Negotiation Law Blog

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! 

Know and Use the Rules of Influence

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.
 

(image from and link to last week's This American Life episode, No Map)

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!

There's an infinite regression angle to this.

My friend, Joe Mockus, a criminal defense attorney in the San Francisco Bay area, once asked me, "just what is it that you do all day long?"   I know what Joe did.  He had at least one hundred court appearances a day and once in awhile tried a major felony case.  He was negotiating while I was writing stake-in-the-heart summary judgment motions in cases with 2 million documents coded in the Phillipines.  I took a lot of depositions and, if I was very very very lucky, I got to try a case to a jury once every five to ten years.

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.

The google algorithm throws these random musings on negotiation up to me on a weekly basis because "negotiate" is one of my "google alerts."  (have I said god bless google recently?)

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!

Welcome 2008 by Riza Nugraha

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????????

Having recently been (somewhat justifiably) skewered by the law students taking my ADR Employment Class for bluntly telling them that they couldn't write, I must admit that the following reprint, called to my attention by Digg, helped soothe the wounds of student evaluations. 

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.

Continue Reading

From Slate, a year of Blogging the Bible by David Plotz, comes to an end.  It all starts here.

And not a minute too soon to cure our national Biblical Illiteracy as reported by this Sunday's Book Review of Religious Literacy, described as "Stephen Prothero’s jeremiad about declining religious knowledge."

How does this relate to conflict resolution?

Read the headlines lately?

For an anthropologist on Mars look at reading the Bible, check out Julia Sweeney's hilarious and touching Letting Go of God.  And for a modern and deeply felt re-interpretation of the story of Cain and Abel, listen to Am I My Brother's Keeper, also a This American Life classic, by Jonathan Goldstein.

And finally, for a set of compelling audio programs on religion and dispute resolution, click here.

Among the benefits of the "meme tag" game is cross-disciplinary learning.  See Switch! - Cross-Disciplinary Learning at the Eide Neurolearning Blog, the one degree of separation between us and the Thinking Blogger Award. 

And check out the Creative Generalist while you're at it.

First, the excerpt from Eide Neurolearning:

The best way to have fun in science is to do something you are not trained for. - Seymour Benzer

Any student of creativity or innovation knows that changing disciplines seems to be a way of keeping 'fresh' and getting new ideas. Louis Pasteur got his start in crystallography, but then started solving problems in fermentation when a student of his brought him a factory problem. When a devastation of silkworms happened in Europe, they called Pasteur who exclaimed, "But I know nothing of silkworms." Nevertheless, he ended up solving the problem of silkworms by crossing over into the fields of microbiology and immunology.

In Root-Berstein's study of innovators, he found '[i]n every case that I have been able to examine, researchers who continued to be productive past middle age changed fields regularly. In effect they periodically returned to the state of a novice by taking up a new subject. They broke out of the patterns of work and thought to which they had become accustomed.'

For the remainder of the Eide's post, scroll down to Switch! here.

A Brief Comment on the Era of Legal Specialization

Attorneys entered the realm of specialization about twenty years ago.  Because novel legal problems are generally resolved for entire industries in fifteen or twenty years (i.e., how a Comprehensive General Liability Policy should be interpreted in response to a claim against an oil company for production-related environmental contamination) attorney-specialists are forced to change specialties at least once, if not two or three times during their working lives.

At one of the intersections between the end of one specialty (environmental insurance coverage) and my search for another, I began defending consumer class actions.  Although I'd once prosecuted a  commercial class action against a Japanese car manufacturer, that one case was the only experience I had in litigating class actions.      

In addition to not knowing what I should do in negotiating a settlement of my client's "fair share" of potential liability I also had no idea what I shouldn't do.  As a result, the settlement I negotiated was better than any achieved by the dozens of other similar companies who were my co-defendants.  

One afternoon, I received a call from senior counsel to the defendant who'd had the greatest potential liability exposure and who likely paid the most to settle the case. 

"How in the world did you get them to agree to an injunction-only settlement?" she asked.  "I've never seen anybody do that before."

"Thanks," I said.  "I guess I managed to do it because I didn't know that I couldn't."  

What Does Being a Generalist Have to Do with Negotiation and Mediation?

As I recently said in a moment of naked self-promotion, it's good to have a mediator who is "inside the other guy's decision cycle," i.e., someone familiar with the industry and the legal specialty involved.     

"The day of the generalist mediator is over," I'm told, just as I was told the "day of the legal generalist is over" sometime in the late '80s. 

But here's the exception to the rule.  Negotiator or mediator, the parties will teach you the critical facts and the lawyers will hip you to the law necessary to resolve the dispute even if you don't know bupkus about either.   

Often, the more you know, the less likely you will be open to innovative solutions to intractable problems.

I suppose the best of both worlds would be to practice (and negotiate) in your specialty while at the same time maintaining what Buddhists call a "beginner's mind." 

"In the beginner's mind there are many possibilities, but in the expert's there are few." - Shunryo Suzuki-Roshi from the Beginners Mind Blog.

No matter how much you know or think you know, set aside your pre-conceptions and pre-judgments as much as you are able.  Avoid "we've always done it this way" thinking.  Then, whether you're in a new field or an old one, you will surprise yourself and your bargaining partner with the high degree of creativity you are able to bring to the same old problems.

Did I also say it's lots more fun to do something new everyday?  And that conflict resolution -- whether you're judge or jury, advocate or negotiator, mediator or arbitrator -- is waaayyyyyyyyyyyyyy too hard unless you're having fun doing it.

We're proud to say that our friend Stephanie West Allen was recently awarded the Thinking Blogger Award by the Eide Neurolearning Blog and that she passed it along to us.

 Hey listen!!  If Hollywood and the music industry can award themselves tens of thousands of real gold-plated statuettes a thousand times a year, why can't we give ourselves gold and silver virtual awards for contributing more "genuis" to the thinking world in any single day than the entire entertainment industry does in any decade you might want to name?

(Cf. Jerry Seinfeld's hilarious bit on award-giving during his speech accepting HBO's first "annual" HBO Comedy Award -- "you don't give awards to comedians," says he). 

 Stephanie has graciously asked me to play this meme tag game under the following rules:

1. If, and only if, you get tagged, write a post with links to 5 blogs that make you think,

2. Link to this post so that people can easily find the exact origin of the meme,

3. Optional: Proudly display the 'Thinking Blogger Award' with a link to the post that you wrote (here is an alternative silver version if gold doesn't fit your blog).

Stephanie asks that we "tag blogs with real merits, i.e. relative content, and above all - blogs that really get you thinking!" rather than those, say, with the highest first weekend box office gross (i.e., X-Men). 

The following blogs make me think:  

1. Geoff Sharp's Mediator Blah Blah, who writes like a truly great comedian; he makes it look easy; it hits your insight-center before you have a chance to self-censor; and, it's way deeper than you think; 
2. the Electronic Intifada (which may not actually be a blog but which I read as if it were one),
3. Lawrence Solum's Legal Theory Blog,  for the truly geeky wanna-be academics in the crowd like me;
4. George Wallace's cultural blog A Fool in the Forest (the blog equivalent of Finnegan's Wake); and,
5. Gini Nelson's Engaging Conflicts Blog for its audacious eclecticism. 

And because the Electronic Intifada may not actually be a blog, I'll add

Hugh ("we don't need no stinkin' awards") McLeod's Gaping Void (the blog equivalent of Kingsley Amis' Lucky Jim).

Everyone who knows the difference between distributive and integrative bargaining and the iconic story of the ONE ORANGE should go directly this morning to Geoff's blog, Mediator Blah Blah.  First, a snippet to encourage you:   

Today I found myself inducted into the Mediators' Mile High Club at 23,000ft when two young, remarkably similar looking girls seated in 16E and 16F needed my help.

(yes, they look sweet and compliant now, but just wait until the plane takes off!)

for remainder of story click here.

Stephanie West Allen at Idealawg has tagged me and eleven others to respond to Alex Shalman's Gotta Get Goals by "list[ing] and writ[ing] about the top 5 to 10 goals that you gotta’ get so that you can truly say you have achieved your wildest dreams in life. These have to be your best, most exclusive, and over-the-top goals that you can pick off your goals list."

I'm thinking, SHOOT!! I already write about myself too much, but Stephanie is one of my favorite people so I hate to disappoint her on this meme.  Therefore, you can skip this post as more blather from the most narcissistic person on the planet or read my top ten. 

The casual observer may not think these goals much to hope for, but if I achieve them, I will have achieved more than I ever believed possible and will die a happy woman.  

1. to stay sober and help other alcoholics to achieve sobriety; this is my primary purpose; everything else is gravy.
2. when I say "stay sober," I mean, to maintain a peaceful and loving balance in my life no matter what my circumstances -- to be content and of service in a war zone, a jail cell, a hospital and on my death bed.
3. to make a difference in the world, every day, one person at a time.
4. to be awake, present, to my experience and compassionate to that of others.
5. to continue to overcome those defects in my character that keep me from being of service.
6. to be self-supporting through my own contributions.
7. to be humble and more even-tempered.
8. to express myself creatively without pretense, desire for fame or hope of financial reward.
9. to know myself, my strengths and my limitations.
10. to contribute to my family, my friends and my community at the highest level possible without self-aggrandizement or need of reward.

In the words of the poet Mary Oliver, I want to be able to say

all my life
I was a bride married to amazement.
I was the bridegroom, taking the world into my arms.

When it’s over, I don’t want to wonder
if I have made of my life something particular, and real.
I don’t want to find myself sighing and frightened,
or full of argument.

I don’t want to end up simply having visited this world.

If they haven't been tagged yet, I tag Michael Webster, Blaine Donais, Diana Skaggs, Cassandra Lawrence, Jan Schau, and, Geoff Sharp.

As always, Michael Webster says something incredibly provocative in response:

Gotta Get Goals.  Why? Why do we need goals? This is not a flip response to what appears to a very successful meme/linkbait project.

For the surprising answer, click here.

As a follow-up to yesterday's post on collaboration and cooperation, we recommend a recent article in the Harvard Business School's invaluable online resource "Working Knowledge" -- The Value of Openness in Scientific Problem Solving, by Karim R. Lakhani, Lars Bo Jeppesen, Peter A. Lohse, and Jill A. Panetta.

The HBS Executive Summary below; link to full article above. 
  

Scientists are generally rewarded for discoveries they make as individuals or in small teams. While the sharing of information in science is an ideal, it is seldom practiced. In this research, Lakhani et al. used an approach common to open source software communities—which rely intensely on collaboration—and opened up a set of 166 scientific problems from the research laboratories of twenty-six firms to over 80,000 independent scientists. The outside scientists were able to solve one-third of the problems that the research laboratories were unable to solve internally.

Key concepts include:

Opening up problem information to a large group of outsiders can yield innovative technical solutions, increase the probability of success in science programs, and ultimately boost research productivity.

Open source software communities provide a model for improving the process of solving scientific problems.

Outsiders can see problems with fresh eyes; in this study, problems were solved by independent scientists with expertise at the boundary of or even outside their field.

Achieving true openness and collaboration will require change in the mindsets of both scientists and lab leadership.

A timely post for solving the problems of WORLD 3.0. 

In response to my over-50 peers' dire predictions that the internet will make books with covers and typeset lines obsolete, I chortle back, "but I love the internet.  I love wikipedia. I love Youtube and Flickr and Google." 

They look at me like I'm nuts. 

"But what about newspapers," they say, "and reading and poetry?  What about sitting in an easy chair with a new novel in your hands and a cup of coffee by your side?"

"Books and newspapers don't hyperlink," I respond.  "Nor do they give me access to thousands of libraries.  With search capacity." 

"Here's the thing," I continue.  "I can sit on the couch in my L.A. Spanish stucco house -- built in 1928, at the very beginning of electricity and motorized mobility -- with my Dell computer on my lap, looking up occasionally at the vase of spring flowers on my coffee table, the bird of paradise just beyond my curtained window and the palm trees in the neighbors' yard across the street while I browse the Library of Congress for an article on the history of Islam." 

"And if books with covers become artifacts like 78-rpm records?  I'll have my artifacts here, in the bookcase behind me and on shelves in my office.  Perhaps we'll have public newspaper like we now have public television and radio, for the old folks among us.  No need to worry about someone acquiring monopoly control over the news.  The bloggers will continue to newscast and the ordinary citizen to upload to YouTube scenes of the local police tazering citizens.  And we won't have to cut down any more trees to make the paper on which to hold the words."

Does it get any better than that?

The point of this post?   I am once again burying the lede is favor of the aimless morning ramble before I jump back in to my real work -- the work they pay me to do. 

The point of this post is to ask you to go RIGHT NOW over to wikipedia's entry on mediation and make it better as suggested by John Helie in There Goes That Internet Thingy Again! in mediate.com this month.

Thanks John!

(video by JWTNY whose other work can be seen here).

The business of lawyers is words.  Their precise meaning. How they function, alone and together. Sometimes a comma makes all the difference between winning and losing a case. Once, for a few tens of millions of dollars, one of my partners asked the Court of Appeal to rule that the word "sudden" meant "quick," not "gradual."  (case mentioned here)

No kidding.

And everyone was worried about the outcome.

So the law is a poet's profession.  Or, poets gravitate toward the law because, unlike poets, lawyers get paid to write.

The poets among us are so common that we have our own web site -- Strangers to Us All:  Contemporary Lawyer Poets -- constructed by Law Professor James R. Elkins at West Virginia University. 

Some of my friends are listed there -- Rick Wirick -- an insurance coverage attorney with the firm of Fainsbert Mase & Snyder LLP in Los Angeles.  Rick's book of prose poetry -- 100 Siberian Postcards -- will have American debut at Book Soup in West Hollywood in late April of this year (you can listen to Rick read some of these here).     

My old college friend Joe Mockus is also on Professor Elkins web site.  Joe is a criminal defense attorney in Oakland (Garcia, Schnayerson & Mockus) whose firm once represented Jello Biafra of the Dead Kennedys in a Free Speech case (listen to Biafra chat with prosecutor Guardino on an episode of This American Life here).  Joe's one of the best poets I know.  But he doesn't send his work out and I have to beg him for it so I can publish him in the literary journal I edit, the r.kv.r.y. quarterly.  You can find Joe's poems here and here. 

I am more indebted to poetry than I could ever tell you unless we were chatting over a latte and I was talking too much.

Enjoy the Billy Collins.  The poetry alone is wonderful -- touching.  The videos are amazing.  Thank you YouTube for putting the means of distribution into the hands of the artists. 

I cannot resist also giving you The Best Cigarette Poem Video.  Hypnotic. 

It's Friday.  Time to chill out a little and take ourselves just ever so slightly less seriously.

Here, for your viewing enjoyment, a parody of Employment Conflict Resolution from the hilarious televsion series "The Office." 

Sadly, the video is no longer available on YouTube. 

See Death and Taxes Blog for the written transcript here.

Network (above) skewers network televsion as it existed in 1976 and, more importantly, predicted a future media dystopia as close to hand as your remote control.     

In this scene, the President of the fictional UBS Network attempts to "convert" the network's insane news anchor to the theology of the global marketplace.  It's one of the most prescient and hilarious commentaries on money, power and global politics ever written.

Norman Lear has said of Network:  This is not a satire; it's a documentary.  

Rent it, buy it, watch it. 

You will find in Network the first imaginings of reality television in a country that was then celebrating the 200th Anniversary of the American Revolution and which had, only the year before, painfully extracted the last of its troops from Viet Nam.  Saturday Night Live was breaking network taboos in its first year on the air ('75-'76) and the Twin Towers had been standing sentinel over the foot of Manhattan for only three years.  

The following year -- 1977 -- I'd watch in amazement from the sidewalk near the New York Supreme Court in Foley Square as a mountain-climber from Queens,  George Willig, climbed the South Tower (2 WTC).   But I digress.

When Network was first released, I was working in the typing pool (IBM Selectric:  5 carbon copies) of a midtown law firm, studying for the LSAT and learning what it was like to be truly poor (rats in the lobby, cockroaches in the kitchen and la Migra pounding on our apartment door at 3 a.m. as  we listened to neighbors escaping through the building's otherwise unsued dumb-waiter system).  

When my husband and I had arrived in New York City the year before, it had been teetering on the edge of bankruptcy and its pleas for help from the federal government had been famously rebuffed, prompting the notorious New York Daily News headline: "Ford to City: Drop Dead."  

New York City thirty years ago.  New Orleans today.  Plus ça change, plus c'est la même chose.

Paddy Chayefsky's prophetic vision grows more eerily accurate with each passing year.  In 2006, this script was voted one of the top ten movie scripts of all-time by the Writer's Guild of America.

This posting has nothing whatsoever to do with mediation, negotiation, lawsuits, business or legal practice except that it is about power, the wielding of power and the illusion of power.

It's a Sunday digression.  

Baz Luhrmann's hallucinatory Romeo and Juliet, the ultimate Shakesperean lesson in the dangers of fiercely playing Tit for Tat.   

The Americans are fond of explaining almost all the actions of their lives by the principle of self-interest rightly understood. In this respect I think they frequently fail to do themselves justice. -- Alexis de Tocqueville

We've mentioned these principles before:

• negotiators will reflexively play the childhood game of tit for tat (you cooperate, I cooperate; you defect, I punish; you cooperate, I cooperate again) because, as the game theorists tell us, we evolved as a human society as a result;
• negotiators are also inequality averse, just like the capuchin monkeys who act against their own apparent self-interest by refusing to work when one of their fellows begins making five times the salary for the same amount of work.  

Herbert Gintis, an Emeritus Professor of Economics at the University of Massachusetts, discusses these issues in Game Theory and Human Behavior.  

The point of the following excerpts from Professor Gintis' research is this -- what negotiators tend to call irrational bargaining behavior  -- not accepting an objectively  "good deal" -- is not necessarily irrational or "overly emotional."  It is simply driven by considerations that hard numbers do not explain.

Gintis explains: 

The inequality-averse individual is willing to reduce his own payoff to increase the degree of equality in the group (whence widespread support for charity and social welfare programs). But he is especially displeased when placed on the losing side of an unequal relationship.

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The Social Web - A World of Possibilities from the public relations/public affairs firm Tunnheim Partners provides the statistics for all the jabbering we do here about matriculating your law or ADR practice into the Web 2.0 University.  Excerpts below:

In a year when YouTube won Time magazine’s invention of the year and corporate CEOs were quick to create their own avatar – a virtual personalized identity – 2006 proved that “new media” now includes much more than blogs. The always-changing media landscape has forced public relations professionals to constantly re-examine the term “new media” and continuously find its hidden opportunities.

Gone are the days where a company could merely post information on a static corporate Web page and expect customers to find it. A survey by Ketchum and the University of Southern California’s Annenberg Strategic Public Relations Center found that nearly half of all industry professionals use their corporate Web site to post important company news and announcements, but only 6.8 percent of all customers will go to the Web site to find it. Today’s more socially minded Web user will look to more interactive online locations to influence their beliefs about a company, product or concept – including the virtual world.

Read the rest of the article and check out more Tunnheim advice here.

And if you don't know what Web 2.0 is, check out the O'Reilly Explanation which includes the following comparisons between Web's 1 and 2.

And no, we here at the Negotiation Law Blog don't know what half of these things mean.  The point is only that we're learning and we invite everyone else along for the ride.

I've been reading a lot about creativity lately because it is central to my practice as a mediator and central to the business opportunities of my commercial clients.  As Colin Powell says when speaking to business people, "to negotiate a deal, you need to be inside the other guy's decision cycle." 

Understanding the creative process in business is one of the ways I try to stay in my clients' "decision cycles." 

So why Juggling in a Cone? 

Two reasons.

HOPE AND CREATIVE SELF-EXPRESSION

First, it gives me hope for humankind.  That we follow the creative call and then spend hundreds (THOUSANDS?) of hours perfecting our heart's desire without realistic chance of material gain  makes me believe we WILL find solutions to global warming, tribal and border warfare, poverty and disease.  I can't help myself.  Juggling in a Cone makes me marvel, makes me laugh, lights up my world.

Second, Juggling in a Cone is all about exploring creativity with severe constraints.  There's not a lot of room in that cylinder.  Given its limitations, what might a juggler do?  Hit the play button and see if you're as enchanted as I am. 

TURNING LIMITATIONS INTO SOLUTIONS

In Turning Limitations into Solutions (the February online issue of Business Week) Marissa Ann Mayer, vice-president for search products and user experience at Google, says

Creativity is often misunderstood. People often think of it in terms of artistic work -- unbridled, unguided effort that leads to beautiful effect. If you look deeper, however, you'll find that some of the most inspiring art forms -- haikus, sonatas, religious paintings -- are fraught with constraints. They're beautiful because creativity triumphed over the rules. Constraints shape and focus problems, and provide clear challenges to overcome as well as inspiration. Creativity, in fact, thrives best when constrained.

Yet constraints must be balanced with a healthy disregard for the impossible. Disregarding the bounds of what we know or what we accept gives rise to ideas that are nonobvious, unconventional, or simply unexplored. The creativity realized in this balance between constraint and disregard for the impossible are fueled by passion and result in revolutionary change.

Having recently been turned on to cartoonist and copyrighter Hugh McLeod's Gaping Void comics (care of Geoff Sharp's eagle eye) I find that artists have been hip to the creativity-constraint principle for some time.  In McLeod's case, the constraint is the size of a business card.

In mediation practice -- the practice building part -- the constraint is generally expressed as a series of reasons one can't make a living at it -- the pro bono panel distorts the market, I'm not a judge, I'm too young, I did transacitonal work, I came to the market too late, there are too many mediators in Los Angeles, the commercial panels have the market all tied up, etc., etc., etc.

If we use these constraints rather than complain about them, we might find ourselves, well, juggling in a cone.

For excellent advice from an artist about pursuing your heart's desire, go to the extended entry, Advice on Being Creative .  I took the time to read this in full yesterday -  a highly worthwhile time commitment.  I recommend it to anyone searching for a solution to the intractable problem of "what are we to do with our one and only lives?" 

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