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! 

Nearly all negotiators know Robert Cialdini’s six “rules” of influence: reciprocation, commitment and consistency, social proof, liking, authority and scarcity. They are easy to remember because we are all influenced by them every day.

Reciprocation: When your waiter puts a mint on the table or your local charity sends you free mailing labels, both benefit from the power of reciprocity. Not only do we feel uncomfortable unless we reciprocate this generous behavior, we will reward it in kind. Waiters' tips go up and donations increase – however modestly -- when these benefits are bestowed on us. In the negotiation of a dispute, an acknowledgement that you’ve heard and understood your opponent’s position; or that you are sorry he was harmed by the activities you continue to believe were benign, does in fact motivate your adversary to respond in kind – often by revealing otherwise hidden interests or concealed fears that can break impasse.

Authority: I’ve never been a Judge, but I am a “settlement officer” with the United States District Court for the Central District of California. I’ve also tried cases to a jury and have twenty-five years of complex commercial litigation experience. Each one of these credentials gives me a different kind of authority, but all of them make what I say to a litigant considering settlement more persuasive.

The District Court gives me a little lapel pin to wear and I always wear it when I'm doing the federal court's "settlement officer" work.  I have a badge!  To my peers, “settlement officer” means nothing other than a volunteer for the Court. To the parties, however, being an “officer” of a federal court sounds impressive; authoritative. Difficult mediations often have dead time in them in which the parties engage in small talk. When clients ask me about the lapel pin, I modestly explain my role as a “settlement officer” for the District Court. The parties invariably treat me with greater deference after this conversation. I know it sounds like a small point, but sometimes all you need is one extra little push to get the parties past impasse.

Liking: I do not believe it’s possible to be a skillful negotiator unless you are likeable. This trait is especially important for a mediator who must garner the trust of a complete stranger with lightening speed. You do not have to possess rock star likeability to accomplish this. All you need do is to find something to like about the others. We all want approval and we all wish to be admired and desired. The good news is that all of us have some trait or characteristic that is desirable and admirable. If you look for those traits in another and casually remark on them, the cycle of liking and being liked is commenced.

The cycle is speeded if you couple your liking with something similarly likeable in yourself. "You’re a musician! I’ve always wished I’d taken music classes. My husband (or sister, or aunt, or best friend) is a pianist with a small chamber group locally."  Now you're not only more likable, you're like "one of us" and you get the benefit of relatedness, an easier "fit" and an automatic feeling of trust and confidence.  See Conspiracy Theories and Granfalloons for the full story on the way "liking" and affiliation work.  If you’re not serving as a neutral but simply a negotiator, you can couple this “liking” and musical affiliation with reciprocity: “do let me give you my sister's chamber music  schedule; during the summer they give free concerts in the park.”  A trifecta of influencers.

Social Proof : “Yes, mom, if I see my friends jumping off a cliff I’m pretty inclined to do so as well.” Our tendency to "monkey see, monkey do" may begin in Middle or High School, but it does not end there. You don’t have to live in Los Angeles to feel the effect of this tendency to do what others do – you only need to be in a traffic jam caused by “rubber-necking” once to remember that we’re primates. This is part of the value of market valuations and jury verdict reports. They not only provide “authority” for your position on price, but they carry the weight of other people’s valuation. This is social proof.

Scarcity: the effect of scarcity on value is something we see every day in store windows and newspaper ads: “limited offer” and “one time only sale” are recycled over and over again by the same stores for the same items and yet we’re moved to feel an urgency that brings us into the store and makes us purchase an item we don’t need and didn’t desire. Litigators often use the principle of scarcity to “sell” the resolution of litigation. “After we commence discovery, this offer will no longer be on the table.” Or. “We’ll be picking a jury in thirty days. Don’t expect to see a demand this low ever again if we don’t settle by day’s end. Scarcity.

Commitment and Consistency: Many neutrals like to begin a mediation in joint session for the purpose of obtaining the parties’ commitment to settling the case today if reasonable terms are offered. It’s almost impossible to resist signing on to this principle and it's common for people to feel bound by it even if circumstances change. At some point during the negotiation, the parties will begin to feel committed to the resolution of the litigation. They can picture themselves free of its many burdens or receiving money rather than spending it on their attorneys. Seeking and making commitments holds our feet to the fire of our intention. Ask anyone who’s ever made public her decision to lose weight or exercise at least three days a week. If we act inconsistently with the promise we’ve made to friends, family or community, we fear a loss of “face.”

If you apply the five principles subject of this series to your negotiations, you will get the better part of the bargain on nearly every occasion. Remember – simply asking diagnostic questions will make you a better negotiator than all but seven percent of your bargaining partners. Add to this the ability to deftly frame the negotiation favorably to you; to anchor the bargaining range to your liking and to be influential in your dealings and I guarantee you success in most of your business affairs.
 

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?

What do these two stories -- the first hilarious; the second infuriating -- have to do with negotiation?

First, listen to the introduction and first story in last week's brilliant episode of This American Life, No Map (podcast here).

The full chimp story (chimpanzee in red sweat-shirt, jeans and shoes causes the police to "un-arrest" his owner) is an hilarious example of a lose-lose negotiation impasse.  Lesson:  as the 12-step people caution:  "you can't save your face and your ass at the same time."  

The other, more sober tale, reveals the competing interests keeping American banks from pursuing the win-win solution that would permit "upside down" homeowners to remain in their houses and continue paying at least part of their debt.  Why?  Among other reasons, renegotiating loans secured by deeds of trust would require banks to carry a toxic assets on their balance sheets today rather than next year. 

Other impediments include the more practical road-blocks that impede efficient management of all organizations -- a lack of preparedness -- in this case, an inability to get mortgage renegotiation service centers up and running fast enough to keep up with the crisis.  We're hoping that the President's economic advisors already know this, or are still finding the time to download This American Life to their iPods or Blackberries.

Well worth a listen!

Assuming that suspicious stock sales by a member of a corporation's board of directors may constitute circumstantial evidence of scienter for purposes of establishing a fraud or fraud-related cause of action under California law--where director sold less than 35 percent of his total shares after having been provided with negative information about company’s economic prospects over a period of nine months prior to selling--such activity did not support conclusion that sales were suspicious.

Sometimes when I read the daily  case reports I can't help but go off topic. Bains v. Moores - filed March 20, 2009, Fourth District, Div. One Cite as 2009 SOS 1706 - filed March 20, 2009, Fourth District, Div. One Cite as 2009 SOS 1706

There's an infinite regression angle to this.

The guys at Drug and Device Law Blog in Random Thoughts on Randomness have gone stark raving sane. 

We admit it: We're as crazy as the next guy.

Heck -- given that we spend nights and weekends feeding this blog, there's a pretty strong argument that we're crazier than the next guy.

We fret about whether each and every one of the ten million documents has been reviewed and coded correctly, and we change commas into dashes -- and back again -- in footnote nine on page thirty of the brief.

We believe that our clients are more likely to win if we do our jobs right, and we devote an awful lot of energy to that cause.

And then the system kicks in.

Courts make utterly unpredictable procedural rulings that dramatically change the value of our cases. The MDL Panel, for example, may decide to consolidate a set of cases in a jurisdiction that previously had nothing to do with the litigation -- like sending Breast Implants to Alabama or Albuterol to Wyoming -- and all of a sudden an unanticipated body of local appellate law governs your federal issues, and your cases are either won or lost for reasons beyond your control. (See In re Korean Airlines, 829 F.2d 1171 (D.C. Cir. 1987).)

Or you tee up a legal issue in front of a judge, and you can't predict the result, because the cases are breaking fifty/fifty in that area. The judge might grant summary judgment, or he might deny it. Or, as happened in Tucker v. SmithKline Beecham recently, he might grant the motion in September and reconsider the following July. Your lawyering skills presumably had nothing to do with it.

One judge grants a Daubert motion, holding that the evidence linking Accutane to inflammatory bowel disease is junk science, inadmissible in a court of law. But, a couple of weeks earlier, a New Jersey jury had awarded millions of dollars of damages based on that same evidence.

One judge holds that a claim accrued on the day the plaintiff was diagnosed with a disease, and another holds that the identical claim -- on identical facts -- didn't accrue until the plaintiff "discovered" his claim based on press coverage or an article in the scientific literature. The statute of limitations bars the first claim; the second one goes forward.

You're a hero or a goat, and you had nothing to do with it.

One judge holds that the warnings on your client's product are adequate as a matter of law. Another holds that the question of adequacy is one of fact, to be decided by a jury.

One jury then finds in your client's favor, but a second jury -- looking at precisely the same warnings -- finds the opposite.

We're not complaining about this, really.

They're our lives, after all, and we picked this profession, and it can be awfully exciting and challenging and, yes, fun.

But doesn't it sometimes feel a tad random?

More to the point, our system sinks tens of millions of dollars into massive discovery to ensure that every last fact is known -- presumably in pursuit of an accurate result. But those carefully honed inputs then yield results that are both unpredictable and flatly inconsistent with each other (which means that at least one was wrong).

If the system ultimately values cases wildly inconsistently, just why does society invest massive resources into trying to ensure accuracy? Aren't there better things to do with our collective wealth?

But we digress.

We have to go back to scrutinizing the footnotes in all of the drug and device precedents, to pry out of them every last ounce of utility for our clients.

If we didn't, then a brief might not be perfect, and we might be more likely to lose.

If you're a civil litigator like me (read:  "not really a trial attorney") and you haven't thought of criminal law since your first year of law school (it has something to do with a man jumping out a 20 story window and then being shot by an angry mistress from the 10th floor, right?  Cf. Magnolia below) then amble on over to Scott Greenfield's Simple Justice for a satisfying look at the world criminal lawyers inhabit every day.

And next week, we'll be hosting the Blawg Review over at the IP ADR Blog.  Which reminds me, this is likely the first and only post on this blog you'll get this week!

Habeas corpus actus reus corpus delicti crimen falsi crimen innominatum crimem laesae maiestatis de minimis non curat lex.

The Magnolia criminal law bar exam question half-way through this opening to the darkest comedy of the 20th Century, Magnolia.

Almost all legal writing is collaborative, so I feel this English professor's pain.  I just didn't know we shared this experience. 

From Blog en Abyme, excuses excuses by Kim Middleton, Assistant Professor of English and Director of the American Studies Program at The College of Saint Rose.

What I’ve discovered is that when you’re writing with someone, you’re negotiating and discussing all the time. Which secondary sources to use and why; how much space a particular piece of the argument should occupy; the particular ways that data should be interpreted; style; etc. And that’s all the stuff that we actually articulate. I’d venture that there is also always a secondary level of negotiation going on non-verbally: should I just take the lead on this part?; am I slowing us down?; is my expertise relevant here?. Essentially, there are all of the interpersonal elements to negotiate as well. Is it any wonder that it takes longer than writing an article alone?

Meanwhile, note to self: next time I assign a group project to students (I’m looking at you, film class!), I need to give them ample time to work through not just content, but interpersonal stuff as well. It would probably also help if I could get them to move across the street from one another, and assign one person per group to be the baker who provides snacks for each meeting. And then someone to do the group’s laundry and grocery shopping while they get their article written—I mean project done.

And yes, Professor, it does take food, drink and clean laundry to accomplish anything worthwhile as a team!  Thanks for the thoughts.  Now get back to that article right now!

If you're a writer -- you know -- of fiction -- and you somewhat compulsively track your blog statistics because, well, you don't smoke cigarettes anymore, your blogging day doesn't start any better than this.

Search google.com (sue step mother for wrongful death) 

The mind reels with the possibilities.  But I have paperwork to do.  

The video, for those with procrastination in mind, takes about as long to watch as stepping outside to smoke a cigarette would.  And "stop smoking" was one of your New Year's resolutions, right?

Welcome 2008 by Riza Nugraha

(photo from Judicate West's home page) 

A terrific holiday party at Judicate West last evening with the best holiday hors d'ouvres of the season, mediator friends and new and old clients.

But that was just the beginning . . . .

. . . . then . . . .

 (Day 1 with the Forbes.com Business and Financial Bog  Network:  Sky Bar at the Mondrian Hotel --think Entourage -- the only bill I reached for quickly enough -- and Twisted Sister at the House of Blues on the Sunset Strip) 

(Jay Jay French and Dee Snider Talk with Entertainment Weekly About Twisted's Christmas Album)

Mosh Pit (photo of "Dead Fish" concert by Luiz Alberto Fiebig) . . . .

 which makes me  . . . . .

. . . . worry about the "children" getting hurt

AND of course

. . . .potential liability.

Sharon Gitelle, the woman who will make the Forbes.com Business and Financial Network . . . .

ROCKIN' . . . . .

Trust me on this one.

 What all this has to do with negotiating middle age in the next post (along with the promised post on negotiating the flat screen HD TV purchase)

negotiate

+ procrastinate

+ writer's block

+ stumble upon

EQUALS 

From The Big Bang to Today: timeline of evolution; a chronicle of the universe, the solar system, and the development of life on Earth.

(REALLY TOTALLY COOL)

negotiate

INTRANSITIVE VERB: To confer with another or others in order to come to terms or reach an agreement: “It is difficult to negotiate where neither will trust” (Samuel Johnson).

TRANSITIVE VERB: 1. To arrange or settle by discussion and mutual agreement: negotiate a contract. 2a. To transfer title to or ownership of (a promissory note, for example) to another party by delivery or by delivery and endorsement in return for value received. b. To sell or discount (assets or securities, for example). 3a. To succeed in going over or coping with: negotiate a sharp curve. b. To succeed in accomplishing or managing: negotiate a difficult musical passage.

ETYMOLOGY: Latin negtir, negtit-, to transact business, from negtium, business : neg-, not; see ne in Appendix I + tium, leisure.

procrastinate 

INTRANSITIVE VERB: To put off doing something, especially out of habitual carelessness or laziness.

TRANSITIVE VERB: To postpone or delay needlessly.

ETYMOLOGY: Latin prcrstinre, prcrstint- : pr-, forward; see pro–1 + crstinus, of tomorrow (from crs, tomorrow).

writer's block

NOUN: A usually temporary psychological inability to begin or continue work on a piece of writing.

stumble

INTRANSITIVE VERB: 1a. To miss one's step in walking or running; trip and almost fall. b. To proceed unsteadily or falteringly; flounder. See synonyms at blunder. c. To act or speak falteringly or clumsily. 2. To make a mistake; blunder. 3. To fall into evil ways; err. 4. To come upon accidentally or unexpectedly: “The urge to wider voyages . . . caused men to stumble upon New America” (Kenneth Cragg).

TRANSITIVE VERB: To cause to stumble.

NOUN: 1. The act of stumbling. 2. A mistake or blunder.

ETYMOLOGY: Middle English stumblen, probably of Scandinavian origin; akin to Old Norse stumra.

Mr. Thrifty found this ridiculously cool little house ON THE BEACH on the North Shore where we'll be for the next week.  

Listen, it's been a ridiculously busy year & we sooooooooooooo need a vacation.  

In gratitude to all our readers, we leave you the link to the best beach house on the planet & give you a taste of our vacation spot for the next week.   

This is the dining/living room.  The perfect place for a 10-minute post from paradise.

This is Mr. Thrifty's great find, by the way, the product of hours and hours of searching, finally located on craigslist.

This is what sunrise looks like.  Hopefully, I'll be beachcombing rather than blogging at this hour.

Here's where Mr. Thrifty will be sleeping while I send in the random early morning post from paradise.

Aren't we lucky ducks????????

I recently briefly referred to a few scathing student evaluations from my students at a local law school.  Surely my wounded feelings (after all that prep time!) were just another instance of my own hyper-sensitivity and after a day of denial,anger,bargain,depression, I accepted that I was not going to be anyone's Ms. Chips. 

When I began speaking to others who taught at the university level, however, everyone I spoke to seemed to have experienced their own wounded feelings at student evaluation time.   

Now to complete my cycle of grieving comes writer and adjunct journalism professor David Holmberg in today's NYT Magazine "On Language" Column, Student Evaluations.

"I began the semester with what I hoped was an illuminating discussion of the digital revolution and its impact on print journalism," says Holmberg.

And throughout the term, as I had done routinely at N.Y.U., I used The Times as an educational tool. I tried very hard to convey the value and enormously important traditions of print, of quality journalism.

But in their evaluations, 4 out of 11 students ignored my efforts and attacked my journalistic and professorial credibility in what was for me an unprecedented fashion. They said I showed a “liberal bias” by using The Times in class (perhaps echoing the political bent of their parents, as the young are wont to do), and two students said — glibly and absurdly in my view — that the class was of no benefit because of my perceived bias. One said bluntly, “I learned nothing from this class.” Another . . . said that “I did not learn anything in this class besides a strong dislike of The N.Y. Times. There was no journalistic background taught.”

Now that David Holmberg has helped me achieve complete acceptance of my semester-end student "grades," I'm freed to wonder whether there is more of a generation gap between those of us who teach after a career in practice (i.e., really old people) and students in their twenties.

At minimum, it would seem a good thing to open the following semester with questions about what the students' hopes and fears about the class are and whether they are as willing to hold themselves responsible for their own educational experience as I am for the guidance of it.

But before reprinting an excerpt from the Times article:  What Corporate America Can't Build, a Sentence, I have to tell you what I told my Business Law students when I was teaching undergrads in the mid-'80's.  If you can't write a coherent essay, how could I possibly grade your understanding of the subject?  In fact, you come to understand the subject in the process of writing about it coherently.  They didn't like it either.

My justification.  The New York Times.  

What Corporate America Can't Build: A Sentence
By SAM DILLON

BLOOMINGTON, Ill. - R. Craig Hogan, a former university professor who heads an online school for business writing here, received an anguished e-mail message recently from a prospective student.

"i need help," said the message, which was devoid of punctuation. "i am writing a essay on writing i work for this company and my boss want me to help improve the workers writing skills can yall help me with some information thank you".

Hundreds of inquiries from managers and executives seeking to improve their own or their workers' writing pop into Dr. Hogan's computer in-basket each month, he says, describing a number that has surged as e-mail has replaced the phone for much workplace communication. Millions of employees must write more frequently on the job than previously. And many are making a hash of it.

"E-mail is a party to which English teachers have not been invited," Dr. Hogan said. "It has companies tearing their hair out."

A recent survey of 120 American corporations reached a similar conclusion. The study, by the National Commission on Writing, a panel established by the College Board, concluded that a third of employees in the nation's blue-chip companies wrote poorly and that businesses were spending as much as $3.1 billion annually on remedial training.

For remainder of article, click here.

What Does This Have to Do with Dispute Resolution?

To resolve a dispute, you must understand it on as many levels as possible.  The parties' positions -- their demands and the principled reasons for them; the parties interests and needs -- the reasons why they're making the demands; the parties' emotional "hot points" -- their felt-response to the way in which the dispute has so far been handled (usually in an adversarial manner); and, the ways in which the parties can de-couple the problem from the process; the personality from the potential solution; and, the way in which the strength of the parties' conflicting versions of the same story contribute to impasse.

Unless you're Einstein, you can't do this work in your head.  You need to be able to make sense of it and one of the most effective ways to do so is to put pen to paper or hands to keyboard and write it out.  

Writing is just thinking out loud in a structured, linear, rational fashion.  If we can do that, solving the disputes that darken our days becomes the easy part.

Really. 

And once you know and follow the rules, you can do something dazzlingly violative like this:

since feeling is first
who pays any attention
to the syntax of things
will never wholly kiss you;

wholly to be a fool
while Spring is in the world

my blood approves,
and kisses are a far better fate
than wisdom
lady i swear by all flowers. Don't cry
--the best gesture of my brain is less than
your eyelids' flutter which says

we are for eachother: then
laugh, leaning back in my arms
for life's not a paragraph

And death i think is no parenthesis

e.e. cummings

plants grown alongside unrelated neighbours are more competitive than those growing with their siblings — ploughing more energy into growing roots when their neighbours don't share their genetic stock.

Plants 'know' more about their environment than they are often given credit for: they can sense the presence of neighbouring plants through changes in water or nutrients available to them or through chemical cues in the soil, and can adjust their own growth accordingly. "That plants have a secret social life is something well known to plant ecologists," says Dudley.

But the ability to recognize kin has not been demonstrated before.

For remainder of article, click here.

I suspect that just as we humans are hard-wired to both compete and cooperate (see Unhappy Lawyers and the Cooperative Hard-Wire) so are plants.  Because I don't know that, I ask any botanists within shouting distance to weigh in.

Collaborate, compete, protect, defend, balance, compete, collaborate. 

Ecclesiastes 3:1-8