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.

When a story appears to be misframed, particularly one that arouses strong feelings, people tend to feel betrayed by their news sources. That's what happened this morning with the New York Times article on Tamerland Tsarnaev's path from one of our most nakedly violent sports - boxing - to terror.

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.

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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.

The tips below are from the most recent white paper being circulated by the Harvard Program on Negotiation.

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

There's more, but I'll let you wander on over to the PON site to get the rest of the goods.

If you'd like to see what a great negotiation teacher Lisa is, check out this video from Lynda.com.

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.

Continue reading here.

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.

Continue reading here (which is also where all the links are)

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).

Continue reading here.

Naivete and Cynicism in Negotiations and Other Competitive Contexts by Chia-Jung Tsay, Lisa L. Shu and the great Max H. Bazerman. Executive Summary from Harvard Working Knowledge below:

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.

Excerpt below - thanks to Stephanie West Allen for the link:

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.

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.

Over at Harvard Business School's Working Knowledge site there's an excellent article entitled Valuation When Cash Flow Forecasts are Biased.  Executive Summary below.

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.

Priming Legal Negotiations is the winner of this week's Golden Asshole Award. /*  An autographed copy of A is for Asshole, the Grownups' ABCs of Conflict Resolution will be winging its way to author Carrie Sperling, Executive Director of the Arizona Justice Project today!  Excerpt below.  Full article at the link.  

Thanks to the Legal Writing Prof Blog for the head's up.

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!

Cross-posted at The ABCs of Conflict Resolution Blog.

__________________

*/  The Golden Asshole Award is given once a month to the individual making the greatest contribution to reducing assholishness in the profession.

• 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

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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.

. . . and the Supreme Court has it.  Check out The Female Factor over at Slate (excerpt below):

I continue to bark at the moon.

Here's a piece I missed in April on real litigation filed over virtual property in Second Life.

Architect David Denton spends much of his time on a lush tropical island, where he experiments with cutting-edge building designs and creates spaces for artists to showcase their work.

Never mind that the island only exists in the virtual-reality world of Second Life, a popular online venue where people interact via digital avatars. Denton, 62, said he purchased the island for about $700 — real money, not virtual cash — from its former owner, and considers it his property.

Here's the thought this article triggers.  If 90% of all litigation involving people (I'll skip corporate litigation and litigation brought to vindicate rights such as that declaring Prop 8 unconstitutional) will end with a retired Judge telling the people that litigation is too expensive and a jury trial too uncertain for them to bear, why don't we just litigate virtually (with Linden dollars!) giving the parties the experience of litigation that will eventually drive them to settlement?

I'm sure some smart programmer can come up with an algorithm for most personal disputes, including both factual templates and the application of simple legal principles.  A "ticker" could keep track of the dollars your virtual attorney is billing on your law suit's screen everyday.  Continuances, discovery motions, pre-trial proceedings and depositions could all be simulated.

Then the parties return from the virtual life of Second Life Litigation and sit down in the old fashioned way to negotiate a resolution to their dispute or, if necessary, hire a village elder trained in conflict resolution, sometimes called a mediator, to help them do so.

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.

Here are some resources:

Difficult Workplace Conversations by Conflict Zen blogger Tammy Lenski - an old post but a timeless one.

Bursting the Bubble, Cultivating Dissent in the Workplace by mediator and negotiation trainer and consultant Diane Levin of The Mediation Channel.

Resolving Conflicts at Work by Ken Cloke and Joan Goldsmith.

The Martial Art of Difficult Conversations by Peter (why I returned my iPad) Bregman at the Harvard Business Review

Toward a Theory of Managing Organizational Conflict by M Afzalur Rahim (for the academically-minded)

And, last but not least, the google book site for the Art of War

And remember . . . . never ever ever get comfortable with a reporter around.

Volcker Rule under Attack as Lawmakers Seek Loophole:  full analysis from Bloomberg at the link; double-speak excerpt below.

“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.”

Thanks to the dynamic and brilliant Judy Martin for hipping me to this.  I think I need investment guru Whitney Johnson to explain it to me.

Ladies????  Or anyone else who'd care to explain the Volcker Bill to me, please chime in!

Old.  But.  Priceless.

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.

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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! 

Join Roxana at the Daily Asker- Take the challenge:  Can I ask for something everyday for a year?

I've just signed up for 365 days of asking.

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

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

There's a new blog on the block called She Negotiates! 

Why she negotiates?

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.

Men’s required focus on work stymies their development of networks of supportive intimates, networks that women (naturally) develop and that account for significantly longer and healthier lives.  Men’s required focus on work also contributes to higher rates of heart disease.  As the Harvard Medical School’s Men’s Health Watch recently reported:

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!

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.

"Finesse the Impasse by Changing the Deal" -- Negotiation Wisdom from Lou Meisinger

(right, subversive wall crossing by Bansky)

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?

Three Dimensional Negotiation

On the same day I had this impasse transformation conversation with Lou, I started reading 3-D Negotiation by Harvard Business School Professors David A. Lax< and James K. Sebenius(read the Introduction to the Book Here).

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

"Tactics" are strategies exercised at the bargaining table, such as improving communication, building trust, countering hardball plays and bridging cross-cultural divides.

Deal Design

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.

Setup

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?"

Conclusion

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.

If you've been thinking, "but I'm just a mom" or "my job is ruled by pay scales" or "secretaries can't negotiate" -- think again! And register for the 4-week virtual learning and journaling course in the Craving Balance Learning Community.

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!

Why?

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
  • the right people
  • at the right time
  • with the right interests
  • and the right preparation
• at the table negotiation tactics, including:
  • anchoring
  • framing
  • strategic concessions
  • demands for reciprocity
  • competitive vs. interest-based bargaining
  • the power of "why"

I'm blogging about gender and negotiation this month because March is National Women's History Month and March 8th was the 100th anniversary of International Women's Day (commenced in 1910, a full decade before the Nineteenth Amendment would grant U.S. women the right to vote). 

Today I stumbled over the post Women Deal with Conflict Differently than Men, reporting on a study done by the Program on Negotiation at Harvard in 2008.  Results of the study showed the following similarities between men and women including:

• Integrating, the ability to meet the needs of both parties; and,
• Compromising as a strategy, except women showed a "high level of agreement that every issue has room for negotiation"

The differences included:

• women's tendency to choose equal distributions when compromising which the researchers apparently ascribed to women's greater concern with fairness;
• competitiveness - with men scoring 25% more competitive than their female counterparts
• "smoothing," with women engaging in that behavior 20% more of the time than men - smoothing being defined as "giving in to the other party while ignoring one's own needs"
• avoiding or withdrawing with women doing so 30% more than men
• expressing feeling, with women apparently doing so "more" than men but no percentages are provided

We'll be working with gender differences through the end of the month of March and will likely discuss this data in more detail later.

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.

Take a look at Ron's most recent post, Negotiations and the Samurai Code:  Seven Habits of Highly Successful Negotiators.

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Here are more diversity resources from CPR.

As my book nears completion (A is for Asshole, the Grownup's ABC's of Conflict Resolution) I have more and more discussions about its theme, i.e., that "assholes" (and bullies and enemies) are not people but behaviors and not one person but two.

I've had grown men follow me down the hallway at my mediation home - ADR Services in Century City -  to convince me just how wrong I am about this.  Earlier this week, in yet another conversation on this topic with one of my oldest and most pacific attorney friends, I realized that I needed to differentiate between "assholes" with personality disorders (sociopaths - Tony Soprano;  borderlines - Burton and Taylor in Who's Afraid of Virginia Woolf; and, narcissists - film noir femme fatales such as Barbara Stanwyck in  Double Indemnity) on the one hand and the "rest of us" on the other.  

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;
• clustering illusion (seeing patterns where none exist); and,
• 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.

_______________

1/  That we do this even with animals whose minds we can't possibly know was brought into sharp relief this week as pundits pondered whether a killer whale "meant" to kill his trainer or was only "playing" with her.

2/  The social scientists have recently discovered that we actually feel more physical pain when we believe has intentionally struck us than accidentally caused us harm.

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.

In a recent article at Women's Media - Listening to Women:  New Perspectives on Negotiation - Kolb and co-author Judith Williams have the following negotiation advice for women (which is also excellent advice for men)

• 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.

• Anticipate challenges. 
  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.

If you're following this blog but not Diane Levin's Blog The Mediation Channel, I have good news for you.  Diane is an extremely focused, disciplined and lively writer.  She's also one of the brightest and most canny negotiators, mediators and negotiation trainers I know.

Diane describes her series, Fallacious Argument of the Month, as follows:

With the goal of promoting clearheaded and reasoned debate and improving discourse, each month I skewer a different fallacy.

Before giving you entree to this excellent series, let me first note that these arguments do not justify any movement in your negotiation position.  Remember - you need a new number and a new reason to counter that new number.  If your mediator or negotiating partner expects you to give up something, he'd better have a darn good reason for you to do so.  If you're a lawyer representing a party, you can feel your client figuratively or literally tugging on your sleeve when you offer more or agree to accept less in the absence of a justification that makes business sense.

The Appeal to Authority

Argumentum ad Hominem (this one is so irritating it can create impasse where none previously existed)

The Red Herring

Confusing Cause and Effect

The Misleading Ellipsis (to which I add this caution ~~> the quickest path from respected advocate to deceitful scoundrel is the misleading ellipsis - Judge, Arbitrator, Mediator and Opponent will all distrust your bona fides from that date forward; if you can't think of a better argument, fall on your sword on this issue and create a better one just over the next hill).

The False Analogy

The Straw Man

Diane adds one new fallacious argument every month.  I'll endeavor to keep up with her.  But more reliably, get her RSS feed, add it to your google reader and never again be without the wisdom of this brilliant mediator and negotiation trainer and consultant.  That's her smiling face at top.  Visit her often! at The Mediation Channel.

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

@chrisTalanian RT @TrackGals: WSJ.com - NBC, O'Brien Negotiate Exit http://on.wsj.com/7DVJK5

@slainson RT @NEW_PLAY_BLOG Theatre, ritual, storytelling is *Essential* to culture around world, it's a way to negotiate the complexity of culture

@BruceRecruiter RT @aoljobs: How to Negotiate a Better Employment Contract Than Conan O'Brien http://bit.ly/8ndMsw #jobs #resume

Search term: Bargaining

@preampcc a wrote a new blog post: Used Car Bargaining Tips http://bit.ly/7Om2b8

@sydneydalton just did some really good shopping and bargaining on canal street. hahahaha.

@naveenmurali Bargaining is just a game of egos.

@brucedeboer Creative Denial, Anger, Bargaining, & Acceptance - http://www.permissiontosuck.com/denial-acceptance/

@Congeniality08 @javierabrown I remember when "I'll be your best friend" was the most effective bargaining tactic. THAT was brilliant.

@karaffaunel Tough bargaining still ahead at UN climate talks 88P0wR cop15 copenhagen !

@ciensoong 5 phases of breakup .. Denial, anger, bargaining, sorrow, and acceptance .. Hmm

@MattRichWarren RT @andysimms: http://bit.ly/77yM4s NFL and NFLPA Bargaining Sessions include proposals to change rookie wage scale for THIS season.

@yoloneco810 Kankakee teachers go back to the bargaining table. http://r2u.at/LugWd

@Aubreysomething A promise is not a bargaining chip or something you say just to shut the other person up. - You only say it when you really mean it.

@thegipperreview RT @JimDeMint: My post on @RedState: Collective bargaining has hurt border patrol, TSA shouldn’t make same mistake http://bit.ly/8uniV9

Search Term: Haggling

@heathrrrr Sitting in a car dealership haggling over prices. What a way to celebrate a birthday.

@travelworld101 Haggling a tradition in Guatemala - Daily Oklahoman: Guatemalans prepare for the opening of the outdoor textile ma... http://bit.ly/8jGX6S

@BaybiiAyo09 #whyyouintheclub haggling with the bartender?

@CarrollStandard Haggling Over Price - http://www.carrollstandard.com/index.php?option=com_content&view=article&id=7763&Itemid=31

@EricRobertson Interesting. My warm beverage cost $0.44 more today, despite any amounts of haggling.

@nyaasu I'm all for haggling, I honestly don't mind lowering the price, but don't scam me out of it, geez. All I had to do was wait overnight! /o/

@adirferreira @markitecht Street vendors have a hard time haggling in English ... so cool!

@south_dakotaBNN Dakota Voice: Haggling Over Price: No matter how he tries to spin it, the legislation that Senator Nelson voted fo... http://bit.ly/89973Q

@markitecht Epic street haggling by @adirferreira last night. Started at R$30, ended R$0 (plus a line of credit. no kidding.)

The not so secret opinion among mediators is that attorneys make settlement more difficult.  Just as lawyers are heard to say that "litigation would be great if it just weren't for the clients" (a "problem" only class action plaintiffs' lawyers have actually resolved), mediators  tend to say "mediation would great if it weren't for the lawyers."

Esteeming the rule of law in America as I do (especially in the recent era of its greatest peril) I have never seen lawyers as a problem in facilitating settlement of the lawsuits they have been eating, drinking, sleeping and, dating for years longer than I've spent reading their briefs and engaging in some pre-mediation telephone discussions.  

I can't say lawyers are a problem because:  (1) they're my job; and, (2) they're "my people" in the "tribal" sense.  A few bad apples aside, lawyers are among the hardest working, most ethical, creative, multi-talented professionals I know.  And they are pretty much solely responsible for fighting the battle, on every common weekday, to preserve the rule of law as a bulwark against tyranny on the right and anarchy on the left.

It was therefore no surprise to see a recent Harvard Negotiation Journal article (thanks to Don Philbin of the Disputing Blog and his indispensable ADR Toolbox) that one group of academics has asked whether attorneys have a Negative Impact . . . on Mediation Outcomes.

Let's start with this particularly widespread canard from the article:

Attorneys may delay the settlement of a dispute through mediation for financial reasons. For example, the payment of professional fees on the basis of hours worked could motivate the attorney to delay the settlement of the dispute to increase the number of hours billed to the client  (citations omitted).  Such non financial reasons as a desire to build or preserve a reputation for “hardball negotiating” in highly publicized cases could also motivate an attorney to delay settlement of the dispute [which the authors don't mention often results in a far better outcome for the client].   In addition, attorneys’ (or their clients’) commitment to or belief in their case based on questions of justice or other principles [which are worth, in my opinion, greater attention that purely monetary outcomes] could also delay settlement until “defending the principle becomes too costly” (citation omitted). Finally, attorneys may wish to justify both their role and their fees with unnecessary interactions./1

Are we mendacious, self-serving, parasites of the "justice system," feathering our own comfortable nests as we attempt to preserve the "outdated" notion that the justice system is capable of delivering justice? I don't believe so, but let's not get all anecdotal about these questions when we have cold, hard statistics within reach.  What were the results of this study on the way in which attorneys might "get in the way of" a successful mediation?

Here's the bottom line assessment (please read the article yourself to draw your own conclusions).

The empirical data we collected in this study indicate that the presence of an attorney in a mediation does not significantly affect the settlement rate, the time needed to reach an agreement, the perceived fairness of the process, the parties’ level of satisfaction with the agreement, or the parties’ level of trust that the agreement will be honored. These results indicate that attorneys have much less impact than is claimed by those mediators who do not welcome their involvement in the mediation process.

Nevertheless, the results also demonstrate that the presence of an attorney does affect mediation outcomes in at least two ways: by reducing the parties’ level of satisfaction with the mediator’s performance and by reducing the level of reconciliation between parties.

So the Myth Busters of this study conclude that attorneys:

1. don't "significantly affect the settlement rate" /2
2. don't significantly affect "the perceived fairness of the process";
3. don't significantly affect "the parties' level of satisfaction with the agreement; and,
4. don't significantly affect the "parties' level of trust that the agreement will be honored."

This is the subjective viewpoint of the litigants, mind you, in a dynamic where the mediator often openly attributes the success of the mediation to the clients' attorney - an observation which is more deeply true than most mediators would care to admit with all their white horse hi-ho silver, magic bullet off-to the-rescue enthusiasm.

What did litigants report to the authors of this article?  They indicated that attorneys adversely affected mediation outcomes in two ways:  (1)  they reduced the parties' "level of satisfaction with the mediator's performance"; and, (2) they "reduced the level of reconciliation between the parties."

Of all of the purported effects of attorneys' presence at mediation - without whom, it must be noted, the parties would not likely be induced to sit down and mediate at all -- the only significant perceived difference is the failure of the mediation process to reconcile the parties - something in which the legal system has little to no interest.

Please read the article for proposed solutions to the reconciliation issue.  As to the remainder of the study's findings, I have this to say:

1. whenever two or more people are gathered together, the dynamics of the group more profoundly affect the outcome than do the contributions of any individual member of the group.  Our "reality," especially as it appears in a group setting, is "co-created."  See the New York Times must-read article on the Psychology of Terrorism and Retail Marketing at Google Books (the latter noting that because people live in a social world which is co-created in social interaction with others . . . . [they] can be thought of as both products and producers of the social world."  Id. at 218.)
2. try as you may, you will never be able to untangle the threads that create the intricate tapestry of a settlement; every member contributes something invaluable without which the precise result could not possibly have been achieved. 
3. who is therefore responsible for the good and who responsible for the purportedly bad results of mediation?  That's easy:  EVERYONE IS.

That being the case, we are all responsible for our outcomes - whether our contribution is "negative," i.e., resisting settlement, for instance, or "positive," i.e., problem solving the reasons given by Mr. Negative that the case simply can't settle on terms acceptable to all.  Remember your University philosophy class? Thesis, Antithesis, Synthesis.  We need people willing to state the negative to problem solve it positively.  The relationships cause the outcome, not one member of a group unless that member is a tyrant with loyal troops at his command. 

If you'll allow me a literary reference that justifies my own collegiate career and says far more eloquently than I ever could why we're all accountable, I first give you one of my favorite authors, Paul Auster (who you may remember as the screenwriter of the movie Smoke).

The world can never be assumed to exist.  It comes into being only in the act of moving towards it.  Ese est percipii.  Nothing can be taken for granted:  we do not find  ourselves in the midst of an already established world, we do not, as if by preordained birthright, automatically take possession of our surroundings.  Each moment,each thing, must be earned, wrested away from the confusion of inert matter, by a steadiness of gaze, a purity of perception so intense that the effort, in itself, takes on the value of a religious act.  The slate has  been wiped clean. It is up to [us] to write [our] own book. Paul Auster, The Decisive Moment from The Art of Hunger.

The second excerpt I will leave for your thoughtful consideration is by the greatest scholar of comparative religions to ever inhabit the planet - Joseph Campbell (skip the intro with the new age music).

Schopenhauer, in his splendid essay called "On an Apparent Intention in the Fate of the Individual," points out that when you reach an advanced age and look back over your lifetime, it can seem to have had a consistent order and plan, as though composed by some novelist. Events that when they occurred had seemed accidental and of little moment turn out to have been indispensable factors in the composition of a consistent plot. So who composed that plot? Schopenhauer suggests that just as your dreams are composed by an aspect of yourself of which your consciousness is unaware, so, too, your whole life is composed by the will within you. And just as people whom you will have met apparently by mere chance became leading agents in the structuring of your life, so, too, will you have served unknowingly as an agent, giving meaning to the lives of others, The whole thing gears together like one big symphony, with everything unconsciously structuring everything else. And Schopenhauer concludes that it is as though our lives were the features of the one great dream of a single dreamer in which all the dream characters dream, too; so that everything links to everything else, moved by the one will to life which is the universal will in nature.

It’s a magnificent idea – an idea that appears in India in the mythic image of the Net of Indra, which is a net of gems, where at every crossing of one thread over another there is a gem reflecting all the other reflective gems. Everything arises in mutual relation to everything else, so you can’t blame anybody for anything. It is even as though there were a single intention behind it all, which always makes some kind of sense, though none of us knows what the sense might be, or has lived the life that he quite intended.

Joseph Campbell - The Power of Myth, with Bill Moyers, as quoted in Derek Parrott's Blog.

Lawyers, mediators, clients, experts, consultants, legal assistants, and, yes, even your spouse with whom you consulted before today's mediation, every one of them is part of the "net of gems, where at every crossing of one thread over another there is a gem reflecting all the other reflective gems [so that] [e]verything arises in mutual relation to everything else, so you can't blame anybody for anything" and, by the  way, we can't credit credit nor bear all the responsibility for anything.  We are all capable.  We are all accountable.  And we all contribute something to the whole.

So we can stop pretending to be better than we are now.  We can all put down the burden and shame of our own entirely human fallibility; the myth that we ever do anything without the contribution of others; and, the pretense that we don't behave as badly, or as well, as other people do.  We're part of the team.  We're in it together.  Isn't that good news for the New Year?

And to give you a treat from having gotten this far, a scene that is all about seeing, from Paul Auster's Smoke.

____________________

1/ I'd be interested, of course, in what the authors consider to be "unnecessary interactions."

2/ This is a particularly interesting finding since mediators have also been found not to improve the settlement rate but only greater party satisfaction in several studies.

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!

Yes, we do appreciate being appreciated so thanks to my great good virtual pal and construction attorney Christopher Hill for this post, Personal Thoughts on Construction Mediation.  Not only could I not have said it better myself, I've never been able to say it this succinctly.

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.

Read full post at the link above.

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

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

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

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

Sic transit gloria mundi.

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

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

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

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

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

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

Steady State: Whatever Each Party Views as Pre-Conflict

Trouble: Whatever Each Party Views as Constituting Conflict

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

Transformation of Steady State: A New Relationship Among Parties

Coda: Moving On

                           *                          *                        *

Continue Reading

Even so luminary a firm as O'Melveny has been smacked down by the courts (here, the Ninth Circuit) when trying to enforce employee arbitration agreements.  California lawyers would therefore be well-advised to read the opinion covered at the California Employment Law Report this week:  Arbitration Agreement Upheld Despite Employee's Argument It Was Not Mutual And Adhesive

Here's the clause:

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.  

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

^[12]

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

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

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

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

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

 ^[18]

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

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

The Most Effective Conflict Resolution Technology is the Oldest

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

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

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

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

Laws and Lawyers

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

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

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

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

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

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

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

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

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

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

Arbitration

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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."

Below is Los Angeles mediator Charles Parsell's more recent take on changing minds from the L.A. Mediator ning group.

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.)

Prize for the most creative response.

For articles on the biases that make trying to change our views so difficult, see Scientific Daily's concise distillation of confirmation bias and ChangingMinds.org's article on cognitive dissonance.

My own favorite expression of frustration -- "Had I, my lords, been born crested not cloven, you had not treated me thus!" ~ Elizabeth I Regina

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 Jello (Good Housekeeping). There were others, but let me just say this: if you wanted to read something that was well written, incisive, topical or entrepreneurial, you read men's magazines (Esquire, which was truly first rate in the 1960's; Playboy (!!) where President Jimmy Carter admitted to "lusting in his heart" in the 1970's and which male subscribers uniformly claimed to "read for the articles"); or magazines of mass circulation like The Atlantic, Harpers, or the New Yorker.

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!

Check it out!

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's comments 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

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.    

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."

This month's Harvard Business Review sees the black hole in every negotiation team in its September '09 must-read article, How to Manage Your Negotiating Team by Jeanne M. Brett, Ray Friedman, and  Kristin Behfar.

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.

Give a Reason for Every Number

 (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.

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.

Professor Leigh Thompson of the Kellogg School of Management at Northwestern University has written that in controlled experiments, only seven percent of all negotiators ask diagnostic questions when to do so would dramatically improve the outcome of the negotiation.  

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.

Rainer Maria Rilke, Letters to a Young Poet.

(right:  Bueno de Mesquita's "Logic of Political Survival")

The book at right was brought to my attention for the first time by this highlighted text in Good Magazine: 

In the foreboding world view of rational choice, everyone is a raging dirtbag.

What makes the Logic of Political Survival Relevant to negotiators is Bruce Bueno de Mesquita's application of game theory to international political problems such as the reduction of conflict between Israel and Palestine (quoted below).   

I'll have to admit that his claim to "produce a settlement [in litigation] that is 40 percent better than what the attorneys think is the best that can be achieved” -- also caught my attention and should draw my attorney readers into de Mesquita's world, first from Good Magazine's article The New Nostradamus and (at the end of this post, today's article in the Sunday New York Times).

First, de Mesquita's own words on the Middle East.

In my view, it is a mistake to look for [peacemaking] strategies that build mutual trust [between the Israelis and the Palestinians] because it ain’t going to happen. Neither side has any reason to trust the other, for good reason. . . . 

Land for peace is an inherently flawed concept because it has a fundamental commitment problem. If I give you land on your promise of peace in the future, after you have the land, as the Israelis well know, it is very costly to take it back if you renege. You have an incentive to say, ‘You made a good step, it’s a gesture in the right direction, but I thought you were giving me more than this. I can’t give you peace just for this, it’s not enough.’

Conversely, if we have peace for land—you disarm, put down your weapons, and get rid of the threats to me and I will then give you the land—the reverse is true: I have no commitment to follow through. Once you’ve laid down your weapons, you have no threat. 

The "rational" solution?

 In a peaceful world, what do the Palestinians anticipate will be their main source of economic viability? Tourism. This is what their own documents say. And, of course, the Israelis make a lot of money from tourism, and that revenue is very easy to track. As a starting point requiring no trust, no mutual cooperation, I would suggest that all tourist revenue be [divided by] a fixed formula based on the current population of the region, which is roughly 40 percent Palestinian, 60 percent Israeli. The money would go automatically to each side. Now, when there is violence, tourists don’t come. So the tourist revenue is automatically responsive to the level of violence on either side for both sides. You have an accounting firm that both sides agree to, you let the U.N. do it, whatever. It’s completely self-enforcing, it requires no cooperation except the initial agreement by the Israelis that they are going to turn this part of the revenue over, on a fixed formula based on population, to some international agency, and that’s that.

It actually gets much more controversial and interesting than this -- the "kicker" to the headline in Good Magazine reads:

Can a fringe branch of mathematics forecast the future? A special adviser to the CIA, Fortune 500 companies, and the U.S. Department of Defense certainly thinks so

If that intrigues you, you'll want to read the entire article here.  And you'll also want to read today's New York Times article on de Mesquita,

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.  [1]

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.  [2]   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.

Need CLE Credits? Mark your calendars!

The American Bar Association Section of Litigation will hold a live teleconference and webcast on July 14, 2009 titled “Deal or No Deal: Improving the Odds of Successful Mediation.” Reinsurance and Insurance expert Katherine Billingham from KB ReSolutions, Inc. and Randall Kiser from DecisionSet will present at the event. Randall’s article Lets Not Make a Deal: An Empirical Study of Decision Making in Unsuccessful Settlement Negotiations was featured recently in the New York Times.

Donald R. Philbin, Jr., friend of this blog and adjunct professor at Pepperdine’s Straus Institute for Dispute Resolution will also speak at the event. Here are two excellent  papers written by Don:  The One Minute Manager Prepares for Mediation: A Multidisciplinary Approach to Negotiation Preparation published in the Harvard Negotiation Law Review and  Deal or No Deal? or Perhaps a Better Deal? The Impact of Improved Information published by CPR.

Find out more about the event here.

Does it ever serve a purpose?

One extremely good answer to the question whether an insulting first offer ever has a purpose can be found at Steve Mehta's Mediation Matters Blog Taking Escalates More than Giving.

In this example from Entourage, Terrence's insult is reciprocated by Ari in conflict escalation (as Steve predicts) and Ari's eventual victory as demonstrated by my longer post about this episode, Negotiation from a Position of Weakness, Hollywood-Style.

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.

The full Obama-Cairo Speech below:

Check out Experts Say Full Disclosure May Not Always Be Best Tactic in Diplomacy.  While citing the importance of back channel communications, the author quotes "one of the nation's most experienced career diplomats and former under secretary of state"  as identifying the two "home truths" 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.

Would any of my fellow mediate.com bloggers like to weigh in on this?  Geoff Sharp, Jeff Thompson, Phyllis Pollack, Stephanie West Allen, Nancy Hudgins, Colin Rule, Tammy Lenski, Josh Weiss, Jan Frankel Schau, Jeff Krivis, Mariam Zadeh, John DeGroote, Steve Mehta, Arnold Zeman?

Check out franchise law blogger Michael Webster's post at Blue Mau Mau on the Harvard Program here.  Excerpt below. 

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.

Worth reading from last week's Mediator blah blah blog (the Lord Chief Justice arms himself with a hammer); just in case you missed it or didn't download the .pdf as I just did this morning.  Thanks Geoff!

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!)

Check out Balkinization's Why is Empathy Controversial?  or Liberal, an excellent analysis of empathic wisdom (and blind spots) on the Bench in the wake of a noted Republican's vow  to filibuster any Supreme Court nominee who might commit the (liberal?) sin of empathizing from the Bench.

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.

Read on here.

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).

And let's not forget that some brain researchers believe it is impossible to make any choices whatsoever in the absence of emotion (the "pure" logical mind will make endless pro and con lists absent the "gut" response that finally permits us to decide).

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.' "

From "Fear of Closing Gitmo" at the Daily Kos

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). 

Visit Lawyer Connection

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

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

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

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

JOIN US!!

I'm re-posting below an article published in both the Los Angeles and the San Francisco Daily Journals (the local legal rags) about the dangers inherent in email communication.  I do so because I had several complaints about the use of abusive email by in-house counsel last week at my negotiation training as well as in my twitter network from attorneys exasperated with combative emailers who refuse to take telephone calls (see post about conflict avoidance here)

My advice?  Use the tried and true tit-for-tat strategy:  retaliate for uncooperative conduct and be quick to forgive as soon as your bargaining partners bring themselves back into line.  The advice I gave on twitter (@vpynchon) this morning was simple and pointed:  tell opposing counsel that you will program your email system to automatically delete all of their emails until they pick up the telephone and give you the courtesy of a return call.

Below, my Daily Journal article on the Dangers of Using Email During Litigation.

This story occurs in the spring of 2001, in a hotel room in Toronto, at 3 a.m., the morning of a deposition I've been preparing to take of an aging petrochemical engineer.

2001 is a  year I'd dreamed of since elementary school.  But the technological changes predicted in the science fiction of my childhood and adolescence are nothing like the "hi-tech" I'm living with now.  

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. 

Here's a previous post on the same topic.  And here's a great Malcolm Gladwell article on how weak nation-states and basketball teams can become the victors by playing the game on their own terms:  Annals of Innovation:  How David Beats Goliath.

PREPARATION

• 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

Jason R. Rich is the bestselling author of more than 37 books including The Complete Book of Dirty Little Secrets: Money-Saving Strategies the Credit Bureaus Won’t Tell You, available from Entrepreneur Press. His books cover a wide range of topics, including computers, e-commerce, personal finance, career-related topics, and travel and entertainment. He also contributes regularly to major daily newspapers, including the New York Daily News, as well as national magazines and popular websites.

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.

See Why Almost Everyone Has Trouble Saying No.

Ury's answer to "no" avoidance?

[S]erve your no sandwiched between two yeses. It will go down more easily and preserve your relationship yet still allow you to take a stand.

How does the famous "getting to yes" guy say "no"?  By "focusing on underlying interests instead of positions (discussing what you want instead of the way you've decided to get there) [and] developing another option ( . . . Plan B)."  To accomplish this goal, the negotiator must ask diagnostic questions about his bargaining partner's needs, fears, preferences and priorities.(.pdf of Northwestern Professor Leigh Thompson's enduringly great article Why Negotiation is the Most Popular Business School Course; see also chapter one of her must-read The Mind and Heart of the Negotiator here).

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.  

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Your thoughts?

(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 the Center for Women's Studies and Services in San Diego)

If you're celebrating Easter tomorrow and bored with the relatives, tune into New Day Talk Radio for a live call-in program on negotiation for women.

I've quoted Linda Babcock and Sara Laschever before on women and negotiation.  I've also trained executive women to use their natural talents, skill and affiliative natures to overcome the statistics I'm about to give you, straight from Babcock and Laschever's site Women Don't Ask:  Negotiation and the Gender Divide.

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.

(image by the great Charles Fincher at LawComix)

Thanks first to LexBlog for giving yesterday's post here a shout-out but more importantly, thanks to LexBlog for giving Arnie Herz' post at Legal Sanity Why lawyers should get emotional with clients coverage in the same daily compilation of LexBlog client posts, a tremendous resource I highly recommend you include on your news reader.

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 . . .

For the remainder of Arnie's great post, click here.  And here's another great link on the same topic from Cutting Edge Law - the illicit relationship of lawyers and emotion.

More on the effective use of emotion in the negotiation of settlements soon.

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.

It looks like low value settlements got just a little bit harder to defend yesterday when the Second District Court of Appeal reversed a trial court's good faith settlement finding in  Long Beach Memorial Medical Center v. Superior Court (Conners).

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 . . . "

Comments welcome!!

________________

*/  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).

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. 

A Third View of the Black Box:  Cognitive Coherence in Legal Decision Making by Professor Dan Simon of the USC School of Law.

And, somewhat off point but triggered by this image, an excerpt from Rilke's Letters to a Young Poet on the way in which wisdom eventually arrives:

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.

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

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

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

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

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

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

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

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

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

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

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

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

Live Telephone Seminar

ADR in IP Litigation from ALI-ABA

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

Why Attend?

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

What You Will Learn

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

How to choose between litigation and ADR.

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

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

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.

For the rest of the WSJ's timely tips, click here.

And while we're on the topic of severance pay, here are a few tips about signing releases offered in connection with severance packages for those over forty.

Know Your Rights If You're Offered Severance by WorkWise columnist Dr. Mildred L. Culp

Two main forces — a declining economy and the graying of the workforce — are causing people to ramp up discussions about age discrimination in layoffs and severance. Under the Age Discrimination in Employment Act (ADEA), employers must follow certain guidelines when they're offering severance, says Andrew Milne, senior counsel with the Bethesda, Md., firm of Garson Claxton L.L.C. He warns employees to:

• 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.

For full story, click on headline above.

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

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

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

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

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

If you live in Ohio, there's some hope that you can negotiate your way out of foreclosure with a Court-annexed foreclosure mediation program.  See Foreclosure filings rise in five counties at the the Crescent News. Excerpt below.

UPDATE:  Connecticut also has a foreclosure mediation program: See
Success For Mortgage Mediation in Connecticut?

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.

UPDATE:  You can find a podcast about the New Jersey foreclosure mediation program on the New Jersey Law Blog here!  Here's the New Jersey Court's material for that program.

UPDATE:  Thanks to the ABA Dispute Resolution Magazine for informing us that Minnesota now also has a foreclosure mediation program.  See Minnesota Law Offers Foreclosure Mediation to Homeowners at the Foreclosure Listings blog here.

UPDATE:  Foreclosure Mediation Programs Commenced Under Local Ordinance in Providence, Rhode Island: Providence Foreclosure Ordinance Aims to Protect Renters (excerpt below):

 PROVIDENCE, R.I. (WPRI) - In an effort to protect families from foreclosure, Providence Mayor David Cicilline unveiled two ordinances Monday morning during a news conference in the city's Olneyville neighborhood.

The first proposal, Tenants Protection Against Foreclosures Ordinance , is meant to protect renters from eviction when their apartments are subject to foreclosure proceedings.

A proposed state law, that would have provided similar requirements, failed in the General Assembly last year. Rhode Island Housing Executive Director Richard Godfrey applauded Providence for stepping in to provide that protection.

The second proposal, Foreclosure Mediation Ordinance , would require financial institutions and property owners to engage in mediation with a HUD-approved counselor before moving ahead with a foreclosure.

UPDATE:  Lawsuit stops eviction in predatory lending case in California here.

"We have a court adjunct mediation program," said Schmenk. "The worst thing people can do is do nothing. The best thing is to get an answer filed on their behalf and open up a discussion with the mortgage holder to avoid it going to the foreclosure sale. Often times they can get something worked out with the lending institution short of losing their home."

When a foreclosed home goes up for auction bids start at two-thirds of the property's appraised value.

"Most time the lenders are holding significantly more than that in debt," said Schmenk. "We've noticed in a number of cases things get worked out and they are able to enter into some kind of accommodation that works for lender and mortgage borrower."

Schmenk encourages individuals facing foreclosure to take part in mediation programs.

There was a mediation just last week in Defiance County, said Cheryl Timbrook of the common pleas court. Overall, she said that they haven't had many requests for mediation so far.

Sonnenberg said Henry County has had a mediation program available for foreclosure for a year. She said there has been an increase in requests for mediation since the court started sending out information about the program as well as how to file an answer to the foreclosure summons received by defendants.

"I don't think many people knew about it before," she said.

Chris DelFavero, mediation coordinator for the state's Northwest Ohio Court Mediation Services, said he's seen an increase in individuals asking for foreclosure mediation. Northwest Ohio Court Mediation Services covers Henry, Defiance, Fulton, Paulding, Williams and Putnam counties. The program started last spring.

"With the help of the (Ohio) Supreme Court we established a process for referrals through the (county) clerk's offices," said DelFavero, who added that referrals started to pick up this summer. "Last month I had the most referrals since we started. I had 11 referred this past month. We started with just two or three a month, and now we have two a week."

DelFavero said that many cases involve jumps in interest rates, causing payments to increase or individuals who have seen a decrease in pay.

"Those are the cases we hopefully can resolve and come up with a repayment plan or refinance their rates," he said. "The general problem in the industry was the subprime rates. Some of it is the economy, with people losing their overtime. Sometimes loans are given based on people making $40,000 and then they lose their overtime so now they are making $30,000. They are working, but may have fallen four to five months behind. The lender usually will work with them."

The anger, suspicion and ill will that has characterized the first eight hours of this mutli-party, eight-figure antitrust mediation is about to heightened as I deliver Defendants' terms:  they will pay the settlement agreed upon in six equal yearly installments over three full years without any security to back it up.

Are you wondering what your mediator is thinking at times like this?

Aaaarrrrggggghhhhhhhhhhhhhhhhh!!!!!!!!!!!

That "thought" is momentary, however, like the cry you squelch when the trial judge does something like, say, grant the other side's motion to disqualify your expert witness during the second week of trial. 

I don't have a plan, but I do have ideas.  Just as my suggestion that we use a bracketed offer to break impasse had eventually done just that, I'm already thinking of ways that the parties' most intractable and conflicting positions might move them toward agreement.

"They can wait," defense counsel is saying, "or they can try the case in February and see if they can collect it," to which a principal adds,  "this puts them on our side for a change.  If we make the money we believe we can, they'll benefit too."

"I thought you said you knew you could," I say, laying groundwork for the contingency ahead. 

"Yes, absolutely.  We know we can."

Back in the Plaintiffs' caucus room, the parties and their counsel aren't simply angry; they're flabbergasted.

"They sand-bagged us," says Plaintiffs' counsel.  "We'll report this to the Judge.  They didn't come here in good faith.  They're deliberately wasting our time."  

After some calming discussion about why the cash-poor defense would deliberately pay their own attorney and one-half of my daily fee in bad faith . . . a question to which no answer ever eventuated . . . Plaintiffs and their counsel begin to confidently predict the defense's inability to make a single installment payment.  Plaintiffs believe the defendants have resources - secreted away somewhere - but will never use them to settle this case.

When the temperature of the room has diminished to that of the sun's surface rather than its core, I ask about the possibility of a stipulated judgment in the event of default. 

"In a sum you hope the jury will award you at trial," I proffer.  "If you're right; if they have no intention, nor any ability, to pay even the first installment, you'll be in the same position on default that you'd be in if you prevailed at trial.  And if they're capable of paying, they're much more likely to do so if the alternative is a mutl-million dollar judgment against them."

Though the total sum of the Stipulated Judgment is the main topic of discussion over the following two hours, the parties' insistent conflicting predictions for the future make it all but inevitable they will eventually reach agreement.  If the defense never pays, the Plaintiffs will have their judgment more or less immediately, without the burden of proving it up.  And if the defendants are good for their word that they can service the "debt" the settlement agreement creates, they never have to worry about this potential judgment becoming a reality. 

The Stipulated Judgment as Contingency Contract

As Professor Leigh Thompson of the Kellogg School of Management, Northwestern University, writes in The Mind and Heart of the Negotiator, the contingencies built into the parties' agreement (and the Stipulated Judgment providing for its enforcement) permit them to use their differences to reach agreement - betting on their own predictions for the future and protecting themselves against their worst fears about the other.  As Professor Thompson instructs:

Often, a major obstacle to reaching negotiated agreements concerns negotiators' beliefs about some future event or outcome.  Impasses often result from conflicting beliefs that are difficult to surmount, especially when each side is confident about the accuracy of his or her prediction and consequently uspicious of the other side's forecasts.  Often, compromise is not a viable solution, and each party may be reluctant to change his or her point of view.

Fortunately, contingent contracts can provide a way out of the mire.  With a contingency . . . differences of opinion among negotiators concerning future events do not have to be bridged; they become the core of the agreement. . . . [Parties] can bet on the future rather than argue about it.

Here, the agreement calling for a Stipulated Judgment of sufficient size to deter default, allowed the parties to:

1. bet on rather than argue about their different forecasts for the future;
2. manage their decision-making biases (overconfidence and egocentrism) by building them into the settlement agreement itself;
3. solve the trust problem by creating a contingency (judgment) against the unknown ability of the defendants to perform
4. diagnose the other side's honesty by "daring" him to bet on his own predictions
5. reduce risk through sharing the upside gain (defendant will pay) and the potential loss (defendant will default)
6. increase defendants' incentive to perform at or above contractually specified levels.

See The Mind and Heart of the Negotiator, The Six Benefits of Contingency Contracts, Box 8-2.

There's more, however.  The parties agree to the Stipulated Judgment in principle and sum during hour eleven and we've got three more hours to go.

Stay tuned!

It's 8 p.m. and you've just spent nine straight hours negotiating the settlement of complex commercial litigation with multiple parties that was filed before George Bush first took office.  The case has been up on appeal twice and is now scheudled for trial in February.  All defendants but the final three standing have settled.   Three of the principals have flown in from out of state and two of the attorneys have driven a few hundred miles to Los Angeles from their home towns. 

"Let's just write up the deal points," says Lawyer No. 1, yawning.  "We can write up the full agreement over the long weekend."

Lawyer No. 2 turns to me and says "Judicate West has a form, right?  Let's use that."

Before we go further, let me give you the complete, verbatim language of the online skeletal Judicate West form.

Date:_________________

Stipulation for Settlement


    VS.                           

IT IS HEREBY STIPULATED by and between the parties through the respective counsel or representative of each that the above-referenced case has been settled according to the terms memorialized herein below.  This document is binding on the parties and is admissible in court pursuant to Evidence code section 1123 and enforceable by motion of any party hereto pursuant to CCP section 664.6.                                                                                   

In order to facilitate the above specified terms of settlement, the parties further agree that on or before the          day of          they will execute or change the following:

• Settlement / Release Agreement   Prepared by _____plaintiff_____defendant

• Request for Dismissal     Prepared by _____plaintiff_____defendant

Other____________________________________________________________

All relevant parties must sign below.  Copies are acceptable in lieu of originals.

I know.  You didn't expect the case to settle.  At least that's what I've been hearing you all tell me since hour one of the mediation.  But now we're in hour nine and the basic deal points have been reached.  It's January 15.  Trial is in 30 days.  You have all the parties present and the mediator who has by now sussed out the BS; developed a good working relationship with all sides of the dispute; knows how hard the parties worked to get here; and, is unlikely to let the "devil" in the details sink the settlement ship.

What do you do?

My own answers in next post.

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.  

And once you enter negotiations, here are five rules from the Harvard Negotiation Project to speed you on your way to a more economical year.

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.

There's a great new LinkedIn Group Mediators and Peacemakers that anyone interested in the dynamics of conflict and its resolution should think about joining.  Recently, a group member posed this question:

How do you as a mediator recognize the signs of cross cultural differences and how do you resolve that type of dispute? How often do you come across this type of dispute?

I was thinking about how I might answer it when I noticed that my colleague and friend, mediation guru Lee Jay Berman, had taken the time to jot down his thoughts, which were better than any I was having, yet precisely expressed my own experience mediating conflict.

Here's what Lee Jay had to say:

I think that some is easy to recognize, like two Korean businessmen walking in with their counsel, knowing that they will have a value system that is based around how Korean businesses conduct themselves, and knowing that trying to overlay that onto an American legal system is going to be awkward for them.

But my belief is that NEARLY ALL conflicts are cross-cultural. The vast majority of what I see as cross-cultural conflicts don't present themselves as such at first glance because they may occur between two people of the same color skin, same nationality, same faith and even same family. I think we risk falling into the belief that cross cultural disputes only exist when we have people of different racial cultures at the table. We sometimes think we can turn our cross-cultural radar off when both people sitting there look the same to us. But to me, most conflict comes from different cutltural perspectives, different expectations based on how we were raised and what they see as "normal" or how people "should" conduct themselves.

The example I live with is that my wife and I were both raised Jewish, both families grew up with Christmas trees in our homes, too. We both went to UCLA, we both love sports, and the list goes on and on. When we married, we had the expectation that we would be relatively the same when it came to living our lives together. But when it came to communication styles, especially around disputes or disagreements, what we each learned from our families (the tribes in which we were raised and where we learned our norms) could not have been more different. Early in our marriage, this created constant cross-cultural disputes, which turned into conflict because of the assumptions we each made about what was the "normal" way to deal with disagreements. On paper, most people would never say that my wife and I were cross-cultural, but in real life, we had a huge cross-cultural rift that was invisible to most, and even to us at first.

The moral of this story is that we must ALWAYS be looking for evidence of cross-cultural issues, even when they don't present with different skin color.