As much as we'd like objectivity on the front page of our morning newspaper, all story telling, particularly narratives framed by headlines, direct our attention to some "facts" more than others.
The frame tends to suggest that the reader respond favorably or unfavorably to the subject of the tale. That's why framing and re-framing one's negotiation proposals are such critical bargaining skills. We want to pre-dispose our negotiation partner to favorably respond.
Before Bombs, a Battered American Dream, suggests a multitude of causal factors leading to an inexplicably heinous act of terrorism - planting and then triggering a pressure-cooker IED among the Boston Marathon spectators who had gathered at the finish line to celebrate human commitment, endurance, and tenacity.
Among those factors, the Times notes Tsarnaev's "embrace of Islam" which had grown "more intense" before the suspicious trip to Dagestan, a "religious identification [that] grew fiercer" as he "abandon[ed] his once avid pursuit of the American dream."
Family dysfunction also looms large in the Times narrative. Like many other mass murderers, Tsaranev's path to destruction was preceded by isolation and separation from his family. His mother returned to Russia in the face of felony shoplifting charges, following in her husband's footsteps. His beloved brother had left for college. These separations mimicked the more desparate ones in the family's history marked by war and hardship.
We’re celebrating Mothers Day by posting Blawg Review #263 at the She Negotiates Blogfor one obvious and some not so obvious reasons. The obvious reason is the word “She.” The not-so-obvious reasons are: (1) Mother’s Day was a peace and reconciliation movement before it was a holiday; and, (2) peace exists only when we have the political will to seek and the negotiation tools achieve the resolution of conflict.
Conflict is in the house. The evil fairy surrounded the castle with deadly thorns. The "good" fairy put everyone in the castle to sleep. Will you be the valiant Prince in your own dispute story? Or are you the prize? The beautiful one who would prefer to remain unconscious rather than address the great battle between good and evil represented here? Did you hire a lawyer to resolve your dispute for you? Will he make it to the castle in time? Or will he spend the bulk of his energy erecting more obstacles to prevent your adversary from reaching you. By the time both champions reach the castle, will everyone be too bloodied and broke to rise from your bed and put your house back in order?
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.
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
I spent my day Saturday at the annual convention of the Southern California Mediation Association (kudos to attorney-mediator Phyllis Pollack for a fabulous conference!) Ken Cloke spoke eloquently on conflict systems and what mediators can do to "save the planet." I took his presentation (characteristically and densely verbal) and added images to break up the text hoping that Ken won't mind supplementing the English language with pictures).
I highly recommend Ken's presentation (which was incredibly eloquent at the conference and not limited by the hard bruising text against text can do) as well as, of course, his brilliant and visionary book - Conflict Revolution.
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 imagined grandchildren,  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)  and play many of the same games 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) 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. 
Law, politics, society and culture also exist in the 200-year present of conflict resolution. 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.
My grandparents', parents' and step-children's 20th Century was dominated by genocide 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. 
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.  Most critical of these to conflict escalation and avoidance is our “fight-flight” mechanism – the amygdala. 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.
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.”
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.
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 lawyerswas 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.
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. >
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.
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. 
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").
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.
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.
 Earlier scientific theory posited that each human embryo (see Embryo Mix-Up at the Proud Parenting Blog) passes through a progression of abbreviated stages that resemble the main evolutionary stages of its ancestors, i.e., that the fertilized egg starts as a single cell (just like our first living evolutionary ancestor); as the egg repeatedly divides it develops into an embryo with a segmented arrangement (the “worm” stage); these segments develop into vertebrae, muscles and something that sort of looks like gills (the “fish” stage); limb buds develop with paddle-like hands and feet, and there appears to be a “tail” (the “amphibian” stage); and, by the eighth week of development, most organs are nearly complete, the limbs develop fingers and toes, and the “tail” disappears (the human stage). It turns out that this one-to-one correlation was too simplistic, but it remains safe to say that our biological development still passes through several stages that “recapitulate” the evolution of our species.
 The amygdala is a region of the brain that permits the formation and storage of memories associated with emotional events. It permits us to “read” the emotional responses of our fellows and is thought to facilitated our ability to form relationships and live and work in groups. It is also the source of our “fight or flight” response to danger.
Studies show that some mirror neurons fire when a person reaches for a glass or watches someone else reach for a glass; others fire when the person puts the glass down and still others fire when the person reaches for a toothbrush and so on. They respond when someone kicks a ball, sees a ball being kicked, hears a ball being kicked and says or hears the word "kick."
“When you see me perform an action - such as picking up a baseball - you automatically simulate the action in your own brain,” said Dr. Marco Iacoboni, a neuroscientist at the University of California, Los Angeles, who studies mirror neurons. ”Circuits in your brain, which we do not yet entirely understand, inhibit you from moving while you simulate,” he said. ”But you understand my action because you have in your brain a template for that action based on your own movements. “
 Looking toward the future, the Neuroethics and the Law Blog predicts that in the “experiential future, we will have better technologies to measure physical pain, pain relief, and emotional distress. These technologies should not only change tort law and related compensation schemes but should also change our assessments of criminal blameworthiness and punishment severity” here.
The adversarial system of medical negligence fails to satisfy the main aims of tort law, those being equitable compensation of plaintiffs, correction of mistakes and deterrence of negligence. Instead doctors experience litigation as a punishment and, in order to avoid exposure to the system, have resorted not to corrective or educational measures but to defensive medicine, a practice which the evidence indicates both decreases patient autonomy and increases iatrogenic injury.
(Iatrogenic, by the way, is a fancy term for “we have know idea whatsoever what the source of this ailment is). Chris is looking for comments so run on over there if you’ve been thinking about medical malpractice litigation during the marathon American health care debates.
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'sTwelve Ways to Make Your Mediator Work Harder for You.
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.
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.
This opinion -- Palmer v. State Farm - is wrong on so many levels that it's no surprise the appellate court ordered that it not be published. The opinion therefore controls only the fate of the parties to the case and cannot be cited as authority. The no-publication order does not, however, diminish my distress about the mediator's decision to file a declaration in support of State Farm's motion to enforce a formal settlement agreement that its insured refused to sign as contrary to the handwritten agreement drafted by the mediator during the mediation proceedings.
The appellate court affirmed the trial court's enforcement of the post-mediation settlement agreement based, in large part, on the mediator's sworn declaration that State Farm's formal agreement accurately represented the one signed by the parties during the mediation -- a matter that, if true, should have appeared on the face of both documents. See HANDWRITTEN SETTLEMENT SHOWS PARTIES' INTENT, CALIF. COURT FINDS
for a summary of the Court's decision.
What's wrong with this opinion? Let me count the ways.
In California, a mediator is presumed incompetent to testify under Evidence Code section 703.5. A good thing, too, since mediators are bound by the confidentiality provisions contained in Evidence Code section 1115 et seq. /1
Mediators are also required to be -- ahem -- NEUTRAL. Why was this mediator providing a sworn declaration to support State Farm's case against the policy holder? And does his drafting of the handwritten agreement at the mediation give him a personal or professional stake in its enforcement, thus further undermining his neutrality.
I'm not going to mince words about this. I believe it falls below the standard of care for a mediator to voluntarily provide a Declaration to the Court concerning anything anyone said during the mediation, including his opinion about what the parties an meant to say when they entered into a settlement agreement (an intuition that could only be based upon confidential communications). I also believe that its below the standard of care for a mediator to voluntarily provide a declaration to one party in support of a motion against another party to the mediation.The fact that the mediator provided a declaration in support of State Farm (and not the policyholder) is even more troubling when you consider the fact that insurance carriers are repeat players in ADR circles and hence a better source of business for mediators than single-player plaintiffs.
On the confidentiality issue, it is notable that the mediator-drafted agreement stipulated that:
The parties waive the provisions of [the] California Evidence Code relating to mediation confidentiality, rendering this agreement enforceable pursuant to . . . section 664.6.”(Italics added.)
The language used suggests to me that the purpose of the clause was to render the written agreement admissible in evidence to prove its existence -- "waive . . . mediation confidentiality [to] render this agreement enforceable." I know it doesn't say that. It says that the parties are waiving confidentiality PERIOD. It would surprise me if that's what the parties meant to do, i.e., open up to judicial scrutiny every communication uttered in the course of the mediation - in separate caucus and joint session. Would a mediator be liable for an ambiguously drafted agreement that leads to the loss of mediation confidentiality for the parties? I don't have an answer to the question but mediators might want to ask themselves whether they should be drafting the parties' agreements if they want their malpractice premiums to remain as low as they are today.
Powerlessness and silence go together; one of the first efforts made in any totalitarian takeover is to suppress the writers, the singers, the journalists, those who are the collective voice. - Margaret Atwood
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.
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 wellsharea mutually dependent relationship.
It is also worthwhile tonote that power sometimes lies in the eye of the beholder. A party’s decisionsmay 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.
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.
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."
Someone recently told me that you can't argue with a story, only with a position or another argument. That's why narrative is such a powerful impasse breaker and why asking diagnostic questions, which elicit stories rather than arguments, so often bridges gaps between the parties that yawn as wide as the Grand Canyon That's why I'm listing Asking Diagnostic Questions as the second most powerful means of breaking negotiation impasses.
Diagnostic questions are those that reveal your bargaining partners’ desires, fears, preferences and needs. Though your bargaining partner will never reveal its true bottom line, it may well acknowledge that it places a far lesser or higher value on the subject of litigation – real property, for instance -- than you do. And though your adversary will never acknowledge the rectitude, nor even often the good faith, of your legal or factual position, she may easily disclose that she needs the money she seeks to infuse capital into her business, to pay back debts, to put her children through college or to acquire much-needed catastrophic health insurance.
You may also find that your bargaining partner is willing to disclose whether he is risk averse or risk courting and whether his predictions for the future of an enterprise – yours perhaps – are more optimistic or pessimistic than your own. Once you learn what your opponent wants, needs and prefers, you can commence – or reconvene – a negotiation that is more tailored to your adversary’s desires; one that will increase the number and value of items both of you have to exchange with one another.
Just a few examples from my own practice:
a case concerning the repayment of over-paid health insurance benefits to physicians settled at a number the defendant said she would never pay when the Plaintiff revealed the existence of an agreement between it and a board member that no one else who was overpaid would get a better deal than he had.
a case concerning the dissolution of a partnership settled when I asked Partner A what his valuation of the enterprise's inventory was in a case to dissolve the partnership. Because he placed a far lower value on that inventory than did Partner B, Partner B (who planned to continue in the import-export business) was happy to accept A's valuation, offering to purchase it from him on the spot (and agreeing to a lower valuation of the good will of the partnership business than he'd earlier been prepared to acknowledge).
a property damage case settled when I asked the Plaintiff, in separate caucus, what he planned to do with the proceeds of the settlement. The defendant, who "knew someone in the business," was able to obtain the item Plaintiff wanted at a lower cost than Plaintiff could have procured it, bridging the gap between the parties' negotiating positions.
a patent infringement case settled when I asked the Plaintiffs what they were afraid would happen if they agreed to give the alleged infringer a license to manufacture and market the allegedly infringing product. Plaintiffs said they believed the market would "get really hot" in three years time, allowing the infringer to make a killing on their technology. When I asked the defendant what he thought about Plaintiffs' suspicions, he said he planned to phase the product out of his product line within three years. I suggested that the defendant agree to a graduated royalty which would require him to pay an unusually high percentage of its sales during the years Plaintiffs were convinced he'd be selling "their" product and at a time when Defendant swore he would not.
In a lemon law case, I asked the Plaintiffs to tell the mobile home manufacturer to explain why they'd purchased the $200,000 vehicle in the first place. Plaintiff's answer so undermined the defendant's "buyer's remorse" theory of the case that the matter settled quickly thereafter.
I asked a perplexed defendant why the Plaintiff had chosen to sue it out of the entire universe of Plaintiff's competitors. Defendant quickly responded: "because we have better people, more talent and potentially better technology. Plaintiff wants to remove us from the market" I thereafter brokered a deal involving a joint venture between the two companies using company A's talent and company B's far larger distribution network.
As you can see from these few examples, diagnostic questions break impasse on "pure money" cases, as well as in those where the parties more or less obviously have something other than money to trade. Once again, it is critical to remember that no one wants money but everyone wants something that money can buy. Ask the ultimate reporter question about your negotiating partner's fears, desires, wants and needs -- WHY? -- and you will see impasse dissolving before your very eyes.
With apologies to "staying on topic" purists, I give my Lit Major readers the literary passage that comes to mind whenever I think too long about asking questions:
try to love the questions themselves as if they were locked rooms or books written in a very foreign language. Don't search for the answers, which could not be given to you now, because you would not be able to live them. And the point is to live everything. Live the questions now. Perhaps then, someday far in the future, you will gradually, without even noticing it, live your way into the answer.
I was reading a great article in the New York Times this morning about "blue sky" transparent diplomacy in light of Obama's Cairo speech and was intrigued by the phrase "constructive ambiguity" in international diplomacy.
One is, don’t tell lies. The other is, you can say more in private than you can in public, but they have to be consistent.
This brought to mind not simply the one or two memorable instances in which I caught mediators in deception during my litigation practice, but a recent experience communicated to me by a friend about one of those $15/K a day mediators. I ask for the full 411 on these mediations because I'm intrigued by the value $15K/day buys. Here's the story.
My friend called me during a recent mediation to tell me that his mediator had just left the room after leaving this message with his "team."
Your opponents just asked me to make a mediator's proposal of $X.Y million.
Assuming that this disclosure was not a breach of confidence, I had to ask myself whether it was simply a (manipulative) hypothetical "offer" approved by the other side in form and content that the other side could safely disown. In either case, I felt it was (a) unethical - i.e., a breach of confidence; or, (b) partial (not neutral, which is also unethical).
Someone could likely talk me down off the ledge on this one but I'm having trouble seeing it as permissible mediator behavior. Assuming it wasn't a breach of confidence, it raises the question whose ox is being gored here? How much manipulation by the mediator is acceptable - is ANY manipulation acceptable and if the mediator is manipulating, is it POSSIBLE for him/her to do so without also being PARTIAL?
I have "caught" mediators in deception during my practice (and have not been quiet about my experience). In case mediators do not recall legal practice, let me remind them that counsel talk to one another and despite our differences usually trust one another more than we trust our mediator. If you lie to one of us or disclose something you shouldn't be disclosing, don't let the separate caucuses in which the mediation is taking place mislead you about the state of "play" in the litigation. If the mediator is dishonest, will be found out.
If we do not hold ourselves to the absolute HIGHEST POSSIBLE ethical standards, our credibility, and our careers, are seriously at risk.
NB: All names and situations altered to protect my own and my "opponents'" anonymity and to honor the confidential nature of the mediation.
This experience is going to take a while to digest. First let me tell you what was GREAT about my recent mediation experience.
I hired an attorney who was a full-time, highly experienced mediator.
Because the mediation concerned a long-term contractual relationship with an emotional breach and immediate cessation of business, I choose a community mediator because I wanted someone skilled not simply in pressing the parties for compromise, but in "transformative" (whole dispute) mediation (about which more later).
With two talented community co-mediators, I experienced the freedom of expression in joint session that confidentiality provides.
I learned how much courage it takes for all parties to face one another and talk about their own part in causing the dispute-creating series of events.
I experienced the nearly invisible but critical support and encouragement provided by an "audience" (lawyers, mediators, insurance representatives) "schooled" "on the spot" in respectful listening.
Though the unguarded nature of my conflict-narrative and the pain caused by listening to my former partners' account initially felt like walking a tight rope without a net, as my story proceeded without interruption or apparent contempt from my "opponents" a great sense of comfort and freedom came over me. I'm an old hand myself at creating an atmosphere of hope and safety so I didn't think that "trick" would work on me. I found, however, that the mediators' ability to assure me of the confidential nature of the process and the benefits of frank discussion, enabled me to tell my truth, in as multi-dimensional, textured and admittedly fallible manner possible. It amazed me -- as the client -- that so subtle shift in the atmosphere of the room would permit me to say, in all sincerity, that "though our experiences of the same series of events diverge wildly, I don't believe either of us is lying. We've simply strung the facts together in a different way from opposing points of view."
The opportunity the co-mediators gave me to apologize for "my part in the dispute" while still asserting the strength of my "position" that I would not be blackmailed, bullied or defeated, left me ready to settle or proceed without feelings of fear, shame, or anger.
To the extent I'll be able to tell this story (and I'm not certain I'll be able to until many years after its final resolution) the readers of this blog will be the first to know.
It's not magic. It does, however, rest upon the mediators' wholehearted belief that human beings desire reconciliation as much or more than they desire money or the "stuff" that money provides. It is premised on the elementary principle that the disputants would rather be happy than right.
Best advice to arise out of this session: when you're mediating, hire an attorney-mediator to represent you just as you'd hire an insurance attorney if you had a dispute with your carrier. One of the smartest decisions I've ever made.
Good resources for transformative mediation practice:
FORUM (FORUM & FOCUS) • Jan. 08, 2009 Every Case Is a Winding Road
By Victoria Pynchon
I have a confession to make. I am about to become embroiled in litigation. Though I preach the religion of negotiated resolution, I've nevertheless hired litigation counsel to assert my rights and pursue my remedies.
This is one of those moments when the rubber of our ideology meets the road of personal circumstance, the moment we are called upon to decide to walk our talk or take the more familiar road.
For more than 30 years - first as paralegal, then as a law student and finally as a commercial litigator - I'd been swimming in the waters of legal rights and remedies. The adversarial ocean had become so familiar a habitat that it rarely occurred to me that I was under the surface. One day toward the end of my first year of mediation practice, a much more experienced friend hooked me by the cheek and threw me on the deck of his ship, where I was gasping for air.
He'd asked me to co-mediate a will contest without the benefit on my clergy - lawyers with experience in the field. The "fish out of water" conversation that ensued went something like this:
Joe Mediator: "The family doesn't want to hire a lawyer. They just want to mediate."
Vickie: "But I know absolutely nothing about wills, trusts and estates. The parties need to talk to a lawyer first to learn their rights and remedies."
Joe: "You still don't get it, do you?"
Vickie: "Get what?"
Joe: "It's not about rights and remedies. It's about interests."
Vickie: "But how can they evaluate their interests without knowing their rights and remedies?"
Joe: "Because they're not interested in what the law says - they want to do what they believe is right for them as a family under the circumstances."
These people wanted to resolve a legal dispute without knowing their legal rights? Were they nuts? I understood "interests" - they were all the rage in ADR circles - the desires, fears and needs of the parties that drove them to take legal positions. Sometimes those interests were non-economic - the need for revenge, the desire to be personally accountable, the fear of failure, the hope for forgiveness and reconciliation. Others, though economic, could not be remedied by way of damages - better access to foreign markets, for instance, or wider distribution chains; the acquisition of better manufacturing processes; or, the retention of executives with "pull" in Washington. But all of those matters were secondary to legal rights and remedies, weren't they? You had to know what your rights were.
"Twitter posts are like any other electronically stored information," explained Douglas E. Winter, a partner at Bryan Cave in Washington, D.C. and head of the firm's Electronic Discovery unit. "They are discoverable and should therefore be approached with all appropriate caution."The increasing popularity of Twitter has made electronic discovery even more complicated.
Litigators! Remember, you and your opponent(s) have a choice. It's not only in arbitration that you can make your own law, but by way of stipulated case management orders cooperatively crafted with an eye toward relative cost and likely benefit (ask me for a template!)
I don't need to tell you that clients are cutting back in 2009. The litigation practice that thrives will be the most efficient and effective dispute resolution vehicle on the road.
And now, for your moment of zen - Charlie Dickens.
Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means. The parties to it understand it least, but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce without knowing how or why; whole families have inherited legendary hatreds with the suit. The little plaintiff or defendant who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled has grown up, possessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into mothers and grandmothers; a long procession of Chancellors has come in and gone out; the legion of bills in the suit have been transformed into mere bills of mortality; there are not three Jarndyces left upon the earth perhaps since old Tom Jarndyce in despair blew his brains out at a coffee-house in Chancery Lane; but Jarndyce and Jarndyce still drags its dreary length before the court, perennially hopeless.
Jarndyce and Jarndyce has passed into a joke. That is the only good that has ever come of it. It has been death to many, but it is a joke in the profession. Every master in Chancery has had a reference out of it. Every Chancellor was "in it," for somebody or other, when he was counsel at the bar. Good things have been said about it by blue-nosed, bulbous-shoed old benchers in select port- wine committee after dinner in hall. Articled clerks have been in the habit of fleshing their legal wit upon it. The last Lord Chancellor handled it neatly, when, correcting Mr. Blowers, the eminent silk gown who said that such a thing might happen when the sky rained potatoes, he observed, "or when we get through Jarndyce and Jarndyce, Mr. Blowers"--a pleasantry that particularly tickled the maces, bags, and purses.
How many people out of the suit Jarndyce and Jarndyce has stretched forth its unwholesome hand to spoil and corrupt would be a very wide question. From the master upon whose impaling files reams of dusty warrants in Jarndyce and Jarndyce have grimly writhed into many shapes, down to the copying-clerk in the Six Clerks' Office who has copied his tens of thousands of Chancery folio-pages under that eternal heading, no man's nature has been made better by it. In trickery, evasion, procrastination, spoliation, botheration, under false pretences of all sorts, there are influences that can never come to good. The very solicitors' boys who have kept the wretched suitors at bay, by protesting time out of mind that Mr. Chizzle, Mizzle, or otherwise was particularly engaged and had appointments until dinner, may have got an extra moral twist and shuffle into themselves out of Jarndyce and Jarndyce. The receiver in the cause has acquired a goodly sum of money by it but has acquired too a distrust of his own mother and a contempt for his own kind. Chizzle, Mizzle, and otherwise have lapsed into a habit of vaguely promising themselves that they will look into that outstanding little matter and see what can be done for Drizzle--who was not well used--when Jarndyce and Jarndyce shall be got out of the office. Shirking and sharking in all their many varieties have been sown broadcast by the ill-fated cause; and even those who have contemplated its history from the outermost circle of such evil have been insensibly tempted into a loose way of letting bad things alone to take their own bad course, and a loose belief that if the world go wrong it was in some off-hand manner never meant to go right.
Thus, in the midst of the mud and at the heart of the fog, sits the Lord High Chancellor in his High Court of Chancery.
Psychologists tell us that we are not only "meaning making" beings, but that we are all born conspiracy theorists. Viewing a field of nonsensical, unrelated data, we naturally begin to "connect the dots" - to organize the information into a coherent, and often compelling, narrative.
Pattern making or conspiracy theorizing is a human survival mechanism. We have never been the fastest or the biggest creatures on the planet. We don't have the sharpest teeth or blend in all that well with the scenery. Our soft, easily punctured skin is not covered with a protective shell. In a pinch, we can't take a running leap and fly away from land-bound carnivores who might make us their prey.
We are, however, the canniest creatures on the planet. To avoid the tiger who made lunch of our best comrade, we surveyed the scene and committed the pattern of otherwise unrelated details to memory. Five banyan trees, a narrow stream, and, a pile of rubble left by a recent avalanche means "there are tigers here."
Couple this with Fundamental Attribution Error and you have all of the ingredients necessary to blame inadvertently caused harm on elaborate conspiracies cooked up by our untrustworthy companions - Fundamental Attribution Error being our universal tendency to over-emphasize the role of others' negative personality traits to explain why harm befell us.
So it is with our legal adversaries. Once the channels of communication have been severed by the filing of a lawsuit, attorneys and clients alike begin to make up "what really happened" based on predispositions, scattered conversations, faulty memories and scraps of documentation.
Excerpt and video below but a reading of the entire post is a must for anyone looking for reasons to believe that we can reach one another across political, cultural, religious, social and economic divides.
The music develops by a process of answer and call. One of them plays a riff, or a short section of music, which is then followed by the other. They react to one another responding to and developing upon the riff they have just heard. By doing so they produce this amazing music in a memorable scene that is part of cinema folklore.
It represents a rare moment of optimism in what is an otherwise unbearably dark, oppressive film.
In the process of exchanging these riffs the protagonists are effectively collaborating. They are communicating. We can see their riffs as an analogy for talking. The riffs work where the spoken word does not. Drew and the Banjo boy clearly develop and enjoy a relationship while they are playing.
When I read accounts like the one below, I always ask myself, "what trespasses have I suffered that would permit me not to forgive?"
As she sat in her boyfriend’s car, a young Texas woman named Dee Dee Washington was shot and killed — an innocent bystander of a drug deal gone bad. For 14 years, the man who fired the shot, Ron Flowers, never admitted to killing her — not until, that is, Ron was admitted to the InnerChange Freedom Initiative® (IFI), the prison program launched by Prison Fellowship in Texas.
IFI applies principles of restorative justice by confronting offenders with the harm they have done to their victims. During one of IFI’s Victim Awareness sessions, Ron finally admitted that he did commit the murder, and he prayed that his victim’s family would forgive him. He wrote a letter to Dee Dee’s mother, Mrs. Anna Washington, expressing his repentance and deep remorse.
For her part, Mrs. Washington had written angry letters every year to the parole board, urging them to deny Ron parole. But when Ron confessed, Mrs. Washington felt an overwhelming conviction that she should meet the man who had killed her daughter.
Prison Fellowship staff carefully prepared Mrs. Washington and Ron for the meeting. Mrs. Washington finally could ask the questions that virtually every victim wants to ask: “Why did you do it?” “How did it happen?” Ron reassured her that her daughter was not involved in the drug deal. As Ron told her about the day that he killed her daughter, Mrs. Washington took his hands in hers and said, “I forgive you.”
I was in Houston for Ron’s graduation from IFI. As Ron crossed the stage to receive his diploma, Mrs. Washington rose from her seat and walked over to embrace Ron, the man who had murdered her daughter. She then told all of us in the audience, “This young man is my adopted son.”
People who are joined together by a dispute -- which includes everyone engaged in litigation and their attorneys -- are suffering more than most from a universal cognitive bias known as fundamental attribution error. FAE is one of the ways we explain our troubles to one another.
If we have suffered misfortune and are able to attribute our loss to the actions of another, we will universally attribute the series of events resulting in our loss to the bad intentions or evil character of the person we lawyers call "the defendant."
If we are the defendant, we will universally attribute the series of events resulting in the injured party's loss to the circumstances causing Plaintiff's harm (or, of course, to the Plaintiff's evil intentions).
The attribution of harm primarily to character or motive on the part of the victim and primarily to circumstance on the part of the accused is fundamental because it is hard-wired into the way we think. It is an attribution error because it attributes effect to a particular type of cause. It is error because all human activity and the inevitable conflicts that arise from it
"take[s] place not only between individuals, but in a context, culture and environment; surrounded by social, economic, and political forces; inside a group or organization; contained by a system and structure; among a diverse community of people at a particular moment in time and history; on a stage; against a backdrop; in a setting or milieu."
In other words, all events, conflicts, injuries, and benefits, all causes and effects are determined both by human actors and by circumstance. We are the cause and the effect of everything that surrounds us and everything that we surround.
How does this knowledge help us resolve our disputes and why does the way we tell our stories hold the key to resolving them? I could give you more explanations from the field of social psychology or I could simply tell you a story. In this case, I tell the story of a book of stories written by Malcolm Gladwell who writes about the stories we tell ourselves and one another about success. Gladwell, we're told, introduces us to Bill Gatesas
a young computer programmer from Seattle whose brilliance and ambition outshine the brilliance and ambition of the thousands of other young programmers. But then Gladwell takes us back to Seattle, and we discover that Gates’s high school happened to have a computer club when almost no other high schools did. He then lucked into the opportunity to use the computers at the University of Washington, for hours on end. By the time he turned 20, he had spent well more than 10,000 hours as a programmer.
At the end of this revisionist tale, Gladwell asks Gates himself how many other teenagers in the world had as much experience as he had by the early 1970s. “If there were 50 in the world, I’d be stunned,” Gates says. “I had a better exposure to software development at a young age than I think anyone did in that period of time, and all because of an incredibly lucky series of events.” Gates’s talent and drive were surely unusual. But Gladwell suggests that his opportunities may have been even more so.
Still active is Molski's case in the Eastern District of California which was recently permitted to go forward by the same Ninth Circuit Court of Appeal. As the Ninth Circuit explained the factual background of Mr. Molski's "serial litigation,"
[Plaintiff] Molski and his lawyer Thomas Frankovich (“Frankovich”) were purportedly in the business of tracking down public accommodations with ADA violations and extorting settlements out of them. On cross examination, Molski acknowledged that: he did not complain to any of [the defendant's] employees about his access problems; he had filed 374 similar ADA lawsuits as of October 8, 2004; Frankovich had filed 232 of the 374 lawsuits; even more lawsuits had been filed since that date; Molski and Frankovich averaged $4,000 for each case that settled; Molski did not pay any fees to Frankovich; Molski maintained no employment besides prosecuting ADA cases, despite his possession of a law degree; Molski’s projected annual income from settlements was $800,000;2 Molski executed blank verification forms for Frankovich to submit with responses to interrogatories; they had also filed lawsuits against two other restaurants owned by Cable’s; they had filed a lawsuit against a nearby restaurant; and Sarantschin obtained up to 95% of his income from Frankovich’s firm for performing investigations for ADA lawsuits.
Despite these apparently damning facts, in its 2007 affirmance of the vexatious litigant finding, the Ninth Circuit noted some of the reasons why Molski and his lawyer could not be condemned for their pursuit of serial ADA litigation. The ADA, noted the Court,
does not permit private plaintiffs to seek damages, and limits the relief they may seek to injunctions and attorneys’ fees. We recognize that the unavailability of damages reduces or removes the incentive for most disabled persons who are injured by inaccessible places of public accommodation to bring suit under the ADA. See Samuel R. Bagenstos, The Perversity of Limited Civil Rights Remedies: The Case of “Abusive” ADA Litigation, 54 U.C.L.A. L. Rev. 1, 5 (2006).
As a result, most ADA suits are brought by a small number of private plaintiffs who view themselves as champions of the disabled. District courts should not condemn such serial litigation as vexatious as a matter of course. See De Long, 912 F.2d at 1148 n.3. For the ADA to yield its promise of equal access for the disabled, it may indeed be necessary and desirable for committed individ- uals to bring serial litigation advancing the time when public accommodations will be compliant with the ADA.
But as important as this goal is to disabled individuals and to the public, serial litigation can become vexatious when, as here, a large number of nearly-identical complaints contain factual allegations that are contrived, exaggerated, and defy common sense. False or grossly exaggerated claims of injury, especially when made with the intent to coerce settlement, are at odds with our system of justice, and Molski’s history of litigation warrants the need for a pre-filing review of his claims. We acknowledge that Molski’s numerous suits were probably meritorious in part—many of the establishments he sued were likely not in compliance with the ADA.
On the other hand, the district court had ample basis to conclude that Molski trumped up his claims of injury. The district court could permissibly conclude that Molski used these lawsuits and their false and exaggerated allegations as a harassing device to extract cash settlements from the targeted defendants because of their noncompliance with the ADA. In light of these conflicting considerations and the relevant standard of review, we cannot say that the district court abused its discretion in declaring Molski a vexatious litigant and in imposing a pre-filing order against him.
In other words, when the legislature puts the enforcement of the ADA in the hands of disabled individuals without permitting them to recover damages, you can't blame private attorneys for working the market created for the private enforcement of public laws even if you can blame them for the manner in which the market is worked.
So what does this have to do with the settlement of litigation and, in particular ADA Litigation?
Because these accessibility cases always cost more to defend than to settle and because they're often indefensible, the rational business decision is simply to settle the darn things.
No one, however, wants to be extorted. And in the few ADA cases I've mediated, it's the principled refusal to pay money at the point of a gun that interferes with a business establishment's willingness to do the economically "rational" thing rather than, say, try it; appeal it to the Ninth Circuit; and, pursue it to the Supreme Court of the United States.
For those representing defendants who are feeling extorted, I offer my own (previously posted) ADA mediated settlement story below.
Some attorneys and mediators make light of the power of the apology ("it's only about money"). My education, training and experience consistently suggest otherwise.
Today, we learn a lesson in heart-felt apology from Larry Bodine for a post I hadn't seen, but which Bodine himself admits was anti-Semitic.
"Elevator Pitch" Post Deleted I sincerely apologize for the crude and offensive "Elevator Pitch" post I put online last week. In the clear light of morning, it is clear that it was anti-Semitic and repellent. I want to thank all the people who commented and called me about it; I listened and took what you said to heart.
If you read on here you'll see that Bodine did not simply say "I'm sorry." He removed the admittedly offensive post; disowned it; and, empathized with those who found it offensive by sharing his own family's WWII imprisonment story.
Words that heal include expressions of caring, concern, gratitude and affirmation. [I]n demolishing the walls of hostility, we must be prepared to examine our own pattern of spoken words and embrace the practice of ethical speech. . . .
Because Bodine himself admitted the anti-Semitic nature of his post, it falls into the category of an identity-based conflict with some or all of his readers. Though speaking from a religious or "faith-based" viewpoint, I always found Cox' prescriptions for resolution to work equally well from the point of view of secular humanism. As Cox explains:
A faith-based reconciliation framework applied to an identity-based conflict . . . consists of six basic elements: imparting moral vision, building bridges between estranged groups, a peace accord, advocacy for social justice, political forgiveness, and healing deep collective wounds.
More particularly, Cox recommends the following specific steps:
1. Sharing life journeys and building common ground.
2. Sharing perceptions of the conflict.
3. Engaging in problem solving.
4. Sharing how one has caused offense to the other.
5. Exploring each community's narrative of history and perception of historical wounds.
If you read Bodine's spontaneous apology, you will see all of these elements contained in it. This is not surprising because apology and attempts to re-build interpersonal bridges are hard-wired into us as toddlers. As I wrote in "Shame by Any Other Name,"
Shame . . . "acts as a powerful modulator of interpersonal relatedness and . . . ruptures the dynamic attachment bond between individuals." 30 When an individual has broken this bond, he wishes to recapture the relationship as it existed before it turned problematic. 31 Toddlers shamed by their mothers, for instance, naturally initiate appeals to repair the momentary break in the emotional bond resulting from the shame-inducing behavior. 32 This process is called self-righting. 33 It is natural and universal. 34 The shamed toddler reflexively looks up at and reaches toward his mother. 35 Even a preverbal child will spontaneously express this need to be held in an attempt to reaffirm both self and the ruptured relationship, to feel restored and secure. 36
A healthy and responsive mother accepts and assuages the child's painful feelings of shame, enabling the toddler to return to a normal emotional state, one in which love and trust are ascendant. 37 If the caregiver is "sensitive, responsive, and emotionally approachable," especially if she uses soothing sounds, gaze and touch, mother and child are "psychobiologically reattuned," the "interpersonal bridge" is rebuilt, the "attachment bond" is reconnected, and the experience of shame is regulated to a tolerable emotional state. 38
This may all seem excessively academic. The point is that we all trespass on the feelings of others; those feelings are critical to our connection with one another; our connection with one another is fundamental to our individual well-being and our survival as a species; the urge toward reconciliation is therefore natural, as are our desire to be forgiven, our spontaneous expressions of remorse, our attempt to explain and normalize our bad behavior (we are all fallible and we have all suffered harm) and our fellows' willingness to forgive, particularly when we bare ourselves and our histories to one another in the course of our effort to re-establish what joins us and to move beyond that which divides us.
And for that lesson, we owe thanks to Larry Bodine this evening.
What did I learn on the campaign trail? Other than breaking a lifetime phobia of the cold call I re-learned what I already knew from my mediation training and experience:
share stories (not opinions)
look for similarities rather than differences
listen with a compassionate heart
remember that behind every accusation and stated fear is a plea for help
create/expand common ground
be respectful of other people's point of view
assist people in making new or different decisions only when they ask for it
It was hot, really hot, trudging the blacktop separating dozens of apartment buildings in Henderson, Nevada the day before the election. We volunteers had lists of people who were probable Obama supporters, but many of whom wavered back and forth between McCain and Barack. If the person at the door said s/he was voting for McCain, I wished their candidate luck and moved on. We were getting supporters out to vote, not trying to convince McCain voters to change their minds.
(campaign headquarters, Henderson, Nevada)
I probably looked pretty dissheveled and blown out from the heat when, shortly after noon, I knocked on the door of Building 12. A gray-haired caucasion sixty-something woman in a faded house coat opened the door; an African-American boy around 10 clinging to her side.
"I just decided last night to vote for McCain," she said, but she didn't close the door. I was about to wish her candidate "good luck" when she said "my son keeps trying to talk me into voting for Obama but he scares me." She didn't appear to be asking me to go my way.
"Are you worried about national security," I asked, as the kid drifted back to the television set in the darkened living room.
"No, no," she laughed, "I just think he must hate America. I'm concerned about health care and education -- you know -- I was a foster child from the time I was two years old -- but that Michelle, she seems like a radical to me."
"I'm concerned about health care myself," I replied, telling a story about one of my husband's former partners who, in the wake of his law firm's collapse, facing imminent surgery for a recently diagnosed cancer" is suddenly without insurance coverage. With a pre-existing condition. "Just what Obama's mother had to worry about when she was dying of cancer," I said, "whether her health insurance would cover her medical bills because her carrier was claiming she had a pre-existing condition."
Sheila, that was her name, clucked her tongue, and talked again about what it was like growing up without parents.
"Barack had it slightly better than you," I acknowledged, "he had a mother."
"And grandparents," she quickly added. "That's a family. He had a family. It makes all the difference in the world."
We talked more about her childhood - her alcoholic mother and father; her father's refusal to identify her own grand-parents for the foster parent agency under whose jurisdiction she spent her difficult childhood. I told her how my dad had left us when I was nine, but also how he'd gone from high-school drop-out to attorney and finally judge because that was the kind of opportunity America offered and continues to provide.
We'd nearly come to the end of our chat when Sheila asked me how I'd become a lawyer with just a single parent. "Grandparents," I'd responded, smiling, glancing in at her foster son, to whom she could only rightly be called a grandmother at her age.
And why was I going door to door for Obama in this heat, she finally asked, leading me to tell the story of my own early grass-roots activism; my service with Vista, the American Peace Corps, during the "second wave" women's movement in the early 1970's.
And then, for no reason I can put my finger on I added, "those experiences and 15 years of sobriety." She lit up then. "I'm a friend of Lois'" she allowed -- the politely "anonymous" way to say she's a member of Alanon.
"Darn you!" she said, "now I'm going to change my mind again and vote for Obama. Can't wait to tell my son that someone finally convinced me."
Funny, but I wasn't really trying to convince her of anything. We were women talking over the fence after hanging our laundry or putting our kids to bed. We connected. We had personal history in common with one another and with candidate Obama. We had shared goals and dreams.
Here's the thing. You can't make this stuff up and you can't pursue this type of communication for the purpose of changing someone's mind. But if someone implicitly asks for your assistance in making an important decision, and if your goal is to help them make their decision instead of the decision you want them to make, you will, at a minimum, create common ground. And once you've done that, you can accomplish something constructive together, whether that accomplishment is what you had in mind in the first instance or not.
This is what living serenity means. You commit to your goal with all of your heart and passion but in doing so yougive up achieving the result in favor of helping others empower themselves to make the decision that is right for them.
This is what we mean when we pray: god grant me the serenity to accept the things I cannot change;
the courage to change the things I can; and, the wisdom to know the difference.
I don't know if Sheila voted for my candidate or not and frankly I do not really care. I believe that each authentic human connection possesses potential for the transformation of all human experience and that transformation is beyond my ability to imagine.
And that is what I learned and re-learned on the campaign trail. I'm hoping -- and will work toward -- an American future with even greater compassion, authenticity, hope and action than I have already been privileged to live.
Why was this an echt academic moment? Because the course I was taking from Joe -- "Ideologies of Mediation" -- had, before that moment, been suggesting that all ideologies interfere with durable, party-satisfying resolutions. Now it seemed the problem wasn't with ideology itself but with the wrong ideology. Hmmm, felt like law school. Forget Pennoyer v. Neff. It's all about this Buckeye case with the exploding boiler.
At the time, my litigator husband was skeptical of all mediators and all mediation techniques. We took a long walk down a Malibu beach after one of Joe's classes while I tormented him with questions about ways in which mediators could help him settle the case he was then working on -- the World Trade Center insurance coverage litigation.
If you wonder why I'm such a joint session fanatic, it's due largely to Joe's and Baruch's teaching as well as my own experience mediating community disputes locally -- the only place true transformative mediation is practiced. Engage the people with the problem and you're more than half way home. You just have to be capable of getting the lawyers to trust you enough to give up just a tiny bit of control to help the process happen.
As another mentor -- Richard Millen -- taught me, people don't have legal problems, "people have people problems" which are burdened with justice issues.
Choose your mediator wisesly, collaborate with him/her and you will not only settle the case, but emerge with a client who got what he/she/it hired you for -- to resolve the commercial problem and the justice issue that called for the retention of a lawyer in the first place.
A lessee of commercial office space complains that the common areas are not being properly maintained. The local high school has just banned Catcher in the Rye. Again. A prestigious law firm fires a first year associate because he refuses to remove his new “tongue stud.” These seemingly disparate disputes have one quite obvious but ill understood characteristic in common – they are all examples of unresolved conflicts that have ripened into discrete disputes.
Pretend for a moment that you never went to law school. I know. It's hard. But give it a shot.
Lawyers (those other people who went to law school) are are trained to understand, manage and remedy all disputes, no matter however different they might be, in a single, highly controlled manner.
To help their clients deal with the problems mentioned here, lawyers will read the lease; research the latest Supreme Court rulings ("Fuck the draft"); and, study the statutes. Once they understand the facts that are relevant to the law, they “think like lawyers.”
How do they do that? "Think" like lawyers?
First, they subject the facts and the law to as much scrutiny as any idea can bear before it disintegrates into the dust of first principles. They create a chronology of events, highlighting and tailoring the "story" of the conflict that "fits" the available "causes of action" giving rise to "rights" in their client, obligations in their "opponent" and remedies for the harm suffered.
This "legal" dispute was once about a relationship between people. Now it is an "actionable" claim in an extremely controlled process in which one of the parties will "win."
That, of course, rarely happens because the legal system has become too expensive and the law too uncertain for most people to risk what used to be it's goal -- a jury trial.
Lawyers recognize frivolous or baseless or "defendable" claims by observing just how uncomfortably the “facts” sit inside their opponent's “causes of action.” When called upon to justify their entitlement to get their client's claim before a jury (demurrers, motions for judgment on the pleadings, summary judgment motions, non-suits) the Plaintiff's attorneys can and will simply change the way the story is told. They make the facts fit the law. There's nothing wrong with that. That's their job. If the facts won't "fit" the law, lawyers apply themselves to the law's creative expansion.
What attorneys do not learn in law school is how and why conflict develops into a dispute and then predictably evolves, usually getting more acrimonious and difficult to resolve.
My friends who are lawyers (I never went to law school, remember? and neither did you) tell me that they know how to escalate conflict but not how to de-escalate it. They also tell me that they see a lot of injustice. Sometimes the injustice arises because the laws themselves are unjust. Sometimes the tragic and unfair consequences of human interactions just don't have any legal remedy. And sometimes the legal process itself makes disputes worse -- more protracted, frustrating and expensive -- rather than better.
In common law countries, like ours, where the law is forged in the fire of conflict, shouldn't attorneys be taught not only how to "win the case" but also how to dampen the flame? Most litigators I know would respond with a resounding "no!"
Conflict resolution that is not "handled" as litigation or arbitration is for some other professional to deal with. Therapists come to mind. Don't they help the parties deal with that most uncontrollable aspect of any dispute -- something not only lawyers but the law itself exclude from the legal action?
Feelings. Not just sad or mad feelings. But the type of feelings that make teenagers shoot other teenagers on the streets of Los Angeles. Feelings of loss, tragically unfair outcomes, powerlessness, rage and despair.
The purpose of this post and the new thread that it is meant to begin? To start something radical.
If you're not aware of what I'm about to tell you, you should be.
I was just talking to a friend over coffee the other day about how we're using 18th Century technology (the jury trial) to solve 21st Century problems.
Here's the idea. A legal TED Conference.
If you'll look at what TED accomplishes, you'll know what I don't mean. I don't mean a conference to trot out any new/old "ADR" ideas -- mediate this, arbitrate that, create new rules and forms for the lawyers to use.
I mean creating the highest level think tank we can to first envision and then implement a dispute resolution technology that incorporates what we've learned since we first enshrined the jury trial in our Constitution more than 200 years ago.
I have one man in mind -- Larry Lessig. But surely there are others. The first step would be to suggest names for the coordinating committee.
Why do I think of TED? Because what it envisions cannot be accomplished. It cannot even be envisioned. It's a fool's errand. One I'd be willing to spend the rest of my own life working on.
Let's listen to the speakers with a critical mind and an open heart. To help us listen with a critical mind, I'm linking my readers to the Owl at Purdue on Persuasive Argumentation.
The Barack campaign has been built on narrative or, as the Owl teaches us, pathos, a word that has come to mean sentimental but simply means appealing "to an audience's needs, values and emotional sensibilities."
As the Owl Instructs,
[e]motional appeals can use sources such as interviews and individual stories to paint a more legitimate and moving picture of reality or illuminate the truth. For example, telling the story of a single child who has been abused may make for a more persuasive argument than simply the number of children abused each year because it would give a human face to the numbers. Only use an emotional appeal if it truly supports the claim you are making, not as a way to distract from the real issues of debate. An argument should never use emotion to misrepresent the topic or frighten people.
Michele Obama is speaking now, telling the story of her childhood; her parents' values and Barack's political journey. It's good.
"Isn't that the great American story?" she asks half way through her speech.
If You Know the Case Law, Litigation Doesn't Have to be Robotic
By Victoria Pynchon
Here in California, there's no stronger rule of confidentiality than that applied to a mediation. It cannot be impliedly waived like most privileges, including the near-sacred attorney-client privilege. Simmons v. Ghaderi, 2008 DJDAR 11107. You cannot be estopped from relying on it. Eisendrath v. Superior Court, 109 Cal.App.4th 351 (2003). And if you want your mediated settlement agreement enforced, you must strictly comply with the requirements of Evidence Code Section 1123. Fair v. Bakhtiari, 40 Cal.4th 189 (2006).
Insurance policy-holder counsel Kirk Pasich of Dickstein Shapiro has criticized nearly all recent interpretations of mediation confidentiality by the California Supreme Court on the ground that they permit insurance carriers to use mediation proceedings to engage in acts of bad faith.
"Why should a carrier get a license to act in bad faith in mediation," Pasich asked, adding, "Cases settled, and still settle, in mandatory settlement conferences without that same shield. I don't think a process should exist that encourages, rather than discourages, a party from acting in bad faith."
If you do not understand the differences between settlement conferences and mediations, you are not alone. My informal surveys indicate that litigators believe there's no difference whatsoever between the two and few mediators are able to distinguish between them despite their training in the field. Nor have California's courts been of any real assistance.
What's in a name? Here, plenty. The application of California's Rules of Evidence to mediations has such significant potential economic consequences that mediator and litigator malpractice actions are surely looming on the horizon.
What type of misbehavior can occur in a mediation? Here are just a few examples: One party can make a misrepresentation of material fact on which the other relies in entering into a settlement agreement; as Pasich notes, an insurance carrier can act in bad faith; one mediating party could tortiously interfere with a third party's contract or prospective economic advantage; or the mediating parties can enter into a collusive settlement agreement, depriving the settling parties' co-defendants from learning facts necessary to challenge the settlement in a "good faith" hearing.
Even if all parties have expressed complete agreement during the mediation, which they then memorialize in a term sheet, absent strict compliance with the requirements of Evidence Code Section 1123, no evidence probative of that agreement will be admissible in a California court.
If the mediating parties are engaged in a settlement conference, none of this potentially bad behavior would be protected.
Given the potentially significant adverse economic consequences that can flow from a mediation, California's courts have clarified the differences between the two procedures, right?
I believe in Unicorns and Max doesn't so I've promised to keep my eyes open for appearances of that storied creature. Previously, I have reported the Unicorn's appearance here (community mediation; potential lawsuit, no lawyers); here (litigation + lawyers who send the parties to community mediation); and, here (litigation + lawyers + clients who seek mediation without lawyers to resolve dispute).
The parties to a lawsuit do not have intertwined interests: they have directly adverse interests. Unless there's some possibility of a future relationship, the defendant doesn't want to resolve the conflict: they want the plaintiff to drop their frivolous claim. In their mind, their best alternative to a negotiated agreement ("BATNA") is for the plaintiff to crawl in a hole and die.
[My Comment: the "intertwined interests" all parties to litigation have is the litigation itself with its attendant cost, delay, and, uncertainty, not to mention the discomfort "ordinary" people experience when plunged into the foreign environment occupied by attorneys with their strange "causes of action" and "affirmative defenses," their demurrers and JNOV's; their res ipsas and, most importantly, their view that only facts pertaining to a "cause of action" or "affirmative defense" are relevant to the injustice suffered by their clients.]
[T]he plaintiff usually prefers imposing a conflict on the defendant (who the plaintiff believes cast the first stone) in pursuit of justice, an imposition they will only relieve for at least "full" compensation. . . .
The problem is that most parties don't consider their claims to be assets; the problem isn't that there's emotional baggage around the economic understanding, it's that the parties interpret their dispute as fundamentally non-economic.
[My Comment: I've said before that all litigation is "fundamentally non-economic" -- it's about justice. Though Max is one of the few practicing litigators who agrees with me, he does not believe in the existence of my solution -- a settlement conference or mediation conducted in joint session].
Hence a Mediation Unicorn with litigation and attorneys prior to any meaningful discovery.
I'm talking to a plastic surgeon whose artistry not only went unappreciated, but which gave rise to a lawsuit for battery and malpractice.
The plaintiff is a model and an actor. The surgery, she claims, left permanent scaring on her nose. Her opening demand is $500,000. I am trying to persuade the physician, his attorney, and the claims adjuster, not to walk out. The plaintiff's deposition has been taken and the doctor's is scheduled for the following week. No experts have been retained.
The parties have made the rare effort to settle the case early in the litigation.
This is what the defense thinks about the opening demand in response to their good faith participation in an early mediation:
%&*#%*#%@& and %&^@(% and *&$)*#!
I am suggesting to the defense in separate caucus that they allow me to conduct a joint session in which the parties can talk about the surgery, the scarring and their post-surgical communications. I explain that the Plaintiff is more angry than acquisitive. She believes that the doctor disrespected her when she complained about the scarring.
He denied that I had a scar. He was rude and dismissive. He disrespected me. He had no bedside manner.
She is one of the few personal injury plaintiffs who comes right out and says what so many plantiffs feel.
I want him to suffer. My attorney says he has to report any settlement in excess of $30,000 to the Medical Board. I want to make him do that. I want him to suffer as I have. It's not about the money. It's about accountability. I want him to be accountable.
The parties resist a joint session and we spend two hours negotiating in the strato- and nano-spheres. $10,000. $490,000. $12,500. $475,000.
"We're getting nowhere," says Plaintiffs counsel. "Tell them we're leaving."
"The case will never settle. This is a waste of time for my doctor and my claims examiner. Tell them we're leaving. The case will never settle. It simply won't settle. The case cannot settle."
Click Your Heels Three Times and Say "There's No Place Like Home."
Attorneys are fond of saying that all mediators do is "keep them in the room." They might be right, but the difference is the room I keep them in. It's a mediation room, not a conference room or a deposition room or a courtroom. It's a room in which I ask the doctor if the feeling he has is something akin to a fish being hooked, pulled up out of the water and thrown onto the deck of someone's boat, gasping. He cracks a smile for the first time that morning.
It's a room in which I say there must have been a miscommunication, a misunderstanding. It's a room in which I say to the defense that the Plaintiff feels angry and disrespected. It's a room in which I caution the Plaintiff that the physician is from a different culture than her own -- one where a doctor does not express empathy but only certainty in his skill and expertise.
The claims adjuster asks me if I'd been able to see the Plaintiff's scar from where I was sitting -- across a conference room table. I admit that I could not. I acknowledge what is patent in the defense room -- the Plaintiff is blindingly beautiful. A jury is unlikely to award her much in the way of damages. I have said as much to the Plaintiff. But she is angry and wants a pound of flesh.
I have another mediation in the afternoon. I tell the defense we have fifteen more minutes. The claims adjuster keeps repeating "the case will not settle, the case will not settle, the case will not settle." I take this to mean that the defense very much wants to settle the case.
"If someone repeats something over and over again," my mentor Ken Cloke taught me, "that is the key to the resolution." While that might be so, I haven't yet found a way to use that key to open any door. But it is not really my case to settle. It's my job to keep them in the room.
"I Want to See the Scar," says the claims examiner.
I wish I could take credit for the following but I cannot. The Plaintiff's attorney says "why don't they go to the ladies room where my client can show Ms. Y the scar and together they can look at it."
I hear the click of the Unicorn's hooves in the hallway. The plaintiff's attorney is male. I don't believe he knows what he's suggesting. He wants to send two women into one of the safest and most congenial, soul-bonding rooms in all of God's creation -- the women's room.
I know the case will settle.
We are finally in joint session. The claims examiner says, "I want to tell you that I now see the scar. I'm sorry I denied it. We'd like to offer you $X to settle the case."
Did $X settle the case? No. But $X + $Y settled the case ten minutes later.
And just around the corner, you could see the shadow of the settlement unicorn rear up on its hind legs in celebration.
This is how you know I'm still as much a lawyer as I am a mediator.
The answer is yes and no.
But you can help change the "no" to a yes.
That's the hope part.
Here's the dispiriting part --The answer will not become "yes" if the parties continue to primarily engage in position-based distributive bargaining sessions in separate caucuses.
My own professional experience (and the behavioral research of which I'm aware) suggests that Mr. Kennerly's Unicorn will only come into a room in which an interest-based negotiation is taking place, one in which there is at least one joint session among the baragaining parties.
But first a story.
This very morning I failed to settle a very small case that is poised to become a very big case with cross-actions for legal malpractice and malicious prosecution.
The delta between the Plaintiff's final demand and the defendant's final offer?
And I offered to throw in half the delta myself by making a contribution to the presidential candidate/s of the parties' choice. Shock value.
The parties' failure to achieve settlement couldn't have been about money could it?
Why not? Because it was economically irrational not to settle. Which is not unusual. Because there is no rational economic man.Because we are incapable of making a decision in the absence of emotion. /**
Although some economic decisions are made outside a social context, they are a minority. Social dynamics, many economists believe, are at the core of economic decision making—that is, decision-making about resource acquisition and expense allocation. What I decide affects you, what you decide affects me, and, even more to the point, I care how I fare economically compared with how you fare.
I send a client a bill for $15,000. He pays $9,000, refusing to pay the additional six because he believes I didn't earn it or that I did my job badly or that I didn't communicate to him all of the items I would naturually include in my bill. There is a written agreement but no attorney fee clause. It will cost me at least $3,000 in attorney fees to collect the six. My client offers to pay me half of what is owed.
Do you have the hypothetical in mind? What would the rational economic man do?
The rational economic man would take the $3,000 because he cannot do better at trial.
Did rational economic man appear at the mediation this morning? Of course not. Because he is a Unicorn! He doesn't make decisions based upon numeric calculations or emotionless cost-benefit analyses -- which is why I knew the parties would not accept my gap-closing political contribution suggestion (whew!)
Why Rational Economic Man is a Unicorn
In a social-economic experiment known as the Ultimatum Game, many researchers have found that when one party offered less than half the money subject of the game, "the other player often rejected it, even though by doing so he end[ed] up with nothing." Id. Dugatkin describes the results of one research project involving this Ultimatum Game as follows:
Alan Sanfey, Ph.D., and his colleagues at Princeton University examined the Ultimatum Game with 19 subjects in the role of responder and . . . observe[d] their brain activity. They found that when unfair offers (deﬁned as those of less than half the resource) were made, responders often rejected them. As they did so, the area of their brains associated with negative emotional states (in this case, the bilateral anterior insula), rather than those associated with complex cognition (in this case, the dorsolateral prefrontal cortex) were most active. The more the offer deviated from fair, the more active was the bilateral anterior insula when such an offer was rejected. Anger at being treated unfairly by other players appeared to override rational economic reasoning. In the minority of cases when the offer was accepted, the dorsolateral prefrontal cortex was most active.
We, like the capuchin monkeys mentioned yesterday, will deprive ourselves of thousands, tens of thousands, even millions of dollars if we believe the compensation being offered is so little related to our value or our loss that it seems unfair. We will not pay money at the point of a gun nor accept money offered to us by villains or cheapskates.
Mediation, Money and Justice
In today's semi-hypothetical mediation, the $3,000 offered felt too unfair to the plaintiff and the hypothetical $6,000 demanded felt too unjust to the defendant for the parties to reach a rational economic deal. The parties' potential to achieve settlement was also seriously undermined by the degree of anger they expressed toward one another and the way in which they had villified one another - "rich deadbeat" on one side and "dishonest fiduciary" on the other.
I am neither magician nor miracle worker. Nor am I in the social work or therapy business. I do, however, know that when parties to a lawsuit are hopping mad and believe that the opposition behaved immorally, money is unlikely to change hands.
In an effort to defuse the anger and de-demonize the parties, I held two joint sessions -- one that was not coached and one that was. Then I separated the parties for the purpose of conducting a distributive bargaining session (she offered x; he counters with y, etc.)
In both the joint session and in the separate caucuses, I strove to humanize the parties for one another; attempted to reframe their behavior in a less villianous light; and, assisted them in conducting as rational a cost-benefit analysis as possible. I also helped the parties reality test their beliefs about the likely outcome at trial and to evaluate the likelihood that the strength of their feelings today would translate into a hearty appetite for further, higher-stakes litigation two years down the line.
So What Can You Do?
I would love to deliver a stirring tale of a heroic mediator helping parties settle their dispute in the early stages before the threatened action and cross-actions were even filed. But I can't. This is more art than science and compared to my 25 years of experience as a litigator, I'm still a little green as a mediator after four years of full-time neutral practice.
Let me just say this. Mediating settlements in the early stages works more often than it fails, particularly if you do one or more of the following:
hire a mediator who can rock and roll with the process rather than one who is a one-trick pony -- head-banger, or evaluator, or prophet of doom; peacemaker, or rabble-rouser or King of the Distributive Bargain -- your mediator should be able to play all or any of these roles as the situation demands;
if you're angry and if you have villified opposing counsel or the opposition party, take a deep breath, sit down at your computer and write down the best, the mid- and the worst-case scenarios (I know you've done it already; but take a fresh look again right before the settlement conference)
share these evaluations with your client
if a trustworthy mediator with whom you've worked before suggests that it would be useful in joint session for your client to express his irritation, disappointment, anger or any other feeling that might interfere with his ability to make a rational decision, don't reject it out of hand
help your client de-demonize the opposition, reminding him that the "other side" is human and therefore fallible and is rarely downright evil
remind your client that many disputes that seem to arise from malicious conduct actually stem from faulty communication
know your bottom line and stick to it unless you genuinely learn something that makes you see the entire dispute in a different light, remembering that "a foolish consistency is the hobgoblin of little minds"
despite everything I've now said about litigants behaving irrationally, as I've written elsewhere in greater detail, Harvard negotiation gurus Deepak Malhotra and Max H. Bazerman suggest that negotiators too often confuse hidden interests and constraints with irrationality. The mistakes and solutions when this is the case?
Mistake No. 1: They are Not Irrational; They Have Hidden Interests -- find out what they are and you may well be able to resolve the dispute and settle the litigation without putting any more money on the table or making any further concessions;
Mistake No. 2: They are Not Irrational; They Have Hidden Constraints -- keep one ear to the ground for hidden constraints, explore them with the mediator, opposing counsel or the opposing party; often those constraints can be problem-solved away;
Mistake No. 3: They are Not Irrational; They Are Uninformed -- listen and respond; respond and listen. You will find that EACH of you is uninformed about something that will likely make a genuine difference in the manner in which the litigation is resolved.
If your opponent cannot or will not see reason, there's always the joy of just trying the darn thing.
sometimes I don't want to discuss the case. Sometimes either we're at the end of the road or you're not even on our road, and I'm not going to humor you and your insufficient offers and your attempt to use social influence on me. Indeed, many of my best offers come after cancelling settlement conferences before they happen.
Just something to keep in mind. Every trick you know is a trick that can be played on you and/or your client.
While Craig recalls a mediation in which a joint session hardened the parties' positions as follows:
The mediator decided at the last minute that it would be nice to see if we could all meet and agree in a joint session.
In his defense, he had the advantage of reviewing the positions of both parties in their submittals. There was no warning that the mediator was going to try to help the parties come to an agreement in a joint session.
What I remember most was my client getting so incensed by the positions of the other party in the joint session. Unfortunately my client hardened his position – not helpful in mediation – and apparently the other party did the same. I think the theory about eye-to-eye meeting and negotiations is absolutely correct.
The problem is that parties bring so much emotion into a settlement discussion that I think they need to stay separate from the people creating the emotion before they can calmly assess the best course of action.
What interests me most about Craig's comment is this:
I think the theory about eye-to-eye meeting and negotiations is absolutely correct. The problem is that parties bring so much emotion into a settlement discussion that I think they need to stay separate from the people creating the emotion before they can calmly assess the best course of action.
I'm going to be writing about this conversation all week and invite others to please comment.
Right now, I'd like anyone interested in the resolution of conflict close to home (the neighbors; the PTA President; the woman sitting in the cubicle next to you stripping laquer from her nails with industrial strength polish remover; the entire HR department; your boss, etc.) to read It Took a Villain to Save Our Marriage in the Style section of this Sunday's New York Times.
Here's the "money shot" for anyone who has ever mediated neighborhood disputes in a community mediation center as I do pro bono.
Then while the rest of the block kissed goodnight, I stomped down the street in the dark to Blocker’s house and pounded on his door.
He opened it, shirtless and calm; it unnerved me. I’m sure I looked crazed. I felt my face puff up. “Stop taking our signs!” I said.
There was a shift. It was he who had the advantage now — I was on his porch, and drunk.
But Blocker didn’t say anything mean. He didn’t seem angry, as he should have been, that I had bothered him late at night; he didn’t threaten to call the police. We stood close, inches away. There was an intimacy in our strange hate.
“I didn’t take them,” he said. “Seriously. The city picks them up sometimes. I know where they put them. I could check if you want.”
No, I didn’t want. But I thanked him, and walked home both shaken and comforted, and thinking Anthony would kill me if he knew I had crossed enemy lines like that, alone. I didn’t tell him.
There was one more encounter. Blocker drove by me in his car. He slowed and rolled down his window, and instead of grunting or sneering, he said, “Did you find your signs?”
“No. I didn’t look.”
We exchanged a few more words — about the weather, his dogs — but it was quick. He drove off, and a few weeks later we moved.
A trained and skilled mediator would take advantage of these two fleeting moments of concern on the part of "Blocker" who is the bully in this story with a heart-rending conclusion.
Now assume that these people -- all three of them and maybe a few additional neighbors as well -- belong to a homeowners' association with the power to fine the HOA "outlaw," making the fines a lien against his property. Now its a legal dispute.
Ask yourself, what do the parties' legal positions have to do with the resolution of the conflict?
Leave your thoughts here -- down in the comments section -- and I'll be back soon to discuss the New York Times conflict resolution hypothetical based not only on my experience mediating the resolution of litigated commercial disputes, but also based on my pro bono community mediation experience and on the studies that earned me an LL.M that's purportedly not worth the paper its printed on (a judgment that could be just as easily applied to my Bachelors Degree in English Literature were it not for its transmogrification into a ticket to practice law).
Bonus Question: do we really want to dedicate our lives to the satisfactory resolution of conflict -- which is what the law, after all, is all about -- or would we rather, like the author of It Took A Villain, take the pleasure to be had in the state of high dudgeon, self-righteousness, and passionate engagement with someone who is an easy target to blame for our own unhappy life circumstances?
Double Bonus Question for Lawyers Practicing in Los Angeles: Would you let the Los Angeles Superior Court choose your trial attorney or your marriage and family counselor from a panel of people who have had 28 hours of training in their "professional" field of practice just because the first three hours are free?
So why would the S[pecial Litigation Committee] release [Wilson Sonsini] and Larry Sonsini? The SLC wrote that it weighed the opinion of a legal ethics expert as well as testimony and documents related to Sonsini and the firm’s roles at Brocade. It also listened to Sonsini and his firm’s “contentions that Brocade employees misled WSGR about stock-option grants” and that the firm had negotiated a good settlement with the SEC and helped avoid DOJ action against Brocade. The committee also considered the firm’s longstanding relationship with Brocade and the firm’s “willingness” to help the company resolve any “outstanding questions” about the backdating.
This may be the biggest break-down in attorney-client communication in the history of litigation. Because this public statement by Allstate about its former attorney would be highly defamatory if not true, I'm taking Allstate at its word here.
Allstate claimed that it had not deliberately flouted Manners’ orders. Rather, it said, its now-former attorney — then with the firm of Wallace, Saunders, Austin, Brown & Enochs — had failed to respond to discovery requests.
Allstate said it was appalled when it learned last year that it was being threatened with contempt.
“Allstate litigates hundreds of bad faith cases each year,” Allstate stated in court documents. “And it responds to discovery requests — just like the ones in this case — in many of them. There is no reason in the world for Allstate not to participate in discovery — particularly in this case, where there is an underlying judgment of $1 million.”
Allstate said it “immediately removed” the attorney from the case and retained new counsel.
The answer to the question "how to break bad news to my client" can be found at any of the links below. Most of these links are for health care professionals, who have to break bad news to their patients and their families far more often than we have to tell our clients that something went terribly awry. Put that at the top of your attorney gratitude list.
Do not avoid seeing the [client] or leave them anxiously waiting for news. Sometimes anticipation can be worse than even the worst reality.
Treat others as you would wish to be treated yourself.
Get the facts before you start.
Make sure you will not be disturbed. If necessary switch off phones or bleeps.
Be factual but sympathetic. Always be empathetic however you may feel personally.
Give time for the information to sink in and the opportunity to ask questions before moving on. Do not seem rushed.
If the [client] does not seem able to take any more be prepared to end the consultation and to take it up again later.
Look for all the cues, verbal or others. , , , Perhaps they would like you to speak to someone else or to have someone with them for the next meeting.
Never say that nothing can be done or the [client] will lose all hope.
Whilst trying to be positive never lose track of the fact that this is a serious and potentially fatal [reverse in the litigation]. Be optimistic but do not promise success or anything else that may not be delivered.
O.K., the subject line was meant to shock you and to draw criticism for what I will admit is my greatest unresolved prejudicial default -- that white men over 65 who didn't participate in the American cultural revolution of the late nineteen sixties and early 1970's did not and will never "get it."
failed to disclose that he'd been censured while on the bench for making "sexually suggestive remarks to and asked sexually explicit questions of female staff members; referred to a staff member using crude and demeaning names and descriptions and an ethnic slur; referred to a fellow jurist’s physical attributes in a demeaning manner; and mailed a sexually suggestive postcard to a staff member addressed to her at the courthouse.”
The majority arbitrators deciding the malpractice case stated that the female claimant was not credible because the "severity of the symptoms to which she testified went beyond what she described to her doctors, adding, “This claimant has had five prior facial surgeries.”
Similarly, in summarizing the claimant's expert’s testimony, these arbitrators noted, “One thing probably everyone can agree upon, after five facial surgeries, [claimant] could have done without a sixth one.”
Back to My Own History as Descriptive of -- But No Excuse for -- My Own Biases
We all have biases that we hide from others and some that we successfully hide from ourselves.
We live, I'm told, in a 200 year present. That means that my early life affects your life today. After all, I'm an old white woman, about whom you may well have biases. If I sit on your arbitration panel, you're going to want to understand those biases. That's why I'm giving you a bullet-pointed history of what the world was like when I was forming my essential character at 17 years of age in 1969.
the "want-ads" in the classified section of every major newspaper in American were categorized by gender -- "help wanted - women" and "help wanted - men"
in my senior year in high school, my entire class took "preference aptitude" tests to give us an idea of what our future careers might look like -- the girls were given "pink" tests and the boys "blue" tests -- had I shown an aptitude for, say, math (and no I didn't) I would have been steered into nursing; my male friends into "medicine" as physicians.
women were subject of explicit ridicule in magazine and newspaper cartoons -- we were airheads, bimbos, bad drivers, harpies or -- the "new" stereotype -- communist-longhair-folk-singing-America-hating-hippie-riot-inciting-"girls" who were alternately "men hating" or -- an old phrase -- "of easy virtue."
it wasn't until the 1970's, when I was in college and already planning a career teaching English (after all, nursing required math-skills) that the idea of a career in the law for women as anything other than a secretary began to seem possible.
by the year I graduated from law school in 1980, Columbia's female population had grown to a whopping 32%
although the enrollment of women in my law school class at U.C. Davis was nearly 50% in 1980, when I told my beloved mother in 1976 that I was going to apply to law school she said "why do that, honey? Be a legal secretary, then you can marry a lawyer."
when my husband attended Yale Law School ('67-'70) he had seven women classmates
when I was practicing law (these all from the early '80s)
a partner for whom I worked told me that women weren't permitted at the local "men's only" club because "we don't want our wives there."
a Judge required me to identify myself as Mrs. or Miss and when I said I didn't think it necessary to identify myself by my marital status, asked "what are you some kind of [women's] libber?" (yes, I lost the motion)
I was advised by the few women attorneys senior to me not to get pregnant until after I made partner
secretaries were allowed to refuse to be assigned to a woman attorney
the first woman to make partner at my law firm was quite openly referred to as "the first muff partner" by her colleagues
on the other hand, when a client said (of my assignment to its case) that the company did not want to be represented by a "girl," my partner told the client "then you don't want this firm representing you because she's the best associate I have"
I promise to work on my prejudices. And I advise anyone who is about to appear before any dispute resolver -- be that person male, female, white, black, young or old, GOOGLE THEM FIRST!
In the last three issues of The Complete Lawyer (see the LACBA issue here!)Stephanie West Allen, Diane Levin, Gini Nelson and I have been tuning up our conflict resolution violins. In this issue's The Human Factor column, the four of us once again share our TCL space to talk (ever so briefly) about the ways in which conflict resolution techniques can help lawyers achieve that elusive goal of a blanced work-life.
Gini Nelson calls conflict avoidance (one of my favorite techniques in "real life") "deferred relationship maintenance," which nails this way of handling our personal lives on the head. Read all about it here.
Diane Levin (here) addresses the problems none of us like to talk about -- dysfunctional workplaces, noting that
Our ability to connect with others, gain their trust, influence and motivate them is the social lubricant that makes businesses thrive. In fact, Dan Hull, an attorney I admire for his focus on client service, once wrote, "Treat each co-worker like he or she is your best client." He's right—nurture relationships for a healthier law firm.
Our brain likes to be fuel efficient; by discerning patterns, it saves energy. It studies the situations at hand, whether they are protracted mediations, playful exchanges with a partner, or steely verbal duels with opposing counsel, to see if they resemble a situation it has seen in the past. We then base our judgments on that unconscious notion of past—but we are not always fully aware of the present. Yesterday's solutions do not always fit today’s problems.
According to the Global Rich List, AmLaw 100 associates are among the top .01% richest people in the world. Mid-level AmLaw partners are in the top .001% and beyond that the GRL stops counting. Though of course we do not.
If a comparison of our salaries with these galactic levels of compensation make us unhappy, it is unlikely that the following knowledge will make us happy—three billion people live on less than $2 and 1.3 billion on less than $1 per day. Why does this knowledge leave us untouched? Because we don’t compare ourselves to the rest of the world. We compare ourselves to the guy sitting in the office next to us.
So how did we—some of the smartest, richest, most creative, energetic and best educated people in the world—get so unhappy about money? I personally blame it on the American Lawyer even though, like drug dealers and the paparazzi, legal journalists wouldn’t be concentrating on profits per partner unless we were all so avid to know them.
Beginning with the next issue of The Complete Lawyer we'll be taking turns writing the column. If you like what any of us have to say about ADR's value in your work and life, stay tuned! There will be much, much more!
The rest of the issue is also well worth reading. The focus is on EXIT STRATEGIES -- a topic not reserved for those contemplating retirement (though our interests are addressed here as well). This is one profession where people start talking about exit stragies around the second week of the first year of law school. So check it out!
In a down American economy, litigation tends to increase. More suits are filed. And in my view clients and their plaintiff's lawyers file more questionable suits, i.e., ranging from Rule 11 violations and frivolous to iffy and wasteful. Employee and business nuisance cases are a big chunk of those filings.
A good arbitration panel or mediator will cut to the quality of the suit and its likelihood of success quicker than even the best American judges, who often feel obligated to give bad and iffy cases a wide berth. And good judges understand the problems of the business community and the utility of arbitration and mediation.
Get jurists on your side in your attempt to drive iffy cases into ADR.
Happens all the time; the parties come together to mediate their dispute and find that they haven't really understood their differences or the areas of agreement .
"Your client didn't care about the first shipment of goods?"
"No, it was the second that was the problem."
"What was wrong with the second?"
"They were plaster of Paris."
"What are you claiming as damages .. .. . "
Forget ADR. Pick up the telephone and talk to opposing counsel.
According to writer and surgeon Atul Gawande's recent article The Itch, the way the pepper tree in my back yard appears from my bedroom window may be as much as ninety percent memory and only ten percent "data." As Gawande writes:
Given simply the transmissions along the optic nerve from the light entering the eye one would not be able to reconstruct the three-dimensionality, or the distance, or the detail of the bark -- attributes that we perceive instantly.
In other words, perception is not merely reception. "Objective reality" is just the brain's "best guess" about what the eyes observe, the ears hear and the fingers touch.
"The images in our mind," Gawande explains, "are extraordinarily rich."
We can tell if something is liquid or solid, heavy or light, dead or alive. But the information we work from is poor -- a distorted, two-dimensional transmission with entire spots missing. So the mind fills in most of the picture. You can get a sense of this from brain-anatomy studies. If visual sensations were primarily received rather than constructed by the brain, you'd expect that most of the fibres going to the brain's primary visual cortex would come from the retina. Instead, scientists have found that only twenty per cent do; eighty per cent come downward from regions of the brain governing functions like memory. Richard Gregory, a prominent British neuropsychologist, estimates that visual perception is more than ninety per cent memory and less than ten per cent sensory nerve signals.
Gawande doesn't explain how we manage to agree on anything with such impoverished perceptual abilities and richly imagined constructs of "objective reality." I suspect that our insatiable urge to tell one another stories is the primary way we create the collective memories that allow us to agree upon such simple "facts" as "the apple is red and somewhat round," if not necessarily that "the blue Kia entered the intersection after the traffic light turned red."
What strikes me about Gawande's article is not so much the pure science described there, but the way in which opposing parties in litigation resemble "phantom limbs" and joint sessions the mirrors used by physicians to treat the pain "felt" in them.
Recent research demonstrates that amputees' phantom limb pain can be reduced or eliminated by "fooling" the brain into believing that the missing limb is "well." When researchers asked amputees to put their surviving arm through a hole in the side of a box with a mirror inside and to then move "both" arms,
[t]he patients had the sense that they had two arms again. Even though they knew it was an illusion, it provided immediate relief. People who for years had been unable to unclench their phantom fist suddenly felt their hand open; phantom arms in painfully contorted positions could relax. With daily use of the mirror box over weeks, patients sensed their phantom limbs actually shrink into their stumps and, in several instances, completely vanish. . . .
. . . here’s what the new theory suggests is going on: when your arm is amputated, nerve transmissions are shut off, and the brain’s best guess often seems to be that the arm is still there, but paralyzed, or clenched, or beginning to cramp up. Things can stay like this for years. The mirror box, however, provides the brain with new visual input—however illusory—suggesting motion in the absent arm. The brain has to incorporate the new information into its sensory map of what’s happening. Therefore, it guesses again, and the pain goes away.
Litigation separates the parties from one another as radically as an amputation, often under circumstances where the law suit is all they have in common. Like amputees, the parties cannot massage the missing muscle, scratch the irritating itch, or ease the frustrating pain.
When physicians give their patients mirrors and instruct them to move their one remaining arm in concert with its physically re-imagined partner, they conduct a silent concert of healing. With "new" information (hey! there's my other arm and it's not all cramped up!) the brain readjusts and stops sending false signals. The muscle relaxes. The itch is scratched. The pain is relieved.
Joint sessions can be used as mirrors to make missing disputants appear again./* The mediator -- who is trained in this art -- creates an environment (the "box") in which the parties are able to adjust the mis-impressions and correct the mis-communications that make the conflict so difficult to resolve. After a brief period of discomfort and incoordination, the disputants begin to tell their stories of injustice in concert, spontaneously harmonizing the points on which there is little disagreement and resolving those parts of the tale where the greatest differences lie.
Those parts of the story that have grown wildly distorted in the absence of any corrective influence, are shrunk back to their appropriate size. Freed from the tyranny of their phantom "others," the parties begin to work collaboratively to solve the problem that they now understand is mutual.
Though this is surely metaphor, the process is not just theory. When parties consent to a joint session orchestrated by the mediator in collaboration with their attorneys, this type of reconciliation happens more often than not.
Don't, however, confuse this joint session with those in which attorneys give one another presentations proving their entitlement to victory as if there were a phantom "decider" -- a missing arbitrator or judge -- somewhere behind a curtain. These are the type of "joint sessions" that have given joint sessions a bad name because counsel well know their opponents' "positions"and the parties tend to become less rather than more amenable to settlement when their opponents' point of view is once again argued to them -- this time in quarters that are far too close for most lawyers, let alone their clients.
We'll keep exploring this issue. For now, more of the Gawande article below.
A new scientific understanding of perception has emerged in the past few decades, and it has overturned classical, centuries-long beliefs about how our brains work—though it has apparently not penetrated the medical world yet. The old understanding of perception is what neuroscientists call “the naïve view,” and it is the view that most people, in or out of medicine, still have. We’re inclined to think that people normally perceive things in the world directly. We believe that the hardness of a rock, the coldness of an ice cube, the itchiness of a sweater are picked up by our nerve endings, transmitted through the spinal cord like a message through a wire, and decoded by the brain. . . .
[There are] some serious flaws in the direct-perception theory—in the notion that when we see, hear, or feel we are just taking in the sights, sounds, and textures of the world. For one thing, it cannot explain how we experience things that seem physically real but aren’t: sensations of itching that arise from nothing more than itchy thoughts; dreams that can seem indistinguishable from reality; phantom sensations that amputees have in their missing limbs. And, the more we examine the actual nerve transmissions we receive from the world outside, the more inadequate they seem.
Our assumption had been that the sensory data we receive from our eyes, ears, nose, fingers, and so on contain all the information that we need for perception, and that perception must work something like a radio. It’s hard to conceive that a Boston Symphony Orchestra concert is in a radio wave. But it is. So you might think that it’s the same with the signals we receive—that if you hooked up someone’s nerves to a monitor you could watch what the person is experiencing as if it were a television show.
Yet, as scientists set about analyzing the signals, they found them to be radically impoverished . . .
Before you run over to Gini's site to read Lande's excellent post or his great article, I'd like to simply bullet-point some observations based upon my four-years of full-time mediation and arbitration practice.
when I co-arbitrate with some of the best commercial arbitrators in the business -- these are Ivy League lawyers with many decades of experience representing Fortune 50 Companies in AmLaw 100 Law Firms, the ultimate decision changes many times during the course of deliberations and almost always could go either way.
having spent a considerable time in the Los Angeles Complex Court as an experienced commercial litigator "externing" for credit to earn my LL.M in '06, I can tell you that the deliberations in chambers of these highly respected jurists is not much different that those in which I have engaged when sitting on an arbitration panel
The take away? No matter who is hearing your case, your chances of winning are 50-50. Flip a coin. Think this doesn't apply to you? I have arbitrated cases being handled by the top ten law firms in the country. I have seen those same type of firms litigate and try cases in the Complex Court. It's 50-50 friends.
Below -- observations on how you and your mediator can be "happy together." (And the Turtles from 1967 so that you can have a little musical accompaniment to this post)
Observations of End-Game Litigation from a Mediator's and Settlement Consultant's Perspective.
Despite years of inquiry and the review of millions of documents, sophisticated parties (Fortune 50) represented by dynamite law firms (AmLaw 50) haven't yet learned the most fundamental information about the following matters -- most of which are more important to the settlement of the case than the cost-detriment-benefit-position-driven-chance-of-victory settlement posture:
what are the hidden interests that your opponent must satisfy before accepting a settlement that is below the number he once told his client should never under any circumstances be accepted?
what are the hidden constraints upon your opponent's authority that must be removed before he can pay more money than he once told his client should never under any circumstances be paid?
why was this litigation initiated in the first instance?
who gave the litigation the "green light"?
what are the probable consequences to the continued financial security of the person who gave the litigation the "green light" in the first place or who has authorized the defense bills for the last 5, 10, or 15 years?
is the person who green-lighted the litigation in the first place still employed by your client?
what are the probable consequences to the financial well-being of the corporation who must pay more than it wishes to pay or accept less than it wishes to recover?
Who is the most frightened person in the room, i.e., whose hide might be sacrificed if the litigation settles for more/less than predicted, or, often worse, actually goes to trial.
There are so many of these settlement-driving and -inhibiting questions that only my own personal time contraints -- I must start my day's work -- make me stop listing them.
Let me conclude with this however. Never underestimate your client's reluctance to settle the case on terms that seem unjust to it. This is the most important function a mediator can play on the day of settlement -- explaining justice issues to the clients and helping the clients de-demonize their opponent -- which occurs most easily in JOINT SESSION yet which most litigators would rather have their teeth drilled than attend.
O.K. I can't conclude without saying this. If you have the courage to try a case, you possess the cajones to participate in at least one joint session to help the parties come to terms with the justice issues -- which are often driven by the conclusion, affirmed over and over again in the course of the litigation, that their opponent is an evil, mendacious, grasping, greedy, malicious, duplicious lying liar with his pants on fire.
This is almost never true. The parties on both sides almost always possess equal parts of good and bad, just like the rest of us.
Let your parties re-adjust their perception of "the enemy" in joint session. I can almost guarantee you that a conversation will ensue in which the parties spontaneously tell each other what interests they really need to satisfy to settle and what constraints they are really working under. And I don't guarantee a lot of things.
Why can't I do this for the parties?
Because often neither side will disclose these matters to me because they don't trust that I won't use that information to help settle the case and because the parties won't believe what I say about their opposition in the first place (obviously, they've pulled the wool over my eyes).
"How do you know he's not lying?" is a question mediators are asked on a regular basis. My answer is "I have no idea." But if you let your client talk to the opposition -- with any constraints, restrictions and control you wish to retain -- which I can orchestrate for you -- your client will be able to elicit the details that give any story a ring of truth (or falsity) while at the same time watching the body language that constitutes between 60 and 80% of all communication.
Would you try a case without 80% of the information you need? Of course not! And yet you're content to avoid a joint session when that session could provide you with between 60 and 80% more information than you had when you arrived on the morning of the mediation or settlement conference?
Suspend your disbelief in the mediator ("who-will-do-anything-to-settle-the-case") for just a couple of minutes. Remember that we're in possession of confidential information we cannot divulge to you.
Take our lead. And if you don't trust us to do so, for heaven's sake find a mediator you can trust!
Collaboration may be most amenable in areas where there is a need for ongoing relationships, like dissolving marriages that produced children, said Pauline Noe of Cambridge, a past president of the Massachusetts Collaborative Law Council. Noe suggested that discovery is often more fruitful in collaborations than in litigation, since collaboration requires full, prompt, honest and open disclosure of all relevant information, and vigorous good faith negotiation with full participation of all parties in an open forum.
Taking the long view as I'm now prone to do (by virtue of age and the fact that I generally only see litigation's end game) I continue to say that we're all involved in on-going relationships -- not just those people whose disputes are more personal than commercial.
Schopenhauer, in his splendid essay called "On an Apparent Intention in the Fate of the Individual," points out that when you reach an advanced age and look back over your lifetime, it can seem to have had a consistent order and plan, as though composed by some novelist. Events that when they occurred had seemed accidental and of little moment turn out to have been indispensable factors in the composition of a consistent plot. So who composed that plot? Schopenhauer suggests that just as your dreams are composed by an aspect of yourself of which your consciousness is unaware, so, too, your whole life is composed by the will within you. And just as people whom you will have met apparently by mere chance became leading agents in the structuring of your life, so, too, will you have served unknowingly as an agent, giving meaning to the lives of others, The whole thing gears together like one big symphony, with everything unconsciously structuring everything else. And Schopenhauer concludes that it is as though our lives were the features of the one great dream of a single dreamer in which all the dream characters dream, too; so that everything links to everything else, moved by the one will to life which is the universal will in nature.
It’s a magnificent idea – an idea that appears in India in the mythic image of the Net of Indra, which is a net of gems, where at every crossing of one thread over another there is a gem reflecting all the other reflective gems. Everything arises in mutual relation to everything else, so you can’t blame anybody for anything. It is even as though there were a single intention behind it all, which always makes some kind of sense, though none of us knows what the sense might be, or has lived the life that he quite intended.
A classic example of combative litigation -- YOU ARE NOT THE BOSS OF ME!
I'm tempted to just import Geoff Sharp's entire post on joint session vs. separate caucus mediation or, as Joe McMahon positions the split in current mediation practice in Moving Mediation Back to Its Historic Roots, "dialogue-based" v. "separation-based" practice.
I will give you a few excerpts, though, both Geoff's own thoughts and those of McMahon quoted by him (thanks to our mutual friend Stephanie West Allen at Idealawg).
If denial and avoidance are thought to be the most universal responses to conflict, it is important to consider whether separation-based mediation merely plays into and enables such a response to conflict. If so, it is time to evaluate whether mediation and facilitation were really intended to provide support for such denial...
Support for the market model of mediation ("the market knows what it needs and what it needs is the settlement conference") is claimed in the high settlement rates in commercial settlement conferences. However, a high percentage of civil cases always have settled, even long before mediation was in vogue...
McMahon asks of mediators; 'are you fully satisfied with the quality of dialogue among conflicting parties in the mediations in which you participate?'
What a wonderful question! In my case however, only occasionally.
As McMahon says, 'By broadly considering conflict and mediation, it may be possible... to move these processes back toward their historic roots—that being processes based on parties telling their stories in face-to-face dialogue aided by a mediator who can guide them to more effective communications.'
And though it is, as Geoff says, about the "timbre and tone of resolution," it is also about obtaining more satisfactory resolutions -- resolutions that not only satisfy more party needs, interests and desires but which invariably leave less value lying unused on the table when all parties leave the room.
I'll grill Geoff about this over dinner tomorrow night and get back to you on all of this.
Here, then, is the weakness of shuttle negotiation. The parties' attention is fixated on money. A fixation that neuroscientists tell us makes us ungenerous and anti-social -- the worst possible context for a successful settlement.
The next time you're facing a difficult negotiation or mediation, remember the salutary effect of small talk in helping yourself and your opponent focus on the commercial and human situation that has brought you to the table so that you can more easily resolve the business and the people problem at the heart of the litigation.
Whether justice and fairness are, at some level, hard-wired into us (see Brain reacts to fairness as it does to money and chocolate) or culturally controlled, it seems that Rawls' conception of "justice and fairness" based upon reasonableness and enlightened self-interest might flow more or less naturally from a mediated dispute resolution forum where the parties, rather than the mediator, are in control.
Emotions in litigation -- and at the negotiation table -- often run extremely high. It is for this reason that so many lawyers want to avoid joint sessions altogether and conduct their entire bargaining session in separate caucus with a "shuttle" mediator.
What I can tell you from three years of full-time mediation practice, however, is this -- when business people -- properly coached -- are finally willing to sit down and speak to one another, to explain their circumstances rather than their legal and factual position -- cases get settled rather quickly. (See Geoff Sharp's In Praise of Joint Sessions here)
Because they have more in common with one another -- including most particularly the dispute -- than with anyone else.
"Inordinancy" is not, I think, a matter of time but of focus. One's sexual interests might be classfied as prurient if they are stirred by a single act, item or physical characteristic and disregard the humanity of the object of one's desire. In feminist terms, pornography objectifies people, elevating their parts above the sum of their parts and using them to satisfy our own -- but not their -- desires.
And how is pornography like litigation, Ms. Pynchon?
After more than 10 years as a judge of this [Ninth Circuit Court of Appeal] I find that the flow of cases begins to resemble a moving train, with each window revealing a still life of an individual human drama. The sheer volume of cases, and the fact that we rarely see the faces of the participants--just written words on paper and, sometimes, the arguments of lawyers--makes it difficult to remember that there are human beings somewhere looking to us with hope and yearning for a decision in their favor. The law, too, is quite complex. Cases often turn on legal technicalities that bear only a tangential relationship to concepts such as fairness and equity. Justice, we tell ourselves--and I do believe this--is done if the law is applied without regard to the outcome in a particular case.
The artifacts of litigation -- usually called "briefs" and sometimes sprung into life as depositions or trial testimony -- make a fetish of one or more aspects of a complex human drama. Litigation sucks the people out of the play, requiring both litigants and attorneys to objectify and demonize one another. By the time the "case" is ready to be "mediated" or "settled," the people with the problem often feel as if they long ago watched the litigation train leave with someone else's story in it -- that the "still-life" Kozinski observes at a glance through the moving window has little to do with the people and a lot to do with process.
Are we interested in knowing one another? Would a genuine interest in the man Kozinski be more satisfying, finally, than the briefly titillating party joke we might wish to make of him? Do we privilege the prurient or the personal?
If you do this, you will no longer be capable of reducing Kozinski to a ribald joke or reveling in his public embarassment. You will recognize the humanity in him, which is the necessary pre-requisite to recognizing and forgiving the fallible humanity in all of us.
And litigation? Here's my unsolicited advice: Let your clients tell their stories to one another in a joint mediation session. Neither you nor they will thereafter be capable of reducing the "opposition" to a single demonic character trait.
I will say it again. Litigation is not about money. It is about justice.
The defense balks at paying Plaintiff at the point of a gun. The Plaintiff resists releasing the defendant from liability until satisfied that a wrong has been righted or never really existed in the first place.
You can accomplish justice with money. But you can accomplish it far more easily, and with far greater satisfaction for your clients, if you allow them to once again share the depth and dimensionality of their dispute with one another; harmonizing their mutual stories of injustice and betrayal.
In the meantime, I suggest we let Kozinski -- and ourselves -- off the hook by recognizing that the sum of the parts is greater -- and in the end far more interesting -- than the temporary public revelation of the smallest part of any man.
Cyberspace is weird and obscure to many people. So let's translate all this a bit: Imagine the Kozinski's have a den in their house. In the den is a bunch of stuff deposited by anyone in the family -- pictures, books, videos, whatever. And imagine the den has a window, with a lock. But imagine finally the lock is badly installed, so anyone with 30 seconds of jiggling could open the window, climb into the den, and see what the judge keeps in his house. Now imagine finally some disgruntled litigant jiggers the lock, climbs into the window, and starts going through the family's stuff. He finds some stuff that he knows the local puritans won't like. He takes it, and then starts shopping it around to newspapers and the like: "Hey look," he says, "look at the sort of stuff the judge keeps in his house."
Susan Estrich's 'take" in her post Good Humor, excerpt below:
If everyone who ever viewed or shared pornography were disqualified from judging the line between protected speech and criminal obscenity, we all would be in trouble. The problem facing Judge Kozinski illustrates what's wrong with the prosecution, not with the judge.
Which brings us to the broader point. Judge Kozinski's actions affect the reputation of the judiciary, on which rest foundations of the state, like public respect for the rule of law. To the extent that this public disclosure undermines public confidence in the judiciary or the rule of law, it's a very bad thing. There's a reason for the outrage that's expressed when the public hears about judges' bad behavior. As Stephen Gillers told the LAT, "The phrase 'sober as a judge' resonates with the American public."
The National Law Journal's compilation of Expert Opinionon the matter including legal ethics professor Ronald Rotunda's opinion that the material on Kosinzki's site was "demeaning, infantile, pornographic, [and] offensive," which just makes me want to see what type of internet porn the good Professor prefers.
Dust Bowl Refugee, High School Drop Out, Western Union Messenger Boy, Merchant Marine, Salesman, Lawyer, Judge, Husband, "Daddy" Step-Father, Grand-Father, Brother, Uncle, Cousin, Mountain Climber, Sailor, River Rafter, Story-Teller, Proud Capitalist, World-Class Worrier and Sometime Liberal Democrat (when married to one)
The Truth of Departure
-- W.S. Merwin
With each journey it gets
what kind of learning is that
when that is what we are born for
and harder and harder to find
what is hanging on
all day it has been raining
and I have been writing letters
the pearl curtains
stroking the headlands
under immense dark clouds
the valley sighing with rain
everyone home and quiet
what will become of all these
things that I see
that are here and are me
and I am none of them
what will become
of the bench and the teapot
the pencils and the kerosene lamps
all the books all the writing
the green of the leaves
what becomes of the house
and the island
and the sound of your footstep
who knows it is here
who says it will stay
who says I will know it
who said it would be all right
This is the force of faith. Nobody gets
what they want. Never again are you the same. The longing
is to be pure. What you get is to be changed. More and more by
each glistening minute. . . .
Let's for a moment assume that I had not surrendered the control of Dad's final days to his wife, into whose hands he has so indisputably placed them.
If you've been following this series, you may have concluded that my Dad's immediate family (step-children; my sister) are likely indifferent to, uninterested in or incapable of dealing with the end of Dad's life. My compassionate default is that these blood- and step-siblings are neither uninterested nor callously indifferent to my father's fate, but simply incapable of responding to this intensely emotional experience for family-historical, social, psychological, emotional or practical reasons.
Let's assume, however, that surrounding my father's hospital bed is a clamorous family, all expressing different concerns, desires, options, solutions and resolutions to the question whether to insert, or later remove, a feeding tube, remembering Ken Cloke's observation in his new book, Conflict Revolution, that a dispute occurs
not only between individuals, but in a context, culture, and environment; surrounded by social, economic, and political forces; inside a group or organization; contained by a system and structure; among a diverse community of people; at a particular moment in time and history; on a stage; against a backdrop; in a setting or milieu.
[These] conflicts were often fueled by different perceptions of the medical facts, different understandings of the prognosis, different interpretations of patient behavior (generally relating to whether the patient was experiencing pain and suffering) and different personal value hierarchies. As we searched for ways to help patients, family members, and staff understand the clashing cultures and discordant assumptions that animated their arguments, we realized that the substantive parts of our interventions were more than outweighed by the process elements. Searching for the right theoretical model steered us to the frame and the techniques of mediation.
The mediators in my readership will not doubt the efficacy of neutral-intervention in these decisions. As my own experience demonstrates, however, no one sends a mediator or even the palliative care nurse or social worker to your loved one's hospital room unless someone has "hipped" you to the fact that they are available to you.
Listen, my first husband was a social worker and it wouldn't have occurred to me to ask for one at the hospital unless my health care executive friend had told me to do so. Nor would I have known there was a palliative care nurse on staff unless my friend the hospital hospice director hadn't told me her name and how to contact her.
So What, if Anything, Could a Mediator Do to Assist the Family in the Circumstances Outlined in My Hypothetical?
Cohen has systems in mind, not merely interventions, so he begins his proposed five-step model with training (echoing my question to the social worker -- "don't they train these doctors in active listening?")
Much of what we have said before about managing emotions [/*] is relevant here, as is the clarification of "professional emotions" on the part of doctors. Negotiation training for doctors is a must. . . . Already the negotiation field is beginning to tailor training programs to health care professionals by using narratives and cases developed by doctors for doctors. , and discussion of appropriate techniques with simulation, exercises and feedback." . . . . .
More specifically, [others] identify five types of ADR training and education: marketing efforts (convincing stakeholders to buy-in),awareness education (informing users what ADR is and what role it plays in the organization),conflict management and communication training (generic training not geared towards a particular type of ADR, [r]ather, it is focused on increasing participants' understanding and acceptance of conflict and on improving their communication skills, including active listening and direct communication"), consumer/user training (focusing on what to expect in the ADR proceeding, how to prepare for ADR, how to identify interests, options, etc.),and training of third-party neutrals.
*/ But please don't let the family know that is what you are trying to do, i.e., manage, rather than support, their emotional responses to a loved one's final days.
[A] bioethical mediator [would] help to identify all the parties and their interests, and develop a common understanding of the medical facts and options. For instance, consultants might be called in to finely tune a prognosis.
When coming into [a case], the [bioethical mediation] team asks: Who are the parties to this conflict? What are their interests? Are those interests in conflict and, if so, how might the conflict be resolved or consensus forged? This formulation grew out of the clinical finding that most of the events labeled "bioethical dilemmas" were really "conflicts" that pitted members of the hospital team against each other, or members of the team against some or all of the patient/family constellation.
The Creation and Use of an ADR-Oriented Ethics Committee
Membership: . . . . What is indispensable is that the panel not be insiders. If having physicians sit on the panel is seen as essential, it may be useful to use physicians who teach at local medical schools or who do not practice at that particular hospital. . . . . .
Initiation: In keeping with the sequencing of low- to high-cost methods of dispute resolution, the process should be initiated at the request of the patient, her family, any member of the health care team, or the bioethical mediator if he or she is unsatisfied with the resolution at Step 2.
Methodology: Here there is a spectrum of formality that will depend on the individual hospital and its resources, ranging from advisory arbitration to mini-trial. In principle, there is no reason why the Committee might not offer multiple options along the spectrum of formality at the election of the parties. Depending on the level of formality chosen, the parties might represent themselves or seek legal representation.
Opinion: This should be delivered in writing, be well elaborated, and be the kind of opinion that can give the parties information relevant to how a court might decide the dispute.
Bindingness: What is essential is that someone present at the arbitration process has the authority to bind the hospital. If power imbalances favoring the hospital are a concern in the process, one possibility to "retilt" the system might be to make the arbitration "asymmetrically binding," making the hospital abide by the arbitration decision while the opposing parties are not equivalently bound. If there are concerns about this, some kind of safety valve could be provided. For instance, the binding nature of the Ethics Committee decision could be overruled by a majority vote of the Hospital's board of directors.
Having used Terri Schiavo's case as a jumping off point, Cohen suggests that the experience of her care-givers, elevated for a time into a national controversy (see Cloke above)
highlights what each of us fears about our own deaths: that we will not die with dignity, that our wishes may not be followed, that decisions on our treatment may tear apart our families and bring rancor to the lives of those we love. Terry Schiavo's case also shows that in quelling our fears, the adjudicatory model offers scant succor.
While in theory, advanced directives offer a promising resting point for American jurisprudence's unsatisfying oscillation between full-on adjudication and completely private determination, in practice they have never caught on. The ideas and techniques ADR has
cultivated over the last thirty years offer us, and our families, a chance to do better. ADR can:
Help to resolve "misunderstandings" that the adjudicatory model tends to treat as full-blown "disputes;"
Identify intermediate options that satisfy both parties and remove the need for rights-oriented dispute resolution;
Offer a lower-cost form of rights-oriented adjudication when a dispute must be "decided;"
Enable the patient and free him from the debilitating "object" status accorded to him by adjudication; and
Offer emotional settlement lacking in the typical litigation process.
Concerns about cost, due process protection, and institutional resistance to implementing such an approach add complexity, but this article has suggested possible approaches to solve those problems. Moreover, these concerns have to be compared to those attaching to the status quo regime that consists of large amounts of "lumping" it. While the details of an appropriate ADR framework will vary from institution to institution, this article has offered a five-step model for implementing an ADR-informed approach to end of life decision-making, as well as discussing alternative options at every stage. It is only by
combining the work of fields such as medicine, law, and organizational development that we are able to provide a thing of major concern to the aging population of America: the assurance of dying well.
Dr. X promptly sent me a social worker who was willing and able to answer all of my questions about my father's present condition; the common courses end-stage Parkinson's takes; and, the options available for his care -- aggressive treatment; tube feeding with hydration; palliative care; and, in-home hospice services.
I left the hospital that evening feeling not just better informed but comforted knowing there were people who were educated, trained, skilled, and talented at helping families make the type of decisions we were struggling to make with integrity and compassion.
"This Man is Nowhere Near Death's Door"
I was awoken from a light and troubled sleep by a telephone call from my step-mother, who was now just as agitated with a physician as I had been the previous afternoon.
She spoke with urgency.
"That doctor you fought with," she said, "he sent a neurologist to your father's room at midnight. Some woman I'd never met before. I think I might have insulted her."
"Good for you," I responded, thinking it progress for Juanita to question authority.
"It's your doing," she said flatly.
I was uncharacteristically silent. I couldn't tell if she was expressing gratitude or blame.
"It's because you yelled at Dr. X. He wouldn't have sent that woman unless you'd done that."
I still couldn't tell. It didn't really matter. We were both doing the best we knew how.
I asked for the story of the new neurologist as I slid out of bed to avoid waking my husband.
Juanita was huffy. "She examined your dad for an hour and then said his medication was completely wrong. She prescribed him new medication and I don't know what right she has to do that."
"What did she say about his condition?"
I could hear Juanita take control of the conflicting emotions this doctor's diagnosis must have raised in her.
"That doctor said, 'this man is nowhere near death's door.'"
The Parent Trap -- Hey, Hey, Hey
My parents' divorce in 1961 coincided with Walt Disney's upbeat movie about marital collapse and child custody -- The Parent Trap. The brilliant Hayley Mills, squared into twins separated in infancy, divided like community property between the beautiful Maureen O'Hara and dashing Brian Keith upon their divorce, and re-united as teens to heroically reignite "their" parents' romance, was as far from my own experience as possible. Children aren't capable, really, of processing this particular complex set of emotions: relief that a violent father and physically fragile mother will no longer be scaring the wits out of their children; and, the aching loss a father leaves behind when he believes that divorce means removing from his life everyone associated with his marriage -- including his children.
In other words, at nine years old, I didn't know whether to be happy or sad; guilty or justified, in response to my Dad's sudden departure. But the idea of wilfully re-uniting this mismatched pair -- though perhaps some other child's Disney fantasy -- was not my own.
Nearly forty years later when my father, in his first semi-psychotic episode, left and later divorced his second wife, his second set of children abandoned him.
By the time my father lay in his hospital bed last week -- either "on the brink of" or "nowhere near" death -- the person with the absolute legal right to decide his fate was his wife of a mere five years duration. And the only "child" with any interest in stepping forward to help make that decision was me.
Nearly every condominium complex harbors an outlaw -- the man, woman, couple or family who refuse to follow the rules. The young couple who blasts the woofers off their stereo system at 3 a.m. The elderly woman who doesn't clean up after her dog. The raucous family that plays "Marco Polo" in the community pool after midnight.
Offended and outraged, other homeowners make demands on their volunteer board who contact the (often unresponsive) management company. The HOA board does its best. It issues warnings to procure compliance. To no avail. Eventually, someone reads the CC&R's. They learn that the Board has enforceable legal duties and the homeoweners actionable legal rights.
Welcome to community mediation -- the non-zero sum, value-based, rights-seeking, joint session transformative dispute resolution process. We're well trained and we're free.
But can we deliver justice?
Attorneys, the Law, Mediation and Justice
Maybe it was just my G-g-g-generation, but I went to law school primarily because I was interested in the delivery of justice. Although my primary involvement in the 20th Century 's civil rights movements was as a Vista volunteer at an activist women's center in San Diego in the early 1970's, I wasn't simply pursuing my own narrow self-interests when I applied to law school.
As early as I can recall -- long before I'd conclude that 1950's and '60s women were oppressed -- I'd already developed a deep longing for the reconstruction of adult relationships along the lines of fairness. This must be atypical childhood longing premised upon our predicament of being physically small and powerless. An "unjust" world that rewards only power would not ensure our survival while a world in which everyone is valued and treated fairly would.
Couple a child's sense of justice with televised images of "the law" aiming fire-hoses at peacefully demonstrating "Negroes" and you get a life-long commitment not simply to the "rule of law" but to the necessity for that "rule" to be premised upon justice.
Are Negotiated and Mediated Resolutions Trumping Justice?
These are just a few of the reasons it troubles me so when scholars suggest that mediated and negotiated resolutions to litigated disputes are unjust. Seeyesterday's post here and the article that prompted it, Justice Trumps Peace (etc.) here. If mediation is truly what its critics contend it to be -- a full-frontal assault upon the rights gained by marginalized citizens during the Civil Rights era -- I'm in serious moral trouble here.
Consider this contention in Justice Trumps Peace:
“ADR rhetoric” reinforce[s] a conservative challenge to “the law and reform discourse of the 1960s, a discourse concerned with justice and root causes, and with debates over right and wrong.” “The rights theme, consistent throughout earlier debates over legal resources,” was conspicuous by its absence in “the policy discussion on alternative dispute resolution.” . . . .
Laura Nader . . . not[ed] that ADR’s “process of communication” ethos took necessary rough, ideological edges off claims, and fostered what she called “coercive harmony.” Nader argued that ADR was permeated with “conformist ideology,” which was employed to “suppress the realities of class, gender, and racial antagonism” endemic to American society, and as such, it comprised an “unreal law movement.” Nader contended that ADR’s emphasis on conciliation meant that critical considerations of “blame or rights” were “avoided and replaced by the rhetoric of compromise and relationship.” She concluded that “cultural notions of justice are factored out.”
This tendency to screen-out unpleasant, divisive, but nonetheless vital social concerns supports Fiss’s characterization of ADR as a “sociologically impoverished universe,” in which critical issues of class, race and gender are subsumed to construct “a world composed exclusively of individuals.”
Rawls asked us to think of justice as a matter of agreement. He suggested that we think of the principles guiding a just society as the ones that individuals would agree to -- with the crucial proviso that they do not know where they themselves would end up in society, on the top or the bottom. They would thus act from behind a "veil of ignorance . . . Given this constraint, no individual could tailor the principles of justice to his or her special talents or circumstances, which is why Rawls called this approach "justice as fairness." Rawls suggested that the principles that would be agreed to would be ones that were deeply committed ot basic human rights and had a strong presumption in favor of economic equality. Inequalities would only be tolerated if they most greatly benefited the least well off.
According to Ryan, Rawls concluded in his later writings that the reciprocity inherent in bargained-for resolutions and negotiation's search for mutual advantage were insufficient to ensure justice. Rawls therefore shifted the basis of his theory from the search for rational resolutions to the implementation of reasonable ones. "The question to ask of principles of justice," posited Rawls, was,
what were the most reasonable ones for people to agree to given the nature of our society and the nature of who we are? Justice, thus reconceived, lost the harsh individualism that Rawls' earlier theory seemed to possess. The stress on reasonableness meant that people taking others into account was an essential part of what justice was all about. His theory also moved away from his earlier hyper-abstraction, insofar as we talk of what is "reasonable" invariably refers not to some hypotheitcal persons with hypotheical aims but to real people -- in this case, us, here and now.
John Jones had practically memorized the CC&R's governing the Board's duties and the homeowner's rights. His wife repeatedly broke into tears as she described sleepless nights spent on the living room couch where the upstairs neighbor's early morning antics were the least disturbing. The volunteer Board member was sympathetic but at a loss for solutions. She'd contacted "management" and sent warnings to the miscreants, all to no avail.
Only punitive measures would do at this point, said Jones. The CC&R's called for sanctions to be imposed on rule-breakers but lacked a means of implementation and enforcement. The HOA representative indicated that she not only had the Board's authority to settle the matter, but to impose any necessary and reasonable rules to flesh out the CC&R's inadequate policies.
"We want monetary sanctions imposed," Jones was saying, "sanctions that can be made liens against the property just as HOA dues can be."
"What about notice?" I asked. "And a hearing? There's nothing in the rules about the procedure for imposing sanctions."
"24 hours!" shouted John. "If they don't comply, a $500 sanction to be made a lien against their property. And another $500 for every day they continue to violate the noise restrictions contained in the CCR's."
Not knowing about Rawls' veil-of-ignorance-just-rule-making principle, I nevertheless wondered aloud whether Mr. and Mrs. Jones understood that the bylaws they were suggesting could be used by their scofflaw neighbors as easily as they could be pursued by the Jones.
"What set of rules do you think would be fair?" I asked.
Two hours later, we had achieved what my Con Law professor would have called "procedural due process" -- a set of rules that would likely pass Constitutional muster that camefrom the parties -- not from the mediator.
Whether justice and fairness are, at some level, hard-wired into us (see Brain reacts to fairness as it does to money and chocolate) or culturally controlled, it seems that Rawls' conception of "justice and fairness" based upon reasonableness and enlightened self-interest might flow more or less naturally from a mediated dispute resolution forum where the parties, rather than the mediator, are in control.
Agree with Fiss, Ellinghausen, Laura Nader and Carrie Menkel-Meadow or not, there shouldn't be a mediator practicing who is unaware of these serious criticisms of the mediation process. If we're not aware of them, we can't avoid the potential for "muscle" mediation to prevent even the aspirational goal of delivering justice without regard to gender, color, power, social status, wealth and all the rest of the social markers the law has been so careful to avoid paying obeisance to.
The New York Times reports this morning that there were 243,353 foreclosure filings in April alone, nearly three times the total in the same month just two years ago," making it all but inevitable that "many millions of American families will be losing their homes before long."
In The Scars of Losing a Home, Times writer Robert A. Shiller reports that following a brief moment of sympathy for such unfortunates, we will almost instinctively turn the full force of our judgment upon them.
[I]nstead of having sympathy for these homeowners, many people blame them for their predicaments. That isn’t surprising. It’s an example of a general tendency that was documented by social psychologists decades ago.
In his 1980 book, “The Belief in a Just World: A Fundamental Delusion,” Melvin Lerner, a social psychologist, argued that people want to believe in the inherent justice of the economic system in which they live, and want to believe that people who appear to be suffering are in fact responsible for their own situations.
He provided empirical evidence, derived from experiments, that after an initial pang of sympathy, people tend to develop negative views toward others who are suffering. That negative tendency seems to be at work today.
Losing "Everything" -- How Bad is It?
When the Northridge earthquake threw me out of bed in the early morning hours of January 17, 1994, my financial life was sliding out of control. By May, I'd be laid off from my job as an associate attorney in a prominent Los Angeles law firm and by July I'd be signing bankruptcy papers. Foreclosure would follow.
More pertinent to the morning of the earthquake is the fact that neither my downstairs neighbor --the HOA's President -- nor many of the other owners in my 50-unit condominium complex were speaking to me. Not only was I failing to pay my HOA dues in a timely fashion, I had the scent of failure about me.
Neighbors in Los Angeles tend to come together only following natural disasters. Fire, flood, earthquake, O.J. These were the seasons of the year in which the the federal government erased my indebtedness; the bank foreclosed on my home; and, I was thrown up on consumerism's shores without any credit cards.
On the morning of the earthquake, the shame associated with my financial distress kept me from joining my neighbors on the sidewalk as aftershocks continued to wrench the foundations of our building. Instead, I opened the French doors to my small balcony, pulled the pillow and blanket from my bed and laid down on the living room floor in order to take comfort from the small talk rising up from the street below.
By June, foreclosure papers would be posted on my front door and I would be living in the "studio" apartment good friends created for me out of the chaos of a spacious but unused basement in their small Echo Park house. As L.A. began the slow re-construction of its streets, apartment buildings and houses, as fallen chimneys were rebuilt and freeways restored, I too would begin a recovery of my own, not only materially, but spiritually as well.
Another story in today's Times recounts the shame white collar workers experience in their hot-house communities when they are laid off from high paying jobs. In The Language of Loss for the Jobless we learn that failure leaves our friends speechless and ourselves ashamed. "Victim-blaming," writes Hoffman,
dates to Job’s mourners. “It helps people who are still employed to believe that people who have been laid off did something wrong,” Ms. Baber said. “If you can blame them, then you can feel protected. If it’s just random — ‘they moved customer service to Dallas’ — then nothing will protect you either, and that’s scary to people.”
Though we may not know what to say, most of us know what to do. As the wife of one laid off executive recounts -- “Friends have kept us alive. . . and given us clothes for our kids. One friend just found a job for my husband.”
Material Losses and Spiritual Gains
Our culture suffers from the burden of success. Not only does failure tend to cause us shame, many see the inevitable losses that necessarily punctuate even the most "successful" careers as moral failings. And let's not be coy -- often bad decisions and poor judgment cause successes that are precariously balanced and relationships that are already strained to "suddenly" collapse.
Because we tend only to share our stories of success and not our failures, we hardly know what to do when misfortune knocks on our door. That's why today's Times "recession" stories made me want to share my own tale of loss. Because we too often feel as if we can only share the "success" bits of our personal family narratives.
Here's the good news for those facing bankruptcy and foreclosure: if you are able to find a community of people who are also recovering from life's inevitable reverses, you will eventually find that success -- with its attendant pretense of imperviousness to disaster -- is actually more alienating than its opposite. I consider myself more than lucky to have found such a community. One that taught me how much more important it is for me to be of service to my fellows than to reach some perceived pinnacle of success. One that taught me that it is better to be a worker among workers than it is to be "best in show" One that taught me that my fortune lies in neighborliness and my wealth in the quality of my relationship with my fellows. One that taught me, finally, that it is better to weather flood, fire, earthquake, riot, and recession in a community in which I am simply one of its fallible members than it is to huddle under a blanket holding onto my fragile self-esteem while yearning to join the company of my neighbors on the street below.
(see criticism of Shiller's commentary, in The Mess That Greenspan made here -- The Mess is another Forbes Business and Financial Network Blog that I've enjoyed reading)
We come on the ship they call the Mayflower
We come on the ship that sailed the moon
We come in the age's most uncertain hour
and sing an American tune
But it's all right, it's all right
You can't be forever blessed
Still, tomorrow's going to be another working day
And I'm trying to get some rest
That's all I'm trying to get some rest
Recently, I excerpted the expressed concerns of in-house counsel about ineffective mediators. Among the complaints was some mediators' refusal to see or acknowledge the other side's "irrationality" As Where's the Magic from the U.K. online Mediator Magazine noted:
It can be frustrating where they [the mediator] can see the irrationality of the other party, how their claims and positions are unsubstantiated, and choose to ignore it,' says Frank Aghovia, legal adviser at Exel Plc. He continues, 'It's like saying, "I know he's talking out of his backside, but can you give him what he wants anyway." He concludes that 'steadfast neutrality is irritating and wastes time.'
Helping litigants and their attorneys reassess their case is one of the mediator's greatest challenges. The mediator intervenes only after the parties' dispute has reached stalemate. Each party to a stalemate has negative attitudes about his adversary that are maintained and prolonged by three psychological mechanisms: selective perception, self-fulfilling prophecy, and autistic hostility.
Selective perception: people tend to select those perceptions that tend to confirm their existing attitudes, and ignore or discount information that would disconfirm their existing attitudes.
Self-fulfilling prophecies: people with negative attitudes about their adversary engage in conduct that provokes the adversary's "expected" response, which confirms the party's original expectation, and a vicious cycle ensues.
Autistic hostility: Parties in litigation have stopped talking with one another about their dispute, communicating only through their attorneys. The social scientists would say that such people are "stuck in autistic hostility, that is, their hostility is perpetuated by their refusal to communicate."
Robinson answers his own rhetorical question in this fashion:
When talking to the UFO-guy, I am totally with him. Listening, asking questions, trying to understand whether his delusion actually has some hidden meaningthat might suggest a way to resolve the dispute without asking the other party to "buy in" to the UFO story.
After giving Mr. UFO an opportunity to have his say and to experience -- perhaps for the first time ever -- another human being's willingness to temporarily suspend his disbelief -- I begin to gently "reality test." To do so, I do not have to doubt Mr. UFO's story. I can suggest, however, that not everyone is as understanding as I am.
"Have you told this story to many people?" I might ask. "And what has their response been?" Do you have any reason to believe that a judge or jury might be more likely to believe this narrative of events more than, say, your mother, sister, cousin, wife, best friend, etc. were?
Robinson's suggested action between the rock of understanding and the hard place of consensual reality is shrewd and effective. It neatly avoids the problem recently raised by my friend and colleague Jeff Kichaven who has likened piling rationales atop one another for the purpose of changing another's mind to raising your voice for the purpose of communicating with a deaf man.
Harvard Business School professors Deepak Malhotra and Max H. Bazerman address the irrationality problem in another fashion in their tremendously useful book Negotiation Genius.
"Whenever our students or clients tell us about their 'irrational' or 'crazy' counterparts," they write, "we work with them to carefully consider whether the other side is truly irrational. Almost always, the answer is no."
Malhotra and Bazerman list the mistakes that lead us to call our negotiating partners "nuts," "delusional" or "evil" as follows:
Mistake No. 1: They are Not Delusional, They are Uninformed.
If you can educate or inform your bargaining partner, say Malhotra and Bazerman
about their true interests, the consequences of their actions, the strength of your BATNA, and so on - there is a strong likelihood they will make better decisions . . . [I]f someone says "no" to an offer that you know is in her best interest, do not assume she is irrational. Instead, work to ensure that she understands why the offer is in her best interest. She may simply have misunderstood or ignored a crucial piece of information.
Mistake No. 2: They are Not Irrational; They Have Hidden Constraints
In negotiation, a wide variety of possible constraints exist. The other side may be constrained by advice from her lawyers, by the fear of setting a dangerous precedent, by promises she has made to other parties [this is a particularly common constraint in IP infringement actions] by time pressure and so on. [D]iscover these constraints . . . and . . help other parties overcome them . . . rather than dismissing others as irrational.
Mistake No. 3: They are Not Irrational; They Have Hidden Interests
[P]eople will sometimes reject your offer because they think it is unfair, because they don't like you [or are tired of feeling as if you don't like them] or for other reasons that have nothing to do with the obvious merits of your proposal. These people are not irrational; they are simply fulfilling needs and interests that you may not fully appreciate. . . [I]nvestigate: "What might be motivating her to act this way? What are all of her interests?"
But What if They Really Are Irrational
If your counterpart truly is irrational -- in other words, he is determined to work against what is in his best interest -- then your options will be fewer. You can try to push through an agreement despite his irrationality, you can try to "go around him" by negotiating with someone else with authority who seems more willing to listen to reasons . . . or you may decide to pursue your BATNA because his irrationality has eliminated all hope of creating value.
I have a friend who is, literally, a rocket scientist. He says that there are no problems which cannot be solved -- only problems that we don't yet understand. This is as true in negotiation as it is in rocket science. In both cases, the wisest course is to assume you know nothing and begin asking the type of questions that would help learn something.
The friendly bailiff unlocked the small courtroom. After telling me to make myself at home, he pointed to a small red button on the wall. “If you need me, just press that button and I’ll be in here faster than you can blink and eye. It’s an emergency button.”
“Ok, thanks,” I replied, and began to unpack my briefcase.
“I mean it,” he said. “Just press the button. Maybe you should set up your chair so you’re near it.”
I gave him a long look. “You seem to want me to know about that button. Is there something else you want to tell me?”
I'm asked this morning by an ADR colleague whether we can criticize diversity without sounding like racists. The question itself is problematic because it not only assumes a racial divide, it places "us" on the "white" side of it.
introducing supplier diversity to the ADR profession [by] extend[ing] business opportunities to certified minority and women ADR neutrals. These efforts, coined as "second tier," allow Shell to influence prime or majority ADR firms, with whom they do business, to also contract with minority and women owned ADR firms within the business community.
In the upcoming months Shell will be targeting . . . ADR services to participate in second tier efforts. Shell astutely recognizes that by embracing the concept of inclusion, the company will rise to a higher level, reflecting its belief that it "will benefit from diversity through better relationships with customers, suppliers, partners, employees, government and other stakeholders, with positive impact on the bottom line."
I'm assuming that my questioner does not agree with the "affirmative action" aspect of this program. Having debated the affirmative action issue since I began law school at U.C. Davis where the Supreme Court Bakke decision originated, I know well how divisive this issue can be. But it is an important issue -- an issue critical to a nation not only "conceived in liberty" but "dedicated to the proposition that all men (sic) are created equal."
So Let's Take a Look at ADR and Diversity
I'll ask the academics over at the ADR Prof Blog to correct me if I'm wrong.
I understand the academic criticism of mediation to be this: in the immediate post-civil rights era while greater legal protections have been afforded to women and under-represented minorities, the "people" have been channeled into a system -- mediation -- that lacks the prejudice-flattening constraints of the rule of law. More disturbing, say critics, is the fact that this "lawless" system is largely presided over by -- excuse me if this offends anyone -- OLD WHITE MEN.
I've learned more about racial bias talking to my liberal (white) "unprejudiced" friends this election season than I have since I participated in the "second wave" women's movement in the early nineteen seventies (remember consciousness raising?) I do not judge them, nor myself, for our necessarily limited view which just happens to be that of the dominant culture.
I know we still have a serious racial divide because when I talk to my educated and liberal African American friends they say things that shock me. Things like -- the U.S. may have started the AIDS epidemic to rid the world of Africans. OK. I get it. There's something about their experience of America that is so radically different from mine that I think their point of view is, frankly, just a little nuts. This is what I do know -- I will never truly be able to see the world from their point of view.
That said, I do think we can criticize people for taking advantage of "diversity" issues to forward an agenda -- or their own personal advancement -- other than forwarding diversity itself. We can criticize those who would deepen the divide to profit from it.
If I could write a sentence in a circle at this point, instead of linearly as the language requires me to do, I would do so. Here is what I understood Obama's response to the question of the racial divide in America to be.
Acknowledge it Heal it Move on Heal it Move on Acknowledge itMove On Heal it Acknowledge it
There are no periods in this sentence because this activity needs to be constant and on-going. Because we will always be stuck in our own point of view. Because in-group and out-group prejudice will always be with us. And because the more visible markers there are for "otherness" in others, the more prey we are to the error of dividing the world into "us" and 'them."
The answer? Diversity. Vigilance. Education.
Toward that end, here are some ADR Diversity resources:
Center for Dispute Resolution, whose mission is to "to promote and provide education and comprehensive approaches to dispute resolution that constructively serve the needs of our culturally diverse society."
My first day of mediation training progressed in somewhat the same fashion as my first few weeks in Civil Procedure. I remember struggling with the theoretical bases of jurisdiction in Pennoyer v. Neff one day only to be told the following week that Pennoyer was no longer the law. “Why,” I remember thinking, “did we even bother with Pennoyer when this Buckeye case about an exploding boiler now seems to be the law? Or would it be replaced next week as well?”
Law school, which taught me to “think like a lawyer,” was the precise opposite of my new mediation studies. Now, it seemed, I was being trained to stop “thinking like a lawyer.” Still, mediation, like the law, was full of conflicting ideologies from which it appeared I was required to choose.
It was easy for me to be evaluative: I had 25 years of legal practice in my backpack. I learned Dr. Cialdini’s “Principles of Ethical Influence”—Reciprocation, Scarcity (the rule of the rare), Authority, Commitment, Empathy, and, Consensus. These power principles helped the mediator to “make the other side see reason” when called upon to do so.
But the evaluative style was not the only prescribed route to mediation mastery. There were many who favored facilitation. The facilitative mediator first creates an atmosphere of hope and safety before helping the parties locate areas of agreement and mutual benefit. Here, the mediator is a follower or helper on the path to resolution, like the protective figures who appear early in a hero’s journey to enlightenment.
You can’t immerse yourself in mediation for long before you hear the clamor of the transformative crowd. Facilitative mediators, say the transformative folks, too often present themselves as wizards who intrude upon the parties’ conflict with their own agenda—usually “resolution be damned, let’s settle this darn thing!” The transformative mediator lets the session wheel out of control if that is where it is eager to go. Conflict is not seen as a state to be avoided or suppressed. Like a loving mother following the course of her child’s flu, the transformative mediator provides the parties with encouragement, opportunities to rest, lots of fluids and a metaphoric place to lay their heads as the conflict runs its natural course.
When I first brought this tangle of methodologies to the few master mediators I know, they all made short work of it with the scalpel of experience. “You are the technique,” they instructed. “Just stay in the process. Don’t guess. Ask questions. Listen. Don’t give up before the miracle of mediation happens.”
Now, four years into a full-time ADR practice, I am still struggling to embrace the entire dispute—the business or people problem that found its way to an attorney because of the justice issues with which it was burdened. I often feel that I’m walking a razor’s edge. I will never stop “thinking like a lawyer.” Nor will I stop pursuing this new way of thinking—one that looks for the opportunity to finesse the legal impasse by using the problem itself as an opportunity to broker a deal.
Why mediation? For me, it’s simply a broader canvass on which to paint a new picture. How mediation? In baby steps, one after the other, in just the same way I learned to be a litigator and trial attorney. How can the Human Factor help with your own life and legal practice? Stick around. Miracles are common here. We think you’ll enjoy the ride.
I give you only the article's conclusion, daring you to click on it without reading it to the end.
The overarching question of why the bank didn’t settle remains a puzzle.[The Bank's counsel] thought he gave the bank solid advice. All the lawyers who joined in the bank’s defense hold to that position: Legally, they contend, the bank was within its rights in seizing the $1.7 million.
But the case ran away from them. It got bigger and bigger and worse and worse. And there was no stopping it. One defense lawyer observed, “It went to hell in a handbasket.”
Maurice Mitts says his client is willing to call it quits for the $56 million. But First Union still isn’t willing to pay a big number. Mitts isn’t surprised.
“ ‘We know the law, we are the law, and too bad for you,’ ” Mitts said. “That’s been their attitude all along.”
Thanks to the Philadelphia law firm of Mitts Milavec, LLC for fighting the good fight and posting this dynamite legal tale.
I talk a lot in this blog about community; about the need for all of us to understand that when you drill a hole in the other guy's side of the boat, you sink too. There's something about disaster on a grand scale that brings the best out in us -- creates heroes. And maybe, if you're inclined to ask why "bad things happen to good people" the answer is that we need to be reminded of our common humanity; common fragility; and, our common obligation to serve as stewards of the planet and all life on it.
So it is with more than a small amount of pleasure that I announce the book launch for my good friend Cathy Scott's memoir of the heroic pet rescues that took place in the wake of Katrina.
Cathy was one of the "kids" in my neighborhood fom the time I was five years old until we all left the old neighborhood for our adult lives. She was also a member of the first writers' group I was ever part of -- Sisters of the Pen -- a neighborhood "club" we started when I was in the sixth grade and Cathy just entering high school.
Only Cathy has truly fulfilled the dreams of that small group of children and teenagers. This is her sixth or seventh book and the one that I just know is going to sell a million or more copies for her.
On display at the Welcome Center patio deck during the event will be Ark, a full-sized replica of a flat-bottomed boat used to save animals from floodwaters. It was created by Cyrus Mejia, in-house artist and a co-founder of Best Friends . The 4-by-10-foot boat is covered in a unique collage of animal admissions forms (with rescued pets' pictures), photos from volunteers, satellite images of Katrina, maps of New Orleans and strips from pet product bags used during the rescue effort.
Volunteers from Katrina will be at the event, and many Best Friends staffers who worked in the region will be attending too, so it will very much be a reunion. While book signings are scheduled for other parts of the country (including New Orleans on the third anniversary of Katrina), this is the kick-off event and a great opportunity to visit the sanctuary.
A new Holiday Inn Express has opened in Kanab (435-644-3100), so if the sanctuary cabins and cottages or other hotels are full, the new one will probably have openings. Summer is a busy time in the area, because of nearby Zion, Bryce and the Grand Canyon, and booking early is highly recommended.
It is a truism that litigation tends to get worse rather than better over time. This is as true in the law as it is in physics -- things fall apart. Your client's clean and righteous narrative tarnishes over time; grows more complex and filled with contradictions. It's a little like a political campaign. Barack's ground-breaking race relations speech and Hillary's single tear aside, Clinton and Obama tend to look worse, not better, over time. We all do.
Whether the value of your legal "case" is up today or down tomorrow turns not only upon the most recent documents produced, pre-trial motion won or witness deposed, it also turns on those things that fall apart over time -- including currency exchange rates.
The micro-economics of settlement timing include corporate events such as quarterly and year-end financial reporting requirements; potential mergers and acquisitions; and, how much financial bleeding your client's divisional president can take this year before worrying about demotion.
In international disputes, currency exchange rates loom large in the macro-economics of settlement timing. My own last really "big" case before I left practice was potentially worth a quarter billion dollars in "hard" damages -- the total projected clean-up costs for 500 toxic waste sites in every Canadian province.
The Canadian dollar was not only weak at the time, it was weakening. Though the question of whose currency would control was contested, my client was confident that Canadian dollars would eventually govern since clean-up costs by the American plaintiff would be paid in Canadian dollars. I remember a time when the Canadian dollar was tumbling in value so rapidly that every time I saw opposing counsel in court I'd remind him of the day's exchange rate with a warning that "your case isn't getting any better over time."
Settlement timing in that case was motion-driven, however, and the matter did not settle until after the entry of a pre-trial judgment in my client's favor pending appeal.
Though I was (and would continue to be) driven by pre-trial losses and victories, savvy settlement counsel would be keeping an eye on macro-economics -- which would, in any international litigation, require someone to be tracking currency exchange rates.
It Pays refers to recent work done by Kellogg School of Management Professor Adam Galinsky, who has demonstrated (with colleagues William Maddux -- (INSEAD -- Debra Gilin -- St. Mary's U. -- and Judith White -- Dartmouth) that success in negotiations depends on focusing on the head and not the heart. In other words, it is better to take the perspective of negotiation opponents rather than to empathize with them. (You may remember Galinsky as the academic responsible for demonstrating that the person who makes the first offer will (nearly) always get the larger share of the delta between the two parties' "bottom lines." See Making the First Offer here).
Now Galinksy and friends inform us that we are far more likely to reach a negotiated resolution to a conflict if we use our heads rather than our hearts. As It Pays reports:
Perspective-taking, according to the study published in the April 2008 issue of Psychological Science, a publication of the Association for Psychological Science, involves understanding and anticipating an opponent's interests, thoughts, and likely behaviors, whereas empathy focuses mostly on sympathy and compassion for another.
"Perspective takers are able to step outside the constraints of their own immediate, biased frames of reference," wrote the authors. "Empathy, however, leads individuals to violate norms of equity and equality and to provide preferential treatments."
The researchers performed a total of three studies designed to assess the relationship between successful negotiations and perspective-taking and empathy tendencies. In two of the studies, the participants negotiated the sale of a gas station where a deal based solely on price was impossible: the seller's asking price was higher than the buyer's limit. However, both parties' underlying interests were compatible, and so creative deals were possible. In the first study, those participants who scored highly on the perspective-taking portion of a personality inventory were more likely to successfully reach a deal. In contrast, higher scores on empathy led dyads to be less successful at reaching a creative deal.
Why Enlightened Self-Interest Trumps Sympathy
Just when you were about to stereotype "negotiated resolutions" as commie-pinko limp-wristed new age aquarian left-of-liberal kum-by-ya marshmellow toaster solutions to the problems of (excuse me fellas) real men -- along comes new research once again demonstrating that negotiation requires hard heads rather than soft hearts.
Because our competitive natures ("I need my stuff to survive") will almost always trump our collaborative inclinations ("we need each other to survive"). If this weren't so, the world wouldn't be divided into its current "pie pieces" -- the first, second and third worlds for instance.
More particularly, because distributive non-interest based bargaining is all about getting "our share" of a fixed pie while interest-based or integrative negotiations require the parties to: (1) learn about and attempt to satisfy their bargaining partners' often non-apparent needs and desires; and, (2) to collaborate in an effort to find ways to satisfy those needs and desires in novel and creative ways, reaching an integrative agreement becomes much more likely than reaching a purely distributive one.
Because the integrative deal will -- by its very nature -- serve more of both parties' interests than would its distributive counter-part.
Perspective-Taking, Sympathy and Foreclosure
I don't know my neighbors well. They have a small family with very young children and keep pretty much to themselves. I understand from the local grapevine, however, that they're selling their house because one of them lost their job and they can't make the mortgage payments.
If we lived in another country or if the neighborhood belonged to certain religious sects that make it their business to take care of their own, we might all come together to help the neighbors save their house. But we don't.
We have and express a lot of sympathy when we discuss our neighbors' plight. "Must be hard for the kids," we say, "and the parents have worked so hard to improve the property. It would be a shame if they lost their equity."
Our sympathy, however, does not lead us to trump our self-interest (which includes simply "keeping to ourselves") in favor of the interests of the neighbors.
If, however, we learned that the neighbors were about to sell the house to a local fraternity, you can put easy money on the neighborhood mobilizing into action to find a solution. And once the neighborhood starts looking for an affordable solution to a neighborhood problem, the chances that the interests of the distressed family and their (temporarily) better-off neighbors will intersect and that new resources will be brought to the table ("hey, George, I know a lawyer who specializes in these things" or a banker or a politician or a journalist for the L.A. Times) increase exponentially.
Heck, instead of hiring lawyers to stop the sale to the fraternity, we might put together an emergency neighborhood loan-fund. Or simply help find the unemployed neighbor a new job. There are a lot of resources in my neighborhood. And many good-hearted people. But I'm afraid modern American folk-ways just don't allow for a neighborhood solution to one of its member's problems. Until, that is, our own self-interests are threatened.
So it might seem counter-intuitive to say that mentally putting ourselves into another's shoes to ascertain their interests needs and desires (perspective-taking)is more likely to create a "deal" between people than simple sympathy.
But we didn't survive as a species because we're particularly loving. We survived as a species because its in our best interest -- our only interest -- to cooperate with one another.
we assimilate information based on our existing biases (remember the OJ verdict);
even when told we're doing so, we continue to organize information in such a way that it supports our existing opinions;
the receipt of additional information, without more, will simply "confirm" existing biases; and,
to make a difference in the parties' views of the merits of their case, mediation practices must include techniques for de-biasing the parties.
Research subjects were given the identical "case" materials and randomly assigned roles as "Plaintiff" or "Defendant." The subjects were put into bargaining pairs and asked to: (1) estimate a "fair" award by a Court to the Plaintiff; and, (2) to attempt to settle the dispute.
The experimental results and their implications were reported as follows:
Plaintiffs' predictions of the [probable award] were, on average, $14,527 higher than defendants'.
Mean plaintiffs' fair settlement values were $17,709 higher than defendants'.
Not surprisingly, the settling parties' assessments of what a fair settlement would be and what a judge would likely award were closer together than were those who did not settle.
Among the 59 pairs who settled, the mean difference between the plaintiffs' and defendants' predictions of the judge's award was $9,050.
For the 21 pairs who did not settle, the average difference was $29,917.
The strong correlation between the magnitude of the bias in a bargaining pair and non- settlement supports the conclusion that the self-serving bias often prevents parties from settling disputes at the most advantageous time and for optimal mutual benefit.
Even when asked to tell the "other side's" story in an essay before predicting possible awards or when told about the existence of the bias, the subjects continued to evaluate the case according to their own material interests.
Only in one experimental setting where subjects were both informed of the bias and made to write an essay substantiating the other side's case was the effect of the bias mitigated.
That subjects were unable to rid themselves of the bias when informed of its existence demonstrates that it is not a deliberate strategy.
Other findings of the experiments point to biased assimilation of information as the likely psychological mechanism underlying the self-serving bias.
When subjects were presented with eight arguments favoring the side they had been assigned (plaintiff or defendant) and eight arguments favoring the other side and were asked to rate the importance of the arguments as perceived by a neutral third party, there was a strong tendency to view the arguments supporting one's own position as more convincing than those supporting the other side, suggesting that the bias operates by distorting one's interpretation of evidence.
This study suggests that litigants may not be seeking to maximize their own payoff, but are rather trying to obtain what they deem to be fair.
Conclusions from the Experimental Data
The application of the self-serving bias to bargaining behavior led the authors of the study to tentatively conclude that
exchanges of information are not in themselves necessarily conducive to settlement, i.e., obtaining more discovery before the dispute is "ripe" for settlement may be neither cost-efficient nor an effective settlement strategy;
the importance of information exchanges to the settlement of a dispute can only be analyzed in terms of how that information may effect preexisting biases, which suggests that attorneys pay greater attention to their opposition's case theories when analyzing information obtained during discovery; and,
to act as an effective counter to the self-serving bias of both "sides," mediation practices should be, at least in part, directed at de-biasing parties rather than simply facilitating information exchange.
What I’ve discovered is that when you’re writing with someone, you’re negotiating and discussing all the time. Which secondary sources to use and why; how much space a particular piece of the argument should occupy; the particular ways that data should be interpreted; style; etc. And that’s all the stuff that we actually articulate. I’d venture that there is also always a secondary level of negotiation going on non-verbally: should I just take the lead on this part?; am I slowing us down?; is my expertise relevant here?. Essentially, there are all of the interpersonal elements to negotiate as well. Is it any wonder that it takes longer than writing an article alone?
Meanwhile, note to self: next time I assign a group project to students (I’m looking at you, film class!), I need to give them ample time to work through not just content, but interpersonal stuff as well. It would probably also help if I could get them to move across the street from one another, and assign one person per group to be the baker who provides snacks for each meeting. And then someone to do the group’s laundry and grocery shopping while they get their article written—I mean project done.
And yes, Professor, it does take food, drink and clean laundry to accomplish anything worthwhile as a team! Thanks for the thoughts. Now get back to that article right now!
Easter is one of those holidays that resists secularization unless you have children, grandchildren, hard boiled eggs and a rainbow of pastel dyes.
People don't casually say "Happy Easter" to one another, particularly in an urban American city and especially if half your family is Jewish.
Still, Easter reminds me that I used to be a practicing Protestant and that my values derive substantially from the liberal Christian teachings I was dipped into as a child -- first in Sunday School and then in church.
What did I learn? Tolerance. Compassion. Empathy. Forgiveness. Reconciliation. And perhaps most important of all, the genuine potential for every ordinary human spirit to experience a radical transformation -- so radical that one might say the individual had been reborn as a spiritual being.
Listen, this is not light weight stuff.
I like to write, but I'm no philosopher. Nor am I writer with a huge brain, steadily empathic heart, encyclopedic knowledge, original thought or the courage to dream paradigm shifting dreams. I do know that writer, however. His name is Ken Cloke and I am steadily making my way through all 500 and something pages of his new book.
These are the times to put our own individual highly personal spiritual or religious faith and a great deal of our material resources behind the transformation of human understanding necessary to save the species.(as James Lovelock , author of Gaia instructed us, we have no need to worry about the persistence of the planet itself. We are not necessary to its survival; we are merely its "spokesmodels.")
Prejudice is complex and operates on many levels. It can be found not only in insults and judgments, caricatures and stereotypes, but refusals to listen and communicate, stories of demonization and victimization, inability to experience empathy with others, and infinitesimal denials of humanity. It is reflected in personal selfishness and hostile relationships, bullying and aggressive behaviors, and ego compensations based on poor self-esteem. It is expressed through contempt, disregard, and domination, as well as through low status, inequitable pay, and autocratic power.
Prejudice commonly operates by stereotyping. People form stereotypes, in my experience, in eight easy steps:
1. Pick a characteristic
2. Blow it out of proportion
3. Collapse the person into the characteristic
4. Ignore individual differences and variations
5. Disregard subtleties and complexities
6. Overlook commonalities
7. Match it to your own worst fears
8. Make it cruel
If these steps routinely produce prejudice, it is possible to undo them, for example, by making people more complex than their stereotype permits, or distinguishing unique individuals within a group, or recognizing commonalities between people. It helps, in doing so, to acknowledge that everyone is equal, unique, and interesting; that everyone forms prejudices; that everyone can learn to overcome them through awareness, empathy, and communication; and that everyone can become more skillful in communicating across stereotypes and lines of separation created by fear.
It is common for people, when accused of prejudice, to respond defensively, but to confront other people’s prejudices aggressively, leveling accusations and instilling shame. These responses may initially succeed in suppressing the expression of prejudicial attitudes and undermining social permission and the cultures of discrimination that allow it to continue. But to root out the deep-seated biases that keep prejudice alive, it is necessary to dismantle it at a deeper level, in people’s hearts and minds.
Our principal goals in responding to prejudice are therefore not to castigate, blame, or point fingers at those who exhibit prejudicial attitudes, as shaming and blaming merely triggers defensiveness and counterattack. Instead, they are to defuse prejudice by assisting those in its grip (including ourselves) to:
develop a knowledgeable, confident self-identity, and appreciate who they are without needing to feel superior to others
experience comfortable, empathetic interactions with diverse people and ideas
be curious and unafraid of learning about differences and commonalities
feel comfortable collaboratively solving problems and negotiating differences
be aware of biases, stereotypes, and discrimination when they occur
stand up for themselves and others in the face of prejudice, without becoming biased in turn
experience diverse affectionate relationships that grow stronger as a result of differences
Allen Rostron[ and] Nancy [Levit's] . . . . series in the UMKC Law Review last year called Law Stories: Tales from Legal Practice, Experience, and Education . . . [was begun] to expand on the art of legal storytelling:
Over the last few decades, storytelling became a subject of enormous interest and controversy within the world of legal scholarship. . . Some . . . . told accounts of actual events in ways that gave voice to the experiences of outsiders. . . . [A] major textbook publisher developed a new series of books that recount the stories behind landmark cases . . . to help students appreciate not only the players in major cases, but also the social context in which cases arise. . .
Legal theorists began to recognize what historians and practicing lawyers had long known and what cognitive psychologists were just discovering - the extraordinary power of stories. Stories are the way people, including judges and jurors, understand situations. People recall events in story form. Stories are educative; they illuminate different perspectives and evoke empathy. Stories create bonds; their evocative details engage people in ways that sterile legal arguments do not.
Because . . . I [too] believe that legal storytelling is not only educative, but also a way to illuminate different perspectives, I chose to contribute this year to the Second Law Stories Series [--] Mediating the Special Education Front Lines in Mississippi [which] comes directly from my first-hand experiences as a special education mediator in Mississippi.
Professor Secunda concludes by asking whether story-telling should have a place in legal scholarship. And quite a propitious day he posed to ask the question.
Obama's speech today -- triggered by but not solely given to address questions about inflammatory statements made by his pastor from the pulpit -- was grounded in story. Why? Because only the texture, detail, ambiguity, contradiction, and paradox of actual "lived experience" at a particular time and in a specific place, is capable of approaching the "truth" of the human predicament. Where does story start? Classically, with one's his birth and lineage.
I am the son of a black man from Kenya and a white woman from Kansas. I was raised with the help of a white grandfather who survived a Depression to serve in Patton’s Army during World War II and a white grandmother who worked on a bomber assembly line at Fort Leavenworth while he was overseas. I’ve gone to some of the best schools in America and lived in one of the world’s poorest nations. I am married to a black American who carries within her the blood of slaves and slaveowners – an inheritance we pass on to our two precious daughters. I have brothers, sisters, nieces, nephews, uncles and cousins, of every race and every hue, scattered across three continents, and for as long as I live, I will never forget that in no other country on Earth is my story even possible.
Giving to Airy Nothings/A Local Habitation and a Name
By beginning with autobiography, by taking the time to tell his wholly personal yet universal story, Obama does what Shakespeare said all writers must do -- "give to airy nothings/a local habitation and a name." No single snapshot, no view from 30,000 feet, no abstract and colorless (or "colored") everyman can do much more than to "simplify and stereotype and amplify the negative to the point that it distorts reality."
We should long have known that only a bi-racial man might be permitted to take the national stage to address "white" demoralization with as much forcefulness as "black" misery; to describe "black" and "white" anger with equal understanding; to say that "[m]ost working- and middle-class white Americans don't feel that they have been particularly privileged by their race."
Their experience is the immigrant experience – as far as they’re concerned, no one’s handed them anything, they’ve built it from scratch. They’ve worked hard all their lives, many times only to see their jobs shipped overseas or their pension dumped after a lifetime of labor. They are anxious about their futures, and feel their dreams slipping away; in an era of stagnant wages and global competition, opportunity comes to be seen as a zero sum game, in which your dreams come at my expense. So when they are told to bus their children to a school across town; when they hear that an African American is getting an advantage in landing a good job or a spot in a good college because of an injustice that they themselves never committed; when they’re told that their fears about crime in urban neighborhoods are somehow prejudiced, resentment builds over time.
To acknowledge that
for the men and women of Reverend Wright’s generation, the memories of humiliation and doubt and fear have not gone away; nor has the anger and the bitterness of those years. That anger may not get expressed in public, in front of white co-workers or white friends. But it does find voice in the barbershop or around the kitchen table. At times, that anger is exploited by politicia ns, to gin up votes along racial lines, or to make up for a politician’s own failings.
And occasionally it finds voice in the church on Sunday morning, in the pulpit and in the pews. . . . . That anger is not always productive . . . But [it] is real; it is powerful; and to simply wish it away, to condemn it without understanding its roots, only serves to widen the chasm of misunderstanding that exists between the races.
So Where Do We Begin?
Story, for Obama, is not simply a way to approach the difficult truth. It is the instrument to cauterize our wounds; the weapon with which to resist the easy answer and the politically "correct" response.
Just as black anger often proved counterproductive, so have . . . white resentments distracted attention from the real culprits of the middle class squeeze – . . . . And yet, to wish away the resentments of white Americans, to label them as misguided or even racist, without recognizing they are grounded in legitimate concerns – this too widens the racial divide, and blocks the path to understanding.
This is where we are right now. It’s a racial stalemate we’ve been stuck in for years.
So where do we begin?
"There is a young, twenty-three year old white woman named Ashley Baia who organized for our campaign in Florence, South Carolina," Obama concludes.
She had been working to organize a mostly African-American community since the beginning of this campaign, and one day she was at a roundtable discussion where everyone went around telling their story and why they were there.
And Ashley said that when she was nine years old, her mother got cancer. And because she had to miss days of work, she was let go and lost her health care. They had to file for bankruptcy, and that’s when Ashley decided that she had to do something to help her mom.
She knew that food was one of their most expensive costs, and so Ashley convinced her mother that what she really liked and really wanted to eat more than anything else was mustard and relish sandwiches. Because that was the cheapest way to eat.
She did this for a year until her mom got better, and she told everyone at the roundtable that the reason she joined our campaign was so that she could help the millions of other children in the country who want and need to help their parents too. . . .
. . . Ashley finishes her story and then goes around the room and asks everyone else why they’re supporting the campaign. They all have different stories and reasons. Many bring up a specific issue. And finally they come to this elderly black man who’s been sitting there quietly the entire time. And Ashley asks him why he’s there. And he does not bring up a specific issue. He does not say health care or the economy. He does not say education or the war. He does not say that he was there because of Barack Obama. He simply says to everyone in the room, “I am here because of Ashley.”
“I’m here because of Ashley.”
The recognition that we are involved, engaged, hopeful, willing, motivated, cheered, encouraged, and made more courageous because we have connected with one specific textured, multi-dimensional, storied human being, is not, Obama admits "enough."
Compare the hilarious Bob Newhart routine above (from Mad TV) with any episode whatsoever of HBO's new series about psychoanalysis The Treatment.
In legal/mediation terms, Bob Newhart's "treatment" -- "just stop it!" -- is akin to the mediator's refrain -- "move past it," "get over it" or simply "move on."
Gabriel Byrne's methodology in The Treatment, on the other hand, is more akin to the process of complex commercial litigation. The litigator, like the analyst, doesn't focus so much on the "patient's" described experience as he does upon his own interpretation of that experience. We litigators -- like the chair-bound analyst -- too often ignore our client's actual, multi-dimensional, ambiguous and self-contradictory experience in favor of the form of their "problem" -- the size and shape it must take to fit the "remedy" we are capable of providing.
In either case, the patient/client too often feels like he is being treated like a child -- a child whose possession of a problem seems to give the designated authority figure the right to tell him what to do -- "just stop it" -- or to re-interpret, shape, edit or "spin" his very personal story into a "form of action" the law will recognize.
Take a look at how unhappy Gabriel Byrne's patients are. They're not unhappy just because of the problems they had when they first stepped through the therapist's door. They're agonizingly unhappy because "the doctor" infantalizes and objectifies them; tells them they don't know what they're really thinking; suggests that they don't know what's best for them; and, then "hides the ball" while he lets them drift around without mooring.
The Mediation Story
The "mediation story" excerpted below -- like last week's litigation story -- is not the client's story but the lawyer's or the mediator's preferred narrative. Here, we tell our clients to "get over it. Fix the future. Don't obsess about the past. Just stop it!"
But some clients are not going to want to "get past it." Some want to, need to, maybe even should "right the wrong." Others want to, need to, maybe even should put the past behind them and problem-solve the future.
What do we do?
We listen with as little judgment and as few pre-determined "solutions" as possible. Then, we outline for our clients what we can do to help them solve their problem with our particular skill-set. Then we tell them about the myriad other solutions available to them. Preferably, we have a referral list in our desk drawer so we can provide them with the names of people whose skills and solutions best suit what they want.
What we shouldn't be doing is selling our process.
[The mediation] narrative profoundly differs from that of litigation. 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. . . . . .
[T]he meta-narrative of mediation seeks to map the [parties'] "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. . . . . 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
In the middle of the journey of our life I came to myself within a dark wood where the straight way was lost. Dante Alighieri
When the journey turns from litigation to mediation, it's helpful to remember that we litigators are classic Hollywood hyphenates -- the writers-directors-actors of our client's story -- and that our client has generally moved more and more into the background as the "executive" producer, i.e., the money guy with the power of the final cut.
Since we've been building our narratives of right and wrong, good and evil, black and white for a pretty long time before mediation rolls around, it's good for us -- as authors of our clients' morality tales -- to step back for a moment and observe the inevitable structure of the litigation "story" we've been so busy writing.
For full article, click on the link above. The excerpt below concerns the standard litigation narrative that we make our living writing.
Let's start as [legal] narrative itself starts, with the Steady State and the Trouble that upsets the Steady State: The world is in order. People are acting towards each other as they should, or at least no one is straying too far from the norm. And then . . . something happens. One party claims that another party did something to generate disorder, to make the world out of joint. In other words, Trouble disrupts the Steady State.
In a breach of contract case, the parties enter into a contract (Steady State) and then one party breaches the contract (Trouble). In a tort case, plaintiff is walking on the sidewalk (Steady State) and then slips and falls (Trouble), or plaintiff is having a beer (Steady State) and then defendant slugs plaintiff (Trouble). In a criminal case, a bank is doing what banks ordinarily do (Steady State) and then is held up by a defendant armed with a gun (Trouble).
The defendant claims either that: 1) nothing happened, and an attempt to demonstrate otherwise is itself an example of disorder and thus of Trouble, and/or 2) something did happen to generate disorder, but it was the other party that did it.
So who is right and who is wrong, . . . . who is the real source of Trouble? The assumption that one party is right and one party is wrong is not open to question; litigation is based on a shared norm among all participants (litigants, judge, jury) that only one of the litigants is right about "what happened." Since there is only one true source of Trouble, parties expend Efforts to demonstrate to the finder of fact that their story is the "right" one.
These Efforts are subsumed within the procedures of litigation itself. Parties are successful in their Efforts to the extent the judge (or jury) decides that the origins of Trouble are as a party claims. Thus, the end result of successful Efforts is that a judge or jury Restores the Steady State by granting relief to the party whose version of Trouble is the right one.
To recapitulate, parties first come to litigation with divergent versions of Trouble. The court's job is to finish the story the "right" way so that a party's story makes sense. A bare bones representation of this narrative scheme would be as follows:
Joe's Story Steady State [already happened]: Dave and I were talking.
Trouble [already happened]: Dave punched me.
Efforts [is happening]: I am showing and will show that Dave owes me money for my injuries.
Restoration of Steady State [should happen]: Dave pays me money.
Coda [should happen]: Justice is done.
Dave's Story Steady State [already happened]: Joe and I were talking.
Trouble [already happened]: Joe swung his arm to punch me. As a reflex, I hit him.
Efforts [is happening]: I am showing and will show that this case must be dismissed.
Restoration of Steady State [should happen]: This case is dismissed.
Coda [should happen]: Justice is done.
Once the litigation is concluded, the "true" plot of the story can now be told completely and definitively. Either Joe's right, or Dave's right, or some combination thereof is right. Such a story - its fuzziness and indeterminacy stripped away - is familiar to every first-year law student . . . .
Even this brief tour highlights an important dimension of litigation. The engine that drives litigation is a kind of anxiety about story completion. "Facts" need to be "found." The goal of an advocate is to persuade the decision-maker that the advocate's story is the right one, and if the advocate's story is the right one, then the "ending" - that is, the Restoration or Transformation of the Steady State - flows from it. In this sense, the Efforts are a contest about who caused the Trouble, and "finding" who did determines what the proper Restoration should be.
The Mediation Narrative from Professor Rubinson's article tomorrow.
Crystal and Keith /* are the unmarried parents of a seven year old girl, Taniyah. They have sought the services of the West Hollywood community mediation center because they want to discuss the resolution of their custody dispute outside the presence of their attorneys.
After introductions, Keith and Crystal push a proposed settlement agreement across the conference table. They are shy with one another but united in their desire to reach agreement without any pressure from "The Attorneys."
Two hours later, we are at item no. 23 -- "neither Parent nor either set of grandparents shall physically strike The Child at any time."
"Is this a provision you agree with?" I ask. "It means you can never slap Taniyah's hand," I add. "Is that something you want to agree to?"
"We don't have a choice," says Crystal. Keith nods in assent.
I let the word "choice" hang in the air for a moment as I begin to understand why these two bright, well-educated and articulate young parents have so reluctantly given their meek and mutual approval to every previous item they said they came to the mediation center to discuss.
The Shadow Conflict
I put the "proposed" agreement aside.
"Why don't you have a choice?"
"Because Taniyah's attorney put this into the agreement," says Keith as Crystal nods in agreement, repeating Keith's remark "we don't have any choice."
Taniyah has an attorney, I learn, because Keith's mother -- one of Taniyah's primary caretakers -- left Taniyah at home with her nine-year old cousin, Arabelle to run an errand. Arabelle, a curious child, led Taniyah on an expedition to her grandparents' bedroom where the two found a stash of light porn -- Playboy and the like. That, I'm told, is the only reason Taniyah has an attorney.
It quickly becomes apparent that Crystal and Keith simply assume that Taniyah's attorney is a decision-maker. I'm still considering how to approach this problem when Keith asks the question that leads to the resolution of the "shadow" dispute between the parents and Taniyah's attorney.
"How do we get our power back?"
Justice, Mediation and the Rule of Law
I tell this lengthy story as preface to another from this weekend's Mediators Beyond Borders Founding Congress. Yesterday, someone suggested from the podium that we should include mediation and arbitration agreements in our own contracts with our own clients.
I raised my hand.
"Why," I asked, "do you want to restrict our clients' access to the justice system?" once again demonstrating a fractious lack of diplomacy that makes some people wonder how I could possibly be an effective mediator. /**
It wasn't a well-placed question but it is of a type I often find myself more or less compelled to shoe-horn into any conversation that assumes mediation is best for other people.
A number of scholars have pointed out the danger lying in an ideology of harmony related to ADR where agreement is seen as the panacea in every conflict.
They have argued that mediation was essentially supported by [the] middle upper class and social scientists whereas people . . . involved in conflicts[, including the] working class were expecting law and rights to protect them.
Emphasizing free choice, individualism, autonomy and advantage, and assuming instrumental rather than normative and religious orientations of social action, the concept [of mediation as an ideal form of dispute resolution] seems to describe the culture of professional elites rather than of residents of these urban/ethnic neighborhoods.
As Abel has stated, "there is considerable evidence that people want authority rather than informality. They want the leverage of state power to obtain the redress they believe is theirs by right, not a compromise that purports to restore a social peace that never existed."
According to those scholars, ADR could serve as a means of control and domination in keeping and reinforcing power relations. For instance, Milner Ball has defined ADR as "another form of the deregulation movement, one that permits private actors with powerful economic interests to pursue self-interest free of community norms. "
They argue that in traditional societies . . . mediation is used [when] there is no danger of retaliation from the weaker party. The . . . focus on relationships [diminishes the parties' focus on] justice[;] individual satisfaction has become the main purpose of conflict resolution.
Although they are conscious of the paradoxes of Law which can either "symbolize justice or conceal repression, reduce exploitation or facilitate it, prohibit the abuse of power or disguise abuse in procedural forms, promote equality, or sustain inequality, they argue that "Without legal power, the imbalance between aggrieved individuals and corporations or government agencies cannot be redressed".
* I have changed the parents' names and merged two separate mediations in the interest of confidentiality.
** The answer to this question is as follows: I am not mediating when I am engaged in discussion with friends and colleagues. Just as I do not observe the rules nor use the language of the courtroom at a dinner party, I do not observe the niceties of mediation in public discourse. It would be better if I did. I know that. I'm working on it and will post some insights about constructive public conversations on difficult and divisive topics in my next post.
I often find myself explaining lawyers to their clients and clients to their attorneys. Here are some typical client complaints I hear about their litigator attorneys:
he tells me to forget about the most important losses I've suffered
she keeps editing my story
I don't understand why I can't . . . i.e., recover my attorneys' fees or cross-complain, etc.
he wouldn't let me tell the mediator everything I wanted to
she didn't let me talk to the other side
And here are the typical litigator complaints I hear about clients:
his expectations of success or recovery are commpletely unrealistic
if I tell her the weaknesses of her case, she says I've become the enemy
I've explained the limitations of the case to him, but he just doesn't seem to understand
Translating the Law into Justice -- An Explanation for Clients
The chart above and photos below are simple ways to explain to clients the gap between the law and justice. Sample explanation --
The dispute you're having exists in the world of injustice.
Picture the earth.
Now picture a grain of rice somewhere on the earth.
The grain of rice represents the injustices the law will remedy.
The earth represents the injustices the law will not.
Square Pegs in Round Holes -- An Explanation of the "Legal Story" for Clients
It feels like your attorney is "editing" or shaping or "spinning" your story of injustice because she is. The yellow square represents the facts necessary to obtain relief in court (damages, an injunction, etc.). It also represents the facts necessary to defeat your opponent's claim for relief.
The entire dispute -- everything that happened inside the green circle -- is generally what you, the client, want to resolve.
IT OFTEN INCLUDES FACTS THAT WOULD BE HARMFUL TO YOUR CASE.
That's why your attorney doesn't let you talk in the presence of the "other side" and asks you not to discuss the dispute with your opponent anymore. Because you might reveal something in the green area that's bad for proving your case in the yellow area.
THE MEDIATION ZONE -- AN EXPLANATION FOR ATTORNEYS AND THEIR CLIENTS
Mediators work in the green area. Clients almost always want to resolve all of the issues raised by the dispute, not simply the "legal" ones. Perhaps more importantly, there are many opportunities for resolution in the green mediation zone that no one has yet seriously explored because the green zone is not the focus of the legal action. Only the yellow legal zone is.
Mediation restores the dispute to the people who have it. They are the only ones who know and understand that dispute in all its detail, texture, dimension and meaning. Party interests -- their hopes, fears, desires, needs, etc. -- exist in both zones. The good news of mediation is that the party interests outside the legal zone can often be traded for concessions that are in or out of it.
When you have only one currency to negotiate with -- dollars -- you often reach impasse. Why? Because it seems so unfair to both parties that they should give in, compromise, split the baby in half, etc. just because the cost and aggravation of getting to trial is so high.
When you have more than one currency to negotiate with, however, like dollars and "face" or dollars and unexplored business opportunities or dollars and apology, or dollars and an explanation for the dispute's events that has the ring of truth, you can trump legal impasse with party interests.
Writing on a Grain of Rice
Vendors who line beach boardwalks or the sidewalks of tourist towns often include the guy who will write your name on a grain of rice. HERE!!!
Sometimes I feel as if my entire career as a litigator was written on a grain of rice -- that's how small the legal zone sometimes looks from here. It's O.K., though. Litigation isn't just a job or even just a career. It's a calling, this business of rights and remedies, of following a rule of law instead of a strong arm or the snake-oil's charm.
As the poet Lao Tzu wrote,
whether a man dispassionately
Sees to the core of life
Sees the surface,
The core and the surface
Are essentially the same,
Words make them seem different
Only to express appearance.
If name be needed, wonder names them both:
From wonder into wonder
Trial attorneys, negotiators, mediators and settlement judges all share the same essential concern -- how to reach and persuade our audience.
Trial lawyers have a product to sell -- their client's narrative -- which is always just one version of the "truth." Negotiators are also selling -- a business proposition their bargaining partner will find attractive. Settlement judges who have not been trained as mediators are generally selling fear -- the uncertainty! the expense! the delay!
And mediators? What's on display at our hot dog stand? The needs and desires of the parties, certainly. Many arrive at the mediation without having given any thought to their own true wishes at all. We tend to go a little deeper than the negotiators, who are selling the future rather than also attempting to repair the past. We try not to be fear mongers like some of the worst settlement head-bangers we remember from our own legal practice. And, unlike trial lawyers, we straddle the "truth," attempting to harmonize the parties' narratives rather than selling one version as superior to the other.
So what are we mediators really selling? Reconciliation. Accountability. Understanding. Consensus.
And this Bears Upon Political Campaigns and Jury Trials in What Way?
I don't subscribe to many blogs, diverting the few dozen that capture my interest to my news reader. I do subscribe to Anne Read's Deliberations, however, because she really "gets" people's pre-dispositions -- the ones I need to understand for the purpose of helping my clients to comprehend -- appreciate even -- the other guy's point of view.
Today, for instance, Anne reminds us that we are in the midst of a Great National Jury Seminar. All we have to do is click on the campaign news. As usual, Anne is looking past the easy answers -- race, gender -- in favor of exploring the deeper reasons we might vote for someone of our own nationality or hair color -- shared stories. Here, for example,
What do race and gender really mean? Most studies of jurors conclude that juror demographics don't directly affect verdicts -- with the important exception that jurors lean toward parties of their own ethnicity. (That's from Devine et al, Jury Decision Making: 45 Years of Empirical Research on Deliberating Groups, 7 Psychology, Law, & Public Policy 622 (2000)). But at the same time, we know that people of different races and genders often have shared experiences. Since experiences in turn shape attitudes, race and gender matter in ways that go beyond loyalty, but are difficult to define.
Trial lawyers have long wanted to understand this better -- and these days, so does every news organization in America. One fascinating piece of this is how individual one's group identity can be, as Newsweek explains in an article that's well worth reading in full:
Which candidate a voter identifies with is one of the most important gut-level heuristics, since it is tantamount to deciding that someone is enough like you to "understand the concerns of people like you," as pollsters put it. "If you feel a candidate is like you racially or by gender, you're more likely to believe that that candidate will support what you support," says [Harvard political scientist Pippa] Norris. But with a white woman and a black man vying for the Democratic nomination, where does that leave black women? Whom they most identify with depends on which aspect of their own identity dominates their self-image. . . . .
So are we all just Willy Lomans, carrying our self-esteem, our hopes and dreams, our successes and failures in our sample cases -- to display -- or not -- when a customer calls? I think we are. And the mistake we make, when we make one, is to direct our customers' attention only to the glittering lures -- the "sales" talk -- the promises of a brighter future, a better marriage, a faster car.
If we take a deep breath from time to time and listen to ourselves instead of pontificating and persuading, we'll be reminded that we're all seeking the same thing. Community. Belonging. Understanding. Even shared sacrifice. Every negotiation, every mediation, every trial represents a human relationship in crisis. If we really get that, we can start working together again, in the same general direction, even when our ideas about how to accomplish that differ.
An Unpaid Political Stream of Consciousness
Listen. No one will gasp in surprise when I say I'm a lifelong Democrat. Nor will my readers likely be surprised to hear me articulate my fondest election year desire -- that Hillary and Barack -- sooner rather than later -- will find a way to join experience with vision for the purpose of leading this country out of the long season of division that, let's be frank, began in the sixties and has never healed. That they will together lead this country back to what it's truly best at -- uniting a diverse, fractious, irritable, needy, greedy, fearful, hopeful people into a single nation with a higher purpose than our own individual and narrow interests. The UnitedStates.
If both candidates could put their campaigns -- their money; their volunteers; their momentum -- together for the purpose of healing discord and revealing a new national consensus -- we would not simply feel great about our country again, we'd actually begreat again.
there we were - just after Christmas - on a main highway at the bottom of the South Island of New Zealand and crossing a one-way road/rail bridge. . . a one-way bridge on the main trunk road and the train goes over the top!
As we pulled up to the bridge I saw a number of cars in line . . . .
I got out to investigate wishing I was a doctor. The cry rarely goes out for a mediator at roadside emergencies, although we probably see about as much blood on the floor as they do.
I eventually got to the head of the line of rubber-neckers half way over the bridge, only to observe two beefy looking high context campers facing each other off, both red from the sun and the conflict - one with his belly protruding under his dirty white singlet, the other in a terry towling hat known to be extinct since the seventies.
They were at a stand off. They had entered the bridge at the same time from opposite ends and neither was willing to select reverse gear. As onlookers enjoyed the sport, it was clear they were growing restless in the heat of the day.
What was to be done?
A couple of people were making half-hearted interventions to make both men see sense, but they were ineffectual.
I diagnosed the situation...nothing, nada, a blank - hey! I was on holiday.
Then, as I stood there, on that old creaking wooden bridge, I had my new year's eureka moment.
That was the problem. Both men had got themselves into a corner, neither knew a way to put themselves and their overloaded old cars into reverse without backing down.
I was a doctor after all! But how to address this prickly barrier to resolution in the hot midday sun so far from a whiteboard?
So I hesitated - well they were big, fat and angry - and I was only one of those after my Christmas day.
Then I did what any reader of this blog would do... I acted in a decisive and professionally appropriate way.
And that's my question to you, my dear reader: What did I do to get the traffic moving?
As you can imagine, I have a lot to say about the resolution of conflict -- and the negotiation of solutions -- where moral beliefs are implicated and non-negotiable. Because I don't have time, I'm leaving you with the end of an excellent, must-read Sunday New York Times Magazine article by scholar Steven Pinker -- author of How the Mind Works -- entitled The Moral Instinct.
But in any conflict in which a meeting of the minds is not completely hopeless, a recognition that the other guy is acting from moral rather than venal reasons can be a first patch of common ground. One side can acknowledge the other’s concern for community or stability or fairness or dignity, even while arguing that some other value should trump it in that instance. With affirmative action, for example, the opponents can be seen as arguing from a sense of fairness, not racism, and the defenders can be seen as acting from a concern with community, not bureaucratic power. Liberals can ratify conservatives’ concern with families while noting that gay marriage is perfectly consistent with that concern.
The science of the moral sense also alerts us to ways in which our psychological makeup can get in the way of our arriving at the most defensible moral conclusions. The moral sense, we are learning, is as vulnerable to illusions as the other senses. It is apt to confuse morality per se with purity, status and conformity. It tends to reframe practical problems as moral crusades and thus see their solution in punitive aggression. It imposes taboos that make certain ideas indiscussible. And it has the nasty habit of always putting the self on the side of the angels. . . .
There are many  issues for which we are too quick to hit the moralization button and look for villains rather than bug fixes. What should we do when a hospital patient is killed by a nurse who administers the wrong drug in a patient’s intravenous line? Should we make it easier to sue the hospital for damages? Or should we redesign the IV fittings so that it’s physically impossible to connect the wrong bottle to the line?
. . . . . . Our habit of moralizing problems, merging them with intuitions of purity and contamination, and resting content when we feel the right feelings, can get in the way of doing the right thing.
It is the last Friday before the New Year and the Mediation is entering Hour Five. I amcajoling, wheedling, blandishing, coaxing. Mr. Lee's attorney is doing a little begging himself. But we are unconvincing.
Mr. Lee wants to settle the case. Every smoke signal he has sent up during the day indicates that he has sufficient resources -- and more importantly -- the committed desire, to settle this troublesome lawsuit for a figure that is very close to that which the Plaintiffs have signaled they would be willing to accept.
And yet . . . . . . Mr. Lee is back-sliding. We importune and he gives us less authority than we had an hour ago.
We are failing to persuade. And we are out of arguments. The settlement proposal now on the table makes economic sense. It's good for business. Trial is approaching. The chances are less than even. Everyone is taking a loss. If it's wrong or unfair, it's no worse than a random car wreck. One of life's bad accidents, best left in the past. Trial is worse than uncertain, it portends a bad -- and avoidable -- result.
Still. The money is coming off the table. I am missing something.
"I'm missing something," I say.
Mr. Lee looks at me with interest for the first time in hours.
"What are you missing?" he asks.
"I don't know. I only know you want to settle the case and that I'm not helping you do that right now. Can you tell me what I can do differently or better?"
Mr. Lee returns to an old theme -- a horse I'd assumed we'd beaten to death several hours ago -- the reason his co-defendant should be contributing more than it has resolutely refused to do.
Finally it occurs to me that Mr. Lee does not believe I am negotiating hard enough for him.
"Do you think I'm not negotiating hard enough with your co-defendant?"
He lights up. "Yes."
"O.K. If you give me a counter, I'll work harder to get more money from Mr. Co-Defendant," I say, realizing that I haven't been pressing Co-Defendant as hard as I could be.
My mediator friends are cringing. "Don't press!!" I hear them saying, "explore."
Back to Plaintiffs' caucus. "We're at impasse because Mr. Lee insists his his Co-Defendant knew the facts that all the documents show it didn't."
Plaintiff lights up. "That's true," he says, offering a detailed and credible account that contradicts the written record but dovetails with Mr. Lee's account.
Hour Six. Case settled with another small, but significant contribution by Co-Defendant.
"[L]eft to their own devices, negotiators fail to ask diagnostic questions. For example, only about 7 percent of negotiators seek information about the other party's preferences during negotiation, when it would be dramatically helpful to know such information."
What were Mr. Lee's "preferences" here? That I press his co-defendant to put more money of its own on the table. Did Mr. Lee need more money? No. But his preference that I exert a greater effort on his behalf was so strong that my failure to do so caused him to retaliate -- against me -- by giving me less authority in hour five than he'd given me in hour four. I genuinely believed I'd done the best I could do. I was wrong. By how much? Not much. The point is, there was more value to be gained and I had given up.
The moment we use the term 'help', a kind of egocentric idea enters into us. If we help someone, that means we are in a superior position. When we help, we feel that we are one step ahead or one step higher than the ones that we are helping. But if we serve someone, then we offer our capacity with humility, on the strength of our loving concern and oneness. So let us use the proper term, 'service'.
Take a look at Geoff Sharp's post on the so-called pure money case and then please please please send me your stories on meaning-making about money in the course of mediated or non-mediated negotiations.
(see our previous posts on the subjective experience of money here and here)
What do I mean by "meaning making"?
Let me give you an example of the type of story I'm looking for.
I was mediating a personal injury case and we'd reached impasse. The Plaintiff was having trouble understanding how the amounts of money being discussed could possibly adequately compensate her for her injury -- a self-report of daily 3-hour headaches.
After much discussion I sat down with my calculator and "translated" the final offer of settlement into an hourly wage for two years worth of headaches "if suffering were your full-time job."
The resulting "hourly income" was pretty substantial when viewed as an hourly payment for pain. This way of presenting defendant's offer broke the impasse.
Before we translated the total settlement offer (minus costs and fees) into a compensation scheme familiar to the Plaintiff -- an hourly wage -- she had no metric against which to value that offer. The money wasn't real until she understood it in terms of earnings.
I've heard many other stories like this but my appetite for them is insatiable. Whenever a mediator or lawyer tells me a story like this, I am always inspired and heartened. Their telling also helps me become better at facilitating "pure money" negotiations. I'm hoping they will also be useful to my readers.
Because these materials are the basis for a speech and not the speech itself, they may be a bit confusing. I'm providing them for those who attended the seminar. If you didn't, please understand that not everything discussed appears in these materials.
The entire day of speakers (a pretty high powered group) will soon be available in audio from the Pincus CLE company here.
Yesterday, I promised to provide a little "pro" arbitration wisdom in response to my speaking partner's "con" since that's our ALFA Seminar topic here in beautiful Half Moon Bay.
And yet it's 4 a.m. before I realize I can't sleep because I've been mediating too long to seriously launch one side of any debate. Everything and everyone has become so much more three-dimensional, multi-layered, and textured as a result of three full-time years of ADR practice.
So let me share the first of my non-scripted thoughts on the matter.
I'm Unwilling to Prejudge the Court's, the Arbitrator's or the Jury's Biases.
If you read yesterday's post, you'll recall that several of the anti-arbitration arguments were based upon the presumption that the arbitrator will more likely than not be biased in favor of the plaintiff because:
Arbitrators have a vested interest in their case load persisting, whereas the courts are interested in purging their dockets, thus making early termination in court more likely than in arbitration.
Arbitrators' [presumed] self-interest in maintaining and expanding their own ADR practices encourages a "split the baby" mentality and reluctance to terminate the case short of a full hearing.
The "repeat" player bias will favor the Plaintiffs' bar who the arbitrator will see far more often than counsel for any particular employer.
Having spent 25+ years with attorneys, judges, mediators and arbitrators, I simply can't assume bias. A few bad apples aside, the men and women of the legal profession are among the most ethically-minded of any professional or business people I have known -- by many, many, many degrees of magnitude.
I spent a great deal of time yesterday editing a video (my abysmal webcam and video editing skills live at Geoff Sharp's Mediation vBlog this morning do not beging to do justice to the intelligence and insight of Milan Slama, a community and business mediator who is the subject of the interview).
In the process, I "grazed" around YouTube (see my YouTube page here) to see what kinds of mediation and litigation videos people have uploaded.
I'm sorry to report that most of them are in these varieties:
the "mediate because you really don't have access to justice" variety here and here -- delay; expense; "out of control nightmare";
the angry "mediation (or litigation) doesn't work" genre -- here and here.
the crazed litigant gunman here and here (the "adversarial process -- or even a patent application -- can kill you" narrative)'
the "we're Italian; we don't believe in divorce" Tony Soprano-style here.
At Geoff Sharp's MediationvBlog however, you'll see some pretty high level discussions about both the benefits and the challenges of both mediation and litigation for attorneys, mediators, judges and, lest we forget, clients.
There are a few words on negotiation tactics and strategy there as well.
We were just talking yesterday about our courts' obligation to provide that which the entire civil justice system hasn't been providing for [almost] my entire legal career: a swift adversarial process to resolve disputes and make public the way in which we, as a society, adjust the civil rights and duties of our citizens.
The justice system's inability to deliver on that essential obligation is once again highlighted by the upcoming 9/11 victim trials discussed in today's New York Times article, "Settlements Do Not Deter 9/11 Plaintiffs Seeking Trial." As the Times reports, relatives of some victims who were killed in the planes hijacked on 9/11 say
they would continue fighting in court to address their questions about how Islamic terrorists bypassed airport security, commandeered four jets and killed thousands of people.
When settling cases like this, impasse often occurs when the monetary terms are sufficient but no one has yet explained, for instance, why their mother died in the nursing home for no apparent reason. People want answers.
One of th[e] relatives, Mike Low, whose 28-year-old daughter, Sara, was a flight attendant on American Airlines Flight 11, the first plane to strike the World Trade Center . . .
“The frustrating thing is not having a trial date,” he said yesterday. “The wheels of justice turn excruciatingly slow. It doesn’t change my mind any. My desire and goal is to try to find some answers. I want to know why Abdulaziz Alomari and Mohamed Atta were allowed to walk on planes in Portland, Me., with prohibited weapons. I want somebody to tell me why that happened.”
And Then There's that Thing Called "Apology"
Recently, I received a call from a fellow mediator in the midst of a settlement conference asking whether he could guarantee that if the defendant apologized during the mediation, his apology could not, under any circumstances, ever be used against him in a criminal trial.
"Guarantee," he replied. "The plaintiff is satisfied with the monetary terms of the settlement but insists she'll go to trial unless he apologizes."
"I certainly wouldn't guarantee it," I replied, "but would you like me to help you brainstorm some work-arounds?"
This mediator, one of the great ones at my ADR firm Judicate West, didn't need the brainstorming help. He did what we mediators often do. He "channelled" the apology from the defendant to the plaintiff in the defendant's absence. And it worked.
When Apology Isn't Enough: Public Accountability
There are times when a private apology isn't enough. Sometimes people need to see civil wrongdoers made publicly accountable in a court of law. The Times article again.
Several of the families have said in interviews that their motives were not just economic. They have said that they wanted accountability from those they considered responsible for the attacks — including the two airlines; the airport security companies; Boeing, which manufactured the aircraft; and the Port Authority of New York and New Jersey, which owned the World Trade Center.
Carl Tobias, a law professor at the University of Richmond, said . . . [he thinks] the dynamics here may be different from what I would call more garden variety kind of tort litigation,” he said. “It doesn’t seem this is entirely driven by money, though it may be for some people. People want to tell their stories and want to find out as much as they can in court.”
There Are No "Garden Variety" Kinds of Tort Litigation
Professor Tobias' opinion is right, as far as it goes, but it is not, unfortunately, "right on the money."
Every mediator who helps people settle injury cases (or commercial cases for that matter) knows that there is no garden variety case. Not to the parties. No dispute is is ever "entirely driven by money," except, perhaps, ones brought by a sociopaths or vexatious litigants or driven by unscrupulous lawyers who, as someone once said, "ride their clients like mules for the money." And even then something other than money, some pathology, is driving those people's mad obsession with things monetary.
he expected that some families, especially those who had relatives who died in the planes that struck the twin towers, would insist on a trial.
The terms of the settlements were sealed. But Mr. Migliori said the families felt vindicated. He said they “had reached a point where they were satisfied that the mix of their motivations — from compensation to accountability, to answers — was satisfied.”
The first trial, brought by the relatives of Dr. Paul Ambrose, a passenger on American Flight 77, which crashed into the Pentagon is scheduled to go to trial at the beginning of November.
THE invitation was too good to refuse — an August weekend at the august home of a friend on a little New England island.
Yet, from the moment I pulled up to the ferry dock, there was dread in my soul. Two years ago, I had offended an entire family of friends likely to be there. Would one of them be on the boat, where avoidance is impossible?
Checking a reservations list, I was relieved to find myself in the clear. But later, getting an ice cream on the island’s small village green felt like being in highly exclusive enemy terrain, and I walked with head down and turned in fear from each passing station wagon.
In the church thrift store where space is tight (and the clothes irresistible) I hid behind racks with my heart pounding as each shopper entered.
Why, he asks, are we afraid of the meeting (or confrontation) with the guy whose call we didn't return or manuscript we didn't read? Whose invitation we didn't accept, whose feelings we offended, or who stole our client?
It was through my communnity mediation experience, however, that I finally learned it was better to address than to avoid conflict. I have also learned that people will, given the right conditions, spontaneously reconcile. Those conditions? Having hope that reconciliation can be achieved without fear of sustaining psychological or physical harm, opening and maintaining channels of communication, and the assistance of a third party who is willing to patiently and lovingly sit with those in conflict like a parent with children recovering from a fever or bad dreams.
Listen, I have seen an elderly mother reconciled to a child who sued her and then served her with an eviction notice after two years of estrangement. I have seen (in a documentary film on restorative justice) a woman whose brother raped her at knife point, collapse sobbing into his embrace at a prison where he'd already been incarcerated for this crime for years. I have seen a man who refused to speak to his gay neighbors for five years stand up at the end of a community mediation and say, "may I hug the two of you?"
These events are not the rare occasion or the exception to the rule. Nor are they the result of anyone's brilliant mediation or conflict resolution skills.
They are the norm, the product of the process rather than the result of the technique.
A mediator can probably prevent these spontaneous acts of reconciliation, but s/he does not create them. At best, s/he presides over them, serves as their sponsor or appreciative audience, and counts herself privileged to have participated in them from the sidelines.
The answer to the question is shame, the most powerful constellation of emotions we are capable of experiencing. The lengths to which we will go to avoid these feelings was hilariously depicted just last night on Curb Your Enthusiasm, an episode you're just going to have to see.
The word shame is derived from the Indo-European skem which means "to hide." Shame makes us want to hide - from ourselves, our God and our peers - making shame an existentially isolating state of mind. Feeling shame makes a person "dejection-based, passive, or helpless," causing the "ashamed person [to focus] more on devaluing or condemning his entire self" than upon his behavior. He sees himself "as fundamentally flawed, feels self-conscious about the visibility of his actions, fears scorn, and thus avoids or hides from others."
The shamed individual wants "to undo aspects of the self" whereas the guilt-ridden one wishes to undo aspects of his behavior. It is therefore not surprising that guilt tends to motivate restitution, confession, and apology, whereas shame tends to result in avoidance or anger.
The psycho-biology of the constellation of emotions we call "shame" is innate. It produces a sudden loss of muscle tone in the neck and upper body; increases skin temperature on the face, frequently resulting in a blush and causes a brief period of incoordination and apparent disorganization. No matter what behavior is in progress when shame affect is triggered, it will be made momentarily impossible. Shame interrupts, halts, takes over, inconveniences, trips up, makes incompetent anything that had previously been interesting or enjoyable.
A state of cognitive shame follows this initial cluster of feelings. After the painful jolt of shame, we begin to search our "life scripts" for some way to integrate the shameful experience with our prior experiences, to make sense of the pain and disorientation caused by the sudden upset of a positive emotional state.
There you have it. Though it may seem more outrageous than comic for wildly successful adults to feign compliance with a social obligation by showing up a day late for a party pretending to have gotten the date wrong (the Larry David episode) it is no more or less absurd than the ordinary daily ways we all have of avoiding someone who might make us feel ashamed.
Tomorrow we will discuss ways to positively engage yourself with those who you may have inadvertenly offended.
About one-third of teenagers on the Internet report that they have been targets of "menacing" online activities, such as receiving threatening messages, having their private e-mails or instant and text messages forwarded without consent, having an embarrassing photo posted without permission, or having rumors spread about them online. On top of this, girls are more likely than boys to be targets.
In terms of raw numbers, 15 percent of teenagers state that they have had private e-mail, instant messages or text messages forwarded or posted without permission; 13 percent claim that they have had rumors spread about them online; 13 percent have received a threatening or aggressive e-mail, instant message or text message; 6 percent have had embarrassing photos of them posted online without consent; and 32 percent fall within in at least one of the four foregoing categories.
Plus ca change, plus c'est la meme chose. Teenage boys bully with their fists. Teenage girls bully with their emotional wits. No one, no one, is more skilled than a teenage girl with the stilleto to the softest part of her girl-target. I know this from research and from silly movies (my favorite of which is Heathers with Winona Ryder and Christian Slater -- put it on your Netflix list ).
The technology may have changed, but not the malice. When I was in highschool, my older sister became the target of a group of particularly malicious girls who called her on the telephone to sling at her every possible insult they could. I remember, I fielded the call for her.
I urge you to CLICK HERE IMMEDIATELY for the most extreme and hilarious family "negotiation" (read: manipulation) tactics ever to flow from a pen (with marvelous illustrations) from a Blog you'll immediately want to add to your Blogroll: Mixed Emotions by Rutu Modan.
This is a New York Times Blog (don't worry, fellow amateurs, the BigBloggers have to appeal to a much wider audience) which describes its author as follows:
Rutu Modan, an illustrator and comic book creator, is a chosen artist of the Israel Cultural Excellence Foundation. She has done comic strips for the Israeli newpapers Yedioth Acharonot and Ma’ariv and illustrations for The New Yorker, Le Monde, The New York Times and many other publications. Her first graphic novel, Exit Wounds, will be published in June. Ms. Modan, usually based in Tel Aviv, is currently in Sheffield, England.
And if you want to off-set this dark whimsey with a little practical know-how from the smartest guys in the room, here's the Harvard Business School Working Knowledge article, Five Steps to Better Family Negotiations.
As a general practitioner, I help “real people with real problems,” and I have adopted that slogan as my professional credo. And it is a great answer to the inquiry “What kind of law do you practice?”
Grappling with the client, and not the chicken, enables the attorney to deal with the divorcing mother of three, the debt-ridden restaurateur and the juvenile offender. Another lawyer once told me, “We all know what the law is—the hard part is finding out what the client is.”
The public does understand this: but they just prefer to be entertained by that old razzle-dazzle (like the lawyer in the musical Chicago) and ignore the realities of the profession. It is said that people hate lawyers as a group but love their own lawyers.
For me and my practice, the proof of that is in the telephone. It rings. People want advice. People send money for that advice. It’s a nice system.
I have learned that the system is geared for the lawyer to assist the client, salve their wounds, remediate the problem and to obtain a goal. It’s almost spiritual.
"Writing a brief," counsels McElhaney, is like trying a lawsuit."
You start with your theory of the case—the basic idea that not only explains the legal theory and the factual background but also ties as much of the evidence as possible into a coherent, credible whole.
That means making choices. You throw out arguments that aren’t plausible.
You pick between the inconsistent legal theories. You cull out the weak points. You toss out whatever gets in the way. You discard what doesn’t need to be said, even if it doesn’t hurt.
What’s left is tight. Lean. Spare. It crackles with power because it’s undiluted with stuff that doesn’t matter.
Doesn't trial and motion practice focus on the parties' positions, you ask, and the settlement of litigation on the parties' interests.
Yes, but only after you've established that you have the ammunition necessary to make your adversary your partner in the mutual problem of making the litigation go away for a price (or on terms) that make a negotiated agreement far better than potential victory at trial.
I tell people that I prefer the symmetrical to the "asymmetrical" lawsuit -- both as a litigator and as a mediator. What is an asymmetrical lawsuit? One where the plaintiff is an individual represented by an over-burdened sole or small practice contingency fee litigator and the defendant is a repeat player -- an insurance carrier or other "deep pocket."
Why? Because all too often the plaintiff is unwilling (or unable) to devote the resources necessary to pose a real threat to the defendant's interests (costs of defense and potential verdict or judgment) despite the merits of the plaintiff's case.
In these cases, the defendants can afford to wear the other side down in court (why should I settle?) and often resist settlement because they firmly believe they are victims of legal extortion (yes, this applies even to insurance carriers who work by and through people who resist and resent being pushed around by an aggressive opponent who appears to be bluffing).
Although it is important to convince the mediator that your case has real merit and genuine potential for judgment, it is critical to impress your opponent with:
Your theory of the case in which the evidence tells a coherent, credible story, and one of injustice that a court or jury might respond to with sufficient passionate intensity to inflict some "unjust" harm on your opponent; and,
Your ability to make good choices -- "throw[ing] out arguments that aren't plausible," "backing up those that are with the least amount but most compelling detail," and "pick[ing] between the inconsistent legal theories. . . . cull[ing] out the weak points . . . toss[ing] out whatever gets in the way. . . [and] discard[ing] what doesn't need to be said. . . "
If "[w]hat remains "is tight. Lean. Spare. . . . crackles with power" you'll force your opponent to do some intensive interest-based negotiation to arrive at a settlement that is best for both of you.
Conflict is . . . is simply the sound made by the cracks in a system, a boundary condition that can best be resolved by communicating across the many internal and external borders we have erected to keep ourselves safe, or exclude others. --- Ken Cloke, President, Mediators without Borders, Committing Personally, Acting Globally.
Last week, along with my extern, Pepperdine Law School and Straus ADR student Cameron Mitchell, and my friend, the actor, musician, and singer-songwriter Lisa Douglass, I presented an Improv Seminar on Peacemaking in a Tit for Tat World using Baz Luhrman's hypnotic Romeo + Juliet as a jumping off point.
The Seminar was sponsored by the L.A. County Bar Association's Dispute Resolution Services and the SCMA's Salon Series. Thanks to Kathryn Turk of the West Hollywood Community Mediation Center and Jan Schau, President of the SCMA for the opportunity and facilities to host the Salon.
This is one the scenes we used to demonstrate how dangerous peacemaking can be in the absence of conflict resolution skills, particularly in response to an intractable conflict where communication is non-existent or diminished, the conflict itself is ritualized and celebrated, and extreme positions encouraged, as we see here, resulting in Mercutio's death.
Five Strategies for Interventionin an Intractable Conflict
actively encourage the open expression of the rage and grief stirred up by the conflict in a context that is constructive and oriented to resolution and reconciliation, such as that used by the South African Truth and Reconciliation Commission.
dismantle the prejudices and stereotypes of the “enemy” through a combination of bias awareness, storytelling, dialogue, collaborative negotiation, and strategic planning techniques.
develop skills within local neighborhoods and communities in group facilitation, public dialogue, strategic planning, collaborative negotiation, and peer mediation.
encourage forgiveness and reconciliation by creating openhearted communications and direct dialogues between former antagonists.
institutionaliz[e] these skills so that future conflicts can be resolved without coercion or violence.
The referenced "oddity" in American trial law? The peremptory challenge that permits lawyers to exercise more or less control over the final composition of the jury than some believe is warranted in an aspirationally color-blind justice system. As Adam Liptak reports,
Justice Thurgood Marshall wrote that . . . . “peremptories inject [racial discrimination] into the jury selection process[, the elimination of which] . . . “can be accomplished only by eliminating peremptory challenges entirely.”
Two years ago, in the Miller-El case, writes Liptak, "Justice Stephen G. Breyer appeared to endorse that view, saying that “peremptory challenges seem increasingly anomalous in our judicial system[,]” writing that
England has eliminated peremptory challenges but “continues to administer fair trials based largely on random jury selection.
Liptak concludes by suggesting that
Peremptory strikes are an odd and arbitrary historical artifact. Unlike equal protection, they are not guaranteed by the Constitution, and in capital cases — where race matters most — they would not be missed.
The settlement angle on this? You can see it coming.
In American urban courtrooms throughout the country, settlement decisions are commonly based upon the probable racial, ethnic, gender, and socio-economic composition of a jury that will eventually give their thumbs up or down on the Plaintiff's case. If settlement decisions are governed by audacity on the Plaintiffs' side and fear on the defense side, both are often pinned upon the presumed "passion and prejudice" the "have nots" will bring to decisions affecting the "haves."
And as the gulf between these two groups widens, the fear on the defense side has become more palpable. *
Is this any way to run a justice system in a racially polarized society?
The White Reaction to the Black Reaction to the O.J. Verdict
We talk about "race cards" in this country because of the O.J. Verdict. It wasn't so much the result of the O.J. trial that shocked America, as it was was the white reaction to the black reaction to the verdict.
As Harvard Professor Henry Louis Gates, Jr. wrote in the aftermath of that trial (Thirteen ways of looking at a black man’ (23 October 1995), the phrase
’ “race card” … itself infuriates many blacks. [Federal Appellate Court] Judge Leon Higginbotham Jr. . . .[said of] charges that Johnnie Cochran played the race card. “This whole point is one hundred per cent inaccurate. . . . If you knew that the most important witness had a history of racism and hostility against black people, that should have been a relevant factor of inquiry even if the jury had been all white .. .
[Academic and activist] Angela Davis [says] ... “Race is not a card,” she says firmly. “The whole case was pervaded with issues of race.” ’
Is Race a Card?
This is too big a question for this post. I grapple with this issue an upcoming article in the LaTrobe University Dispute Resolution Journal (Vol. No. 1, so you won't yet find it online) and will link to it when it is published.
In analyzing the potential pre-trial settlement of an action, the attorneys consider everthing to be a potential "card." If the stakes are high enough, they hire jury consultants to advise them how to select a jury that favors their side because trial lawyers are advocates looking for a jury that will be prejudiced in their favor.
This is not news. It is the judge and the jury that are supposed to be neutral, not the trial attorneys. And if they can increase their chances of winning by leaving African Americans or Koreans or the marginally employed on a jury, they will do so. If it helps their case to use their peremptories to empty the jury box of women or Gen-X'ers or engineers or African-Americans, they will do that too.
And This Has What To Do with Settlement?
For a negotiated agreement to do the job of resolving the dispute in a better way than its alternative -- trial -- the parties and the mediator will have to grapple with the racial and ethnic and gender elephants in the room.
And it may just be that a mediator who is capable of setting aside his or her prejudices long enough to look past issues of race, ethnicity, nationality, obvious religious affiliation, and gender, might be the one who is most capable of helping the parties achieve something that resembles justice.
* By the 1980s the United States had become the most unequal industrialised country in terms of wealth. The top 1% of wealth holders (the ‘Super Rich’) controlled 39% of total household wealth in the United States in 1989, compared to 26% in France in 1986, about 25% in Canada in 1984, 18% in Great Britain, and 16% in Sweden in 1986. More than 46% of all outstanding stock, over half of financial securities, trusts, and unincorporated businesses, and 40% of investment real estate belong to the super rich. The bottom 90% are responsible for 70% of the indebtedness of American households. Wolff, How the pie is sliced: America's growing concentration of wealth’ (1995) 22 The American Prospect 58.
Brought to us by Tracey Broderick, the blog's mission is to bring you people's stories about their personal encounters with the justice system. As Tracey explains:
In this case is a blog of personal stories about the American legal system. If you’ve gone through a divorce or served on a jury, you have a story. If you’ve served time or argued in court, you have a story. Any personal experience with the law can be a story. These stories show when the law does and doesn’t work; how it angers and inspires us. They describe the law and what it means to us all living our modern lives here in our country. This blog brings these stories together so we can hear each other.
I edit the stories. Some are sent to me; some are drawn from interviews with people who want to talk in person. I keep each story as true as possible to the words and voice of each person. If you have a story for the blog, please let me know–I love to help people be heard.
This blog should be required reading for anyone interested in justice issues -- attorneys, law professors, local, state and federal government officials, probation officers, therapists, social workers, arbitrators, mediators, police, sheriffs, bailiffs, judges, court reporters (the stenographers of raw American conflict), students of the criminal and civil justice systems, law students, activists, preachers, teachers, spouses, people who would like to be spouses, people who are tired of being spouses, parents, and children over the age of consent . . . . . gee, I think that means everyone.
Let me rephrase. This blog should be required reading for everyone. It's a small but powerful exercise in little "d" democracy. The kind that grows from the ground up. Not the kind that is brought to you by foreign lands at the point of a gun.
And following Tracey's example, I too will henceforth give credit to the myriad flickr photographers whose photos I use more than once a grateful day of my year.
I'm co-teaching a class (with long time employment mediator Stefan Mason) at the Straus Institute this semester. We covered the Americans with Disabilities Act last night and spent an hour of the class "listening" to the voices of the disabled by watching YouTube videos, one of which I provide for my readers below.
The first "adult" book I ever read was To Kill a Mockingbird (film link here and movie clip here) when I was in the fifth grade. I know it's considered sentimental and not well written by the academy these days. But what do you say about a book that changes someones life?
Surely, I had never before heard the phrase
You never really understand a person until you consider things from his point of view-until you climb in his skin and walk around in it. ~Atticus Finch
And as much as Harper Lee loved and respected Atticus, I did too. In my ten-year old heart, he embodied everything I was already beginning to care about -- tolerance, respect, kindness, generosity and a fierce devotion to justice regardless of the consequences.
With Atticus' advice still sounding in my head forty years later, I bring you the voices of disability from Stefan's and my ADA class last night. The Credo for Support. Listen. Reflect. Your next mediation with someone who's disabled will be transformed by this.
is a university student from a storied Sunni tribe, the groom a technician at an Iraqi cellphone company and the son of a prominent Shiite tribal leader. It could almost be a Baghdad version of Romeo and Juliet but with a twist--the marriage was arranged by their parents, in part as a willful symbol of defiance against the sectarian violence that has riven Iraq.
The unlikely nuptials might appear to be a doomed gesture in a place where tension between Sunnis and Shiites seems to keep escalating with random killings and tit-for-tat retaliations. Shiite families have been chased out of suddenly unfriendly Sunni neighborhoods, and vice versa. The sectarian strife has been aggravated by growing confusion over the loyalty of Iraq's Shiite-dominated security forces and a months-long delay in forming a new government.
But the wedding also serves as a reminder of the complexity of the Iraqi mosaic, where Sunnis and Shiites have long been deeply interwoven. Not long ago, a Sunni-Shiite wedding would have been unremarkable. But in today's Baghdad, it is a brave and fraught venture. For these two families, it also means wrestling with the uncertain future of their troubled nation--and placing what amounts to a high-stakes bet that, in part because of events like this one, Iraq will not descend into a full-fledged civil war.
For the full account, click on the title of the article above.
Baz Luhrmann's hallucinatory Romeo and Juliet, the ultimate Shakesperean lesson in the dangers of fiercely playing Tit for Tat.
The Americans are fond of explaining almost all the actions of their lives by the principle of self-interest rightly understood. In this respect I think they frequently fail to do themselves justice. -- Alexis de Tocqueville
We've mentioned these principles before:
negotiators will reflexively play the childhood game of tit for tat (you cooperate, I cooperate; you defect, I punish; you cooperate, I cooperate again) because, as the game theorists tell us, we evolved as a human society as a result;
The point of the following excerpts from Professor Gintis' research is this -- what negotiators tend to call irrational bargaining behavior -- not accepting an objectively "good deal" -- is not necessarily irrational or "overly emotional." It is simply driven by considerations that hard numbers do not explain.
The inequality-averse individual is willing to reduce his own payoff to increase the degree of equality in the group (whence widespread support for charity and social welfare programs). But he is especially displeased when placed on the losing side of an unequal relationship.
A great part of the mediator’s task is helping the parties value losses for which there is no common metric. The desire to quantify losses in a numeric fashion against a standard metric has resulted in the publication of hundreds, if not thousands, of academic articles attempting to further “standardize” the irrational process juries bring to the valuation task. 
Recently, a highly influential law review published an article suggesting that “lost welfare” or well-being value for the death of one’s spouse might be “rationally” calculated against a hypothetically constant monetary value that a widowed individual would be willing to pay (the “WTP”) to avoid a spouse’s loss of life. “Because studies show that married people are happier than unmarried people,” argued the authors
and that this happiness is in part a result of emotional closeness and companionship . . . the difference between the happiness of a married person and a widowed person can be quantified using simple scales based on subjective assessments of one's emotional well-being. To [determine what a person would be willing to pay – the “WTP”] to avoid grief from a spouse's death, one would need to (1) determine the average length of time that the grief persists (for example, until remarriage); (2) find an equivalent happiness difference in an area of life that has been reliably monetized (for example, WTP to avoid disease or depression); (3) convert this difference into annual units; and (4) multiply (1) by (3). [Because married people] ha[ve] a level of self-reported happiness equivalent to that felt by a widowed person who receives an extra $100,000 per year . . . , [i]f the average number of years before remarriage or the "natural" termination of the original marriage (from divorce, or normal mortality) is, say, five years, then the . . . loss [of well-being for the surviving spouse] is equivalent to about $500,000.”
Though the article at issue represents a laudable attempt to formalize and standardize a jury’s tendency to operate without any real guidance, the suggestion is an attempt to prevent the jury from doing that which only it can effectively do
act as a collective conscience and “gut feeling;” and,
weigh the nearly infinite number of variables pertinent to the valuation of loss and punishment for breaches of the minimal standards of care we expect in our civil relations with one another.
Among the variables a jury will bring to bear on its decision to recompense plaintiffs for their injuries are the credibility of the parties (and their counsel); the coherence and appeal (believability) of the conflicting “stories” told by the parties ; the apparent balance or imbalance of power between the parties (i.e., the relative responsibility of all parties to the dispute); the type of social ill being addressed; the severity of the harm caused; the historical context in which the injury occurred and, the moral or political issues highlighted by the dispute.
Once the opening legal skirmishes among counsel have been completed and the case is ready to be settled or tried, every “irrelevant” detail that has been stripped from the parties’ lived experience, must be put back into place. It must be given life again; made three-dimensional and its causes multi-determined, displayed in all of its particularity, texture, subtlety, nuance and drama.
< Purely anecdotally, my own personal experience of the settlement value of lost life over two dozen medical malpractice wrongful death cases has been:
$210,000 6 year old boy son of 50 year old adoptive mother
$90,000 72--year old woman wife of 80 year old husband
$205,000 55 year old man father of 5 adult children
$200,000 34 year old man husband of 28 year old wife
 Stories are swallowed by legal theory,
“which serves as both the starting point and ending point for case theory. Facts exist simply to be plugged into legal theory, and facts that cannot find a home in some legal element are deemed virtually irrelevant. The process of theory development is quantifiable, neat, and quite sterile.”
Binny Miller, GIVE THEM BACK THEIR LIVES: RECOGNIZING CLIENT NARRATIVE IN CASE THEORY (1994) 93 Mich. L. Rev. 485, 499-500.
Mediation to Correct the Epistemological Error in the Adversarial Legal Narrative
We tell ourselves stories in order to live, wrote novelist and essayist Joan Didion.
The princess is caged in the consulate. The man with the candy will lead the children into the sea. The naked woman on the ledge outside the window is a victim or an exhibitionist, and it would be "interesting" to know which. We tell ourselves that it makes a difference whether she is about to commit a mortal sin or is about to register a political protest or is about to be snatched back to the human condition by the fireman in priests clothing. We look for the sermon in the suicide, for the social or moral lesson in the murder of five. We interpret what we see, select the most workable of the multiple choices. We live entirely, especially if we are writers, by the imposition of a narrative line upon disparate images, by the "ideas" with which we have learned to freeze the shifting phantasmagoria which is our actual experience.
Joan Didion, The White Album
The Rat Litigation
The small man in the incongruously meticulous three-piece suit and skullcap is sitting behind an enormous desk strewn with files, photos, pleadings, paper-clips and crumpled Styrofoam coffee cups. There is even evidence of yesterday’s lunch or last night’s late snack – a Fiestaware salad plate smeared with the congealed remains of something unidentifiable.
Mr. Segal’s face reddens as he stabs his finger repeatedly into a yellow legal pad that carries his firm’s embossed name.
“They disrespected my niece,” he is repeating, his voice rising with each iteration. “She grew up in Budapest. She knows something about rats.” He is sputtering now, on the verge of losing the professional demeanor I am certain he values.
“And that fake Jew,” he snarls, “The Company’s lawyer. His client disrespected her and now they’re disrespecting me.”
It is nine o’clock on a warm Los Angeles morning and my business day has just begun. Mr. Segal’s Santa Monica law office has one of those unexpectedly magnificient ocean views – the kind that make you feel guilty about an unmerited grace. The counterpoint between ocean, swaying palms and joggers in brightly colored sweats on the Palisade and Mr. Segal’s claustrophobic office is unsettling.
Open boxes spill out exhibits from his last trial and colorful graphic boards lean against the wall. He has already explained the trial victory these graphics helped him achieve – one of numerous injustices rectified by a Los Angeles Superior Court jury.
The Adversarial Legal Narrative
I used to be in the business of telling these stories myself – pushing the square pegs of my clients’ actual experiences – the shifting phantasmagoria – into the round holes of the pre-determined American legal conflict narrative. Duty, breach, proximate cause, damage. Now, as a mediator, I listen for character and plot, theme and moral, reliable and unreliable narrators, and, most importantly, character.
Writers have long known that we impose narrative lines on our often random experience. Told with hope, these stories weave nets to catch us when we fall; braid ropes to throw out our prison windows; forge keys to unlock the doors that separate us one from another.
Fake Jew. The raw emotion of this epithet startles me, though it doesn’t surprise me. I’ve met with Mr. Segal, counsel for his Eastern European niece, once before. We exchanged pleasantries about the neighborhood in which we both live – one with a large Orthodox and Ultra-Orthodox population. He knows my husband is Jewish and that I am not. According to Mr. Segal, “with all due respect,” I and those of my cross-marrying kind will eventually be responsible for the destruction of world Jewry. I’m easy-going on this topic and have not taken offense.
Meta and Master Narratives
With Mr. Segal's "fake Jew" accusation, I've hit mediation pay dirt. He'd already alerted me to the “meta” or “master” narrative that might have transmogrified this small claims case into a hotly contested Superior Court action. A narrative of a community splintered and in danger of destruction. This additional comment reminded me of just how important this interest was.
The “meta” or “master” narrative is the national and religious story that shapes the way we think and live. It acts as a lens through which the “dominant” culture perceives itself and in opposition to which ethnic, religious and other sub-cultures are defined.
Social psychologists tell us that we all make use of this cultural stock of stories. In novel situations, we browse more or less consciously through them to find one or more narratives that fit -- or can be adjusted to fit -- our own experience.
These are the words I never said/This is the path I'll never tread/This is the fear/This is the dread/These are the contents of my head/And these are the years that we have spent/And this is what they represent/And this is how I feel
Do you know how I feel ?/'cause i don't think you know how I feel/I don't think you know what I feel/I don't think you know what I feel/You don't know what I feel. Annie Lenox, Why, from Diva
Why should negotiators care? Because explaining why our bargaining partners should settle instead of litigate requires persuasive story-telling -- a compelling account of our business requirements and capabilities -- a reason why what we want is fair and reasonable, even just.
Types of Reasons
Professor Tilly has created four reason-giving categories:
Conventions: These are the rules your mother and grade school teachers taught you. Don't be a tattle tale. Share with your sister. Don't whine. Say thank you to the nice man for giving you an extra dollop of ice cream.
Stories: This is what we attorneys do for a living. Tell stories, read stories, make up stories, listen to stories. Then we compare one story (Mrs. Palsgraf was waiting for a train when a man holding a box of firecrackers stumbled out the door and then) with another story (the sherriff stopped Mr. Green on Highway 50 but let him continue driving even though Mr. Green was clearly drunk and then he passed a truck on a narrow road and then ).
Codes: These are "high-level" conventions -- the formulas that invoke procedural rules and categories. The judge and jury apply codes such as "oral agreements can't transfer real property" to the Plaintiff's story about her landlord's promise to extend her lease for a year.
Technical Accounts: These are stories informed by specialized knowledge and authority. They're the stories your expert witnesses tell.
Talking Past One Another
Anyone who's spent even a few weeks in law school knows these categories. So why are we bothering with them here? Because, according to Tilly, reason giving is most effective when we "match" the kind of reason we give to the particular role we are playing when the reason is necessary. If one person is giving a technical account and the other a story, for instance, the chances are remote that they will ever begin to understand, let alone agree with, one another.