Sitting in my Toronto hotel room at 3 a.m., reviewing online documents for tomorrow's deposition and now "penning" an email to my errant associate, I am, argues Friedman, not simply making communication more difficult, I have become "profoundly asocial" as my associate will also likely be when he reviews my email the following day.  "E-mails," writes Friedman,

are typically received and written while the writer is in isolation, staring at a computer screen – perhaps for hours at a time, so that awareness of the humanness of the counterpart may be diminished.

As evidence, Friedman cites research in which subjects played the "prisoner's dilemma" game against a computer.  Not only did the gamers act asocially in this context, "many continued to act asocially even when told that they were now playing with people (through the computer)."

E-mail, Friedman concludes, "often occurs in a context devoid of awareness of human sensibilities."

The Precise Difficulties Caused by E-Mail Communications?

Use of aggressive tactics. If e-mail communication encourages the use of more aggressive tactics during a dispute, or makes a counterpart’s tactics appear more aggressive, then escalation will be triggered.

Changes in view of other. Escalation is more likely if e-mail causes negative changes in psychological processes (e.g., perceptions and attitudes) towards the other, such as (1) seeing the other as unfair, (2) lessening empathy toward them, (3) increasing deindividuation and anonymity, or (4) or seeing the other as immoral.

Weakened interpersonal bonds. If e-mail weakens social bonds with the other, then escalation is more likely (e.g., due to reduced inhibitions for aggression).

Problems are difficult to resolve. If the communication limitations of e-mail (e.g., asynchrony deficits) make problems more difficult to solve, conflict may be escalated as frustrated disputants move from mild to more aggressive strategies to achieve their goals.

As a result, says Friedman, there are "higher rates of escalation when disputes are managed via e-mail than via face-to-face communication or other relatively rich media . . . such as telephone conversations." /**

Back in Los Angeles the Following Day

You knew this story was not going to have a happy ending.  What a cranky, tired, stressed partner types into her computer at 3 a.m. and what a fully awake associate reads with his morning coffee the following day are, as Friedman stresses, two quite different things.  And though I've rarely had a face-to-face disagreement with a colleague that cannot be mended by further communication, apologies, explanations and the like, this particular communication caused a rift that I was unable to heal.

This experience from several years ago, coupled with my recent mediation experiences, makes me want to advise, exhort, plead, beseech, entreat and pray that you commence every litigation with a telephone call rather than a "demand" letter or email.  And that you continue to communicate with opposing counsel by telephone or, even more radically, in person over a meal, throughout the litigation to make sure channels of communication are as open and clear as possible.

The difficulties saved will not only benefit your personal life (reduce stress, increase fellow-feeling and the like) but will benefit your client as well -- in case efficiencies and better settlements all around.     

 

______________________

*/  "Grounding" is the process 

by which two parties in an interaction achieve a shared sense of understanding about a communication and a shared sense of participation in the conversation. Grounding is important because “speech is evanescent...so Alan must try to speak only when he thinks Barbara is attending to, hearing, and trying to understand what he is saying, and she must guide him by giving evidence that she is doing just this."

** /  There's much more to be learned from this article, but these highlights should tell you whether further reading is in your interest or worth your time.  

The title?  The Firesign Theater here.

Negotiating Medical Liens on Settlement

This just in from the Met News for California practitioners. 

Where minor entered a settlement agreement with a third party tortfeasor by and through a guardian ad litem, and court made an allocation of the medical expenses portion of the settlement in the order approving plaintiff’s compromise, trial court did not err in rejecting plaintiff's later motion to reduce the amount of Medi-Cal lien against settlement proceeds by the same percentage that the settlement bore to the overall value of plaintiff’s case. 

Espericuenta v. Shewry - filed July 1, 2008, Second District, Div. Two Cite as 2008 SOS 3901

Question:  how do you determine the "overall value" of the plaintiff's case in order to reduce the lien by the same percentage that the settlement bears to that value?  Declaration by the Plaintiff's attorney?  Anyone who's actually read this case, do let my readers know! 

 

Negotiating with Alpha Centaurians

(right, our ancestor, built for fighting)

In How to bargain with aliens, Marginal Revolution asks its readers the following questions:

 Let's say you meet up with an alien race and you need to bargain with them by radio or some other method of signaling. You don't have any other information other than your knowledge of human beings. What traits should you think are overrepresented in humans, relative to what a rerun of evolution can be expected to produce in an intelligent being? Would you expect them to be more or less benevolent than humans?  Should it matter if they have demonstrated superior technology? Should such achievement make you think they are more or less cooperative toward "outsiders"?

I suspect that all of these questions are meant to lead to the conclusion that "people" from more advanced civiliations would naturally be more peaceful, less aggressive and more cooperative with one another than we are. 

Why?  Because scientific and technological advancement occurs more quickly and is less prone to error if researchers are collaborating with rather than trying to "scoop" one another..

And the traits that are "overrepresented" in human beings?  Aggression of course.  As reported last year in MSNBC's Technology and Science column:

Even though [our primate forbears the] ustralopiths walked upright on the ground, they retained short legs for 2 million years for the same reason squatness helped out other great apes—for male-male combat. With the advantage in combat, short-legged primates would likely be victorious and gain access to females. That meant passing their genetic traits, like shortness, to offspring.

Could intelligent human beings have evolved without aggression?  Certainly. 

Chimps vs. Bonobos.

Over at theIP ADR Blog, */ we quoted author Nicolas Wade's 2003 comparison between the aggressive, violent, male-dominated, territory defending style of the chimpanzees with the gentler ways of the bonobos as follows:

researchers Male[] and female[] [chimpanzees] do not associate in families but in separate hierarchies. Males make females defer to them, with violence whenever necessary, and every female is subordinate to every male.

A female chimp advertises her fertile period with a visible swelling and is then so pestered by males that she may get to eat only at night. . . .

Though bonobos are almost as aggressive as chimps, they have developed a potent reconciliation technique -- the use of sex on any and all occasions, between all ages and sexes, to abate tension and make nice.

Assuming the common ancestor of people and chimps had social behavior that was essentially chimplike, how much of that behavior has been inherited by people? The unusual behavioral suite of male kin bonding and lethal territorial aggression may look as if it has been inherited with little change. Among the Yanomamo, a South American tribe, the number of males who die from aggression is about 30 percent, the identical rate found among Gombe chimps.

Dr. Wrangham said the consistent pattern of aggression seen at all the chimp sites suggests that male chimps have ''a strong emotional disposition'' to be aroused by the sight of strange males, to form coalitions against enemies, to be sensitive to balances of power and to be attracted to hunting. The same disposition could have been inherited down the human lineage.

Turns out Freud was right.  Aggression is all about sex.  But it's also about tool-making (i.e., weaponry).  So we have evolved to be competitive and collaborative.  Tool making to ease our work-load and to kill our "enemies."  So far, our advances continue to outpace our many attempts to destroy ourselves.

What might have worked for the advancement of other civiliations?  If all possible worlds exist, as physicists claim, other worlds may well have developed life in some way other than evolutionarily.  Maybe by intelligent design!  There's simply no telling.  I would, however, speculate that a species taste for its members blood must be balanced by affiliative instincts and activities or its development would be cut short by species-cide.

The take-away for negotiators who are strangers in a strange land?

Learn how to communicate with the aliens.  Ask them questions concerning their needs, interests and desires.  Tell them about your own.  Put down your weapons and back slowly away.

Anyone who is as fascinated by these questions as I am, read this post from Such is Life about whether or not we'd "see" aliens if they arrived on our shores.  Answer?  Not likely.  

______________________

*/ And, no, the accompanying photo there is not from Judge Kosinzski's stash.

How Can We See Eye to Eye When Perception is 90% Memory?

According to writer and surgeon Atul Gawande's recent article The Itch, the way the pepper tree in my back yard appears from my bedroom window may be as much as ninety percent memory and only ten percent "data."   As Gawande writes: 

Given simply the transmissions along the optic nerve from the light entering the eye one would not be able to reconstruct the three-dimensionality, or the distance, or the detail of the bark -- attributes that we perceive instantly. 

In other words, perception is not merely reception.  "Objective reality" is just the brain's "best guess" about what the eyes observe, the ears hear and the fingers touch.

(image:  Phantom Limb #2 by Lynn Hershman

"The images in our mind," Gawande explains, "are extraordinarily rich."

We can tell if something is liquid or solid, heavy or light, dead or alive. But the information we work from is poor -- a distorted, two-dimensional transmission with entire spots missing. So the mind fills in most of the picture. You can get a sense of this from brain-anatomy studies. If visual sensations were primarily received rather than constructed by the brain, you'd expect that most of the fibres going to the brain's primary visual cortex would come from the retina. Instead, scientists have found that only twenty per cent do; eighty per cent come downward from regions of the brain governing functions like memory. Richard Gregory, a prominent British neuropsychologist, estimates that visual perception is more than ninety per cent memory and less than ten per cent sensory nerve signals.

Gawande doesn't explain how we manage to agree on anything with such impoverished perceptual abilities and richly imagined constructs of "objective reality."   I suspect that our insatiable urge to tell one another stories is the primary way we create the collective memories that allow us to agree upon such simple "facts" as "the apple is red and somewhat round," if not necessarily that "the blue Kia entered the intersection after the traffic light turned red."  

What strikes me about Gawande's article is not so much the pure science described there, but the way in which opposing parties in litigation resemble "phantom limbs" and joint sessions the mirrors used by physicians to treat the pain "felt" in them.       

Recent research demonstrates that amputees' phantom limb pain can be reduced or eliminated by "fooling" the brain into believing that the missing limb is "well."  When researchers asked amputees to put their surviving arm through a hole in the side of a box with a mirror inside and to then move "both" arms, 

[t]he patients had the sense that they had two arms again. Even though they knew it was an illusion, it provided immediate relief. People who for years had been unable to unclench their phantom fist suddenly felt their hand open; phantom arms in painfully contorted positions could relax. With daily use of the mirror box over weeks, patients sensed their phantom limbs actually shrink into their stumps and, in several instances, completely vanish. . . .

. . . here’s what the new theory suggests is going on: when your arm is amputated, nerve transmissions are shut off, and the brain’s best guess often seems to be that the arm is still there, but paralyzed, or clenched, or beginning to cramp up. Things can stay like this for years. The mirror box, however, provides the brain with new visual input—however illusory—suggesting motion in the absent arm. The brain has to incorporate the new information into its sensory map of what’s happening. Therefore, it guesses again, and the pain goes away.     

Litigation separates the parties from one another as radically as an amputation, often under circumstances where the law suit is all they have in common.  Like amputees, the parties cannot massage the missing muscle, scratch the irritating itch, or ease the frustrating pain.           

When physicians give their patients mirrors and instruct them to move their one remaining arm in concert with its physically re-imagined partner, they conduct a silent concert of healing.  With "new" information (hey! there's my other arm and it's not all cramped up!) the brain readjusts and stops sending false signals.  The muscle relaxes.  The itch is scratched.  The pain is relieved.  

Joint sessions can be used as mirrors to make missing disputants appear again./*  The mediator -- who is trained in this art -- creates an environment (the "box") in which the parties are able to adjust the mis-impressions and correct the mis-communications that make the conflict so difficult to resolve. After a brief period of discomfort and incoordination, the disputants begin to tell their stories of injustice in concert, spontaneously harmonizing the points on which there is little disagreement and resolving those parts of the tale where the greatest differences lie. 

Those parts of the story that have grown wildly distorted in the absence of any corrective influence, are shrunk back to their appropriate size.  Freed from the tyranny of their phantom "others,"  the parties begin to work collaboratively to solve the problem that they now understand is mutual.  

Though this is surely metaphor, the process is not just theory.  When parties consent to a joint session orchestrated by the mediator in collaboration with their attorneys, this type of reconciliation happens more often than not.  

Don't, however, confuse this joint session with those in which attorneys  give one another presentations proving their entitlement to victory as if there were a phantom "decider"  -- a missing arbitrator or judge -- somewhere behind a curtain.  These are the type of "joint sessions" that have given joint sessions a bad name because counsel well know their opponents' "positions"and the parties tend to become less rather than more amenable to settlement when their opponents' point of view is once again argued to them -- this time in quarters that are far too close for most lawyers, let alone their clients. 

We'll keep exploring this issue.  For now, more of the Gawande article below.  

A new scientific understanding of perception has emerged in the past few decades, and it has overturned classical, centuries-long beliefs about how our brains work—though it has apparently not penetrated the medical world yet. The old understanding of perception is what neuroscientists call “the naïve view,” and it is the view that most people, in or out of medicine, still have. We’re inclined to think that people normally perceive things in the world directly. We believe that the hardness of a rock, the coldness of an ice cube, the itchiness of a sweater are picked up by our nerve endings, transmitted through the spinal cord like a message through a wire, and decoded by the brain. . . .

[There are] some serious flaws in the direct-perception theory—in the notion that when we see, hear, or feel we are just taking in the sights, sounds, and textures of the world. For one thing, it cannot explain how we experience things that seem physically real but aren’t: sensations of itching that arise from nothing more than itchy thoughts; dreams that can seem indistinguishable from reality; phantom sensations that amputees have in their missing limbs. And, the more we examine the actual nerve transmissions we receive from the world outside, the more inadequate they seem.

Our assumption had been that the sensory data we receive from our eyes, ears, nose, fingers, and so on contain all the information that we need for perception, and that perception must work something like a radio. It’s hard to conceive that a Boston Symphony Orchestra concert is in a radio wave. But it is. So you might think that it’s the same with the signals we receive—that if you hooked up someone’s nerves to a monitor you could watch what the person is experiencing as if it were a television show.

Yet, as scientists set about analyzing the signals, they found them to be radically impoverished  . . .

________________________

*/   I don't know if any of this relates to mirror neurons, but I am certainly led to think about them.  See Stephanie West Allen's post Mirror Neurons, Some Resources here.  Whenever I see the word "mirror" I'm also always moved to think of my friend, the artist and mediator Dorit Cypis.  For more on her work, click here.

Collaborative Negotiation from Gini Nelson and Professor John Lande with Comment from Your California Mediator

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

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

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

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

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

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

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

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

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

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

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

This is almost never true.  The parties on both sides almost always possess equal parts of good and bad, just like the rest of us. 

Let your parties re-adjust their perception of "the enemy" in joint session.  I can almost guarantee you that a conversation will ensue in which the parties spontaneously tell each other what interests they really need to satisfy to settle and what constraints they are really working under.  And I don't guarantee a lot of things. 

Why can't I do this for the parties?

Because often neither side will disclose these matters to me because they don't trust that I won't use that information to help settle the case and because the parties won't believe what I say about their opposition in the first place (obviously, they've pulled the wool over my eyes). 

"How do you know he's not lying?"  is a question mediators are asked on a regular basis.  My answer is "I have no idea."  But if you let your client talk to the opposition -- with any constraints, restrictions and control you wish to retain -- which I can orchestrate for you -- your client will be able to elicit the details that give any story a ring of truth (or falsity) while at the same time watching the body language that constitutes between 60 and 80% of all communication.

Would you try a case without 80% of the information you need?  Of course not!  And yet you're content to avoid a joint session when that session could provide you with between 60 and 80% more information than you had when you arrived on the morning of the mediation or settlement conference?

Suspend your disbelief in the mediator ("who-will-do-anything-to-settle-the-case") for just a couple of minutes.  Remember that we're in possession of confidential information we cannot divulge to you.  

Take our lead.  And if you don't trust us to do so, for heaven's sake find a mediator you can trust!

Lawyers Do It: Negotiate Collaboration

Check out When Collaborative Law Makes Sense in the most recent issue of the American Bar Association Journal

Collaboration may be most amenable in areas where there is a need for ongoing relationships, like dissolving marriages that produced children, said Pauline Noe of Cambridge, a past president of the Massachusetts Collaborative Law Council. Noe suggested that discovery is often more fruitful in collaborations than in litigation, since collaboration requires full, prompt, honest and open disclosure of all relevant information, and vigorous good faith negotiation with full participation of all parties in an open forum.

Taking the long view as I'm now prone to do (by virtue of age and the fact that I generally only see litigation's end game) I continue to say that we're all involved in on-going relationships -- not just those people whose disputes are more personal than commercial.

As Joseph Campbell, the great student of world mythology taught us:

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.

A classic example of combative litigation -- YOU ARE NOT THE BOSS OF ME!



The Right to Trial By Jury and Mediation as Its Alternative

There is no principle I hold more dear than the rule of law.  I've written before about some critics' contention that our own government has turned away from the rule of law here.  Some of those  critics go so far as to accuse our government of waging war on the rule of law -- calling its strategy "lawfare."

I've also written before about critcisms levelled against ADR practices as threats to the principle that all men, women, and institutions will be judged by the same gender-blind, color-blind, nationality-blind, disability-blind (etc.) rules of law

There are those who believe that mediation -- which is practiced without rules, best practices or even a common theoretical basis --  permits mediators -- who are primarily over-40 white men -- to unfairly pressure litigants to settle their lawsuits against their better judgment.  There are further charges that mediation re-injects favortism and prejudice back into a system that spent most of the latter half of the 20th century ridding itself of.  

I take these criticisms very very seriously, repeating throughout any mediation session my opening assertion that my role is to present the parties with choices and to faciliate a settlement if they believe it may be better alternative to continued litigation, not to hustle them away from their right to a jury trial.  

I would be far more successful in being "neutral" about proceeding to a jury trial if there were an easier, less costly, and speedier way to bring a dispute before a jury.  We have, lamentably, permitted our cherished rule of law to become so procedurally encrusted that it sometimes seems like no option at all -- at least not an option available to all but the wealthy or those represented by lawyers willing to accept a contingent fee.

All of this troubles me.  I invite comment at the same time that I provide the thoughts of some of our greatest statesmen and jurists about the right to trial by jury.      

George Washington

"There was not a member of the Constitutional Convention who had the least objection to what is contended for by the advocates for a Bill of Rights and trial by jury." (1788)

John Adams 


"Representative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle and fed and clothed like swine and hounds." (1774)

Thomas Jefferson 

"I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." (1788)

"Trial by jury is part of that bright constellation which has gone before us and guided our steps through an age of revolution and reformation." (1801)

"The wisdom of our sages and the blood of our heroes has been devoted to the attainment of trial by jury. It should be the creed of our political faith." (1801)

James Madison 
"Trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature." (1789)

John Quincy Adams 

"The struggle for American independence was for chartered rights, for English liberties, for trial by jury, habeas corpus and Magna Carta." (1839)

Patrick Henry of Virginia [Patriot who said "Give me liberty or give me death!"]
"Trial by jury is the best appendage of freedom by which our ancestors have secured their lives and property. I hope we shall never be induced to part with that excellent mode of trial." (1788)

Alexander Hamilton 

"The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government." (1788)

Daniel Webster

"The protection of life and property, habeas corpus, trial by jury, the right of an open trial, these are principles of public liberty existing in the best form in the republican institutions of this country." (1848)

Judge Stephen Reinhardt 

"Our constitutional right to trial by jury does not turn on the political mood of the moment, the outcome of cost/benefit analyses or the results of economic or fiscal calculations. There is no price tag on the continued existence of the civil jury system, or any other constitutionally-provided right." (1986)

David Hume 

"Trial by jury is the best institution calculated for the preservation of liberty and the administration of justice that was ever devised by the wit of man." (1762)

Judge William Bryant [First African-American federal district court judge in D.C]

"If it weren't for lawyers, I'd still be three-fifths of a man." (2004)

Justice William O. Douglas

"The Massachusetts Body of Liberties was a new Magna Carta. It contained many of the seeds of the civil liberties which today distinguish us from the totalitarian systems, including the right to trial by jury." (1954)

Justice Hugo Black

"Our duty to preserve the Seventh Amendment is a matter of high Constitutional importance. The founders of our country thought that trial by civil jury was an essential bulwark of civil liberty and it must be scrupulously safeguarded." (1939, 1943)

Justice Ward Hunt

"Twelve jurors know more of the common affairs of life than does one man, and they can draw wiser and safer conclusions than a single judge." (1873)

Quotations excerpted from In Defense of Trial by Jury: Vols. I and II by the American Jury Trial Foundation (1993) and copied verbatim and in their entirety from the web site of the American Association of Justice (i.e., the American Trial Lawyers Association).

Why You Shouldn't Squeeze the Last Nickel Out of a Deal

The cost of a thing is the amount of life that you must exchange for it -- now or in the long run (Thoreau)

  • if you have an on-going relationship -- even as limited as a note payable -- squeezing the last nickel out of the deal may impair your bargaining partner's ability to perform 
  • what goes up, must come down, i.e., squeezing out the last nickel creates enemies who  none of us can afford when times are good, let alone when times are bad 
  • taking advantage of another's weaknesses tears at the social fabric
  • it makes us all more watchful and less productive
  • it doesn't actually feel good to line your pockets with the misery of others
  • sometimes the downtrodden rise up -- every couple of centuries or so, creating an entirely new order -- the generous man and woman will not be on the wrong side of that revolution
  • global warming -- think about it -- the order will change as will the countries who will be asking for favors
  • you reap what you sow (I'm pretty sure I learned this in Sunday School)
  • social relations do not exist "out there" -- they are co-created by one person's relationship with every other person -- the society you inhabit is the one you create -- if you don't want your neighbor taking your last dime, don't take his
  • collaborative effort results in greater progress than individual activity -- if you decrease trust, you impede advancement in business, the arts and science

Readers!  Can I count on you to give us all more reasons?

Negotiating Conflict Denial and Avoidance with Geoff Sharp and Joe McMahon

I'm tempted to just import Geoff Sharp's entire post on joint session vs. separate caucus mediation or, as Joe McMahon positions the split in current mediation practice in Moving Mediation Back to Its Historic Roots, "dialogue-based" v. "separation-based" practice.

That seems silly when I can simply link you to Geoff's post The Legal Community Has Learned to Accept Low Functioning Mediation.  

I will give you a few excerpts, though, both Geoff's own thoughts and those of McMahon quoted by him (thanks to our mutual friend Stephanie West Allen at Idealawg).

If denial and avoidance are thought to be the most universal responses to conflict, it is important to consider whether separation-based mediation merely plays into and enables such a response to conflict. If so, it is time to evaluate whether mediation and facilitation were really intended to provide support for such denial...

Support for the market model of mediation ("the market knows what it needs and what it needs is the settlement conference") is claimed in the high settlement rates in commercial settlement conferences. However, a high percentage of civil cases always have settled, even long before mediation was in vogue...

McMahon asks of mediators; 'are you fully satisfied with the quality of dialogue among conflicting parties in the mediations in which you participate?'

What a wonderful question! In my case however, only occasionally.

As McMahon says, 'By broadly considering conflict and mediation, it may be possible... to move these processes back toward their historic roots—that being processes based on parties telling their stories in face-to-face dialogue aided by a mediator who can guide them to more effective communications.'

And though it is, as Geoff says, about the "timbre and tone of resolution," it is also about obtaining more satisfactory resolutions -- resolutions that not only satisfy more party needs, interests and desires but which invariably leave less value lying unused on the table when all parties leave the room.  

I'll grill Geoff about this over dinner tomorrow night and get back to you on all of this.

My own previous posts on joint sessions below:

Small Talk and Separate Caucuses.  Excerpt:

Here, then, is the weakness of shuttle negotiation. The parties' attention is fixated on money. A fixation that neuroscientists tell us makes us ungenerous and anti-social -- the worst possible context for a successful settlement.

The next time you're facing a difficult negotiation or mediation, remember the salutary effect of small talk in helping yourself and your opponent focus on the commercial and human situation that has brought you to the table so that you can more easily resolve the business and the people problem at the heart of the litigation.

Negotiating Justice in Community Mediation.  Excerpt:

Whether justice and fairness are, at some level, hard-wired into us (see Brain reacts to fairness as it does to money and chocolate) or culturally controlled, it seems that Rawls' conception of "justice and fairness" based upon reasonableness and enlightened self-interest might flow more or less naturally from a mediated dispute resolution forum where the parties, rather than the mediator, are in control.

Long Live the Death of the Reasonable Man

Emotions in litigation -- and at the negotiation table -- often run extremely high. It is for this reason that so many lawyers want to avoid joint sessions altogether and conduct their entire bargaining session in separate caucus with a "shuttle" mediator.

What I can tell you from three years of full-time mediation practice, however, is this -- when business people -- properly coached -- are finally willing to sit down and speak to one another, to explain their circumstances rather than their legal and factual position -- cases get settled rather quickly. (See Geoff Sharp's In Praise of Joint Sessions here)

Why?

Because they have more in common with one another -- including most particularly the dispute -- than with anyone else.



Negotiating Settlement after Filing a 998 Offer or Demand

If you serve a 998 offer on the Plaintiff, say $5,000, and Plaintiff's judgment is reduced to zero after set-off for settlements, is the Defendant entitled to recover the costs permitted by 998 if the judgment against it is reduced to zero after the court deducts from the jury verdict the amount of pre-trial settlements paid by others?

Well, yes and no.

If the Plaintiff's recovery at trial would have netted it more at the time of the 998 offer than the 998 offer itself, 998 does not shift post-998 fees to the Plaintiff.  If the 998 offer was $5,000, the jury verdict is $10,000, and no settlements had been paid to Plaintiff at the time the 998 was served, Plaintiff's failure to accept the 998 does not shift post-998 costs to it.  If, however, the Plaintiff had already received $10,000 in settlement at the time the $5,000 998 was made and the jury renders a $10,000 verdict that is reduced to zero, 998 will shift the post-998 costs to the Plaintiff.

Are we clear?

Crystal.

If not, Guerrero v. Rodan Termite Control sent down today by the First Appellate District is a must-read.

Interest-Based Negotiations: A Quick List of Preparation Questions

I've linked to Negotiating:  Thinking it Through from the Business Growth Blog before, but haven't quoted the Eight Preparation Questions listed there.  The more I mediate (yes, one's practice does grow) the more I'm reminded that litigators resist interest-based bargaining techniques. 

I get stuck in position-based negotiations as well.  It remains a challenge for me, after 25 years of litigation practice, not to be sucked into the attorneys' arguments about why they are right.  To help all of us in the mediation room . . .

[h]ere is a list of 8 questions you can ask yourself when you suddenly realize that you have to prepare for a negotiation. Use these to generate quick preparation for any negotiation.

1. What are my intended outcomes and interests?

This is about having your goal in mind but also about thinking about the bigger picture at the same time - if you're goal is to get to work on time, speeding to get there might seem like the right choice until the cop pulls you over.

2. What are their possible interests and outcomes?

Look at the negotiaion from their point of view. What do they really want from this?

3. What are some of the options of agreement?

Where are the points of agreement? Focusing on this beforehand will set a tone of reaching agreement rather than a tone of conflict.

4. What is my Plan B?

Once you've thought through the first three questions, what's your fall back position? Having your Plan B in mind gives you a feeling of options so if the deal goes to far against you, you are comfortable with your option B.

5. What is my worst case scenario?

Answering this question sets your "don't cross" line. You've predetermined what you're willing to give up and more than that is a deal breaker… that means you can negotiate confidently, since you know your direction.

6. What are some possible external standards?

External standard are outside measures that can move the negotiation away from personal stakes to measures from an outside authority. Examples might be interest rates, rate of exchange or time frame.

7. What is or are my reserve price / terms / limits?

Knowing what your limits are and then not not going past them results in more useful and enjoyable negotiation.

8. What is my game plan?

Map it out. What do you want and how are you going to get there?


Negotiating Coverage: You Have Insurance for This?

It happened at a settlement conference again just last week. Defense counsel said there was "no insurance" for the defense or indemnity of a professional malpractice claim.

This naturally surprises me.  Some professionals are required to have coverage or disclose its non-existence to their clients.  No such disclosure had been made in this case.

"No insurance policy?"

"She has an insurance policy; there's just no coverage."

"Why did the carrier deny coverage?"

"The carrier said there was no coverage."

"Why?"

"I don't know.  I'm not coverage counsel."

"Is there coverage counsel?"

"No.  I told you there's no coverage.  Let's get back to negotiating the settlement."

After obtaining (via fax) the policy, the demand and the denial, it turned out that there was a good reason for the carrier to deny coverage for the plaintiff's claim.  But the denial letter expressly withheld comment on the existence of coverage for the defendant's principal, who had not failed to make a timely claim for coverage, and who had not yet been sued.

Call me an activist or a "fund raising" mediator if you will, but when there's not enough money to settle a case and the parties continue to wish it could be settled, I start asking questions about sources of available funds.  

And, listen.  Every litigator must be enough of a "coverage lawyer" to evaluate the likelihood that any existing insurance policy might provide defense or indemnity for the law suit you are defending.  

So, if you are a commercial litigator -- or any type of litigator who defends your clients against claims -- you must

  • ask your clients for all of their insurance policies, even those that seem unlikely to provide coverage;
  • carefully review the precise wording of the policy's insuring agreements, paying particular attention to the language concerning the defense of claims and the deadlines for submitting those claims to the carrier;
  • research the case law in the relevant jurisdiction(s) to determine how the courts have interpreted the insuring agreements and other pertinent policy provisions contained in your clients' policies under facts similar to those alleged in the lawsuit you've been asked to defend;
  • except for some narrow additional protections provided to insureds, be aware that there is no such thing as "the law" of coverage under any particular type of policy -- all coverage flows directly from the precise language of the insuring agreement;
  • remember that in most jurisdictions, that language -- if ambiguous -- will be interpreted in favor of the insured's objectively reasonable expectations -- that means the law of coverage always favors your client's claim for coverage; 
  • understand that in most jurisdictions the rule of contra proferendum will require a court to construe any ambiguity in an insurance policy against the insurance carrier, once again meaning that the law of coverage will favor your client's claim for coverage; 
  • never accept the carrier's refusal to provide a defense without asking yourself -- or a coverage specialist -- why in the heck you should accept the carrier's word for it when you were born to contradict everything from "good morning" to "let's have lunch";
  • never conclude your client doesn't have coverage before tendering the claim; the response to the tender will outline the pertinent policy provisions in stark enough detail -- not to mention 12-point type -- and the denial in sufficiently weasley words to activate your B.S. meter;
  • if you finally accept the fact that your client's policy won't cover the defense of the litigation or indemnify your client in the event of a judgment, continue to keep the carrier informed of the litigation's progress in any event, inviting the carrier to attend all mediations and settlement conferences and to respond to all settlement demands;
  •  remember that the law of coverage changes on a daily basis; read those coverage decisions sent down by your local appellate courts and subscribe to Mealey's on coverage remembering that a really good reason for a client to sue a lawyer for malpractice is your failure to give it reasonably informed legal advice about the availability of insurance coverage; and,
  • retain coverage counsel If the cost of the lawsuit is beyond your client's means or will deprive it of capital necessary to meet its business goals for the next few years. 

UPDATE:  See Perry Itkin's post about the perils of entering into a mediated settlement agreement without knowing your policy limits.  Also note that the result in the case cited by Perry would be different in  California if the provisions governing the enforceability of mediated agreements are not met . . . at least so long as the Supreme Court does what we believe it will in Simmons v. Ghadheri.  Excerpt from Florida Mediator below:

In Leff and Physicians Financial Consultants Corporation v. Ecker, M.D., 972 So.2d 965 [Fla. 3rd DCA 2007], the plaintiff went into the mediation conference without a clear picture of what the insurance policy limits were. Notwithstanding this limited knowledge, plaintiff chose to go ahead with the mediation and entered into an agreement at the end of mediation.

The Defendants filed a motion to enforce the mediated settlement agreement [Guess why! Good guess!]. The Plaintiff argued that a “mutual mistake” allowed him to avoid the parties’ mediated settlement agreement.

Not so fast
   . . . .

Continue reading here.  There are two solutions to this problem in any jurisdiction:  (1) know your policy limits; or, (2) make your agreement to settle contingent on verifying them.  

For the seasoned attorneys in the crowd, take a look at Anderson Kill insurance recovery attorney Mark Garbowski's article at the Lexis New Attorney Hub:  Are You Covered While Doing Good?: Make Sure Your Employees Are Insured Even When Doing Pro Bono.

If you have a really really really really big insurance coverage matter, I recommend those seeking insurance coverage to call my own brilliant insurance recovery squad over at Dickstein Shapiro, particularly my beloved husband Stephen N. Goldberg.

Alex Kozinski: the Prurient and the Personal

Here are a few S.A.T. questions for the legal community:  

  1. how is the relationship between adult sexuality and prurient sexual interest like that between a dispute and litigation?  
  2. Is our interest in Kozinski's sexual interests itself prurient, i.e., are we inordinately interested in Kozinski's presumed "inordinate[] interest in matters of sex." ?  
  3. And what type of interest is inordinate?

"Inordinancy" is not, I think, a matter of time but of focus.  One's sexual interests might be classfied as  prurient if they are stirred by a single act, item or physical characteristic and disregard the humanity of the object of one's desire.  In feminist te