Thanks to @NeilDenny of Lawyer 1point9  for the head's up.

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.

I'm walking to my appointments today.  Because I can and because I can't get down to the Gulf to help out there.  Let's each do one small thing today.  And tomorrow.  Start a daily blog of "heal the Gulf" activities.  Tweet or post "things to do."  Call a friend or relative in the area and ask what you can do to help.  Observe a moment of silence for the BP workers killed in this disaster.  Say a prayer in honor of the wildlife most religions tell us to be responsible for.  Remember that the planet does not need us to survive.  It did quite well before us and will do quite well after us.  We need it. 

At its best, the negotiated resolution of conflict generates accountability among all of the stakeholders.  When we're accountable - when we take our part in it - the way in which we can transform our impotent outrage into productive action becomes instantaneously apparent. 

I ask others, in addition to clicking on the links below for more information about helping out, to leave comments here about their personal stake in the oil spill and their resolutions to make a difference this time.

Click on the Yahoo link above to see what these organizations are doing to help and how you can join them in the effort. 

Coalition to Restore Coastal Louisiana. Register to volunteer with Coalition to Restore Coastal Louisiana.

Defenders of WildlifeDonate to Defenders of Wildlife. Find volunteer opportunities with Defenders of Wildlife.

Emerald CoastKeeperDonate to Emerald CoastKeeper. Find volunteer opportunities with Emerald CoastKeeper.

Greenpeace USADonate to Greenpeace USA. Find volunteer opportunities with Greenpeace USA.

Louisiana Wildlife Rehabilitators AssociationDonate to Louisiana Wildlife Rehabilitators Association.

Oxfam International  Donate to Oxfam International. 

Wildlife Sanctuary of Northwest Florida. Donate to Wildlife Sanctuary of Northwest Florida. Find volunteer opportunities with Wildlife Sanctuary of Northwest Florida.

What we don't need is name-calling or politicizing what is a disaster for all of us everywhere on the planet.  We do need to make certain directly accountable parties keep their commitments to fix that which they damaged and destroyed.  Beyond that - anyone using this disaster to feather their own political nests or to engage in partisan political name-calling, should be ashamed of themselves.

(Shame - a contentious negotiation tactic)

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.

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.

(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.

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

                           *                          *                        *

Practitioners of mediation have historically had an uneasy relationship with the practicing bar. Many view lawyers as conflict-intensifiers due to training, temperament, and financial self-interest.  Indeed, the very rise of mediation may in part be attributable to its promise of moving lawyers to the margins and offering parties a direct voice in resolving their own controversies. As a result, lawyers are viewed in some quarters as at best necessary evils in mediation. Some state statutes go further and empower mediators to ban lawyers from mediation sessions.  Moreover, to the extent lawyers in recent years increasingly participate in mediation, the type of mediation favored or assumed to be "mediation" by lawyers - so-called "evaluative mediation" - tends to strip mediation of its more distinctive characteristics. What often remains is something very familiar: an adversarial hearing that adheres to the story of litigation and that, while perhaps resolving conflict, does not differ in a meaningful way from litigation.

Even so, growing numbers of commentators both in and out of the world of mediation view lawyers as potentially constructive forces for promoting the resolution of conflict. Robert J. Gilson and Robert H. Mnookin, for example, drawing on game theory, see a corps of attorneys who adopt a "cooperative" stance as having "the potential for damping rather than exacerbating the conflictual character of litigation." In a different but related vein, Carrie Menkel-Meadow and others hope to replace the prevailing lawyer-as-zealous-advocate paradigm with the notion that effective lawyers are problem solvers. Lawyers as problem solvers bear little resemblance to traditional advocates; they perceive "cases" as embodying a set of needs and interests that might be resolved (or not) depending on the choice of dispute resolution process.

Lawyers can indeed play a crucial role in counseling clients about and appearing with clients in mediation. Lawyers, for example, can help neutralize "power imbalances" between parties that mediation can recapitulate or exacerbate  and can protect clients from the subtle or not so subtle coercion "bad" mediators can exercise. Lawyers, however, must confront an initial challenge before getting to these issues: how can clients even consider or think about mediation when the morality tale they have in their heads is something mediation hopes to transform?

 Dislodging the Litigation Narrative

 Given that litigation and mediation embody different narratives and thereby generate different disputes, there seems to be a straightforward way for lawyers to encourage clients to understand and consider a mediation alternative. Lawyers can advise a client about how different modes of dispute resolution generate different disputes, describe different dispute resolution processes that might be available, and present how a dispute might look when filtered through the processes of each.

But it is not that easy. Clients typically come to a lawyer's office with litigation narratives in place. These narratives run deep. After all, it is extraordinarily difficult to deconstruct one's own experience, for it seems transparent to us that what we have experienced is what is. As a result, to most disputants, the binary moral universe of the litigation narrative is the universe, with the goods and evils and rights and wrongs arrayed as they are. Yet in order to make room for the mediation alternative, lawyers must dislodge this narrative, or at least encourage clients to consider the possibility of alternatives.

One way of understanding how lawyers can do so is to consider the fluid nature of conflict. A "dispute" or "controversy" is not a unitary, static "thing," but rather an assemblage of competing stories, motivations, and interests. Disputes are dynamic, ever-changing phenomena. They undergo transformations: "individuals define and redefine their perceptions of experience and the nature of their grievances in response to the communications, behavior, and expectations of a range of people, including opponents, agents, authority figures, companions, and intimates." 

As this process unfolds, lawyers inevitably shape disputants' perceptions of a controversy in a multitude of ways,  including the moral dimension of disputes and the attribution of responsibility.  Indeed, attorneys appear at critical junctures in the life of a controversy. In an influential article, William L.F. Felstiner, Richard L. Abel, and Austin Sarat argue that disputes proceed through a series of dynamic stages they call "naming, blaming, and claiming." After an "injurious experience" is perceived and "named," the experience may be transformed into a grievance - a "blaming" - "when a person attributes an injury to the fault of another individual or social entity."

The grievance may then be transformed into a "claim" when someone with a grievance "voices it to the person or entity believed to be responsible and asks for some remedy."  The final stage - a transformation from "claim" to "dispute" - occurs when a claim is explicitly or implicitly rejected.  All of these stages are themselves unstable and open to reinterpretation by those who are experiencing them. Lawyers usually enter the scene at the "claiming" or "disputing" stage just when a disputant is poised (or forced) to turn to a more formalized process of dispute resolution.

This model does not require or assume a particular process through which disputes should be resolved. Nevertheless, given the cultural norms of litigation and the stories told within those norms, most disputants conceptualize their naming, blaming, claiming, and disputing through the story of litigation. As Felstiner, Abel and Sarat put it, "institutional patterns restrict the options open to disputants" who wish to pursue a "claim," and the "normal" way to resolve disputes has long been litigation.

"Institutional patterns," however, are not set in stone. Indeed, in the twenty odd years since the appearance of the Felstiner, Abel and Sarat article, the growth of mediation has generated new options for dispute resolution. Lawyers, as the cultural actors with prime responsibility for enacting ways of "claiming" and "disputing," are especially well positioned to encourage clients to consider fresh "patterns" of dispute resolution such as mediation. While no doubt an enormous challenge, experience suggests that this is not an impossible one. The very fact that mediation can and does work with some frequency despite the force of the litigation narrative demonstrates that lawyers have at least a chance to dislodge the "truth" of the litigation frame when interacting with clients.

A number of factors favor client receptivity to mediation even prior to client counseling. First, conceptions of conflict tend to be fluid and subject to reinterpretation. There is thus tension between the persistence and rigidity of the litigation narrative and the continuing instability and reinterpretation of our experience. Tension in this context, however, is not necessarily a bad thing; lawyers can build upon the instability of conflict in order to encourage clients to reinterpret conflict in terms of alternative narratives. Second, the unsavory dimensions of litigation - its almost inevitable expense, delay, acrimony, and uncertainty, among other things - are commonplaces in popular culture and act as a powerful incentive to embrace alternatives. Moreover, lawyers are, by definition, situated apart from clients' circumstances. This added distance enables a lawyer to see a client's perspective as a perspective, with other perspectives and stories potentially in play.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

^[12]

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

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

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

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

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

 ^[18]

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

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

The Most Effective Conflict Resolution Technology is the Oldest

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

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

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

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

Laws and Lawyers

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

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

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

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

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

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

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

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

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

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

Arbitration

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

 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

Every year, a town in Japan named Taiji kills 2300 dolphins and small whales.  This year, that slaughter was halted for a single day because of the activism of the man who trained Flipper for television, Rick O'Barry.  Here's his account of the making of The Cove.   

Below us, just across a two-fingered inlet, was the Killing Cove, where 2300 dolphins and small whales are butchered every year. [/*] It's the place Allison and Alex had infiltrated in 2002, managing to cut the nets and free some 15 dolphins before the two were assaulted by fishermen and arrested.  The killing here is part of a cetacean slaughter that is unregulated by the I[nternational] W[haling] C[ommission], which has no jurisdiction over the smallest whales.  The Japanese don't even have to pretend it's for scientific research.  The government issues permits to fishermen and over 22,000 dolphins, porpoises, pilot whales and false killer whales are killed annually along Japan's coasts.  The meat is sold to school lunch programs and grocery stores and is terrifically high in mercury.  Independent random tests have found the dolphin meat to contain three to 3500 times the levels deemed safe by the Japanese Government.

What did Flipper's trainer want to do?  He wanted to stop the slaughter.  Here's where the Harvard Negotiation article on power in negotiation comes in.  I'll let the authors of the Harvard article speak for themselves.

In order to understand [why the less powerful sometimes prevail against their more powerful bargaining partners] one needs to analyze power as more of a relational and perceptional concept. The relational dimension is captured in Dahl’s definition that “A has power over B to the extent that he can get B to do something B would not otherwise do." For example, most non-governmental organizations (NGOs) are less resourceful than the World Bank. Yet the Bank can enhance the legitimacy of its programs by including NGOs. Over time, participating NGOs could influence the Bank’s agendas to some extent.  Thus viewed, parties with asymmetric resources may well share a mutually dependent relationship.

 It is also worthwhile to note that power sometimes lies in the eye of the beholder. A party’s decisions may be shaped as much by its perception of the situation as by objective reality.  Zartman and Rubin, in studying power in negotiation, define it as “the perceived capacity of one side to produce an intended effect on another through a move that may involve the use of resources.[A]s Fisher and Ury have pointed out, the resources a party owns do not necessarily translate into effective negotiating power, which is much more context-specific. The authors cite the example of the US, which “is rich and has lots of nuclear bombs, but neither has been of much help in deterring terrorist actions or freeing hostages when they have been held in places like Beirut"

The common tactics under a power-based approach include coercion, intimidation, and using one’s status and resources to overpower opponents. 

One tactic omitted from the list of power-based tactics is one of the most compelling -- the strategy used by Martin Luther King, Jr., Ghandi and, yes, anti-abortion activists -- bearing witness and shaming.

There are many moments of shaming and bearing witness in The Cove --   the moment when activist O'Barry holds his iPhone before the eyes of the Japanese official who has just told him that cateceans are killed quickly, with surgical precision (you can see that moment in the trailer here).  There's the day O'Barry, who has been permanently barred from IWC's conferences, walks in with a flat screen television strapped to his chest and silently moves in front of each row of delegates, showing them the video of the slaughter in the Killing Cover.  And then, at movie's end, the wrenching scene of O'Barry standing in the middle of a crosswalk in Tokyo, that same flat screen  on his chest, silently bearing witness as thousands rush past him and a few, half a dozen perhaps, stop in their tracks to watch the footage of the fisherman in the Killing Cove that he and his team gathered at the risk of their freedom and perhaps their lives.

It appears that the slaughter was halted for only a day.  Here's O'Barry's account of that day  (excerpt below):

I vowed to be back in Taiji when the dolphin killing began. I’ve often been here alone, or accompanied by a few environmentalists. Sometimes, I was able to talk a major media organization into sending someone.

When I got off the bus at the Cove this afternoon, I was accompanied by my son Lincoln O’Barry’s film crew, a crew from Associated Press, Der Spiegel (the largest magazine in Germany), and the London Independent.

I was talking with the police, as the international journalists stood around listening, suddenly a camera crew arrived from Japan! And then another! And then still another!

You have to understand that this is SO IMPORTANT. These TV stations have REFUSED to cover the story in Taiji for years and years. NOW, for the first time, they have shown up, with cameras rolling.

The Cove movie led to the strong action by the city of Broome, Australia, in suspending the sister-city relationship with Taiji. So now, the Japanese media are sitting up and listening, for the first time.

[A]ll Japanese will soon know about the cover-up that has occurred by the government in refusing to stop mercury-contaminated dolphin meat from being sold to unsuspecting Japanese consumers and children.

But Taiji can change this image of shame, if they want to. I will be telling them that the town of Nantucket used to be the capitol of the whale killing industry in the US. Now, it uses its history of whaling combined with whale-watching to market tourism very successfully. Whales and dolphins are worth more alive than dead. Taiji can do this, too. But the killing has to stop.

Alas, the cessation of the killing lasted only a single day.

 Once shameful national behavior has been exposed (a contentious or power-based negotiation strategy) the weaker parties (people vs. governments) must build their negotiating strength through trust.  As Power and Trust in Negotiation and Decision Making asserts:

Identification-based trust is grounded in empathy with another person’s desires and intentions and leads one to “take on the other’s value because of the emotional connection between them.”  It often exists among friends. Fostering understanding and friendly ties may therefore be a step to engender identification-based trust. For example, Reagan and Gorbachev developed a cooperative relationship in the late 1980s partly because they had repeated face-to-face talks over the years.  Reagan also sought to cultivate a non-hostile atmosphere in these talks by appealing to common interests, actively diffusing tensions and using his sense of humor. Because friendship and liking tend to generate trust and assent – sometimes in a subconscious fashion – Cialdini observes that salespersons often befriend their customers before promoting their products. Trusting someone in certain situations may thus come with risks of manipulation or exploitation

In asymmetrical power relationships, the building of trust among activists is necessary for the formation of a grass-roots coalition capable of overwhelming more powerful parties (perceived economic and national interests as well as that most powerful of impasse creators:  the status quo) with passionate commitment to an idea and the hope that the idea can be made a reality.  

O'Barry's documentary is a call to action that asks us to respond to our "better angels."  If enough of us hear the call and respond, there is no power that can stop this movement to stop the killing. 

As Martin Luther King, Jr. once said, "the arc of history is long but it bends toward justice."

______________________

The Harvard Negotiation article is a gift from Don Philbin who directed his Facebook readers to  Power and Trust in Negotiation and Decision-Making:  A Critical Evaluation at the Harvard Negotiation.  If you have any interest whatsoever in the dispute resolution techniques of negotiation, arbitration or mediation and you're not following Don (whose Facebook page is here and whose tremendous LinkedIn Arbitration and Mediation Group is here and whose group blog Disputing is here) you're missing the Mother of All ADR Aggregators and your life is the poorer for it.

*/  There were reports that international pressure caused the suspension of the annual dolphin hunt but the linked article from the Japan Times suggests that it resumed on the second day of the season on September 2.

And this is all I'll have to say about universal health care.

The way in which this Index Card wisdom applies to legal practice was addressed by me in the sadly defunct complete lawyer article Savvy Lawyers Value Their Human Capital

These are hard times and none of us is immune. I’ve been here before. In the early 1990s, my law firm announced we would ride out the economic crisis by henceforth buying legal pads without our firm name embossed on the binding. Layoffs of partners, associates and staff quickly followed. Some caught life rafts to other law firms; some were not so lucky. Those who stepped on others going up the compensation ladder were not treated well on their way back down. The water was cold and filled with sharks.

 

It seemed then, and seems now, that the entire profession has forgotten two critical principles of legal practice: clients, not profits, come first; and, partners see one another through the tough years in the same manner in which they share the profitable ones. Because people (our clients, our colleagues and our staff) are our only assets, I have five people-centered tips for surviving, perhaps even flourishing, in this challenging economic environment.

Continue reading here.

Connecting for Job Help

By Barbara Rose

Gwynne Monahan is not a lawyer, but she knows what it’s like to lose a job. So the Twitter thread she spotted in May about lawyer layoffs caught her attention. “Wondering why laid-off attorneys don’t band together and start a new law firm,” a lawyer tweeted.

Attorney Victoria Pynchon asked if someone would use Ning, the social networking platform, to start a site where lawyers could help one another weather the downturn. Monahan jumped on the idea because she wanted to learn Ning. Ten minutes later, she tweeted, “@vpynchon asked if anyone wanted to create a Ning site, and so I did, and here it is: Lawyer Connection.”

And so was born one of the newest of the networking sites that are proliferating in a de­pressed economy amid a social media explosion. Within a month, Lawyer Connection had grown to 49 members (and counting) from California to New York. They range from unemployed to established attorneys of all stripes, including lawyers with nontraditional careers. The site features job leads, events, members’ blog feeds and discussion forums. Pynchon was actively recruiting experienced attorneys for a mentoring forum in June. “Now is the time for every­body to be supporting everybody else,” says Pynchon, a mediator of complex commercial litigation for ADR Services Inc. in Los Angeles and author of the Settle It Now Negotiation Blog.

“The idea of putting together seasoned attorneys with young people who are experiencing the harshness of failure for the first time in their lives is an idea whose time has come,” she adds. “Especially lawyers who went to good schools and expected to have careers in big firms. I don’t think they’ve seen themselves as someone who may need to hang out a shingle and practice law in a downturn.”

Continue reading here (scroll down to second article)

Come join us at Lawyer Connectionwhether you are a seasoned legal professional with decades of experience to share with your younger colleagues or you are a young, new or laid off attorney searching for guidance.

The network is what we make of it together.

I reviewed with some dismay the July 12, 2009, post titled Mediators' Proposals: the Good, the Bad and the Ugly, which seemed to endorse counsel who deceive the mediator to push the negotiations to a mediator’s proposal./*  I primarily litigate, but I devote a small percentage of my practice to serving as a mediator. 

A mediator’s proposal can be a very effective tool for mediators and the parties to promote settlement when the negotiations have honestly and appropriately reached an impasse.  The chance of the proposal generating a settlement, however, will increase greatly if the parties and attorneys respect the mediator and his or her opinion.

If the parties and attorneys respect the mediator, then they will respect the proposal, making it more likely that they will accept the proposal.  Without respect, there is nothing more than a gambler’s hope that the proposal will be in an acceptable range.  Further, if the lack of respect is mutual, then there is a risk that the mediator will subconsciously tilt the proposal in favor of the other side, which certainly will not promote settlement.

Every mediation has some elements of a game, but while the gamesmanship can involve concealment and even some sleight of hand, it should not devolve into deception.  One example that has worked well where there is complete trust and respect between the mediator and at least one side is for that side to divulge the final offer near the outset of the session with the understanding that the mediator will have some latitude to dole out the total authority in bits and pieces with the hope of settling at or near that final number. 

This is deceptive because the mediator is telling the other side that obtaining each “concession” is a hard fought battle, but it eliminates the risk of moving too quickly to the end game against an opponent who does not care what the opening number might be, but only wants to halve it (or double it) before the end of the day.  This is deceptive because each private session with the side who divulged his or her final number creates an opportunity to discuss future vacations and how the kids are doing.  If, however, the goal is to reach a settlement that works for all concerned and gives all parties a sense of accomplishment, then it is a fine tactic that promotes efficient negotiations, likely avoids altogether the need for a mediator’s proposal, and minimizes the fees of the attorneys and the mediator.

Candor and respect towards a mediator has an additional benefit that may not be of advantage to the immediate clients, but will promote productive future mediations on other matters.  If I can tell my client that a particular mediator is good, that I respect that person, and will seriously consider everything that that person says, then the client is more likely to listen to what could be bad news about the case.  This level of respect is rarely earned in the first session with a new mediator, but only after several mediations.  Without candor and respect, the attorneys and parties just want to “win” without realizing that the cost of “victory” may be dearer than the settlement obtained through a positive and respectful mediation.

_________________

*  Editor's comment:  I did not mean to endorse duplicity on the part of counsel or the gaming of a mediator for the purpose of obtaining a favorable mediation proposal.  I only meant to emphasize the fact that many attorneys can and do "game" the system, including as much manipulation of the mediator herself in the process.

--    Gregory Nerland
    Akawie & LaPietra
    1981 N. Broadway, #320
    Walnut Creek, CA  94596
 

My generation and perhaps every generation that followed was weaned on a distrust of words.  But a nation of laws is premised on words, some of which have taken us more than 200 years to put into action  -- that nation "conceived in liberty and dedicated to the proposition that all men are created equal."

Negotiators use words too, when they aren't flailing their arms, packing their briefcases in a show of temper or scowling in disapproval at their bargaining partners' intractability.  In fact, using our words is the great achievement of civilization to date:  forming and professing beliefs, organizing support or opposition, voting, and, in the justice business -- making opening statements, eliciting testimony, submitting documentary evidence, making closing arguments, seeking jury instructions and, at long last, receiving the written verdict of the justice system's intestinal tract -- the decision of 12 men and women good and true.

I believed in words from the first, sitting on my grandmother's capacious lap, following her finger under each printed rune, hearing Genesis from the King James version and attending to Longfellow's tear-jerking narrative poem Evangeline from the safety of her presence, the sound of her voice, the lamplight that encircled us, the arms that held me firm.   From my beginning, words meant love, which is likely the reason I am a writer, a poet, the editor of a literary journal, a literature major and later a law student and lawyer, for whom words had become not simply the way to express human connection, but a means of exercising power and resolving conflict if not precisely ever looking for or ascertaining the "truth," trembling naked in its hiding place.  We still need poetry for that -- the truth. 

I lost poetry in law school and later in practice - the pleasure of words for their own sake and in the service of love - the love spoken in word-breath to a child on her grandmother's lap. In law school and later, they'd become implements of analysis and then weapons to bring my adversaries to their knees.  It rarely worked like that -- victory -- righteous and right, but still I soldiered on.

I found the poetry inside of me again, my grandmother's heritage, in UCLA's creative writing extension program where I first studied under one of the most lyrical memoirists of our time - Bernard Cooper.  He reassured me that my words were still good after two decades of legal practice.  I could justly take pride in my sentences and paragraphs and the courage it takes to express one's own idiosyncratic  imagination.  But Bernard warned me that "anyone can write a great paragraph.  Putting those paragraphs together like Frankenstein working on the monster of his novel or memoir, that's a quite different discipline, with the emphasis on work, not talent."

So I wrote a little, published here and there and finally decided to simply publish the literature of others here.  I did not, finally possess the lonely discipline of the long-distance writer.  But it is enough to have added a few words to the river of poetry Mary Oliver says we are swimming in the minute we open a collection and begin to read the broken lines within. 

Below are the words that open Evangeline.  The closing lines of  this long, sentimental poem, brought tears to my grandmother's eyes - shocking! for one who had never seen her cry before and never would again, even as she lay thin and wasting in a nursing home, bone cancer taking her away from me far too soon.  But she left me this (and lives on in me because of its expression). 

THIS is the forest primeval. The murmuring pines and the hemlocks,

Bearded with moss, and in garments green, indistinct in the twilight

Stand like Druids of eld, with voices sad and prophetic

Stand like harpers hoar, with beards that rest on their bosoms.

AS Donald Hall, that famous contemporary poet, reminds us, when we read poetry aloud, we are physically expressing the pleasure of being human.

Poems, Hall tells us, (.pdf)

are pleasure first, bodily pleasure, a deliciousness of the senses. Mostly, poems end by saying something (even the unsayable) but they start as the body's joy, like making love. Sometimes a poem remains a small pleasing sensation:

Bah, bah, black sheep,
Have you any wool?
Yes, sir. Yes, sir.
Three bags full.

Maybe these words once referred to taxation, but we hear them now without being
tempted to paraphrase. Instead,we chew on them, taste them, and dance to them.
This banquet or ballet starts in the crib, before arithmetic or thought. Everyone
was once an infant who took mouth pleasure in gurgle and shriek, accompanied
by muscle joy as our small limbs clenched and unclenched.

Poetry starts from the crib; a thousand years later, John Donne makes lovers into compasses, T. S. Eliot contemplates the still point of the turning world, and Elizabeth Bishop remembers sitting as a child in the dentist's waiting room; but if these poets did not retain the mouth pleasure of a baby's autistic utterance—pleasure in vowels on the tongue, pleasure in changes of volume and pause: Bah, bah, black sheep—we would not hear their meditations and urgencies.

The body  is poetry's door; the sounds of words—throbbing in legs and arms; rich in the mouth—let us into the house.

When we speak to one another - when we listen - when we attend to the words and their feeling - we are moved in the direction of another, toward the collective good.  It just works like that.  We are infants first, disappointed and suspicious adults only later.  I do not advocate letting down our guard in the presence of those who seek to deceive us.  I recommend only being open to those we know are speaking the truth of our species, the truth we can feel when another human being puts aside the words of discord and blame, stops making "demands" and speaks in the voice of another creature on the planet making meaning:  a voice that will always urge us toward unity, liberty, generosity, accountability, forgiveness and reconciliation.

Those are the words that set men and women free.

Here's an exploration of what a mutual aid group is from the viewpoint of a social worker -- which speaks to me because I lived through my first husband's MSW in Social Work studies before he lived through my Law School experience (an eventual relationship-killer). 

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From Andrew Cicchetti's Mutual Aid Based Group Work blog:

Mutual aid as group work technology can be understood as an exchange of help wherein the group member is both the provider as well as the recipient of help in service of achieving common group and individual goals (Borkman, 1999; Gitterman, 2006; Lieberman, 1983; Northen & Kurland, 2001; Schwartz, 1961; Shulman, 2006, Steinberg, 2004; Toseland & Siporin, 1986). The rationale for cultivating mutual aid in the group encounter is premised on mutual aid's resonance with humanistic values (Glassman, 2002) and the following propositions: 1) members have strengths, opinions, perspectives, information, and experiences that can be drawn upon to help others in the group; 2) helping others helps the helper, a concept known as the helper-therapy principle (Reissman, 1965) which has been empirically validated (Roberts et al, 1999); and 3) some types of help, such as confrontation, are better received when emanating from a peer rather than the worker (Shulman, 2006). Mutual aid transactions that occur amongst and between members stimulate cognitive and behavioral processes and yield therapeutic, supportive and empowering benefits for the members (Breton, 1990;Northen & Kurland, 2001; Shulman, 1986, 2006).

Obviously, we're not pursuing the therapeutic benefits of a mutual aid society as social worker Cicchetti is.  Having been a member of such a group (a community-based women's credit union in the early 1970's for instance) I can say that the experience is not only economically, but also personally, enriching.

Let's not wait for the economy to improve.  Let's start improving it TODAY.  We are the change we want to see in the world. 

JOIN US!!

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.

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.  

1. how do you negotiate with a sociopath?
2. how do you negotiate with people who are:
   
   1. evil
   2. dishonest; or
   3. 100% irremediable jerks
3. how do you negotiate when you are powerless (or simply weak)

Whenever someone asks me about negotiating evil, I think of Ken Cloke's brilliant book Conflict Revolution: Mediating Evil, War, Injustice and Terrorism – How Mediators Can Help Save the Planet (my review of that book here).  Some time ago, when I had the bright but failed idea of launching an online conflict resolution journal, Ken kindly let me publish his article Mediating Evil, War and Terrorism the Politics of Conflict, some of which I quote below.  I like the way Ken framed the problem in his earlier book, Mediating Dangerously, as follows:

For those who live under fascism, oppression, or tyranny, or face a fierce, unprincipled adversary, or are afraid even to exercise their own freedom, it may become necessary to engage in conflict, resist oppression, reject settlement, and raise their voices against the silence of acquiescence . . . . [T]here are limits to the desirability of ending [certain conflicts] prematurely, without a fair and honest examination of the underlying issues, and without the full participation of people whose lives will be irrevocably damaged by them . . . Collaboration implies mutuality and partnership, and even compromise involves give and take, but fascism merely [takes] giving nothing in return.

Those who recall the free speech movement on college campuses in the mid-sixties (most notably at U.C. Berkeley) will remember at least some of the words spoken by FSM leader Mario Savio:

There comes a time when the operation of the machine becomes so odious, makes you so sick at heart, that you can't take part, you can't even passively take part, and you've got to put your bodies upon the gears and upon the wheels, upon all the apparatus, and you've got to make it stop. And you've got to indicate to the people who run it, the people who own it, that unless you're free the machine will be prevented from working at all.

One might criticize this rhetoric as being a bit overblown for the context in which the students were operating but they were young; had been taught in public schools to believe in and cherish freedom; and, were stunned to find that their on-campus speech was regulated, controlled, and, punished.  Savio's voice is the voice of all peoples who find their freedom suppressed or denied altogether.

So what do we, mediators and interest-based negotiators, do when confronted with tyranny?  Cloke's partial response (see full article here) is as follows:

Genuine, lasting peace is impossible in the absence of justice. Where injustice prevails, peace becomes merely a way of masking and compounding prior crimes, impeding necessary changes, and rationalizing injustices. As the Trappist monk Thomas Merton presciently observed:

  To some men peace merely means the liberty to exploit other people without fear of retaliation or interference. To others peace means the freedom to rob others without interruption. To still others it means the leisure to devour the goods of the earth without being compelled to interrupt their pleasures to feed those whom their greed is starving. And to practically everybody peace simply means the absence of any physical violence that might cast a shadow over lives devoted to the satisfaction of their animal appetites for comfort and leisure.... [T]heir idea of peace was only another form of war.

When millions lack the essentials of life, peace becomes a sanction for continued suffering, and compromise a front for capitulation, passivity, and acceptance of injustice. This led anthropologist Laura Nader to criticize mediation for its willingness to “trade justice for harmony.”

True peace requires justice and a dedication to satisfying basic human needs, otherwise it is merely the self-interest of the satisfied, the ruling clique, the oppressors, the victors in search of further spoils.

For peace to be achieved in the Middle East or elsewhere, it is essential that we neither trivialize conflict nor become stuck in the language of good and evil, but work collaboratively and compassionately to redress the underlying injustices and pain each side caused the other. Ultimately, this means sharing power and resources, advantages and disadvantages, successes and failures, and satisfying everyone’s legitimate interests. It means collaborating and making decisions together. It means giving up being right and assuming others are wrong. It means taking the time to work through our differences, and making our opponents' interests our own.

In helping to make these shifts and move from Apartheid to integration, the South African Truth and Reconciliation Commission found that for people to reach forgiveness, they needed to exchange personal stories of anger, fear, pain, jealousy, guilt, grief, and shame; to empathize, recognize, and acknowledge each other’s interests; to engage in open, honest dialogue; to reorient themselves to the future; to participate in rituals of collective grief that released their pain and loss; and to mourn those who died because neither side had the wisdom or courage to apologize for their assumptions of evil, or the evil they caused their opponents and themselves.

At the same time, they also needed to improve the daily lives of those who suffered and were treated unjustly under apartheid. Where shanty towns coexist with country clubs, peace cannot be lasting or secure. Where some go hungry while others are well-fed, terror and violence are nourished. In the end, it comes down to a question of sharing wealth and power, realizing that we are all one family, and that an injury to one is genuinely an injury to all.

Making justice an integral part of conflict resolution and the search for peaceful solutions means not merely settling conflicts, but resolving, transforming, and transcending them by turning them into levers of social dialogue and learning, catalysts of community and collaboration, and commitments to political, economic, and social change. By failing to take these additional remedial steps, we make justice secondary to peace, undermine both, guarantee the continuation of our conflicts, and prepare the way for more to come.

By the way, tomorrow is Ken's birthday.  HAPPY BIRTHDAY KEN!!!