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Victoria Pynchon

As the co-founder of She Negotiates Consulting and Training, I offer my services as a keynote speaker, trainer and consultant....

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She Negotiates

She Negotiates

The 33 cent wage and income gap is unacceptable and unnecessary. So is the cliché glass ceiling. Bottom line, our...

Anchoring and Framing: They Work So Well Their Use is an Ethical Act

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! 



The Five Most Effective Ways to Break Negotiation Impasse: Part V

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.

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.

Who ME? Manipulate? Negotiating Impartiality in Mediation

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?

This Twitter Thing is Certain to Come to No Good!

Drug and Device Law Blog Achieves Enlightenment

The guys at Drug and Device Law Blog in Random Thoughts on Randomness have gone stark raving sane.  Please send medical assistance.  Western medicine.  With their stats, this could turn into a pandemic.

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.

Blawg Review 170 Negotiates Simple Justice

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.

English Professors Do It -- Negotiate that Is

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!

Negotiating Middle Age: the Judicate West Holiday Party; Sky Bar and Twisted Sister


(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)

Posting from Paradise: Settle It Now Goes on Vacation


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????????

To Everything There is a Season

Via Kottke.org, we are directed to Plants Can Tell Who's Who at naturenews.com.

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


What Does Cross-Discipline Have to Do With It?

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.

Mediate This: The Intersection of Mediation and Handguns

If mediation is the triumph of hope over experience, GOOD FOR US!

This, from today's New York Times (full article here):

With anxiety running high in classrooms across the nation after the Virginia Tech attacks, the authorities in Sacramento [California] arrested four secondary school students on Thursday, including one carrying a loaded gun. . . .

[A] 14-year old . . . had photographs of two female McClatchy [High School] students.  The police said they believed that the boys were planning to shoot them. . .

School counselors had been working on [a] problem [among four female McClatchy students] and planned to mediate the dispute on Thursday . . .

The police said they believed that the two boys [with the gun] . . . were enroute to the mediation, possibly to shoot their targets before or after the meeting."

We're hoping that if the police had not intervened, a shooting wouldn't have occurred after the mediation.

I'm also hoping mediators won't have to begin frisking their disputants before joint sessions, at least not here in Second Amendment land where we are packing 65 million hand guns!

Don't Crush that Patent! Hand Me the Pliers

Slight digression for moment of nostalgia and copyright notice. 

This (right) is my favorite Firesign theater album.  I heard it for the first time on FM radio in high school while vacuuming the living room floor (yes, young people used to do these chores). 

It led to harder comedy.  

Note to subsequent generations of young people -- FT's comedy remains hilarious and does not age with time.   

From Wikipedia:  this image is of a music album . . . and the copyright for it is most likely owned by either the publisher of the album or the artist(s) which produced the music or artwork in question. It is believed that the use of low-resolution images of album . . . solely to illustrate the album . . .  in question . . . qualifies as fair use under United States copyright law. Any other uses of this image, on Wikipedia or elsewhere, may be copyright infringement. See Wikipedia:Fair use for more information.

OK, I blew the entire post on that.

Part III (3) Three on Step IV (4) Four from the Lax & Sebenius article, The Art of the Best Deal follows.


Geoff Sharp Joins the Mediator's Mile High Club

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.

Collaboration Creates Better Science


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. 

Mediation, Wikipedia and the Internet

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!

Power and the Illusion of Power: Paddy Chayefsky's Network

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 NamSaturday 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.  

A Baghdad Romeo and Juliet

Just the other day we were talking about tit for tat violence in Romeo and Juliet.  Today, USNews.com in Friends, Family and Foes, in Iraq, Sunnis and Shiites Fight, But Sometimes They Marry, brings us a Shiite-Sunni wedding worthy of Friar Tuck's imaginings when he married the star-crossed lovers. 

 "In one respect I'll thy assistant be," he says of the upcoming secret nuptials, "for this alliance may so happy prove, to turn your households rancour to pure love." (Act 2, Scene 3). 

It's hard not to have one's hope slightly buoyed by this symbolic gesture.

"The bride," USNews.com reports,

is a university student from a storied Sunni tribe, the groom a technician at an Iraqi cellphone company and the son of a prominent Shiite tribal leader. It could almost be a Baghdad version of Romeo and Juliet but with a twist--the marriage was arranged by their parents, in part as a willful symbol of defiance against the sectarian violence that has riven Iraq.

The unlikely nuptials might appear to be a doomed gesture in a place where tension between Sunnis and Shiites seems to keep escalating with random killings and tit-for-tat retaliations. Shiite families have been chased out of suddenly unfriendly Sunni neighborhoods, and vice versa. The sectarian strife has been aggravated by growing confusion over the loyalty of Iraq's Shiite-dominated security forces and a months-long delay in forming a new government.

But the wedding also serves as a reminder of the complexity of the Iraqi mosaic, where Sunnis and Shiites have long been deeply interwoven. Not long ago, a Sunni-Shiite wedding would have been unremarkable. But in today's Baghdad, it is a brave and fraught venture. For these two families, it also means wrestling with the uncertain future of their troubled nation--and placing what amounts to a high-stakes bet that, in part because of events like this one, Iraq will not descend into a full-fledged civil war.

For the full account, click on the title of the article above.

Is Your Negotiating Partner Behaving Irrationally? Love in a Tit for Tat World

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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Blogging for Mediators 101 -- How to Get Started


We had a great writing seminar with the brilliant and energetic Lisa Klerman of U.S.C. Law School, SCMA President Jan Frankel Schau of Valley Mediation Services and the tireless Phyllis Pollack, Chair of SCMA's Practice Development Committee, at the Los Angeles County Bar Association last night.

All participants walked out of the seminar with a writing/blogging marketing plan and some of the groups exchanged business cards, agreeing to act as "marketing buddies" to achieve the goals set at last night's session.

The Basics to Set Up Your Blog

Several attendees asked me to provide the links to blogging resources that I mentioned last night so here they are:

Google's Blogger -- where you can set up a blog free in about half an hour no matter how technologically over-50 you are.  There are other resources, like typepad, but I have no experience with them.

For broader instruction, Diane Levin at the On-Line Guide to Mediation and Tammy Lenski at Mediator Tech teach a four part blogging seminar that I attended just last month and which I highly recommend. 

Feedblitz syndicates your blog, i.e., permits you to put an email subscription box in your blog's sidebar and allows your subscribers to choose a direct "feed."  I have no idea how the RSS ("really simple syndication") feed works, but I use it myself and it's easy to set up at Feedblitz.   

I am indebted to Diane Levin for turning me on to MorgueFile, where you can get free images courtesy of a benevolent conspiracy of photographers who offer their stunning photographs free of charge.  Before Diane turned me on the this source, I used (and still use) istockphoto.com where most images cost a dollar.  Flickr also provides free images.

Google Alerts will send you articles and blog posts on any topic you choose.  Just put in a key term like "mediation," "negotiation," "insurance coverage," "family law," "health care industry," "community mediation," "restorative justice," "social psychology," etc. and google will deliver the web results to your email box.  (See also Google Tracking for Client Awareness at Netlaw Blog -- remember, your clients are Just Not That Into You; they are, however, into themselves).

Have I said "God bless google" recently?  God bless google, particularly for constructing a library of every book ever written still in existence today at books.google.com.  The New Yorker article on this dizzyingly audacious endeavor, Google's Moon Shoot, is here.

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Juggling in a Cone: Creativity and Constraint

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.


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. 


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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