3. The law (and your lawyer) only care about relevant facts - the most important part of your dispute may well not even be addressed, let alone resolved, by a jury verdict in your favor.
4. As your trial date nears, everyone - the judge, your lawyer, their lawyer, your spouse, your friends, and random acquaintances will urge you to negotiate a resolution with a neutral third party (a mediator).
5. Your attorney settles 90% of every case s/he litigates. S/he rarely goes to trial anymore. Ask her about the last verdict she won and then the one before that. If you have a skill (piano, golf, cooking a souffle) ask yourself how well you'd perform if you haven't used that skill recently or often.
6. Litigation is an extremely expensive board game, much of which is simply the cat and mouse exercise of discovery. Here's how it's played. I ask for documents. You object. I write you a letter demanding compliance. You write back refusing to comply and reminding me I have to "meet and confer" with you before we ask the discovery referee to intervene. We meet. We accomplish nothing. I make a motion (write a "brief") to compel you to turn over documents. You write an opposition. I write a reply. We pay the discovery referee to read our papers and listen to our oral argument. The discovery referee splits the baby in half or fourths or tenths. One of us asks the Judge not to sign off on the discovery referee's decision. More papers, more writing, more time, more of your money. The Judge, not a lion of courage, splits the baby again and refuses to award either party the costs of forcing compliance. Two months later (at least six have now elapsed) you get a stack of documents and a privilege log listing the documents that aren't being provided. I write you a letter demanding that you turn over documents on the privilege log. Rinse. Repeat.
7. As if the disrespect of the original dispute were not enough, I now get to sit you down in a conference room with a court reporter and spend a day or two asking you questions you don't want to answer. Often, the questions are asked in a disrespectful manner. When you complain to your attorney, he says "that's just the way the game is played." Focus on the word game. Are you having fun yet?
8. You get a bill for legal services rendered every month but you're no closer to resolution after receiving and paying 12 of these than you were on day one.
9. You're a business person. You negotiate business deals every day. Your lawyer does not.
10. You have given away any power you might once have possessed to resolve this dispute to a lawyer who does not understand your business, your life or the facts that drove you to seek legal advice in the first place.
Had enough? There are people out there - mediators - who are specially trained in helping you first communicate with your attorney and then helping you negotiate the resolution of your dispute with the "other side." Choose carefully. There are as many bad mediators there as there are litigators. My best advice? Negotiate the resolution of the dispute yourself even if it requires you to swallow your pride and to be the first one to say, "let's sit down and figure out how best to serve your interests and mine at the same time."
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've been talking about women's negotiation deficits for so long that we've completely neglected the men. This post is an attempt to cure that omission. Listen guys! We care about you. And we'd like to help you with your negotiation problem.
In Speaking Out About Women And Power, U.C. Berkeley Psychology Professor Tania Lombrozo describes a study in which women experienced gender blow back when they voiced their opinions “too ardently.” The social scientists conducting that study asked a group of men and women to evaluate a hypothetical CEO who was described as offering opinions as much as possible or as withholding opinions.
Unsurprisingly, female CEOs who offered opinions frequently were judged less competent and less suited to leadership than their sister CEOs who withheld their opinions. Equally unsurprising was the way in which the study judged the men – as more competent and better suited to leadership if they spoke up often and less so if they didn’t.
Too many people have concluded from studies like these that women are stuck between a gender rock and leadership hard place but men are not.
As Lombrozo is quick to note, however, men faced a complementary danger: of being perceived as poor leaders if they didn’t voice their opinions. Members of both sexes were penalized for failing to conform to traditional gender stereotypes.
Listen. We are all judged according to the culture’s expectation for our behavior. Women are expected to be kind, patient, tolerant, loving, giving and self-effacing. Men are expected to be judgmental, tough, self-seeking and self-promoting. We all suffer social sanctions – from harsh judgments to electoral defeats – when we step outside of society’s expectations.
Those who would caution us to “act our role” or suffer the consequences, however, are missing the bigger picture, as are those who urge us to ape the style of the opposite gender. Let’s take negotiation as our example.
In a recent article at Huffington Post, Joan Williams writes that women don’t negotiate because they’re not idiots, citing yet another study confirming the imposition of social sanctions on women who negotiate outside their gender role. Sara Laschever, co-author, with Linda Babcock, of Women Don’t Ask and Ask for It, immediately dropped by to assert that Williams’ article mischaracterized Babcock’s findings, explaining that the "study used only used one negotiation script, in which both the male and female negotiators asked for higher pay in a fairly aggressive way.
Discovering how to engage and persuade the other side is a process of trial, error, and adjustment. The following three rules from improv comedy can help negotiators connect more effectively with their counterparts.
1. “Say ‘yes, and...’ ”A cardinal rule of improv comedy is acceptance, which includes not negating what your counterpart says or does. If someone begins
a skit by shivering and saying, “Gosh, it’s cold up here at the North Pole,” it’s bad form to respond, “What are you talking about? We’re in the middle of the Sahara.” Improv comics accept each other’s “offers,” even if they’re unexpected or unwanted. Without the “yes, and...” norm, players would battle each other to define the scene and their relationship.
In negotiation, when the other side makes an unrealistic proposal, a firm “no” can be essential. But you’d often be wise to follow the “yes, and...” rule. Suppose a contractor interested in remodeling your office suite floats this proposal: 1) a floor plan that’s tricky to implement but perfectly suited to your team’s needs; 2) a price quote that’s slightly higher than you’d like; 3) completion in 10 months rather than your desired six-month time frame. If you’re not careful, you might immediately rattle off all the reasons why the third item is unworkable.
Before yielding to that negative impulse, consider where a “yes, and...” approach could take you. You might say, “I appreciate your willingness to accommodate our floor plan, which allows us to reciprocate on price. Now let’s figure out how to meet your need for extra time without causing us big headaches.” They may push back, but the “yes, and...” approach solidifies your progress and avoids painting your counterpart into a corner.
Saying “yes, and...” isn’t easy in negotiation. When you’re on the receiving
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end of an unworkable demand, you may feel your only choice is to cave in or fight back. If you’re quick on your feet, however, you may identify an alternative: accepting a glass that’s half full and then coaxing your counterpart to top it off.
2. “Don’t ask questions.” For improv performers, this second rule makes good sense. Imagine a show in which the comics can only ask questions:
Frick: “Aren’t you feeling well?”
Frack: “Why do you ask?”
Frick: “Do you think I’m being nosy?” Frack: “What gave you that idea?”
By this point, the audience would be stampeding for the exit. Nonstop questions stall scenes. Because questions rarely add new information, they don’t give the performers the material they need to build a story and their relationship.
Though a cardinal rule of improv comedy, “Don’t ask questions” might seem less applicable to negotiation. After all, without questions, how can you fathom the other side’s underlying interests and strike an agreement that pleases you both? Yet consider that even good questions can have costs. For one thing, they put the ball in the other party’s court. In improv, this is called “making the other guy do all the work.” When one comic says, “What are we doing here?” someone else has to invent the setting, roles, and action.
In negotiation, asking “What do you propose?” cedes control to the other party,
at least temporarily. That can be a disarming gesture if you’re confident that your counterpart will respond with a realistic offer that lays a foundation for collaborative problem solving. If he instead makes an aggressive proposal, you’ve let him anchor the process on his desired outcome and launched a game of haggling.
The wrong kind of questions can also backfire if the other side feels you’ve put him on the spot. “Is that really your bottom line?” is unlikely to get this desired response: “Well, not really. I just wanted to see if I could dupe you into settling cheap.”
When you do ask questions, keep them open-ended while offering a sense of direction. Better still, contribute to the conversation. Asking “What do we need to do to create more value?” can encourage fresh perspectives and ward off a knee-jerk no.
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Studies suggest that some negotiators seldom ask questions, though probably for the wrong reason—they fear that inquiries will signal poor preparation and oblige them to answer potentially awkward queries. Such negotiators are often so wrapped up in their own sales pitch that they don’t recognize that the other side probably has its own point of view.
The trick is finding the right balance between inquiry and advocacy. Questions can yield important information, but the act of questioning also creates an interpersonal dynamic that can be either positive or negative. Avoid the kind
of cross-examination that wins minor debating points at the cost of creating an adversarial relationship.
3. “Maintain eye contact.” Here’s another improv comedy rule that negotiators should observe in principle, if not literally. Eye contact is essential among performers, allowing them to send and receive physical cues that may be far more expressive than mere words. More fundamentally, it’s how they display deep engagement. If a comic lets his gaze wander over the audience, he’s playing to the audience, not his partner. Improv can succeed only if it’s done together.
Maintaining eye contact isn’t always possible or even advisable in negotiation. In certain cultures, looking a business associate straight in the eye is considered rude. Hierarchy also comes into play; those in high-power positions feel less need to engage subordinates by looking at them directly. And, of course, negotiations are increasingly conducted by telephone, fax, or e-mail—forums in which eye contact isn’t an option.
All the more reason for negotiators to find other ways to stay connected. Negotiators and improv performers alike must be accomplished listeners. This means more than spouting the tired scripts of active listening, such as “If I hear you correctly...” or “What I think you’re trying to say is...”. Deep listening isn’t just acting as if you’ve been paying attention; it is doing nothing but listening when your counterpart is speaking. That means resisting the impulse to formulate what you’ll say next while she’s still talking.
Improv comedians understand that the world is full of surprises—some pleasant, some not. Similarly, your negotiation counterparts may turn out to be more or less aggressive than you anticipated. Either way, be sure to respond to acceptable demands with “yes, and...”. Avoid acting like a prosecutor when
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you ask questions. Finally, successful improvisation requires listening with full attention.
My business partner, Lisa Gates, is an actor and improv artist as well as a negotiation consultant and adult learning specialist. It is she who taught me negotiation as improv.
Lisa could give you all the improv rules but since Harvard wrote it down, I'm sharing its wisdom with you to start your business-engines working this weekend.
You can get the PON article from which this post was drawn along with several others here.
1. “Say ‘yes, and...’ ”A cardinal rule of improv comedy is acceptance, which includes not negating what your counterpart says or does.
If someone begins a skit by shivering and saying, “Gosh, it’s cold up here at the North Pole,” it’s bad form to respond, “What are you talking about? We’re in the middle of the Sahara.” Improv comics accept each other’s “offers,” even if they’re unexpected or unwanted. Without the “yes, and...” norm, players would battle each other to define the scene and their relationship.
In negotiation, when the other side makes an unrealistic proposal, a firm “no” can be essential. But you’d often be wise to follow the “yes, and...” rule. Suppose a contractor interested in remodeling your office suite floats this proposal: 1) a floor plan that’s tricky to implement but perfectly suited to your team’s needs; 2) a price quote that’s slightly higher than you’d like; 3) completion in 10 months rather than your desired six-month time frame. If you’re not careful, you might immediately rattle off all the reasons why the third item is unworkable.
Before yielding to that negative impulse, consider where a “yes, and...” approach could take you. You might say, “I appreciate your willingness to accommodate our floor plan, which allows us to reciprocate on price. Now let’s figure out how to meet your need for extra time without causing us big headaches.” They may push back, but the “yes, and...” approach solidifies your progress and avoids painting your counterpart into a corner.
Saying “yes, and...” isn’t easy in negotiation. When you’re on the receiving end of an unworkable demand, you may feel your only choice is to cave in or fight back. If you’re quick on your feet, however, you may identify an alternative: accepting a glass that’s half full and then coaxing your counterpart to top it off.
2. “Don’t ask questions.” For improv performers, this second rule makes good sense. Imagine a show in which the comics can only ask questions:
.In negotiation, asking “What do you propose?” cedes control to the other party, at least temporarily. That can be a disarming gesture if you’re confident that your counterpart will respond with a realistic offer that lays a foundation for collaborative problem solving. If he instead makes an aggressive proposal, you’ve let him anchor the process on his desired outcome and launched a game of haggling.
When you do ask questions, keep them open-ended while offering a sense of direction. Better still, contribute to the conversation. Asking “What do we need to do to create more value?” can encourage fresh perspectives and ward off a knee-jerk no.
The trick is finding the right balance between inquiry and advocacy. Questions can yield important information, but the act of questioning also creates an interpersonal dynamic that can be either positive or negative. Avoid the kind
I asked Javits to first suggest an optimal negotiation strategy where one party – here, the GOP – is willing to risk catastrophe in the hope (or fervent belief) that the small government revolution they seek will be worth the short term damage to the economy if the debt ceiling is not raised. Javits surprised me by mentioning the history of the rise of communism in Russia.
As the federal budget deadline nears, I am seeking the advice and analysis of some of the country’s most prominent negotiation gurus to illuminate the motivations driving the on-again, off-again bargaining sessions between the Democrats and the GOP.
As Harvard professors Max Bazerman and Deepak Malhotra advise in their must-read Negotiation Genius, before concluding that our negotiation partners (or elected representatives) are crazy or evil, we should be asking ourselves whether they have unknown interests, are operating under hidden constraints, or are ignorant of facts of which we are aware.
These are the issues I’ve asked Adam Galinsky, Professor of Ethics and Decision in Management at the Kellogg School of Management, Northwestern University, to address.
What are the interests driving the federal budget negotiations?
Professor Galinsky: The parties’ interests exist at three levels: principle, prosperity, and politics.
Fortune 50 CEOs, AmLaw 100 equity partners, Big Four consultants, teachers, professors, politicians, Presidents, secretaries, waitresses, your Starbucks barista, actors, bakers, engineers, designers, artists, mothers, daughters, sisters, children. We all have one thing in common – the end of life’s road.
The Defense Procurement and Acquisition Policy Department Negotiation Preparation flow chart, suggests that negotiators
tailor the negotiation team to the situation
identify negotiation issues and objects
identify your bargaining partners’ history and probable approach
assess bargaining strengths and weaknesses
identify negotiation priorities and potential tradeoffs
determine an overall negotiation approach
prepare a negotiation plan
present the negotiation plan
preparare a negotiation agenda
This is as good a list of negotiation preparation steps as I have seen anywhere and it would be well to have it by your side whenever you negotiate anything more important than who should cook dinner and who puts out the garbage tonight.
As you follow this series of negotiations with health care providers on behalf of a legally blind man with congestive heart failure, remember that more than sixty percent of us will spend some time in a nursing home if we’re lucky enough to reach sixty-five years of age. This is a portrait of life in the United States at rock bottom – no income, no savings, and no family other than an ex-wife to whom our patient was last married in 1989.
In case you do not personally know someone who is dependent upon Medicare and whose circumstances could be severely impacted by the current federal budget negotiations, now you do.
Is there any chance your story will end where Joel’s does? Do you believe you’ll be able to afford Blue Cross premiums forever? Or that Blue Cross, or another health insurance provider will pay for skilled nursing facilities as long as you need them?
If you are a woman nearing retirement, the possibility that you will age in comfort is far less likely than the chance you will live out your final years in poverty. Presently, the U.S. poverty rate for people 65 and over is 9.7 percent — that’s 3.5 million people who, if they are single, are living on less than $10,289 a year. Two-thirds of women over age 65 rely on Social Security as their primary source of income. Consequently, women are twice as likely as men to live out their golden years at or below poverty levels.
So, yes, this story is about negotiating with health care bureaucracies, but it is also about the way in which the richest country in the world treats the weakest members of the human family, family members who could well be us.
Back from our fourth of July weekend, I leaned over to click the “play” button on our answering machine.
In Russian-accented English, the news everyone fears to hear rose from the machine. “My name is Oksana at Cedars-Sinai. I’m calling to talk about Joel. Please call me back.”
I’ve been here before and many of you have too. A loved one has been in an accident, is suddenly felled by a stroke or heart attack, or is in the final stages of a long decline. The last time the machinery of the American end-of-life bureaucracy ground into motion on my behalf was when my father began to die of Parkinson’s disease, a heart-breaking series of events I chronicled in “real time” here.
But no prior end-of-life experience prepares you for the next. Dad was in his 80s, remarried, living in a low-slung suburban Southern California ranch-style house attended by a 24-hour caregiver who had for years been his aid and companion. He had Blue Cross, retirement pay and a stream of income from rental property he’d amassed in the San Fernando Valley in the ’60s and ’70s.
Joel is my ex-husband. We were divorcing just as George H.W. Bush was beginning his Presidency in 1989. During those years, I met and married my new husband, changed jobs, pursued a new career, made new friends, and lived a busy privileged life.
Explaining why our bargaining partners should do what we want them to do requires persuasion — a compelling account of our business requirements and capabilities — along with any other reasons we can gin up to prove that what we want is fair and reasonable.
As sociologist Charles Tilly explained in his book, Why? we fail to persuade when we’re talking past each other and we talk past each other when we’re using a type of reasoning different from that of our bargaining partner. I first heard of Tilly’s work from that great popularizer of social science research, Malcolm Gladwell (Here’s Why) after which I never argued my case or negotiated a deal in the same way again.
But First, Why Reason Giving is a Critical Negotiation Skill
In experiments on reason giving, researchers have found that we are far more likely to persuade people to accommodate us if we give them a reason to do so even if the reason makes no sense whatsoever. In one experiment, students were asked to cut in line at Kinkos. One group was instructed to give no reason. Another was told to give a good reason (I’m late for class). The last was directed to give an irrational reason (because I want to).
A mistake that lawyers sometimes make is failing to ask for what they want. If they do want an evaluation they can ask for it when they hire the neutral. There are processes variously known as neutral evaluation, non-binding arbitration, or early case assessment which are designed specifically for this purpose. They can be used independently or they can be combined with mediation.
I was once hired to give a neutral evaluation in a commercial real estate case. The parties told me at the outset that while they were interested in exploring settlement they were really interested in my opinion on the merits. So we conducted a mediation that included a neutral evaluation. Not only did this meet their needs, the evaluation was given in a confidential setting and could not be used as evidence if they did not settle.
The point is that both parties wanted the process to be evaluative. It was not a situation where one party was expecting the mediator to be evaluative and the other party wanted the mediator to refrain from doing so.
When parties hire a mediator, they need to be of the same mind about the process. Otherwise the result will be like splitting a steak with your partner when one of you likes it rare and the other likes it well done. Somebody is going to get indigestion!
In business and in life, it's important to strike a smart balance between naïveté and cynicism. Act too naïvely, and someone is bound to take advantage of you. Skew cynical, and you may miss out on new opportunities with good people. This paper discusses the decision errors inherent in leaning too far in either direction. Research was conducted by Chia-Jung Tsay, Lisa. L. Shu, and Max H. Bazerman of Harvard Business School. Key concepts include:
Naïveté is more than a glut of trust. More broadly, naïve behavior refers to a failure to make the best decision, due to a lack of consideration of other people's strategic and behavioral perspectives. We are likely to make naïve decisions when we don't think through the likely future decisions of other parties. A cynic, on the other hand, may avoid a business transaction due to an assumption that the seller's self-interested motives will be harmful to him or her-even if logic shows that the deal would likely benefit both parties. When people withhold from trusting others, they usually lack opportunities to learn whether their trust would have reaped rewards. But when they offer their trust and are subsequently burned, they learn hard lessons about trust. This unbalanced feedback breeds cynicism.
In laboratory studies, the best negotiators were those who had a tendency to think about the perspectives of others. However, most people lack sufficient perspective-taking ability. The researchers suggest that training mechanisms should be developed to increase that ability.
Full working paper available for download at the link above.
Take a look at David Brook's article today on elite boot camp parenting. I wish I'd said what he says best about the importance of social skills and emotional intelligence to success (not to mention happiness). Naturally, these are the skills one needs to negotiate effectively as well.
Practicing a piece of music for four hours requires focused attention, but it is nowhere near as cognitively demanding as a sleepover with 14-year-old girls. Managing status rivalries, negotiating group dynamics, understanding social norms, navigating the distinction between self and group — these and other social tests impose cognitive demands that blow away any intense tutoring session or a class at Yale.
Yet mastering these arduous skills is at the very essence of achievement. Most people work in groups. We do this because groups are much more efficient at solving problems than individuals (swimmers are often motivated to have their best times as part of relay teams, not in individual events). Moreover, the performance of a group does not correlate well with the average I.Q. of the group or even with the I.Q.’s of the smartest members.
Researchers at the Massachusetts Institute of Technology and Carnegie Mellon have found that groups have a high collective intelligence when members of a group are good at reading each others’ emotions — when they take turns speaking, when the inputs from each member are managed fluidly, when they detect each others’ inclinations and strengths.
Participating in a well-functioning group is really hard. It requires the ability to trust people outside your kinship circle, read intonations and moods, understand how the psychological pieces each person brings to the room can and cannot fit together.
Even before the recession I was asking anyone within shouting distance just exactly what the country was going to do when the largely bankrupt baby boom became the largest impoverished retired class the country has ever known.
Post-recession, we're even deeper in debt and searching for last minute solutions.
One thing's for sure. Most of us will not be retiring at 65 - the age 10,000 boomers a day will benchmark in 2011.
Brentwood Executive Search strategist Marcia Basichis suggests that job hunters do what any good negotiator would – learn your potential employers’ interests and tailor your resume to match them. “All job candidates,” says Basichis “should research companies they would like to work for, thoroughly going over their websites to understand the business.”
Instead of focusing on the past – the dead-weight contained in most resumes -Basichis recommends looking to the future by writing potential employers letters explaining how your existing skills, education and experience can benefit the company you wish to join.
Dont overstate,” says Basichis, “but craft your resume in a manner that makes your experience most closely match the specific job you seek.”
Canadian attorney Michael Webster adds to my post on interest-based negotiation, there are only two questions you need to ask yourself to radically increase your chances of winning the coveted job you seek. First, ask what you would do if you and your potential employer were one person instead of two. Second, ask how you might credibly signal what both parties would need to do to achieve that goal.
Much of the complex commercial litigation that I mediate requires that businesses be valued. Although we litigators tend to hire experts to do the dirty work we went to law school to avoid (math!!) we do need to understand our own consultants' valuations as well as those of our adversaries in order to perfect our strategy and prevail at trial.
The valuation of forecasted cash flows can be an inaccurate process, especially when the forecasts are created by optimists who neglect to consider worst-case scenarios. In this paper, Harvard Business School professor Richard S. Ruback has developed methods of valuating forecasted cash flow when the predictions are biased upward. Key concepts include:
Managers often recognize that their cash flow forecasts are too optimistic and boost their discount rates to account for that bias. But that only works if the optimism masks a potential permanent downside.
The common practice of increasing the discount rate to account for optimistic cash flow forecasts can lead to significant valuation errors that increase with the length of the project, the cost of the capital, and the chance of a downside.
When the optimistic cash flow forecasts omit a temporary downside, valuators should adjust the forecast by deflating it and then setting the discount rate equal to the cost of the capital. In other words, the common heuristic of boosting the discount rate to account for optimistic cash flow can lead to a substantial valuation error when the omitted downside isn't permanent.
When the optimistic cash flow forecasts omit a potential permanent downside so that, if it occurs, there is no chance of recovery, valuators should deflate the cash flow forecast and increase the discount rate so that it includes the cost of capital as well as the probability of a downside.
As I left for work one crisp, sunny April morning, I spotted a five-by-seven printed form on my car’s front windshield. The form’s message proclaimed, in large, bold letters, “youparklikeanasshole.” The form had a checklist of infractions like “two spots, one car,” “that’s a compact?” and “over the painted lines.”The bottom of the printed form said,
Parking is far too limited in our overcrowded streets and parking lots, and you happened to park like an asshole. Go to the above web site to see why someone else thought you parked like an asshole. Don’t be too offended, we all do it one time or another—it just so happens you got caught.
My next-door neighbor, who evidently put the note on my car, listed my infraction as “other” with a follow-up explanation written by hand: “You are parking too close to my garage. It’s hard for me to pull my truck in.” I studied the note for a few moments. I felt my heart start to pound and my whole body became uncomfortably warm. I wadded the note and tossed it. I was angry. When I arrived at work twenty minutes later, I was still angry. I told my co-workers about the note.
They all agreed with me; it was rude and inappropriate.
When I returned home that evening, I visited with neighbors who were not complaining about my parking. I showed them the note, now crumpled and dirty. They, too, became angry. One neighbor suggested exacting revenge on the note’s author by letting the air out of his tires. Another neighbor excitedly suggested something involving Crisco. Although I am a trained mediator, I became giddy about the prospect of getting even.
Perhaps it was a moment of self reflection that led me to question why I was even thinking of revenge. But that written demand evoked intense emotions in me and in my neighbors. We did not care about investigating appropriate responses or attempting to resolve the problem; we wanted to make my neighbor pay for his rude behavior. Instead of encouraging me to change my behavior in the way my neighbor requested, the note had an entirely different effect. The written demand prompted me to make my neighbor regret placing that note on my windshield.
This incident led me to question the legal demand letters lawyers write. I wondered if demand letters often evoke similar negative emotional reactions in their recipients. And, if so, do those emotions influence the recipients’ behaviors in ways that hinder settlement?
I'll be providing a template for a negotiation request letter later today.
And all kidding aside, this article should be required reading for every legal writing class in every law school in the country!
I have to tell you that I believe every one of our She Negotiates graduates understands and knows how to use the bullet point takeaways from Extreme Negotiations below. Let me also say it's not enough to read about these techniques ~ you must practice practice practice practice.
Get the Big Picture
avoid assuming you have all the facts
avoid assuming the other side is biased but you're not
avoid assuming the other side's motivations and intentions are obvious and nefarious
instead, be curious ("help me understand"); humble ("what do I do wrong?") and open-minded ("is there another way to explain this?")
Uncover and Collaborate
avoid making open-ended offers ("what do you want")
avoid making unilateral offers ("I'd be willing to . . . "
avoid simply agreeing to or refusing the other side's demands
instead ask "why is that important to you?"
proposed solutions for critique ("here's a possibility - what might be wrong with it?")
UNCOUPLE YOUR PRESENT VALUE FROM WHAT YOU MADE LAST YEAR
your present compensation serves as a powerful anchor of your value to your employer's advantage
the following suggestions are a way of re-anchoring that value so that your starting point is greater than what you made this year
recalibrate your value according to what you are worth in your employer's hands, i.e., what does your employer save or make based upon the work you do (this may require research on your part)
use that value in setting your desired compensation (also include the cost to your employer of replacing irreplaceable you)
ASK DIAGNOSTIC QUESTIONS
begin asking your employer and superiors diagnostic questions (questions designed to learn what your employer needs, desires and prefers and what your employer is most concerned about in regard to the continued profitability of his/her business)
"how's business" is a great open ended diagnostic question that does not assume the answer
more specific questions include "what does the company need to accomplish in the first quarter of 2011 to meet its financial goals?"; "what are the company's first quarter financial goals?" "what do you see as the primary obstacles to achieving those goals?" "what do you see as the primary drivers of success in reaching those goals" etc. etc.
don't ask these questions impromptu; write them down as a way of brainstorming the most powerful questions and those that would be easiest to ask
I believe my first public speaking engagement was in the elementary school auditorium in December of1962, narrating the school Christmas pageant. When I spoke in public as a child (and later acted in La Mesa's "Little Theater" ~ a pre-teen farce called "Mudpack Madness") I did so with unmixed motives. I wasn't proving myself or selling patent medicine. My childhood public performances were not part of a "branding" effort or marketing campaign. I wrote and spoke and acted from the purest of motives. I was in love with the English language and with the printed and spoken word. I believed in my voice without question then. I was the obvious choice. I could deliver the message more powerfully and authentically than anyone else.
The next time I looked up, I was standing in the wings of the High School production ofMy Fair Lady ("Mrs. Higgins" thank you very much). An odd feeling overtook me. I looked down at my hands and they were damp and trembling. Everyone and everything, sets, student actors, the high school orchestra and the audience of wowed parents, looked brighter and more vivid than they ever had before. Simultaneously dazzling but oddly blurry.
And so I entered adolescence with what would one day be described as a "panic disorder." I mustered on through speech team (dramatic and humorous interp and oratorical analysis); took one drama class in college and gave up.
When I made my first court appearance fifteen years later, I recalled My Fair Lady as my vision narrowed just before I stopped myself from passing out.
2009 Total Compensation: $21,340,547
Whhaaaaaatttttt? do these men have that you don't have?
Social networks with rich and powerful people who sit on their Boards of Directors and influence policy makers and Wall Street power brokers
The self-created illusion that they are "too big to fail" /1
The persuasive argument that only they, with their unique combination of experience, education, knowledge, savvy, can-do-spirit, and leadership qualities can pull these banks out of the sinkhole of the recession.
Friends in very high places.
Chutzpah and shamelessness (not that we'd want to encourage this second character flaw in our readers).
An employment history of asking for and receiving increasing levels of compensation based upon their salary negotiations at every career point possible (and every career point impossible)
the demonstrated ability to produce results (our readers do possess this strength but haven't used it to their greatest advantage yet)
the tendency to measure their market value by their value in the hands of their employer, not by what they "need" or what they are "worth" according to some internal metric that depends upon how they feel about thier accomplishments.
1/ This is where collective action comes in. When we aggregate together America's employees, small business owners and homeowners, we get a non-corporate "entity" that is waaaayyyyyy bigger than some little piss-ant bank and it is we who are too big to fail.
Thanks to Weise Law Studio (studio? interesting) for the following from the Harvard Program on Negotiation.
How is it that mediators—who themselves lack any power to impose a solution—nevertheless often lead bitter disputants to agreement? Substantive expertise helps, as does keen analytic skill. But according to a survey by Northwestern University law professor Stephen Goldberg, veteran mediators believe that establishing rapport is more important than employing specific techniques and tactics.
To gain parties’ trust and confidence, rapport must be genuine: “You can’t fake it,” one respondent said. Before people are willing to settle, they must feel that their interests are truly understood. Only then can a mediator reframe problems and float creative solutions.
Social scientists contend that the difference is more than just cosmetic. They cite a 2006 study by the Wellesley Centers for Women that found three to be the magic number when it came to the impact of having women on corporate boards: After the third woman is seated, boards reach a tipping point at which the group as a whole begins to function differently. According to Sumru Erkut, one of the authors of that study, the small group as a whole becomes more collaborative and more open to different perspectives. In no small part, she writes, that's because once a critical mass of three women is achieved on a board, it's more likely that all of the women will be heard. In other words, it's not that females bring any kind of unitary women's perspective to the board—there's precious little evidence that women think fundamentally differently from men about business or law—but that if you seat enough women, the question of whether women deserve the seat finally goes away. And women claim they are finally able to speak openly when they don't feel their own voice is meant to be the voice of all women.
Over at She Negotiates, we use the power of women to support, encourage, cheer and brainstorm in every class we offer, with the greatest power coming to and from our post-graduate Negotiation Master Classes which are limited to only four women. For additional information about how you can use woman-power to improve your bottom line, contact either Lisa or Vickie using our contact form or catch either one of us at our direct numbers.
This isn't about gender-war, this is about human peace and prosperity!
Architect David Denton spends much of his time on a lush tropical island, where he experiments with cutting-edge building designs and creates spaces for artists to showcase their work.
Never mind that the island only exists in the virtual-reality world of Second Life, a popular online venue where people interact via digital avatars. Denton, 62, said he purchased the island for about $700 — real money, not virtual cash — from its former owner, and considers it his property.
Here's the thought this article triggers. If 90% of all litigation involving people (I'll skip corporate litigation and litigation brought to vindicate rights such as that declaring Prop 8 unconstitutional) will end with a retired Judge telling the people that litigation is too expensive and a jury trial too uncertain for them to bear, why don't we just litigate virtually (with Linden dollars!) giving the parties the experience of litigation that will eventually drive them to settlement?
I'm sure some smart programmer can come up with an algorithm for most personal disputes, including both factual templates and the application of simple legal principles. A "ticker" could keep track of the dollars your virtual attorney is billing on your law suit's screen everyday. Continuances, discovery motions, pre-trial proceedings and depositions could all be simulated.
Then the parties return from the virtual life of Second Life Litigation and sit down in the old fashioned way to negotiate a resolution to their dispute or, if necessary, hire a village elder trained in conflict resolution, sometimes called a mediator, to help them do so.
If negotiation is a conversation with agreement as its goal, we should not be wasting our time arguing with one another about whose point of view is the best. We should be talking to one another about how we can both achieve as many of the goals we both want to achieve as a result of our conversation.
You do not have to change anyone's mind to give them what they want to get. And you don't have to grudgingly accept half a loaf (a portion of the pie) if, unbeknownst to one another, you possess five items of value your bargaining partner wants or needs, and your bargaining partner possesses a dozen items of value you want or need. In a really effective negotiation, you may find that together you and your bargaining partner can whip up a dozen pies and end up with more than either of you had imagined.
Wouldn't you like to be learning how to do this instead of working on that sanctions motion for your adversary's bad faith refusal to answer interrogatories?
And gentlemen, tell your women friends. Husbands and significant others benefit from this course as well! My own happily came back from the gym the other day saying "I did what you taught me; I got two extra months of gym membership free."
I asked one of my consulting clients for a testimonial yesterday.
"Anything," she said, "it's genuinely changed the way I do everything. It's not just the shift in my business relationship with [BigBiz, Inc.]. I dumped a boyfriend last week because of our conversations! So, seriously, what would you like me to say?"
My client and I, like the few women commercial litigation clients I had during my twenty-five years as a lawyer (2%?) were quickly becoming friends. And I was proud of her. Truly proud. Like a parent would be.
"I'm proud of you," I finally said, even though I'd been thinking it for weeks. "You've shifted the power in your working relationship and that was difficult to do. You were persistent. You're a first class learner. And you've been brave."
She laughed, the way we women do when we're praised, wanting the moment to pass instead of savoring it a little, particularly when we know deep down we've genuinely achieved something important in our own lives and careers but don't want to appear self-satisfied.
So I said it again. "I'm really proud of you. You've done great work and you never gave up. You didn't fold to the power of BigBiz, Inc. You stood up for yourself."
Let's take a workplace teaching moment from the Obama-McCrystal dust-up as provided to us by the New Yorker in this week's Talk of the Town piece, Team Effort. In reporting the dysfunction on Team Afghanistan (McChrystal vs. American Ambassador Karl Eikenberry with President Karzai as a manipulative by-stander) the NY'ers George Packer recalls a description of governmental decision-making provided by Obama's special representative for the region, Richard Holbrooke, last year:
People sit in a room, they don't air their real differences, a false and sloppy consensus papers over those underlying differences, and they go back to their offices and continue to work at cross-purposes, even actively undermining each other.
If that defines your workplace, it's time to have some difficult conversations in which a genuine consensus is negotiated among those in power, all the while remembering that everyone is afraid of the scary HR lady down the hallway. As the recession appears to deepen and run American business off the rails, its time we get real, get smart, get efficient and get right with one another. If not, next thing you know, you'll be learning to spell Q-U-A-G-M-I-R-E yourself, wondering how the heck such a profitable enterprise could meet such a messy and costly end.
Thanks to the SCOTUS Blog for the following resources on the upcoming Kagan hearings. Follow SCOTUS Blog all week for commentary.
Why should negotiators be interested in the composition of the Supreme Court? Because the freedom to negotiate requires a strong rule of law culture. And because everything we negotiate assumes the enforcement of certain agreements and non-enforcement of others, of particular interest to negotiators and ADR practitioners - arbitration agreements.
“There’s pressure from both sides to toughen and to soften the Volcker rule, and politics is the art of compromise,” said Lawrence Kaplan, an attorney at Paul Hastings Janofsky & Walker LLP in Washington. “Running a hedge fund wasn’t the problem, and this way they’re saying all of it wasn’t bad, you just can’t use too much of your capital on it. Politics is the art of saying ‘we made it tougher’ without making it really tough.”
In Workplace Negotiating Secrets From Bethenny's Shrink over at Forbes.com, Xavier Amador, the therapist on Bethany Getting Married? gives his "secrets" for "winning" workplace arguments. What Amador suggests (below and at the link) is really just collaborative interest-based negotiation, but his catchy acronym - LEAP - is a good one to remember for all negotiations, whether you're brokering peace in the Middle East or getting your guy to put the toilet seat down. If you read the article, and I highly recommend doing so, you'll see that no one is "winning" any "argument." Rather, people are finding ways to accomodate all of their needs simultaneously.
Amador, 50, uses many of the same methods with both individuals and corporate clients. His book I'm Right, You're Wrong, Now What?, lays out a strategy he calls LEAP, for listen, empathize, agree, partner. It applies to salary negotiations, to disagreements with partners or colleagues or underlings and even to challenging sales assignments.
An acronym enthusiast ("acronyms help me to remember"), Amador says the first step is "L," for listen. That may sound simple, but often it's very hard. In sales, for instance. Before he became a psychologist, Amador worked for an Arizona company that sold solar heating. Rather than simply trying to push his product, he found he got further if he patiently listened to his potential clients' objections.
The numbers below represent an unscientific poll of women in business concerning their skills, attitudes and fears about negotiation. The women were asked to rate their agreement with the statements on a 1-10 scale with 1 being the least agreement and 10 being the greatest agreement. The numbers represent the average answer.
As the July She Negotiates workshop nears, I realize that the one force that might discourage women from participating is the same force the workshop is designed to (and will inevitably) resolve: the effect of the recession on women's already reduced earning power.
But let's take a look at what's at stake here - your economic future.
Why this is Mission Critical
The wage and income gap is stuck at 33% despite the gains made by women in business and the professions over the past thirty years. That's simply unacceptable to me. And because I know the reason why, I've committed myself to spreading the word and teaching the skills necessary to close that gap NOW.
You Know Why the Wage Gap Persists?
I believe I do. I'm no social scientist, but I am an expert negotiator with a master of laws degree in conflict resolution and five years of full-time experience facilitating the negotiated resolution of commercial litigation.
I've been teaching women to negotiate for the past two years and here's what I learned - both on the ground and through extensive research.
Check out The Impact of the Irrelevant on Decision Making in today's New York Times. It's not just another article about the surprising power of anchoring and framing. It suggests that "framing a discussion" is so powerful that it is "an ethically significant act."
As economics Professor Robert Frank notes:
even conservative political commentators have begun to point out [that] Republicans have lately been far more aggressive in stretching [framing's] traditional boundaries. When Sarah Palin said that if health care reform legislation were adopted, her parents and her child with Down syndrome “will have to stand in front of Obama’s ‘death panel’ so his bureaucrats can decide, based on a subjective judgment of their ‘level of productivity in society,’ whether they are worthy of health care,” most people probably realized the president had made no such proposal. Her statement nonetheless shifted the terms of the debate, making it harder for legislators to focus on genuinely relevant issues.
Is there any cure? Can't we simply raise our level of discourse to include critical analysis? Yes, answers Frank, but only if social sanctions are attached.
Economists have long recognized that social sanctions are often an effective alternative to legal and regulatory remedies. As Adam Smith argued, moral sentiments are extremely powerful drivers of human behavior. People who know they’ll be ridiculed for telling untruths are more likely to show restraint.
Some social sanctions are less effective than others. In recent years, the most conspicuous public falsehoods have been ridiculed by independent bloggers and Comedy Central’s faux news hosts. But television and Internet audiences are highly segmented. Many of Jon Stewart’s targets may never hear his riffs about them, or may even view them as badges of honor.
That’s why it’s important for the circle of critics to widen — and why we need to remember that framing a discussion appropriately is “an ethically significant act.”
Go forth, fellow lawyers, mediators and negotiators. Anchor and reframe, but do so ethically!
Law firms' corporate clients are not created equal, if billing rates are any indication.
Firms are charging different hourly rates to different clients for doing similar work, according to an analysis of more than $4 billion in law firm billings that will be released in September.
Differences in billing rates are just some of the preliminary findings in the "Real Rate Report" by CT TyMetrix and The Corporate Executive Board. The report examines billing from more than 4,000 law firms, 50,000 individual billers, and 18.9 million invoice items from 2007 to 2009.
The data was collected from CT TyMetrix's clients. Law firms and corporate legal departments have been using the company's web-based financial and e-commerce software to handle ebilling and matter management for more than 10 years. About $30 billion in legal invoices have flowed through the company's systems, said Julie Peck, vice president of corporate strategy and market development at CT TyMetrix.
And the results of the report, once released, will be aimed at helping general counsel make better decisions about how and where to spend their money. The findings will be broken down by several factors, including geography, law firm size, staffing, and the types of matters handled.
"It will give general counsel an enormous amount of bargaining power," Peck said.
More important than her religious background (Jewish) her Ivy League Credentials (Harvard) her progressive, liberal or conservative Democrat political leanings, is the prospect that Kagan's addition to the Supreme Court will result in the magic number of three women on the United States Supreme Court.
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.
So get ready to celebrate the woman who negotiate, network, resolve, succeed, and transform with a nod to mom for Blawg Review #263!
What women are saying about the Craving Balance Negotiation Course:
"I learned more during this hands-on negotiating course than in another higher priced class. Victoria and Lisa helped me make the emotional changes necessary to demand a higher value for my work, and taught a step by step process for getting the most from sales negotiations."
The “She Negotiates” blog is dedicated to the proposition that “all [people] are created equal . . . [and that to procure the full benefits of citizenship, including economic opportunity] women must themselves become accountable for a substantial portion of the existing income and wage gap that persists with alarming tenacity two full generations (forty years) after the commencement of the Second Wave Women’s Movement.
Although implicit bias continues to dog the retention and promotion of women in society’s most powerful economic, political, and professional fields, as we did forty years ago, we must once again raise to consciousness the way we limit ourselves by failing to accurately assess our own market value, name it, and, through the negotiation of the price of our services and salaries for our employment, claim it with the same sense of entitlement as do our male peers.
Although this is a gender challenge, it is a community issue. Both men and women suffer when women’s work is not appropriately valued in the marketplace. Despite the many and considerable advances in the status of women over the past forty years, men continue to suffer disproportionately the primary economic burden of providing the lion’s share of the economic support in American families. When women know their market value and demand to be recompensed accordingly, this disproportionate burden on men will decline, if not disappear.
Work stress and hostility. It’s a common explanation for excess male mortality, and there may be something to it. Indeed, the stereotype of the harried, hard-driving, overworked male executive has a basis in fact, and work stress can increase the risk of hypertension, heart attack, and stroke. In fact, karoshi, “death from overwork,” is a recognized diagnosis in Japan, and it triggers compensatory payments to survivors. Type A behavior, stress, hostility, and anger have all been implicated as heart disease risk factors, and these traits tend to have a higher prevalence in men than women.
To help women help themselves (and the entire male population) [I've] begun teaching women the negotiation skills to become full workplace – and economic – partners with their male peers. In every Women’s Negotiation Seminar and Workshop [I have] taught – online and in person – women report back that they recouped far more than the cost of the program within thirty days by ascertaining their true marketplace value and negotiating it.
My online month-long coached negotiation for women course (“She Negotiates“) begins on June 1 at Craving Balance. [I] will also be teaching Power Negotiation for Women at the Pasadena City Women’s Club on June 10, 2010. Please bookmark the date for this later in-person, three-hour seminar – web site for the course will be up soon!
Can't ask for a raise during an economic downturn? If the recession doesn't stop insurance executives from increasing their own pay and benefits by more than 50% (to $13.1 million) why should it stop you?
WellPoint Inc. revealed Friday that it boosted . . . chief executive [Angela Braly's] compensation 51% last year, even as the health insurance giant prepared massive rate increases in California that embroiled it in a national controversy over skyrocketing health insurance costs.
The proposed rate increases of up to 39% in individual policies turned the insurer into a flash point in the healthcare overhaul battle, breathing new life into President Obama's effort at a crucial time in the debate.
It was 8 o'clock on a mid-summer evening and the HMO's representative was packing up his brief case. "I appreciate your hard work," he was saying, "but I simply don't have the authority to compromise any further."
Though we'd only met that morning, I was inclined to believe him because he'd played straight with me throughout the day. Still, no one ever tells you their true bottom line and the number from which Mr. HMO refused to budge seemed odd to me. $124,000. It didn't feel like impasse.
The facts were simple and undisputed. The HMO made bookkeeping errors. As a result, they overpaid Dr. X $200,000 during the previous three years. Dr. X had no good defense to repayment other than an allegedly failing practice and general lack of assets. Business reverses. Divorce. That sort of thing.
During the day, the parties worked well together. They agreed on a protocol for the review of the doctor's financial records as a condition to settlement. We'd also made good progress in reducing the gap between the parties' initially intransigent positions. Dr. X's last offer had been $100,000 -- $25,000 every quarter for the next calendar year secured by a stipulated judgment.
But now both sides were tired and frustrated. They each wanted to make a final "take it or leave it" offer. $124K by the HMO and one hundred by Dr. X. The parties said they could go no further but I was pretty certain Dr. X could be coaxed as high as $115.
In separate caucus, I'd already asked Mr. HMO if he'd take 110.
"I can't even take $123," he replied. "I think it's time to tell Dr. X that it's $124 or we walk."
This is one of the most important moments in a negotiation. A time when the parties, and the mediator, need a good way of judging whether one or more of the parties is bluffing.
"I have to call for more authority," they'll say. And sometimes you'll know and sometimes you won't, whether they're calling the home office or a dead number. Like that scene in Fargo where the car salesman leaves the nervous buyers to ask his "manager" for concessions when he's really just taking a break to talk about the upcoming basketball game.
On the internet, how DO you know whether it's a dog or the CEO on the other end of the line?
Aside from stating the obvious truth -- you never really know -- there are some ways to track down something close to the actual truth. The best way I know is to ask for detail. Story. I think we're hard wired for narrative and that if we are misled by it we're not paying close enough attention. As Mark Twain said, the good thing about the truth is you don't have to remember it.
The HMO's alleged bottom line continued to nag at me. "You can't go to $123?" I asked quizzically. "That seems odd to me. Why is that?"
"Well," said Mr. HMO, pausing as if he thought it might not be a good thing to tell. "To tell you the truth, we overpaid one of our board members, Dr. Y, too." He was sheepish now. Surely someone, maybe many people, had paid for these errors with their careers. "I can't tell you by how much." He looked at his attorney who nodded to him to go on. "I can tell you that Dr. Y re-paid 62% of what we overpaid him. And 124 is 62% of 200. I can't cut anyone else a better deal than that." He paused. "Obviously," he said.
"Obviously," I echoed. "Makes sense." I smiled, "I do hope you've got that bookkeeping thing under control now."
Everyone laughed and I went back to the defendant confident in my assessment that 124 was truly a drop dead number; that Mr. HMO was highly likely to walk unless Dr. X put another $24K on the table.
And that's what the case settled for.
As I drove down Westwood Blvd., late for dinner with friends, I reminded myself that you can tell whether it's the guy with authority or someone's dog Fido on the other end of the phone. Because even in this big anonymous town, we know the truth by its detail. And really, only a writer or a sociopath could make this %$#^ up.
The following article is a must-read for these economically challenging times. Excerpt below and link to entire article at end of excerpt. This also works for consultants, attorneys, trainers, mediators, and anyone else who is marketing their services to clients.
The woman was interviewing for a lucrative position as director of a sales team. After having three great meetings full of lively conversation about how she'd handle the job, she was optimistic. But then came the fourth and final interview, with the company's executive vice president. Things were going swimmingly until the interviewee asked a question designed to lock in the offer: "Do you have any issues with my candidacy?"
"Frankly, yes," the executive replied. "You're good with people, but you don't have the analytic background we need. Not only would you need to steer the sales team, but you'd need to analyze information and data too." Shocked, the woman left the meeting realizing the offer she'd thought was in the bag was gone.
In a high-pressure job search, is it ever possible to turn a no into a yes?
Absolutely, says Robert Hellmann, a career coach at the Five O'Clock Club, a career counseling firm, who also teaches career development at New York University. Hellmann was coaching that very woman, and he helped her turn the situation around.
After every job interview, Hellmann advises, you should write not a thank-you note but what he calls an "influence letter." In this case, that letter became his client's key to getting back into the running
The letter should always address the conversation you've had and your skills and experience. First, in the interview, you should ask what challenges the company is facing and what the new hire will need to do as soon as she starts work. In the influence letter, address those challenges concretely, ideally by describing similar challenges you've tackled at a previous job and how you handled them.
Former Executive Vice-President and General Counsel to The Walt Disney Company, entertainment law heavy-weight Lou Meisinger (now Judge Meisinger thank you very much) gave me the best impasse-breaking advice ever.
"One of the best ways of breaking negotiation impasse in litigation," Lou casually observed, "is to finesse the legal action by transforming the litigation into an opportunity to make a deal."
I'd just finished digesting "negotiation leverage belongs to the party who is perceived to be the one most able to afford the consequences of a failed negotiation," and now Lou was delivering the holy grail of Breaking Impasse. It was like being given a third lung. I could breathe again.
"Transform the litigation into an opportunity to create a business deal." What did that mean?
Lou's advice to "finesse the impasse by changing the deal" is discussed in great, articulate and academic detail by Lax and Sebenius. Before going there, it's important to know what they mean by the three dimensions of a deal. Those dimensions, they counsel, are tactics, deal design and set-up.
"Tactics" are strategies exercised at the bargaining table, such as improving communication, building trust, countering hardball plays and bridging cross-cultural divides.
At its simplest, deal design involves the invention and structuring of agreements that create greater value for all parties, meet the parties' objectives better than easily conceived alternatives and are more durable that agreements reluctantly accepted by weaker parties. "More durable" means no future litigation over their meaning.
Set up is the architecture of the deal that ensures the most favorable scope, by involving the right parties, addressing the right issues, and considering all no-deal options. It also involves negotiation sequencing and basic process choices.
Staples Finesses Impasse with the Venture Capitalists
I won't tell Lax and Sebenius' entire Staples office supply store story. You'll have to read the book to get the rest of it. But it's a great example of Lou's advice to finesse impasse by changing the deal.
Staples was the original big-box office supply store. Like all wildly successful early entrepreneurial successes, Staples soon had a formidable competitor, Office Depot. To ward off the competition, Staples needed expansion capital and it needed it fast. All of the venture capital firms and the investment bankers were valuing Staples at pretty much the same price point, a price point its founder considered unacceptable. So he went to the top -- Harvard Business School Professor Bill Sahlman, an expert on venture firms and start-up financing.
Sahlman recommended breaking the impasse by changing the deal-design and the set-up by finding new players and re-sequencing the negotiation. Together, he and Staples founder identified other investors who were flush with money and potentially interested in better ways to deploy it.
Sahlman suggested contracting the limited partners in the venture capital firms who were then holding firm on pricing -- pension funds and insurance companies. Wealthy individuals, he suggested, might also pay more for the opportunity to obtain a piece of Staples' action.
Because the VC firms charged hefty management fees (usually 20% of the profits) by offering the deal directly to a VC's investors, Staples could offer 100% of the profits for the same share of their investment in the Staple's pie, increasing the actual value of each share by 20%.
As Lax and Sebenius stress, this result could not have been achieved by negotiations "at the table" or even with the originally identified stake-holders. What Staples did was to "favorably reset the table with right new parties whose interests were far more aligned with the deal he wanted to do." Then it sequenced the process by going back to the VC's and the investment banks, saying, "this thing is filling up fast; do you guys want to play or not?"
How, you ask, can this paradigm be applied to litigation where the players are already fixed and can't simply walk away if they do not reach a deal? By transforming the litigation into a business opportunity as Lou suggests.
If the parties to commercial litigation realize their lawsuit can serve as one of many bargaining chips that either party can deploy to create a business opportunity for both, what originally looked like a brick wall of impasse is transformed into dozens, even hundreds of doors to a more profitable and productive future. That's the way you get yourself and your clients out of the litigation lock-box. Just walk out the door.
Learn how to play Texas Hold 'Em (or win more often) while maximizing your negotiation strategies and tactics at your next firm retreat with the Pynchon Negotiation Seminar's "Negotiation as Poker Game." For testimonials and pricing, go to the Settle It Now! website and click on "Negotiation Training."
The training for which this particular power point presentation was prepared was tailored for an organization of women healthcare executives. Here's what they had to say about it:
The women at the X2 Healthcare Network were so enthused by the concepts Victoria presented in her keynote, "Winning" the Negotiation, that we are planning on her full-day workshop as the focal point to our next annual retreat. Victoria's style was engaging and participatory, and we all went away wanting more of her strategies, tactics and entertainment.Gale Wilson-Steele of Health Media Syndicate ~ a MEDSEEK Partner
When I was ten years old, my best friend, Steve and I moved our nascent tennis careers from the blacktop of neighborhood streets to the local high school's courts. I'd never had a single lesson but believed I was pretty darn good.
Then came tennis season in high school.One warm Southern California morning, I was showing off my strong backhand to Coach White when she yelped, “where did you learn to play like that?”
“It’s how I’ve always played,” I replied, waiting for the praise I knew must follow.
“Well, it’s all wrong,” she scowled.“I’ve never seen anyone hit a backhand like that before in my entire life.”
It wasn’t a titanic struggle, but I did mightily resist giving up the skill I’d been honing since elementary school.It worked for me.Why did she want me to change?Not only would I be required to alter behavior that was, by now, reflexive, I’d have to spend some serious time being a really crappy beginning tennis player again.
Nearly forty years later I'd have a jarringly similar experience taking my first mediation class after negotiating settlements for more than two decades. I had to spend a little bit of time being a really crappy beginning negotiator again. And I'm pretty certain that will also happen to most of you.
That ingratiation tactic, for instance. The one in which we give up power for sympathy. It's worked pretty well with our husbands or family or children.Sure, they’ve come to resent the manner in which we get our way and they give up theirs, but time is short; we're overwhelmed with raising a family or climbing the corporate ladder; keeping our business above water or getting along with a bully boss in the workplace.We’re not going to have to give up our old reliable techniques are we?
Yes we are!
Because new skills have now been repeatedly tested by negotiation professors and coaches at the best business schools in the country, skills that are being used by Fortune 500 executives and international diplomats to better effect that the daily news would suggest. Skills that will work for you. Promise. Guaranteed.
What I think will most surprise you the most is that the most effective negotiation strategies and tactics are pretty much what we women are already good at.We naturally look for opportunities in which everyone gets what they want.We’ll just tweak that existing talent a little and make it more powerful by bringing it to consciousness.
What we’re not tremendously good at is asking for what we want.And because we haven’t practiced that skill, we haven’t learned how powerful it can be.Nor have we learned how to do it without sounding bossy or bitchy or whiney.Sorry for the stereotypes, but we are judged according to them. One of the lessons in this course is how to get the concessions we cannot get by being bossy, bitchy, and, whiney or that we do get but that we're later punished for in surprising and baffling ways.
Isn’t that much easier, my coach asked after only a few weeks of play.And see how much stronger your stroke is and how many more games you’re winning?
Yes!I did see.And although I didn't go on to a career in tennis, I’d learned my first genuinely valuable life lesson.Be ready to give up that which doesn’t work no matter how fond of it I am.Be ready to learn that which does work.And rule the court!
The Lessons of Week Two
winning negotiation strategies - getting to the table
Today I stumbled over the post Women Deal with Conflict Differently than Men, reporting on a study done by the Program on Negotiation at Harvard in 2008. Results of the study showed the following similarities between men and women including:
Integrating, the ability to meet the needs of both parties; and,
Compromising as a strategy, except women showed a "high level of agreement that every issue has room for negotiation"
The differences included:
women's tendency to choose equal distributions when compromising which the researchers apparently ascribed to women's greater concern with fairness;
competitiveness - with men scoring 25% more competitive than their female counterparts
"smoothing," with women engaging in that behavior 20% more of the time than men - smoothing being defined as "giving in to the other party while ignoring one's own needs"
avoiding or withdrawing with women doing so 30% more than men
expressing feeling, with women apparently doing so "more" than men but no percentages are provided
We'll be working with gender differences through the end of the month of March and will likely discuss this data in more detail later.
I'm sure you've noticed that we're celebrating negotiating women here this month in honor of International Women's Day and National Women's History Month. Other than tomorrow night's free negotiating women teleseminar with super coach Lisa Gates, I'm celebrating by posting in one place all of my articles on negotiating women.
If you're entering the job market, you'll want to check out Forbes' Magazine's Tips for Negotiating Your First Salary. If you do not negotiate your first salary, you stand to lose half a million dollars over...
Practicing law, particularly litigation, is often frustrating, sometimes humiliating, and frequently simply dispiriting. On the other hand, the practice of law can be thrilling, intellectually stimulating, challenging, absorbing, and a darn good way to make a good living. When you...
(Right, women protesting, 1912. My own grandmother was 12 years old at the time this photo was taken. By the time she was old enough to vote in 1921, she could vote) Why women's voting rights and Hillary Clinton's DNC...
If you're a certain age, you'll remember women's magazines as mostly "Can This Marriage Be Saved" (The Ladies Home Journal to which PWNSC members Cathy Scott's and Cordelia Mendoza's mother was always submitting articles) or 101 Things to do with...
Yesterday, we talked about the different negotiation styles of men and women. Today, we're going to explore how men can benefit from learning women-speak and women can benefit from learning man-talk. All of the data relied upon and excerpted below...
Although I am indisputably a "woman lawyer," I have never thought of myself in those terms. I'm a lawyer. And I'm a woman. I'm also a writer, a step-mother, a wife, a daughter, a river rafter, and an aficionado of...
(and, yes, I am not only old enough to remember the "Second Wave" Women's Movement, I took a quite serious role in it, first as an unpaid volunteer and later through the federal government's "Program for Local Service" at...
Thanks again to Vicki Flaugher of SmartWomanGuides.com for inviting me to have this conversation with her about ways in which women can and do maximize their bargaining power. And yes we do talk about negotiating the purchase of an automobile...
In part two of Vicki Flaugher's interview with me, we discuss ways in which women can comfortably respond to aggressive zero-sum distributive bargainers and negotiate better business deals using their natural strengths. I'd like to once again thank Vicki Flaugher...
Video below is part I of an interview on negotiation challenges, strategies and tactics for women with Vicki Flaugher, founder of SmartWoman Guides. The full audio of the video is here along with Ms. Flaugher's kind comments about our conversation....
How to Negotiate Anything: Free Intro Thursday, Mar 18, '10 8pm EST Some researchers say that women's failure to negotiate working conditions, salary or other compensation--along with their hesitancy to seek what they're worth when they do negotiate--is one of...
Whereas American women of every race, class, and ethnic background have made historic contributions to the growth and strength of our Nation in countless recorded and unrecorded ways; Whereas American women have played and continue to play a critical...
When I posted Negotiating Gender: Why So Few Women Neutrals? I had not yet found a source for the statistical representation of women neutrals on the American Arbitration Association Panel. I've now located an article on the AAA website from...
Although most of the major providers of alternative dispute resolution services tout their commitment to diversity in the ranks of their neutrals, the coloration of nearly all ADR panels continues to be white; the nationalities European; and the gender male....
Thanks to Ed. at Blawg Review for passing along this (somewhat rambling but well worth watching) lecture at Stanford University by Deborah Kolb, the Deloitte Ellen Gabriel Professor for Women and Leadership at the Simmons College School of Management....
Litigating and trying complex construction disputes requires visionary strategic talent; incisive tactical skill; wise management abilities; and, dogged persistence. Now construction litigator, trial attorney and mediator Ron White brings those qualities to the settlement of complex construction disputes with his newly launched blog, The Critical Path, Tools for Resolving Construction Disputes.
I especially like the opening "habit" - vision. Below is an excerpt, but you'll want to stroll on over to Ron's new shop to check out the entire post. While you're there, welcome Ron to the ADR and Construction Law Blogosphere. I long ago told him that we're like a small town in Iowa where people still leave their doors open and the welcome wagon arrives with lists of local services; good advice; and, baked goods. Don't make a liar out of me!
"A successful negotiator," Ron writes
has outstanding vision; he sees both the strengths and weaknesses of his case. He has the capacity to look beyond the narrow focus of advocacy and peer into the broad spectrum of possible outcomes through the eyes of the judge or the jury. He meticulously evaluates the law and facts advocated by his opponent, knowing, as did the samurai, that “You must understand the conditions on the opposite shore to comprehend your side of the river.” This perspective minimizes negotiating mistakes, which, studies have shown, occur more frequently with plaintiffs, but that when defendants do make them, they are really big mistakes resulting in awards much higher than plaintiff’s last pre-trial settlement offer.
Yes, Virginia, lawyers do "win" mediated settlement negotiations every work day. They do so by:
their reputation for success at trial;
their ability to choose the right moment to first discuss settlement;
their ability to "control" their team and their client ("control" being a legal term for good client relations arising from top notch client communication skills);
their negotiation skill set - both in terms of long-term strategy and "at the table" tactics;
their persuasive skill set - both with opposing counsel and with the mediator;
their ability to conduct a risk-benefit analysis that approximates the true likelihood of their probable success at trial;
their determination to make aggressive but reasonable first offers;
their possession of and willingness to stick to a set of flexible "bottom lines" that give them sufficient room to "horse trade" and "hang the meat low enough for the dog to smell it;
their ability to bring the right people to the table at the right time; and,
their ability to walk away without dramatics if the other side is unwilling to negotiate in the realm of reality.
Some of these skills are in all litigators' arsenals. Where most litigators are the weakest is in the negotiation of settlements. I know it not only because it was my greatest area of weakness ("I'm paid to win not to settle") but because I see it evidenced in mediation when attorneys bargain half the day away in the useless strato- and nano-spheres.
Here are two new resources you should have at hand every working day. "Having blog resources at hand," by the way, means having a google or other news reader to send you RSS feeds.
Decision Tree Analysis - the Decision Tree Analysis Blog by PaperChace. There's a ten-day free trial of PaperChace's decision tree analysis software for mediators, a free trial I'll take advantage of once the $^%@# book is finished (any day now, really). Laywers love numbers in the way only people who don't understand them can. I've had cases settle promptly as soon as everyone has put themselves to the task of making numeric estimates of their chances of success on the merits at any given stage of the litigation. For making the uncertain certain and depressing overly optimistic client expectations there's nothing quite like numbers. Do check it out.
There's another mediation blog to read as well, but not simply "yet another" blog by yet another mediator. This is Lee Jay Berman, one of the best and busiest mediators in town, the teacher of thousands in Pepperdine's internationally known and respected "Mediating the Litigated Case" and President of his own mediation think-tank and training station - the American Institute of Mediation.
The blog, Eye on Conflict, will deliver to you free of charge the wisdom, education and training you'd otherwise pay thousands of dollars for. Listen, I spent two full years at the Straus Institute earning my LL.M in dispute resolution and every time I talk to Lee Jay he tells me something that improves my ability to help lawyers negotiate settlement 100%. Today Lee Jay mourns the passing of a giant in our field - Richard Millen. As you read Lee Jay's tribute, you come to understand just how deeply embedded he and his vision are in mediation theory and practice in Southern California.
Put these two dynamite resources in your news reader and be as good a settlement negotiator as you are a litigator and trial attorney.
Once again, based upon my personal experience and that of tens of thousands of other women in commercial legal practice I continue to believe that until we are fairly represented on commercial ADR panels, both arbitration and mediation, we cannot expect significant change. This may happen as a matter of the natural "aging" process of the field. The ADR field looks now exactly like the legal field looked to me when I entered it in 1980. Not surprising given the fact that ADR is historically a "retirement" field. That is already changing, to beneficial effect.
For the adventuresome, Peter's pro-active recommendations below. I highly recommend, by the way, that you follow Peter's Business Conflict Blog. It's one of the best out there.
(screen shot of google search for our local legal rag's "top 50 neutrals)
■ What if the country’s leading law firms—from which so many of our leading mediators and arbitrators emerge—had an incentive to encourage more diverse members of the firm to enter this field?
■ What if a benchmark survey were conducted to determine how often law firms suggest mediation to their clients; how often mediation is in fact tried; and how often diverse mediators are proposed to clients by outside lawyers and ADR provider organizations?
■ What if the property casualty insurance industry, as the largest consumer of legal services and of ADR services, conveyed its expectation that the firms that insurers pay for, when they propose mediators and arbitrators, will be expected to propose diverse individuals?
■ What if influential national ADR organizations combined forces to better reflect their corporate and legal constituents, and meet their customers’ expectations, by sharing information on excellent women and minorities who are not now on their lists, but should be?
■ What if initiatives were undertaken to encourage particularly promising women, younger people and minorities from firms to attend ADR colloquia, seminars and other events in order to network, learn and advance their visibility and recognition among the ADR community, as well as to contribute diverse views and perspectives?
■ What if a mentor program were designed and funded, pursuant to which younger female and minority attorneys could “shadow” established mediators and arbitrators (whether or not they are women or minorities) and establish skills and reputations thereby?
■ What if corporations and law firms intentionally engaged younger mediators who are women and minorities in smaller matters, so that those professionals would gain experience as neutrals and be better positioned for the larger cases?
■ What if scholarships were established to enable young people to be trained as mediators and arbitrators, with the expectation that a person thus trained would be skilled not only as a neutral, but more generally as a negotiator and client representative in settlement?
■ What if a very “early pipeline” were begun, and ADR institutions worked with Street Law Inc. (www.streetlaw.com), a national program that trains high school students in legal issues, or a similar organization to provide materials and information for children to become interested in ADR as a profession?
It is perplexing that this one aspect of the legal profession—a field that is otherwise so robust, so progressive and so creative—lags behind so miserably in satisfying client expectations for diverse practitioners. But there is no indication that it must be so. And with diligence, creativity and practical action, it will not long be so.
Things have changed at my alma mater, U.C. San Diego since I graduated with a degree in Literature and the required minor in literature in a foreign language (German).
(This spectacular library never fails to deliver nostalgic and artistic chills)
We were a small campus with three "colleges" - Revell for those headed to medical school and able to "do math"; Muir for the artistic non-math/science slackers (no requirements; my kind of college and, in point of fact, my college); and "Third" representing both its numeric position in the University's development and its subject matter - third world and urban studies.
U.C. San Diego was a small liberal arts college, meant (as so many colleges yearn) to be, the "Harvard of the West." You can't "do" Harvard, however, when the beach nearest your school is the only nude beach in town and the Pacific is your eyes' horizon as you study D.H. Lawrence or Bertolt Brecht in small seminar classes in Tioga Hall. UCSD wasn't just "small" in the mid-70's, it also ran counter to the culture. Herbert Marcuse, a Marxist philosopher, attracted many others of his political bent, including one of my favorite lit profs from whom I took courses in Kafka; German Literature (in, choke, German); and, creative writing. He was not only sexily European, he was an heroic figure, having "jumped" the Berlin wall to reach "the West." Even so, he was no Ayn Rand. He remained an unreconstructed Marxist, as did most of the Literature faculty. As taught, Marxism didn't mean "Communism." It was a means of analysis - primarily economic and political - of literature as it affected the reader rather than, say, analyses that found "hidden messages" in literary "symbols" or sought to psychoanalyze the literary characters themselves.
We didn't have fraternities and sororities at UCSD in the early seventies, nor anything other than intramural sports. My friends at Revell were learning COBAL and FORTRAN. My lit friends and I took as many classes as we could from the brilliant and eccentric left-wing Lit God Frederic Jameson (Freud, Marx and Science Fiction - I still have my final paper) and we were all taking classes at "Third." We were left-wing nerds.
The last time I visited UCSD was a good thirty years after I'd graduated. The literature department is now a small chocolate brown building at the edge of campus physically dwarfed by the vaulting architecture of the new bio-med buildings, at least one of which was then under construction.
You get the picture (yes we see). Literature and philosophy are no longer the leaders of the pack.
There is my late 60's prejudice, which has managed to survive more than thirty years of experience and education. And that's a particularly personal prejudice, not one reinforced over hundreds of years of American history.
I'd say something astute and original about prejudice but I cannot say it as well as my friend and mentor Ken Cloke has in Conflict Revolution. In his chapter on Diversity and Self-Determination, Cloke explains how prejudice works as concisely as I have ever seen it described:
pick a characteristic
blow it out of proportion
collapse the person back into the characteristic
ignore individual differences and variations
disregard subtleties and complexities
match it to your own worst fears
make it cruel
Conflict Revolution at 115.
How to combat my prejudice against "frat boys"?
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
Id. at 116.
That's how we combat prejudice at the personal level. How about at the institutional level, i.e., the level that would justify UCSD students "occupying" the Dean's office rather than the offending fraternity house?
For that, I offer the first in a series of videos taken at the last ABA Dispute Resolution Conference of a talk on the "race blind" admissions process at the University of California given by Prof. Cheryl Harris, author of Whiteness as Property. Professor Harris is a nationally-recognized expert in race theory and anti-discrimination law who teaches Critical Race Theory, Civil Rights, Employment Discrimination, Race-Conscious Remedies and Constitutional Law at the UCLA School of Law (my step-son's alma mater).
We are all biased by attitudes and opinions formed in our childhoods, our youth, and our early adult-hoods. Those biases - said to be implicit - limit our ability to become the inclusive society we wish to be; create resentment among large segments of the society; express themselves in diminished opportunities for discriminated classes; and, eventually erupt into violence and lawlessness.
We can do better. I can do better. And certainly, the students at U.C. San Diego can do better.
It's "the rest of us" that the ABC's of Conflict Resolution is about, i.e., those of us who are capable of behaving like an asshole without being one, as well as we who can unwittingly create, exacerbate or fail to counteract asshole-ishness in others.
Our Part in It
When someone cuts in front of us in line; drives 50 miles an hour through a school zone; behaves boorishly at a party; or, shouts at workplace underlings, is there anyone to "blame" other than the asshole? Without giving away the revised version of the first chapter, let me first say that we are all blinded to the part we play in disputes by cognitive biases. Those biases include:
fundamental attribution error (over-attributing intention and under-attributing circumstance to another's harm-causing behavior while over-attributing circumstance and under-attributing intention to our own harm-causing behavior /1;
confirmation bias (selecting from a vast amount of data only that which confirms our pre-existing opinions)
These biases play a major role in our perception whether "the other guy" is an "asshole" because the central element of assholishness is intentionality. /2 If I told you that the man who cut in line did so in an emergency room because his daughter was bleeding to death on the sidewalk; that the motorist going 50 miles an hour was being chased by gun-toting mafiosi; that the apparent "boor" was suffering from the sudden onset of a debilitating physical condition; or, that the workplace bully was urging his co-workers to leave a burning building, you wouldn't call any of these characters assholes.
Mistakes about the intentions and motivations of our fellows, as well as the constraints under which they are working, are so common in the litigated disputes I mediate that I've been forced to acknowledge just how much of other people's behavior is colored by my untested assumptions. It naturally follows that my part in disputes has loomed much larger in its resolution than it ever did before. When a fight is poised to break out between me and my husband, for instance, I will much more readily ask myself whether I made enough inquiries to determine the source of his distressing behavior; whether I've been afraid to start a conversation with him about the matter at hand because might prove "difficult" or who reveal a weakness in my own character or error in my own judgment; whether I'm taking something personally that's not directed at me; whether I'm nursing a grudge long after he's forgotten the event that cause if; and, whether there's a cry for help beneath his accusation.
I have friends in 12-step programs who tell me that "the program's" recommended practice is to keep their own side of the street clean and leave the other guy's faults to himself. They quote me chapter and verse from their "Big Book":
Putting out of our minds the wrongs others had done, we resolutely looked for our own mistakes. Where had we been selfish, dis honest, self-seeking and frightened? Though a situation had not been entirely our fault, we tried to disregard the other person involved entirely. Where were we to blame? The inventory was ours, not the other man’s. When we saw our faults we listed them. We placed them before us in black and white. We admitted our wrongs honestly and were willing to set these matters straight.
What then do we contribute to the creation of an asshole? First, we judge the behavior of others tending to believe - without sufficient evidence -- that their injury-causing behavior was meant to harm us. Opposing counsel filed his ex parte application at 5:00 on the evening before Thanksgiving for the purpose of making our lives miserable. Second, we see patterns where none exist. The practice group leader's decision to take associate X to a client meeting following associate X's assignment to a high profile case, means that associate X is being groomed for partner while you are being marginalized. Finally, we believe our own B.S., which prevents us from accurately assessing the true situation so that we can deal with it effectively.
And that's what I mean when I say an "asshole" is not a person but a behavior and not one person but two.
You might recall an earlier post in which I reported the (both expected and astonishing) results of an open source project in which researchers "opened up a set of 166 scientific problems from the research laboratories of twenty-six firms to over 80,000 independent scientists," resulting in the resolution of one-third of the problems that the research labs had been unable to solve without assistance. See Collaboration Creates Better Science, with a link to the Harvard Working Knowledge article reporting the research.
This morning, thanks to google alerts (all praise google) I found this article about a public dispute over the demolition of a Dallas church that may or may not be entitled to historical monument protection - Judge Orders Mediation in Church Demolition Case.
A Dallas judge on Friday ordered the Dallas school district and the Old Oak Cliff Conservation League to mediation in their dispute over the proposed demolition of the former Oak Cliff Christian Church building.
The DISD wants to raze the vacant building at 300 E. 10th St. to make way for a new Adamson High School. The league wants to save the 96-year-old structure and is asking a court to block the demolition at least until a review of potential alternatives.
To support his case for saving the church, league attorney John McCall Jr. on Friday projected two pictures of the church for courtroom viewing.
Before ordering mediation, state District Judge Martin Hoffman asked whether a compromise could be reached on the "beautiful old building. ... Is there a way to include this in DISD's plans?"
After conferring briefly with school district representative Lee Simpson, attorney Robert E. Luna told the judge: "The information I have is the building has to be torn down."
And when the judge asked about mediation, Luna again heard from Simpson before replying: "There's nothing here to mediate."
What intrigues me here is not so much the Court's order to mediate or one party's belief that mediation would be a waste of time. What draws my attention are the comments to the story, many of which appear to be well-informed and to contain useful information and reasonable differences of opinion on the either/or choice as well as pointers in the direction of an interest-based resolution.
Some issues, as mediators often hear, are simply not open to compromise. Courts, the media and the public, however, continue to associate negotiated and mediated resolutions as necessarily requiring compromise. Though every person interested in negotiation in the English speaking world has heard the story of the two girls and the single orange so many times that it has become tiresome, I remind my readers once again that when you ask a sufficient number of diagnostic questions underlying supposedly unyielding principles, you find the true needs, interests, desires, and fears that give rise to "principles that cannot be compromised." Once you do that - ascertain the source of people's principles - you can often satisfy all parties without requiring any of them to compromise.
If you're among the handful of people unacquainted with the Getting to Yes orange-splitting story, it goes like this: two girls each want the single orange in the fruit bowl and petition mom for their "right" to have it. Though mom might make a "fair" decision - splitting the orange in half; awarding the orange to the girl who didn't get her way the last time, etc. - she asks a "diagnostic question" to determine whether both girls' interests could be satisfied at the same time.
Sure enough, one girl wants the orange skin for "zest" to make her cake and the other wants to eat the fruit inside. No need for either to compromise.
In the Dallas public debate, the Court - an open public forum - serves its most cherished role of adjudicating disputes in the presence of anyone who wishes to attend (and can fit inside). Cameras have enlarged the potential audience for court proceedings and, of course, the working press reports on its day-to-day operations. Mediation, on the other hand, is conducted in secrecy, a process that is at odds with public decision making in a democracy.
Here we see the extra value added to public decision-making by Internet 2.0 (the public conversation). Anyone with an interest can leave their thoughts on the newspaper's blog, creating the potential for the same type of super-charged "open source" solutions that solved the scientific problems this post opened with.
You own thoughts? particularly about mediated resolutions to public problems.
Thanks to Ed. at Blawg Review for passing along this (somewhat rambling but well worth watching) lecture at Stanford University by Deborah Kolb, the Deloitte Ellen Gabriel Professor for Women and Leadership at the Simmons College School of Management. Hat tip to Guy Kawasaki's Holy Kaw! where Ed. picked it up.
Kolb appears to be saying that the research on "women don't ask" is somewhat skewed because it generally concerns distributive (single issue) negotiations; doesn't control for anything other than gender; and, gives experimental subjects "asks" that are not representative of real world negotiations.
The lecture also covers "gendered" work; organizational obstacles to women's commercial success; women's exclusion from rainmaking networks; the motherhood penalty; and, work's relationship to personal life.
Kolb discusses the issues that must be addressed by the researchers before they can provide genuinely useful negotiation guidance to help women begin to close the wage gap in business and the professions.
Kolb touches on negotiating work-place flexibility - whether it is harmful to those who seek it and how Deloitte's Women's Initiative has shown that customized careers can benefit both genders and the organizations in which they work.
Take stock of your value.
People negotiate because they need something from you. Being clear about the value you bring empowers you in a negotiation.
Make your value visible.
When value disappears, so do influence and bargaining power. The other person must be clear about the benefits to them from negotiating and the consequences of failing to do so.
An effective advocate must be ready to move in the shadow negotiation not simply to promote her interests, but also to block any attempt to undermine her credibility. Once possible objections have been identified, they can be countered.
Appreciate the other's situation.
Consider five good reasons the other party might use to justify his or her stand and create opportunities to talk about them.
Make it easy for the other person to say yes.
Listen carefully for his or her ideas. Connect those ideas to yours and build on them to create agreements that meet both your needs.
Pay attention to the other party’s image.
Image is a concern for everyone. How negotiators look to themselves and to others who matter to them often counts as much as the particulars of an agreement.
Thanks Roger! This didn't just make my day; it made my year!
Plaintiff’s Motion to Compel Acceptance of Lunch Invitation
The Court has rarely seen a motion with more merit. The motion will be granted.
The Court has searched in vain in the Arizona Rules of Civil Procedure and cases, as well as the leading treatises on federal and Arizona procedure, to find specific support for Plaintiff’s motion. Finding none, the Court concludes that motions of this type are so clearly within the inherent powers of the Court and have been so routinely granted that they are non-controversial and require no precedential support.
The writers support the concept. Conversation has been called “the socializing instrument par excellence” (Jose Ortega y Gasset, Invertebrate Spain) and “one of the greatest pleasures in life” (Somerset Maugham, The Moon and Sixpence). John Dryden referred to“Sweet discourse, the banquet of the mind” (The Flower and the Leaf).
Plaintiff’s counsel extended a lunch invitation to Defendant’s counsel “to have a discussion regarding discovery and other matters.” Plaintiff’s counsel offered to “pay for lunch.” Defendant’s counsel failed to respond until the motion was filed.
Defendant’s counsel distrusts Plaintiff’s counsel’s motives and fears that Plaintiff’s counsel’s purpose is to persuade Defendant’s counsel of the lack of merit in the defense case.
The Court has no doubt of Defendant’s counsel’s ability to withstand Plaintiff’s counsel’s blandishments and to respond sally for sally and barb for barb. Defendant’s counsel now makes what may be an illusory acceptance of Plaintiff’s counsel’s invitation by saying, “We would love to have lunch at Ruth’s Chris with/on . . .” Plaintiff’s counsel. 1
1 Everyone knows that Ruth’s Chris, while open for dinner, is not open for lunch. This is a matter of which the Court may take judicial notice.
Read on by clicking on the .pdf above.
And how could I resist adding the "will you go to lunch!" scene from David Mamet's Glengarry Glen Ross.
If you're following this blog but not Diane Levin's Blog The Mediation Channel, I have good news for you. Diane is an extremely focused, disciplined and lively writer. She's also one of the brightest and most canny negotiators, mediators and negotiation trainers I know.
With the goal of promoting clearheaded and reasoned debate and improving discourse, each month I skewer a different fallacy.
Before giving you entree to this excellent series, let me first note that these arguments do not justify any movement in your negotiation position. Remember - you need a new number and a new reason to counter that new number. If your mediator or negotiating partner expects you to give up something, he'd better have a darn good reason for you to do so. If you're a lawyer representing a party, you can feel your client figuratively or literally tugging on your sleeve when you offer more or agree to accept less in the absence of a justification that makes business sense.
The Misleading Ellipsis (to which I add this caution ~~> the quickest path from respected advocate to deceitful scoundrel is the misleading ellipsis - Judge, Arbitrator, Mediator and Opponent will all distrust your bona fides from that date forward; if you can't think of a better argument, fall on your sword on this issue and create a better one just over the next hill).
Diane adds one new fallacious argument every month. I'll endeavor to keep up with her. But more reliably, get her RSS feed, add it to your google reader and never again be without the wisdom of this brilliant mediator and negotiation trainer and consultant. That's her smiling face at top. Visit her often! at The Mediation Channel.
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?
We bargain with toddlers, haggle with street vendors, negotiate legislation, make deals with car salesmen, craft golden parachutes for failed "Tonight Show" hosts, use friendship as a bargaining chip, cut deals with the bartender, negotiate the complexities of culture through story-telling, seek to raise our salaries during a recession, and, wheel and deal on rookie wage scales, all in a matter of hours as chronicled by twitter. Below.
Search term: "negotiation"
@mikemyatt: Why negotiation is a flawed business practice: http://bit.ly/F6SeA #Leadership -> specifically, lawyers kill trust
@meatbeat i dont want an american car but my former salesman fren says they have up to a 25% bigger negotiation window over imports.
@The_News_Herald Police union concessions might not be enough, city says: PANAMA CITY — A nearly yearlong negotiation process crept... http://bit.ly/5NAryW
@JacksMomMarie 3 hours later the preschooler relentless negotiation of EVERY part of the day not as cute but still cool. Feel free 2 whisper a prayer tho
Search term: "Negotiate"
@gilscorner You don't get what you deserve, you get what you negotiate. - Stephen Pollard, British journalist
Check out reporter Kevin Fogarty's article How to Turn a Job Offer into a Raise over at The Ladders, an Executive Search company for the six-figure set. Kevin recently interviewed me about negotiation strategies with a current employer when an eager new suitor comes a'calling. I have to admit that I didn't suggest hooking up with Mr. Greener Grass before ascertaining whether you could negotiate your dream job just where you are. An excerpt from the article below; full text at the link above.
Before you ask a current employer or future employer to entertain a competitive offer, you should sit down and figure out what exactly you're hoping to gain or change through negotiations.
What’s at the top of the list? “The answer to that, by the way, is never, ever, ever, ‘more money,’ ” Pynchon said. “More often it’s a change in the associates you work with, the kinds of projects you work on or your career path. When you make a list of things to negotiate, don’t go in thinking about the money; list the other things first.”
Not only will your goal in the negotiation be one that’s more likely to make you happier and more effective in your job, a list of other potential changes gives your boss things to take off the table without stopping the conversation completely.
“Every piece of research has shown that the more you give up in a negotiation, the happier your negotiating partner is,” Pynchon said. “So having some things you can give up without too much pain will do a lot to help maintain that relationship.”
Be prepared for a conversation that may not go your way, however, and don’t invest so much of your ego in the numbers that you end up declining the offer out of spite.
Finally, don’t forget that if you’re doing well in your current position, your security might be more valuable than an incremental increase in compensation. “It’s almost always the case that you can (perform) better in a current job than a new one, anyway, so most of the time it’s smarter not to take the other offer,” Pynchon said. “But it’s hard for overachievers to say ‘no’ to another $100,000.”
The not so secret opinion among mediators is that attorneys make settlement more difficult. Just as lawyers are heard to say that "litigation would be great if it just weren't for the clients" (a "problem" only class action plaintiffs' lawyers have actually resolved), mediators tend to say "mediation would great if it weren't for the lawyers."
Esteeming the rule of law in America as I do (especially in the recent era of its greatest peril) I have never seen lawyers as a problem in facilitating settlement of the lawsuits they have been eating, drinking, sleeping and, dating for years longer than I've spent reading their briefs and engaging in some pre-mediation telephone discussions.
I can't say lawyers are a problem because: (1) they're my job; and, (2) they're "my people" in the "tribal" sense. A few bad apples aside, lawyers are among the hardest working, most ethical, creative, multi-talented professionals I know. And they are pretty much solely responsible for fighting the battle, on every common weekday, to preserve the rule of law as a bulwark against tyranny on the right and anarchy on the left.
Let's start with this particularly widespread canard from the article:
Attorneys may delay the settlement of a dispute through mediation for financial reasons. For example, the payment of professional fees on the basis of hours worked could motivate the attorney to delay the settlement of the dispute to increase the number of hours billed to the client (citations omitted). Such non financial reasons as a desire to build or preserve a reputation for “hardball negotiating” in highly publicized cases could also motivate an attorney to delay settlement of the dispute [which the authors don't mention often results in a far better outcome for the client]. In addition, attorneys’ (or their clients’) commitment to or belief in their case based on questions of justice or other principles [which are worth, in my opinion, greater attention that purely monetary outcomes] could also delay settlement until “defending the principle becomes too costly” (citation omitted). Finally, attorneys may wish to justify both their role and their fees with unnecessary interactions./1
Are we mendacious, self-serving, parasites of the "justice system," feathering our own comfortable nests as we attempt to preserve the "outdated" notion that the justice system is capable of delivering justice? I don't believe so, but let's not get all anecdotal about these questions when we have cold, hard statistics within reach. What were the results of this study on the way in which attorneys might "get in the way of" a successful mediation?
Here's the bottom line assessment (please read the article yourself to draw your own conclusions).
The empirical data we collected in this study indicate that the presence of an attorney in a mediation does not significantly affect the settlement rate, the time needed to reach an agreement, the perceived fairness of the process, the parties’ level of satisfaction with the agreement, or the parties’ level of trust that the agreement will be honored. These results indicate that attorneys have much less impact than is claimed by those mediators who do not welcome their involvement in the mediation process.
Nevertheless, the results also demonstrate that the presence of an attorney does affect mediation outcomes in at least two ways: by reducing the parties’ level of satisfaction with the mediator’s performance and by reducing the level of reconciliation between parties.
So the Myth Busters of this study conclude that attorneys:
don't "significantly affect the settlement rate" /2
don't significantly affect "the perceived fairness of the process";
don't significantly affect "the parties' level of satisfaction with the agreement; and,
don't significantly affect the "parties' level of trust that the agreement will be honored."
This is the subjective viewpoint of the litigants, mind you, in a dynamic where the mediator often openly attributes the success of the mediation to the clients' attorney - an observation which is more deeply true than most mediators would care to admit with all their white horse hi-ho silver, magic bullet off-to the-rescue enthusiasm.
What did litigants report to the authors of this article? They indicated that attorneys adversely affected mediation outcomes in two ways: (1) they reduced the parties' "level of satisfaction with the mediator's performance"; and, (2) they "reduced the level of reconciliation between the parties."
Of all of the purported effects of attorneys' presence at mediation - without whom, it must be noted, the parties would not likely be induced to sit down and mediate at all -- the only significant perceived difference is the failure of the mediation process to reconcile the parties - something in which the legal system has little to no interest.
Please read the article for proposed solutions to the reconciliation issue. As to the remainder of the study's findings, I have this to say:
whenever two or more people are gathered together, the dynamics of the group more profoundly affect the outcome than do the contributions of any individual member of the group. Our "reality," especially as it appears in a group setting, is "co-created." See the New York Times must-read article on the Psychology of Terrorism and Retail Marketing at Google Books (the latter noting that because people live in a social world which is co-created in social interaction with others . . . . [they] can be thought of as both products and producers of the social world." Id. at 218.)
try as you may, you will never be able to untangle the threads that create the intricate tapestry of a settlement; every member contributes something invaluable without which the precise result could not possibly have been achieved.
who is therefore responsible for the good and who responsible for the purportedly bad results of mediation? That's easy: EVERYONE IS.
That being the case, we are all responsible for our outcomes - whether our contribution is "negative," i.e., resisting settlement, for instance, or "positive," i.e., problem solving the reasons given by Mr. Negative that the case simply can't settle on terms acceptable to all. Remember your University philosophy class? Thesis, Antithesis, Synthesis. We need people willing to state the negative to problem solve it positively. The relationships cause the outcome, not one member of a group unless that member is a tyrant with loyal troops at his command.
If you'll allow me a literary reference that justifies my own collegiate career and says far more eloquently than I ever could why we're all accountable, I first give you one of my favorite authors, Paul Auster (who you may remember as the screenwriter of the movie Smoke).
The world can never be assumed to exist. It comes into being only in the act of moving towards it. Ese est percipii. Nothing can be taken for granted: we do not find ourselves in the midst of an already established world, we do not, as if by preordained birthright, automatically take possession of our surroundings. Each moment,each thing, must be earned, wrested away from the confusion of inert matter, by a steadiness of gaze, a purity of perception so intense that the effort, in itself, takes on the value of a religious act. The slate has been wiped clean. It is up to [us] to write [our] own book.Paul Auster,The Decisive MomentfromThe Art of Hunger.
The second excerpt I will leave for your thoughtful consideration is by the greatest scholar of comparative religions to ever inhabit the planet - Joseph Campbell (skip the intro with the new age music).
Schopenhauer, in his splendid essay called "On an Apparent Intention in the Fate of the Individual," points out that when you reach an advanced age and look back over your lifetime, it can seem to have had a consistent order and plan, as though composed by some novelist. Events that when they occurred had seemed accidental and of little moment turn out to have been indispensable factors in the composition of a consistent plot. So who composed that plot? Schopenhauer suggests that just as your dreams are composed by an aspect of yourself of which your consciousness is unaware, so, too, your whole life is composed by the will within you. And just as people whom you will have met apparently by mere chance became leading agents in the structuring of your life, so, too, will you have served unknowingly as an agent, giving meaning to the lives of others, The whole thing gears together like one big symphony, with everything unconsciously structuring everything else. And Schopenhauer concludes that it is as though our lives were the features of the one great dream of a single dreamer in which all the dream characters dream, too; so that everything links to everything else, moved by the one will to life which is the universal will in nature.
It’s a magnificent idea – an idea that appears in India in the mythic image of the Net of Indra, which is a net of gems, where at every crossing of one thread over another there is a gem reflecting all the other reflective gems. Everything arises in mutual relation to everything else, so you can’t blame anybody for anything. It is even as though there were a single intention behind it all, which always makes some kind of sense, though none of us knows what the sense might be, or has lived the life that he quite intended.
Lawyers, mediators, clients, experts, consultants, legal assistants, and, yes, even your spouse with whom you consulted before today's mediation, every one of them is part of the "net of gems, where at every crossing of one thread over another there is a gem reflecting all the other reflective gems [so that] [e]verything arises in mutual relation to everything else, so you can't blame anybody for anything" and, by the way, we can't credit credit nor bear all the responsibility for anything. We are all capable. We are all accountable. And we all contribute something to the whole.
So we can stop pretending to be better than we are now. We can all put down the burden and shame of our own entirely human fallibility; the myth that we ever do anything without the contribution of others; and, the pretense that we don't behave as badly, or as well, as other people do. We're part of the team. We're in it together. Isn't that good news for the New Year?
And to give you a treat from having gotten this far, a scene that is all about seeing, from Paul Auster's Smoke.
1/ I'd be interested, of course, in what the authors consider to be "unnecessary interactions."
2/ This is a particularly interesting finding since mediators have also been found not to improve the settlement rate but only greater party satisfaction in several studies.
Don Philbin, the author of this must-read article (click on the image for the .pdf) on the reasons you walk away from negotiations fearing you've either left money on the table or paid too much for what you receive in exchange, is an attorney-mediator, negotiation consultant and trainer, and arbitrator.
Don is listed in The Best Lawyers in America (Dispute Resolution), The Best Lawyers in San Antonio, and the Bar Register of Preeminent Lawyers.
Don's ADR Toolbox where this article can also be found is an indispensable resource for all attorneys negotiating the settlement of a lawsuit or a business deal (wait a minute! the negotiation of a settlement is a business deal!)
And, it's not inconsequential that Don is one of the nicest guys I know. If you're going to spend a day or a week or a month with a mediator or an arbitrator, you deserve not only the brightest, most wise and best prepared arbitrator or mediator, you also deserve to have a little fun in the process because . . . you know . . . the money simply isn't worth the unhappiness that comes when dealing with . . . . the other sort too often.
Click on the image for the link to the Public Conversations Project and join me in my New Year's resolutions to focus on our similarities and common interests rather than on our differences and conflicting goals; find common ground; share the experiences from which our opinions dervice (our stories); set aside argument in favor of dialogue; remember that each one of us is struggling with some great burden despite outward appearances; and, that squeezing the last nickel or concession out of our bargaining partner fails to recognize that we are all in this together.
For the many spiritual holidays being celebrated at year's end, I offer my own favorite prayer from my own religious upbringing, the Prayer of St. Francis of Assisi:
Lord, make me an instrument of your peace,
Where there is hatred, let me sow love;
where there is injury, pardon;
where there is doubt, faith;
where there is despair, hope;
where there is darkness, light;
where there is sadness, joy;
O Divine Master, grant that I may not so much seek to be consoled as to console;
to be understood as to understand;
to be loved as to love.
For it is in giving that we receive;
it is in pardoning that we are pardoned;
and it is in dying that we are born to eternal life.
Happy Hannukah, Kwanza, Festivus, Solstice, Merry Christmas and Happy New Year!
Some settlement negotiators chronically defer to the ghost negotiator "back in the home office." If your mediator has been unable to make sure the party with full settlement authority is present or if your mediator surprises you by actually bringing the parties near settlement when you thought you were there just to get your mediation dance card punched, you might want to follow this advice.
Explore the extent of your counterpart’s authority early in the negotiation. Then, to the extent you can, match it. Generally, it’s disadvantageous to have more authority than your counterpart because you can concede – and often do - while your counterpart can’t.
Thanks to Marty Latz, founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts' proven research.
Why does mediation work? For several reasons that I can think of [including] the flexibility to make a business decision. Commercial contractors and subcontractors are in a business, and they should be making business decisions. While one such decision can be to go to litigation; litigation is not always the best solution from a financial, or stress perspective. Construction professionals, with the assistance of construction attorneys, can come up with a creative way to deal with a problem and solve it.
we want rights because we are genetically programmed and culturally conditioned to be fair (remember the Capuchin monkeys who, trained to work for "money" staged a sit-down strike when others doing the same work were compensated at five times the rate as their under compensated fellows);
rights are meant to guarantee us equal treatment in the distribution of public benefits and resources; and, equal access to public and private accommodations;
remedies are meant to restore private and public resources to those who have been deprived of them because some one; group; organization or governmental entity has broken one or more rules by which we have chosen to govern ourselves; and,
moneyis a means to an end, not an end in itself and each of us desires money for the same reasons - control of our own destiny (power; self expression); access to the benefits of the social contract (1. Freedom of speech and expression 2. Freedom of religion 3. Freedom from want 4. Freedom from fear); security against an uncertain future (access to medical services and a mimimal standard of living if we become unable to care for ourselves); meaningful occupation; the opportunity to be of unique service to our fellows; love; and, joy (monetary sub-goals such as a pair of Jimmy Choo shoes are also simply a [misguided] means to achieve these ends).
I have been taken to task for being "touchy-feely" or "new age" or of insufficient value to my "market" because I say these things repeatedly in public. My "market," I'm told, would rather be right than happy; would rather someone lose so that they can win; and, believe the only thing anyone wants is money.
I don't believe it and I am committed to holding this space as a place-marker for my "people" who are suffering. Which people are those? Litigators.
The challenge of this and every year: How do we even begin to introduce the concept that we can more easily, efficiently and effectively satisfy the true interests of our fellows-in-the-social-condition than we can satisfy one individual's demand for preeminence over another?
On our least divisive, most-inclusive and thoroughly secular holiday of Thanksgiving, we can begin to alleviate the suffering caused by zero-sum games with gratitude -- the benefits of which are being studied by a team of researchers at my legal alma mater, U.C. Davis.
Gratitude is the “forgotten factor” in happiness research. We are engaged in a long-term research project designed to create and disseminate a large body of novel scientific data on the nature of gratitude, its causes, and its potential consequences for human health and well-being. Scientists are latecomers to the concept of gratitude. Religions and philosophies have long embraced gratitude as an indispensable manifestation of virtue, and an integral component of health, wholeness, and well-being. Through conducting highly focused, cutting-edge studies on the nature of gratitude, its causes, and its consequences, we hope to shed important scientific light on this important concept. This document is intended to provide a brief, introductory overview of the major findings to date of the research project. For further information, please contact Robert Emmons. This project is supported by a grant from the John Templeton Foundation.
We are engaged in two main lines of inquiry at the present time: (1) developing methods to cultivate gratitude in daily life and assess gratitude’s effect on well-being, and (2) developing a measure to reliably assess individual differences in dispositional gratefulness.
Gratitude Interventions and Psychological and Physical Well-Being
* In an experimental comparison, those who kept gratitude journals on a weekly basis exercised more regularly, reported fewer physical symptoms, felt better about their lives as a whole, and were more optimistic about the upcoming week compared to those who recorded hassles or neutral life events (Emmons & McCullough, 2003).
* A related benefit was observed in the realm of personal goal attainment: Participants who kept gratitude lists were more likely to have made progress toward important personal goals (academic, interpersonal and health-based) over a two-month period compared to subjects in the other experimental conditions.
* A daily gratitude intervention (self-guided exercises) with young adults resulted in higher reported levels of the positive states of alertness, enthusiasm, determination, attentiveness and energy compared to a focus on hassles or a downward social comparison (ways in which participants thought they were better off than others). There was no difference in levels of unpleasant emotions reported in the three groups.
* Participants in the daily gratitude condition were more likely to report having helped someone with a personal problem or having offered emotional support to another, relative to the hassles or social comparison condition.
* In a sample of adults with neuromuscular disease, a 21-day gratitude intervention resulted in greater amounts of high energy positive moods, a greater sense of feeling connected to others, more optimistic ratings of one’s life, and better sleep duration and sleep quality, relative to a control group.
* Children who practice grateful thinking have more positive attitudes toward school and their families (Froh, Sefick, & Emmons, 2008).
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
Knowing how much to ask the Jury for is a delicate, tough and lonely decision for any plaintiff's trial lawyer, no matter how skilled, and experienced he is. If he asks for too little, the jury award will not be adequate. Too much and the jury will be insulted. The venue should and must be considered too. In a place like Flagler county, jurors may feel a lawyer is asking for too much, whereas under the same facts in south Florida, another jury may easily feel at home with a large damage award.
Remembering that the advantage in negotiation is always to the party who makes the first reasonably aggressive first offer the decision about how much to ask the jury for should be similar to how large the initial demand in a mediation proceeding should be. Too much and the mediator not only spends the next hour or so defusing hot tempers on the other side, you lose most if not all of the advantage of anchoring. For a discussion of anchoring, click here, here and here.
I hereby agree to submit to binding arbitration all disputes and claims arising out of the submission of this application. I further agree, in the event that I am hired by the company, that all disputes that cannot be resolved by informal internal resolution which might arise out of my employment with the company, whether during or after that employment, will be submitted to binding arbitration. I agree that such arbitration shall be conducted under the rules of the American Arbitration Association. This application contains the entire agreement between the parties with regard to dispute resolution, and there are no other agreements as to dispute resolution, either oral or written.
This decision is made more interesting by the recent Parada decision (.pdf) (covered here and here) where the drafter's failure to attach the JAMS arbitration rules cited in the agreement was one of the reasons the Court concluded the arbitration clause was substantively unconscionable. I think it's safe to say at this point in the development of California law on these issues that it's not malpractice for an attorney to fail to draft an enforceable arbitration clause. But as the opinions multiply, you can be sure some employer will be looking around for someone to name its legal counsel as the source of his discontent, blame its law firm for having to bear the expense of litigation, and claim damages as a result.
The best protection for drafters of arbitration clauses (particularly in California where the Courts remain suspicious of adhesion arbitration contracts) is to be familiar with all the case law on the topic in the last five years; to avoid any provision the Courts have used to tip the "sliding scale" in favor of non-enforcement and include those provisions which favorably incline the courts to enforce the clauses.
Patrick Deane of Nestlé is senior counsel to the largest food company in the world, and the disputes he runs into involve distributors, retailers, suppliers and consumers in every part of the globe. His ideal mediator combines logic and intuition; a concern for detail; and the knack of an epatheic listener. He noted that commercial disputes — even financial ones — are seldom dry, but instead involve personalities, risk of loss of face, and other human attributes just as much as more personal claims do. The question of subject-matter expertise was of little importance to Deane, compared to these essential qualities in a mediator who must be expert in a process that, at heart, is aimed at cost effectiveness. “A lack of industry expertise has never caused a failure of the mediation process.
Here's my opinion (as if you didn't already know). As Colin Powell says, the most important knowledge to have in international negotiations is the other guy's decision cycle. I imagine the great predictor, the political scientist and Hoover Institute Fellow Bruce Bueno de Mesquitas would say something along the same lines (see TED lecture below). See also the NYT piece, Can Game Theory Predict When Iran Will Get the Bomb?
What is the "other guy's" decision cycle? It is comprised of every interest he must satisfy and every person he is accountable to for the foreseeable (and probable unintended) consequences of that decision. Personal injury attorneys turned mediators are well acquainted with the decision cycles of both Plaintiff and Defense counsel as well as with the interests, needs, and desires of injured Plaintiffs, on the one hand, and insurance adjusters and their supervisors on the other. Employment attorneys turned mediators are also deeply knowledgeable about the decision cycles of counsel on both sides of the table (one usually specializing in employees and the other in employers) as well as with the interests, needs and desires of terminated, demoted, or harassed employees on the one hand and of employers - both large and small - who often feel as if the Plaintiff is little better than a highway robber. Judges turned mediators are better acquainted than anyone else of the decision cycles of juries -- a jury verdict being the alternative to a negotiated resolution.
You knew I'd come to my own "specialty" knowledge. Some of it is industry specific -- insurance and financial institutions, for instance, and the garment, manufacturing, health care, commercial real estate, construction, and technology industries. Though my experience in these fields adds some value to my commercial mediation practice, what I'm most skilled at is knowing the decision cycles of commercial litigators and their business clients. I understand, for instance, the clients' reporting relationships; the metrics against which their performance and that of their corporate superiors are measured; the impact of SEC reporting requirements in "bet the company" litigation; and, the effect settlements in nine or ten figures might have on upcoming plans for mergers or acquisitions.
I can read a financial statement.
At a minimum, I can ask the questions necessary to obtain the knowledge required to ascertain the interests that must be satisfied by both parties to transform the litigation into an opportunity to make a business deal. And I know how to make the commercial clients happy with their attorneys' final resolution of the business problem burdened with the justice issue that brought the case into court in the first instance.
I am also schooled in the "field" of conflict resolution. I understand at depth the cognitive biases -- universal tendencies in the way we think -- that inhibit rational decision making. I know how conflict escalates and, more importantly, how it can be deescalated. I understand the role emotion plays in decision making (particularly the emotion most common among business litigation clients - anger); the gentle (and not so gentle) art of persuasion and, perhaps most importantly, the optimal negotiation strategies and tactics for the business problem at hand.
And, I know in the knuckles of my spine what keeps commercial litigators awake at night, worrying about the next strategic, tactical, legal or extra-legal move to make; how to explain to the client that the case has suddenly gone south; and, how to deliver that bad news to the client in a way he or she can hear it and successfully report it to the GC, the CEO, the Board of Directors or e ven the shareholders.
I know this sounds like a lot of boastful self-promotion (it is). Please don't take my word for it. Anyone charged with finding, retaining and hiring a mediator to assist the parties in resolving a piece of hard-fought, sophisticated, complex commercial litigation would do well to check with his or her peers on any mediator's boastful self-appraisals.
This is what I recall of mediator-hunting, however. I'd send out a list to my colleagues. I'd invariably get back opinions that were all over the board. He/she is great with clients but usually ends up splitting the baby in half. He/she talks too much and listens too little. He/she marginalized the client and made me look bad. He/she charges $15,000 per day and is one of the go-to mediators for this type of case but I was unimpressed, as was the client. This guy/gal can settle anything. Brilliant. Magical.
So what's a beleaguered litigator to do? Ask people you respect both inside and outside your law firm. Ask how the mediator handles the "process dimensions" of the mediation. Does he/she simply carry numbers and rationales back and forth between separate caucus rooms. Can she give bad news to both sides. Can he go beyond positional, zero-sum bargaining and into interest-based negotiated resolutions? Is the client happy with the result and with the process? After you've done this basic research, call the mediator yourself and ask him/her about the way in which she/he might handle the mediation of the particular matter you need to have resolved. You should not only have the best information possible in making your choice, you should get a fair amount of terrific free advice and external brain-storming along the way.
I really just meant to cite the Business Conflict Blog and get back to revising The ABC's of Conflict Resolution - my second draft due on October 30.
So what's my answer to the question whether the mediator should have industry knowledge? That answer lies, as most legal problems do, in the gray zone. Industry knowledge helps. But every commercial litigator knows that we can learn any industry if we have a basic understanding of how commercial enterprises work. That's what I know -- commercial litigation -- and it is the reason I don't mediate personal injury or employment disputes with anyone below the rank of senior executive. I don't know the right questions to ask and I don't know -- at depth -- the parties' or counsel's decision cycles.
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.
A big question in trial for lawyers to consider is whether to apologize for their client’s “alleged” conduct. Many lawyers are reluctant to do so under the theory that it could lead to a greater chance of liability being imposed on them. Recent research sheds light on this issue.
According to researchers at George Mason University and Oklahoma State University apologizing to a jury may lead more favorable results. The results of the study will be available in a the journal Contemporary Accounting Research.
Assistant accounting professors Rick Warne of Mason and Robert Cornell of OSU found that apologizing can result in lower frequencies of negligence verdicts in cases when compared to a control group receiving no apology or remedial message. The researchers hypothesized that apologies allow the accused wrongdoer to express sorrow or regret about a situation without admitting guilt. Alternatively, a first-person justification allows the accused to indicate the appropriateness of decisions given the information available when decisions were made.
“We found that apologies reduce the jurors’ need to assign blame to the [wrongdoer] for any negative outcomes to the client,” says Warne. “It also appears that an apology “influences the jurors impression that the auditor’s actions were reasonable and in accordance with professional standards.”
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.
The following is the conclusion of an excellent post on the recent Pfizer-Justice Department settlement noting that it met "the People's" justice interests better than a judgment could have. The full article, Settlement and Justice for All by Robert C. Bordone & Matthew J. Smith** can be found here at the Harvard Negotiation Law Review.
More than honoring principles a court might champion, the negotiated settlement with Pfizer allows the Justice Department to secure commitments from Pfizer that would have been unlikely in a court verdict. In addition to the enormous cash payment, the settlement agreement allows for closer monitoring of Pfizer by Justice Department officials in the years ahead, ensuring corporate accountability and providing an extra measure of protection for consumers. As part of the deal, Pfizer entered into a Corporate Integrity Agreement with the Office of Inspector General of the Department of Health and Human Services and will be required to maintain a corporate compliance program for the next five years.While a judge might choose to retain judicial oversight in a particular case, federal courts typically lack the expertise or resources to provide the kind of enforcement needed to ensure a systemic and long-term remedy in a technical or highly specialized case such as this.
The Pfizer settlement represents the best kind of transparent, efficient, and wise government law enforcement. It holds Pfizer wholly accountable for its actions, sends a strong and clear message to the public that corporate malfeasance will not be tolerated, provides for ongoing enforcement, and it does it all at a fraction of the cost of trial. While many cases should proceed to trial for reasons of precedent and public policy, negotiated settlement – when approached with wisdom and aplomb – can be a most efficient and effective means of law enforcement.
Thanks to Don Philbin for being one of the best navigators of quality in the ADRosphere! "Friend" him on Facebook here.
**/ Robert C. Bordone is the Thaddeus R. Beal Clinical Professor of Law at Harvard Law School and Director of the Harvard Negotiation and Mediation Clinical Program. Matthew J. Smith is a Lecturer on Law at Harvard Law School and a Clinical Fellow at the Harvard Negotiation and Mediation Clinical Program
One of my own favorite quotes about "changing the other guy's mind" is from commercial mediator Jeff Kichaven: "piling rationales atop one another to convince a litigator he is wrong is like raising your voice to communicate with a deaf man."
To settle a disputed matter, a person has to have a change of mind and here's where the problem starts. As Upton Sinclair said: "It is difficult to get a man to understand something when his livelihood depends on him not understanding it."
This is why mediation exists. But just because no one ever said it was supposed to be easy doesn't mean it can't be annoying. Sometimes that frustration has to find expression.
Below is the most astounding expression of irritation and frustration and rage I have ever read.
"I BESEECH YOU, IN THE BOWELS OF CHRIST, THINK IT POSSIBLE YOU MAY BE MISTAKEN."
Here's the quiz:
1. Who said these words and how close to a cardiac infarction was he or she on a Scale of 1-10?
2. Can you beat it with your own expression of utter frustration and anger? (In 25 words of less, please.)
After preparing your own agenda, outline the same for your opponents: What are their preferences, alternatives, and bottom line? Once at the bargaining table, test your hypotheses to determine what the opposition's priorities really are. Prepare a written goal and analysis sheet for yourself.
Thinking the pie is fixed
Usually it's not. You may make this common mistake when there is a "congruent issue," when both parties want the same thing. . . . . [At least one GSB professor has found that] 20 to 35 percent of the students assume it's a fixed pie and miss an opportunity to get what both parties want.
Failing to pay attention to your opponent
One way to get inside your opponent's head and influence his attitude is to shape the issues for him, a technique called "framing." If you get your opponent to accept your view of the situation, then you can influence the amount of risk he is willing to take.
Assuming that cross-cultural negotiations are just like "local" negotiations
[A cross-culturally] sensitive negotiator . . . capitalize[s] on the differences [among] cultures . . .
Paying too much attention to anchors
Anchors are part of a bargaining dynamic known as "anchoring and adjustment." This involves clearly setting the parameters for negotiation.
Caving in too quick
Accepting a well-priced deal too quickly can cause anger on the other side, too. . . . No matter what the price, even if it's fair, always offer less — if only to make your opponent feel good about the deal. You may come up to full price in the end, but at least your opponent will feel as if he made you work for it.
Finally, when you've cut a sweet deal, never do the dance of joy in public by turning to your opponents and telling them you would have done it for less. Gloating will only drive your opponent to extract the difference from you sometime in the future.
When Ms. Magazine arrived to help head up the Second Wave Women's Movement in December 1971 as a "one-shot" sample insert in New York Magazine -- remember "click"? -- "we" - the "new women" had our first journal.
Today, more than thirty years later, we finally have our own business magazine and there's no shame in the word "woman" being attached to it. Having been an activist engaged in the Second Wave Women's Movement in the early '70s (first as purely an extra-curricular activity and later for the domestic peace corps' "Program for Local Service) I'm particularly proud to be a part of that magazine today: ForbesWoman -- right here!
Because the vast majority of my litigation and mediation clients were and are corporate entities or highly successful entrepreneurs, executives or managers, I was and am rarely in a position to coerce a client into doing something it didn't want to do.
As a mediator, however, I hear stories.
Some of the stories I hear are told by disgruntled individuals who feel as if they were coerced by their own counsel into settling their litigation during a mediation. Others have reported that they felt ganged up on by their attorney and the mediator. Some have complained that they were unduly pressured to stay in the mediation process long after they were too tired or hungry to think clearly.
These stories are troubling to any mediator who values the good reputation of the mediation process itself. They should also disturb attorney mediation advocates.
Is it below the standard of care for an attorney to subtly (or not so subtly) pressure his or her client to settle litigation? Under certain circumstances, I think it is. Here's the bad news. If a litigant is unhappy with the outcome of mediation, he or she is far more likely to bring a complaint (or lawsuit) against his or her own attorney.
In a 2006 article in the Ohio Journal on Dispute ResolutionTAKE IT OR LEAVE IT. LUMP IT OR GRIEVE IT: DESIGNING MEDIATOR COMPLAINT SYSTEMS THAT PROTECT MEDIATORS, UNHAPPY PARTIES, ATTORNEYS, COURTS, THE PROCESS, AND THE FIELDPaula M. Young, Assistant Professor at the Appalachian School of Law cites Mel Rubin on "settle and sue" cases which Rubin suggests are on the rise among clients unhappy with the outcome of a mediation. Rubin "also suggests that if a client is unhappy with the outcome of mediation, he or she is more likely to sue his or her attorney for malpractice. Id.
What might actionable attorney mediation malpractice look like? Young cites the example of one woman who told the following story:
I refused to sign several times. My attorney then began yelling at me to “shut-up and sign the damn thing” I wasn't allowed to leave until it was signed . . . . The words, “NO I can't sign this,” fell on deaf ears. I was so unfamiliar with the process of it all and what it meant and what the outcome entailed.
Young has a systemic solution for problems like these: procedural "justice" during the mediation itself and grievance procedures for dissatisfied litigants. She writes:
To the extent the procedural justice research indicates that parties who perceive they have received procedural justice in mediation also perceive that the negotiated outcome in mediation is fair, we would expect that these parties are not likely to later sue their attorneys for malpractice. Even when the client has little trust in his or her attorney, a mediation process that enhances procedural justice allows the party to assess directly whether he or she feels exploited or mistreated in the process.
Even if the mediation process itself lacks procedural justice and the client accordingly remains dissatisfied and suspicious, a well-designed grievance system, emphasizing procedural justice from the client's perspective, may give the client the reassurances he or she needs. A client who suspects collusion between his or her lawyer and the neutral could seek the informed opinion of the regulatory body, without ever having to file a legal malpractice law suit.
Remember that we tend to stumble and fail when we're Hungry, Angry, Lonely (marginalized) or Tired (HALT) and so do our clients. When I notice litigants flagging or attorneys losing their tempers, I suggest a walk around the block, a nutrition break (not eating more cookies) and, in extreme cases (someone becomes ill during the course of the session) reconvening at a later date. Remember how powerful and all-knowing you appear to be to your clients and what a strange and frightening land the "justice system" is for those who are encountering it for the first time.
There's no better defense to professional negligence actions that the quality of your relationship with your clients. Keep channels of communication open. Demand that your adversary and the mediator treat your client with respect. At the first sign that a mediator is exercising undue influence on your client, say something, just as you would if opposing counsel were harassing your witness at a deposition. Follow these dictates and you'll rarely if ever be worrying about calling your insurance carrier.
As every mediation advocate must know by now, the California Supreme Court has locked down mediation confidences from attack at every turn. There can be no implied waiver of Evidence Code section 1119's protections and you cannot be estopped to assert it (Simmons v. Ghaderi) (.pdf of the opinion here).
Your client may have been coerced into signing off on the agreement; may not have understood what she was signing; or her assent could have been induced by your opponent's material misrepresentations of fact. Your client's insurance carrier may be guilty of actionable bad faith during the course of the mediation. Too bad. The mediation proceeding is given greater protection than given to penitents in a confessional.
But you can inadvertently expressly waive the protections of mediation confidentiality if you've carelessly crafted your own confidentiality agreement.
California's Second District Court of Appeal held in Thottam (.pdf of opinion here) that a party's confidentiality agreement did just that -- waived the protection -- permitting one party to introduce an otherwise inadmissible draft agreement into evidence for the purpose of enforcing an otherwise unenforceable mediated settlement agreement.
As the Court in Thottam held, Section 1123(c)'s requirement that all parties to a mediated settlement agreement "expressly agree in writing . . . to its disclosure," may be satisfied by terms contained in a writing other than the alleged settlement agreement itself, including a writing executed before a settlement agreement has purportedly been entered into. Because the "draft agreement" at issue in Thottam did not contain 1123's "magic" enforcement language and because the term sheet drawn up during the mediation was not sufficiently certain to enforce in any event, one party to the subject probate proceeding objected to its introduction into evidence and to the admission of testimony concerning otherwise confidential statements made during the mediation.
Had there been no confidentiality agreement, the issue would have been controlled by Evidence Code sections 1115 et seq.; the "agreement" would have been excluded from evidence as non-compliant with section 1123; and, no evidence of statements made during the mediation would have been admitted into evidence.
Here's the danger of drafting your own confidentiality agreements in an attempt to expand the scope of mediation confidentiality.
According to the appellate court opinion, because the parties expanded the scope of confidentiality beyond that provided by the statute, the exception to the protection ("except as may be necessary to enforce any agreements from the Meeting") was broader than the enforcement exception contained in section 1123. As one blogger cogently put it at the time, "the big print giveth and the small print taketh away."
I think it's safe to say that this result was pretty much completely unpredictable and that it was within the standard of care for counsel to expand the protections contained in section 1119 (for an example of the problems created by its relatively narrow confines, see mediator Debra Healy'scomments and my response about the scope of mediation confidentiality in an earlier post in this series).
Post-Thottam, however, counsel must be extremely careful in drafting confidentiality agreements lest they inadvertently take away the protections the legislature created and the Supreme Court has so assiduously enforced.
In short, don't get fancy. Just stick with the language of section 1119
If you didn't already understand how to protect your mediated settlement agreement from challenge, you do now.
But wait a minute! Is that what you want?
What if your client entered into the agreement only because its opponent made a material misstatement of fact? What if one of your co-defendants challenges your settlement agreement as not having been made in good faith, thus exposing your client to potential liability for indemnity or contribution? Can you win the "good faith settlement" motion without the testimony of the participants in the mediation?
Parties are entitled to walk out of a mediation with a whole range of outcomes, from a completed settlement agreement, to a term sheet, to an oral understanding, to a promise to think over the other side's last offer, to a promise to see the other side in court! As long as both sides understand what they are getting at the conclusion of the mediation session, there should be no basis for a malpractice claim for any of these outcomes. If the parties choose to use a term sheet with no language in it indicating that they have settled their case, they just need to understand that any party can renege on the deal after the mediation. In some cases, that may be what the parties want, to give them some time to think the whole thing over.
Joe's comments put the emphasis in mediation advocacy back where it belongs -- on the fully informed assent of the parties and on the strategic plans of litigation counsel.
So here's yet another way to commit legal malpractice as a mediation advocate: don't fully understand the implications of mediation confidentiality on the final resolution of your client's dispute. I'll just bullet point ways to protect yourself and your client below and ask others to chime in with their recommendations:
if your client is relying upon the veracity of its opponent's representation in entering into the deal, write that representation into the agreement or deal points, i.e., "Party A and Party B both understand that Party A is entering into this agreement based upon the following representation/s: .................................... " Then you can include any other language that makes sense in the context of the agreement. You can provide that Party B's production of documents confirming its representations to Party A is a condition precedent to Party A's obligations under the settlement agreement. If your client simply needs protection down the line in the event FACT X proves to be untrue, you can include a liquidated damage clause in the agreement or provide for an expedited means of resolving any dispute resulting from the falsity of FACT X ; or, you could provide that the falsity of FACT X will render the settlement agreement null and void;
you could avoid the problems created by the strict enforcement of mediation confidentiality by agreeing with your opponent (in writing!) that the neutral-facilitated settlement negotiation is not a mediation to be governed by Evidence Code section 1115 et seq. but a settlement conference governed by Evidence Code section 1152 et seq. This option would be a useful one to a defendant who is settling the action separately from co-defendants who might bring a motion challenging the good faith of your settlement.
Less drastically, you could simply include in your settlement agreement a provision by which the parties agree that the mediation confidentiality protections as codified in section 1119 will not apply in the event a co-defendant challenges the good faith of the settlement. Remember that the mediator is considered incompetent to testify so that your waiver of mediation confidentiality in the event testimony is needed to oppose a challenge to the good faith of your settlement may not permit the mediator to testify at the hearing (or to offer a declaration in opposition to the motion) as well he or she -- a neutral party -- shouldn't.
You're a litigator. There are probably hundreds of ways to skin this particular cat. The keys are knowing and understanding the law of mediation confidentiality and thinking through all of the implications it might have on your clients' rights or interests down the line. That's what we litigators do and we shouldn't abandon those strategic considerations just because we believe we're settling this case for good and it will never come back to haunt us or our clients again.
Remember, you are in control of the process. If you don't like mediation confidentiality, tailor a confidentiality agreement to suit your circumstances. You will, of course, have to "sell" your proposal to your opponent. The best time to do that might well be at the end of the mediation rather than at its commencement. By that time, your opponent is pretty darn committed to the resolution of the lawsuit. His client is already planning on ways he can more profitably spend his time and money other than on further litigation, attorneys' fees, and court costs. The plaintiff is, I guarantee you, already spending the settlement monies or planning the celebration back at the office and wondering whether this might lead to the promotion he or she has been waiting for.
Yet another way to commit legal malpractice (and how to avoid it) tomorrow!
Today's New York Times Op-Ed piece on "diplomatic engagement" (Terms of Engagement) as a strategy for "chang[ing] [Iran's] perception of its own interests and realistic options and, hence, to modify its policies and its behavior," offers good strategic negotiation lessons for mediators and mediation advocates alike. As Crocker explains:
[E]ach case of engagement has common elements. Engagement is a process, not a destination. It involves exerting pressure, by raising questions and hypothetical possibilities, and by probing the other country’s assumptions and thinking. Above all, it involves testing how far the other country might be willing to go. Properly understood, the diplomacy of engagement means raising questions that the other country may wish to avoid or be politically unable to answer. It places the ball in the other country’s court.
Litigation is an extremely good way to "exert pressure," on your negotiation partner by burdening it with the costs of waging the adversarial contest. The litigation itself not only "rais[es] questions and hypothetical possibilities" but through the process of discovery, it also "probes [the opponent's] assumptions and thinking" and "test[s] how far [your opponent] might be willing to go" to achieve victory.
Parties disappointed with mediation and mediators are usually dissatisfied with the mediator's inability to engage in the final step of "engagement diplomacy" -- "raising questions that the [opponent] may use to avoid or be [positionally] unable to answer." A good mediator is unafraid to raise those difficult questions with each side of a dispute. But raising those difficult questions is not enough. A good mediator must also be able to deliver bad news to the parties in such a way that the parties are able to hear it.
If the goal of the negotiators -- the attorneys -- is to "change the[ir] [opponent's] perception of its own interests and realistic options and, hence, to modify its policies and its behavior," the negotiators and their clients must be prepared to:
reveal to the mediator
hidden constraints preventing them from modifying their demand or offer; and,
hidden interests that must be served in order to justify any such modification
candidly acknowledge (in separate caucus)
the weaknesses of their position; and,
any constraints on their client's willingness and ability to put their convictions to the test of a jury verdict or judgment by the court
help the mediator help their clients understand that most litigation is based upon differing subjective experiences of the same "objective" series of events so that no one must admit that the other side is "right" and their own side is "wrong"
An example of the lengths to which people will go to be "right" is unfortunately provided to us today by the obituary of the first anti-abortion advocate to be shot and killed for his beliefs. The slain activist spent years protesting outside the car dealership owned by Tony Young, who explained how the protests finally ended (from Slain Abortion Opponent Loved the Controversy)
Mr. Young said that after about three years of protesting outside his dealership, Mr. Pouillon came in and offered a truce. “ ‘Tony,’ ” Mr. Young said the exchange began, “if you would just agree that I’m right on my beliefs, I’ll stop.’
“I just told him, ‘Sure, Jim, you’re right,’ ” Mr. Young said, chuckling. After that, he said, Mr. Pouillon moved on.
Although few cases could so easily turn on the dime of a semi-sincere acknowledgement that the other side is "right," most attorneys would be surprised by how much value can be generated by acknowledging that the other side's version of the facts or the law is not crazy, evil, bizarre, intellectually dishonest or asserted in bad faith. See The Biggest Lie in the Business: It's Only About Money. As I noted there:
The social scientists who study these things say that the way in which we respond to adversity "often reflects the fact that [our] prestige or status has been threatened more than the fact that [our] purchasing power has been diminished." Miller, Disrespect and the Experience of Injustice, Annual Review of Psychology (2002). In other words, the corporate C.E.O., like any other kid on the block, will retaliate when he feels he has been disrespected.
Conversely, research shows that business people are reluctant to recommend legal action if they believe that they and their company have been treated respectfully.
By the same token that business people are reluctant to recommend legal action if they believe their company has been treated respectfully, they are often far more willing to settle litigation if they believe their positions have been heard and acknowledged as having been made in good faith. For those headed toward settlement discussions or mediation, Crocker has good advice:
[B]y far the greatest risk of [diplomatic] engagement is that it may succeed. If we succeed in changing the position of the other [side's] decision-makers, we then must decide whether we will take yes for an answer and reciprocate their moves with steps of our own. If talk is fruitful, a negotiation will begin about taking reciprocal steps down a jointly defined road. Engagement diplomacy forces us to make choices.
If litigators and their clients are aligned in the interest of settling litigation, they must prepare themselves to take "yes for an answer" by having in place a strategy of engagement that will permit them to reciprocate the other side's moves with steps of their own. A good mediator should be capable of bringing all parties to the on-ramp of the road that counsel and their commercial clients are well-placed to and highly skilled at jointly defining.
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."
The last time I trained an in-house legal department, I asked every group manager this question: if I could leave a silver bullet behind, what would it be?
The response was unanimous from this well-run Fortune 500 Company: fix our relationship with the __________ Department: it chronically undermines our negotiations with outsiders. The _________ Department was the only one sending none of its people to the two-day negotiation training. An executive friend of mine said, "that's not surprising - no one can see a black hole."
Despite the _________ Department's absence, I created groups of in-house attendees who represented each internal department and asked them to generate a list of the interests of their negotiating teams, including the _________ department, which is one of the recommendations made by Brett, Friedman and Behfar.
There's an executive summary at the link above but I'd shell out the money for a copy of the print magazine to have the full text of this article. Here are the recommendations of the experts:
Plot out the conflicts
Work with constituents
Mediate conflicts of interest
Persuade with data
simulate the negotiation
assign roles to capitalize on team members strengths and interests
establish a plan for intrateam communication
I'll write a post a day about each of these strategies when I return from vacation. In the meantime, litigators who work with teams inside the firm; who defend complex litigation with joint defense groups; and, who must bargain with others with very different interests (construction litigation comes to mind) should be thinking of the ways in which integrated negotiation planning could maximize the settlement benefits to be gained by strategic partners.
Nearly all negotiators know Robert Cialdini’s six “rules” of influence: reciprocation, commitment and consistency, social proof, liking, authority and scarcity. They are easy to remember because we are all influenced by them every day.
Reciprocation: When your waiter puts a mint on the table or your local charity sends you free mailing labels, both benefit from the power of reciprocity. Not only do we feel uncomfortable unless we reciprocate this generous behavior, we will reward it in kind. Waiters' tips go up and donations increase – however modestly -- when these benefits are bestowed on us. In the negotiation of a dispute, an acknowledgement that you’ve heard and understood your opponent’s position; or that you are sorry he was harmed by the activities you continue to believe were benign, does in fact motivate your adversary to respond in kind – often by revealing otherwise hidden interests or concealed fears that can break impasse.
Authority: I’ve never been a Judge, but I am a “settlement officer” with the United States District Court for the Central District of California. I’ve also tried cases to a jury and have twenty-five years of complex commercial litigation experience. Each one of these credentials gives me a different kind of authority, but all of them make what I say to a litigant considering settlement more persuasive.
The District Court gives me a little lapel pin to wear and I always wear it when I'm doing the federal court's "settlement officer" work. I have a badge! To my peers, “settlement officer” means nothing other than a volunteer for the Court. To the parties, however, being an “officer” of a federal court sounds impressive; authoritative. Difficult mediations often have dead time in them in which the parties engage in small talk. When clients ask me about the lapel pin, I modestly explain my role as a “settlement officer” for the District Court. The parties invariably treat me with greater deference after this conversation. I know it sounds like a small point, but sometimes all you need is one extra little push to get the parties past impasse.
Liking: I do not believe it’s possible to be a skillful negotiator unless you are likeable. This trait is especially important for a mediator who must garner the trust of a complete stranger with lightening speed. You do not have to possess rock star likeability to accomplish this. All you need do is to find something to like about the others. We all want approval and we all wish to be admired and desired. The good news is that all of us have some trait or characteristic that is desirable and admirable. If you look for those traits in another and casually remark on them, the cycle of liking and being liked is commenced.
The cycle is speeded if you couple your liking with something similarly likeable in yourself. "You’re a musician! I’ve always wished I’d taken music classes. My husband (or sister, or aunt, or best friend) is a pianist with a small chamber group locally." Now you're not only more likable, you're like "one of us" and you get the benefit of relatedness, an easier "fit" and an automatic feeling of trust and confidence. See Conspiracy Theories and Granfalloons for the full story on the way "liking" and affiliation work. If you’re not serving as a neutral but simply a negotiator, you can couple this “liking” and musical affiliation with reciprocity: “do let me give you my sister's chamber music schedule; during the summer they give free concerts in the park.” A trifecta of influencers.
Social Proof : “Yes, mom, if I see my friends jumping off a cliff I’m pretty inclined to do so as well.” Our tendency to "monkey see, monkey do" may begin in Middle or High School, but it does not end there. You don’t have to live in Los Angeles to feel the effect of this tendency to do what others do – you only need to be in a traffic jam caused by “rubber-necking” once to remember that we’re primates. This is part of the value of market valuations and jury verdict reports. They not only provide “authority” for your position on price, but they carry the weight of other people’s valuation. This is social proof.
Scarcity: the effect of scarcity on value is something we see every day in store windows and newspaper ads: “limited offer” and “one time only sale” are recycled over and over again by the same stores for the same items and yet we’re moved to feel an urgency that brings us into the store and makes us purchase an item we don’t need and didn’t desire. Litigators often use the principle of scarcity to “sell” the resolution of litigation. “After we commence discovery, this offer will no longer be on the table.” Or. “We’ll be picking a jury in thirty days. Don’t expect to see a demand this low ever again if we don’t settle by day’s end. Scarcity.
Commitment and Consistency: Many neutrals like to begin a mediation in joint session for the purpose of obtaining the parties’ commitment to settling the case today if reasonable terms are offered. It’s almost impossible to resist signing on to this principle and it's common for people to feel bound by it even if circumstances change. At some point during the negotiation, the parties will begin to feel committed to the resolution of the litigation. They can picture themselves free of its many burdens or receiving money rather than spending it on their attorneys. Seeking and making commitments holds our feet to the fire of our intention. Ask anyone who’s ever made public her decision to lose weight or exercise at least three days a week. If we act inconsistently with the promise we’ve made to friends, family or community, we fear a loss of “face.”
If you apply the five principles subject of this series to your negotiations, you will get the better part of the bargain on nearly every occasion. Remember – simply asking diagnostic questions will make you a better negotiator than all but seven percent of your bargaining partners. Add to this the ability to deftly frame the negotiation favorably to you; to anchor the bargaining range to your liking and to be influential in your dealings and I guarantee you success in most of your business affairs.
(right, the ultimate in lame reason giving: the dog ate my homework!)
To reinforce anchoring and framing effects of first offers and offer-characterization, always state the reason you are valuing the item to be traded in the manner you are.“I’m offering to pay you $20,000 in exchange for a dismissal because (choose one or more):(a) I impeached your witness with interrogatory answers in the deposition; (b) the only case law in your favor has been questioned by the Supreme Court and hasn’t been cited since 1972; (c) your expert witness went to Ralph’s School of Law and mine went to Harvard; (d) recent jury verdicts for the theft of trade secrets of this nature have been less than the cost of doing the first round of discovery; and, (e) anything else you have.
In experiments on reason giving, researchers have found that people are far more likely to accommodate others if a reason is given even if the reason makes no sense whatsoever.In one such experiment, students were asked to cut into a line at Kinkos.One group was instructed to give no reason; another to give a good reason ("I’m late for class”) and another to give an irrational reason (“because I want to”). Those who provided no rationale were, not surprisingly, the least successful. Only sixty percent of them were allowed to "cut" into the line. Those who presented a logical rationale got what they wanted an extraordinary 94% of the time.But here's the truly remarkable part. Those students who presented a meaningless rationale such as, "I want to cut in line because I need to," racked up a ninety-three percent success rate, only one percent less than their logical peers.
Every new offer or demand provides another opportunity to influence your adversary about the value (or lack thereof) in the subject matter of the lawsuit.
There's nothing litigators do better than rationalize, justify, explain, elaborate, rebut, support, and opine. Don't leave those excellent tools at home when it comes time to negotiate the resolution of your lawsuit.
In that most famous of sales movies,David Mamet's Glengarry Glen Ross, the under-appreciated Alec Baldwin gave his sorry group of cold-callers the prime directive of sales: Always Be Closing. You close when you convene the negotiation, close when you open it, close when you ask diagnostic questions, close when you offer your bargaining partner coffee, and close by MAKING THE FIRST OFFER.
In an environment of uncertainty where the value of one or more items to be traded is not fixed, the negotiator who makes the first offer will “anchor” the bargaining session in her favor throughout the bargaining session. Even when we know that someone else is trying to influence us by framing an issue or valuing the subject matter of a dispute, we will be influenced. We can’t help it. Our brains just work that way. To encourage your opponent’s vulnerable mind to be influenced with your valuation, it is best to state the reasons for your bargaining position. Researchers have noted that low valuations draw our attentions to the weaknesses of the item to be traded – a car for instance – and that high valuations draw our attentions to its strengths. You should take advantage of this by coupling your first offer with the reasons why the item you are buying or the thing you are selling should be valued low for a buyer or high for a seller.
And now a little something from the man who tore the sheets off the world of the cold call; off of the men working on a draw against commissions; off the guys who came around my house before I turned ten years old to talk dirty, make me paper airplanes, and perfect the lies that would get tomorrow's prospects to sign on the dotted line: David Mamet.
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 begin a series today on what I believe are the five most effective ways to break impasse. This morning's impasse-breaker will aid business people negotiating the settlement of a commercial dispute the most because it requires the generation of hitherto unseen business advantages to sweeten the pot.
Transform the dispute into an opportunity to make a business deal
Google’s CEO Eric Schmidt famously said that “litigation is just a business negotiation being conducted in the Courts.” If you look at litigated disputes in that light, the settlement option landscape immediately broadens. There are only certain remedies available in court or arbitration and those remedies may not be exactly what the parties are looking for.
If we remember that money is simply the means to obtain something else the parties desire – better distribution networks; insurance against future calamity; the security of knowing one’s intellectual property has not fallen in a competitor’s hands; health care; a college fund; even the acknowledgement that we have heard and understand our opponent’s point of view – we can add value to our negotiations before attempting to distribute it in a way that seems fair and just under the circumstances.
Often more important than finding commonalities between bargaining partners is locating those items that the parties value differently. A dollar may just be a dollar, but one company’s inventory, trade secrets or present pool of talent will seldom be worth the same in our competitor’s hands as it is in ours. In some cases our assets may be more valuable to another than they are to us, in which case we can choose the higher value as the central rationale for our proposal, remembering that where value is uncertain, the first party to put a price tag on it will “anchor” the bargaining range in his favor throughout the course of the negotiation.
Therefore, a savvy negotiator searches for both common and divergent interests in an attempt to put as many different options on the bargaining table as possible. Generating such options can melt impasse over hard “bottom line” dollar and legal position conflicts and transform a distributive negotiation session ("what I lose, you win and what you lose I win") into a business opportunity that will leave both parties better off than they could have imagined.
The book at right was brought to my attention for the first time by this highlighted text in Good Magazine:
In the foreboding world view of rational choice, everyone is a raging dirtbag.
What makes the Logic of Political Survival Relevant to negotiators is Bruce Bueno de Mesquita's application of game theory to international political problems such as the reduction of conflict between Israel and Palestine (quoted below).
First, de Mesquita's own words on the Middle East.
In my view, it is a mistake to look for [peacemaking] strategies that build mutual trust [between the Israelis and the Palestinians] because it ain’t going to happen. Neither side has any reason to trust the other, for good reason. . . .
Land for peace is an inherently flawed concept because it has a fundamental commitment problem. If I give you land on your promise of peace in the future, after you have the land, as the Israelis well know, it is very costly to take it back if you renege. You have an incentive to say, ‘You made a good step, it’s a gesture in the right direction, but I thought you were giving me more than this. I can’t give you peace just for this, it’s not enough.’
Conversely, if we have peace for land—you disarm, put down your weapons, and get rid of the threats to me and I will then give you the land—the reverse is true: I have no commitment to follow through. Once you’ve laid down your weapons, you have no threat.
The "rational" solution?
In a peaceful world, what do the Palestinians anticipate will be their main source of economic viability? Tourism. This is what their own documents say. And, of course, the Israelis make a lot of money from tourism, and that revenue is very easy to track. As a starting point requiring no trust, no mutual cooperation, I would suggest that all tourist revenue be [divided by] a fixed formula based on the current population of the region, which is roughly 40 percent Palestinian, 60 percent Israeli. The money would go automatically to each side. Now, when there is violence, tourists don’t come. So the tourist revenue is automatically responsive to the level of violence on either side for both sides. You have an accounting firm that both sides agree to, you let the U.N. do it, whatever. It’s completely self-enforcing, it requires no cooperation except the initial agreement by the Israelis that they are going to turn this part of the revenue over, on a fixed formula based on population, to some international agency, and that’s that.
It actually gets much more controversial and interesting than this -- the "kicker" to the headline in Good Magazine reads:
Can a fringe branch of mathematics forecast the future? A special adviser to the CIA, Fortune 500 companies, and the U.S. Department of Defense certainly thinks so
If that intrigues you, you'll want to read the entire article here. And you'll also want to read today's New York Times article on de Mesquita,
When 50-50 partners break up, the Closed Dutch Auction is an effective way to set the buyout price. The partners exchange sealed bids stating the price at which they will sell their 50% share. The highest bidding partner "wins" and buys out the "loser" at the "loser's" price.
The price set by each partner must be realistic, because if he "loses", the partner will have to sell at the price he set. Setting too low a price has a double adverse effect; the "losing" partner will be the seller at the lower price.
A friend recently reminded me of a book review I wrote for one of those "get rich" books The Go Giver (below) for the sorely-missed Complete Lawyer. I reprint it here in the Negotiation Blog because I talk a lot about the power of reciprocity in bargaining. I'd summarize my response here, but I can't say it any better than I did below.
The Go-Giver, A Guide to a Life Lived Richly
American business people have been writing self-help guides to financial success since Benjamin Franklin penned Advice to a Young Tradesman and Poor Richard’s Almanac. Business consultants Bob Burg and John Davis Mann add to this tradition a new parable -- The Go-Giver, A Little Story About a Powerful Business Idea.
As the title suggests, Burg and Mann recommend that we discard “go getting” -- hard work focused on individual success -- in favor of “go giving” – authentically passionate work focused on the success of others. To demonstrate how material wealth follows generous action, Burg and Mann create an elusive but legendary business consultant “Pindar,” who shares his Five Laws of Stratospheric Success with anyone who promises to practice these principles in all their affairs.
The pilgrim in this progress is “Joe,” an earnest and hard-working salesman on the brink of a third failed quarter. After promising to follow the laws Pindar teaches him, Joe meets a handful of spectacularly successful givers. These include former hot dog vendor Ernesto, who credits his restaurant and real estate empire to giving more than you take; Nicole, who owes her rise from school teacher to educational software titan to giving much to many; former insurance salesman Sam, whose many philanthropies thrive on giving without expectation of return; and, Debra, who learns to succeed in business by giving of her true self. Having quickly learned each lesson, Joe himself exemplifies Law No. 5 – the willingness to receive the bounty that flows from giving.
Unfortunately, as a guide to financial success, The Go-Giver is more fairy tale than instruction manual. All of the business icons Joe visits ascribe their riches to acts of authentic generosity. It is apparent from the context in which these stories arise, however, that the key here is neither virtue nor the inherent satisfaction to be found in giving. The key is choosing the right people to give to – those with wealth, monied connections or the power to create economic opportunities for others.
If we are moved to visit shut-ins; bring recovery meetings to incarcerated felons; or make micro-loans to third-world entrepreneurs, this book is not for us. This is focused giving and the focus is on the “haves,” not the “have nots.” If we are among the unemployed; the sick; or, the elderly, we’ll need another set of “Laws” for success – chief among them laws guaranteeing the education; training; and, health care necessary to enable us to make use of the opportunities created by the Go-Givers’ generosity. 
Walking the Razor’s Edge
Most Complete Lawyer readers are, however, the type of business people for whom The Go-Giver is written. No matter where we appear on the legal economic ladder, as educated people with access to the justice system, we are well poised to engage in random acts of kindness for, and reap rewards from, those who are well situated to spread a little green.  So long as we successfully negotiate the razor’s edge between opportunism and genuine acts of generosity, Burg and Mann’s advice will likely redound not only to our emotional and spiritual well-being, but also to our financial success.
Most readers will, of course, recognize Joe’s spectacular rise from failing salesman to coffee-bean multi-millionaire as the fairy tale the The Go-Giver all but announces itself to be. There is value here, however, in the quotidian acts of kindness in which Joe engages to satisfy Pindar’s requirement that he promptly practice the “Laws” conveyed.
The most credible results of Joe’s baby steps on the road to becoming a generous human being are his improved relationships with his fellows. Practicing “not keeping track,” Joe foregoes telling his wife his own work-a-day worries, focusing his entire attention upon the challenges of her day. His reward? An entirely believable note of love and gratitude on her pillow the following morning. Practicing “giving more value” than he receives, Joe serves coffee to his workmates as they struggle to meet a collective quarter-end deadline. Though Joe reports “feeling like an idiot” in doing so, it is clear that the warmth and bemused surprise expressed by is co-workers is its own reward.
The true lesson of The Go-Giver is not so much that material reward follows an expansive spirit, but that one’s daily pleasure increases with the size of one’s own heart. After all, when financial success eludes us – or crashes with the national economy – what we have to rely upon is not numbers on a ledger sheet, but the family, friends and neighbors who will see us through. If we give authentically without expectation of reward – because we “love to . . . as a way of life” – what we will reap is a life richly lived even if we do not thereby “get rich” in the process.
 As the Labor Department tells us, in the year 2000, “high school dropouts were more than twice as likely as high school graduates to be counted among the 31 million American “working poor” while only 1.4% of that number possessed college degrees. See A Profile of the Working Poor – 2000, U.S. Department of Labor, Bureau of Labor Statistics at http://www.bls.gov/cps/cpswp2000.htm. One’s existing occupation – the job we have been lucky or well-placed enough to be trained to do -- is also highly correlated with financial success or failure. As the Labor Department reports, “[a]lmost 31 percent of the poor who worked during the year  were employed in [low skill] service occupations . . . .,” including “[p]rivate household workers, a subset of service workers that is made up largely of women, were the most likely to be in poverty (20 percent)”. On the other hand, those engaged in executive, administrative, managerial and professional occupations had low incidences of poverty since “[h]igh earning and full-time employment are typical in these occupations.”
I reviewed with some dismay the July 12, 2009, post titled Mediators' Proposals: the Good, the Bad and the Ugly, which seemed to endorse counsel who deceive the mediator to push the negotiations to a mediator’s proposal./* I primarily litigate, but I devote a small percentage of my practice to serving as a mediator.
A mediator’s proposal can be a very effective tool for mediators and the parties to promote settlement when the negotiations have honestly and appropriately reached an impasse. The chance of the proposal generating a settlement, however, will increase greatly if the parties and attorneys respect the mediator and his or her opinion.
If the parties and attorneys respect the mediator, then they will respect the proposal, making it more likely that they will accept the proposal. Without respect, there is nothing more than a gambler’s hope that the proposal will be in an acceptable range. Further, if the lack of respect is mutual, then there is a risk that the mediator will subconsciously tilt the proposal in favor of the other side, which certainly will not promote settlement.
Every mediation has some elements of a game, but while the gamesmanship can involve concealment and even some sleight of hand, it should not devolve into deception. One example that has worked well where there is complete trust and respect between the mediator and at least one side is for that side to divulge the final offer near the outset of the session with the understanding that the mediator will have some latitude to dole out the total authority in bits and pieces with the hope of settling at or near that final number.
This is deceptive because the mediator is telling the other side that obtaining each “concession” is a hard fought battle, but it eliminates the risk of moving too quickly to the end game against an opponent who does not care what the opening number might be, but only wants to halve it (or double it) before the end of the day. This is deceptive because each private session with the side who divulged his or her final number creates an opportunity to discuss future vacations and how the kids are doing. If, however, the goal is to reach a settlement that works for all concerned and gives all parties a sense of accomplishment, then it is a fine tactic that promotes efficient negotiations, likely avoids altogether the need for a mediator’s proposal, and minimizes the fees of the attorneys and the mediator.
Candor and respect towards a mediator has an additional benefit that may not be of advantage to the immediate clients, but will promote productive future mediations on other matters. If I can tell my client that a particular mediator is good, that I respect that person, and will seriously consider everything that that person says, then the client is more likely to listen to what could be bad news about the case. This level of respect is rarely earned in the first session with a new mediator, but only after several mediations. Without candor and respect, the attorneys and parties just want to “win” without realizing that the cost of “victory” may be dearer than the settlement obtained through a positive and respectful mediation.
* Editor's comment: I did not mean to endorse duplicity on the part of counsel or the gaming of a mediator for the purpose of obtaining a favorable mediation proposal. I only meant to emphasize the fact that many attorneys can and do "game" the system, including as much manipulation of the mediator herself in the process.
-- Gregory Nerland
Akawie & LaPietra
1981 N. Broadway, #320
Walnut Creek, CA 94596
Manatt partner David Grinberg will discuss the negotiation of earnout provisions in M&A deals during a live webinar hosted by Strafford on July 14, 2009 from 1:00-2:30 Eastern. Grinberg will explain the types deals for which earnouts are appropriate and provide strategies for negotiating and structuring earnout provisions to reduce post-closing disputes. Grinberg will specifically address:
When are earnout provisions an attractive financing option for M&A deals?
What strategies have been effective for negotiating performance benchmarks in deals involving earnout provisions?
What post-closing concerns should buyers and sellers anticipate and address during deal negotiations?
What are the key tax issues to understand and consider when using earnouts?
savvy negotiators angle for an advantageous impasse rather than a settlement. Compromise is no longer the goal of the mediation exercise; instead it becomes a play to the “neutral,” whose power to craft the mediation proposal will make her the real decisionmaker:
In cases where the mediator’s proposal will be based on who will pay what, the parties — or worse yet, one party — will spend valuable time and effort constructing an impasse when, in the absence of a mediator’s proposal as a fallback, he might have actually achieved a compromise settlement; or
In cases where the mediator’s proposal will be based on the value of the case, no one has an incentive to be candid with the mediator — so positions become more important than interests; or
In cases where the parties aren’t sure what will drive the mediator’s proposal, they dig into their positions and hope for impasse — with the most likely result being a mediator’s proposal predicated on those positions.
A reluctant plaintiff will make a large jump if the money is really “on the table.” Defendants will come up with money they otherwise deny having, if it means that the case is really over. It also eliminates reactive devaluation.
For those who skipped social psychology in college, reactive devaluation is what every lawyer is taught in the first year of practice, if not earlier. "If the other side wants it," said my first mentor, "you don't, even if it seems like a good idea to you." With that admonition ringing in the ears of every litigator, the need for mediators is obvious. Given the dangers cited by DeGroote, however, the mediator's proposal may now be simply another way to "game" the mediator.
I have two short stories to illustrate the reason I re-direct the parties to bracketing when they ask me to make a mediator's proposal. But first, let me explain that I am one of those mediators who used my "proposal" option to put a number on the table I thought both parties would accept even though it would be a stretch for both of them. I usually tested these assumptions in separate caucuses by asking each side "if they came down to $X would you come up to $Y." When the numbers didn't overlap, I'd gauge how much pain there might be for both parties to bridge the gap, along with other entirely subjective opinions such as:
how invested each side was in walking away with a settlement that day
how firm each side was in their assertion that they would not go below or above a certain number
whether either attorney needed help in bringing a little more reality to their clients before the parties would be ready to accept a proposal by the mediator; and,
how much "street cred" I'd developed with the parties personally so that they'd accept my estimate of the settlement price-point even if they wouldn't accept their own attorney's advice /*
The first time I felt manipulated into making a mediator's proposal that wasn't the best both parties could do occurred at the close of a particularly fractious commercial mediation. In the presumed Zone of Potential Agreement , my proposal was high on the side of the Plaintiff because I felt that the defendant had more "give" than did Plaintiff's counsel.
I made my proposal and both sides accepted. When I walked into the defense caucus to tell counsel that he had a deal, however, I was met with a burst of laughter, the clapping of hands and the following statement: "I was prepared to take less; that's a great deal. Thanks so much."
Everyone Lies to the Mediator
That was the hardest lesson I'd had to date in the truism that EVERYONE lies to the mediator. You do not get to lie to the mediator twice, however, so I caution anyone who's feeling that she put one over on the mediator either to keep it to herself or never to hire that mediator again.
Still, I took a lesson from the attorney's merriment. I realized immediately that he was not the only, nor the first, attorney to manipulate me. He was simply the only one to let me know it. I don't like being manipulated. But that's what litigators are trained to do. We call it "persuasion." Still, I didn't like the look of my mediator's finger prints on that settlement, one that now appeared unduly influenced by my credulity.
So that's reason no. 1 -- an extremely strong reason no. 1 - why I don't' like to make mediator's proposals and why counsel might ask themselves whether they want to continue asking for them.
"If We'd Wanted a Third Party to Decide, We Would Have Arbitrated This Case"
The quote above is from an attorney who represented one of the parties in the largest and most sophisticated commercial case I've mediated to date. We were at the end of day two and the parties -- who had traveled great distances to meet in a neutral city -- were nowhere near a landing point. I was a sufficiently experienced mediator to land the case, but new enough to feel as if I'd run out of options when I suggested making a mediator's proposal.
"I didn't hire you to have a third party make my decision for me," said counsel. "If you want to get the parties closer together, why don't you suggest a bracket?" (for a explanation of bracketing, see my colleague Ralph Williams' article Introducing Deal Points - the Basics.)
I'd used brackets as a means of testing the parties' true distance before that day ("if he went to $X would you come down to $Y?") but I'd never made a mediator's proposal that was a bracket, i.e., "I suggest that the defendant put $X on the table if plaintiff will reduce its demand to $Y."
Although we didn't settle the case that day with a bracket (it took four full months of follow-up telephone negotiations to do that) I took counsel's point to heart. The parties don't hire me to make a decision for them. They're much happier when they get to make the decision themselves. Even though the parties do decide whether to accept the mediator's proposal, it hasn't come to them as the result of their own hard work. That being the case, the agreement reached is far less durable (subject to failure based upon nit-picking deal points after the agreement has been reached in principle) and far less satisfying than one achieved without the mediator's thumb on the scale.
I decided to stop making mediators' proposals more than two years ago. In all that time, however, I've never refused to make one. Rather, I've suggested alternative ways of achieving resolution, at least one of more of which settled the case in every case where the parties asked for a mediator's proposal.
I'd like to hear thoughts on these points -- manipulation and party satisfaction -- from my litigator readers as well as my mediator readers.
* I say this with the following caveat: I would never attempt to influence clients to do something other than what their attorneys advise. From time to time, however, the attorney needs to make the mediator the "bad cop" in the negotiation so that the client will not feel as if the attorney is no longer fighting for his interests. I only play "bad cop" with the attorney's advice and consent. My job is to get the settlement concluded making the attorneys look good, not bad.
When last we left Ari and Terrence negotiating Ari's compensation Terrence had ceremoniously offered Ari "NOTHING!!!"
But we're not talking only money here. We're talking power and agency in the psychological sense, i.e., agency as the capacity to control one's own future. Before the "nothing!!!" offer, Ari had told his wife he was still "afraid" of Terrence even as she attempted to prop him up by reminding him that he was Terrence's partner now. Although Ari wants control of the agency, his strength falters when Terrence comes back from a seven-year sabbatical.
Ari's discomfort in the scene below is palpable. Terrence asserts his authority ("I hope you're not planning to expense the Bat Mitzvah to the agency"); implies that Terrence's daughter had better instincts for talent at eight years old than Ari has now; and, previews his plan to take over Ari's five-year relationship with the talent of the hour -- Vincent Chase.
Ari is dealing from a position of psychological if not actual weakness. Having Terrence back on the scene is a little like going back home for the holidays after a few years at college. You feel independent but it takes only a few minutes with your parents to revert to your powerless teenage self. The final blow to Ari's self-esteem below is delivered in the form of a "gift." $50,000 for Ari's daughter's Bat Mitzvah. Ari is fifteen years old again.
Sensing Ari's weakness, Terrence moves to consolidate his power by taking over a staff meeting from which he excludes Ari. But Terrence has over-played his hand. Using Terrence's violation of the agency's folkways ("you embarrassed me in front of my troops") Ari pries an apology out of him and wins his first battle over who can summon the other's attendence by fiat.
When Ari returns to the negotiations, he has re-set the bargaining table in a way Lax and Sebenius in 3-D Negotiation would applaud. The subject of the negotiation is no longer Ari's share of the profits, but the value of the company itself and Ari's share in it. Note how Ari takes credit for the lion's share of the company's present value and emphasizes the company's vulnerability if Ari leaves.
The deal is sealed but the check unwritten and Terrence has no intention of fulfilling his promise when he learns that Ari intends to open his own agency, (tortiously) raiding Terrence's shop of its agents and clients. In a remarkable power play, Terrence brings together the "five families" Hollywood, to threaten Ari with ruin if he so much as offers CAA's mail room boy a paid position. Quick on his feet, Ari accuses Terrence of anti-Semitism (making Terrence the member of an "out group") and then promises not to touch any agency's clients other than Terrence's.
With no money to open his new agency, Terrence's agents are not inclined to follow Ari until an unlikely partner offers to fund his venture, below.
As Lax and Sebenius instruct:
3-D Negotiation involves not one, but three dimensions, all of which are in play more or less concurrently throughout an[y] effective negotiation[:] 1. Tactics 2. Deal design 3. Setup.
Deal designs, say the authors, create lasting value.
Smart people working at the drawing board can . . . discover hidden sources of economic and noneconomic value, then craft agreements -- design deals -- that unlock that value of the parties involved.
In the Entourage negotiation, Ari unlocks his own value when he finds the courage to leave the safety of Terrence's agency and open his own. By episode's end, Ari has changed the players, the subject matter of the negotiation and the balance of power in town. This is 3-D negotiation at its finest (even though it also rolls out at its most shameless).
All of that said, don't miss the opportunity to appreciate Ari's "at the table tactics" in negotiating the sale of his interest to Terrence. He enters the room confidently, refuses to permit Terrence to use his old power plays ("save a tree; say it out loud"); re-anchors Terrence's $4 million open with "my counter is $#@$ you"; explains his own value; diminishes any claim Terrence might have to the present value of the agency; signals his firm willingness to walk away; and, demonstrates his commitment to stay away in the absence of a realistic offer ("I have a rich wife who loves to spoil me"). The power shifts and the deal is done in two minutes flat.
Yes, it's Hollywood. But all good fiction, which Entourage certainly is, rests on hard facts, all of which are brought vividly to life here.
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.
How smart is Chris Hill at Construction Law Musings to have a guest blogger every Friday? That's just the kind of collaborative problem-solving you need in your litigation counsel, particularly when you're facing multi-party construction litigation. This week, Chris was kind enough to ask me to add to the construction law conversation taking place every day at his tremendously useful, entertaining and enlightening blog. Excerpt from Six Ways to Insure Your Construction Mediation Will Fail below.
1. Leave the Decision-Makers at Home
A mediation – particularly a multi-party construction mediation – is more drama than law; more character than rights; and more emotion than reason. Mediation, like trial, requires the lawyers to restore the texture, dimensionality, morality and personality back into the dispute that we lawyers flatten for the purpose of satisfying the law’s requirement that we litigate only the “relevant” facts necessary to satisfy legal “forms of action.”
On game day, it’s not the mediator, but the parties themselves who must decide who is bluffing and who is not; what allocation of responsibility among the parties feels fair; whose claims of poverty or freedom from liability have the ring of truth; and, which parties have deeper pockets or greater negotiation flexibility than their attorneys have claimed.
Just as you wouldn’t want your jury to “call in” their verdict, you don’t want the mediation decision-makers miles away from the mediation table when the cards are being played. Remember that people seek out lawyers only when they feel they have suffered an injustice. Righting that wrong requires more than money or dismissal. It requires the belief that you, the attorney, have gotten your client the very best deal possible in light of the facts finally revealed, the personalities involved and the hard realities faced.
2. Leave Early Because the Other Parties are Acting in Bad Faith
How do we know that people are bad negotiators? For more than 30 years, theorists have been devising little bargaining puzzles. In these very simple problems, people routinely leave money on the table. Routinely fail to make the best possible deal.
Why? There are many types of answers, and my expertise is looking at how people failed to manage the process of both expanding the pie, creating value, and demanding their fair share of the pie, claiming value because they failed to comprehend their strategic position.
The process of managing or mismanaging the creating/claiming value process has been extensively studied, starting in the 60's with Walton and McKersie's A Behavioral Theory of Labor Negotiations.
One explanation of why people are bad negotiators, something Bob Mnookin stresses, is that people often look past their interests in common and go directly to undue focus on adverse interests.
We have all heard the term "win win", but what does it really mean? Bob Mnookin talks about the Program on Negotiation, an executive training program at Harvard.
I have to say that I agree with magazine mogul Tina Brown that we're in a "gig economy" not a job economy. What does that mean? It means doing an inventory of your dreams right next to a realistic assessment of your skills, along with a time line for getting your own business up and running, with or without investors, remembering that in a "gig economy" barter is a perfectly acceptable alternative to cash and in the age of the internet (Networking Wisdom in Mentoring Circles) hundreds of marketing tools that can reach millions of people globally and thousands of people locally, are right beneath your fingers on the keyboard connected to the computer that brings you the most exciting set of opportunities since we decided to send men to the moon -- social networking (now there's a proper run-on sentence, the reward for which is buying myself a new copy of Elements of Style which every job-seeker and new entrepreneur should do post-haste since written communication is the key to successful online business development).
That said, for those who NEED A JOB RIGHT NOW to pay off their law school loans (remembering that dischargable or not, we no longer have debtors' prisons), here's today's Law.com advice:
The book gives a 12-step plan for landing a new job: 1. finding passion and creating vision; 2. creating a brand; 3. creating a value proposition; 4. creating stories; 5. developing a marketing plan; 6. getting a message out; 7. creating a marketing document; 8. meeting the friend's friend; 9. power résumé; 10. preparing for an interview; 11. negotiating terms; 12. landing the job; and the next step.
The book emphasizes the importance of keeping up contacts after landing in a new job -- knowing that another may search may be ahead. But it suggests maintaining contacts by looking for ways to help other people with a "pay-it-forward" approach. "We all need help at some point," the book says. "The concept is that you are thankful for those who helped you in the past."
Villwock told the group that in his experience, the most successful CEOs and other professionals are those who are most passionate about their work. "When they stop having fun, that's when they stop and go on to the next job," he said.
He also advised the group that attitude and personal skills are as important as professional credentials. From observing executives, he said, "half their success has nothing to do with performance on the job. It has everything to do with ability to sell themselves and build trusted relationships."
If you substitute business plan for power résumé and starting the business for landing the job, you've got a perfectly great recipe for engaging the gig economy eagerly awaiting your contribution. Listen up! You didn't get the highest PSAT and SAT scores, graduate cum, magna or summa, ace the LSAT, study your $#@% off, learn lawyering skills, conquer your fear and pass the bar exam to be hat in hand looking to be someone's apprentice galley slave.
Think about it and join the rest of the gig economy.
We're looking forward to your unique and valuable contributions to the new economy right now!
The writing on the inside of the secret entrepreneurial decoder ring? MONETIZE EVERYTHING!
Let us take a blank sheet of paper and imagine that we are trying to create a system which would provide a satisfactory means of resolving civil disputes, bearing in mind, without being over dramatic, that in the end, it becomes almost inevitable that some civil disputes will end up in criminal activity. I do not think I am exaggerating.
A few years ago I was taught a lesson by a very intelligent young woman in one of our County Courts. We were talking of the cost – the exorbitant cost as it was then - of taking proceedings for very small sums of money. She explained to me that the cost of just starting the proceedings would represent her children’s shoes – she thought this a disproportionate cost. She knew areas of the City where her husband could go and find someone who would throw a few bricks through a window for £50 – no doubt she was right. And, perhaps, that would be more effective, she suggested than a judgment and getting back the compensation. A little self-help could end up with a brick being used against an individual and a few bricks being thrown back in return.
In short, a civilised community has to provide a system which means that those in dispute can refer to an independent tribunal for a decision. It is a further requirement that the system should actually exist and be capable of being used. If court fees are disproportionate or if legal fees are disproportionate the system is not open to those who cannot afford its processes.
My experience in practice at the bar was that some of my clients wanted their disputes sorted out. They had tried to sort them out before they got to the stage of seeing a solicitor and going to counsel. Others of my clients, or should I say, it was always my opponent’s clients who were unreasonable, didn’t want to sort the dispute out at all. There were all sorts of reasons. One is that very human characteristic sometimes but not always an attribute, the indomitable bloody mindedness of the bull dog.
So that on your sheet of paper the system which we are creating has to cater for both those who wish to settle and those who do not. If both sides want to sort out their dispute, and they have tried and failed, being sensible people, their next step would not be to come to lawyers, but to go and ask someone they trust to try and sort out their dispute, to see where there are points of disagreement and points of agreement. Let’s give it a name. Why not call it “mediation”? A successful mediation is a wonderful outcome. But with the best will in the world, it may not always happen. So you have to have a formal system.
You also have to have a formal system when one side or other to the dispute simply has no intention of sorting it out save in court and at the end of a protracted and expensive court proceeding. That is more troublesome. That may be the party with pots of money trying to squeeze the party with modest means away from the court process. That may mean that the party with real merit in his or her case is deprived of the proceeds of litigation for many years to the advantage of the intransigent party. It may be that the intransigent party is entirely justified and believes that there is no form of mediation which would be acceptable either to it or indeed in the end to the other side.
Now time and time again, in practice as a barrister and now as a judge, I have been perfectly well aware that if only the parties had come together at an early stage, long before they saw their counsel, long before they got to the door of the court, they could have resolved their dispute at a fraction of the cost and without the emotional expenditure and commitment of time and energy required by the litigation. One of the ways I used to try to persuade clients to settle was to remind them of a Chinese curse – “may you be involved in a litigation in which you are in the right.”
One vivid memory is a boundary dispute, or rather a dispute over a garden. My opponent and I turned up at the County Court armed with an abundance of authorities because we had to address limitation periods, laches, injunctive relief, indeed just about every facet of civil justice. In the end we negotiated a settlement in which he and I, not the judge, went to the land and armed not with books but with hammers and stakes literally pegged out the property into equal halves. The case was settled. In truth my opponent and I had acted as mediators. How much better for everyone if the mediation had happened much earlier.
Can we just take a long term view? Every few years, or about every ten years, there is a great hullabaloo about the cost of civil litigation. Arbitration, after all, is a system of avoiding the court process. Do you remember when employment tribunals began? These were to be informal meetings at which the opposing parties would put their cases to a tribunal, almost a form of palm tree justice.
Consider now how much more complicated and expensive the processes have become.
I do urge the Council to recognise this danger. The mediation process, could, unless danger is recognised and addressed, particularly if it is part of the court process, may eventually, and quite unintentionally, and by unforeseen accretion become increasingly formalised and procedural. It really must not eventually become just one more part of the expensive process that all of us are trying to avoid.
I would not ordinarily post a power point presentation that is someone else's marketing vehicle. Nor would I generally post a power point that is meant solely for the benefit of one side of any dispute (here, plaintiffs' personal injury attorneys). I read though the entire lengthy presentation, however, and thought it contained some good tips over a broad range of issues that could well be useful to attorneys, clients and mediators in settling personal injury litigation involving the use of structured financial products. So with all disclaimers considered given (not my opinions; don't vouch for accuracy, etc.) I uploaded the below presentation for anyone who might find it a useful jumping off point in this complex arena (i.e., it invovles arithmetic if not actually mathematics!)
found that the satisfaction with the experience the employees had during their job offer negotiations significantly predicted compensation satisfaction, job satisfaction, and turnover intention one year later. By contrast, the actual economic value – meaning the value of the compensation package — achieved in the negotiation had no association with job attitudes or intentions to leave.
Emotion terms are notoriously slippery. But if we understand empathy as the ability to take the perspective of another, it ought to be uncontroversial that empathy is an important component of judicial judgment. Empathy, so understood, is a basic and necessary tool for making sense of the intentions and actions of others.
So, as Mark Graber asks, who could be against empathy? And more particularly, why is empathy liberal, if we all use it? Perhaps because empathy goes by another name when it comes easily—for example, when Supreme Court justices take the perspective of those from similar backgrounds or with similar worldviews. This sort of empathy looks neutral and natural, not ideological or partial. It tends to be portrayed as garden-variety judicial reasoning.
We all use empathy, and despite our best intentions, it is always selective and riddled with blind spots. We can try to correct for this partiality if we are self-aware. But those who study cognitive psychology and decision-making find that we aren’t all that good at identifying and critiquing our own background assumptions. A better way to encourage this sort of correction is through debate with others who hold differing viewpoints. Judges, like the rest of us, make better decisions when forced to examine and articulate their premises.
According to a recent article in the New Yorker (voice of the effete empathizing liberal east-coast establishment) we owe our conscious mind -- that which makes us human -- to the mirror neurons that give rise to to empathy (because we could "feel" the mind of another, at some point we turned that thought back against ourselves and consciousness was born).
What does this have to do with negotiation? Anyone who continues to believe that decisions are (or could potentially be) the product of a solely rational process are losing the benefit of the emotional sway every great negotiator exercises over his or her bargaining partner.
Geesh, even George Bush professed compassion(so long as the government wasn't providing it). Does the Republican Party really wish to become the home of Darth Vadar? /1
1/ Perhaps Jon Stewart of Comedy Central's The Daily Show described coverage of the pairing best. The show aired a clip of The Weekly Standard's William Kristol saying of the back-to-back speeches, "Just going to be fun, don't you think? Luke Skywalker and Darth Vader, you know? And I want to say that I was always on Darth Vader's side." Stewart retorted, "Now you tell us. You know, as one of the main intellectual forces behind the Iraq war, that's kind of a weird thing to admit. You might have wanted to mention, 'Oh, quick caveat to my plan on a new American century: I'm on the Darth Vader side.' "
If you're worried about your law job becoming -- as they say in Britain - "redundant" or if you've already been laid off due to the recession, join Lawyer Connection which was born today as the result of a twitter conversation I had with Gwynne Monahan (who you can follow @econwriter).
Here's an exploration of what a mutual aid group is from the viewpoint of a social worker -- which speaks to me because I lived through my first husband's MSW in Social Work studies before he lived through my Law School experience (an eventual relationship-killer).
Mutual aid as group work technology can be understood as an exchange of help wherein the group member is both the provider as well as the recipient of help in service of achieving common group and individual goals (Borkman, 1999; Gitterman, 2006; Lieberman, 1983; Northen & Kurland, 2001; Schwartz, 1961; Shulman, 2006, Steinberg, 2004; Toseland & Siporin, 1986). The rationale for cultivating mutual aid in the group encounter is premised on mutual aid's resonance with humanistic values (Glassman, 2002) and the following propositions: 1) members have strengths, opinions, perspectives, information, and experiences that can be drawn upon to help others in the group; 2) helping others helps the helper, a concept known as the helper-therapy principle (Reissman, 1965) which has been empirically validated (Roberts et al, 1999); and 3) some types of help, such as confrontation, are better received when emanating from a peer rather than the worker (Shulman, 2006). Mutual aid transactions that occur amongst and between members stimulate cognitive and behavioral processes and yield therapeutic, supportive and empowering benefits for the members (Breton, 1990;Northen & Kurland, 2001; Shulman, 1986, 2006).
Obviously, we're not pursuing the therapeutic benefits of a mutual aid society as social worker Cicchetti is. Having been a member of such a group (a community-based women's credit union in the early 1970's for instance) I can say that the experience is not only economically, but also personally, enriching.
Let's not wait for the economy to improve. Let's start improving it TODAY. We are the change we want to see in the world.
wave of redundancies sweeping across the nation is forcing a number of employers, employees and their advisors such as lawyers and trade unions into conflict situation. As customers become slower and slower at paying added pressure is created for their suppliers and relationships become strained.
Because the "approach taken by those involved and their attitude in dealing with the conflict will have a significant impact on the outcome and the costs involved in finding a solution," Justin provides the following easy to implement solutions:
1 Avoid macho posturing – In an attempt to hide the weakness of their position some people are all bluff and bluster in conflict situations. . . . . (more)
2 De-personalise problems – My experience of disputes is that often things can happen due to personal issues between the individuals. It can be difficult to take the personalities out of a matter but believe me there are clear benefits. . . . (more)
3 Focus on your own emotions – In many work environments there are unwritten rules that emotions are not to be expressed. Is this really wise? . . . (more)
4 Listen – Effective communication starts with the speaker taking responsibility for understanding the language, perspective and experiences of the listener. . . . (more)
5 Analyse the Conflict – Research on problem solving indicates that the effectiveness of solutions increases significantly once the real problem is identified. . . . (more)
Justin Patten handles conflict for a living and whilst as a litigation solicitor he is familiar with the combat zone of the court room he much prefers to work with clients to achieve mediated solutions through negotiation and agreement. Contact Justin on 0844 800 3249 or email Justin here.
A White Paper with advice on How to save money, maintain business relationships and avoid negative publicity by embracing the power of mediation to resolve business and employee disputes. Download the PDF here.
You can subscribe to Justin's invaluable eZine here.
I'm re-posting below an article published in both the Los Angeles and the San Francisco Daily Journals (the local legal rags) about the dangers inherent in email communication. I do so because I had several complaints about the use of abusive email by in-house counsel last week at my negotiation training as well as in my twitter network from attorneys exasperated with combative emailers who refuse to take telephone calls (see post about conflict avoidance here)
My advice? Use the tried and true tit-for-tat strategy: retaliate for uncooperative conduct and be quick to forgive as soon as your bargaining partners bring themselves back into line. The advice I gave on twitter (@vpynchon) this morning was simple and pointed: tell opposing counsel that you will program your email system to automatically delete all of their emails until they pick up the telephone and give you the courtesy of a return call.
Below, my Daily Journal article on the Dangers of Using Email During Litigation.
This story occurs in the spring of 2001, in a hotel room in Toronto, at 3 a.m., the morning of a deposition I've been preparing to take of an aging petrochemical engineer.
My personal 2001 "future" is mostly about my instantaneous access to information and "real time" communication via the "killer app" -- email -- telegraphic, spontaneous, unnuanced, and about to get me in a great deal of trouble. (See Vanity Fair's must-read oral history of the internet here.)
There's an associate back in Los Angeles, you see, the quality of whose work and the strength of whose dedication to the case at hand is in alarming decline. More troubling, his work is deteriorating at the same time I'm taking old fashioned passenger jets from province to province to take the testimony of as many witnesses still living who know how 500+ toxic waste sites got that way in the first place.
Did I say it's 3 a.m.? The associate I'm thinking about failed to get me the outline I need for tomorrow's deposition on time -- or at all. The "hard copies" that were supposed to be waiting for me when I arrived at the hotel have gone missing. I'm tired. I'm hungry. I'm lonely. And I'm angry.
Worst of all, I'm composing an email to my associate about my considerable disappointment in his recent performance. There is a moment, a split second, in which my finger hovers over the "send" button while a rational voice in my head says "no." Then I push "send."
Email Makes Settlement More Difficult
More and more often when I'm meeting counsel on the morning of a mediation, they're also meeting one another for the first time. In fact, they often have not even previously spoken to one another unless they've met in Court ("good morning, counsel") or in depositions (eyes averted; objections made). Increasingly, by far the vast percentage of their communications have taken place via email.
And that's a problem.
There's no question that litigation escalates whatever conflict existed when our client first walks in our door. We don't, after all, make requests. We issue demands. We don't seek concessions. We insist upon them. We don't make inquiries. We require responses. And we're not such great listeners. Rather, we impatiently tap our feet in Court, waiting for counsel to finish his argument (which we've heard dozens of times before) so we can press our case.
Are these bad things? Not necessarily. So long as we understand what we're doing and the likely results our conduct will have, escalation is not necessarily worse than maintaining a steady state or even deescalating conflict.
The problem for most of us is that we don't know what we're doing and we don't understand the breadth and depth of the likely repercussions.
"an increase in the intensity of a conflict as a whole.” Escalation is important . . . because when conflict escalates it “is intensified in ways that are sometimes exceedingly difficult to undo.” One reason why escalated conflicts are so hard to undo is that when more aggressive tactics are used by one side they are often mirrored by the other side, producing a vicious cycle.
Email, Friedman argues, unnecessarily, and often drastically, escalates conflict in ways none of us fully appreciate. Unlike conversation -- in person or by telephone -- we are not
physically present with others, can’t see their faces or hear their voices, and can’t give or get immediate responses. The lack of contextual clues . . . impose high “understanding costs” on participants in e-mail interactions, making it harder to successfully ground the interaction. . . . /* [T]the inability to carefully time actions and reactions . . . makes communication less precise.
E-mail Not Only Lacks Social Clues, it is "Profoundly A-Social."
Sitting in my Toronto hotel room at 3 a.m., reviewing online documents for tomorrow's deposition and now "penning" an email to my errant associate, I am, argues Friedman, not simply making communication more difficult, I have become "profoundly asocial" as my associate will also likely be when he reviews my email the following day. "E-mails," writes Friedman,
are typically received and written while the writer is in isolation, staring at a computer screen – perhaps for hours at a time, so that awareness of the humanness of the counterpart may be diminished.
As evidence, Friedman cites research in which subjects played the "prisoner's dilemma" game against a computer. Not only did the gamers act asocially in this context, "many continued to act asocially even when told that they were now playing with people (through the computer)."
E-mail, Friedman concludes, "often occurs in a context devoid of awareness of human sensibilities."
The Precise Difficulties Caused by E-Mail Communications?
Use of aggressive tactics. If e-mail communication encourages the use of more aggressive tactics during a dispute, or makes a counterpart’s tactics appear more aggressive, then escalation will be triggered.
Changes in view of other. Escalation is more likely if e-mail causes negative changes in psychological processes (e.g., perceptions and attitudes) towards the other, such as (1) seeing the other as unfair, (2) lessening empathy toward them, (3) increasing deindividuation and anonymity, or (4) or seeing the other as immoral.
Weakened interpersonal bonds. If e-mail weakens social bonds with the other, then escalation is more likely (e.g., due to reduced inhibitions for aggression).
Problems are difficult to resolve. If the communication limitations of e-mail (e.g., asynchrony deficits) make problems more difficult to solve, conflict may be escalated as frustrated disputants move from mild to more aggressive strategies to achieve their goals.
As a result, says Friedman, there are "higher rates of escalation when disputes are managed via e-mail than via face-to-face communication or other relatively rich media . . . such as telephone conversations." /**
Back in Los Angeles the Following Day
You knew this story was not going to have a happy ending. What a cranky, tired, stressed partner types into her computer at 3 a.m. and what a fully awake associate reads with his morning coffee the following day are, as Friedman stresses, two quite different things. And though I've rarely had a face-to-face disagreement with a colleague that cannot be mended by further communication, apologies, explanations and the like, this particular communication caused a rift that I was unable to heal.
This experience from several years ago, coupled with my recent mediation experiences, makes me want to advise, exhort, plead, beseech, entreat and pray that you commence every litigation with a telephone call rather than a "demand" letter or email. And that you continue to communicate with opposing counsel by telephone or, even more radically, in person over a meal, throughout the litigation to make sure channels of communication are as open and clear as possible.
The difficulties saved will not only benefit your personal life (reduce stress, increase fellow-feeling and the like) but will benefit your client as well -- in case efficiencies and better settlements all around.
*/ "Grounding" is the process
by which two parties in an interaction achieve a shared sense of understanding about a communication and a shared sense of participation in the conversation. Grounding is important because “speech is evanescent...so Alan must try to speak only when he thinks Barbara is attending to, hearing, and trying to understand what he is saying, and she must guide him by giving evidence that she is doing just this."
** / There's much more to be learned from this article, but these highlights should tell you whether further reading is in your interest or worth your time.
For those who live under fascism, oppression, or tyranny, or face a fierce, unprincipled adversary, or are afraid even to exercise their own freedom, it may become necessary to engage in conflict, resist oppression, reject settlement, and raise their voices against the silence of acquiescence . . . . [T]here are limits to the desirability of ending [certain conflicts] prematurely, without a fair and honest examination of the underlying issues, and without the full participation of people whose lives will be irrevocably damaged by them . . . Collaboration implies mutuality and partnership, and even compromise involves give and take, but fascism merely [takes] giving nothing in return.
There comes a time when the operation of the machine becomes so odious, makes you so sick at heart, that you can't take part, you can't even passively take part, and you've got to put your bodies upon the gears and upon the wheels, upon all the apparatus, and you've got to make it stop. And you've got to indicate to the people who run it, the people who own it, that unless you're free the machine will be prevented from working at all.
One might criticize this rhetoric as being a bit overblown for the context in which the students were operating but they were young; had been taught in public schools to believe in and cherish freedom; and, were stunned to find that their on-campus speech was regulated, controlled, and, punished. Savio's voice is the voice of all peoples who find their freedom suppressed or denied altogether.
So what do we, mediators and interest-based negotiators, do when confronted with tyranny? Cloke's partial response (see full article here) is as follows:
Genuine, lasting peace is impossible in the absence of justice. Where injustice prevails, peace becomes merely a way of masking and compounding prior crimes, impeding necessary changes, and rationalizing injustices. As the Trappist monk Thomas Merton presciently observed:
To some men peace merely means the liberty to exploit other people without fear of retaliation or interference. To others peace means the freedom to rob others without interruption. To still others it means the leisure to devour the goods of the earth without being compelled to interrupt their pleasures to feed those whom their greed is starving. And to practically everybody peace simply means the absence of any physical violence that might cast a shadow over lives devoted to the satisfaction of their animal appetites for comfort and leisure.... [T]heir idea of peace was only another form of war.
When millions lack the essentials of life, peace becomes a sanction for continued suffering, and compromise a front for capitulation, passivity, and acceptance of injustice. This led anthropologist Laura Nader to criticize mediation for its willingness to “trade justice for harmony.”
True peace requires justice and a dedication to satisfying basic human needs, otherwise it is merely the self-interest of the satisfied, the ruling clique, the oppressors, the victors in search of further spoils.
For peace to be achieved in the Middle East or elsewhere, it is essential that we neither trivialize conflict nor become stuck in the language of good and evil, but work collaboratively and compassionately to redress the underlying injustices and pain each side caused the other. Ultimately, this means sharing power and resources, advantages and disadvantages, successes and failures, and satisfying everyone’s legitimate interests. It means collaborating and making decisions together. It means giving up being right and assuming others are wrong. It means taking the time to work through our differences, and making our opponents' interests our own.
In helping to make these shifts and move from Apartheid to integration, the South African Truth and Reconciliation Commission found that for people to reach forgiveness, they needed to exchange personal stories of anger, fear, pain, jealousy, guilt, grief, and shame; to empathize, recognize, and acknowledge each other’s interests; to engage in open, honest dialogue; to reorient themselves to the future; to participate in rituals of collective grief that released their pain and loss; and to mourn those who died because neither side had the wisdom or courage to apologize for their assumptions of evil, or the evil they caused their opponents and themselves.
At the same time, they also needed to improve the daily lives of those who suffered and were treated unjustly under apartheid. Where shanty towns coexist with country clubs, peace cannot be lasting or secure. Where some go hungry while others are well-fed, terror and violence are nourished. In the end, it comes down to a question of sharing wealth and power, realizing that we are all one family, and that an injury to one is genuinely an injury to all.
Making justice an integral part of conflict resolution and the search for peaceful solutions means not merely settling conflicts, but resolving, transforming, and transcending them by turning them into levers of social dialogue and learning, catalysts of community and collaboration, and commitments to political, economic, and social change. By failing to take these additional remedial steps, we make justice secondary to peace, undermine both, guarantee the continuation of our conflicts, and prepare the way for more to come.
By the way, tomorrow is Ken's birthday. HAPPY BIRTHDAY KEN!!!
Because I've been talking to a lot of people with services or products to sell in what they perceive to be a buyer's market, I've been giving a fair amount of advice about negotiating from a position of weakness. That being the case, I'm just jotting down a few random thoughts on the matter. None of the items below are meant to be exhaustive.
assess everything you have of value to exchange with your negotiation partner
assess everything your negotiation partner has of value to exchange with you
assess everything you need or desire (minimum requirements to maximum benefit)
assess everything your bargaining partner likely needs or desires
ASK DIAGNOSTIC QUESTIONS OF YOUR BARGAINING PARTNER
what are their objectives
how does your deal fit into those objectives
what are their priorities
when do they need to have the deal done
are there any third parties who might add value to the deal
what predictions about the future are they relying upon in setting their goals and priorities (business will go up/down; economy will improve/worsen)
what metrics are they using to place a value on what you both have to trade
CREATE AND CLAIM AS MUCH VALUE AS POSSIBLE
if the value you give to the deal is worth more in the hands of your bargaining partner than in your own hands, use the deal value rather than the trade value as the metric to measure the benefit you are providing
when trading items of low value to you but higher value to your negotiation partner, use the higher value to anchor your offer
when you are more optimistic about the post-deal future than your bargaining partner, consider building contingencies into the contract, i.e., if sales increase (as you expect them to) the value of the deal for you increases; if sales decrease (as your bargaining partner expects them to) offer to build contingency into the contract that will increase the value of the deal to your bargaining partner
NAME CONCESSIONS AND DEMAND RECIPROCITY
when you make a concession, your bargaining partner should naturally feel the pull to reciprocate
don't rely on your bargaining partner's natural tendencies
when you make a concession, explain how valuable it is to your bargaining partner and how difficult it is to give up for you
tell your bargaining partner that you expect proportional concessions from them
CONSIDER WHETHER YOUR WEAKNESSES MIGHT BE CHARACTERIZED AS STRENGTHS
If you're the smaller player, you may be in a better position to make novel offers; and you may also be more nimble, less burdened by bureaucratic red tape, and, better able to take risks. You may also:
pose a threat to a larger player, something your "deal" could lessen or eliminate
present an opportunity to a larger player that it may wish to take advantage of while you are still small
O.K., times are tough. And it takes no small amount of courage to face the financial disaster that credit cards can cause to even those who feel themselves to be the most sober of financial citizens. Then it takes real courage to pick up a telephone and make a request to a disembodied and not-likely-friendly voice to ask for help bailing you out of a mess you can barely believe you find yourself in.
I have three things to say about this. First. The country's supposed financial geniuses are unable to pay their debts and are facing bankruptcy. You are not alone. Second. There's nothing to be ashamed of, though there is something to be learned from this painful experience. I know. I was there during the recession of the early '90s. Third. You are not without remedy. Take a look at "How to Negotiate with Your Creditors" at Entrepreneur Magazine this week.
Tips to help you negotiate with a creditor or collection agency:
If you make a request that is denied for whatever reason, ask to speak with a supervisor.
Don’t agree to pay more than you can afford when negotiating. Know in advance what your financial situation really is, then work within those confines. The last thing you want to do is negotiate a settlement or payment plan that you can’t adhere to.
During your negotiating process, figure out what the creditor is willing to accept as a settlement. What’s their absolute bottom line? If you’re looking for a settlement, offering between 50 and 70 percent of what’s owed, either as a lump sum payment or through a payment plan, isn’t unreasonable. Achieving this settlement might take several rounds of negotiation, however.
Avoid becoming intimidated by the person you’re negotiating with, even if they make threats about lawsuits.
Most successful negotiations require several rounds going back and forth with offers and counter offers. The process could take days or weeks.
If you can afford to settle an account by paying one lump sum (as opposed to using a payment plan), you’ll have more negotiating leverage.
The person you’re negotiating with does this for a living and is a trained professional when it comes to debt collections. For them to use legal terminology during a conversation or in writing is a common tactic to confuse or intimidate you. Listen carefully to what’s being said and make sure you understand exactly what you’re committing to. Consult with a lawyer or credit counselor if you have questions.
Make sure everything you ultimately agree to is put in writing, signed, and dated by both parties.
What to Negotiate for When Dealing with Creditors, Lenders, or Collection Agencies
a lower interest rate
the interest accrued to be waived
the late fees, penalties, and/or legal fees to be waived
the loan to be extended or restructured, allowing you to skip one or more payments with no penalty
a payment plan that would allow you to pay off the amount currently owed, but with no added interest or fees added in the future
a settlement that would include a significantly lower balance due (such as 50 to 75 percent of the total)
favorable reporting to the credit reporting agencies or the removal of negative information from your credit report pertaining that to that account
Although I am indisputably a "woman lawyer," I have never thought of myself in those terms. I'm a lawyer. And I'm a woman. I'm also a writer, a step-mother, a wife, a daughter, a river rafter, and an aficionado of squash (the game, not the vegetable), photography, literature, and theater. Oh yes. I'm also Caucasian. I rarely have to think of myself in those terms, however, because the society in which I live doesn't require it of me. I'm aware of my skin color only when I'm with my African-American friends or in a racially mixed workplace (shamefully rare in modern American private legal and ADR practice).
I was forced to become more conscious of my gender when I became a commercial mediator and arbitrator five years ago because I am once again a "minority" -- something I hadn't been in legal practice since the early 1980's. Naturally, I began to research differences in negotiation styles between men and women. What I learned wasn't surprising, but it is empowering. Although we do negotiate differently, if we learn to move more easily back and forth across gender lines, we can all become better negotiators.
Although negotiation has always been an important workplace skill, it has long been thought to be the province of men: a competitive realm in which men excelled and women felt less capable.
I have lived the change in gender roles since I graduated from high school in 1970. 1970 was a year in which the newspaper's classified ads (yesterday's "Craig's List") were "Help Wanted: Women" and "Help Wanted: Men"; and a year in which I took my high school's career preference test on the literally pink form which limited my choices to occupations like nurse (if I was good at math and science); teacher or social worker (if I was good at the liberal arts); and secretary (if I knew the QWRTY keyboard). The cultural expectations of women, however, persist.
"...our society still perpetuates rigid gender based standards for behavior-standards that require women to behave modestly and unselfishly and to avoid promoting their own self-interest" (Babcock, 2003). As women learn quite early in life "that competing and winning against a man can threaten his socially defined masculinity" and is socially seen as taboo. From the beginning of a woman's life, they are taught by society "that women are thought to be warm, expressive, nurturing, emotional, and friendly" (Babcock, 2003). When growing up girls are cuddled; baby girls are also 'thrown around' less and thought of as fragile. If everyone goes through their life with this mentality in mind, it is hard for women to break away from this stereotype and still be taken seriously and not as overbearing or overly competitive which can harm women in negotiation.
Here's the good negotiation news for women's acculturation.
"Women are more likely to use methods" (Babcock, 2003) in their negotiation, to follow a set of rules or steps to get to a final outcome."
"They take a broad or 'collective' perspective, and they view elements in a task as interconnected and interdependent" (Conner, 1999).
Women have the ability to see the big picture and come up with a systematic plan on how to solve it.
They feel more comfortable through communication and work through each step by sharing experiences while figuring out what both sides can gain to achieve an integrated outcome.
"Woman are usually more concerned about how problems are solved than merely solving the problem itself" (Conner, 1999) which is good in negotiation because of all of the small details to keep in mind when making negotiations.
Instead of concentrating on what they want or need to get out of the negotiation women focus on what both sides need and how both parties can get what they want.
While these general tendencies of women (understanding that we all operate on a sliding scale of "femaleness" and "maleness") were previously believed to be negotiation deficits, they are now perceived as negotiation assets.
The focus of negotiation recently has shifted to be a more win-win rather than a win-lose (Babcock, 2003), which is why women are tending to exceed more in today's negotiations. "Women take a more cooperative approach to negotiating" (Babcock, 2003) they are willing to work with the other person and are able to see both sides so both can get what they want. In a negotiation, women tend to ask more questions and do more talking one on one, however, "women discuss what is directly related to what each side wants introducing information into negotiations helps expand the understanding of the goals on both sides" (Babcock, 2003). This is good to build a relationship before the big negotiation start.
But let's not get all gender wars about this. Let's instead focus on male negotiation advantages that can be adopted by women and female negotiation advantages that can be adopted by men. The male advantages? (once again remembering that we are dealing with social and cultural stereotypes)
men . . . believ[e] that they have a bargaining advantage [which naturally gives it to them]"
they also believe that they are entitled to more rewards and compensation [which makes them seek better results for themselves than women might]
[men] have this greater sense of pride and self-importance so they don't believe that they should be the ones who have to back down from something that they want.
Men . . . ha[ve] the ability to speak up more and use more distributive tactics
They want to have their questions answered and find out the information that they believe they are entitled to know.
Men also want to make sure that people know what their ideas are and try and get as many people as possible to agree with them.
[M]en make more remarks as . . . suggest[ions] that they are entitled to more than others and asserti[ons] [of] their own worth; . . . thinking that people should hear them out
Men are also seen as stronger more aggressive speakers than women.
Some people become intimidated when a male speaker starts "pushing their weight around" during a negotiation.
men are seeking more power and in turn believe that they deserve more power.
In some cases, men can seem to know more than women just because they can make whatever they say seem like the ultimate truth with everyone else being wrong.
How men and women can collaborate to maximize the value of these differing negotiation styles tomorrow.
With so much emphasis placed on Getting to Yes, we often forget the power - indeed the necessity -- of saying "no."
Think of yourself in that iconic bargaining environment, the foreign bazaar. No matter how much of a buyers' market you're in, at some point, the seller must say no -- otherwise you'd just bargain him down to zero, or perhaps negotiate a deal in which he pays you to take the merchandise off his hands. Fortunately for negotiators everyone, the Getting to Yes guy -- William Ury -- has also written an entire book on The Power of a Positive No. As Time Magazine wrote at the time of "No's" release,
In The Power of a Positive No, Ury offers guidance on the flip side of reaching an agreement: how to deal with a situation in which you simply want to put your foot down. No is so often hard to say, Ury writes, because it highlights the "tension between exercising your power and tending to your relationship"--in other words, between getting what you want in the short term and keeping everyone happy for interactions down the road. People often err in one direction or the other, prioritizing either the relationship by saying yes when they long to say no or their own power by brusquely saying no and alienating the person they're dealing with. Then there is the ever popular route of avoidance--saying nothing at all and gaining neither what you want nor goodwill.
Assume, for instance, that you're selling software and your customer wants a broad indemnity agreement that amounts to a virtual insurance policy. You know the type. "I want to be indemnified for all litigation arising from my company's use of your software. It's non-negotiable. We'll pull out of the deal if you don't provide it to us."
Before saying "no, no, no" or feeling the need to temporize or mumble something unintelligible, determine whether your customer's demand is primarily being driven by need, desire, or fear. Here, the underlying interest is perceived need based upon fear of potential liability. Rest assured that your customer is not worried about everything. There's some particular danger lurking in the back of his mine or in the contemplation of the manager to whom he's reporting.
The diagnostic question is simple: "what type of potential liabilities are you worried about?" When your customer answers your question, the "yeses" your "no" can be sandwiched between are legion.
"We're always happy to craft an indemnity agreement that covers potential liabilities arising from, i.e., defects in the software that cause the type of harm you're worried about. In fact, because infallible software has yet to be developed, we like to offer our customers a suite of services to quickly remedy any "defects" to prevent the liabilities you're concerned with. And now that we're talking about it, let's define "defects" so that it fully expresses both of our understandings going forward.
The key is to slow yourself down during the negotiation so that you have time to reframe your "no" as an opportunity for both parties to get more of what they really want than they fear they need.
As a former pastor of mine once told me, "God never says 'no' to a prayer. S/he says 'yes,' 'later' or 'I have something better in store for you.' Approach the material world in the same manner as he does and not only your opportunities, but your heart, will grow in the practice.
My statistics page tells me that lawyers are not the only people searching for information about likely outcomes at trial. The clients land here too. For their benefit, here's a report from the Accident and Injury Lawyer Blog, penned last Spring but likely to reflect current trends as well.
California Personal Injury Verdicts
California personal injury plaintiffs are among the best compensated injury victims in the country but that California juries need convincing that the defendant is liable. California’s median compensatory award in personal injury cases is 149,000, dwarfing the national median of $34,550. But California juries only award damages in 44 percent of personal injury case that go to verdict. Nationally, plaintiffs prevail in 52% of personal injury cases.
These California personal injury verdict numbers, not median or average settlements in personal injury cases. But settlement values largely reflect the median verdicts.
I don't know if anyone has yet studied the effect of the economic downturn on juries' willingness to compensate injured plaintiffs (Anne Reed?) I'd suspect that actions against insurance carriers - particularly health insurance carriers - would "sell" to jurors and stimulate their empathy given everyone's fear of losing their jobs and the insurance that often goes along with employment.
I wonder, however, if today's jurors might not turn a cold eye on anyone they believe to be "gaming" the system or seeking compensation for injuries that they too are suffering but about which suffering they have no one individual or entity to "name, claim and blame."
I'd be interested in hearing from my litigation colleagues about the current atmosphere in jury deliberation rooms. The best jury blog, hands down, by the way, is attorney and jury consultant Anne Reed's Deliberations.
I spent the day at an advanced mediation training session at the U.S. District Court in Los Angeles where I serve as a settlement officer. I came away troubled by the wide array of responses to questions concerning the mediator's "right" or "desire" or "need" to use deception in separate caucus mediation - the primary form mediation takes in Southern California litigated cases.
[C]onsensual deception is the essence of caucused mediation. This statement should not come as a shock to the reader when it is considered in the context of the nature and purpose of caucusing. Actually, it is quite rare that caucused mediation, a type of informational game, occurs without the use of deception by the parties, by their lawyers, and/or by the mediator in some form. This is so for several reasons.
First, a basic groundrule of the information system operating in any mediated case in which there is caucusing is that confidential information conveyed to the mediator by any party cannot be disclosed by the mediator to anyone (with narrowly limited exceptions). This means that: (1) each party in mediation rarely, if ever, knows whether another party has disclosed confidential information to the mediator; and (2) if confidential information has been disclosed, the nondisclosing party never knows the specific content of that confidential information and whether and/or to what extent that confidential information has colored or otherwise affected communications coming to the nondisclosing party from the mediator. In this respect, each party in a mediation is an actual or potential victim of constant deception regarding confidential information — granted, agreed deception — but nonetheless deception. This is the central paradox of the caucused mediation process. The parties, and indeed even the mediator, agree to be deceived as a condition of participating in it in order to find a solution that the parties will find "valid" for their purposes.
Second, mediation rarely occurs absent deception because the parties (and their counsel) are normally engaged in the strategies and tactics of competitive bargaining during all or part of the mediation conference, and the goal of each party is to get the best deal for himself or herself.
These competitive bargaining strategies and tactics are layered and interlaced with the mediator’s own strategies and tactics to get the best resolution possible for the parties — or at least a resolution that they can accept. The confluence of these, initially anyway, unaligned strategies, tactics, and goals creates an environment rich in gamesmanship and intrigue, naturally conducive to the use of deceptive behaviors by the parties and their counsel, and yes, even by mediators. Actually, even more so by mediators because they are the conductors — the orchestrators — of an information system specially designed for each dispute, a system with ambiguously defined or, in some situations, undefined disclosure rules in which the mediator is the Chief Information Officer who has near-absolute control over what nonconfidential information, critical or otherwise, is developed, what is withheld, what is disclosed, and when it is disclosed. As mediation pioneer Christopher Moore has noted: "The ability to control, manipulate, suppress, or enhance data, or to initiate entirely new information, gives the mediator an inordinate level of influence over the parties."
Third, the information system manipulated by the mediator in any dispute context is itself imperfect. Parties, rarely, if ever, share with the mediator all the information relevant, or even necessary, to the achievement of the mediator’s goal — an agreed resolution of conflict. The parties’ deceptive behavior in this regard — jointly understood by the parties and the mediator in any mediation to fall within the agreed "rules of the game" — sometimes causes mediations to fail or prevents optimal solutions from being achieved.
Thus, if agreed deception is a central ingredient in caucused mediation, the question then becomes what types of deception should be considered constructive, within the rules of the mediation game, and ethically acceptable and what types should be considered destructive, beyond the bounds of fair play, and ethically unacceptable. Or, perhaps more simply, in the words of mediator Robert Benjamin, in mediation what are the characteristics of the "noble lie" — deception "designed to shift and reconfigure the thinking of disputing parties, especially in the conflict and confusion, and to foster and further their cooperation, tolerance, and survival"? Because formal mediation is generally viewed as "nothing more than a three-party or multiple-party negotiation," we can begin to formulate an answer to this question by examining the current limits of acceptable deception as employed by lawyer-negotiators.
Mediators can assist parties in reaching a zone of possible agreement by making limited and heavily filtered disclosures of the parties’ private concessions that the parties disclose in caucus sessions (Brown and Ayres call this “noisy” communication).
I urge all my readers to comment, but particularly litigators like my husband who may not know what many mediators have apparently known for quite some time -- that they are making "filtered disclosures of the parties' private concessions" after promising to keep all separate caucus communications strictly confidential.
My husband assured me on the way home tonight that he will henceforth require all of the mediators he retains to guarantee him that they will not "signal" his negotiating positions, tactics or strategies to his bargaining partners.
Although a California Court may properly sanction a non-party insurance carrier who possesses the authority to settle litigation for its failure to participate in a mandatory settlement conference, there is no statutory (nor inherent) authority given the Court to sanction the carrier or a party for its purported failure to negotiate in "good faith." As the Court in Vidrio v. Hernandez(2d DCA) explained today:
In sum, even were we to agree with the trial court's assessment of the conduct of counsel and the [insurance] adjuster, the failure to increase a settlement offer or to otherwise participate meaningfully in settlement negotiations violates no rule of court and is not a proper basis for an award of sanctions.11 (See, e.g., Triplett v. Farmers Ins. Exchange (1994) 24 Cal.App.4th 1415, 1424 [“[w]e eschew any notion that a court may effectively force an unwilling party to settle by raising the specter of a post hoc determination that failure to do so will be evidence of failure to participate in good faith”]; Sigala v. Anaheim City School Dist., supra, 15 Cal.App.4th at p. 669 [“„[a] court may not compel a litigant to settle a case, but it may direct him to engage personally in settlement negotiations, provided the conditions for such negotiations are otherwise reasonable‟”].) [Defendant] filed an appropriate settlement conference statement; her lawyer and Mercury [the insurance carrier] attended the conference and participated in it. While the trial court‟s frustration at the parties‟ lack of movement is understandable, no more was required.
In particular, the Court of Appeal, held that the Court was not at liberty to "judge" whether the defendant and its carrier "should have" offered more than had previously been offered at a mediation either because the case was "worth" more or because the offer was so low in light of the attorneys fees and costs that would likely be incurred at trial.
I believe most mediators would approve of this ruling, even though it applies only to settlement conferences and not to mediations, the latter of which is protected from the Court's inquiry by Evidence Code section 1119. Whether or not a mediator, a settlement judge, a party or a trial judge believes a defendant "should" offer more or a plaintiff "should" accept less by way of settlement, should not form the basis of an award of sanctions. Not only would such a rule decrease citizens' trust and respect for the Courts, whose job it presumably is toprovide a forum in which litigated disputes may be tried, such a rule would impermissibly chill the parties' Constitutional right to a jury trial.
Tomorrow, I'll be talking live on internet radio with PWNSC member and force of nature Lynette Jones who has only recently returned from a tour of duty in Iraq. Lynette and I had so much fun planning this internet radio-cast that I'm certain you'll enjoy our talk.
And if you need more reason to tune in, here are the dreary statistics on women and negotiation from Babcock and Laschever's book Women Don't Ask.
It's Necessary for Women to Negotiate Now More Than Ever Before
Between May 2001 and May 2002, 39 percent of the American workforce changed jobs.
In 2000, 76.8 percent of women aged 25 to 54 worked outside the home.
The divorce rate hovers at 50 percent.
Union membership is down 33 percent since 1983.
Women's earnings relative to men's have stagnated at 73.2 percent.
The percentage of births to single mothers (out of all mothers) has risen from 10 percent in 1970 to 33 percent today.
Women Don't Like to Negotiate
In surveys, 2.5 times more women than men said they feel "a great deal of apprehension" about negotiating.
Men initiate negotiations about four times as often as women.
When asked to pick metaphors for the process of negotiating, men picked "winning a ballgame" and a "wrestling match," while women picked "going to the dentist."
Women will pay as much as $1,353 to avoid negotiating the price of a car, which may help explain why 63 percent of Saturn car buyers are women.
Women are more pessimistic about the how much is available when they do negotiate and so they typically ask for and get less when they do negotiate—on average, 30 percent less than men.
20 percent of adult women (22 million people) say they never negotiate at all, even though they often recognize negotiation as appropriate and even necessary.
Women Suffer When They Don't Negotiate
By not negotiating a first salary, an individual stands to lose more than $500,000 by age 60—and men are more than four times as likely as women to negotiate a first salary.
In one study, eight times as many men as women graduating with master's degrees from Carnegie Mellon negotiated their salaries. The men who negotiated were able to increase their starting salaries by an average of 7.4 percent, or about $4,000. In the same study, men's starting salaries were about $4,000 higher than the women's on average, suggesting that the gender gap between men and women might have been closed if more of the women had negotiated their starting salaries.
Another study calculated that women who consistently negotiate their salary increases earn at least $1 million more during their careers than women who don't.
In 2001 in the U.S. women held only 2.5 percent of the top jobs at American companies and only 10.9 percent of the board of directors' seats at Fortune 1000 companies.
Women own about 40 percent of all businesses in the U.S. but receive only 2.3 percent of the available equity capital needed for growth. Male-owned companies receive the other 97.7. percent.
Women Have Lower Expectations and Lack Knowledge of their Worth
Many women are so grateful to be offered a job that they accept what they are offered and don't negotiate their salaries.
Women often don't know the market value of their work: Women report salary expectations between 3 and 32 percent lower than those of men for the same jobs; men expect to earn 13 percent more than women during their first year of full-time work and 32 percent more at their career peaks.
As every lawyer knows and most students of high school geometry must learn in mastering "proofs," the answer often comes first, the rationale later. I used to say, "I'm a litigator, I can rationalize anything." As a mediator, my rationalizations have turned from the way in which facts can be shoe-horned into causes of action or affirmative defenses to the way in which harm arising from a dispute (including, most assuredly, the moral harm of injustice) can be monetized.
Now David Brooks in the New York Times (which appears to have disabled the "copy" function/1) tells us that philosophy has been sacrificed on the alter of emotion in his column The End of Philosophy.
As Brooks explains, reasoning comes after moral judgment and "is often guided by the emotions that preceded it." The good news is that those emotions are not merely competitive. Brooks again:
Like bees, humans have long lived or died based on their ability to divide labor, help each other, and stand together in the face of common threats. Many of our moral emotions and intuitions reflect that history. We don't just care about our individual rights, or even the rights of other individuals. We also care about loyalty, respect, traditions, religions. We are all the descendents of successful cooperators.
My mediation experience teaches me that the "soft" arts of influence, empathy, community-building, and prejudice reduction, are as important (and often more important) to the successful (i.e., satisfying) resolution of a lawsuit than our prized ability to parse the evidence, rationalize away the bad and privilege the good to sell our "proof" to judge or jury.
Most importantly, I find that when attorneys' clients leave a mediation with the belief that a certain rough justice has been obtained, they are more satisfied with the outcome, and with their attorneys' representation of their interests, than they might have been had they left with 10% more change jingling in their pockets.
The experts who study mediation tell us that "neutrals" don't make the difference between settling or not settling. The cases will settle with or without us. The difference mediators make is not settlement, but client satisfaction. Satisfied clients are an absolute necessity for a successful legal practice at any time. In these hard times, legal practices may fail in the absence of resolutions addressing the justice issues your client sought out a lawyer to resolve in the first place.
Money is the instrument. But justice is the issue.
You'll see from my lengthy comment there that Arnie is singing my song about the law and emotion and in particular, the fact that we cannot make decisions without emotion something every trial lawyer, negotiator, mediator and sales person knows down to the knuckles of their spine. Excerpt from Legal Sanity below.
Here are two facts:
There’s a client service deficit in the law.
Lawyers tend to regard emotions – their own and other people’s – as irrelevant to their work.
At first glance, these two facts seem unrelated. But they’re actually closely (even intimately) connected.
Some time back, I posted on the interplay of emotions and client service in this new era of customer control. I linked to a ClickZ article citing a (then) new book by Dan Hill called Emotionomics: Winning Hearts and Minds. Launching from the premise that humans are primarily emotional decision-makers, the book discusses how emotions factor into our business opportunities in the marketplace and workplace.
Picking up on this point from a slightly different angle, in a recent post, designer and marketing mentor Peleg Top says, Go ahead, get emotional. Top notes that, in marketing (and, I’d add, in providing) our services, “an effective way to generate action is to tell a compelling story, one that hits your customer’s emotions.” Suggesting that most service providers miss this mark, he observes . . .
Discouraged by the adversarial process? Looking for lawyers who will handle your commercial dispute without going to "war" with all the expense and collateral damage that involves?
This excellent talk by Webb has been viewed 202 times, while "Drunk Lawyer" below has been viewed by nearly 300,000 people. It's not surprising that drunken trial lawyers are far more entertaining than some old guy talking about attorneys bringing potluck to negotiate the resolution of a lawsuit.
The question is this: Do you want to pay for the entertainment of conflict or resolve it and move on with your plans to create a profitable future for your company and its employees.
"Drunk Lawyer" is, after all, free on YouTube!
Thanks to Cutting Edge Law for gathering together the Stu Webb and other videos on the revolution in legal practice that's being fomented right around the corner -- just about the time the BigLaw model fails along with dinosaurs like General Motors.
You didn't hear it here first. But you will hear it here often.
This is the fourth video of this painful encounter on YouTube but it's the one in which the attorney is asked to "blow" a breathalyzer for the Court.
As a mediator, the question I hear most frequently from lawyers is "How do I convince my opponent to sit down and negotiate without losing my competitive advantage?"
Believe it or not, the answer is transparency.
If you can remember way back to last July, when firms like Microsoft and Yahoo were still engaging in business as usual, you might recall that a merger fell apart because Yahoo was acting "weird." At least that's what Microsoft's chief executive, Steve Ballmer, told the Wall Street Journal.
"We had an offer out that was a 100 percent premium on the operating business of the company and there wasn't a serious price negotiation ... until three months later. It was a little ... weird."
Lawyers know that three months rushes by in the blink of an eye. The board of directors meets. It seeks an analysis from the mergers and acquisitions people, who consult with outside counsel's antitrust department, which renders a decision but whose members first have to chat with the tax guys. Then there are the IP people with whom to discuss license agreements and, of course, the managers in the human resources department, who may or may not have advice about executive parachutes - platinum, golden or brass.
And yet the Yahoo-Microsoft merger fell apart because Microsoft felt that Yahoo's delay was "weird."
Let's go back to what every trial lawyer knows. In the absence of information, people make stuff up. Weird stuff.
And the stories we tell ourselves about our uncommunicative commercial partners do not include one where the other guy is laboring day and night to fulfill our fondest desires. No. In the absence of information, we weave elaborate conspiracy theories in which our opponents are scheming to fleece us of our rights, obstruct our prospective economic advantage and turn our world upside down.
Your dentist can tell you what your opponent wants to be told. A fully illustrated pre-game outline of the upcoming procedure that goes something like this "First I'll put a little numbing cream on your gum. That way the shot of Novocain won't hurt too much. Then I'll drill," she'd say, holding the fearful appliance up and switching it on. "It may sound louder in your mouth than it does here in my hand, but I'll only have it on for about five minutes, after which ... etc., etc."
So how do you get your opponent to the bargaining table without sounding weak?
You say "Listen, Ted, I know both our clients believe their cases are as good as gold but after an initial round of discovery, it's my practice to call a timeout to discuss settlement."
"How does that sound to you?"
Ted says it sounds all right. Which it does. Because Ted's got three incredibly acrimonious cases in his practice right now. Last year, one of his adversaries served an ex parte application with three bankers boxes of exhibits the day before Christmas. At 4:59 p.m. And she scheduled the hearing for hearing on the day after Christmas. Sure, the judge would deny it, but Ted couldn't assume anything. He worked 15 hours on Christmas Day.
So it sounds good to Ted.
More important to your own litigation plan, your opponent has just agreed to come to the bargaining table, even though the actual meeting won't be held for several months. When the appointed hour arrives, you will not have to ask for a settlement conference at a time when it might show weakness on your part. It's part of the plan.
Challenges to good faith settlements that cut off the rights of non-settling defendants to seek indemnification and contribution from settling defendants are nearly always doomed to failure. Trial courts are understandably eager to clear their dockets and there's no docket-clean-up pitcher like the first defendant to settle. Deny the motion and bring a settled defendant and his trial-ready resources back in to the litigation when the first defendant-domino has just successfully toppled over? Not likely, my friend. Not in the trial court at any rate.
These motions are so difficult to oppose that I've seen a target defendant threaten a marginal player (my client) with sanctions just for challenging the target's very low six-figure settlement in an eight-figure antitrust action.
Best quotation: "The hospital contends that the physicians‟ $200,000 settlement -- representing 2 percent of plaintiffs‟ $10 million damages estimate -- was so far out of the “ballpark” it was not even in the parking lot." With a first runner-up to "If section 877.6 is to serve the ends of justice, it must prevent a party from purchasing protection from its indemnification obligation at bargain-basement prices."
The Court of Appeal relied upon the following "facts" in finding that the trial court abused its considerable discretion in granting a good faith motion to defendant physicians in light of defendant hospital's opposition.
payment of $200,000 in settlement for a $10 million claim, which the appellate court found to be "wholly disproportionate." As the Court opined "[e]ven a slight probability of liability on [the settling doctor's] part would warrant a contribution more significant than 2 percent."
the "evidence" supporting the court's finding that the settling physician's probable fault was "not de minimis," which appears to have been based upon Plaintiff's attorney's fault analysis (not generally known for its unbiased nature) and the physicians' counsel's candid (?) suggestion that his clients' contribution to a global settlement might be in the range of $1.5 million;
the availability of $2 million in coverage, which "militated against a good faith determination" because the settlement constituted only 10% of available policy limits [carrier alert here!];
the non-settling Hospital's contention that the physicians and their attorneys engaged in "bad faith tactics" during two mediation sessions -- a factor the appellate court acknowledged it was barred by mediation confidentiality from considering -- but which it neatly avoided by concentrating on post-mediation negotiations; /*
the timing of the physicians' settlement offer, which suggested to the appellate court that their "reason for entering into the settlement with plaintiffs was to cut off the hospital's . . . right to indemnity from the physicians" (I thought that was a legitimate reason to settle litigation but see the Court's citation to Mattco Forge, stating that when a defendant “enters into a disproportionately low settlement with the plaintiff solely to obtain immunity from the cross-complaint, the inference that the settlement was not made in good faith is difficult to avoid.” Mattco, supra (emphasis added); and,
a consideration I've never seen defeat a good faith motion before - that a settlment "dictated by the tactical advantage of removing a deep-pocket defendant . . . is not made in 'good faith' consideration of the relevant liability of all parties. . . ." (leading to the question whether we're now required to consider the interests of clients other than our own in entering into a settlement agreement on a contested claim)
If this case isn't depublished (an unfortunate California practice) or taken up for review, it will bear re-reading and deeper thinking about the stategy and tactics of breaking away from the mob to cut a separate deal beneficial to one's own client without "consider[ing] . . the relevant liability of all parties . . . "
*/ This is a good place to note the importance of either indicating in the parties' post-mediation written negotiations that the mediation is continuing (hence the communications remain absolutely protected) or that the mediation has concluded (hence bringing those post-mediation settlement negotiations outside the scope of the strictly enforced mediation confidentiality restrictions).
That’s a long way from my let’s-have-a-meeting-of-the-minds approach. But I’m so buried in detail that I find it useful to be reminded periodically that contracts serve a broader function than mitigating your risk or handcuffing the other guy. I received just such a reminder in the form of this blog post by Douglas R. Griess of the Denver law firm Dymond Reagor Colville.
Some people regard the contract process as an adversarial one. I encountered a great example of that recently: someone I’ve been corresponding with used the word “opponent” in referring to a lawyer representing the other side in a deal. When the other side is the enemy, you’re free to indulge in “creative ambiguity” and other shenanigans.
Diane, who writes the best mediation blog in the country preceded my entry into the blogosphere by years. She could have treated me like a competitor. Instead, she taught me how to use html code (that's how long ago in blog years we "met"); hipped me to the folkways of the blogosphere; introduced me to her best professional contacts; and, all but baked me a hot apple pie.
If it works here on the internet - collaboration instead of competition - which is where the 21st century is heading mind you -- online -- it should work equally well in all of our professional and business dealings, particularly as we struggle with the one big failing economy that will rise when one of us rises and fall again when one of us falls.
I'm bookmarking this article. I'll translate its main points from the academese to plain English this week-end along with insights on how to help your opponent make the legal decision you want him to make -- settle the case in the range of reason.
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.
The research subject of the article suggested that having a more flexible approach to resolving an acute conflict interaction results in more frustration and anger.
I'll need to see the study itself to be convinced. The study described merely suggests that people offering a greater number of solutions to a party pre-instructed to stonewall will become angrier than those offering fewer solutions, i.e., that those who persist in trying, and failing, to resolve a conflict, get more and more angry and frustrated than those who give up more easily.
This does not suggest to me that "greater negotiation flexibility" necessarily results in a greater degree of anger in the negotiation dyad, but only in the person attempting to resolve a dispute that his partner has been instructed to resist. Though an apt description of the adversarial process, this is not a fair depiction of persistent attempts to negotiate resolution where the negotiators are given a fighting chance of closing a deal.
As the article explained, study participants were told that a neighbor was playing music too loudly and instructed to ask that it be turned down.
During the interaction, the [participants] followed a script of uncooperative responses such that the task could not be resolved.
"We categorized the verbal responses of participants during the task into seven types of negotiation strategies, including problem-solving and aggressive/threatening. Individuals who used a smaller set of strategies were considered less 'flexible' than those who used a greater variety of strategies," Roubinov said.
The [researchers] . . . also looked at the intensity of participants' facial expressions of anger or frustration, and measured participants' biological response to the task using cortisol, a stress hormone.
"Our results indicated that greater flexibility may not be the healthiest approach," Roubinov said. "Unlike less-flexible participants, those who tried a greater variety of responses showed more intense facial expressions of anger and frustration. Cortisol levels in more flexible participants also reflected an unhealthier biological response to stress than the less flexible participants."
Of course persistent participants become increasingly frustrated (and angry!) when their multiple suggestions to resolve a dispute are met with stonewalling from their negotiation partner. This doesn't suggest, however, that "greater [negotiation] flexibility" is not healthy. It suggests that stonewalling leads to anger, one of the reasons that mediators are employed to help all participants in a negotiation generate potential solutions.
I'll look forward to seeing the study when it's released but based upon this article, I'd say the conclusion drawn is misleading broad and unduly pessimistic.
I've scaled my MCLE way back this year, including any continuing education that requires travel unless, of course, it's something I'm speaking at to continue growing my business. Some MCLE courses, however, stay on my radar -- particularly those that don't require me to leave the office and that teach me skills to help me thrive in hard times. This IP settlement webinar is one of those continuing education courses I'd attend unless I thought I was already the best settlement attorney I could be. So seriously consider joining me and Chicago-IP lawyer extraordinaire R. David Donoghue of Holland + Knight for Hard Times? Learn How to Negotiate the Best IP Litigation Resolution
In a difficult economy, intellectual property protection and assertion is more important than ever. The combined stressors of a poor fiscal climate and shrinking legal budgets place a significant strain on any business dependent upon IP assets. as companies face difficult economic decisions, it is increasingly difficult to fit the expense and extended uncertainty of copyright, patent and trademark litigation into a forward looking business plan. This one-hour seminar explores the use of alternative dispute resolution as a means of protecting intellectual property and business activity, while minimizing the expense and devotion of time related to traditional IP litigation.
What You Will Learn
This program examines how to move an IP dispute toward alternative dispute resolution; best practices for controlling the expense and length of the process; and best practices for successful alternative dispute resolution. Whether you are an experienced IP practitioner or simply one grappling with IP issues in your general commercial practice, knowing how to offer your clients a wide array of ADR options might make the difference between a practice that survives and one that thrives. The seminar will cover the following topics:
How to choose between litigation and ADR.
The most successful strategies for guiding your dispute into the best ADR forum at the most productive time.
The five basic rules of “distributive” or “fixed sum” bargaining that will give you the “edge” in all future settlement negotiations.
The five ways to “expand the fixed sum pie” by exploring and exploiting the client interests underlying your own and your opponents’ legal positions.
The Ten Mediation/Settlement Conference Traps for the Unwary.
Invest just 60 minutes at your home or office to learn about alternative dispute resolution in the IP field from this duo of experts. This audio program comes to you live on Wednesday, February 18, 2009, 1:00-2:00 pm EST, via your phone or your computer. Materials corresponding to the course may be downloaded or viewed online.
KAI RYSSDAL: We're in what you might properly call a buyer's market. We saw it at Christmas with retailers all but giving things away just to get customers into their stores. And the worse the economy gets, the more it's true.
It doesn't apply everywhere, of course. But if you want a better deal on your cable bill or your broadband Internet, nowadays all you have to do is ask.
From Philadelphia, Joel Rose reports.
JOEL ROSE: My friend Amy Voloshin is not what you'd call an intimidating negotiator.
Amy Voloshin: I'm not really comfortable negotiating things. The only thing I've ever negotiated was my salary.
Amy says she wasn't even trying to negotiate with the sales guy at her local gym. But that two-year contract . . . it was a big sticking point.
Voloshin: I think I frowned. Then all of a sudden, it became a one-year commitment.
Amy got the shorter commitment -- and unlimited yoga -- for less than she expected.
TONY KIM: This is all upper body here . . .
Tony Kim shows me around City Fitness in Philadelphia, where he's director of sales. Kim says the gym might have lost a few dollars on Amy. But it got a happy new customer who might spread the word to her friends.
Kim: Hopefully, they'll come and see us. And see how just how honest we are, and how friendly we are. And they actually join, too.
The evidence is strictly anecdotal. But experts say consumers nationwide are taking advantage of the recession by negotiating better deals on all kinds of stuff, from flat-screen TVs to cosmetic surgery to the rent on their apartments.
VICTORIA PYNCHON: I think that if you reach the right person, you can negotiate anything in this economic climate.
Victoria Pynchon is a Los Angeles attorney and blogger who specializes in mediation. She says successful negotiators do lots of research ahead of time. And they also make sure they're talking to someone in a position to make a deal. Often that's not the first person who answers the phone. Pynchon says it helps to know the industry jargon.
Pynchon: I've found that the two words "customer retention" are a magic carpet ride to a good consumer deal. . . .
From today's Wall Street Journal, Don't Buckle in Layoff -- timely advice for one of life's worst case scenarios - being made "redundant."
First piece of layoff wisdom:
Negotiate Your Severance
While not required to do so by law, many employers offer severance packages to laid-off employees. The package's size is usually based on the employee's length of service -- some are entitled to two weeks of pay, while more seasoned employees may receive as much as a year's worth.
If you've been working at your company for only a year or two, there are ways to wring a little more pay from your employer. First, ask that any unused vacation days get tacked on to your final paycheck. (You can also try to do this with sick days, but it's often a long shot.) If you have a stellar record with the company, it's also worth asking for more severance pay or an extension of your health coverage.
Watch for undue pressure to sign release of claims when handed a severance package. "You must be given at least 21 days to think about the package," Milne states, "when you're terminated but not part of a group."
You must be given the option to revoke the waiver within seven days after you sign it. "This must be set out, in writing, in the release of claims," Milne notes.
You also have rights if severance accompanies a group layoff or early retirement program, he indicates. The ADEA stipulates a period of 45 days or more to make your decision, along with the seven-day revocation provision.
Milne says these requirements alone, unmet, won't give you enough to sue. However, if you have evidence of age discrimination, a signed release that doesn't follow ADEA guidelines won't block you from a bias claim.
From the Department of Counter-Intution we learn that our general assumption about pre-trial discovery -- that the open exchange of information will help align the expectations of disputants and increase efficiency by facilitating settlement /1 -- is probably inaccurate.
[s]elf-serving interpretations of fairness encourage biased estimations of the probability of prevailing in court and lead people to hold out too long, fight too hard, and settle too slowly.
Simply put, because we interpret incoming information as confirming -- and often strengthening - our existing views, the "convergence" of adversarial views pre-trial discovery proponents hoped for, does not occur. Rather, discovery tends to increase the parties' belief in the rectitude of their analysis, thereby proportionally decreasing the potential for settlement. As Loewenstein and Moore explained:
In studies examining the self-serving bias, the magnitude of the bias was an extremely strong predictor of impasse, and two different manipulations that eliminated the bias led to close to 100 percent settlement compared to an impasse rate of about 25 percent in the absence of such debiasing.
The full article is well worth reading even though much of it is burdened with academese.
Because we attorneys pride ourselves on being able to "see the other side," here's an article entitled Confirmation Bias in Complex Analyses about a study in which intelligence analysts were provided with an analytic tool to help them overcome confirmation bias. The tool -- Analysis of Competing Hypotheses -- was an
hypothesis testing matrix,” where the rows represent the evidence, the columns the hypotheses under consideration, and the cells the extent to which each piece of evidence is consistent or inconsistent with each hypothesis. The goals of the ACH matrix [were meant] to overcome the memory limitations affecting one’s ability to keep multiple data and hypotheses in mind, and to break the tendency to focus on developing a single coherent story for explaining the evidence—a tendency which [other researchers] hypothesized create[d] predecision distortions (and presumably the confirmation bias).
ACH [was] hypothesized to offset confirmation bias by ensuring that analysts actively rate evidence against multiple hypotheses and reminding analysts to focus on disconfirming evidence.
Absent the template, the process sounds a lot like that we attorneys use to test our theories and evaluate those of our opponents'. Alas ACH provided the least amount to help to those study participants with professional analytic experience. As the authors report, "ACH had no impact at all" on the professional analysts' tendency to give greater weight to the evidence that supported their theories and less to that which disconfirmed them.
What to do? I'll attempt to find an answer before writing my next post.
Loewenstein and Moore quote Richard Posner on this expectation as follows:
a full exchange of information…is likely to facilitate settlement by enabling each party to form a more accurate, and generally therefore a more convergent, estimate of the likely outcome of the case.
Richard A. Posner (1986:525) Economic Analysis of Law (3rd ed. Little, Brown 1986)
Today I am talking to Victoria Pynchon, a US lawyer based in Los Angeles, California. She was a commercial litigator and trial attorney for 24 years before shifting her practice from representing clients in court to helping lawyers settle lawsuits hat involve greater risk, expense or time than their clients wish to expend. She this work through Judicate West Dispute Resolution Services, serves as a private judge (arbitrator) for the American Arbitration Association, is an adjunct professor at Pepperdine University and blogs at IP ADR and Settle it now. Interestingly Vickie also acts as a sherpa for Blawg Review the international rolling carnival of law bloggers and is on Twitter.
“Charon QC” is a lawyer, after a fashion, but is not a practitioner. He has taught law for many years - and, to his surprise, still enjoys law; although he enjoys other academic interests as well. Law is fascinating more in the human interest than the letter, but compared to literature, science or philosophy, it does not engage the mind in quite the same way. He awarded himself the title QC when the Lord Chancellor suspended the award for real lawyers. Now, as no-one can instruct him in any matter, or would wish to, he is free to comment as he wishes on matters which catch his attention. He is, of course, a figment of a febrile imagination . He drinks Rioja - in fact he will drink any red wine, smokes Silk cut, reads all the newspapers (3 Tabloids 4 broadsheets…most days) , has a passion for motorbikes and sips espressos three time a day - ordering two each time. He sleeps for 4 hours a night - but that is his problem. He gets up and starts work (sometimes, it has to be said… writing a blog post) between 3.30 - 4.00 every morning…
He is also a habitue of The Bollo and The Swan in Chiswick/Acton - and some other well known bars in London. When he finds a meal he enjoys - he eats it every day until he can no longer face eating it again. At breakfast, he always has one egg, two slices of toast, two slices of bacon, some baked beans, two espressos, a glass of tap water and an undisclosed number of Silk Cut cigarettes - and always starts eating the egg first… on a bit of buttered toast; turning the plate around so the egg is conveniently on the right hand side of the plate. He did not know he did this until it was pointed out to him by several friends. Breakfast takes approximately 35 minutes and is often taken while reading his tabloid of choice and The Indie… and then it is but a short motorbike ride back to his Staterooms where the day can begin. Breakfast is at 7.00 and more often than not Charon sits at a table outside - even in very cold weather - so he can keep an eye on the world as it goes by. He can also smoke outside without offending other early risers.
Excerpt below - "Mr. Christodoulou," the shipping company's negotiator, called himself "Gus."
Mr. Christodoulou made an initial offer, which he declines to reveal. The Somali negotiators -- first a man named Hussein, then another who called himself Abbas -- took the offer to the pirates. They called back the next day with a response.
"Hey Mr. Gus, the Somali gentlemen say the money is very less," Abbas said, according to Mr. Christodoulou. "They need more money."
Mr. Christodoulou didn't budge. The Somalis needed to feel they had squeezed every dollar out of the ship's owners, he had been advised, so he shouldn't increase his offer early.
"We want you to get the money and move onto another project," Mr. Christodoulou recalls saying. "But you have to understand, we have our limitations."
The conversations continued daily through December, with little progress. By the end of the month, the families in India were feeling desperate...
Tom Rozycki, Mr. Christodoulou's public-relations adviser, says he decided a new approach was needed to keep the families hopeful -- and away from the media. Publicity could empower the captors and delay the hostages' release, he believed. It would also be embarrassing for the company, making it even more difficult to face the families.
On Jan. 6, at the Hyatt Regency Hotel near Mumbai's international airport, Mr. Christodoulou met with the families of the crewmen.
Seeing Mr. Sharma's hunger-striking grandmother in the front row, he knelt beside her and held her hand. "Granny, your grandson is going to get out. And we want him to get out and come back to the healthy loving family that he left," he said, according to Mrs. Sharma and Mr. Christodoulou. That night, Mrs. Sharma ate some strawberry ice cream, her son recalls.
By mid-January, the pirates on the Biscaglia were growing frustrated. "They told us they were going to take us off the ship and hide us in the mountains," Mr. Khan, the crewman, says. The pirates gave him and the others a mobile phone to call home. "We all told our families that unless the company gave more money, we would be killed," Mr. Khan says.
Mr. Kapade, the chief engineer, says he realized the pirates were trying to pressure the company by terrifying the crew. When he spoke to his wife on Jan. 14, he lowered his voice and spoke in Hindi. "Pass on to others that we're fine," he whispered.
By then, Mr. Christodoulou says, he thought it was time to raise his offer. He declines to say what he offered, but says it was close to what he thought the Somalis would accept based on the range provided to him by experts: $700,000 to $3 million.
He set about trying to raise the money. He approached his own company's biggest investor, Regent Private Capital LLC, a private-equity firm based in Tulsa, Okla. Lawrence Field, Regent Private Capital's managing director, declined to discuss the conversation with Mr. Christodoulou. "Regent does not negotiate with terrorists or pirates or any kind of criminal," he said on Friday.
That evening, Mr. Christodoulou called Per Gullestrup, the Danish chief executive officer of Clipper A/S, a larger competitor in the chemical-transport industry. The two men hadn't known one another until both had vessels hijacked by Somalis. They had often commiserated.
Mr. Christodoulou told Mr. Gullestrup he was struggling to raise the funds. A few days later, Mr. Gullestrup called back. "We'd be happy to advance the money if that's what it takes," he said. That promise allowed Mr. Christodoulou to secure a loan for the purpose.
Buoyed by that success, Mr. Christodoulou decided to apply some pressure. He raised his offer slightly, he says, and told the negotiator: "You have 24 hours to accept this offer, or we have to retract it."
Over the next 24 hours, the two sides exchanged at least 20 phone calls. "Mr. Gus, this isn't enough money for the Somali gentlemen," the negotiator said several times, according to Mr. Christodoulou.
The next day, Mr. Christodoulou went a little higher, he says. At 12:30 p.m. on Jan. 16, Abbas called back: "The Somalis accept your offer. Thank you very much. It's really been a pleasure to work with you on this project."
Effective July 1, 2008, Connecticut established a mediation program for foreclosures. Statistics available for the latest period ending November 30 2008 reveal some interesting detail. Mediators are working diligently to rescue residential homes from the auctioneer. However, the program is missing important components.
In the period of July 1st to November 30th, there were 9,917 foreclosures filed in the state, an average of 450 cases per week. In that period, mediators successfully negotiated 519 cases so that homeowners got to remain in their homes. This is just slightly over 5% of all cases filed. Only 380 cases or 3.83% resulted in a modification of the mortgage terms. Despite the hard work of Connecticut’s mediators, the state’s residents are not being protected from foreclosure.
PROVIDENCE, R.I. (WPRI) - In an effort to protect families from foreclosure, Providence Mayor David Cicilline unveiled two ordinances Monday morning during a news conference in the city's Olneyville neighborhood.
A proposed state law, that would have provided similar requirements, failed in the General Assembly last year. Rhode Island Housing Executive Director Richard Godfrey applauded Providence for stepping in to provide that protection.
The second proposal, Foreclosure Mediation Ordinance , would require financial institutions and property owners to engage in mediation with a HUD-approved counselor before moving ahead with a foreclosure.
"We have a court adjunct mediation program," said Schmenk. "The worst thing people can do is do nothing. The best thing is to get an answer filed on their behalf and open up a discussion with the mortgage holder to avoid it going to the foreclosure sale. Often times they can get something worked out with the lending institution short of losing their home."
When a foreclosed home goes up for auction bids start at two-thirds of the property's appraised value.
"Most time the lenders are holding significantly more than that in debt," said Schmenk. "We've noticed in a number of cases things get worked out and they are able to enter into some kind of accommodation that works for lender and mortgage borrower."
Schmenk encourages individuals facing foreclosure to take part in mediation programs.
There was a mediation just last week in Defiance County, said Cheryl Timbrook of the common pleas court. Overall, she said that they haven't had many requests for mediation so far.
Sonnenberg said Henry County has had a mediation program available for foreclosure for a year. She said there has been an increase in requests for mediation since the court started sending out information about the program as well as how to file an answer to the foreclosure summons received by defendants.
"I don't think many people knew about it before," she said.
Chris DelFavero, mediation coordinator for the state's Northwest Ohio Court Mediation Services, said he's seen an increase in individuals asking for foreclosure mediation. Northwest Ohio Court Mediation Services covers Henry, Defiance, Fulton, Paulding, Williams and Putnam counties. The program started last spring.
"With the help of the (Ohio) Supreme Court we established a process for referrals through the (county) clerk's offices," said DelFavero, who added that referrals started to pick up this summer. "Last month I had the most referrals since we started. I had 11 referred this past month. We started with just two or three a month, and now we have two a week."
DelFavero said that many cases involve jumps in interest rates, causing payments to increase or individuals who have seen a decrease in pay.
"Those are the cases we hopefully can resolve and come up with a repayment plan or refinance their rates," he said. "The general problem in the industry was the subprime rates. Some of it is the economy, with people losing their overtime. Sometimes loans are given based on people making $40,000 and then they lose their overtime so now they are making $30,000. They are working, but may have fallen four to five months behind. The lender usually will work with them."
Because these parties couldn't agree on what year it is, however, no one balks at my suggestion that we write up the entire deal -- settlement agreement with mutual general releases; the Stipulation for the Entry of Judgment; and, the proposed Stipulated Judgment itself.
The first problem is everyone's failure to bring a form Settlement Agreement and Mutual Release, let alone one that included enforceable terms for the entry of a Stipulated Judgment in event of default.
ADVICE??? Carry these documents on a "flash" or "jump" drive whenever you're going to a settlement conference or mediation. Heck, carry them with you to the first day of trial where you might be startled to learn that your adversary is prepared to settle the case right now!
Fortunately, I had access to my own files which contained detailed forms for everything we needed, forms I offered to counsel as guides. I did so only with the express understanding that I did not recommend my own forms as adequate, complete or enforceable.
I'm just the mediator, not the legal representative of the deal in loco parentis.
It's a good thing we made the effort to fully document the deal because it threatened to fall apart over all of the following terms:
the dismissal of ancillary proceedings
forbearance from inducing future actions by non-parties
liquidated damage clauses for the breach of certain critical deal points
indemnification for future actions if induced by certain of the parties
Each of these items required separate negotiation and compromise and as to each I helped the parties calculate the degree of possible misbehavior by their adversaries and the protections that might "fit" the probable harm. I do not believe the parties would have been able to resolve these terms (as well as others too confidential to mention) without third party assistance. One was so difficult to predict both the series of possible events and potential remedies that we provided for arbitration of that term alone in the event of alleged default.
When we all finally left the building at one in the morning, we had fully completed paperwork, signed by all parties in hand.
And yes, I was the only one present who could type.
The anger, suspicion and ill will that has characterized the first eight hours of this mutli-party, eight-figure antitrust mediation is about to heightened as I deliver Defendants' terms: they will pay the settlement agreed upon in six equal yearly installments over three full years without any security to back it up.
Are you wondering what your mediator is thinking at times like this?
That "thought" is momentary, however, like the cry you squelch when the trial judge does something like, say, grant the other side's motion to disqualify your expert witness during the second week of trial.
I don't have a plan, but I do have ideas. Just as my suggestion that we use a bracketed offer to break impasse had eventually done just that, I'm already thinking of ways that the parties' most intractable and conflicting positions might move them toward agreement.
"They can wait," defense counsel is saying, "or they can try the case in February and see if they can collect it," to which a principal adds, "this puts them on our side for a change. If we make the money we believe we can, they'll benefit too."
"I thought you said you knew you could," I say, laying groundwork for the contingency ahead.
"Yes, absolutely. We know we can."
Back in the Plaintiffs' caucus room, the parties and their counsel aren't simply angry; they're flabbergasted.
"They sand-bagged us," says Plaintiffs' counsel. "We'll report this to the Judge. They didn't come here in good faith. They're deliberately wasting our time."
After some calming discussion about why the cash-poor defense would deliberately pay their own attorney and one-half of my daily fee in bad faith . . . a question to which no answer ever eventuated . . . Plaintiffs and their counsel begin to confidently predict the defense's inability to make a single installment payment. Plaintiffs believe the defendants have resources - secreted away somewhere - but will never use them to settle this case.
When the temperature of the room has diminished to that of the sun's surface rather than its core, I ask about the possibility of a stipulated judgment in the event of default.
"In a sum you hope the jury will award you at trial," I proffer. "If you're right; if they have no intention, nor any ability, to pay even the first installment, you'll be in the same position on default that you'd be in if you prevailed at trial. And if they're capable of paying, they're much more likely to do so if the alternative is a mutl-million dollar judgment against them."
Though the total sum of the Stipulated Judgment is the main topic of discussion over the following two hours, the parties' insistent conflicting predictions for the future make it all but inevitable they will eventually reach agreement. If the defense never pays, the Plaintiffs will have their judgment more or less immediately, without the burden of proving it up. And if the defendants are good for their word that they can service the "debt" the settlement agreement creates, they never have to worry about this potential judgment becoming a reality.
Often, a major obstacle to reaching negotiated agreements concerns negotiators' beliefs about some future event or outcome. Impasses often result from conflicting beliefs that are difficult to surmount, especially when each side is confident about the accuracy of his or her prediction and consequently uspicious of the other side's forecasts. Often, compromise is not a viable solution, and each party may be reluctant to change his or her point of view.
Fortunately, contingent contracts can provide a way out of the mire. With a contingency . . . differences of opinion among negotiators concerning future events do not have to be bridged; they become the core of the agreement. . . . [Parties] can bet on the future rather than argue about it.
Here, the agreement calling for a Stipulated Judgment of sufficient size to deter default, allowed the parties to:
bet on rather than argue about their different forecasts for the future;
As you'll recall, we're in hour nine of the mediation. The parties have finally agreed to settle the antitrust litigation the Court ordered them to mediate ("we won't settle; we'll only be here for an hour").
Defense counsel wants to write up the "deal points" and make a quick getaway. Before she does so, we have the following conversation.
"We'll need three years to pay it."
I fake calm.
"Your security?" I ask, my mind racing to the other room where an already unhappy set of plaintiffs are sitting.
"We don't have security. I told you my clients are broke. I also told you we'd need terms but you didn't want to talk about them."
This is true. From hour one the defense insisted they'd need to pay over time and the Plaintiffs wanted to know what terms the defense was thinking of. Throughout the day I'd told them both the same thing: "let's see if we can agree on a number before we start talking terms."
I have reasons for this. They are as follows:
once people have agreed upon a number, it's far more difficult for them to walk away from a deal; the Plaintiffs have already begun to think about what the money will mean to them and the defense has begun to imagine life without the litigation;
people are risk averse. So long as there is no (or only minimal) money on the table, it's easy to refuse to engage in the often difficult process of readjusting their expectations and compromising their desires. When there's enough money on the table to make both parties want to settle, walking away involves loss.
This is often the trickiest part of the mediation. The three-year time table and absence of security is, I know, enough to blow up this deal. I'm going to take heat from the Plaintiffs' side, for resisting their efforts to learn the Defendants' terms before they spent an entire day agreeing upon the price. I don't, however, regret my decision. If these terms cause the negotiation to break down now, they certainly would have done so in hour one.
How I help the parties negotiate what is poised to become a rancorous impasse in the next post.
It's 8 p.m. and you've just spent nine straight hours negotiating the settlement of complex commercial litigation with multiple parties that was filed before George Bush first took office. The case has been up on appeal twice and is now scheudled for trial in February. All defendants but the final three standing have settled. Three of the principals have flown in from out of state and two of the attorneys have driven a few hundred miles to Los Angeles from their home towns.
"Let's just write up the deal points," says Lawyer No. 1, yawning. "We can write up the full agreement over the long weekend."
Lawyer No. 2 turns to me and says "Judicate West has a form, right? Let's use that."
IT IS HEREBY STIPULATED by and between the parties through the respective counsel or representative of each that the above-referenced case has been settled according to the terms memorialized herein below. This document is binding on the parties and is admissible in court pursuant to Evidence code section 1123 and enforceable by motion of any party hereto pursuant to CCP section 664.6.
In order to facilitate the above specified terms of settlement, the parties further agree that on or before the day of they will execute or change the following:
Settlement / Release Agreement Prepared by _____plaintiff_____defendant
Request for Dismissal Prepared by _____plaintiff_____defendant
All relevant parties must sign below. Copies are acceptable in lieu of originals.
I know. You didn't expect the case to settle. At least that's what I've been hearing you all tell me since hour one of the mediation. But now we're in hour nine and the basic deal points have been reached. It's January 15. Trial is in 30 days. You have all the parties present and the mediator who has by now sussed out the BS; developed a good working relationship with all sides of the dispute; knows how hard the parties worked to get here; and, is unlikely to let the "devil" in the details sink the settlement ship.
Anyone who's been living in outer Mongolia for the past couple of years should head on over to Adams Drafting straight away. Why? Because once you negotiate the best deal you can, you have to write it up on the best terms you can. Hence the need -- yes need -- for Adams' Drafting.
This gives Ken Adams an opportunity to address the question whether it's ever beneficial to purposely include ambiguity in your contracts -- a question I'd answer after nearly a quarter century of contract litigation practice with this -- sure, if you'd like to put my husband's and my grandchildren through prep school and college. Otherwise, not so much.
But don't take it from me. Go see what the master of contract drafting says.
Before you start bargaining your way through the current recession, you need to decide which of your expenses might be negotiable.
Your office or residential rent? I have friends who have successfully negotiated reductions mid-lease on the strength of their desirability as tenants and good relationships with their landlord.
Over dinner with friends last night, I learned that a local shopping mall recently agreed to renovate the commercial space of one of its major department store tenants in exchange for the store's promise to renew its lease at the end of this year on existing terms.
When I asked my twitter network what recurring expenses they'd like to reduce this year, I got answers on everything from diapers (@mglickman) to flat Westlaw fees (@dtoddsmith). And though she rejected their offer, attorney Jeena R. Belil provided an excellent example of an integrative negotiation tactic - offer more value for the same price -- here, the Yellow pages offering to provide her with a half-page ad at the quarter-page price (@jeenaesq).
So, make a list of expenses that make your monthly "nut" difficult to crack during a down economy. Even if you believe these expenses to be non-negotiable, give it a try. You've got nothing whatsoever to lose by asking.
1. Don’t Bargain Over Positions Most of us begin negotiation by identifying a position and arguing for it, such as: “I want to retain the CEO title.” But such positional bargaining can limit your ability to arrive at a “wise agreement” that benefits both parties — the proverbial middle ground and the whole purpose of negotiation. Instead of thinking of a “position,” identify the goal. You want remuneration for the sweat you put into your company. You want, for example, status (to remain CEO). But a specific position is binary — you either get it or you don’t. A goal can be attained in many ways, giving you many more options for arriving at a solution.
2. Separate the People From the Problem Most negotiation is emotional. You want something, after all. And emotion clouds our objectivity. But you can limit the emotional content of your negotiation by thinking of the person you’re talking to as your partner and the problem you’re trying to solve as an object. Take, for example, the question of how much a company’s equity is worth. In this case, you’re not negotiating against the investor over a position, you’re engaged with that person to arrive at the right answer to the question. Some will urge you to make your negotiation opponent a partner, but this can lead to Stockholm Syndrome. Instead just think of engaging the other person, using their input to arrive at the right answer. Maintain your independence.
3. Focus on Interests
We all have interests. The pursuit to fulfill our interests leads up to adopt positions. But bargaining for stated positions, such as titles, will not necessarily produce a wise agreement that takes care of the interests that led you to adopt the positions in the first place. Think instead: I want to remain engaged in the business. There are many ways to achieve goals without having specific positions.
4. Invent Options for Mutual Gain This is the creative part. You must examine each other’s interests to come up with options in which both parties gain. Your investors have an interest in a pro-CEO who can sell into large corporations (you’ve never done that). You need funding, but also want to remain engaged. Both parties can draft a list of options for your new role that satisfy everyone’s needs: COO, president, chief innovation officer, etc. Negotiate from this list.
5. Insist on Using Objective Criteria
We all have personal standards. CEO conveys more status than chairman, etc. The key is to let go of personal standards in favor of objective ones upon which both parties can agree. (Think of the Kelley Blue Book, a set of agreed-upon standards for those looking to buy or sell a car). But here you have to do some real homework and investigate the objective standards that apply to your negotiation ahead of time. Some to consider: market value; legal or business precedent; scientific judgments (patents); efficiency; and reciprocity.
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.
How do you as a mediator recognize the signs of cross cultural differences and how do you resolve that type of dispute? How often do you come across this type of dispute?
I was thinking about how I might answer it when I noticed that my colleague and friend, mediation guru Lee Jay Berman, had taken the time to jot down his thoughts, which were better than any I was having, yet precisely expressed my own experience mediating conflict.
Here's what Lee Jay had to say:
I think that some is easy to recognize, like two Korean businessmen walking in with their counsel, knowing that they will have a value system that is based around how Korean businesses conduct themselves, and knowing that trying to overlay that onto an American legal system is going to be awkward for them.
But my belief is that NEARLY ALL conflicts are cross-cultural. The vast majority of what I see as cross-cultural conflicts don't present themselves as such at first glance because they may occur between two people of the same color skin, same nationality, same faith and even same family. I think we risk falling into the belief that cross cultural disputes only exist when we have people of different racial cultures at the table. We sometimes think we can turn our cross-cultural radar off when both people sitting there look the same to us. But to me, most conflict comes from different cutltural perspectives, different expectations based on how we were raised and what they see as "normal" or how people "should" conduct themselves.
The example I live with is that my wife and I were both raised Jewish, both families grew up with Christmas trees in our homes, too. We both went to UCLA, we both love sports, and the list goes on and on. When we married, we had the expectation that we would be relatively the same when it came to living our lives together. But when it came to communication styles, especially around disputes or disagreements, what we each learned from our families (the tribes in which we were raised and where we learned our norms) could not have been more different. Early in our marriage, this created constant cross-cultural disputes, which turned into conflict because of the assumptions we each made about what was the "normal" way to deal with disagreements. On paper, most people would never say that my wife and I were cross-cultural, but in real life, we had a huge cross-cultural rift that was invisible to most, and even to us at first.
The moral of this story is that we must ALWAYS be looking for evidence of cross-cultural issues, even when they don't present with different skin color.
the economists David Hemenway and Sara Solnick demonstrated in a study at Harvard, many people would prefer to receive an annual salary of $50,000 when others are making $25,000 than to earn $100,000 a year when others are making $200,000.
Why? Because we "care more about social comparison, status and rank than about the absolute value of our bank accounts or reputations." In other words, we're more concerned with justice (fairness) than we are about the money. Which is why our clients have sought out our help with their personal, financial and commercial problems -- because we're in the justice business. When we understand this, the negotiation of financial settlements becomes a whole lot easier because there are many more ways to deliver justice than by throwing money at it.
"Twitter posts are like any other electronically stored information," explained Douglas E. Winter, a partner at Bryan Cave in Washington, D.C. and head of the firm's Electronic Discovery unit. "They are discoverable and should therefore be approached with all appropriate caution."The increasing popularity of Twitter has made electronic discovery even more complicated.
Litigators! Remember, you and your opponent(s) have a choice. It's not only in arbitration that you can make your own law, but by way of stipulated case management orders cooperatively crafted with an eye toward relative cost and likely benefit (ask me for a template!)
I don't need to tell you that clients are cutting back in 2009. The litigation practice that thrives will be the most efficient and effective dispute resolution vehicle on the road.
And now, for your moment of zen - Charlie Dickens.
Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means. The parties to it understand it least, but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce without knowing how or why; whole families have inherited legendary hatreds with the suit. The little plaintiff or defendant who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled has grown up, possessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into mothers and grandmothers; a long procession of Chancellors has come in and gone out; the legion of bills in the suit have been transformed into mere bills of mortality; there are not three Jarndyces left upon the earth perhaps since old Tom Jarndyce in despair blew his brains out at a coffee-house in Chancery Lane; but Jarndyce and Jarndyce still drags its dreary length before the court, perennially hopeless.
Jarndyce and Jarndyce has passed into a joke. That is the only good that has ever come of it. It has been death to many, but it is a joke in the profession. Every master in Chancery has had a reference out of it. Every Chancellor was "in it," for somebody or other, when he was counsel at the bar. Good things have been said about it by blue-nosed, bulbous-shoed old benchers in select port- wine committee after dinner in hall. Articled clerks have been in the habit of fleshing their legal wit upon it. The last Lord Chancellor handled it neatly, when, correcting Mr. Blowers, the eminent silk gown who said that such a thing might happen when the sky rained potatoes, he observed, "or when we get through Jarndyce and Jarndyce, Mr. Blowers"--a pleasantry that particularly tickled the maces, bags, and purses.
How many people out of the suit Jarndyce and Jarndyce has stretched forth its unwholesome hand to spoil and corrupt would be a very wide question. From the master upon whose impaling files reams of dusty warrants in Jarndyce and Jarndyce have grimly writhed into many shapes, down to the copying-clerk in the Six Clerks' Office who has copied his tens of thousands of Chancery folio-pages under that eternal heading, no man's nature has been made better by it. In trickery, evasion, procrastination, spoliation, botheration, under false pretences of all sorts, there are influences that can never come to good. The very solicitors' boys who have kept the wretched suitors at bay, by protesting time out of mind that Mr. Chizzle, Mizzle, or otherwise was particularly engaged and had appointments until dinner, may have got an extra moral twist and shuffle into themselves out of Jarndyce and Jarndyce. The receiver in the cause has acquired a goodly sum of money by it but has acquired too a distrust of his own mother and a contempt for his own kind. Chizzle, Mizzle, and otherwise have lapsed into a habit of vaguely promising themselves that they will look into that outstanding little matter and see what can be done for Drizzle--who was not well used--when Jarndyce and Jarndyce shall be got out of the office. Shirking and sharking in all their many varieties have been sown broadcast by the ill-fated cause; and even those who have contemplated its history from the outermost circle of such evil have been insensibly tempted into a loose way of letting bad things alone to take their own bad course, and a loose belief that if the world go wrong it was in some off-hand manner never meant to go right.
Thus, in the midst of the mud and at the heart of the fog, sits the Lord High Chancellor in his High Court of Chancery.
The National Law Journal's annoying practice of making its "best" content available only with a secret decoder ring forged in the fire of subscription dollars, nevertheless did not stop me from access to an intriguing article about arbitration's "e-discovery conundrum" (here for people with the secret code).
. . . as litigation discovery techniques have become more prevalent in arbitration, arbitration has become just as time-consuming, expensive and burdensome. Without the benefit of an appeal process for the losing party, the primary remaining benefit for binding arbitration -- privacy -- is often outweighed by the other negative factors.
Parties and their litigation counsel have pointed to runaway discovery as one major reason why they have abandoned arbitration in favor of mediation in the United States and even internationally.
So how can "the long-recognized benefits of arbitration -- speed and cost savings -- be restored?"
The author recommends that the process must "address the needs and interests that led them to arbitration in the first place: to balance the need to discover those documents reasonably necessary for a party to prove its case with the cost, burden and time involved in producing such documents, while taking into account the need for fundamental fairness and to avoid surprise and trial by ambush."
Here's where reformers fail to get the direction the law is moving in. It's not about finding a process that fits your needs - it's about creating the process that is tailor-made for your one and only completely unique and unrepeatable dispute.
The beauty of arbitration is not what it is. It is what it can be. The beauty of arbitration is that it allows you to make up your own $%#@^ law and procedure. It restores control of the process to you.
What, you say? Your opponent and you can't agree? This is no longer a good enough reason, particularly because I do not see many attorneys making the effort to craft discovery and case management plans that reasonably addresses the parties' actual need for every document that someone marginally involved in the dispute might have once breathed upon.
I know whereof I speak.
The solution? Sit down, for goodness sake, with your adversary, for as many days as it takes, to reach agreement about what each side actually needs. Leave your huffing and your puffing, your posturing and your adversarial chops at the conference room door. There will be plenty of time for all of that after the only people who actually understand the dispute -- YOU -- agree upon the type of process necessary to resolve it as efficiently and effectively as possible.
The law firms that do this will survive the recession.
Are mediators being hook-winked by clients who create artificial impasses for the purpose of procuring a favorable mediator's proposal? Does the mediator's recommendation carry so much weight that the parties are subject to a manipulated mediator's proffer? Does the mediator become just a tool of a party bent on flim-flam? Or is all distributive bargaining flim-flam?
I understand some lawyers are settling all their cases with mediators' proposals. Why is that? Are they savvier than their colleagues? Or do they just need the authority of the mediator to "sell" settlement to their clients?
Jump in here or over at John's place. Whether you're a mediator, a litigator, or a client, we'd both appreciate your fresh ideas.
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.
More than 360 Connecticut homeowners have avoided foreclosure in the past five months thanks to a new mediation program established by the state, but some think it’s still being underutilized.
The program, which was part of comprehensive mortgage relief legislation passed earlier this year, allows borrowers to meet their lender face-to-face to try to reach a settlement on an overdue mortgage.
If the borrower chooses mediation, lenders are required to participate and the process can delay foreclosure by 60 days or more.
Some lawmakers have touted the program as the first of its kind in the country.
About 28 percent of the estimated 5,513 homeowners who are eligible for the program have applied for mediation, and 361 people have reached a settlement that allowed them to keep their home. Another 116 homeowners decided to leave their home but were able to reach an agreement with their lender to pay off the balance of their mortgage. Mediation remains unsettled in 203 cases.
“All of us familiar with the program would like to see more people participate,” said Ann Parent, an attorney for the Connecticut Fair Housing Authority. “We don’t know why more homeowners aren’t requesting mediation, but we feel like more should.”
Parent said she supports the program and agrees that it is serving an important purpose, especially for homeowners who can’t afford a lawyer to guide them through the foreclosure process. At the same time, however, she said it’s unfortunate that less than 30 percent of eligible homeowners are using it.
Thanks again to Vicki Flaugher of SmartWomanGuides.com for inviting me to have this conversation with her about ways in which women can and do maximize their bargaining power. And yes we do talk about negotiating the purchase of an automobile here as well!
In part two of Vicki Flaugher's interview with me, we discuss ways in which women can comfortably respond to aggressive zero-sum distributive bargainers and negotiate better business deals using their natural strengths.
I'd like to once again thank Vicki Flaugher of the Smart Woman Guides for helping me stay (somewhat) on point in discussing those negotiation challenges particular to women.
If you’re a beginning female entrepreneur or a women who is thinking about starting in business for herself, you have found your tribe. You have arrived at a safe place to talk about business. Especially if you are 35-55 years old, you are going to love this site because that’s a magic age time. You really discover who you are during those years and finally decide to do what you love instead of just what you’re “supposed” to do. The spirit of that revelation and all the promise it holds is why this site was created.
So let us begin anew -- remembering on both sides that civility is not a sign of weakness, and sincerity is always subject to proof. Let us never negotiate out of fear, but let us never fear to negotiate. Let both sides explore what problems unite us instead of belaboring those problems which divide us.
Let both sides, for the first time, formulate serious and precise proposals for the inspection and control of arms, and bring the absolute power to destroy other nations under the absolute control of all nations.
Let both sides seek to invoke the wonders of science instead of its terrors. Together let us explore the stars, conquer the deserts, eradicate disease, tap the ocean depths, and encourage the arts and commerce.
Let both sides unite to heed, in all corners of the earth, the command of Isaiah -- to "undo the heavy burdens, and [to] let the oppressed go free."
And, if a beachhead of cooperation may push back the jungle of suspicion, let both sides join in creating a new endeavor -- not a new balance of power, but a new world of law -- where the strong are just, and the weak secure, and the peace preserved.
All this will not be finished in the first one hundred days. Nor will it be finished in the first one thousand days; nor in the life of this Administration; nor even perhaps in our lifetime on this planet. But let us begin.
Planning on partying like its 1999 to boast morale in your law firm? Check out tips offered by Morrison & Foester in Holiday Parties: Morale Boost but Employer Beware back in December of 1999, advice that is as timely today as it was then. And remember, there's no conflict management strategy better than conflict prevention. Here then are MoFo's excellent tips, which is just a small excerpt of the good advice to be found on the link above.
What Can Employers Do?
Short of assuming the role of "Grinch" and canceling the holiday party, what can employers do to protect themselves from liability for sexual harassing conduct during holiday parties?
First, employers should make sure that they have a comprehensive, written sexual harassment policy in place, including sexual harassment training in the workplace. Employers might also re-circulate the sexual harassment policy prior to the holiday party, or send a memo to employees reminding employees to act responsibly at the party and expressing a zero tolerance for harassing behavior.
Second, if the budget permits, employers could invite employees to bring their spouse, significant other, or guest. Although such an invitation will not rule out incidents of sexual harassment, it may reduce the likelihood of such incidents occurring, as employees may tend to act more responsibly and in a less flirtatious manner towards each other if they bring a spouse or special friend to the party.
Third, employers should monitor closely any employees who have a history of harassing behavior, or who have been involved in complaints of sexual harassment. If such an employee is observed engaging in any inappropriate behavior, he or she should be asked to leave the party immediately, and the employer should apply appropriate discipline upon the employee's return to work.
Finally, employers receiving any complaints regarding inappropriate behavior at the holiday party should treat such complaints seriously and should take prompt, effective steps to address the complaints. This includes interviewing the alleged harasser and harassee, talking to potential witnesses, and administering appropriate discipline if inappropriate behavior is found to have occurred. By taking prompt, remedial action to address complaints of harassment, employers can reduce and in some cases altogether eliminate liability for sexual harassment.
A law firm contends new Louisiana lawyer advertising rules slated to take effect in April will restrict its right to comment on Twitter, Facebook, online bulletin boards and blogs.
The Wolfe Law Group filed a federal suit today challenging the rules, claiming they would subject each of the firm’s online posts to an evaluation and a $175 fee, according to a press release. The construction law firm says in the suit that its own blog may qualify for an exemption for law firm websites, but its comments on other blogs would not.
The firm claims the rules would restrict its First Amendment right to speak freely about its trade. To make its point, the law firm has launched a blog called Blogging is Speaking.
Sometimes your business or professional negotiation has to take place in Court. This is an example.
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.
I have recently been asked by several lawyers to write a few posts on mediation and negotiation terminology not only because some attorneys are unfamiliar with these terms, but also because different mediators and negotiators use them to mean different things.
Mediators, lawyers and negotiators who read this post are invited to add, correct, object, or suggest further refinements and to add their thoughts on further strategic and tactical uses and perils of the impasse-busters we discuss today - the bracketed offer and the mediator's proposal.
And because my readers may find this post as dry as bones, I once again offer the X-rated "Negotiation Table" as pretty #%$@ true and funny (think Ari Gold).
Bracketed Offer: Party A makes an offer to bargain in the zone he wishes to see the negotiation move to. This is often used when neither party wishes to step up to the line of probable impasse and it can also be used to re-anchor the bargaining zone. Quite simply, Party A offers to bargain in the range of, say, $2 million and $3 million. He offers to put $2 million on the table if party B is willing to put $3 million on the table, i.e., "I'll offer to pay you $2 million if you'll offer to accept $3 million to dismiss your suit."
If party B does not accept the bracket, party A will not be "stuck" with having actually placed $2 million on the table when the next exchange of offers and counter-offers begins.
Responding to a Bracketed Offer: Party B can: 1. respond with a counter-bracket, i.e., I'll make an offer to accept $3.5 million in settlement if you'll put $2.5 million on the table; or, 2. refuse the bracket and ask for an unbracketed counter.
The basics: the mediator chooses a number for the parties, making an "offer" to settle for, say $2.3 million which the parties are free to accept or reject. It is a double-blind "offer." If either party rejects the "offer" neither party knows whether the other accepted or rejected. Acceptances are communicated only if both parties accept, in which case they have a deal.
The circumstances: The parties should seek a mediator's proposal only when they have reached a hard impasse. A hard impasse exists when both parties have actually put their true bottom line on the table or their next to the bottom line and they see no hope of it closing the deal.
The purpose: Both parties believe they could convince their principal to accept a deal that is more than they wanted to pay or less than they wanted to accept, but they cannot convince their principals to put $X on the table or accept $Y. They hope to use the authority of the mediator to sell the deal to their principals. If they are the principals, they are willing to settle for a number lower or greater than planned but not willing to close the bargaining session having made such a concession, which would have the effect of setting the floor or establishing the ceiling of all future bargaining sessions.
The Mediator's number: I do not know whether there is a general practice among mediators about how they choose the number proffered. When parties ask me to make a mediator's proposal (I rarely recommend one in the first instance) I explain my practice as follows: When I make a proposal I am not acting as a non-binding arbitrator or early neutral evaluator. In other words, my proposal is not a reflection of the value of the case. The number I propose will be a number that I believe the Plaintiff is likely to accept and the Defendant is likely to pay.
In rare instances, the parties wish to continue bargaining in the event a mediator's proposal is not accepted by both parties. I have permitted this in a few circumstances after explaining to the negotiating parties that it often causes resentment on the other side because they feel as if the party who wishes to continue negotiating is unfairly attempting to use the mediator's number as a new bench-mark from which to bargain.
I highly recommend against continued bargaining after the rejection of a mediator's proposal on the day of the mediation. It should serve as a hard stop because the parties respond to it as an ultimatum. That's part of its power. Take it or leave it.
Just as you would not continue bargaining after indicating that you were putting your last dollar on the table, you should not continue bargaining (during that session) after the mediator has, in effect, put both parties' anticipated bottom lines on the table for them.
First she's all about the election and now she's back to post-mid-Century America's gender wars? Say it ain't so, Vickie!
These are just statistics from an extremely limited sample that tells more about this particular program in this particular place concerning the particular types of cases being mediated than they are about the relative abilities of male and female mediators.
I'm unaware, however, of any controlled studies on gender differences in mediation results. I do know that there's a gender imbalance in the profession and have had panel administrators acknowledge on the QT that even when they're choosing mediators or settlement officers pro bono lawyers tend to choose men most of the time.
So for women struggling in the profession, here's your moment of zen.
Examining the graphical representation of mediator gender and settlement rates, one can see that there are male mediators who settle cases at higher than average rates, as well as female mediators who settle cases are lower than average rates. Nevertheless, it appears that most of the popular mediators who settle cases at higher than average rates are women, while the majority of popular mediators who settle cases at lower than average rates are men.
Some may object to this “battle of the sexes” analysis on the grounds that men and women should be treated as equals. Based on our data, however, male and female mediators are not statistically equal with respect to the rate at which they settle cases. Whether this “good” or “bad” is more a matter of philosophy than statistics.
In her book In a Different Voice, Carol Gilligan described how men and women think about moral conflicts differently. Her research suggests that men tend to consider conflict in terms of rights while women generally view conflicts in terms of dynamic relationships. Accordingly, a “female” approach to conflict resolution may be better suited to the process of facilitating mediated settlements than a “male” approach to conflict.
When I think of my own experience as a neutral for the past four years and compare it to my experience as an attorney in the first four years of my practice 1980-1984, I can only say that it is somewhat similar.
What made the difference in the years that followed? Women flooding the profession. As women litigators and bench officers begin to retire, I suspect that we'll begin to see greater use of women neutrals. And no, I do not believe that the paucity of women on commercial mediation panels nor what I believe to be their greater struggle to build a thriving practice there is based upon conscious sexism.
Like the tendency to prefer judges over attorney mediators (a preference I believe to be waning) I believe that the sub-conscious preference for male over female mediators arises from a continuing misunderstanding among members of the bar about what settles cases. Too many attorneys continue to believe that they need a mediator who can overpower the will of their adversary. And if you're looking for raw power (particularly the power of authority) in American commerce and law, you will naturally choose the judge over the attorney and the man over the woman.
I haven't written about this in the past because it is a topic that tends to divide people and it is not my intention to start a tiny gender war in the tiny world of mediation.
But when these statistics started pouring into my in-box, I couldn't ignore the topic any longer.
Since all four of us are frequent flyers, a lively discussion ensued about ways the airlines could deliver entertainment at lesser cost.
Sean's life-partner, the rocket scientist, Tony, wasn't chiming in as usual. Only when the conversation flagged did we notice that he had one of those "I'm about to invent something" looks on his face.
"You know," Tony finally offered, chopsticks hovering in mid-air, "producers ought to offer unreleased movies to U.S. Air in exchange for the airlines making willing passengers available as focus groups. U.S. Air would be able to offer its passengers something better than the other airlines -- movies that haven't hit the theaters yet - and the production companies would probably pay the airline a fee for the focus group service."
This is why people say this or that doesn't require you to be a rocket scientist. These are the types of innovative solutions Tony calls up daily on a moment's notice. His take-out dinner proposal was what negotiation gurus are talking when they suggest that bargaining parties use their negotiation for the purpose of creating value.
having created new value, negotiators must still divide the resulting goods. Unfortunately, the competitive strategies used to claim value tend to undermine the cooperative strategies needed to create value. The exaggeration and concealment needed for effective competition is directly opposed to the open sharing of information needed to find joint gains. Conversely taking an open cooperative approach makes one vulnerable to the hard bargaining tactics to a competitive negotiator.
This is a week-long intensive program for new and/or experienced attorneys who need to learn/brush up on their basic trial skills. If you can take the time, your entire practice will benefit from the experience.
Remember that Heller Ehrman collapse? Seems that you don't get COBRA benefits if the health plan your former employer maintained is kaput because it has gone out of business.
Now think, pending surgery, no health insurance, pre-existing condition.
Why do I lead a post about resolving work-place conflict with bankruptcy and tragedy? Because no 100-year old AmLaw100 firm fails so spectacularly without having made some conflict resolution mistakes.
Can you eliminate conflict in the law firm? Hellllloooooooooooooooo??????????? We're lawyers who Anne Reed at Deliberations this morning reminds us have been characterized as . . . well . . . sharks with
skin that is tough and rough -- covered with thousands of tiny hard teeth call denticles that abrade any passerby made of softer stuff. Lawyers are also thick-skinned. Easily identified by their humorlessness and abrasive personalities, they are the bane of many social gatherings.
What to do? Apologize when your "denticles" abrade passersby, but more importantly, ask yourself the most important Bob Sutton-inspired organizational wellness question noted over at The Non-Billable Hour this morning:
At the CBIA Annual Meeting last night, I had the pleasure of hearing a keynote address by Elizabeth Teisberg, co-author of the book: Redefining Health Care: Creating a Value-Based Competition on Results. Her presentation focused on the importance of taking a comprehensive approach to health care reform -- one that controls costs, improves patient outcomes and creates greater value for our health care dollars.
OMG! I just had a non-political moment and it felt so good!
The mediation of litigated cases involving personal or economic injury should mainly be about money. Unless the issues of law and fact have been fully fleshed out, mediation sessions get bogged down in contentions about ultimate facts and conclusions of law that neither side can "win."
Let’s take a drug case in which the drug causes a signature disease that only has 3-4 causal connections. Until the defendant knows my client’s medical history and definitively understands that the only causal connection present in my client’s case is the drug at issue, the defendant cannot fully appreciate the strengths of the plaintiff's case, leading to an unbridgeable divergence in the two sides' valuation. On the other hand, if I’ve not yet conducted adequate discovery to learn that the drug didn’t contain the offending agent until after my client quit taking the drug, then I’m going to waste my time – and everyone else’s – by asking for 7 figures.
If the attorneys are making arguments that sound like summary judgment motions during a mediation, both parties are wasting their time. No one should proceed to mediate before they know what they agree on and what they disagree. Ideally, the parties should agree upon as many facts and legal issues as possible before sitting down to negotiate settlement.
Make Sure The Money Person Is There
I will no longer attend a mediation unless the individual authorized to write the settlement check is present. None of this, “We have to get on the phone and see what corporate says” for me. You do not want to mediate with defense counsel only. It’s much easier for an adjuster or other money person to hold tight at a number when he/she doesn’t have a plane to catch. In fact, one of the first things I ask the corporate representative at a mediation is, What time is your flight? This information usually tells me volumes.
Make Sure The Mediator Knows Who to Talk to Before the Mediation Begins
Assuming there’s only one plaintiff and one defendant, there are no less than four parties that the mediator may need to direct his/her attention to: (1) defense counsel (2) the corporate representative of the defendant (3) plaintiff’s counsel and (4) the plaintiff. In any given litigation, one or more of these parties could be the source of impasse. Usually my clients are very well-oriented on where we need to be money-wise heading into mediation. The occasion does arise, however, when I need the mediator to help me help my client understand that his or her expectations of recovery are unrealistic. On those occasions, I instruct the mediator confidentially that my client needs a little reality testing if the case is going to settle.
All of us sometimes have unrealistic expectations. I certainly can, as can defense counsel or the corporate representatives. The point is the mediator needs to know who needs to be talked to a little more than the others. I encourage any mediator with whom I work to accept confidential settlement letters. In these letters, I mention which parties I think might be barriers to settlement.
If you have a mediator who only talks to the lawyers, you’re probably in for a long and unsuccessful day. Or, given the situation, it may be the clients who are being hard-headed. In these instances, the mediator needs to talk right past the lawyers and speak directly to the clients. As a plaintiff’s lawyer, I won’t deal with a mediator who won’t talk directly to my client or the corporate representative.
The lawyers' job is to represent their clients and the mediators job is to bring the lawyers together. If the lawyers are in the way, the mediator needs to ignore them for a while and deal directly with the clients. Ensure that the mediator you’ve agreed to will do this.
Before The Mediation Set A Time Limit For Real Progress
This last point is something that I’ve only started employing in the last few years, and it’s worked wonders. In a courteous and professional tone, I inform defense counsel that if we’ve not made sufficient progress by a certain time or within a certain number of hours – usually 2-3 – then I will leave. What constitutes “sufficient progress” is case-specific, and you’ll know it when you see it. I give this caveat to defense counsel so that there’s no misunderstanding at the mediation. If, by all reasonable measures, my case is worth 7 figures, I’m not going to spend 6 hours trying to get to 6 figures. I simply will not let that happen to me anymore.
By informing defense counsel ahead of time that I won’t stay more than a couple of hours unless I see real progress, I’ve managed to avoid many of the lowball offers that usually start the defense side of the mediation. Or, if I get a lowball offer, the numbers start increasing once I remind the mediator and defense counsel that I will leave if substantial progress isn’t made.
Of course, this point applies equally to plaintiff’s counsel. I can’t start off at $10 billion dollars like Dr. Evil with a law degree. I make sure that my offers are within reason so that I can be justifiably indignant if defense counsel starts playing games with the offers.
One Size Does Not Fit All
As I said at the beginning, there is no foolproof way for the plaintiff lawyer to approach mediation. There are numerous approaches and many depend on the parties involved. These are some of the broad categorical approaches that I take and they’ve worked for me. I hope that you find them useful as well. Happy mediating.
About The Author
Brian Herrington is the founding partner of Herrington Law, PA in Jackson, Mississippi. Licensed in Mississippi and Tennessee, Brian litigates consumer class actions, cases involving defective drugs and medical devices, and personal injury cases all over the country.
First, I'm honored to be guest blogging while Vickie is away campaigning her heart out until November 4. I'm also a little intimidated to be here as I can't speak on negotiation with the authority Vickie can, after all she's a distinguished and honored expert on the topic.
However, I can speak on negotiation as a lawyer and a human being dealing with every day life. So in this post I will speak to both the skill sets which lawyers must employ every day of their lives both professionally and personally and the strange phenomenon which exists when lawyers are 'off' the job but are still known to be, or deliberately make others aware of the fact, they are lawyers.
A lawyer in many ways can never really step away from their professional reputation unless it remains hidden from those we are negotiating with. And you know exactly what I'm talking about. How many times have you negotiated with a vendor or customer service representative and when you feel you are losing ground or the other person is not taking you seriously you pull out your trump card, "Well, I'm a lawyer." What are you expecting? Be honest. You are expecting them to take you seriously now with the unspoken threat of legal action if they don't some how immediately capitulate or offer some type of concession to your demand. You've implied you have this superior intelligence and set of skills and you are not afraid to use it to threaten their job. How many times have you subtly threatened the same in a letter for a personal situation simply by using your business letterhead? Gotcha.
Well, what happens when the reverse is true? When someone you are negotiating with uses your status as a lawyer to escalate the situation? They don't treat you in the manner they would a friend or neighbor because they assume you will be aggressive and immovable on a matter precisely because you are a lawyer? They fire the first volley and create a situation where you have to defend yourself first by saying, "I'm not here as a lawyer. Why are you threatening me with legal action?" You are ultimately responsible for de-escalating a situation simply because they know you are a lawyer.
This very thing happened to me with a neighbor and I had to literally work backwards from the implied threat of a law suit simply because I am a lawyer. And in it are some valuable negotiation skills I want to share with you.
I've lived in my home six years. Both my neighbors are original owners having been there for more than 35 years. In between my home and my neighbor to the right are 40 foot pine trees and several 60 foot hickory trees which are quite old. My neighbor approached my husband and said he was going to take down two of 'his' trees, one of which sits on the edge of my property in an 'island' of trees bordered with decorative brick. When I heard he wanted to take down one of 'my' trees I went to his home and asked why he wanted to take down one of 'my' trees? He proceeded to tell me it wasn't my tree. "Then why is it in 'my' island?" "Because I told the original owner I had no problem with her using her decorative brick around it for aesthetic purposes. But now I want to take it down."
Well, while this neighbor is a friendly guy, I don't believe he gives away freely that which is his. He didn't like the leaves blowing into his yard and thought he could get away with claiming it was his. I asked him if he would show me the property card because I really wasn't sure this was his tree and I really enjoyed the tree. (Up to this point all was done in a very nice, cordial, friendly way.) His manner immediately changed, "I'm not showing you anything. I don't care if you don't want that tree coming down. It's mine and it's COMING down. And I know you're a lawyer and you can sue me if you want. It will come down when you're not home. And if you think that's going to bother you, wait till I take down all those pine trees in the spring." He's screaming this as he points to the beautiful natural fence between our homes. And he has now also upped the stakes.
So, let's talk about the practical aspects of this. First, he's a neighbor. Second, he could very well take the tree(s) down when I'm not home and no matter what happens in any litigation, the tree(s) are gone and irreplaceable. Third, I had no proof, just a very credible suspicion the tree was not his. Fourth, he was taking the tree down within a week. Fifth, he was immediately hostile and assumed because I was a lawyer I would threaten suit and use my magical 'superiority' that lay people fear in order to bully him. He seemed to have taken all options for discussion off the table simply because I was a lawyer. He attacked first.
It would have been very easy to escalate this. Here's what happened instead:
Me: (Jack)...let's slow down here. What's really going on? This is not like you. There's more to this. Is something else bothering you? Jack: No, nothing. This is my tree and I'm taking it down whether you like it or not. Me: Jack, let's get away from the tree for a minute. You're really edgy. I'm not used to seeing you like this. Is everything, OK? Jack: (Pause)....Well, my aunt is in the hospital and it doesn't look good.
(This went back and forth for a while as he slowly revealed his aunt's condition, a woman who had raised him, and it was impacting him deeply.)
Me: Now it makes sense to me why you're so on edge. Jack: (He brings back the topic of the tree.) "Step on my porch, Susan and you'll see the top of that tree is dead. I'm willing to pay to take it down."
All of a sudden, there is a subtle acknowledgment the tree isn't his. But now he has also pointed to a reason I would want the tree to be taken down. He would pay for its removal now or I could pay several hundred dollars for it later. He is trying to find consensus..or reaching across the table.
The end result is I agreed to let him pay to take the tree down. He did all the prep work around the tree and we both interviewed and agreed to the right tree service. After the tree was removed he told my husband he would not take down the pine trees that separated our properties. (I believe, although he planted those trees, he planted them with the agreement of our home's previous owner to do so on the joint border...a little tidbit I remembered from a previous conversation.) But this gave him a chance to be gracious and conciliatory.
The end result: I got what I wanted, someone else to pay for the removal of a tree which apparently was dead on top, no more threat of removal of the pine trees, no need to spend money on a property survey, either. He got what he wanted, the 'dirty' tree removed while we both got something else, preservation of our neighborly friendship and working together as a team on joint matters. This 'partnership' has since extended into other neighborly issues like shopping for home heating oil as a group to have better negotiating power, etc.
It's very hard to un-ring the bell when someone assumes because you are a lawyer you are incapable of not acting like a lawyer in a situation where both parties need to feel like they are on the same footing. And given most lay people's perceptions of lawyers and the casual way lawyers use their 'trump' card, is it any wonder.
At the heart of negotiation is listening twice as much as you talk and the ability to step into another person's shoes with genuine compassion. In our 'negotiation' everyone walked away with more than what they wanted without litigation in spite of the fact one of us was a lawyer. This neighbor got a chance to reclaim his good neighbor status because I took the time to figure out the thorn in the lion's paw.
Susan Cartier Liebel is a national coach/consultant working with newly minted or well-seasoned lawyers who want to create and grow their solo practices. She authors the popular blog Build A Solo Practice, LLCand is the creator of Solo Practice University - a revolutionary web-based educational and professional networking community for lawyers and law students.
After eight years of catastrophic Republican misrule—in the midst of economic crisis and rising unemployment, in a nation plagued by ruinous energy costs and inflation, bank failures, and staggering public and private corruption—an eloquent, charismatic, intelligent Democratic candidate was locked in a statistical tie with a doddering old hack whose primary argument for his claim to the most powerful office on earth is that he was shot down over Vietnam and tortured for five years. Indeed, this remained the case even after McCain demonstrated beyond all doubt, in his impetuous selection of a ludicrously unsuitable vice- presidential candidate, that he lacked the good judgment that is the primary qualification for the job. If the Democratic Party loses this election, then it should forever concede the presidency.
Ouch! I read this magazine for the same reason I watch Fox News. To upset my own comfortable ideologies. That's the trouble with us liberals -- we're always fretting about being fair, when, according to Harper's Roger Hodge we're just a big bunch of conflict-avoidant pussies.
Conflict in politics is not a metaphor, and as with any fight, the audience is likely to get involved. That is the essence of politics. A campaign that decides in advance that voters are tired of negative campaigning, that they are sick of partisan attacks and will respond only to positive messages, has stupidly left the field of battle. The people who truly dislike political combat are presumably among the 95 million who do not vote. Senator Barack Obama, a sophisticated and intelligent man with sophisticated and intelligent advisers, promises to change Washington, to eliminate the tone of partisan rancor, to foster a new spirit of brotherhood and cooperation. Poor lamb, he wishes to lie down with lions. But the Kingdom has not come.
Unfortunately, the sovereign voter can do little, on his own, to remedy the situation, especially if he happens not to live in Florida or Ohio. Yes, he can make a campaign contribution, a slightly more effective form of voting, but unless the Obama campaign decides to wage a more creative and destructive war, casting monetary ballots remains an empty gesture. (Of course one can also join the battle personally, perhaps by repeating the rumors about John McCain’s Alz heimer’s meds or the Sarah Palin sex tape.) Ultimately, we return to the problem of political will, to the Democratic Party, to the commitment of its party bosses to prevail, finally, in this election.
We can hope for change, that the Republicans will make some fatal error, or that Obama’s party will fight hard enough to persuade a decisive number of “low information” voters that John McCain is not only a liar but a menace to our children’s future. Recent precedents, however, are not encouraging. The Republican Party lied its way through eight years of criminal misrule while Democrats mostly just cowered in a back room. Now, faced with a clumsy deception about whether Sarah Palin sought an earmark for a small town in Alaska, Obama exclaims, “Come on! I mean, words mean something, you can’t just make stuff up.” Oh, yes, Barack, we can.
In the same issue that suggests we dirty our hands by calling John McCain a liar and the Bush administration's "misrule" criminal, we read that Obama is a detached blank screen upon which voters can project any quality they like (or dislike) because . . . well . . . his mother was lonely and so is he:
Obama wants to believe in the common good as a way of providing a fullness to experience that avoids the slide into nihilism. But sometimes I don’tknow if he knows what belief is and what it would be to hold such a belief. It all seems so distant and opaque. The persistent presence of the mother’s dilemma—the sense of loneliness,doubt, and abandonment—seems palpable and ineliminable. We must believe, but we can’t believe. Perhaps this is the tragedy that some of us see in Obama: a change we can believe in and the crushing realization that nothing will change.
This is usually the point at which my own McCain-supporting mother breaks in with "honey, you know, you can think too much." And after years, decades really, of finding this refrain irritating, I finally agree with her about the thinking part if not about her taste in Presidential candidates.
Like the Obama caricatured in this month's Harpers as an ineffective dreamer as intent on replacing his deceased mother's lack of faith with liberal-Christian-do-gooding as Oliver Stone suggests "W" was intent on finally pleasing Daddy, I simply choose to have faith in the stated values of the Democratic party. I continue to believe that over time, we can do better as a nation through consensus and problem-solving, collaboration and compromise, than we can by adopting the tactics of the world's strong-arm leaders and disciples of discord.
The Good News
Assuming that the guy I think Obama is -- highly educated, articulate, and idealistically dedicated to serving the common welfare -- actually exist on the political scene (and I will not give up this faith any more readily that others would renounce their own religions) I believe them to be riding the bow-wave of transformation. I have staked my professional life on this faith in my fellows' ability to work toward the common good, abandoning the extremely lucrative practice of legal battle in exchange for the far less financially rewarding practice of collaborative negotiated conflict resolution.
Who are the real cowards here and who the heroes? People who refuse to negotiate face-to-face "without pre-condition" ("we won't discuss settlement unless they're willing to put $10 million on the table first") and without the protection of several layers of legal counsel? Or those who are willing to test the rectitude of their "position" by sitting across a table with their opponent to frankly discuss their mutual role in whatever commercial or personal catastrophe flowed from the intersection at which their (mis)fortunes collided?
So I will continue to brave reading Harpers (which discourages me) and risk the challenge to my world view of Fox News commentary (which so often enrages me) on the off-chance that my religion -- tolerance; compassion; collective effort; empathy and the like, has more staying power than the religion of hate; discord; and, denial.
And I will also continue to believe that none of us could ever possibly be right.
The first thing we mediators are taught (after digesting the imperative to "be conscious") is that people in conflict need to be in an atmosphere of hope and safety to be able to: (1) recognize the point of view of another; (2) be accountable for his/her own "part" in the dispute; and, (3) generate creative solutions to bust past impasse.
Perhaps the good times are in fact dead. And certainly someone thinking of forming the umpteenth "Web 2.0-widget-to-grab-audience-and-find-advertisers" ought to pause to think whether they really have some kind of defined competitive advantage that can translate into a sustainable business.
But real customers continue to face real problems. And as always, innovators who figure out different ways to solve those problems--and make money doing so--will have opportunities to create new growth businesses. In fact, the creative destruction unleashed by a crisis always opens up opportunities for innovation.
As a simple example, consider a New York based startup called On Deck Capital, Inc. As described in Monday's Wall Street Journal, the company loans money to small businesses. Instead of relying on individual loan officers to pour over episodic financial information and make decisions, the company has an algorithmic approach that uses software to analyze a company's day-to-day activities in a non-obtrusive way to assess credit worthiness. Its loans feature higher interest rates than loans from most banks, but lower than alternative sources.
The company launched in May, and has already distributed $10 million in loans. It has suffered very few defaults. The current credit crisis and hesitancy of many banks to loan to even the best-run small businesses creates substantial opportunity for On Deck to extend its model.
I watched the debate last night with people who support my candidate. They all also happened to be mediators, so they understand concepts like confirmation bias --the tendency to search for or interpret new information in a way that confirms one's preconceptions and avoids information and interpretations which contradict prior beliefs. It is a type of cognitive bias and represents an error of inductive inference, or as a form of selection bias toward confirmation of the hypothesis under study or disconfirmation of an alternative hypothesis.
I've been Twittering (shoot me! this is addictive behavior). But all behavior has it's "up" side. The "up" side to following my Twitter network's running real-time commentary of the debate was the exposure of my own (and my friends') confirmation bias. I have both McCain and Obama supporters in my network and it was as if the two groups were watching entirely different debates. And they were.
Because nothing is objective. Let me repeat that. Nothingis objective. Everything we hear, see, touch, smell and taste is filtered through our entirely personal experiences, the collective or "received" reality of the society (micro or macro) in which we live, and interpreted based upon those experiences, which are further complicated by universal cognitive biases and particular core beliefs (our "operating principles").
If nothing is objective, there is no truth beyond that which one has faith in. ("faith is the substance of things hoped for, the evidence of things not seen.")
Yes, I know, the scientific method. But you and I don't test our beliefs, opinions, perceptions and conceptions by the scientific method. We hear, we see, we smell, we taste, we touch and we respond. We opine. We believe we are right.
So I said to my friends in the middle of the debate, "we're an example of "confirmation bias" and they took issue with me. And I let it go because I wanted to listen more than to impose my own view of our collective experience. And I was Twittering, lord help me, with some people who didn't share my bias.
I missed statements made by McCain entirely. It was if I hadn't even heard them. I was listening to confirm that which I already believed, which means I screened out what didn't fit my view of McCain or Obama and highlighted those statements that confirmed my existing beliefs.
This is what happens every time you try a case to a jury. It's why the little "g" god of the market place created jury consultants. It is also what happens everytime you try to settle litigation. Litigation raises confirmation bias to holy writ. Which is why the little "g" god of the market place created mediators. Why? Because the client has filtered his opening story through his own subjective experiences, which we, the litigators, devote ourselves to proving by cherry-picking the facts that conform to those experiences and disputing all those that don't. By the time the parties and their counsel get to me, they're often in different galaxies. And I need to help them remember, or realize for the first time, that their opponent has woven the disparate facts of "what happened" into an entirely different story, and has done so without "lying" about those events. Just as importantly, the parties come to understand that a jury might well "buy" their opponents tale as the "right" one.
Here's the more important point to getting a better deal: your opponent is often nearly as interested in your acknowledgement that his version of the events might be as accurate as yours as he is in "winning" the case. When (or if) the parties clear this hurdle, they can get down to serious horse trading, benefitting both.
So, forget the pundits. If you believe your guy "won" last night, it's probably equal parts a measured opinion and a peculiarly subjective experience, one that you do not even know you've tailored to fit your own view of reality.
I like Obama because I believe he acknowledges this from time to time. Not always. But often enough to make me feel comfortable with him in a White House. Am I right? How could I possibly be? We won't know anything until one of these men moves from campaigning to governing.
We'd like to take this opportunity to thank Diane for her many contributions to Blawg Review, having now hosted four outstanding presentations -- #43, #94, #130 and #181. Behind the scenes, in her role as a Blawg Review Sherpa, Diane has made contributions to many other issues of Blawg Review, too. So, speaking for myself and all the other Blawg Review hosts she's helped along the way, we'd like to say thanks a bunch and give you this extra little bit of link love to show our heartfelt appreciation.
Tomorrow I'll start my day by reading, and giving my own readers a head's up on what looks to be one of the best Blawg Reviews of the year by the best ADR blogger ever.
(totally unrelated photo; just getting my iPhone photos from Paris in the mix)
But what a Blawg Review Diane has given us. Thank goodness it's Columbus Day or I'd be short-changing my actual work-work by reading #181 half the day and its links the other half of the day. And don't expect Diane to limit herself to mediation. Most of us are also lawyers, after all, so she also covers the best legal posts of the week on the topic of the law, legal practice, life as lawyers -- the "whole catastrophe" as Zorba said.
Earlier this week I was asked the following question by a concerned General Counsel: how can we help our employees grapple with on-the-job justice issues without leading them to believe that our proposed solutions are untrustworthy.
Our company spends an inordinate amount of time explaining disability, workers comp and federal employment law to employees who misunderstand what their rights are, or do not give us the right information to help them get the help they need.
Of course, we are the big bad employer, so any information we give them is suspect. I have considered hiring a social worker as a case manager/advocate for these people, but that position would just be interpreted as another tool of the evil employer out to keep them out of work/make them go back to work in violation of their best interests, so it would be a waste.
We would LOVE if there was an independent agency that would assign a case worker, not to work as an attorney for the employees, but as an advocate to help them understand their rights and access the system correctly. I would gladly pay to fund this service.
Then I realized, if the employer, or a group of employers, funded this employee advocacy agency, employees would think the advocates were biased toward the employers and were just in a sham relationship to deprive them of their rights to serve the interest of the employer.
Now, I do not believe this would be the case. I trust in the professionalism and ethics of mediators, but I do believe that uneducated and single users would form that opinion. Professor Murray's opinion reinforces that conclusion, even though at first glance, he would seem to be "educated."
But, is bigger government the answer. My experience with the EEOC is that they want employers to do MORE than is required by law. We have had success with mediators after complaints are filed, but my goal is to get the employees what they need when they need it, not have a mediator help us fix it after time has run out.
What are your thoughts on this?
The Problem as Cognitive Bias
I've highlighted the sections of the GC's email that raise the problem of reactive devaluation -- our tendency to devalue and resist anything our "opponent" offers to us. Most attorneys were taught reactive devaluation as first year associates -- "if opposing counsel wants it, you don't."
One can be led to conclude that any proposal offered by the “other side”—
especially if that other side has long been perceived as an enemy—must be
to our side’s disadvantage, or else it would not have been offered. Such an
inferential process, however, assumes a perfect opposition of interests, or in
other words, a true "zero-Sum" game, when such is rarely the case in real-
world negotiations between parties whose needs, goals, and opportunities
are inevitably complex and varied.
Combatting Reactive Devaluation in the Workforce
Cognitive biases such as reactive devaluation are not random artifacts of an irrelevant evolutionary past. They are built-in protections against deception by our friends as well as by our adversaries. There is only one lasting protection against this bias -- to engage in clear communication with your work force on a daily basis concerning the mutual and complementary interests of employer and employee; to express your belief in your interdependence in word and deed, i.e., by engaging in dialogue and activities demonstrating benevolent intent; and to willingly listen to one another's complaints, understanding that one man's benevolence is another's bondage.
What's a diagnostic question? One that would reveal our bargaining partners' needs, desires, priorities, preferences and motivations. I'm no employment expert, but I have participated in the management of law firm personnel as a partner and have been managed by others throughout my professional life. As a full-time mediator for more than four years, I have also asked hundreds if not thousands of diagnostic questions to help litigation adversaries understand one another's motivations, to reframe those motivations as non-threatening, or, at a minimum, the result of ordinary human fallibility, and to explore the parties' mutual and complementary interests. I also remind my parties and myself as often as possible that you cannot drill a hole in the other guy's side of the boat without making your own side sink to the bottom of the lake as well.
Empowerment, according to [the fathers of the transformative paradigm] Bush and Folger, means enabling the parties to define their own issues and to seek solutions on their own. Recognition means enabling the parties to see and understand the other person's point of view--to understand how they define the problem and why they seek the solution that they do.
(Seeing and understanding, it should be noted, do not constitute agreement with those views.)
Often, empowerment and recognition pave the way for a mutually agreeable settlement, but that is only a secondary effect. The primary goal of transformative medition is to foster the parties' empowerment and recognition, thereby enabling them to approach their current problem, as well as later problems, with a stronger, yet more open view. This approach, according to Bush and Folger, avoids the problem of mediator directiveness which so often occurs in problem-solving mediation, putting responsibility for all outcomes squarely on the disputants.
Rights and Remedies vs. Interests
It's not surprising that employees just don't seem to "get" the legal rights and remedies company HR departments keep trying to explain to them. They don't make any sense absent legal training.
People who are not lawyers simply don't understand why there is a legal remedy for one type of injustice but none for another that feels just as unfair. Let's take our patchwork of Constitutional protections for employees. As an life-long ACLU member, I'd be the last to denigrate them. But we have to understand that we've created a "fair" workplace for only some of our citizens, not all of them.
Women, people over 40, under-represented minorities and the like, can take the square peg of their unfair work treatment and cram it into the round hole of a viable cause of action. If an employee does not want to cry "gender discrimination" even though she's being treated badly on the job, or if he has no bundle of legal rights to assert, there is no remedy for a termination that feels (yes, feels) wrongful. Remember, it took us lawyers quite some time for the legal worldview to "click" and we were immersed in it, drilled in it and eager to learn it. Employees just want someone to listen to their problem and to help them resolve it. They don't want to know the wage-hour laws, the need to exhaust administrative remedies with the EEOC and the like.
Employees and employers have people problems with justice issues, not legal problems with "irrelevant" emotional responses that get in the way of resolution.
Expressed emotion is the key, not the lock.
It is we -- the lawyers -- who legalize and monetize injustice, shutting our clients down when they try to explain what the problem really is because it's irrelevant to the legal solution.
If you're old enough to remember the lingering moment in United States history when our educational institutions went from white, on the one hand, to multi-hued, on the other, you'll know intimately how you deal with reactive devaluation. You get to know one another. Do this andKaneesha is not "black" or "African American" but a well-known acquaintance or dear friend. The same is true for employers and employees. Create activities in which (alleged) oppressor and (purported) oppressed come together to engage in mutually productive (Habitat for Humanity springs to mind) and mutually enjoyable (basketball? girls nights out?) activities. At the holiday party, don't relegate the "underlings" to their own table. Walk your talk. Destroy the hierarchy everywhere except where it's actually necessary to get work done.
I can't describe the benefits of interest-based resolutions over rights-based solutions any better than does my mentor and friend, Ken Cloke, in his brilliant new book -- Conflict Revolution.
[r]ights-based processes . . . generate winners and losers, undermine relationships, and result in collateral damage, . . . Since rights rely on rules, change is discouraged, though not prevented, and conflicts are settled rather than prevented or resolved.
This is not easy work. As a mediator, I know how elusive Cloke’s “outcomes” can be
-- outcomes [in which] both sides win and no one loses, when former adversaries en-
gage in meaningful dialogue and reach satisfying agreements, and when power is exercised with and for each other by jointly solving common problems.
I have, I am afraid, given my GC a problem rather than a solution. More accurately, I've suggested an altered way of looking at the problem without a great deal of detail about crafting a solution. Not only could people better versed in employee relations write books on this topic, they have. Therefore, I'm asking my good ADR blogging buddies to please chime in here for you.
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.
See Marginal Revolution's post today The problem is that both of you are right citing David Brooks for the proposition that the "failure to pass the bailout represents a massive failure of American governance and leadership, most of all at the Congressional level. That's true even if you think, for other reasons, that the bailout was a bad idea. (Can any hero be cited in this debacle?)"
There are no heroes in this crisis -- only leaders and representatives of the people, many of whom are now being seriously burned, most particularly in their retirement accounts.
We need in Congress what every negotiation requires: preparation, communication, collaborative problem solving and, in this particular bargaining session -- courage, which Webster's defines as
"the attitude of facing and dealing with anything recognized as dangerous, difficult or painful instead of withdrawing from it; quality of being fearless or brave; valor. The courage of one's convictions or the courage to do what one thinks is right."
Come to think of it, all negotiations require courage.
So get back up on the donkey, Congress; be prepared; be principled; be brave. We're counting on you.
And for those who aren't afraid to admit that they don't know the difference between a strategy and a tactic, here's a brief tutorial.
If ever there was a time for resonant leadership, it's now. We need to rise above panic. Panic kills. Really, it does. If you're caught in a riptide (which we are) and you freak out, flail, fight it, you will die. If you smell smoke in the house and run wildly around gathering things you will die. If you freeze in your bed and hope the smoke is outside, not inside, you'll die.
This is not a time to give in to panic. Of course we are scared. It would be stupid not to acknowledge that the economic world as we know it -- knew it -- has changed fundamentally and forever. Actually it probably changed a while ago. We just ignored it, covered it up. So we are justifiably terrified. Now what?
Let's do something with our feelings, rather than let our emotions do something to us. Fear has its place -- it gets our attention. But we can't let it paralyze us. This is a time to breathe deeply. To think about what is most important -- family, life, health, love, purpose. And for my countrymen and women -- let's think about who we are as Americans. We can move beyond fear. What's beyond fear? Hope. Creativity. Resilience. Compassion. Courage.
Back to my daughter Sarah for a minute. She's at work today, in good spirits and having fun helping to create an awesome TV special about an inspiring American hero. My brother --also at work, creating. That's what he does--he creates new solutions for new problems. And me? I'm at work too. I spent the day with my team, a group of incredible people who dedicate their lives to others.
No, it won't be easy. But yes, we can make it, and we can make a better world too. That is not a noble goal, it is a necessary goal.
A final word. Common wisdom, backed up by research: hope, optimism, good humor and compassion (among other positive emotions and experiences) can literally free us from the deadly psychological traps of panic and anger. It takes tremendous self-management. But we can do it.
It is not the critic who counts, not the man who points out how the strong man stumbled, or where the doer of deeds could have done better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood, who strives valiantly, who errs and comes short again and again, who knows the great enthusiasms, the great devotions, and spends himself in a worthy cause, who at best knows achievement and who at the worst if he fails at least fails while daring greatly so that his place shall never be with those cold and timid souls who know neither victory nor defeat.
Moral cowardice that keeps us from speaking our minds is as dangerous to this country as irresponsible talk. The right way is not always the popular and easy way. Standing for right when it is unpopular is a true test of moral character.
Today, Scientific American warns us that emailers tend to deceive one another more readily than do those who use pencil and pad -- see Business, Lies and Email here, excerpt below.
E-mail is often a rather casual form of communication. Language is more informal and grammar, well, it ain’t a priority. Now comes a study that finds that people tend to lie more in email than when writing with pen and paper. This research from DePaul, Lehigh and Rutgers Universities. . . . .
As California's longest budget stalemate in state history ground to a close, six professional mediators met with The Bee's Capitol Bureau last week to offer their thoughts on building a more functional state budget process.
Their advice in a nutshell: Improve lawmakers' communication skills, train them and their aides in mediation techniques, set up a structured negotiation process long before budget deadlines approach, agree on common goals, build trust by reaching incremental agreements – and don't expect perfection.
If you believe that law blogging is not only informative and entertaining, but capable of transforming our lives, our society, our culture and our legal system as well, run don't walk over to Peter Black'sFreedom to Differ which not only rocks, it twitters, on One Web Day. Surely this will be the BlawgReview of the year!
. . . .one recurring theme on this blog has always been a recognition of the value in a strong and free internet. Therefore it is an honour to be able to host Blawg Review on Monday September 22, 2008, which is One Web Day 2008. One Web Day was founded three years ago by Professor Susan Crawford from the University of Michigan, and she describes it as an "Earth Day for the internet". The One Web Day website describes the day in the following terms:
The idea behind OneWebDay is to focus attention on a key internet value (this year, online participation in democracy), focus attention on local internet concerns (connectivity, censorship, individual skills), and create a global constituency that cares about protecting and defending the internet. So, think of OneWebDay as an environmental movement for the Internet ecosystem. It’s a platform for people to educate and activate others about issues that are important for the Internet’s future.
If you'd like to host BlawgReview or submit to it, click here. All future BlawgReview hosts please note -- THE BAR HAS BEEN RAISED!
Murray assures me he is no "enemy" of mediation, reminding me that behind every accusation (mine) is a cry for help (mine) which I sometimes think this entire blog-effort consists of. In Jerry McGuire's words, help me help you. Professor Murray has graciously offered to do so by joining the (soon to be formed) steering committee of the LegalTED Conference about which you'll all see much more after the election.
Professor Murray's comment below.
Ms. Pynchon's comments on my article on privatization of civil justice are right on. Of course the situation is nuanced. Mediation is an excellent technique to facilitate settlement of many, perhaps a majority, of the disputes which end up in the civil courts. My point is that having this service provided by private professionals rather than public servants increases the likelihood of economic influences playing a larger role than they would in a purely public institution. And mediated results, while providing some attributes that litigants cannot obtain in public judgments, does not provide others, namely a kind of vindication and creation of public norms to govern others.
I would be delighted to join a Steering Committee to set up a conference on these issues.
California Federal Court: Insured Plaintiff Can Seek Treble Punitive Damages For Insurer’s Alleged Bad Faith
The U.S. District Court for the Central District of California recently denied a motion to strike and allowed a plaintiff to pursue treble punitive damages against his insurer for the insurer’s alleged bad faith. Novick v. UNUM Life Insurance Co. of America, C.A. No. 08-02830-DDP-PJW (Aug. 7, 2008).
The insurer issued a long term disability benefits policy to the plaintiff in 1976, providing benefits should the plaintiff become totally disabled due to an accident sustained during the course of his career as a surgeon. In June 1992, the plaintiff filed a disability claim with his insurer after sustaining a spinal injury that allegedly prevented him from performing surgery. The insurer initially paid benefits to the plaintiff, but discontinued making the benefits payments on January 18, 2007. Shortly thereafter, the plaintiff filed suit against its insurer alleging breach of contact and breach of the covenant of good faith and fair dealing.
In his complaint, plaintiff seeks punitive damages pursuant to California Civil Code §3294, which allows an award of punitive damages for conduct that constitutes malice, fraud or oppression. The plaintiff also seeks treble punitive damages pursuant to California Civil Code §3345, which provides for an award of treble damages “in actions brought by, on behalf of, or for the benefit of senior citizens or disabled persons . . . to redress unfair and deceptive acts or practices or unfair methods of competition . . . [when] a trier of fact is authorized by statute to impose either a fine, or a civil penalty or other penalty, or any other remedy for the purpose or effect of which is to punish or deter . . . .”
The insurer argued that §3345 does not provide for the trebling of damages for insurance bad faith claims. The court reviewed the legislative intent behind the statute and determined that the legislature did not intend for the statute to be limited to actions that specifically mention unfair business practices. The court noted that, as bad faith claims redress unfair practices, §3345 applies to insurance bad faith claims. Accordingly, as the plaintiff alleges that the insurer acted in bad faith, the court held that the plaintiff is entitled to pursue his request for treble punitive damages.
Now we just need a blogging claims adjuster and we can bring peace to the Middle East.
Below are John's impressive credentials. We meant to meet for a "quick" cup of coffee. We talked negotiation strategy and tactics for nearly three hours.
As I review websites I often wonder about the experiences of the authors and the biases they bring, so I feel I should disclose mine for those who want to know more. I have been fortunate to work with two “hands on” in-house legal teams, with settlement negotiations handled primarily by employed lawyers rather than their law firms. I am also lucky to have practiced in law firms with true trial lawyers who generated genuine negotiating leverage whether settlement was their objective or not. Through these experiences I have settled cases threatened, pending or mediated in about 20 states - from Montana to Florida and from New Hampshire to California - and have managed the resolution of disputes around the world. Working with and against some very good lawyers and employing some of the truly legendary mediators, I feel fortunate to have seen a real cross-section of styles and approaches. In almost all of these cases I have had the opportunity to work behind closed doors with the people who really decide when cases settle - CEOs, CFOs, General Counsel, COOs, individual plaintiffs, insurers, board members, auditors, and more.
First, I note that much of Professor Murray's article focuses on arbitration agreements that are forced down the throats of consumers -- an injustice that is so far removed from one that might arise in a mediated settlement conference that I'd like to address it separately on another day.
Second, I am not without criticism of court-annexed mediation practices -- those criticisms populate this blog in great number. Nor am I naive or inexperienced enough to pretend that mediators do not effect party decisions even when they are represented by attorneys who are presumably mediation- and mediator-savvy.
Nevertheless, re-reading Professor Murray's criticisms of mediation this morning, I am once again stuck by the number of untested assumptions upon which he bases his pretty radical suggestion that mediated settlement agreements be vetted by judicial officers. The major and minor premises of Professor Murray's accusation that mediation corrupts justice include the following:
there is only one set of "powerful repeat players" -- insurance companies -- who choose and use the services of mediators;
the other set of repeat players -- plaintiffs' personal injury and employment counsel -- are more or less universally poorly equipped to either influence the mediator or to protect their clients from mediator bias;
the easily influenced plaintiffs' bar, if not protected from mediator bias, will counsel their clients to voluntarily enter into sub-optimal settlement agreements that favor the interests of insurance carriers over those of their own clients';
there is such a thing as an "objectively bad settlement" that a judicial officer would be equipped to detect and remedy;
money paid to a "neutral" is the only pernicious influence on dispute outcome, as opposed to, say, racial, nationality, gender, and/or any other socio-economic differences between a judicial officer and a litigant or between the jury and a litigant; and,
judicial officers are not subject to the influence of the repeat attorney-players who appear before them and socialize with them at Bar Association and other events.
Of all of the assumptions requiring testing before we impose a supervisory judiciary upon mediators, the premise that an objective, measureably "reasonable" settlement of any dispute exists is the one that most requires addressing.
Because I could write a book on this topic, let me just highlight some of the factors that would make third-party vetting of mediated settlement agreements difficult to impossible.
money is not the only reason people file suit nor the only basis for their decision to settle it;
whether the litigation at issue is a $2500 slip and fall action between a local grocery store and its customer; or a billion dollar insurance coverage dispute between an insurance carrier and an oil company, the people and commercial players involved are at least as -- if not more -- concerned with injustices that the law does not address as they are with those that it can address;
though mediated settlement agreements are partially based upon the cost of further litigation and trial, on the one hand, and the probability of victory times the potential jury verdict on the other hand, they are also based on party needs, desires and fears that have nothing whatsoever to do with legal causes of action such as:
a corporation's fear that it will not be able to overcome jury bias against commercial enterprises, particularly if that enterprise is engaged in providing liability and/or property damage insurance to its customers;
the fear of individuals that they will not be able to overcome jury bias against any marker of their marginalization from the dominant culture such as color, gender, nationality, sexuality or religion;
the desire that one's opponent acknowledge responsibility for the role he/she/it played in the events giving rise to the dispute and for the actions taken to resolve it, many of which further inflame the parties' experience of injustice;
party desires for revenge; and,
party tendencies to "read" and "spin" the dispute in a way that is favorable to him/her/it in all particulars -- misperceptions that are often corrected in the course of joint sessions between the parties who actually experienced the injury-causing event.
Examples of ways in which parties are able to resolve conflict in the context of their highly individual interests rather than the little buckets of rights and remedies into which we pour the facts of their dispute?
a physician gives his consent to settle a malpractice action when he realizes that the Plaintiff is not attempting to "hold him up" but genuinely experienced the breast examination he gave her as an assault;
the creditor agrees to settle for pennies on the dollar when convinced by evidence proffered during a confidential mediation session that the debtor would be bankrupted by any payment in excess of the offer (evidence not discoverable in litigation because it is not "relevant" to the causes of action alleged);
garment manufacturers settle acrimonious copyright infringement litigation after their counsel allow them to have a confidential mediation conversation which cannot be used in court against them during which they learn that they have more in common -- and more ways to advantage one another economically -- than they have to fight about;
a claims adjuster is brought to tears -- and seeks greater settlement authority -- by a father's frank confession in a confidential mediation conversation of the guilt he carries for the loss of his child in an automobile accident caused by the high speed blow-out of an allegedly defective tire; and,
family members not only settle their lawsuit but reconcile after years of self-imposed exile when they realize the "family" asset they've been fighting over is worth less to them than their love for one another.
What I'd like Professor Murray and everyone who reads his article to understand is that we all share this justice problem. The adjudication system is not working well for the people it was designed to serve. The ADR options we've put in place to smooth out the rough edges of 18th century adversarial theory and practice are themselves insufficient to efficiently and fairly resolve 21st century conflicts.
That's why I'm calling for a LegalTED Conference. And if Professor Murray will forgive the snippiness of yesterday's post, I'd like him to be one of the members of the Steering Committee.
Because we mediators spend so much time listening to litigants' competing stories of right and wrong, I don't think I'm going out on a limb to say that we "get" the great gray expanses that separate fear from understanding, anger from compassion and "the truth" from one's subjective experience of it.
What motivated this post was a recent challenge to a mediator's "right" to express his political beliefs in a mediation forum. "You're supposed to be neutral," said the challenger. "It's wrong and unprofessional to express your political beliefs here."
As the Presidential election nears, I want to clarify my own views on mediation neutrality, particularly my belief that we mediators do and should leave our neutrality when we close the mediation room door. Neither I, nor this blog, is "neutral" about the upcoming election. I am actively campaigning to elect Barack Obama because I believe he is best suited to withdraw our troops from Iraq, reconcile ourselves with the world community, respond to conflict as a negotiator rather than as a conquerer would, and restore the damage done by the Bush administration to the rule of law in America. If I cannot say this because I am fearful of offending some of my readers or concerned that some potential clients will choose not to use my services, I would count myself unworthy of the freedoms fought for by those who came before us.
What it Means to Be an ADR "Neutral"
Though there is disagreement among scholars about the precise nature of "mediation neutrality," a recent article on the subject at BeyondIntractability.com expresses my own view. That article quotes negotiation gurus Kevin Gibson, Leigh Thompson, and Max Bazerman on the three distinct types of neutrality that mediators can and do practice.
Neutrality as impartiality, which holds that the mediator should be free of bias and should set aside his or her opinions, feelings, and agendas;
Neutrality as equidistance, which focuses on the idea that mediators should try to give equal consideration to each side; and,
Neutrality as a practice in discourse.
These theorists believe, as do I, that it is part of a mediator's job to assist the parties in framing the problems and to lend guidance in expressing their tales of injustice to one another. The mediator, say these scholars,
gives each side a chance to talk about their positions and concerns, and then reframes these issues in a more neutral way so that parties are more likely to listen to and understand the other side's viewpoint[, t]hne helps the parties . . . explore settlement options and to move toward a solution that all can agree on.
Neutrality from this viewpoint "means that the mediator who facilitates this discussion should not have an interest in advancing the goals and positions of any party involved."
Leaving One's Neutrality at the Mediation Room Door
To help people resolve conflict requires a mediator to develop certain ways of listening; particular ways of communicating; and, specific ways of thinking about the malleability of "objective reality" in our subjectively experienced lives. The practice of mediation is also revelatory of the raw power of people's affiliative desires -- their persistent urge to reconcile differences and settle accounts.
When I leave the mediation room, I remain a mediator in spirit -- one who has seen the value of negotiated resolutions over the useof brute force and the power of collaboration over deference to an authoritarian decision-maker.
[c]apable international diplomacy requires open and committed listening, informal problem solving, prejudice reduction, collaborative negotiation, public dialogue, mediation, arbitration, ombudsmen’s offices, conflict resolution initiatives, and a panoply of proactive, adequately-funded resources that can be brought to bear on any problem. Positive examples can be found in every successful mediation and collaborative negotiation. Ideally, peace-making should receive the lion’s share of our national budget, allowing us to train every diplomat, and international representative in the most advanced mediation skills, include mediation in every treaty, and form an international corps of conflict resolvers, capable of building conflict resolution capacity globally, including in the US.
As mediators, we need to recognize that we also are global citizens, and responsible by virtue of our knowledge and experience for helping to save the planet. We need to weigh in on the important issues of the day that directly touch on our expertise, including not just who we negotiate with, but how we negotiate and why. Without it, Obama and the perspective he represents may succumb to those who think patriotism requires war and the slaughter of innocents. The time to speak up is now.
In electing a new President to lead us into a productive future, I believe, as do many of my mediator friends and colleagues, that Barack Obama is the clear choice. If our political future is important to us, we will not hesitate to publicly lend him our support.
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.
We trained women in the skills necessary to pass apprenticeship tests so they could gain entry into the skilled trades. We opened the way for women to work at one of San Diego's largest employers -- National Steel and Shipbuilding. We helped all women, including those who'd spent time in prison and battered women's shelters, find employment to help them break a cycle of poverty or move from the lower to middle classes by their own efforts and to provide better lives for their children.
We were the so-called Second Wave women's movement, seeking and achieving the same education, training, work and respect that were only a white American man's entitlement when I was born in 1952.
If you want to know what it was like for women when I was ten years old (1962) and my own divorced and single mother was working for $1.29 an hour selling bags and hoisery at a Leeds shoe store in San Diego, watch a single episode of Mad Men. Follow "Peggy" who is opening professional doors long before there were any ceilings in men's rooms to crack. Watch how women were treated and how little they thought of themselves. Think of the way in which we were squandering our human resources by relegating my mother, your grandmother, to just a few honorable but limiting professions -- nurse, secretary, teacher.
(yes, this is the same typewriter I used in the typing pool at Arthur, Dry & Kalish in mid-town Manhattan in 1975; we had one woman attorney in the firm when I joined; she was in her 50's and was still an associate in trusts and estates)
To negotiate our way into a better world in the 21st century, we'll need to understand one another better and learn to drop all of our stereotypes about men or women, black or white, Muslim or Christian.
So let's all celebrate universal suffrage today. Self-determination -- which is what mediation is all about -- democracy liberty justice.