As the New York Times‘ Adam Liptak reported today, the Supreme Court will decide on Tuesday whether 1.5 million women will be permitted to proceed with their gender discrimination class action against Wal-Mart.

The high court is being asked to decide what role it believes social science research should play in determining whether implicit bias is responsible for women’s underpay and under-representation in Wal-Mart’s management ranks. At the center of the Supreme Court case is the testimony of Sociology Professor William T. Bielby, at University of Illinois at Chicago.

Briefs and articles for the serious student of Constitutional Law below.

Ninth Circuit Opinion in Dukes v. Wal-Mart

Opening Brief

Opposition Brief

Reply Brief

Thanks to Rex Stevens for passing these links along to me.

Learning to be a great negotiator is a skill that will serve you in a variety of situations. Whether you're buying a car, setting a salary, or in an international business deal, negotiation skills are essential to getting what you want. These blog posts share tips, strategies, and more for becoming a better negotiator.

Ladies and gentlemen, start your settlement engines. Your clients will repay you with more work than you can handle!

From The Japanese Quake, Pearl Harbor, Karmic Payback and Cognitive Biases.

Pearl Harbor is unfortunately a trending Twitter topic because millions of little microphones have been given to people unable to think things through.

People who say the Japanese “deserve” it, like those who believe that AIDS is God’s punishment for immorality, are suffering from a cognitive bias called Fundamental Attribution Error. Here at She Negotiates, we’re deeply concerned with cognitive biases because they cause otherwise kind and rational people to believe that their neighbors are mean-spririted, ill-willed or downright evil.

And that prevents us from being compassionate, helping out in times of crisis or negotiating the resolution of disputes.

Instead of becoming mired in the debate between the  Japan-deserved-it tweeters and those who call the tweeters stupid jerks, let’s use the trending Pearl Harbor-Japanese earthquake topic as a teaching moment.

From Excuse Me for Having to be Rescued: Negotiating Order in Japan.

Today, the newspaper of record for Los Angeles, its own readership jumpy and restless, tells us that the Japanese are maintaining order by exhibiting behavior (“impeccable manners”) that most Westerners would consider overly deferential and needlessly self-sacrificing.

From Please Don't Buy Me Retail - Negotiating with Professionals

The Women Don't Ask author quoted her keynote fee as $10,000, which is an eminently fair price. A man of similar provenance would have asked for at least twenty grand. If you’re skeptical about that, check out the fees at BigSpeak which lists a couple of male Harvard Business Professors at $40,000 + (Clayton M. Christensen) and $20,001 to $40,000 (John A. Davis) while quoting a couple of women at the top of the corporate ladder at $7,500 to $10,000 (former Accenture managing partner and author Susan Bulter) and $10,001 to $20,000 (Kate White, Editor-in-Chief of Cosmopolitan and New York Times Best-Selling Author).

In a recent effort to remedy the persistent problem of women performing poorly on math tests, researchers at the University of Chicago asked women to write about their test-anxiety or about their personal values. It didn’t matter whether the women wrote about their values or about their fears, having journaled in preparation for their math tests, their scores improved one full grade. See The Write Way to Reduce Test Anxiety at U.S. World and News Report.

[Researcher] Sian Beilock [said] that “[o]ne small snippet of writing can be enough to boost performance. Writing for eight or 10 minutes before the test put anxious students on a par with students who didn’t worry.”

Here’s the most important finding for women who continue to resist negotiating on their own behalves.

“Women who tended to believe that men were better than women at physics showed the greatest improvement” in test scores when they wrote about their values or fears in preparation for their examinations.

Journal your values and journal your fear

I’m particularly pleased to learn of this research because the She Negotiates training is conducted on an online journaling-learning platform. My business partner and I have long wondered why the women who take this course nearly always report a transformative result that impacts all areas of their lives.

“It’s because of the word journal,” I’ve said to my partner. “It allows women to go deep.”

We cannot simply give women negotiation strategies and tactics, expecting them to go out into the commercial world and use them.

We need to provide women with a community learning experience in which they’re able to connect their fear of negotiation to the culture in which that fear developed like the old consciousness raising sessions of the Second Wave Women’s Movement. We need not only negotiation skills, but the confidence and sense of entitlement to use them.

My conflict resolver's stream of consciousness moves from family strife to violence for reasons both global and personal.  Like many conflict resolvers, I am a wounded healer, raised in a family where violence alternated in alarming rapidity with the denial and suppression of conflict.  This created in the children of that family a desire for peace coupled with a suspicious nature prone to strike before asking questions.

It is we ~ those raised in the cauldron of violence ~ who seek peace and proclaim it while at the same time attempting to corral a pugnacious first response to threat.

That's the personal. I mention it not simply because I lack a religious confessor to urge me toward true acts of contrition, but also because the personal is inextricably interlinked with the political, particularly when it comes to religion. 

Religious Peace and Violence

How and why do we translate our personal weakness for the cutting remark or barroom brawl into religious and political dogma?  The "how" is often simply reflexive.  The author of The Brain Rules tells us that these are the questions we ask when we see a stranger.

Can I eat it?

Will it eat me?

Can I mate with it?

Will it mate with me?

The "how" is also the "why" with the added apprehension that religious beliefs are based on faith and too often require the faithful to convert the unconverted by means intellectually persuasive or violently coercive.  

Thus the human condition.

The Peace Part

Someone schooled in Buddhism once told me that "the world being dual, the best we can do is lean toward the light."

Many people schooled in Christianity have told me in and out of religious congregations that the profound fallibility that burdens all of us is precisely what makes us human.  It is only our willingness to accept forgiveness that takes us into the neighborhood of God.  Incapable of perfection, we are saved by grace. Once saved, we are moved to express that which God has expressed in us and we become agents of forgiveness and reconciliation.  We will never, however, stop "sinning."  The grace given is compassion for our fallibility, not the perfection of our "fallen" nature.

My Jewish friends refer me to Tikkun Olam - the principle of the world as both spiritually and materially broken ~ and in need of repair.  They also tell me about the 36 righteous people whose role in life is to justify the purpose of humankind in the eyes of God.

My evolutionist friends tell me that we share with the forebears from whom we separated fifty million years ago a compelling emotional response to injustice.  We also share with these distant relatives the same cognitive biases that make us respond irrationally to giving and getting.  TED video on this topic below.  

My Muslim friends acknowledge the violence in their sacred text which is not significantly different from that in the sacred Jewish and Christian tomes.  These teachings, all in the Abrahamic tradition, can be read leaning toward the light or toward the darkness.  Muslim organizations for peace are prevalent and powerful.

As a nearly fully secularized humanist raised with the values of mainstream mid-twentieth century Protestantism and dipped in evangelical Christianity in high school, I commit my spirit to the grace of a god I am too limited to understand, too skeptical to believe in without great struggle, and too grateful for the gift-horse of pardon to kick in the teeth.

A list of my favorite books on religion and/or violence/peace are my Christmas present to my readers.

The Ambivalence of the Sacred by Scott Appleby, a great use for the Amazon gift cards you're getting for your Kindle this holiday season.

Conflict Revolution ~ Mediating Evil, War, Injustice and Terrorism by Ken Cloke.

Bargaining with the Devil ~ When to Negotiate, When to Fight by Robert Mnookin.

• THE ASK - name your price first and to make your first number aggressive but not outlandish
  • you need at least three numbers to negotiate with - high, medium and bottom line
  • start with your high number
  • consider linking your high number to performance contingencies, i.e., if I do X and Y as I've promised, then my total compensation for 2011 will be Q; these performance contingencies can also be tied to the company's performance in 2011.
  • don't give all your reasons for your raise at the same time; you need a good reason for each of your high, medium and bottom line numbers - each round of negotiation requires "a number and a reason"
  • when making concessions, consider trading items of high value to you and low value to your employer, i.e., it doesn't cost your employer anything to let you work from home one or two days a week but it may well save you significant monies over the course of the year in transportation and incidental costs (this is called "log rolling")
  • go to your medium number reluctantly and stress that you are making a concession and expect reciprocity
  • go to your bottom line number only when you've completely run out of options

• PRETEND YOU ARE NEGOTIATING FOR SOMEONE ELSE
  • we women have a particular challenge in negotiating for ourselves because asking for ourselves contravenes gender norms
  • the research shows that we negotiate as effectively as men when we're negotiating for another but not when doing so for ourselves - so make yourself your own client and go out there and get the best deal for her

I was cruising a conservative political blog this morning and noticed how much darker the photographs of Barack Obama appeared to be there than I am used to seeing in the mainstream press.

Odd, I thought, and tweeted this: have you ever noticed that Obama is BLACKER on conservative political sites? think it’s intentional?

 Not long after, a member of my Twitter Brain Trust, attorney, mediator and consultant Iván Ríos-Mena ~ @IvanRiosMena ~ tweeted back Maybe this explains it… http://j.mp/cHiTgH ~ a link to an article entitled How Light or Dark is Barack Obama’s Skin? Depends on Your Political Stance . . .

Turns out, how light or dark you believe Obama to really be has more to do 

with whether you agree or disagree with him that it has to do with the actual color of his skin (of which I have a pretty good idea, having met the man face to face).

As the article cited by Rios-Mena explains, students who felt aligned with Obama “tended to mentally lighten his skin” in experiments conducted by University of Chicago researcher Eugene Caruso.

Anyone in a mood to attribute this tendency to explicit or implicit bias will be disappointed with Caruso’s results. The student volunteers’ image of Obama as lighter if they agreed with (or voted for) him and darker if they disagreed with (or voted against) him, “remained even after adjusting for racial attitudes, both hidden and explicit.” The choice of lighter or darker photos by the students was so strongly correlated with their approval of Obama that it turned out to be a better indicator of voting choice than were the scores on either of the explicit or implicit bias tests given to them.

Assuming the vast majority of the student volunteers were “white” (European) the ABC’s of Conflict would attribute the lightening and darkening effects revealed by Professor Caruso’s studies to in- and out-group bias. If we agree with people, we tend to think of them as being more “like us” and when we disagree with them, we like to think of them as different from us ~ the Others.

 No one is color-blind.

So what do we do? We must be mindful of our implicit biases, ask ourselves whether we’re making assumptions about people based on their race, religion, nationality, gender, disability, regional accent, age and the like and then think again. As you’ll see if you take the implicit bias tests yourself, they do not let you think long enough to work against your prejudices. This is why the tests are able to reveal our implicit, or unconscious, biases.

 We do not, however, have to act upon these knee-jerk assumptions because in real life outside of the social science lab, we do have the time to fire up our thinking minds before we judge another human being based upon superficial characteristics.

Ask yourself if your prejudices are likely getting in the way of your better judgment. Don’t let yourself off the hook too quickly but also don’t judge yourself too harshly. Prejudices are a short-cut to establish trust when we do not have the time to investigate. The culture is soaked in negative images of African Americans, Muslims and any other group who happens to be “out.” Stay alert and mind the gap.

At 8 PM Women on the Move gets down to business with attorney Victoria Pynchon, author of the Settle It Now Negotiation Blog, who has been called a “master of conflict resolution and deposition skills.”

Victoria recently became a regular contributor to Forbes.com’s “On the Docket” column.

You can call in with questions! 

Call-in Number: (347) 857-2102

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! 

I'm addicted to something that doesn't exist.  ~  William Burroughs, Naked Lunch

This is where those sensible folks who have never been addicted to narrative nor worshiped at the altar of character development check out of the post.  Please do return. 

Live Together, Die Alone

Your plane crashes on a desert island.  Your fellow survivors are, as former U.S. Poet Laureate Billy Collins wrote in Aristotle, already "in the thick of it."

This is the middle.
Things have had time to get complicated,
messy, really. Nothing is simple anymore.
Cities have sprouted up along the rivers
teeming with people at cross-purposes –
a million schemes, a million wild looks.
Disappointment unsolders his knapsack
here and pitches his ragged tent.
This is the sticky part where the plot congeals,
where the action suddenly reverses
or swerves off in an outrageous direction.
Here the narrator devotes a long paragraph
to why Miriam does not want Edward's child.
Someone hides a letter under a pillow.
Here the aria rises to a pitch,
a song of betrayal, salted with revenge.
And the climbing party is stuck on a ledge
halfway up the mountain.
This is the bridge, the painful modulation.
This is the thick of things.
So much is crowded into the middle –
the guitars of Spain, piles of ripe avocados,
Russian uniforms, noisy parties,
lakeside kisses, arguments heard through a wall
too much to name, too much to think about.

Where are you?  Are there "others" on the island who would do your newborn society harm?  How will resources be distributed?  Who, if anyone, is fit and willing, to lead? Is there food and drinking water?  Will some members of your community begin to hoard food for themselves?  Can anyone track, hunt, kill and bar-b-q the wild boars that roam the island?  Who will settle disputes?  Who will betray you and who defend you? 

And when will you be rescued?

Now that we know that the island is the spiritual place - the dreamworld - the unconscious - where the survivors are challenged by inner and outer demons and given the chance to experience the healing grace inside every human heart - the mysteries need never be solved and the "truth" need never be revealed.   The "others" and the Dharma initiative and Jacob; the hydrogen bomb and the time travel; are all just the busy work against which the characters will achieve, or fall short, of their human and spiritual potential.

Yet, as Christian Shepard says at series' end - all of your experiences were real, Jack.

"Lost" as the Prisoners' Dilemma

The first two seasons of Lost were all about the Prisoners' Dilemma - is it better to cooperate with our fellows or to betray them?  And which makes us happier?

As I explain in "K is for Kin" in the upcoming ABC's of Conflict Resolution,

If a propensity for physical violence were the most prominent human characteristic, we surely would have wiped ourselves off the face of the earth by now. That we haven’t speaks to something even deeper within us than our collective desire to dominate others and control all available resources for our own benefit. Let’s take a deep breath and pause to remember that despite our sorry history of armed conflict, we also managed to land men on the moon, eradicate or drastically reduce a wide array of infectious diseases, end legalized racial segregation, grant women the right to vote in nearly every country in the world, and build civilizations that, for all their flaws, exhibit nearly continuous progress from barbarity to self-governance.

At the local level, most of us stop at red lights; wait patiently in line at the grocery store; refrain from hitting one another when angry; stay off other people’s property unless invited; play organized sports according to rules laid down decades ago; sit quietly through lectures, plays and movies; arrive at work on time; and, pay for what we gather in retail stores to feed and clothe our families. In extremis we not only behave ourselves, we often act heroically – putting our own lives in danger to save those of others – even when they are strangers to us. Firemen enter burning buildings; doctors and nurses risk their own health tending the well-being of others; police officers chase men with guns and enter abandoned buildings even when doing so is likely to get them injured or killed; and a great number of us would reflexively dash out into a street to save someone else’s child from being run over by a truck.

If each of us has decided to answer to the higher angels of our human nature, how might we convince our fellows to do the same? Once again, we turn to the evolutionary biologists for help.

In 1984, Professor Robert Axelrod organized a world-wide tournament among computer programmers. He issued an invitation seeking winning computer strategies for a game called the Prisoner’s Dilemma. The Prisoner’s Dilemma poses a problem involving trust, self-seeking and collaboration that economists use to show why people often fail to cooperate even if it is in both of their best interests to do so.

The game begins its life as the story of a human dilemma. Two suspects are arrested by the police for burglary. Because the police do not have sufficient evidence to convict either suspect, they can only secure a conviction if they are able to convince at least one of the two to confess the crime and implicate his partner. To coax the suspects to confess, the police offer each one the same deal. If either one of the two accused individuals testifies against his partner, he will be freed and his partner will receive a ten-year sentence. If both confess and testify against one another, each will receive a five-year sentence. If both remain silent, they will be sentenced to only six months in jail. These offers are made to the suspects in separate rooms.

The optimal choice for both partners in crime is to cooperate with one another by remaining silent. If they do so, each will earn only a six-month jail sentence. The optimal solution for the individual suspect is to “rat out” his partner, securing his own freedom. Because neither partner is capable of predicting the other’s choice, the only “rational” decision is mutual betrayal.

To learn the best means of resolving this dilemma, Professor Axelrod and others like him engaged their research subjects in repeated rounds – or “iterations” – of the game. Because our community life requires us to daily choose between cooperation and generosity on the one hand, and independence and selfishness on the other, this iterated prisoner’s dilemma best represented conflicts among our fellows in everyday life. Of the fifty iterated Prisoner Dilemma programs submitted to Professor Axelrod, one – named Tit for Tat – was the clear winner. Tit for Tat began each round of play with each new player by cooperating. If cooperative play was met with betrayal, Tit for Tat retaliated on the next occasion it “met” the non-cooperative gamer. Only if that program returned to cooperation would Tit for Tat do the same.

Those programs that were designed to cooperate haphazardly or to continue cooperating in the face of betrayal, were repeatedly victimized. Those programs that chronically betrayed their fellow gamers, became locked in escalating spirals of retaliatory play.

Only Tit for Tat behaved the way evolutionary biologists believe successful human survivors played the game of life. Those survivors were pre-disposed to cooperate with their fellows in at least some circumstances – circumstances in which their families or “kin” were threatened. Those inclined to betray did not, however, die out completely. To bring disreputable players back into the cooperative endeavors that would assure the family’s survival, it was necessary for punishments to be meted out. Banishment or penalties of death for non-cooperative players were not retaliatory options except under extreme circumstances. To survive, families needed “all hands on deck.” The “fittest” to survive, like the winning Tit for Tat computer program, quickly forgave as soon as punishment brought uncooperative family members back into line.

We appear to be hard-wired for cooperation in the same way Tit for Tat was programmed for success. When research subjects played the iterated Prisoner’s Dilemma while attached to equipment monitoring brain activity, the brains of those who were cooperating with one another lit up like pinball machines. Not only did the cooperators win more total points for cooperation than did the betrayers, they were happier whether they were winning or not. As the neuroscientists discovered, when we cooperate, the neurochemical that gives us pleasure – dopamine – is released. At the same time that the cooperators’ brains were being bathed in the warm glow of dopamine, their impulse inhibition areas were activated, helping them resist the lure of self-seeking.

Our evolutionary history has created us to be a “band of brothers” – a human family that places the well-being of the tribe on a higher level than anyone’s “personal best.” If family members betray us (and they will) we doom our effort to secure compliance if we fail to retaliate. A sharp slap on the wrist or even expressed disapproval (the powerful shock of shaming) is usually sufficient to bring miscreants back into line. To optimize the benefits to be gained by cooperation among the greatest number of family members, we must be quick to forgive when our retaliatory actions bear fruit.

As I became more and more involved in the complexities of the Lost narrative, the through line for me was always the Prisoner's Dilemma.  The survivors lied about their motives.  They betrayed one another.  They remained silent when speaking might have saved them.  They demonized "the others" only to find that demons inhabited their own hearts as well.  When the squabbling amongst them threatened to pull them apart, another threat from "the others" or the wild boars or the deadly black smoke or the hydrogen bomb, drew them back together.  And over time, they became kin.

More on Lost and the social psychology of conflict later this week.

Why is three the magic number?

Recent studies have shown that it takes three women corporate board members to avoid the deliterious effects of group think on corporate decision making - my own supposition on the question "why three" being that one or two women easily risk falling into male group-think.  This isn't male bashing, by the way. I assume three men on an otherwise all woman's board would have a similar performance enhancing effect.  

1. Illusion of invulnerability –Creates excessive optimism that encourages taking extreme risks.
2. Collective rationalization – Members discount warnings and do not reconsider their assumptions.
3. Belief in inherent morality – Members believe in the rightness of their cause and therefore ignore the ethical or moral consequences of their decisions.
4. Stereotyped views of out-groups – Negative views of “enemy” make effective responses to conflict seem unnecessary.
5. Direct pressure on dissenters – Members are under pressure not to express arguments against any of the group’s views.
6. Self-censorship – Doubts and deviations from the perceived group consensus are not expressed.
7. Illusion of unanimity – The majority view and judgments are assumed to be unanimous.
8. Self-appointed ‘mindguards’ – Members protect the group and the leader from information that is problematic or contradictory to the group’s cohesiveness, view, and/or decisions.
   

When the above symptoms exist in a group that is trying to make a decision, there is a reasonable chance that groupthink will happen, although it is not necessarily so.  Groupthink occurs when groups are highly cohesive and when they are under considerable pressure to make a quality decision.  When pressures for unanimity seem overwhelming, members are less motivated to realistically appraise the alternative courses of action available to them.  These group pressures lead to carelessness and irrational thinking since groups experiencing groupthink fail to consider all alternatives and seek to maintain unanimity.  Decisions shaped by groupthink have low probability of achieving successful outcomes.

From What is Groupthink  at the Psychologists for Social Responsibility site.

Thanks to Roger Wood at the Association Law and Other Musings Blog for passing along the Order for Lunch issued by the Maricopa County Superior Court (.pdf) excerpted below.  Roger generously shared this truly glorious Order (and supporting opinion that you can read in the .pdf) over at Construction Law Musings today in response to my Guest Post there ("How to Get Sued"). 

Thanks Roger!  This didn't just make my day; it made my year!

 Plaintiff’s Motion to Compel Acceptance of Lunch Invitation

The Court has rarely seen a motion with more merit. The motion will be granted.

The Court has searched in vain in the Arizona Rules of Civil Procedure and cases, as well as the leading treatises on federal and Arizona procedure, to find specific support for Plaintiff’s motion. Finding none, the Court concludes that motions of this type are so clearly within the inherent powers of the Court and have been so routinely granted that they are non-controversial and require no precedential support.

The writers support the concept. Conversation has been called “the socializing instrument par excellence” (Jose Ortega y Gasset, Invertebrate Spain) and “one of the greatest pleasures in life” (Somerset Maugham, The Moon and Sixpence). John Dryden referred to“Sweet discourse, the banquet of the mind” (The Flower and the Leaf).

Plaintiff’s counsel extended a lunch invitation to Defendant’s counsel “to have a discussion regarding discovery and other matters.” Plaintiff’s counsel offered to “pay for lunch.”  Defendant’s counsel failed to respond until the motion was filed.

Defendant’s counsel distrusts Plaintiff’s counsel’s motives and fears that Plaintiff’s counsel’s purpose is to persuade Defendant’s counsel of the lack of merit in the defense case.

The Court has no doubt of Defendant’s counsel’s ability to withstand Plaintiff’s counsel’s blandishments and to respond sally for sally and barb for barb. Defendant’s counsel now makes what may be an illusory acceptance of Plaintiff’s counsel’s invitation by saying, “We would love to have lunch at Ruth’s Chris with/on . . .” Plaintiff’s counsel. 1
___________
1 Everyone knows that Ruth’s Chris, while open for dinner, is not open for lunch. This   is a matter of which the Court may take judicial notice.

Read on by clicking on the .pdf above.

And how could I resist adding the "will you go to lunch!" scene from David Mamet's Glengarry Glen Ross.

After three years of negotiation and general ADR blogging, I feel the need to narrow my Negotiation Blog posts and expand my IP ADR Blog posts to the type of work that consumed the vast bulk of my 25-year litigation and trial career – general commercial litigation.

In the course of handling business-to-business disputes, I’ve prosecuted and defended legal actions for copyright, tradename, trademark, and patent infringement; securities fraud; and, insurance coverage (particularly concerning catastrophic environmental liabilities); antitrust; and, unfair competition disputes.  I have also represented both the Plaintiffs and the Defendants in nationwide class actions; and, from time to time, represented attorneys and accountants in malpractice cases.  I even have a small amount of experience representing employees and employers in wrongful termination and discrimination cases, but certainly not enough to call myself an expert in that field.

In the course of my ADR career, I have continued to focus my practice on commercial disputes, although I have also mediated employment, legal and medical malpractice, and personal injury cases.

Colin Powell famously said that the most important knowledge to possess in international diplomacy is the “other guy’s decision cycle.”  What interests must the client serve and to whom does he or she answer?  What potential damage might there be to the career of in-house counsel or a high-level manager if the litigation goes south or the mediated settlement agreement angers the Board, the shareholders or even the public?  Are there tensions between counsel and client that should be resolved if the settlement reached will serve everyone’s interests?  Are there upcoming mergers or other significant corporate events that make “circumstances” more important than the merits of a particular piece of litigation?

This describes just the tip of the iceberg of the commercial litigation and settlement “decision cycle” that I know intimately. I know what keeps clients awake at night because their concerns have been my business for more than a quarter of a century.  I also know at greater depth than I know anything else the competing demands and hard hours my new “clients” – commercial litigators – labor under on a daily basis.  And having cut the law firm umbilical cord five years ago, I finally know first hand the challenges of running one’s own business.

This is what I bring to my mediation practice, along with the negotiation and mediation skills I have been studying, writing about, and teaching with great diligence for the past five years.  I continue to teach trial and deposition advocacy for the National Institute of Trial Advocacy just to keep my hand in the adversarial system.  I also continue to follow developments in the law of all of the specialties that consumed my practice as an attorney.

And then there’s that LL.M in Conflict Resolution that perplexes most people in the legal community.  One of my dearest friends – a man who served as my discovery referee for seven years – asked me “how many ways are there to stir the mediation  pot?”  Thousands, it turns out, particularly given the enormous progress that has been made in the science of the mind, the study of decision-making and the identification of cognitive biases since I was at University.

Sitting on this side of the table for the past few years has been as confounding as it has been exhilarating.  I remain steadfastly convinced that the principle problem at hand is a commercial one to which there is almost always a better business, than a legal, solution.  That does not mean that I ignore or marginalize the “merits” or “positions” of the parties.  The ability to analyze the facts and the law of matters that have been in litigation for years — sometimes decades — in several hours or a couple of days is the mandatory minimal qualification for anyone who wishes to help litigators resolve commercial disputes.

Though the law “monetizes” injustice, no one – not even the most cynical Fortune 50 client – wants to settle a case that leaves the bitter taste of injustice in his mouth.    To deliver the benefits of the legal system to our clients we must never forget that they seek out the services of the “justice system” because they believe they have been treated unfairly.  A critical element of every “commercial” solution to every legal/business conflict, is therefore the resolution – even at the level of “rough” justice – of what brought clients to lawyers in the first instance – their perception that they have been cheated, blackmailed, insulted, taken advantage of, lied to, coerced or disrespected.

After twenty-five years of legal practice, I can say with conviction that the highest and best use of every mediator is to help the lawyers help their clients obtain – at a minimum – a “deal” that not only releases them from the trap of litigation, but one that releases them from the grip of injustice.

All of these goals; each of these interests; and, every one of these skills, are possessed by dozens of mediators with whom I have worked or who I have observed in the course of their work.  I’m certainly not the best nor the only passionately competent commercial mediator in the business.  I’m just one of them.

This new Commercial ADR Blog will cover not only negotiation and mediation strategy and tactics — including tips for resolving thorny legal and commercial problems, but also the social psychology of conflict as it relates to the business of commerce.  I will also cover  developments in commercial law and civil procedure that are particularly relevant to the settlement of litigation.

I hope you’ll join me.

(may I offer you a second helping of Jimmy Choo shoes with your turkey?)

Before sharing Brian Solis' succinct and brilliant post the Benevolent Acts of Reciprocity and Recognition and Highlights from the Research Project on Gratitude and Thankfulness (excerpt below) I want to once again make a few remarks about what we all seek to achieve with rights and remedies (particularly in the post-scarcity society in which we too often forget we live):

1. we want rights because we are genetically programmed and culturally conditioned to be fair (remember the Capuchin monkeys who, trained to work for "money" staged a sit-down strike when others doing the same work were compensated at five times the rate as their under compensated fellows);
2. rights are meant to guarantee us equal treatment in the distribution of public benefits and resources; and, equal access to public and private accommodations;
3. remedies are meant to restore private and public resources to those who have been deprived of them because some one; group; organization or governmental entity has broken one or more rules by which we have chosen to govern ourselves; and,
4. money is a means to an end, not an end in itself and each of us desires money for the same reasons - control of our own destiny (power; self expression); access to the benefits of the social contract (1. Freedom of speech and expression 2. Freedom of religion 3. Freedom from want 4. Freedom from fear); security against an uncertain future (access to medical services and a mimimal standard of living if we become unable to care for ourselves); meaningful occupation; the opportunity to be of unique service to our fellows; love; and, joy (monetary sub-goals such as a pair of Jimmy Choo shoes are also simply a [misguided] means to achieve these ends).

I have been taken to task for being "touchy-feely" or "new age" or of insufficient value to my "market" because I say these things repeatedly in public.  My "market," I'm told, would rather be right than happy; would rather someone lose so that they can win; and, believe the only thing anyone wants is money.

I don't believe it and I am committed to holding this space as a place-marker for my "people" who are suffering.  Which people are those?  Litigators. 

The challenge of this and every year:  How do we even begin to introduce the concept that we can more easily, efficiently and effectively satisfy the true interests of our fellows-in-the-social-condition than we can satisfy one individual's demand for preeminence over another? 

On our least divisive, most-inclusive and thoroughly secular holiday of Thanksgiving, we can begin to alleviate the suffering caused by zero-sum games with gratitude -- the benefits of which are being studied by a team of researchers at my legal alma mater, U.C. Davis.

Gratitude is the “forgotten factor” in happiness research. We are engaged in a long-term research project designed to create and disseminate a large body of novel scientific data on the nature of gratitude, its causes, and its potential consequences for human health and well-being. Scientists are latecomers to the concept of gratitude. Religions and philosophies have long embraced gratitude as an indispensable manifestation of virtue, and an integral component of health, wholeness, and well-being. Through conducting highly focused, cutting-edge studies on the nature of gratitude, its causes, and its consequences, we hope to shed important scientific light on this important concept. This document is intended to provide a brief, introductory overview of the major findings to date of the research project. For further information, please contact Robert Emmons. This project is supported by a grant from the John Templeton Foundation.

We are engaged in two main lines of inquiry at the present time: (1) developing methods to cultivate gratitude in daily life and assess gratitude’s effect on well-being, and (2) developing a measure to reliably assess individual differences in dispositional gratefulness.

Gratitude Interventions and Psychological and Physical Well-Being

* In an experimental comparison, those who kept gratitude journals on a weekly basis exercised more regularly, reported fewer physical symptoms, felt better about their lives as a whole, and were more optimistic about the upcoming week compared to those who recorded hassles or neutral life events (Emmons & McCullough, 2003).

* A related benefit was observed in the realm of personal goal attainment: Participants who kept gratitude lists were more likely to have made progress toward important personal goals (academic, interpersonal and health-based) over a two-month period compared to subjects in the other experimental conditions.

* A daily gratitude intervention (self-guided exercises) with young adults resulted in higher reported levels of the positive states of alertness, enthusiasm, determination, attentiveness and energy compared to a focus on hassles or a downward social comparison (ways in which participants thought they were better off than others). There was no difference in levels of unpleasant emotions reported in the three groups.

* Participants in the daily gratitude condition were more likely to report having helped someone with a personal problem or having offered emotional support to another, relative to the hassles or social comparison condition.

* In a sample of adults with neuromuscular disease, a 21-day gratitude intervention resulted in greater amounts of high energy positive moods, a greater sense of feeling connected to others, more optimistic ratings of one’s life, and better sleep duration and sleep quality, relative to a control group.

* Children who practice grateful thinking have more positive attitudes toward school and their families (Froh, Sefick, & Emmons, 2008).

There's more at the link!

Happy Thanksgiving.

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

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

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

Sic transit gloria mundi.

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

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

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

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

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

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

Steady State: Whatever Each Party Views as Pre-Conflict

Trouble: Whatever Each Party Views as Constituting Conflict

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

Transformation of Steady State: A New Relationship Among Parties

Coda: Moving On

                           *                          *                        *

Practitioners of mediation have historically had an uneasy relationship with the practicing bar. Many view lawyers as conflict-intensifiers due to training, temperament, and financial self-interest.  Indeed, the very rise of mediation may in part be attributable to its promise of moving lawyers to the margins and offering parties a direct voice in resolving their own controversies. As a result, lawyers are viewed in some quarters as at best necessary evils in mediation. Some state statutes go further and empower mediators to ban lawyers from mediation sessions.  Moreover, to the extent lawyers in recent years increasingly participate in mediation, the type of mediation favored or assumed to be "mediation" by lawyers - so-called "evaluative mediation" - tends to strip mediation of its more distinctive characteristics. What often remains is something very familiar: an adversarial hearing that adheres to the story of litigation and that, while perhaps resolving conflict, does not differ in a meaningful way from litigation.

Even so, growing numbers of commentators both in and out of the world of mediation view lawyers as potentially constructive forces for promoting the resolution of conflict. Robert J. Gilson and Robert H. Mnookin, for example, drawing on game theory, see a corps of attorneys who adopt a "cooperative" stance as having "the potential for damping rather than exacerbating the conflictual character of litigation." In a different but related vein, Carrie Menkel-Meadow and others hope to replace the prevailing lawyer-as-zealous-advocate paradigm with the notion that effective lawyers are problem solvers. Lawyers as problem solvers bear little resemblance to traditional advocates; they perceive "cases" as embodying a set of needs and interests that might be resolved (or not) depending on the choice of dispute resolution process.

Lawyers can indeed play a crucial role in counseling clients about and appearing with clients in mediation. Lawyers, for example, can help neutralize "power imbalances" between parties that mediation can recapitulate or exacerbate  and can protect clients from the subtle or not so subtle coercion "bad" mediators can exercise. Lawyers, however, must confront an initial challenge before getting to these issues: how can clients even consider or think about mediation when the morality tale they have in their heads is something mediation hopes to transform?

 Dislodging the Litigation Narrative

 Given that litigation and mediation embody different narratives and thereby generate different disputes, there seems to be a straightforward way for lawyers to encourage clients to understand and consider a mediation alternative. Lawyers can advise a client about how different modes of dispute resolution generate different disputes, describe different dispute resolution processes that might be available, and present how a dispute might look when filtered through the processes of each.

But it is not that easy. Clients typically come to a lawyer's office with litigation narratives in place. These narratives run deep. After all, it is extraordinarily difficult to deconstruct one's own experience, for it seems transparent to us that what we have experienced is what is. As a result, to most disputants, the binary moral universe of the litigation narrative is the universe, with the goods and evils and rights and wrongs arrayed as they are. Yet in order to make room for the mediation alternative, lawyers must dislodge this narrative, or at least encourage clients to consider the possibility of alternatives.

One way of understanding how lawyers can do so is to consider the fluid nature of conflict. A "dispute" or "controversy" is not a unitary, static "thing," but rather an assemblage of competing stories, motivations, and interests. Disputes are dynamic, ever-changing phenomena. They undergo transformations: "individuals define and redefine their perceptions of experience and the nature of their grievances in response to the communications, behavior, and expectations of a range of people, including opponents, agents, authority figures, companions, and intimates." 

As this process unfolds, lawyers inevitably shape disputants' perceptions of a controversy in a multitude of ways,  including the moral dimension of disputes and the attribution of responsibility.  Indeed, attorneys appear at critical junctures in the life of a controversy. In an influential article, William L.F. Felstiner, Richard L. Abel, and Austin Sarat argue that disputes proceed through a series of dynamic stages they call "naming, blaming, and claiming." After an "injurious experience" is perceived and "named," the experience may be transformed into a grievance - a "blaming" - "when a person attributes an injury to the fault of another individual or social entity."

The grievance may then be transformed into a "claim" when someone with a grievance "voices it to the person or entity believed to be responsible and asks for some remedy."  The final stage - a transformation from "claim" to "dispute" - occurs when a claim is explicitly or implicitly rejected.  All of these stages are themselves unstable and open to reinterpretation by those who are experiencing them. Lawyers usually enter the scene at the "claiming" or "disputing" stage just when a disputant is poised (or forced) to turn to a more formalized process of dispute resolution.

This model does not require or assume a particular process through which disputes should be resolved. Nevertheless, given the cultural norms of litigation and the stories told within those norms, most disputants conceptualize their naming, blaming, claiming, and disputing through the story of litigation. As Felstiner, Abel and Sarat put it, "institutional patterns restrict the options open to disputants" who wish to pursue a "claim," and the "normal" way to resolve disputes has long been litigation.

"Institutional patterns," however, are not set in stone. Indeed, in the twenty odd years since the appearance of the Felstiner, Abel and Sarat article, the growth of mediation has generated new options for dispute resolution. Lawyers, as the cultural actors with prime responsibility for enacting ways of "claiming" and "disputing," are especially well positioned to encourage clients to consider fresh "patterns" of dispute resolution such as mediation. While no doubt an enormous challenge, experience suggests that this is not an impossible one. The very fact that mediation can and does work with some frequency despite the force of the litigation narrative demonstrates that lawyers have at least a chance to dislodge the "truth" of the litigation frame when interacting with clients.

A number of factors favor client receptivity to mediation even prior to client counseling. First, conceptions of conflict tend to be fluid and subject to reinterpretation. There is thus tension between the persistence and rigidity of the litigation narrative and the continuing instability and reinterpretation of our experience. Tension in this context, however, is not necessarily a bad thing; lawyers can build upon the instability of conflict in order to encourage clients to reinterpret conflict in terms of alternative narratives. Second, the unsavory dimensions of litigation - its almost inevitable expense, delay, acrimony, and uncertainty, among other things - are commonplaces in popular culture and act as a powerful incentive to embrace alternatives. Moreover, lawyers are, by definition, situated apart from clients' circumstances. This added distance enables a lawyer to see a client's perspective as a perspective, with other perspectives and stories potentially in play.