About Us

Victoria Pynchon

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

She Mediates

ADR Services, Inc.

She Negotiates

She Negotiates

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

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."

Comments (4)

Read through and enter the discussion by using the form at the end
Lilys McCoy - July 23, 2008 6:07 PM

"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."

That's profound...and you just dropped it the middle of the post like it was a stroll in the park. So, how do we use our understanding of these two elements of human conflict to mediate cases successfully?

Vickie - July 23, 2008 7:14 PM

Thanks for the question Lilys.

The first step in any mediation process is to create an atmosphere of hope and safety for the parties.

Hope. The mediator must create an atmosphere in which the parties are at least willing to HOPE that their conflict can be resolved in a way that restores the respect they've lost as a result of the litigation by delivering a result that, at a minimum, constitutes rough justice. The parties don't need to BELIEVE it; they only need to hope that it is possible.

Safety. The parties need to be assured that their participation in the mediation will "do no harm," that they won't be tricked into disclosing information that will be used against them; or "taken" by a con artist, cheated into making an agreement they'll later regret or humiliated by harsh comments made by the other party or his/her attorney. They need assurances that they will not be physically threatened in joint session.(people DO worry about physical threats).

That's the mediators first job. To create an atmosphere of hope and safety.

Then the attorneys need to help the mediator re-construct the narrative in a way that both parties can acknowledge is -- at a minimum -- an understandable point of view. This allows the parties to stop demonizing the other. The resistance to entering into an agreement with SATAN is understandable. Help the parties understand their opponent is fallibly human rather than evil. This is most easily done in joint session because the parties will continue to villify one another until they are able to sit across a table from one another and communicate with one another directly. They often realize their opponent simply didn't understand or said something in a heated moment that she/he later regretted or acted incautiously.

People don't go to the tremendous trouble of finding and paying an attorney unless something in their relationship with their opponent has gone TERRIBLY WRONG. Attorneys can help the mediator trace back to that incident so that the "people" problem can be brought out into the open EVEN IF IT'S COMPLETELY IRRELEVANT TO THE MERITS OF THE LAWSUIT.

EVERYONE underestimates how strong a force disrespect is and the extent to which people will go to restore it. People KILL one another when disrespected. This applies to CEO's and General Counsel, to Exeuctive Vice-Presidents, Operations Managers and even claims representatives -- most of whom don't carry guns but do carry lawyers in their back pockets as weapons of mass destruction.

Restore respect between the parties and the money/business issues become a turkey shoot.

Hope. Safety. Communication. Respect. Reconciliation. THEN money. Sometimes, aplogy and sometimes simply saying, "I didn't understand before; now I understand" will close the deal.

We ACHE for reconciliation.

As William Carlos Williams wrote of poetry, so it is with forgiveness and accountability.

It is difficult to get the news from poems/yet men die miserably every day/for lack/of what is found there.

Lilys McCoy - July 24, 2008 9:34 PM

Vickie - thanks so much for this detailed and thought-provoking answer.

http://tinyurl.com/telupayne17109 - February 4, 2013 7:51 PM

I actually was seeking for plans for my own weblog and uncovered your own blog post,
“And then the juror applauded . . . . : Negotiation Law Blog :
Southern California Arbitration Mediation & Conflict Resolution: Settle it Now Dispute Resolution Services: Serving
Los Angeles, Beverly Hills, Century City”, would
you care if perhaps I actually start using a number of of ur tips?
Thanks a lot -Bettye

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