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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....

She Mediates

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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...

Getting the Other Guy to the Negotiation Table


This just in from Harvard's Program on Negotiation:

In a new study, Nour Kteily of Northwestern University and his colleagues found that low-power groups can influence powerful parties to engage with them through their framing of the proposed negotiating agenda. Specifically, across four experiments, participants in the high-power position were more willing to negotiate when a low-power group proposed negotiating less important issues before more significant areas of disagreement, rather than vice versa. This preference is the opposite of what low-power parties prefer, the researchers learned.

For mediators and group facilitators, the lesson is to assure the parties or the organization that you're going to move in baby-steps from the least controversial issues to the most. Most mediators already know that when the group or parties are able to resolve minor issues, their hope for resolution of the major issues increases. By structuring the negotiation, mediation or group experience from easy to "hard" the parties also begin to master conflict resolution "best practices" with the guidance of the mediator or facilitator.

As Ken Cloke reminded a roomful of mediators at the Straus Institute during the SCMA's Annual Conference this past Saturday, we should avoid the temptation to solve the central problem in dsipute before the people who have the problem are ready to solve it. We press the parties forward toward premature resolution at our peril.

Are You Negotiating From a Position of Weakness or From a Position of Power?

1. “Think powerful”
Job candidates are rarely in a position of power as interviewers decide the fate of their future career prospects. Yet, the winning strategy in these situations is thinking that one has power, in spite of the situation. As a candidate, how can you engineer a powerful mindset? Well, a simple trick is to remind yourself about a time you had power over a situation right before an interview, and invoke the precise feelings associated with that memory – feelings of confidence and competence, as well as decisiveness during decision making.
One of my recent research projects, Power gets the job: Priming power improves interview outcomes co-authored with Joris Lammers (University of Cologne), Derek D. Rucker (Northwestern University) and Adam Galinsky (Columbia University) tested just that idea: as part of a session of individual mock interviews, we assigned business school applicants to one of three conditions. In the first condition, applicants wrote a short essay about a time they had power just before entering an interview. In the second condition, applicants also wrote an essay, but this time about a time they lacked power. Finally, the last group did not write anything.
Then, we asked interviewers the likelihood that they would accept the candidate into a business school. When candidates went straight to the interview, interviewers accepted 47.1 percent of the candidates. However, the admission rate went up to 68 percent for those people in the group who wrote an essay about a time they had power, and fell to a low 26 percent for those who wrote an essay about a time they lacked power. Importantly, interviewers were unaware of the power manipulation we had given candidates. Thus, merely recalling an experience of high power increased candidates’ likelihood to be admitted by 81 percent compared to baseline and by 162 percent compared to those who recalled an experience of powerlessness.
Of course, there are other ways to engineer personal feelings of power. For instance, candidates can wear objects that make them feel powerful, such as a watch or a particular bag - anything that links you with feelings of power.
2. “Behave powerful”
Power is not only a mindset; it is also a behaviour. Small, almost unconscious moves signal power to an audience and can significantly change the outcome of an interview. In her recent TED talk, Amy Cuddy (Harvard University) provides an excellent summary of how non-verbal language can have a profound effect on how people are judged in contexts as varied as hiring or promotion interviews, a sales context or even a date. As such, physical poses such as wrapping legs, hunching or relying on one’s arms are many subtle signals of powerlessness that cast doubt on what candidates say, regardless of the content of the conversation.
The Virtuous Circle of Power
Interestingly, adopting “power poses” does not only affect how interviewers judge candidates, but also ironically reinforces candidates’ feelings of power. In recent research, Li Huang from INSEAD and colleagues had participants take powerful (for example, expansive postures) or powerless (constricted postures) poses and found the former behaved more powerfully than the latter, by taking action more often and thinking more abstractly, two well-known consequences of power. So, behaving in a powerful way is not only important for how interviewers perceive candidates, it is also a key driver of how candidates will behave!
Read more: http://forbesindia.com/article/insead/power-boosters-how-to-land-that-job-when-you-think-you-cant/35149/1#ixzz2VAQEbLlt

No matter where I go to teach negotiation strategies and tactics, people tell me they feel as if they're bargaining from a position of weakness. You'd think the lawyers at Intel, Qwest Communications, Warner Brothers and Sony Pictures Entertainment or the engineers and managers at Kraft Foods, all of whose people I've trained, would drape themselves in the power of their corporate brand.

Not so. More than 80% raise their hands when I ask them whether they're negotiating from a position of weakness.

That, I suppose, is because I haven't trained those companies' CEO's, GCs or Boards of Directors. But even then I'll bet I could flip a coin on their answer to the question. The Boards of Directors, after all, have to answer to shareholders and federal governmental agencies. CEOs must answer to their Boards and GCs to the CEO. Sometimes all of them feel intimidated by the lady in HR because Human Resources is the hot nuclear core of conflict in the organization.

What, then, can we do to increase others' perceptions that we have power, a perception that is more than half of our bargaining strength.

Over at Forbes today, we read about some powerful research done by several hot shot academics, including Adam Galinsky whose work I've featured at The Daily Muse and ForbesWoman.


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When Explanations Feel Like Excuses | Tsarnaev at The New York Times

As much as we'd like objectivity on the front page of our morning newspaper, all story telling, particularly narratives framed by headlines, direct our attention to some "facts" more than others.

The frame tends to suggest that the reader respond favorably or unfavorably to the subject of the tale. That's why framing and re-framing one's negotiation proposals are such critical bargaining skills. We want to pre-dispose our negotiation partner to favorably respond.

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

Before Bombs, a Battered American Dream, suggests a multitude of causal factors leading to an inexplicably heinous act of terrorism - planting and then triggering a pressure-cooker IED among the Boston Marathon spectators who had gathered at the finish line to celebrate human commitment, endurance, and tenacity.

Among those factors, the Times notes Tsarnaev's "embrace of Islam" which had grown "more intense" before the suspicious trip to Dagestan, a "religious identification [that] grew fiercer" as he "abandon[ed] his once avid pursuit of the American dream."

Family dysfunction also looms large in the Times narrative. Like many other mass murderers, Tsaranev's path to destruction was preceded by isolation and separation from his family. His mother returned to Russia in the face of felony shoplifting charges, following in her husband's footsteps. His beloved brother had left for college. These separations mimicked the more desparate ones in the family's history marked by war and hardship.

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Are Men Bad Negotiators?

We've been talking about women's negotiation deficits for so long that we've completely neglected the men. This post is an attempt to cure that omission. Listen guys! We care about you. And we'd like to help you with your negotiation problem. 

But let's start where we've been for the past ten years ever since Linda Babcock of the Heinz Negotiation Academy for Women published Women Don't Ask

In Speaking Out About Women And Power, U.C. Berkeley Psychology Professor Tania Lombrozo describes a study in which women experienced gender blow back when they voiced their opinions “too ardently.” The social scientists conducting that study asked a group of men and women to evaluate a hypothetical CEO who was described as offering opinions as much as possible or as withholding opinions.

Unsurprisingly, female CEOs who offered opinions frequently were judged less competent and less suited to leadership than their sister CEOs who withheld their opinions. Equally unsurprising was the way in which the study judged the men – as more competent and better suited to leadership if they spoke up often and less so if they didn’t.

Too many people have concluded from studies like these that women are stuck between a gender rock and leadership hard place but men are not.

As Lombrozo is quick to note, however, men faced a complementary danger: of being perceived as poor leaders if they didn’t voice their opinions. Members of both sexes were penalized for failing to conform to traditional gender stereotypes.

Listen. We are all judged according to the culture’s expectation for our behavior. Women are expected to be kind, patient, tolerant, loving, giving and self-effacing. Men are expected to be judgmental, tough, self-seeking and self-promoting. We all suffer social sanctions – from harsh judgments to electoral defeats – when we step outside of society’s expectations.

Those who would caution us to “act our role” or suffer the consequences, however, are missing the bigger picture, as are those who urge us to ape the style of the opposite gender. Let’s take negotiation as our example.

In a recent article at Huffington Post, Joan Williams writes that women don’t negotiate because they’re not idiots, citing yet another study confirming the imposition of social sanctions on women who negotiate outside their gender role. Sara Laschever, co-author, with Linda Babcock, of Women Don’t Ask and Ask for It, immediately dropped by to assert that Williams’ article mischaracterized Babcock’s findings, explaining that the "study used only used one negotiation script, in which both the male and female negotiators asked for higher pay in a fairly aggressive way.


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Duke v. Wal-Mart at Forbes Woman: Implicit Gender Bias and Social Science Evidence

For Supreme Court watchers, here's my article on Duke v. Wal-Mart over at the She Negotiates ForbesWoman blog, Wal-Mart Discrimination Case Grapples with Implicit Biases against Women.

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.

When You're Ready to Seriously Negotiate that 10-Year Case, Read 50 Blog Posts that Will Make You a Better Negotiator

Over at B-School today, you'll find a collection of blog posts that will give you an entire semester's worth of negotiation knowledge, training and (if you practice) experience. Don't miss it. Excerpt below and link here.

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!

Earthquakes, Demonization, Disparities in Speaker Fees, Women Billionaires, Spider-Man's Director Exits Stage Left and Negotiate the Car of Your Dreams

The week at our ForbesWoman She Negotiates blog.

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).

From  Julie Taymor's Departure from Spider-Man Should Surprise No One

On reflection, this sui generis extravaganza likely required a division of duties and multiplication of talent from the beginning. If Spider-Man’sticket sales cool in response to its present deficiencies, Charlie Sheen, on temporary hiatus from reality, should still be available to make this multi-vehicle pile-up of a Broadway musical into a hot ticket again.

From The World's Women Billionaires 

It's not that we believe that economic power concentrated in any gender will necessarily be better, it's that the natural order of things – women and men together in roughly equal numbers powering life on the planet – will necessarily be better. If it’s not God’s plan, it is surely the plan of nature which got us to where we now sit – ascendent above the planet’s other animals – the result of opposable thumbs and bio-diversity.

From Negotiating with Nissan: Pay What You Want for the Car of Your Dreams

If negotiation is a conversation leading to agreement, that conversation requires two people. Meaning that you (yeah, you!) with your dead Toyota actually have a voice and something to say to Mr. Pointy-Shoes at the car dealership. >Before laughing at or trembling before that guy, enter his point of view for a moment. How is he going to try to work with you as a customer? He wants to maximize the dealership's profit because he makes a living by skimming a small part of that profit off of the deal as a commission. You need something from him, but he also needs something from you. You’ve got the money, which is always a good negotiation position to be in. Remember the “golden rule?” He who has the gold makes the rules.

Bias in the Court Room? Fight it with WLALA on March 17

Worried about bias against women, minorities or majorities in the courtroom? Come join us for a great WLALA Presentation at the Los Angeles Athletic Club on March 17, 2011. Click on the notice below to obtain more details and to register.




Rx for Negotiation Anxiety over at ForbesWoman

Come on over to the ForbesWoman She Negotiates Blog to learn how to improve your negotiation performance by writing about it in advance. Excerpt below. Full article at the link.

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.

Christmas and Conflict ~ a Meditation

It's Christmas Eve and I am moved to talk about religion and violence, particularly since the New York Times' most prominent Christmas story is about furious family battles over the pressing question of white lights or colored on the Christmas tree.

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.

How to get a raise in 2011 (the bullet point outline with a special note for women)

    • your present compensation serves as a powerful anchor of your value to your employer's advantage
    • the following suggestions are a way of re-anchoring that value so that your starting point is greater than what you made this year
    •  recalibrate your value according to what you are worth in your employer's hands, i.e., what does your employer save or make based upon the work you do (this may require research on your part)
    • use that value in setting your desired compensation (also include the cost to your employer of replacing irreplaceable you)
    • begin asking your employer and superiors diagnostic questions (questions designed to learn what your employer needs, desires and prefers and what your employer is most concerned about in regard to the continued profitability of his/her business)
      • "how's business" is a great open ended diagnostic question that does not assume the answer
      • more specific questions include "what does the company need to accomplish in the first quarter of 2011 to meet its financial goals?"; "what are the company's first quarter financial goals?" "what do you see as the primary obstacles to achieving those goals?" "what do you see as the primary drivers of success in reaching those goals" etc. etc.
      • don't ask these questions impromptu; write them down as a way of brainstorming the most powerful questions and those that would be easiest to ask

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How black is Obama and why negotiators should care


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.


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Closing the Wage Gap by Negotiating for Ourselves

three is the magic number . . .

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

Social scientists contend that the difference is more than just cosmetic. They cite a 2006 study by the Wellesley Centers for Women that found three to be the magic number when it came to the impact of having women on corporate boards: After the third woman is seated, boards reach a tipping point at which the group as a whole begins to function differently. According to Sumru Erkut, one of the authors of that study, the small group as a whole becomes more collaborative and more open to different perspectives. In no small part, she writes, that's because once a critical mass of three women is achieved on a board, it's more likely that all of the women will be heard. In other words, it's not that females bring any kind of unitary women's perspective to the board—there's precious little evidence that women think fundamentally differently from men about business or law—but that if you seat enough women, the question of whether women deserve the seat finally goes away. And women claim they are finally able to speak openly when they don't feel their own voice is meant to be the voice of all women.

Over at She Negotiates, we use the power of women to support, encourage, cheer and brainstorm in every class we offer, with the greatest power coming to and from our post-graduate Negotiation Master Classes which are limited to only four women.  For additional information about how you can use woman-power to improve your bottom line, contact either Lisa or Vickie using our contact form or catch either one of us at our direct numbers.

This isn't about gender-war, this is about human peace and prosperity!

Thanks to Bruce Moyer, the Federal Bar Association's Government Relations Counsel for the head's up on this one.

Capuchin Monkeys, Irrational Choices, and Hope for the Future

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! 



Lost's Moments of Clarity and the Prisoners' Dilemma

If the negotiated resolution of disputes is all about values; personal narratives; and, collaborative problem solving, the televised-negotiated-resolution-Bible is Lost, which ended a six-year run last night in a series of spiritual awakenings for each of the major characters. 

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.


Kagan and the Magic Number Three

More important than her religious background (Jewish) her Ivy League Credentials (Harvard) her progressive, liberal or conservative Democrat political leanings, is the prospect that Kagan's addition to the Supreme Court will result in the magic number of three women on the United States Supreme Court. 

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.  

Continue Reading

Cognitive Biases on a 3x5 Card

Motion to Compel Lunch: Granted


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.

What's Gratitude Got to Do with It?

(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.

Legal vs. Mediation Narratives and Why They Matter

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

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

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

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

Sic transit gloria mundi.

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

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

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

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

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

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

Steady State: Whatever Each Party Views as Pre-Conflict

Trouble: Whatever Each Party Views as Constituting Conflict

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

Transformation of Steady State: A New Relationship Among Parties

Coda: Moving On

                           *                          *                        *

Continue Reading

Conflict Revolution: Mediating Evil, War, Injustice and Terrorism by Dr. Kenneth Cloke

I spent my day Saturday at the annual convention of the Southern California Mediation Association (kudos to attorney-mediator Phyllis Pollack for a fabulous conference!)  Ken Cloke spoke eloquently on conflict systems and what mediators can do to "save the planet."  I took his presentation (characteristically and densely verbal) and added images to break up the text hoping that Ken won't mind supplementing the English language with pictures).

I highly recommend Ken's presentation (which was incredibly eloquent at the conference and not limited by the hard bruising text against text can do) as well as, of course, his brilliant and visionary book - Conflict Revolution.



Blawg Review #234

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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


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

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

The Most Effective Conflict Resolution Technology is the Oldest

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

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

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

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

Laws and Lawyers

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[1]             See the WSJ Law Blog’s post on the evolving law on gay marriage this week – Procreat[ion] Not Required.

[2]             Alas, there will always be lemons over at the Texas Lemon Law Blog (save those repair invoices!)

[3]             See Ruth Bader Ginsberg Hospitalized at the Volokh Conspiracy, reporting on Ginsberg’s fall from the seat of an airplane before take-off.

[4]             See the Law History Blog on Brewer’s Why America Fights.

[6]             Grandchildren who will not, I hope, have to deal with my Alzheimers, the perils of which are described at the Slutsky Elder Law and Estate Planning Blog.

[7]             Though, of course, e-books will be read side-by-side with hard copy as paper and cardboard eventually goes the way of Colonial era hornbooks. See Downloadable e-Books Change the Face of Brick and Mortar Libraries at the Law Librarian Blog.

[8]              Those games will, of course, exist side by side the video variety, many of which are recommended as Tools for Special Needs Students and Educators at the Adjunct Law Prof Blog this week.

[9]               See Hemp and Audacity at the U.S. Ag and Food Law Policy Blog.

[12]             Alas there’s still a gender gap as described this week at Ms. JD.

[13]             Voting rights are still a matter of concern today, of course. See Judge Says Virginia Violated Rights of Overseas Voters at the Blog of Legal Times.

[14]             See Rachel Anderson’s Law Blog on the scope of immunity for foreign officials that Anderson believes may have important implications for Plaintiffs seeking recompense for genocide.

[15]             One generation wants out and the other wants in. See Don’t Ask, Don’t Tell, Don’t Teach at Sexual Orientation and the Law Blog.

[16]             Earlier scientific theory posited that each human embryo (see Embryo Mix-Up at the Proud Parenting Blog) passes through a progression of abbreviated stages that resemble the main evolutionary stages of its ancestors, i.e., that the fertilized egg starts as a single cell (just like our first living evolutionary ancestor); as the egg repeatedly divides it develops into an embryo with a segmented arrangement (the “worm” stage); these segments develop into vertebrae, muscles and something that sort of looks like gills (the “fish” stage); limb buds develop with paddle-like hands and feet, and there appears to be a “tail” (the “amphibian” stage); and, by the eighth week of development, most organs are nearly complete, the limbs develop fingers and toes, and the “tail” disappears (the human stage). It turns out that this one-to-one correlation was too simplistic, but it remains safe to say that our biological development still passes through several stages that “recapitulate” the evolution of our species.

[17]          The amygdala is a region of the brain that permits the formation and storage of memories associated with emotional events. It permits us to “read” the emotional responses of our fellows and is thought to facilitated our ability to form relationships and live and work in groups. It is also the source of our “fight or flight” response to danger.

[18] In Cells that Read Minds, New York Times Science writer Sandra Blakeslee explained:

Studies show that some mirror neurons fire when a person reaches for a glass or watches someone else reach for a glass; others fire when the person puts the glass down and still others fire when the person reaches for a toothbrush and so on. They respond when someone kicks a ball, sees a ball being kicked, hears a ball being kicked and says or hears the word "kick."

 “When you see me perform an action - such as picking up a baseball - you automatically simulate the action in your own brain,” said Dr. Marco Iacoboni, a neuroscientist at the University of California, Los Angeles, who studies mirror neurons. ”Circuits in your brain, which we do not yet entirely understand, inhibit you from moving while you simulate,” he said. ”But you understand my action because you have in your brain a template for that action based on your own movements. “

[20]             Check out the post on the Betrayal of Corporate Clients at the Investment Fraud Lawyer Blog.

[21]             Wrongful death compensation over at the Product Liability Law Blog.

[22]             Looking toward the future, the Neuroethics and the Law Blog predicts that in the “experiential future, we will have better technologies to measure physical pain, pain relief, and emotional distress. These technologies should not only change tort law and related compensation schemes but should also change our assessments of criminal blameworthiness and punishment severity” here.

[23]             This week Beck and Herrmann at the Drug and Device Law Blog note that “shame works wonders” in their post on the Free Speech Challenges to the FDA.

[24]             Intentionally left blank.

[25]             ADR professionals are often heard critics of the adversarial system, as can be seen over at the Australian Dispute Resolvers Blog where author Chris Whitelaw (really??) quotes the Journal of Law and Medicine as follows:

The adversarial system of medical negligence fails to satisfy the main aims of tort law, those being equitable compensation of plaintiffs, correction of mistakes and deterrence of negligence. Instead doctors experience litigation as a punishment and, in order to avoid exposure to the system, have resorted not to corrective or educational measures but to defensive medicine, a practice which the evidence indicates both decreases patient autonomy and increases iatrogenic injury.

 (Iatrogenic, by the way, is a fancy term for “we have know idea whatsoever what the source of this ailment is). Chris is looking for comments so run on over there if you’ve been thinking about medical malpractice litigation during the marathon American health care debates.


The Annual ADR Issue of the Advocate is Out and Online

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

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

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

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

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

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

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

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

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

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

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

The Difficulty of Changing Minds by L.A. Mediator Charles Parselle

One of my own favorite quotes about "changing the other guy's mind" is from commercial mediator Jeff Kichaven:  "piling rationales atop one another to convince a litigator he is wrong is like raising your voice to communicate with a deaf man."

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

To settle a disputed matter, a person has to have a change of mind and here's where the problem starts. As Upton Sinclair said: "It is difficult to get a man to understand something when his livelihood depends on him not understanding it."

This is why mediation exists. But just because no one ever said it was supposed to be easy doesn't mean it can't be annoying. Sometimes that frustration has to find expression.

Below is the most astounding expression of irritation and frustration and rage I have ever read.


Here's the quiz:

1. Who said these words and how close to a cardiac infarction was he or she on a Scale of 1-10?
2. Can you beat it with your own expression of utter frustration and anger? (In 25 words of less, please.)

Prize for the most creative response.

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

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

Diplomatic Engagement to Settle Your Commercial Litigation

Today's New York Times Op-Ed piece on "diplomatic engagement" (Terms of Engagement) as a strategy for "chang[ing] [Iran's] perception of its own interests and realistic options and, hence, to modify its policies and its behavior," offers good strategic negotiation lessons for mediators and mediation advocates alike.  As Crocker explains:

[E]ach case of engagement has common elements. Engagement is a process, not a destination. It involves exerting pressure, by raising questions and hypothetical possibilities, and by probing the other country’s assumptions and thinking. Above all, it involves testing how far the other country might be willing to go. Properly understood, the diplomacy of engagement means raising questions that the other country may wish to avoid or be politically unable to answer. It places the ball in the other country’s court.

Litigation is an extremely good way to "exert[] pressure," on your negotiation partner by burdening it with the costs of  waging the adversarial contest.  The litigation itself not only "rais[es] questions and hypothetical possibilities" but through the process of discovery, it also "probes [the opponent's] assumptions and thinking" and "test[s] how far [your opponent] might be willing to go" to achieve victory.

Parties disappointed with mediation and mediators are usually dissatisfied with the mediator's inability to engage in the final step of "engagement diplomacy" -- "raising questions that the [opponent] may use to avoid or be [positionally] unable to answer."  A good mediator is unafraid to raise those difficult questions with each side of a dispute.  But raising those difficult questions is not enough.  A good mediator must also be able to deliver bad news to the parties in such a way that the parties are able to hear it. 

If the goal of the negotiators -- the attorneys -- is to "change the[ir] [opponent's] perception of its own interests and realistic options and, hence, to modify its policies and its behavior," the negotiators and their clients must be prepared to:

  • reveal to the mediator
    • hidden constraints preventing them from modifying their demand or offer; and,
    • hidden interests that must be served in order to justify any such modification
  • candidly acknowledge (in separate caucus)
    • the weaknesses of their position; and,
    • any constraints on their client's willingness and ability to put their convictions to the test of a jury verdict or judgment by the court
  • help the mediator help their clients understand that most litigation is based upon differing subjective experiences of the same "objective" series of events so that no one must admit that the other side is "right" and their own side is "wrong"

An example of the lengths to which people will go to be "right" is unfortunately provided to us today by the obituary of the first anti-abortion advocate to be shot and killed for his beliefs.  The slain activist spent years protesting outside the car dealership owned by Tony Young, who explained how the protests finally ended (from Slain Abortion Opponent Loved the Controversy)

Mr. Young said that after about three years of protesting outside his dealership, Mr. Pouillon came in and offered a truce. “ ‘Tony,’ ” Mr. Young said the exchange began, “if you would just agree that I’m right on my beliefs, I’ll stop.’

“I just told him, ‘Sure, Jim, you’re right,’ ” Mr. Young said, chuckling. After that, he said, Mr. Pouillon moved on.

Although few cases could so easily turn on the dime of a semi-sincere acknowledgement that the other side is "right," most attorneys would be surprised by how much value can be generated by acknowledging that the other side's version of the facts or the law is not crazy, evil, bizarre, intellectually dishonest or asserted in bad faith.  See The Biggest Lie in the Business:  It's Only About Money.  As I noted there:

The social scientists who study these things say that the way in which we respond to adversity "often reflects the fact that [our] prestige or status has been threatened more than the fact that [our] purchasing power has been diminished." Miller, Disrespect and the Experience of Injustice, Annual Review of Psychology (2002). In other words, the corporate C.E.O., like any other kid on the block, will retaliate when he feels he has been disrespected.

Conversely, research shows that business people are reluctant to recommend legal action if they believe that they and their company have been treated respectfully. 

By the same token that business people are reluctant to recommend legal action if they believe their company has been treated respectfully, they are often far more willing to settle litigation if they believe their positions have been heard and acknowledged as having been made in good faith.  For those headed toward settlement discussions or mediation, Crocker has good advice:

[B]y far the greatest risk of [diplomatic] engagement is that it may succeed.  If we succeed in changing the position of the other [side's] decision-makers, we then must decide whether we will take yes for an answer and reciprocate their moves with steps of our own.  If talk is fruitful, a negotiation will begin about taking reciprocal steps down a jointly defined road.  Engagement diplomacy forces us to make choices.

If litigators and their clients are aligned in the interest of settling litigation, they must prepare themselves to take "yes for an answer" by having in place a strategy of engagement that will permit them to reciprocate the other side's moves with steps of their own.  A good mediator should be capable of bringing all parties to the on-ramp of the road that counsel and their commercial clients are well-placed to and highly skilled at jointly defining.    

The 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.

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

Give a Reason for Every Number

 (right, the ultimate in lame reason giving:  the dog ate my homework!)

 To reinforce anchoring and framing effects of first offers and offer-characterization, always state the reason you are valuing the item to be traded in the manner you are.  “I’m offering to pay you $20,000 in exchange for a dismissal because (choose one or more):  (a) I impeached your witness with interrogatory answers in the deposition; (b) the only case law in your favor has been questioned by the Supreme Court and hasn’t been cited since 1972; (c) your expert witness went to Ralph’s School of Law and mine went to Harvard; (d) recent jury verdicts for the theft of trade secrets of this nature have been less than the cost of doing the first round of discovery; and, (e) anything else you have. 


In experiments on reason giving, researchers have found that people are far more likely to accommodate others if a reason is given even if the reason makes no sense whatsoever.  In one such experiment, students were asked to cut into a line at Kinkos.  One group was instructed to give no reason; another to give a good reason ("I’m late for class”) and another to give an irrational reason (“because I want to”). Those who provided no rationale were, not surprisingly, the least successful. Only sixty percent of them were allowed to "cut" into the line. Those who presented a logical rationale got what they wanted an extraordinary 94% of the time.   But here's the truly remarkable part. Those students who presented a meaningless rationale such as, "I want to cut in line because I need to," racked up a ninety-three percent success rate, only one percent less than their logical peers.


Every new offer or demand provides another opportunity to influence your adversary about the value (or lack thereof) in the subject matter of the lawsuit. 


There's nothing litigators do better than rationalize, justify, explain, elaborate, rebut, support, and opine.  Don't leave those excellent tools at home when it comes time to negotiate the resolution of your lawsuit.


Mediators' Proposals: the Good, the Bad and the Ugly

At the close of the year, our good friend John DeGroote at Settlement Perspectives asked whether mediators' proposals had lost their utility.  Now that parties "know the mediator's proposal is coming," he wrote,

savvy negotiators angle for an advantageous impasse rather than a settlement. Compromise is no longer the goal of the mediation exercise; instead it becomes a play to the “neutral,” whose power to craft the mediation proposal will make her the real decisionmaker:

  • In cases where the mediator’s proposal will be based on who will pay what, the parties — or worse yet, one party — will spend valuable time and effort constructing an impasse when, in the absence of a mediator’s proposal as a fallback, he might have actually achieved a compromise settlement; or

  • In cases where the mediator’s proposal will be based on the value of the case, no one has an incentive to be candid with the mediator — so positions become more important than interests; or

  • In cases where the parties aren’t sure what will drive the mediator’s proposal, they dig into their positions and hope for impasse — with the most likely result being a mediator’s proposal predicated on those positions.

Just yesterday, a prominent local IP litigator, trial lawyer and deal-maker Robert J. Rose of Sheldon Mak Rose & Anderson graced the IP ADR Blog with a guest post on the utility of mediators' proposals here.  As Rose notes:

A reluctant plaintiff will make a large jump if the money is really “on the table.”  Defendants will come up with money they otherwise deny having, if it means that the case is really over.  It also eliminates reactive devaluation.

For those who skipped social psychology in college, reactive devaluation is what every lawyer is taught in the first year of practice, if not earlier.  "If the other side wants it," said my first mentor, "you don't, even if it seems like a good idea to you."  With that admonition ringing in the ears of every litigator, the need for mediators is obvious.  Given the dangers cited by DeGroote, however, the mediator's proposal may now be simply another way to "game" the mediator. 

I have two short stories to illustrate the reason I re-direct the parties to bracketing when they ask me to make a mediator's proposal. But first, let me explain that I am one of those mediators who used my "proposal" option to put a number on the table I thought both parties would accept even though it would be a stretch for both of them.  I usually tested these assumptions in separate caucuses by asking each side "if they came down to $X would you come up to $Y."  When the numbers didn't overlap, I'd gauge how much pain there might be for both parties to bridge the gap, along with other entirely subjective opinions such as:

  • how invested each side was in walking away with a settlement that day
  • how firm each side was in their assertion that they would not go below or above a certain number
  • whether either attorney needed help in bringing a little more reality to their clients before the parties would be ready to accept a proposal by the mediator; and,
  • how much "street cred" I'd developed with the parties personally so that they'd accept my estimate of the settlement price-point even if they wouldn't accept their own attorney's advice /*

The first time I felt manipulated into making a mediator's proposal that wasn't the best both parties could do occurred at the close of a particularly fractious commercial mediation. In the presumed Zone of Potential Agreement , my proposal was high on the side of the Plaintiff because I felt that the defendant had more "give" than did Plaintiff's counsel. 

I made my proposal and both sides accepted.  When I walked into the defense caucus to tell counsel that he had a deal, however, I was met with a burst of laughter, the clapping of hands and the following statement:  "I was prepared to take less; that's a great deal.  Thanks so much."

Everyone Lies to the Mediator

That was the hardest lesson I'd had to date in the truism that EVERYONE lies to the mediator.  You do not get to lie to the mediator twice, however, so I caution anyone who's feeling that she put one over on the mediator either to keep it to herself or never to hire that mediator again.

Still, I took a lesson from the attorney's merriment.  I realized immediately that he was not the only, nor the first, attorney to manipulate me.   He was simply the only one to let me know it.  I don't like being manipulated.  But that's what litigators are trained to do.  We call it "persuasion."  Still, I didn't like the look of my mediator's finger prints on that settlement, one that now appeared unduly influenced by my credulity.  

So that's reason no. 1 -- an extremely strong reason no. 1 - why I don't' like to make mediator's proposals and why counsel might ask themselves whether they want to continue asking for them.

"If We'd Wanted a Third Party to Decide, We Would Have Arbitrated This Case"

The quote above is from an attorney who represented one of the parties in the largest and most sophisticated commercial case I've mediated to date. We were at the end of day two and the parties -- who had traveled great distances to meet in a neutral city -- were nowhere near a landing point.  I was a sufficiently experienced mediator to land the case, but new enough to feel as if I'd run out of options when I suggested making a mediator's proposal.  

"I didn't hire you to have a third party make my decision for me," said counsel.  "If you want to get the parties closer together, why don't you suggest a bracket?" (for a explanation of bracketing, see my colleague Ralph Williams' article Introducing Deal Points - the Basics.)

I'd used brackets as a means of testing the parties' true distance before that day ("if he went to $X would you come down to $Y?") but I'd never made a mediator's proposal that was a bracket, i.e., "I suggest that the defendant put $X on the table if plaintiff will reduce its demand to $Y."

Although we didn't settle the case that day with a bracket (it took four full months of follow-up telephone negotiations to do that) I took counsel's point to heart.  The parties don't hire me to make a decision for them.  They're much happier when they get to make the decision themselves.  Even though the parties do decide whether to accept the mediator's proposal, it hasn't come to them as the result of their own hard work.  That being the case, the agreement reached is far less durable (subject to failure based upon nit-picking deal points after the agreement has been reached in principle) and far less satisfying than one achieved without the mediator's thumb on the scale.

I decided to stop making mediators' proposals more than two years ago.  In all that time, however, I've never refused to make one.  Rather, I've suggested alternative ways of achieving resolution, at least one of more of which settled the case in every case where the parties asked for a mediator's proposal.  

I'd like to hear thoughts on these points -- manipulation and party satisfaction -- from my litigator readers as well as my mediator readers.

More mediator thoughts on mediator proposals here:  The Mediator's Proposal at Mediation Meditations.


*  I say this with the following caveat:  I would never attempt to influence clients to do something other than what their attorneys advise.  From time to time, however, the attorney needs to make the mediator the "bad cop" in the negotiation so that the client will not feel as if the attorney is no longer fighting for his interests.  I only play "bad cop" with the attorney's advice and consent.  My job is to get the settlement concluded making the attorneys look good, not bad.

Negotiating God: a Sunday Reflection

According to Robert Wright in The Evolution of God (reviewed in todays NYT Book Review by Paul Bloom) "God has mellowed" from a capricious tyrant into non-zero-sum playing diety.  This is  good news for mediators and anyone else in search of a better paradigm for conflict resolution than the 16th century adversarial system.  As Bloom explains Wright:

When people see themselves in zero-sum relationship with other people — see their fortunes as inversely correlated with the fortunes of other people, see the dynamic as win-lose — they tend to find a scriptural basis for intolerance or belligerence.” The recipe for salvation, then, is to arrange the world so that its people find themselves (and think of themselves as) interconnected: “When they see the relationship as non-zero-sum — see their fortunes as positively correlated, see the potential for a win-win outcome — they’re more likely to find the tolerant and understanding side of their scriptures.” Change the world, and you change the God. For Wright, the next evolutionary step is for practitioners of Abrahamic faiths to give up their claim to distinctiveness, and then renounce the specialness of monotheism altogether. In fact, when it comes to expanding the circle of moral consideration, he argues, religions like Buddhism have sometimes “outperformed the Abrahamics.

Having just finished reading Wright's The Moral Animal (an evolutionary exploration for our tendency to reciprocal altruism)  and taking the long view of Western Civilization, I'm pre-disposed to believe that we have not only evolved physically and intellectually, but "morally" as well.

I understand from Bloom's review that Wright -- either a firm agnostic or wavering atheist -- is moved to wonder whether a universe in which moral progress takes place might suggest the presence of a higher power.  Quoting Wright, Bloom observes:

[Wright] emphasizes that he is not arguing that you need divine intervention to account for moral improvement, which can be explained by a “mercilessly scientific account” involving the biological evolution of the human mind and the game-theoretic nature of social interaction. But he wonders why the universe is so constituted that moral progress takes place. “If history naturally pushes people toward moral improvement, toward moral truth, and their God, as they conceive their God, grows accordingly, becoming morally richer, then maybe this growth is evidence of some higher purpose, and maybe — conceivably — the source of that purpose is worthy of the name divinity.

Whatever the source of our moral development, divine or "mercilessly scientific," its encouraging on a bright summer Sunday to believe we can achieve, if not perfection, at least greater decency toward the divine in one another.



Negotiating Cooperation

Negotiating with Difficult People for Lawyers

Hey Justice Logic: Don't Go Around EMPATHIZING

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

Emotion terms are notoriously slippery. But if we understand empathy as the ability to take the perspective of another, it ought to be uncontroversial that empathy is an important component of judicial judgment. Empathy, so understood, is a basic and necessary tool for making sense of the intentions and actions of others.

So, as Mark Graber asks, who could be against empathy? And more particularly, why is empathy liberal, if we all use it? Perhaps because empathy goes by another name when it comes easily—for example, when Supreme Court justices take the perspective of those from similar backgrounds or with similar worldviews. This sort of empathy looks neutral and natural, not ideological or partial. It tends to be portrayed as garden-variety judicial reasoning.

We all use empathy, and despite our best intentions, it is always selective and riddled with blind spots. We can try to correct for this partiality if we are self-aware. But those who study cognitive psychology and decision-making find that we aren’t all that good at identifying and critiquing our own background assumptions. A better way to encourage this sort of correction is through debate with others who hold differing viewpoints. Judges, like the rest of us, make better decisions when forced to examine and articulate their premises.

Read on here.

According to a recent article in the New Yorker (voice of the effete empathizing liberal east-coast establishment) we owe our conscious mind -- that which makes us human -- to the mirror neurons that give rise to to empathy (because we could "feel" the mind of another, at some point we turned that thought back against ourselves and consciousness was born).

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

What does this have to do with negotiation?  Anyone who continues to believe that decisions are (or could potentially be) the product of a solely rational process are losing the benefit of the emotional sway every great negotiator exercises over his or her bargaining partner.

Geesh, even George Bush professed compassion (so long as the government wasn't providing it).  Does the Republican Party really wish to become the home of Darth Vadar? /1


1/  Perhaps Jon Stewart of Comedy Central's The Daily Show described coverage of the pairing best. The show aired a clip of The Weekly Standard's William Kristol saying of the back-to-back speeches, "Just going to be fun, don't you think? Luke Skywalker and Darth Vader, you know? And I want to say that I was always on Darth Vader's side." Stewart retorted, "Now you tell us. You know, as one of the main intellectual forces behind the Iraq war, that's kind of a weird thing to admit. You might have wanted to mention, 'Oh, quick caveat to my plan on a new American century: I'm on the Darth Vader side.' "

From "Fear of Closing Gitmo" at the Daily Kos

Dealing with "Jerks" - Tit for Tat in an Email World

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

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

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


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

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

There are no one-man jets cruising the skies; no robots running my errands or cooking my dinner; no tele-transportation; and, on the political scene (it's not yet 9/11) no Big Brother

My personal 2001 "future" is mostly about my instantaneous access to information and "real time" communication via the "killer app" -- email -- telegraphic, spontaneous, unnuanced, and about to get me in a great deal of trouble.  (See Vanity Fair's must-read oral history of the internet here.)  

There's an associate back in Los Angeles, you see, the quality of whose work and the strength of whose dedication to the case at hand is in alarming decline.  More troubling, his work is deteriorating at the same time I'm taking old fashioned passenger jets from province to province to take the testimony of as many witnesses still living who know how 500+ toxic waste sites got that way in the first place.    

Did I say it's 3 a.m.?  The associate I'm thinking about failed to get me the outline I need for tomorrow's deposition on time -- or at all.  The "hard copies" that were supposed to be waiting for me when I arrived at the hotel have gone missing.  I'm tired.  I'm hungry.  I'm lonely.  And I'm angry. 

Worst of all, I'm composing an email to my  associate about my considerable disappointment in his recent performance.  There is a moment, a split second, in which my finger hovers over the "send" button while a rational voice in my head says "no."  Then I push "send."

Email Makes Settlement More Difficult  

More and more often when I'm meeting counsel on the morning of a mediation, they're also meeting one another for the first time.  In fact, they often have not even previously spoken to one another unless they've met in Court ("good morning, counsel") or in depositions (eyes averted; objections made).  Increasingly, by far the vast percentage of their communications have taken place via email.  

And that's a problem. 

Conflict Escalation

There's no question that litigation escalates whatever conflict existed when our client first walks in our door.  We don't, after all, make requests.  We issue demands.  We don't seek concessions.  We insist upon them.  We don't make inquiries.  We require responses.  And we're not such great listeners.  Rather, we impatiently tap our feet in Court, waiting for counsel to finish his argument (which we've heard dozens of times before) so we can press our case.

Are these bad things?  Not necessarily.  So long as we understand what we're doing and the likely results our conduct will have, escalation is not necessarily worse than maintaining a steady state or even deescalating conflict.  

The problem for most of us is that we don't know what we're doing and we don't understand the breadth and depth of the likely repercussions.  

In Conflict Escalation: Dispute Exacerbating Elements of E-Mail Communication, author Raymond A. Friedman of the Owen Graduate School of Management at Vanderbilt University quotes conflict specialists Rubin, Pruitt and Kim on the difficulties caused by escalation tactics and strategy.  According to Rubin, et al., escalation is 

"an increase in the intensity of a conflict as a whole.”  Escalation is important . . . because when conflict escalates it “is intensified in ways that are sometimes exceedingly difficult to undo.”  One reason why escalated conflicts are so hard to undo is that when more aggressive tactics are used by one side they are often mirrored by the other side, producing a vicious cycle.

Email, Friedman argues, unnecessarily, and often drastically, escalates conflict in ways none of us fully appreciate.  Unlike conversation -- in person or by telephone -- we are not

physically present with others, can’t see their faces or hear their voices, and can’t give or get immediate responses. The lack of contextual clues . . . impose high “understanding costs” on participants in e-mail interactions, making it harder to successfully ground the interaction. . . . /*  [T]the inability to carefully time actions and reactions . . . makes communication less precise.  

E-mail Not Only Lacks Social Clues, it is "Profoundly A-Social." 

Sitting in my Toronto hotel room at 3 a.m., reviewing online documents for tomorrow's deposition and now "penning" an email to my errant associate, I am, argues Friedman, not simply making communication more difficult, I have become "profoundly asocial" as my associate will also likely be when he reviews my email the following day.  "E-mails," writes Friedman,

are typically received and written while the writer is in isolation, staring at a computer screen – perhaps for hours at a time, so that awareness of the humanness of the counterpart may be diminished.

As evidence, Friedman cites research in which subjects played the "prisoner's dilemma" game against a computer.  Not only did the gamers act asocially in this context, "many continued to act asocially even when told that they were now playing with people (through the computer)."

E-mail, Friedman concludes, "often occurs in a context devoid of awareness of human sensibilities."

The Precise Difficulties Caused by E-Mail Communications?

Use of aggressive tactics. If e-mail communication encourages the use of more aggressive tactics during a dispute, or makes a counterpart’s tactics appear more aggressive, then escalation will be triggered.

Changes in view of other. Escalation is more likely if e-mail causes negative changes in psychological processes (e.g., perceptions and attitudes) towards the other, such as (1) seeing the other as unfair, (2) lessening empathy toward them, (3) increasing deindividuation and anonymity, or (4) or seeing the other as immoral.

Weakened interpersonal bonds. If e-mail weakens social bonds with the other, then escalation is more likely (e.g., due to reduced inhibitions for aggression).

Problems are difficult to resolve. If the communication limitations of e-mail (e.g., asynchrony deficits) make problems more difficult to solve, conflict may be escalated as frustrated disputants move from mild to more aggressive strategies to achieve their goals.

As a result, says Friedman, there are "higher rates of escalation when disputes are managed via e-mail than via face-to-face communication or other relatively rich media . . . such as telephone conversations." /**

Back in Los Angeles the Following Day

You knew this story was not going to have a happy ending.  What a cranky, tired, stressed partner types into her computer at 3 a.m. and what a fully awake associate reads with his morning coffee the following day are, as Friedman stresses, two quite different things.  And though I've rarely had a face-to-face disagreement with a colleague that cannot be mended by further communication, apologies, explanations and the like, this particular communication caused a rift that I was unable to heal.

This experience from several years ago, coupled with my recent mediation experiences, makes me want to advise, exhort, plead, beseech, entreat and pray that you commence every litigation with a telephone call rather than a "demand" letter or email.  And that you continue to communicate with opposing counsel by telephone or, even more radically, in person over a meal, throughout the litigation to make sure channels of communication are as open and clear as possible.

The difficulties saved will not only benefit your personal life (reduce stress, increase fellow-feeling and the like) but will benefit your client as well -- in case efficiencies and better settlements all around.     



*/  "Grounding" is the process 

by which two parties in an interaction achieve a shared sense of understanding about a communication and a shared sense of participation in the conversation. Grounding is important because “speech is evanescent...so Alan must try to speak only when he thinks Barbara is attending to, hearing, and trying to understand what he is saying, and she must guide him by giving evidence that she is doing just this."

** /  There's much more to be learned from this article, but these highlights should tell you whether further reading is in your interest or worth your time. 

Negotiating Conflict in a Business Setting with a Word for Women and a Caution on Negotiation Ethics

Here's part I of the Resource Materials for the full-day training which included this Power Point Presentation.

Part I includes articles (see the Table of Contents) on The Social Psychology of Conflict; Negotiation and Gender; Distributive Bargaining; and, Integrative and Interest-Based Negotiation.

Settling Lawsuits: Money is the Instrument but Justice is the Issue

As every lawyer knows and most students of high school geometry must learn in mastering "proofs," the answer often comes first, the rationale later.  I used to say, "I'm a litigator, I can rationalize anything."  As a mediator, my rationalizations have turned from the way in which facts can be shoe-horned into causes of action or affirmative defenses to the way in which harm arising from a dispute (including, most assuredly, the moral harm of injustice) can be monetized.

Now David Brooks in the New York Times (which appears to have disabled the "copy" function/1) tells us that philosophy has been sacrificed on the alter of emotion in his column The End of Philosophy

As Brooks explains, reasoning comes after moral judgment and "is often guided by the emotions that preceded it."  The good news is that those emotions are not merely competitive.  Brooks again:

Like bees, humans have long lived or died based on their ability to divide labor, help each other, and stand together in the face of common threats.  Many of our moral emotions and intuitions reflect that history.  We don't just care about our individual rights, or even the rights of other individuals.   We also care about loyalty, respect, traditions, religions.  We are all the descendents of successful cooperators.

My mediation experience teaches me that the "soft" arts of influence, empathy, community-building, and prejudice reduction, are as important (and often more important) to the successful (i.e., satisfying) resolution of a lawsuit than our prized ability to parse the evidence,  rationalize away the bad and privilege the good to sell our "proof" to judge or jury.

Most importantly, I find that when attorneys' clients leave a mediation with the belief that a certain rough justice has been obtained, they are more satisfied with the outcome, and with their attorneys' representation of their interests, than they might have been had they left with 10% more change jingling in their pockets.

The experts who study mediation tell us that "neutrals" don't make the difference between settling or not settling.  The cases will settle with or without us.  The difference mediators make is not settlement, but  client satisfaction.  Satisfied clients are  an absolute necessity for a successful legal practice at any time.  In these hard times, legal practices may fail in the absence of resolutions addressing the justice issues your client sought out a lawyer to resolve in the first place.

Money is the instrument.  But justice is the issue.






1/  More about this at IP ADR later today.


Getting Your Opponent to the Bargaining Table without Appearing Weak

Transparency Will Eliminate Unnecessary Wariness Between Parties (.pdf)

from the April 1, 2009 Daily Journal



By Victoria Pynchon

As a mediator, the question I hear most frequently from lawyers is "How do I convince my opponent to sit down and negotiate without losing my competitive advantage?"

Believe it or not, the answer is transparency.

If you can remember way back to last July, when firms like Microsoft and Yahoo were still engaging in business as usual, you might recall that a merger fell apart because Yahoo was acting "weird." At least that's what Microsoft's chief executive, Steve Ballmer, told the Wall Street Journal.

"We had an offer out that was a 100 percent premium on the operating business of the company and there wasn't a serious price negotiation ... until three months later. It was a little ... weird."

Lawyers know that three months rushes by in the blink of an eye. The board of directors meets. It seeks an analysis from the mergers and acquisitions people, who consult with outside counsel's antitrust department, which renders a decision but whose members first have to chat with the tax guys. Then there are the IP people with whom to discuss license agreements and, of course, the managers in the human resources department, who may or may not have advice about executive parachutes - platinum, golden or brass.

And yet the Yahoo-Microsoft merger fell apart because Microsoft felt that Yahoo's delay was "weird."

Let's go back to what every trial lawyer knows. In the absence of information, people make stuff up. Weird stuff.

And the stories we tell ourselves about our uncommunicative commercial partners do not include one where the other guy is laboring day and night to fulfill our fondest desires. No. In the absence of information, we weave elaborate conspiracy theories in which our opponents are scheming to fleece us of our rights, obstruct our prospective economic advantage and turn our world upside down.

Your dentist can tell you what your opponent wants to be told. A fully illustrated pre-game outline of the upcoming procedure that goes something like this "First I'll put a little numbing cream on your gum. That way the shot of Novocain won't hurt too much. Then I'll drill," she'd say, holding the fearful appliance up and switching it on. "It may sound louder in your mouth than it does here in my hand, but I'll only have it on for about five minutes, after which ... etc., etc."

So how do you get your opponent to the bargaining table without sounding weak?

You say "Listen, Ted, I know both our clients believe their cases are as good as gold but after an initial round of discovery, it's my practice to call a timeout to discuss settlement."


"How does that sound to you?"

Ted says it sounds all right. Which it does. Because Ted's got three incredibly acrimonious cases in his practice right now. Last year, one of his adversaries served an ex parte application with three bankers boxes of exhibits the day before Christmas. At 4:59 p.m.  And she scheduled the hearing for hearing on the day after Christmas. Sure, the judge would deny it, but Ted couldn't assume anything. He worked 15 hours on Christmas Day.

So it sounds good to Ted.

More important to your own litigation plan, your opponent has just agreed to come to the bargaining table, even though the actual meeting won't be held for several months. When the appointed hour arrives, you will not have to ask for a settlement conference at a time when it might show weakness on your part. It's part of the plan.

For the remainder of the article, click here.

"Winning" the Negotiation with Insights from the Social Psychology of Conflict

Greater Negotiation Flexibility Results in Greater Anger?

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

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

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

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

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

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

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

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

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

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

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

Lawsuit-Proof Your Business to Cut Costs in Downturn

Lawsuits arise from a process social psychologists call "naming, blaming and claiming."  I broke my toe last week (youch!)  when I was talking to my husband from another room and walking into a closet to hang up my jacket.  Jammed it on the door frame, once again engaging in the risk-courting activity of walking and talking at the same time.

If I were mentally ill, I suppose I could go so far as to name my husband as the source of my own lumpish carelessness; blame him for my injury; and, claim some sort of recompense beyond his willingness to kiss my toe to "make it all better."

"Well, I guess that doorway was just too narrow," my husband the litigator joked.  "I suppose you could sue the architect."

Much litigation flows from incidents nearly as foolish as this.  If you'd like to see a collection of such outrages, you likely already know where to go -- Walter Olson's Overlawyered where suits against McDonalds for obesity and the like can regularly be found.  Today's entry, about the alcoholic who sued Marriotts "after falling over a stairway while plowed" is a prime example.

Naming, blaming and claiming (as well as the litigation that flows from this process) will always be with us.  But if you have some degree of communication with the people likely to name and blame you before making a legal claim against you, an understanding of the social psychology behind that process may well help you understand and deal with the problem "on the ground," i.e., short of suit.

Today, I'm directing you to Attributing Blame — from the Baseball Diamond to the War on Terror as a good primer on the process and its underlying cause -- Fundamental Attribution Error.  Link courtesy of @JuryVox who any litigator or dispute resolver should be following on Twitter along with @annereed.

Whenever we witness something harmful or unexpected, we humans look to make attributions of causation, responsibility, and blame. Social psychologists have been studying the way we make those attributions for the last half century. Part of that research, known as attribution theory, focuses on how we draw inferences about how much control people exert over their behavior: the more control they appear to exert, the more we hold them responsible or blameworthy for the consequences of their actions. To assess control, we draw inferences about, among other things, whether the person acted volitionally or intentionally and about the person’s motivation. When we think an injurer acted intentionally and maliciously we attribute blame — which is accompanied by a desire to punish the injurer and to compensate the victim.

This naive psychology of blame attributions is fairly automatic and depends on more or less instantaneous impressions. And although our attributions result from inferences of, among other things, intent and motive, we are hampered by the fact that we cannot directly access someone else’s motives or intentions (in fact, we’re not very good at ascertaining our own). And, often, the individuals who we are judging have an interest in presenting themselves as innocent — regardless of the truth of the matter. In making attributions about another person’s harm-causing actions, therefore, we are often forced to rely on imperfect external cues. Conflict between individuals and groups often emerges precisely because attributional ambiguity leads to divergent interpretations and reactions. What a victim might perceive as outrageous, an injurer might construe as merely unfortunate or even richly deserved. The legal system is caught up in these attributional contests every day. For instance, most of tort law — in doctrine and in practice — is devoted to the question of resolving competing attributional accounts for the same personal injury.

Continue reading at the linked headline above.  My most popular article on this process - Conspiracy Theories and Granfalloons can be found here.

Pre-Trial Discovery Decreases Likelihood of Settlement

From the Department of Counter-Intution we learn that our general assumption about pre-trial discovery -- that the open exchange of information will help align the expectations of disputants and increase efficiency by facilitating settlement /1 -- is probably inaccurate.

In When Ignorance is Bliss:  Information, Fairness, and Bargaining Efficiency, George Loewenstein, Department of Social and Decision Sciences and Don A. Moore, Graduate School of Industrial Administration, at Carnegie Mellon University, tell us that when "information . . . is complex or ambiguous enough to allow for different interpretations" by opposing counsel,

[s]elf-serving interpretations of fairness encourage biased estimations of the probability of prevailing in court and lead people to hold out too long, fight too hard, and settle too slowly.

Simply put, because we interpret incoming information as confirming -- and often strengthening -  our existing views, the "convergence" of adversarial views pre-trial discovery proponents hoped for, does not occur.  Rather, discovery tends to increase the parties' belief in the rectitude of their analysis, thereby proportionally decreasing the potential for settlement.  As Loewenstein and Moore explained:

In studies examining the self-serving bias, the magnitude of the bias was an extremely strong predictor of impasse, and two different manipulations that eliminated the bias led to close to 100 percent settlement compared to an impasse rate of about 25 percent in the absence of such debiasing.

The full article is well worth reading even though much of it is burdened with academese.

Because we attorneys pride ourselves on being able to "see the other side," here's an article entitled Confirmation Bias in Complex Analyses about a study in which intelligence analysts were provided with an analytic tool to help them overcome confirmation bias.  The tool -- Analysis of Competing Hypotheses -- was an

hypothesis testing matrix,” where the rows represent the evidence, the columns the hypotheses under consideration, and the cells the extent to which each piece of evidence is consistent or inconsistent with each hypothesis. The goals of the ACH matrix [were meant] to overcome the memory limitations affecting one’s ability to keep multiple data and hypotheses in mind, and to break the tendency to focus on developing a single coherent story for explaining the evidence—a tendency which [other researchers] hypothesized create[d] predecision distortions (and presumably the confirmation bias).

ACH [was] hypothesized to offset confirmation bias by ensuring that analysts actively rate evidence against multiple hypotheses and reminding analysts to focus on disconfirming evidence.

Absent the template, the process sounds a lot like that we attorneys use to test our theories and evaluate those of our opponents'.  Alas ACH provided the least amount to help to those study participants with professional analytic experience.  As the authors report, "ACH had no impact at all" on the professional analysts' tendency to give greater weight to the evidence that supported their theories and less to that which disconfirmed them.

What to do?  I'll attempt to find an answer before writing my next post.


Loewenstein and Moore quote Richard Posner on this expectation as follows: 

a full exchange of information…is likely to facilitate settlement by enabling each party to form a more accurate, and generally therefore a more convergent, estimate of the likely outcome of the case.

Richard A. Posner (1986:525) Economic Analysis of Law (3rd ed. Little, Brown 1986)

Do You Need to Understand Your Legal Rights to Serve Your Interests?

Daily Journal Newswire Articles
© 2009 The Daily Journal Corporation. All rights reserved.

FORUM (FORUM & FOCUS)  •  Jan. 08, 2009
Every Case Is a Winding Road


By Victoria Pynchon

I have a confession to make. I am about to become embroiled in litigation. Though I preach the religion of negotiated resolution, I've nevertheless hired litigation counsel to assert my rights and pursue my remedies.

This is one of those moments when the rubber of our ideology meets the road of personal circumstance, the moment we are called upon to decide to walk our talk or take the more familiar road.

For more than 30 years - first as paralegal, then as a law student and finally as a commercial litigator - I'd been swimming in the waters of legal rights and remedies. The adversarial ocean had become so familiar a habitat that it rarely occurred to me that I was under the surface. One day toward the end of my first year of mediation practice, a much more experienced friend hooked me by the cheek and threw me on the deck of his ship, where I was gasping for air.

He'd asked me to co-mediate a will contest without the benefit on my clergy - lawyers with experience in the field. The "fish out of water" conversation that ensued went something like this:

Joe Mediator: "The family doesn't want to hire a lawyer. They just want to mediate."

Vickie: "But I know absolutely nothing about wills, trusts and estates. The parties need to talk to a lawyer first to learn their rights and remedies."

Joe: "You still don't get it, do you?"

Vickie: "Get what?"

Joe: "It's not about rights and remedies. It's about interests."

Vickie: "But how can they evaluate their interests without knowing their rights and remedies?"

Joe: "Because they're not interested in what the law says - they want to do what they believe is right for them as a family under the circumstances."

These people wanted to resolve a legal dispute without knowing their legal rights? Were they nuts? I understood "interests" - they were all the rage in ADR circles - the desires, fears and needs of the parties that drove them to take legal positions. Sometimes those interests were non-economic - the need for revenge, the desire to be personally accountable, the fear of failure, the hope for forgiveness and reconciliation. Others, though economic, could not be remedied by way of damages - better access to foreign markets, for instance, or wider distribution chains; the acquisition of better manufacturing processes; or, the retention of executives with "pull" in Washington. But all of those matters were secondary to legal rights and remedies, weren't they? You had to know what your rights were.

To read entire article, click here.

Here's a .pdf of the article taken from the "hard copy" of the paper.


Conflict: It's ALL Cross-Cultural

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

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

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

Here's what Lee Jay had to say:

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

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

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

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

It's Not About the Money; It's About Justice

I'd stop flogging this dead horse if I didn't have to weekly convince litigants of their own enduring human tendency to prefer relative well-being over absolute material possessions.

This week, that "news" is brought to you by the New York Times to explain why a surprising number of us have not been made terribly unhappy as our financial fortunes decline.  As Op-Ed contributor Sonja Lyubomirsky (of The How of Happiness: A Scientific Approach to Getting the Life You Want) observes today:

the economists David Hemenway and Sara Solnick demonstrated in a study at Harvard, many people would prefer to receive an annual salary of $50,000 when others are making $25,000 than to earn $100,000 a year when others are making $200,000.

Why? Because we "care more about social comparison, status and rank than about the absolute value of our bank accounts or reputations."  In other words, we're more concerned with justice (fairness) than we are about the money.  Which is why our clients have sought out our help with their personal, financial and commercial problems -- because we're in the justice business.  When we understand this, the negotiation of financial settlements becomes a whole lot easier because there are many more ways to deliver justice than by throwing money at it.  

Read the full (short) article Why We’re Still Happy here.



Face-to-Face Conversations Powerful Resolution Tool

From this coming Monday's Forum Column in the Los Angeles Daily Journal (byline V. Pynchon):


Psychologists tell us that we are not only "meaning making" beings, but that we are all born conspiracy theorists. Viewing a field of nonsensical, unrelated data, we naturally begin to "connect the dots" - to organize the information into a coherent, and often compelling, narrative.

Pattern making or conspiracy theorizing is a human survival mechanism. We have never been the fastest or the biggest creatures on the planet. We don't have the sharpest teeth or blend in all that well with the scenery. Our soft, easily punctured skin is not covered with a protective shell. In a pinch, we can't take a running leap and fly away from land-bound carnivores who might make us their prey.

We are, however, the canniest creatures on the planet. To avoid the tiger who made lunch of our best comrade, we surveyed the scene and committed the pattern of otherwise unrelated details to memory. Five banyan trees, a narrow stream, and, a pile of rubble left by a recent avalanche means "there are tigers here."

Couple this with Fundamental Attribution Error and you have all of the ingredients necessary to blame inadvertently caused harm on elaborate conspiracies cooked up by our untrustworthy companions - Fundamental Attribution Error being our universal tendency to over-emphasize the role of others' negative personality traits to explain why harm befell us.

So it is with our legal adversaries. Once the channels of communication have been severed by the filing of a lawsuit, attorneys and clients alike begin to make up "what really happened" based on predispositions, scattered conversations, faulty memories and scraps of documentation.


Continue reading Monday's Daily Journal Forum Column here.


How We Tell the Tale Determines How We Resolve the Problem

People who are joined together by a dispute -- which includes everyone engaged in litigation and their attorneys -- are suffering more than most from a universal cognitive bias known as fundamental attribution error.  FAE is one of the ways we explain our troubles to one another. 

If we have suffered misfortune and are able to attribute our loss to the actions of another, we will universally attribute the series of events resulting in our loss to the bad intentions or evil character of the person we lawyers call "the defendant." 

If we are the defendant, we will universally attribute the series of events resulting in the injured party's loss to the circumstances causing Plaintiff's harm (or, of course, to the Plaintiff's evil intentions). 

The attribution of harm primarily to character or motive on the part of the victim and primarily to circumstance on the part of the accused is fundamental because it is hard-wired into the way we think.  It is an attribution error because it attributes effect to a particular type of cause.  It is error because all human activity and the inevitable conflicts that arise from it

"take[s] place not only between individuals, but in a context, culture and environment; surrounded by social, economic, and political forces; inside a group or organization; contained by a system and structure; among a diverse community of people at a particular moment in time and history; on a stage; against a backdrop; in a setting or milieu."

See Ken Cloke's Conflict Revolution (this from the Introduction) here and my review of it at The Complete Lawyer here.

In other words, all events, conflicts, injuries, and benefits, all causes and effects are determined both by human actors and by circumstance.  We are the cause and the effect of everything that surrounds us and everything that we surround.

How does this knowledge help us resolve our disputes and why does the way we tell our stories hold the key to resolving them?   I could give you more explanations from the field of social psychology or I could simply tell you a story.  In this case, I tell the story of a book of stories written by Malcolm Gladwell who writes about the stories we tell ourselves and one another about success. Gladwell, we're told, introduces us to Bill Gates as

a young computer programmer from Seattle whose brilliance and ambition outshine the brilliance and ambition of the thousands of other young programmers. But then Gladwell takes us back to Seattle, and we discover that Gates’s high school happened to have a computer club when almost no other high schools did. He then lucked into the opportunity to use the computers at the University of Washington, for hours on end. By the time he turned 20, he had spent well more than 10,000 hours as a programmer.

At the end of this revisionist tale, Gladwell asks Gates himself how many other teenagers in the world had as much experience as he had by the early 1970s. “If there were 50 in the world, I’d be stunned,” Gates says. “I had a better exposure to software development at a young age than I think anyone did in that period of time, and all because of an incredibly lucky series of events.” Gates’s talent and drive were surely unusual. But Gladwell suggests that his opportunities may have been even more so.  

Continue reading the NYT Sunday Book Review of Gladwell's new book, Outliers, here.

More on using dual narratives to help you settle litigation tomorrow (or later this afternoon)

Survive with the Fittest Lawyers on Evolution Day with Blawg Review # 187

Leave it to a legal marketing blog -- Lawyer Casting - to choose Evolution Day for its first entry into the BlawgReviewOSphere.  As blogger Joshua Fruchter explains in Blawg Review #187, because the anniversary of Charles Darwin's publication of The Origin of Species on November 24, 1859 is inextricably intertwined with the idea that only the fittest survive, Evolution Day should be celebrated with advice for survival.  And so it is.

For those of us who toil the legal fields, Fruchter suggests a range of survival options including

There's advice for law firms here as well, so crawl on out of the loser gene pool and make your way over to Blawg Review # 187.  The survival of the legal species might just well depend upon it!

Note that Eric Turkewitz at the New York Personal Injury Law Blog  will host Blawg Review #188.  Anyone interested in participating in future blog carnivals should take a look at Blawg Review, which has information about next week's host and instructions on how to get your blawg posts reviewed in upcoming issues.

Finally, in true celebration of Evolution Day, take a look at some of the most enduring misconceptions about Darwin's paradigm breaking theory here, including the fact -- noted by Fruchter -- that Darwin did not originate the phrase "survival of the fittest."


*/ Pepper Hamilton is podcasting??????  A short but vivid season of my legal career was served as a Pepper associate back in the late '80s (Alum Network here) when this grand old Philadelphia law firm turned 100 at which time it was still using quill pens - at least in the Philly office.  In the Los Angeles office, we associates routinely gathered in the library (yes! with books) and were required to share the one Lexis/Nexis research station which we were forbidden to use except in the most dire circumstances and with pre-approval.



Feeling Extorted? Mr. Molski's Serial ADA Litigation and Why We Settle

Many in the legal blogosphere are buzzing about the recent Supreme Court decision letting stand a Central District injunction barring wheelchair-bound Jarek Molski from filing further ADA accessibility cases in our local federal trial court here in Los Angeles.  See Justice Berzon's and Kozinski's spirited dissents to Ninth Circuit's Per Curiam refusal of the Petition for a full panel re-hearing here.

Mr. Molski was declared a vexatious litigant by the California Central District federal court back in 2004.  See Wendel Rosen's excellent report of that case here Molski v. Mandarin Touch Restaurant, 347 F. Supp. 2d 860 (C.D. Cal.2004) (declaring Molski a vexatious litigant and requiring court approval prior to his filing future lawsuits); aff'd Molski v. Evergreen Dynasty here.

Still active is Molski's case in the Eastern District of California which was recently permitted to go forward by the same Ninth Circuit Court of Appeal.  As the Ninth Circuit explained the factual background of Mr. Molski's "serial litigation,"

[Plaintiff] Molski and his lawyer Thomas Frankovich (“Frankovich”) were purportedly in the business of tracking down public accommodations with ADA violations and extorting settlements out of them. On cross examination, Molski acknowledged that: he did not complain to any of [the defendant's] employees about his access problems; he had filed 374 similar ADA lawsuits as of October 8, 2004; Frankovich had filed 232 of the 374 lawsuits; even more lawsuits had been filed since that date; Molski and Frankovich averaged $4,000 for each case that settled; Molski did not pay any fees to Frankovich; Molski maintained no employment besides prosecuting ADA cases, despite his possession of a law degree; Molski’s projected annual income from settlements was $800,000;2 Molski executed blank verification forms for Frankovich to submit with responses to interrogatories; they had also filed lawsuits against two other restaurants owned by Cable’s; they had filed a lawsuit against a nearby restaurant; and Sarantschin obtained up to 95% of his income from Frankovich’s firm for performing investigations for ADA lawsuits.

See Molski v. MJ Cable, Inc. here.

Despite these apparently damning facts, in its 2007 affirmance of the vexatious litigant finding, the Ninth Circuit noted some of the reasons why Molski and his lawyer could not be condemned for their pursuit of serial ADA litigation.  The ADA, noted the Court,

does not permit private plaintiffs to seek damages, and limits the relief they may seek to injunctions and attorneys’ fees. We recognize that the unavailability of damages reduces or removes the incentive for most disabled persons who are injured by inaccessible places of public accommodation to bring suit under the ADA. See Samuel R. Bagenstos, The Perversity of Limited Civil Rights Remedies: The Case of “Abusive” ADA Litigation, 54 U.C.L.A. L. Rev. 1, 5 (2006).

As a result, most ADA suits are brought by a small number of private plaintiffs who view themselves as champions of the disabled. District courts should not condemn such serial litigation as vexatious as a matter of course. See De Long, 912 F.2d at 1148 n.3. For the ADA to yield its promise of equal access for the disabled, it may indeed be necessary and desirable for committed individ- uals to bring serial litigation advancing the time when public accommodations will be compliant with the ADA.

But as important as this goal is to disabled individuals and to the public, serial litigation can become vexatious when, as here, a large number of nearly-identical complaints contain factual allegations that are contrived, exaggerated, and defy common sense. False or grossly exaggerated claims of injury, especially when made with the intent to coerce settlement, are at odds with our system of justice, and Molski’s history of litigation warrants the need for a pre-filing review of his claims. We acknowledge that Molski’s numerous suits were probably meritorious in part—many of the establishments he sued were likely not in compliance with the ADA.

On the other hand, the district court had ample basis to conclude that Molski trumped up his claims of injury. The district court could permissibly conclude that Molski used these lawsuits and their false and exaggerated allegations as a harassing device to extract cash settlements from the targeted defendants because of their noncompliance with the ADA. In light of these conflicting considerations and the relevant standard of review, we cannot say that the district court abused its discretion in declaring Molski a vexatious litigant and in imposing a pre-filing order against him.

In other words, when the legislature puts the enforcement of the ADA in the hands of disabled individuals without permitting them to recover damages, you can't blame private attorneys for working the market created for the private enforcement of public laws even if you can blame them for the manner in which the market is worked.

So what does this have to do with the settlement of litigation and, in particular ADA Litigation?

Because these accessibility cases always cost more to defend than to settle and because they're often indefensible, the rational business decision is simply to settle the darn things.  

No one, however, wants to be extorted.  And in the few ADA cases I've mediated, it's the principled refusal to pay money at the point of a gun that interferes with a business establishment's willingness to do the economically "rational" thing rather than, say, try it;  appeal it to the Ninth Circuit; and, pursue it to the Supreme Court of the United States.

For those representing defendants who are feeling extorted, I offer my own (previously posted) ADA mediated settlement story below.

Continue Reading

How to Apologize on the Internet: Larry Bodine Comes Clean

Some attorneys and mediators make light of the power of the apology ("it's only about money").  My education, training and experience consistently suggest otherwise.

Today, we learn a lesson in heart-felt apology from Larry Bodine for a post I hadn't seen, but which Bodine himself admits was anti-Semitic.

"Elevator Pitch" Post Deleted I sincerely apologize for the crude and offensive "Elevator Pitch" post I put online last week.  In the clear light of morning, it is clear that it was anti-Semitic and repellent.  I want to thank all the people who commented and called me about it; I listened and took what you said to heart.

If you read on here you'll see that Bodine did not simply say "I'm sorry."  He removed the admittedly offensive post; disowned it; and, empathized with those who found it offensive by sharing his own family's WWII imprisonment story.

As my Second Track International Diplomacy Professor Brian Cox has written in his book Faith-Based Reconciliation

Words that heal include expressions of caring, concern, gratitude and affirmation.  [I]n demolishing the walls of hostility, we must be prepared to examine our own pattern of spoken words and embrace the practice of ethical speech. . . .

Because Bodine himself admitted the anti-Semitic nature of his post, it falls into the category of an identity-based conflict with some or all of his readers.  Though speaking from a religious or "faith-based" viewpoint, I always found Cox' prescriptions for resolution to work equally well from the point of view of secular humanism.  As Cox explains:

A faith-based reconciliation framework applied to an identity-based conflict . . . consists of six basic elements:  imparting moral vision, building bridges between estranged groups, a peace accord, advocacy for social justice, political forgiveness, and healing deep collective wounds.

More particularly, Cox recommends the following specific steps:

1.  Sharing life journeys and building common ground.

2.  Sharing perceptions of the conflict.

3.  Engaging in problem solving.

4.  Sharing how one has caused offense to the other.

5.  Exploring each community's narrative of history and perception of historical wounds.

If you read Bodine's spontaneous apology, you will see all of these elements contained in it.  This is not surprising because apology and attempts to re-build interpersonal bridges are hard-wired into us as toddlers.  As I wrote in "Shame by Any Other Name,"

Shame . . .  "acts as a powerful modulator of interpersonal relatedness and . . . ruptures the dynamic attachment bond between individuals." 30  When an individual has broken this bond, he wishes to recapture the relationship as it existed before it turned problematic. 31 Toddlers shamed by their mothers, for instance, naturally initiate appeals to repair the momentary break in the emotional bond resulting from the shame-inducing behavior. 32 This process is called self-righting. 33 It is natural and universal. 34 The shamed toddler reflexively looks up at and reaches toward his mother. 35 Even a preverbal child will spontaneously express this need to be held in an attempt to reaffirm both self and the ruptured relationship, to feel restored and secure. 36

A healthy and responsive mother accepts and assuages the child's painful feelings of shame, enabling the toddler to return to a normal emotional state, one in which love and trust are ascendant. 37 If the caregiver is "sensitive, responsive, and emotionally approachable," especially if she uses soothing sounds, gaze and touch, mother and child are "psychobiologically reattuned," the "interpersonal bridge" is rebuilt, the "attachment bond" is reconnected, and the experience of shame is regulated to a tolerable emotional state. 38

This may all seem excessively academic.  The point is that we all trespass on the feelings of others; those feelings are critical to our connection with one another; our connection with one another is fundamental to our individual well-being and our survival as a species; the urge toward reconciliation is therefore natural, as are our desire to be forgiven, our spontaneous expressions of remorse, our attempt to explain and normalize our bad behavior (we are all fallible and we have all suffered harm)  and our fellows' willingness to forgive, particularly when we bare ourselves and our histories to one another in the course of our effort to re-establish what joins us and to move beyond that which divides us. 

And for that lesson, we owe thanks to Larry Bodine this evening.



Trial Skills, Deposition Skills and IP Negotiation Skills Programs

Here are my upcoming speaking and teaching engagements in November and January!

I'm baaacccckkkkkkkkkkkkkkkkkkkk!!!!!!!!!!

Judicate West Neutral and IP ADR Mediator and Blogger Victoria Pynchon.

Coach/Instructor, National Institute of Trial Advocacy: Building Trial Skills
Location: Loyola Law School Los Angeles
City: Los Angeles, CA
Dates: 1/2/2009 - 1/8/2009
Director: Williams, Gary C.

This is a week-long intensive program for new and/or experienced attorneys who need to learn/brush up on their basic trial skills.  If you can take the time, your entire practice will benefit from the experience.

BrightTALK Intellectual Property Summit here! on November 11, 2008 Webcast Free

Negotiating a Settlement in IP Litigation

   12:00 pm
   Presenting Victoria Pynchon, Judicate West, CPR, Settle It Now, IP ADR Blog

And coming soon!  Deposition Skills Training (NITA techniques) at Solo Practice University!!


Faculty @ SPU

Hope, Safety and Innovation

The first thing we mediators are taught (after digesting the imperative to "be conscious") is that people in conflict need to be in an atmosphere of hope and safety to be able to:  (1)  recognize the point of view of another; (2) be accountable for his/her own "part" in the dispute; and, (3) generate creative solutions to bust past impasse.

This is the reason one of the post categories over at the IP ADR Blog is "Innovate, Don't Litigate," which is the dispute resolution mantra of Sun Microsystems CEO Jonathan Schwartz.

That said,  I am happy to link my readers to The Financial Crisis' Silver Lining over at Harvard Business Publications.

Perhaps the good times are in fact dead. And certainly someone thinking of forming the umpteenth "Web 2.0-widget-to-grab-audience-and-find-advertisers" ought to pause to think whether they really have some kind of defined competitive advantage that can translate into a sustainable business.

But real customers continue to face real problems. And as always, innovators who figure out different ways to solve those problems--and make money doing so--will have opportunities to create new growth businesses. In fact, the creative destruction unleashed by a crisis always opens up opportunities for innovation.

As a simple example, consider a New York based startup called On Deck Capital, Inc. As described in Monday's Wall Street Journal, the company loans money to small businesses. Instead of relying on individual loan officers to pour over episodic financial information and make decisions, the company has an algorithmic approach that uses software to analyze a company's day-to-day activities in a non-obtrusive way to assess credit worthiness. Its loans feature higher interest rates than loans from most banks, but lower than alternative sources.

The company launched in May, and has already distributed $10 million in loans. It has suffered very few defaults. The current credit crisis and hesitancy of many banks to loan to even the best-run small businesses creates substantial opportunity for On Deck to extend its model.

Llssez le bon temps roulez!

What We Think We Know Can Hurt Our Negotiating Position

I watched the debate last night with people who support my candidate.  They all also happened to be mediators, so they understand concepts like confirmation bias --the tendency to search for or interpret new information in a way that confirms one's preconceptions and avoids information and interpretations which contradict prior beliefs. It is a type of cognitive bias and represents an error of inductive inference, or as a form of selection bias toward confirmation of the hypothesis under study or disconfirmation of an alternative hypothesis.

I've been Twittering (shoot me! this is addictive behavior).  But all behavior has it's "up" side.  The "up" side to following my Twitter network's running real-time commentary of the debate was the exposure of my own (and my friends') confirmation bias.  I have both McCain and Obama supporters in my network and it was as if the two groups were watching entirely different debates.  And they were. 

Because nothing is objective.  Let me repeat that.  Nothing is objective.  Everything we hear, see, touch, smell and taste is filtered through our entirely personal experiences, the collective or "received" reality of the society (micro or macro) in which we live, and interpreted based upon those experiences, which are further complicated by universal cognitive biases and particular core beliefs (our "operating principles").

If nothing is objective, there is no truth beyond that which one has faith in. ("faith is the substance of things hoped for, the evidence of things not seen.")

Yes, I know, the scientific method.  But you and I don't test our beliefs, opinions, perceptions and conceptions by the scientific method.  We hear, we see, we smell, we taste, we touch and we respond.  We opine.  We believe we are right.

So I said to my friends in the middle of the debate, "we're an example of "confirmation bias" and they took issue with me. And I let it go because I wanted to listen more than to impose my own view of our collective experience.  And I was Twittering, lord help me, with some people who didn't share my bias.

I missed statements made by McCain entirely.  It was if I hadn't even heard them.  I was listening to confirm that which I already believed, which means I screened out what didn't fit my view of McCain or Obama and highlighted those statements that confirmed my existing beliefs.

This is what happens every time you try a case to a jury.  It's why the little "g" god of the market place created jury consultants.  It is also what happens everytime you try to settle litigation.  Litigation raises confirmation bias to holy writ.  Which is why the little "g" god of the market place created mediators.  Why?  Because the client has filtered his opening story through his own subjective experiences, which we, the litigators, devote ourselves to proving by cherry-picking the facts that conform to those experiences and disputing all those that don't.  By the time the parties and their counsel get to me, they're often in different galaxies.  And I need to help them remember, or realize for the first time, that their opponent has woven the disparate facts of "what happened" into an entirely different story, and has done so without "lying" about those events.  Just as importantly, the parties come to understand that a  jury might well "buy" their opponents tale as the "right" one.

Here's the more important point to getting a better deal:   your opponent is often nearly as interested in your acknowledgement that his version of the events might be as accurate as yours as he is in  "winning" the case.  When (or if) the parties clear this hurdle, they can get down to serious horse trading, benefitting both. 

So, forget the pundits.  If you believe your guy "won" last night, it's probably equal parts a measured opinion and a peculiarly subjective experience, one that you do not even know you've tailored to fit your own view of reality.

I like Obama because I believe he acknowledges this from time to time.  Not always.  But often enough to make me feel comfortable with him in a White House.  Am I right?  How could I possibly be?  We won't know anything until one of these men moves from campaigning to governing.

Lord help us all.


Helping Employees Help You Help Them

Earlier this week I was asked the following question by a concerned General Counsel:  how can we help our employees grapple with on-the-job justice issues without leading them to believe that our proposed solutions are untrustworthy.  

The problem, as eloquently described by a lengthy email posing the question, is one that all employers face, large and small.  For this GC to have thought that mediators might make a difference is particularly heartening on a day when mediator Justin Patten was reporting that mediators are the furthest thing in a UK company's mind when dealing with conflict.  

(above, the work of the brilliant Hugh McLeod)

To understand the depth of the problem posed, I'm providing you with the full email sent to me:   


I just read your blog post of September 15, 2008 regarding Peter Murray's article (which I have not read yet). I was having a discussion today with my Director of Human Resources, and raise a related issue.

Our company spends an inordinate amount of time explaining disability, workers comp and federal employment law to employees who misunderstand what their rights are, or do not give us the right information to help them get the help they need.

Of course, we are the big bad employer, so any information we give them is suspect. I have considered hiring a social worker as a case manager/advocate for these people, but that position would just be interpreted as another tool of the evil employer out to keep them out of work/make them go back to work in violation of their best interests, so it would be a waste.

We would LOVE if there was an independent agency that would assign a case worker, not to work as an attorney for the employees, but as an advocate to help them understand their rights and access the system correctly. I would gladly pay to fund this service.

Then I realized, if the employer, or a group of employers, funded this employee advocacy agency, employees would think the advocates were biased toward the employers and were just in a sham relationship to deprive them of their rights to serve the interest of the employer.

Now, I do not believe this would be the case. I trust in the professionalism and ethics of mediators, but I do believe that uneducated and single users would form that opinion. Professor Murray's opinion reinforces that conclusion, even though at first glance, he would seem to be "educated."

But, is bigger government the answer. My experience with the EEOC is that they want employers to do MORE than is required by law. We have had success with mediators after complaints are filed, but my goal is to get the employees what they need when they need it, not have a mediator help us fix it after time has run out.

What are your thoughts on this?

The Problem as Cognitive Bias

I've highlighted the sections of the GC's email that raise the problem of reactive devaluation -- our tendency to devalue and resist anything our "opponent" offers to us.  Most attorneys were taught reactive devaluation as first year associates -- "if opposing counsel wants it, you don't." 

As the linked article -- Reactive Devaluation in Negotiation and Conflict Resolution -- notes:

One can be led to conclude that any proposal offered by the “other side”—
especially if that other side has long been perceived as an enemy—must be
to our side’s disadvantage, or else it would not have been offered. Such an
inferential process, however, assumes a perfect opposition of interests, or in
other words, a true "zero-Sum" game, when such is rarely the case in real-
world negotiations between parties whose needs, goals, and opportunities
are inevitably complex and varied.

Combatting Reactive Devaluation in the Workforce

Cognitive biases such as reactive devaluation are not random artifacts of an irrelevant evolutionary past.  They are built-in protections against deception by our friends as well as by our adversaries.  There is only one lasting protection against this bias -- to engage in clear communication with your work force on a daily basis concerning the mutual and complementary interests of employer and employee; to express your belief in your interdependence in word and deed, i.e., by engaging in dialogue and activities demonstrating  benevolent intent; and to willingly listen to one another's complaints, understanding that one man's benevolence is another's bondage. 

As recent legal news touching too close to home (the Heller dissolution) bears out, the workplace will not work if the middle or the bottom collapse.  If human resources are your greatest capital asset, attend to the wisdom of Adam Smith Esq. on Heller's recent failure:

"Our assets go down in the elevator every night."

Take that bromide seriously.

You must give people a persuasive reason to come back "home" every Monday morning.they go down the elevator every night and must have a good reason to come "home" the next day. 

Asking Diagnostic Questions and Using Transformative Mediation Methods

I repeatedly tell my clients what I've learned from the academics who teach negotiation strategy and tactics at elite business schools throughout the country -- 93% of all negotiators fail to ask their bargaining partners diagnostic questions the answers to which would dramatically improve the benefits of the bargain to everyone. 

What's a diagnostic question?  One that would reveal our bargaining partners' needs, desires, priorities, preferences and motivations.  I'm no employment expert, but I have participated in the management of law firm personnel as a partner and have been managed by others throughout my professional life.  As a full-time mediator for more than four years, I have also asked hundreds if not thousands of diagnostic questions to help litigation adversaries understand one another's motivations, to reframe those motivations as non-threatening, or, at a minimum, the result of ordinary human fallibility, and to explore the parties' mutual and complementary interests. I also remind my parties and myself as often as possible that you cannot drill a hole in the other guy's side of the boat without making your own side sink to the bottom of the lake as well.

As the transformative mediators who have been most successful in workplace disputes tell us, our job is to assist the parties in moving from fear and powerlessness to accountability and mutual recognition of the interests of the other.

Empowerment, according to [the fathers of the transformative paradigm] Bush and Folger, means enabling the parties to define their own issues and to seek solutions on their own. Recognition means enabling the parties to see and understand the other person's point of view--to understand how they define the problem and why they seek the solution that they do.

(Seeing and understanding, it should be noted, do not constitute agreement with those views.)

Often, empowerment and recognition pave the way for a mutually agreeable settlement, but that is only a secondary effect. The primary goal of transformative medition is to foster the parties' empowerment and recognition, thereby enabling them to approach their current problem, as well as later problems, with a stronger, yet more open view. This approach, according to Bush and Folger, avoids the problem of mediator directiveness which so often occurs in problem-solving mediation, putting responsibility for all outcomes squarely on the disputants.

Rights and Remedies vs. Interests

It's not surprising that employees just don't seem to "get" the legal rights and remedies company HR departments keep trying to explain to them.  They don't make any sense absent legal training.  

People who are not lawyers simply don't understand why there is a legal remedy for one type of injustice but none for another that feels just as unfair.  Let's take our patchwork of Constitutional protections for employees.  As an life-long ACLU member, I'd be the last to denigrate them.  But we have to understand that we've created a "fair" workplace for only some of our citizens, not all of them. 

Women, people over 40, under-represented minorities and the like, can take the square peg of their unfair work treatment and cram it into the round hole of a viable cause of action.  If an employee does not want to cry "gender discrimination" even though she's being treated badly on the job, or if he has no bundle of legal rights to assert, there is no remedy for a termination that feels (yes, feels) wrongful.  Remember, it took us lawyers quite some time for the legal worldview to "click" and we were immersed in it, drilled in it and eager to learn it.  Employees just want someone to listen to their problem and to help them resolve it.  They don't want to know the wage-hour laws, the need to exhaust administrative remedies with the EEOC and the like.  

Employees and employers have people problems with justice issues, not legal problems with "irrelevant" emotional responses that get in the way of resolution. 

Expressed emotion is the key, not the lock. 

It is we -- the lawyers -- who legalize and monetize injustice, shutting our clients down when they try to explain what the problem really is because it's irrelevant to the legal solution.

If you're old enough to remember the lingering moment in United States history when our educational institutions went from white, on the one hand, to multi-hued, on the other, you'll know intimately how you deal with reactive devaluation.  You get to know one another.  Do this and Kaneesha is not "black" or "African American" but a well-known acquaintance or dear friend.  The same is true for employers and employees.  Create activities in which (alleged) oppressor and (purported) oppressed come together to engage in mutually productive (Habitat for Humanity springs to mind) and mutually enjoyable (basketball?  girls nights out?) activities.  At the holiday party, don't relegate the "underlings" to their own table.  Walk your talk.  Destroy the hierarchy everywhere except where it's actually necessary to get work done. 

I can't describe the benefits of interest-based resolutions over rights-based solutions any better than does my mentor and friend, Ken Cloke, in his brilliant new book -- Conflict Revolution.

[r]ights-based processes . . . generate winners and losers, undermine relationships, and result in collateral damage, . . . Since rights rely on rules, change is discouraged, though not prevented, and conflicts are settled rather than prevented or resolved.

This is not easy work. As a mediator, I know how elusive Cloke’s “outcomes” can be

--  outcomes [in which] both sides win and no one loses, when former adversaries en-
gage in meaningful dialogue and reach satisfying agreements, and when power is exercised with and for each other by jointly solving common problems.

I have, I am afraid, given my GC a problem rather than a solution.  More accurately, I've suggested an altered way of looking at the problem without a great deal of detail about crafting a solution.  Not only could people better versed in employee relations write books on this topic, they have.  Therefore, I'm asking my good ADR blogging buddies to please chime in here for you.

Diane LevinGeoff SharpBlaine DonaisOmbuds Blog? John DeGrooteNancy HudginsStephanie West Allen Gini NelsonTammy Lenski?




Mediation Ideologies and Settling Your Commercial Litigation

Geoff Sharp at Mediator blah blah today asks the first academic question with which I was forced to grapple in my LL.M studies at the Straus Institute -- can you cherry pick transformative mediation techniques to settle commercial litigation?  

I realized I had re-entered the academy the day Joe Folger -- author, with Baruch Bush, of The Promise of Mediation -- said only transformative mediation "works" and its principles  must be strictly followed. 

(drawing courtesy of Charles Fincher at LawComix.com)

Why was this an echt academic moment?  Because the course I was taking from Joe -- "Ideologies of Mediation" -- had, before that moment, been suggesting that all ideologies interfere with durable, party-satisfying resolutions.  Now it seemed the problem wasn't with ideology itself but with the wrong ideology.  Hmmm, felt like law school.  Forget Pennoyer v. Neff.  It's all about this Buckeye case with the exploding boiler.

At the time, my litigator husband was skeptical of all mediators and all mediation techniques.  We took a long walk down a Malibu beach after one of Joe's classes while I tormented him with questions about ways in which mediators could help him settle the case he was then working on -- the World Trade Center insurance coverage litigation. 

Frustrated, I interviewed Folger and Bush -- raising Steve's questions -- which I crafted into a Q&A for mediate.com -- Can Transformative Mediation Work in Commercial Litigation?

Later, Ken Cloke (Conflict Revolution) would tell me "you are the technique," opening the door for me to use mySELF to best settlement effect, remembering old lessons while continuing to learn new ones.  See We Tell Ourselves Stories in Order to Live.

If you wonder why I'm such a joint session fanatic, it's due largely to Joe's and Baruch's teaching as well as my own experience mediating community disputes locally -- the only place true transformative mediation is practiced.  Engage the people with the problem and you're more than half way home.  You just have to be capable of getting the lawyers to trust you enough to give up just a tiny bit of control to help the process happen.

As another mentor -- Richard Millen -- taught me, people don't have legal problems, "people have people problems" which are burdened with justice issues. 

Choose your mediator wisesly, collaborate with him/her and you will not only settle the case, but emerge with a client who got what he/she/it hired you for -- to resolve the commercial problem and  the justice issue that called for the retention of a lawyer in the first place.

And if you're in the UK, check out Justin Patten's post on small companies missing the benefits of mediation -- complete with an offer of a free consultation. 

An Idea Whose Time Has Come: A Legal TED Conference

A lessee of commercial office space complains that the common areas are not being properly maintained. The local high school has just banned Catcher in the Rye. Again.  A prestigious law firm fires a first year associate because he refuses to remove his new “tongue stud.” These seemingly disparate disputes have one quite obvious but ill understood characteristic in common – they are all examples of unresolved conflicts that have ripened into discrete disputes.

Pretend for a moment that you never went to law school.  I know.  It's hard.  But give it a shot.

Lawyers (those other people who went to law school) are are trained to understand, manage and remedy all disputes, no matter however different they might be, in a single, highly controlled manner.  

To help their clients deal with the problems mentioned here, lawyers will read the lease; research the latest Supreme Court rulings ("Fuck the draft"); and, study the statutes. Once they understand the facts that are relevant to the law, they “think like lawyers.”

How do they do that?  "Think" like lawyers?

First, they subject the facts and the law to as much scrutiny as any idea can bear before it disintegrates into the dust of first principles. They create a chronology of events, highlighting and tailoring the "story" of the conflict that "fits" the available "causes of action" giving rise to "rights" in their client, obligations in their "opponent" and remedies for the harm suffered.  

This "legal" dispute was once about a relationship between people.   Now it is an "actionable" claim in an extremely controlled process in which one of the parties will "win." 

That, of course, rarely happens because the legal system has become too expensive and the law too uncertain for most people to risk what used to be it's goal -- a jury trial.  

Lawyers recognize frivolous or baseless or "defendable" claims by observing just how uncomfortably the “facts” sit inside their opponent's “causes of action.” When called upon to justify their entitlement to get their client's claim before a jury (demurrers, motions for judgment on the pleadings, summary judgment motions, non-suits) the Plaintiff's attorneys can and will simply change the way the story is told.  They make the facts fit the law.  There's nothing wrong with that.  That's their job.  If the facts won't "fit" the law, lawyers apply themselves to the law's creative expansion. 

What attorneys do not learn in law school is how and why conflict develops into a dispute and then predictably evolves, usually getting more acrimonious and difficult to resolve.

My friends who are lawyers (I never went to law school, remember? and neither did you) tell me that they know how to escalate conflict but not how to de-escalate it.  They also tell me that they see a lot of injustice.  Sometimes the injustice arises because the laws themselves are unjust.  Sometimes the tragic and unfair consequences of human interactions just don't have any legal remedy.  And sometimes the legal process itself makes disputes worse -- more protracted, frustrating and expensive -- rather than better.  

In common law countries, like ours, where the law is forged in the fire of conflict, shouldn't attorneys be taught not only how to "win the case" but also how to dampen the flame?  Most litigators I know would respond with a resounding "no!"   

Conflict resolution that is not "handled" as litigation or arbitration is for some other professional to deal with.  Therapists come to mind.  Don't they help the parties deal with that most uncontrollable aspect of any dispute -- something not only lawyers but the law itself exclude from the legal action?

 Feelings.  Not just sad or mad feelings.  But the type of feelings that make teenagers shoot other teenagers on the streets of Los Angeles.  Feelings of loss, tragically unfair outcomes, powerlessness, rage and despair.

The purpose of this post and the new thread that it is meant to begin?  To start something radical.

If you're not aware of what I'm about to tell you, you should be.

Once a year, 1000 people are invited to the TED Conference in Monterey, California, to exchange something of incalculable value: their ideas. TED's mission statement is as simple as it gets:  

TED is devoted to giving millions of knowledge-seekers around the globe direct access to the world's greatest thinkers and teachers.

You can cruise the jaw-dropping results here.

(image links to the Photography site of Lars Kirchhoff)

I was just talking to a friend over coffee the other day about how we're using 18th Century technology (the jury trial) to solve 21st Century problems.  

Here's the idea.  A legal TED Conference. 

If you'll look at what TED accomplishes, you'll know what I don't mean.  I don't mean a conference to trot out any new/old "ADR" ideas -- mediate this, arbitrate that, create new rules and forms for the lawyers to use. 


I mean creating the highest level think tank we can to first envision and then implement a dispute resolution technology that incorporates what we've learned since we first enshrined the jury trial in our Constitution more than 200 years ago.

I have one man in mind -- Larry Lessig.  But surely there are others.  The first step would be to suggest names for the coordinating committee.

Why do I think of TED?  Because what it envisions cannot be accomplished.  It cannot even be envisioned.  It's a fool's errand.  One I'd be willing to spend the rest of my own life working on.

Would anyone care to join me?

Settlement Unicorn Appears in Malpractice Mediation!

If you've been following the conversation between Settle It Now and Max Kennerly's Philadelphia Litigation and Trial Blog, you'll know that a "settlement unicorn" is composed of "two hostile parties on the verge of a lawsuit [who] get lawyers, almost file suit, and then, through deft representation, settle their differences peacefully and move on." 

I believe in Unicorns and Max doesn't so I've promised to keep my eyes open for appearances of that storied creature.  Previously, I have reported the Unicorn's appearance here (community mediation; potential lawsuit, no lawyers); here (litigation + lawyers who send the parties to community mediation); and, here (litigation + lawyers + clients who seek mediation without lawyers to resolve dispute).  

Today, I have a story of the Unicorn visiting the mediation room in a litigated case -- a case of the type that my (new) friend Max Kennerly suggests will not attract that shy beast because: 

The parties to a lawsuit do not have intertwined interests: they have directly adverse interests. Unless there's some possibility of a future relationship, the defendant doesn't want to resolve the conflict: they want the plaintiff to drop their frivolous claim. In their mind, their best alternative to a negotiated agreement ("BATNA") is for the plaintiff to crawl in a hole and die.

[My Comment:  the "intertwined interests" all parties to litigation have is the litigation itself with its attendant cost, delay, and, uncertainty, not to mention the discomfort "ordinary" people experience when plunged into the foreign environment occupied by attorneys with their strange "causes of action" and "affirmative defenses," their demurrers and JNOV's; their res ipsas and, most importantly, their view that only facts pertaining to a "cause of action" or "affirmative defense" are relevant to the injustice suffered by their clients.] 

[T]he plaintiff usually prefers imposing a conflict on the defendant (who the plaintiff believes cast the first stone) in pursuit of justice, an imposition they will only relieve for at least "full" compensation. . . .

The problem is that most parties don't consider their claims to be assets; the problem isn't that there's emotional baggage around the economic understanding, it's that the parties interpret their dispute as fundamentally non-economic.

[My Comment:  I've said before that all litigation is "fundamentally non-economic" -- it's about justice.  Though Max is one of the few practicing litigators who agrees with me, he does not believe in the existence of my solution -- a settlement conference or mediation conducted in joint session].

Hence a Mediation Unicorn with litigation and attorneys prior to any meaningful discovery.

I'm talking to a plastic surgeon whose artistry not only went unappreciated, but which gave rise to a lawsuit for battery and malpractice. 

The plaintiff is a model and an actor.  The surgery, she claims, left permanent scaring on her nose.  Her opening demand is $500,000.  I am trying to persuade the physician, his attorney, and the claims adjuster, not to walk out.  The plaintiff's deposition has been taken and the doctor's is scheduled for the following week.  No experts have been retained.  

The parties have made the rare effort to settle the case early in the litigation.

This is what the defense thinks about the opening demand in response to their good faith participation in an early mediation:  

%&*#%*#%@& and %&^@(% and *&$)*#! 

I am suggesting to the defense in separate caucus that they allow me to conduct a joint session in which the parties can talk about the surgery, the scarring and their post-surgical communications.  I explain that the Plaintiff is more angry than acquisitive.  She believes that the doctor disrespected her when she complained about the scarring. 

He denied that I had a scar.  He was rude and dismissive.  He disrespected me.  He had no bedside manner.  

She is one of the few personal injury plaintiffs who comes right out and says what so many plantiffs feel.  

I want him to suffer.  My attorney says he has to report any settlement in excess of $30,000 to the Medical Board.  I want to make him do that.  I want him to suffer as I have.  It's not about the money.  It's about accountability.  I want him to be accountable.   

The parties resist a joint session and we spend two hours negotiating in the strato- and nano-spheres.  $10,000.  $490,000.  $12,500.  $475,000. 

"We're getting nowhere," says Plaintiffs counsel.  "Tell them we're leaving." 

"The case will never settle.  This is a waste of time for my doctor and my claims examiner.  Tell them we're leaving. The case will never settle.  It simply won't settle.  The case cannot settle." 

Click Your Heels Three Times and Say "There's No Place Like Home."

Attorneys are fond of saying that all mediators do is "keep them in the room."  They might be right, but the difference is the room I keep them in.  It's a mediation room, not a conference room or a deposition room or a courtroom.  It's a room in which I ask the doctor if the feeling he has is something akin to a fish being hooked, pulled up out of the water and thrown onto the deck of someone's boat, gasping.  He cracks a smile for the first time that morning.

It's a room in which I say there must have been a miscommunication, a misunderstanding.  It's a room in which I say to the defense that the Plaintiff feels angry and disrespected.  It's a room in which I caution the Plaintiff that the physician is from a different culture than her own -- one where a doctor does not express empathy but only certainty in his skill and expertise. 

The claims adjuster asks me if I'd been able to see the Plaintiff's scar from where I was sitting -- across a conference room table.  I admit that I could not.  I acknowledge what is patent in the defense room -- the Plaintiff is blindingly beautiful.  A jury is unlikely to award her much in the way of damages.  I have said as much to the Plaintiff.  But she is angry and wants a pound of flesh.

I have another mediation in the afternoon.  I tell the defense we have fifteen more minutes.  The claims adjuster keeps repeating "the case will not settle, the case will not settle, the case will not settle." I take this to mean that the defense very much wants to settle the case. 

"If someone repeats something over and over again," my mentor Ken Cloke taught me, "that is the key to the resolution."  While that might be so, I haven't yet found a way to use that key to open any door.  But it is not really my case to settle.  It's my job to keep them in the room.

"I Want to See the Scar," says the claims examiner.

I wish I could take credit for the following but I cannot.  The Plaintiff's attorney says "why don't they go to the ladies room where my client can show Ms. Y the scar and together they can look at it."

I hear the click of the Unicorn's hooves in the hallway.  The plaintiff's attorney is male.  I don't believe he knows what he's suggesting.  He wants to send two women into one of the safest and most congenial, soul-bonding rooms in all of God's creation -- the women's room.

know the case will settle.

We are finally in joint session.  The claims examiner says, "I want to tell you that I now see the scar.  I'm sorry I denied it.  We'd like to offer you $X to settle the case."

Did $X settle the case?  No.  But $X + $Y settled the case ten minutes later.

And just around the corner, you could see the shadow of the settlement unicorn rear up on its hind legs in celebration.

The On-Going Search for the Settlement Unicorn

The jig is finally up.  I've been hemming and hawing long enough.  I need to just go ahead and answer Max Kennerly's question whether it's  possible to convene an early settlement conference in which the parties are united in a desire to settle the litigation.  

This is how you know I'm still as much a lawyer as I am a mediator. 

The answer is yes and no. 

But you can help change the "no" to a yes.

That's the hope part.

Here's the dispiriting part --The answer will not become "yes" if the parties continue to primarily engage in position-based distributive bargaining sessions in separate caucuses.  

My own professional experience (and the behavioral research of which I'm aware) suggests that Mr. Kennerly's Unicorn will only come into a room in which an interest-based negotiation is taking place, one in which there is at least one joint session among the baragaining parties.  

But first a story.  

This very morning I failed to settle a very small case that is poised to become a very big case with cross-actions for legal malpractice and malicious prosecution. 

The delta between the Plaintiff's final demand and the defendant's final offer?   


And I offered to throw in half the delta myself by making a contribution to the presidential candidate/s of the parties' choice.  Shock value.

The parties' failure to achieve settlement couldn't have been about money could it?  

(image from The Sphere of Economic Calculation at the Ludwig von Mises Institute)

Why not?  Because it was economically irrational not to settle. Which is not unusual.  Because there is no rational economic man.  Because we are incapable of making a decision in the absence of emotion.  /**  

As Professor Lee Alan Dugatkin explains in his article Discovering That Rational Economic Man Has a Heart,  

Although some economic decisions are made outside a social context, they are a minority. Social dynamics, many economists believe, are at the core of economic decision making—that is, decision-making about resource acquisition and expense allocation. What I decide affects you, what you decide affects me, and, even more to the point, I care how I fare economically compared with how you fare.  

I send a client a bill for $15,000.  He pays $9,000, refusing to pay the additional six because he believes I didn't earn it or that I did my job badly or that I didn't communicate to him all of the items I would naturually include in my bill.  There is a written agreement but no attorney fee clause.  It will cost me at least $3,000 in attorney fees to collect the six.  My client offers to pay me half of what is owed. 

Do you have the hypothetical in mind?  What would the rational economic man do?

The rational economic man would take the $3,000 because he cannot do better at trial.    

Did rational economic man appear at the mediation this morning?  Of course not.  Because he is a Unicorn!  He doesn't make decisions based upon numeric calculations or emotionless cost-benefit analyses -- which is why I knew  the parties would not accept my gap-closing political contribution suggestion (whew!)

Why Rational Economic Man is a Unicorn

In a social-economic experiment known as the Ultimatum Game, many researchers have found that when one party offered less than half the money subject of the game, "the other player often rejected it, even though by doing so he end[ed] up with nothing."  Id.  Dugatkin describes the results of one research project involving this Ultimatum Game as follows: 

 Alan Sanfey, Ph.D., and his colleagues at Princeton University examined the Ultimatum Game with 19 subjects in the role of responder and . . . observe[d] their brain activity. They found that when unfair offers (deļ¬ned as those of less than half the resource) were made, responders often rejected them. As they did so, the area of their brains associated with negative emotional states (in this case, the bilateral anterior insula), rather than those associated with complex cognition (in this case, the dorsolateral prefrontal cortex) were most active. The more the offer deviated from fair, the more active was the bilateral anterior insula when such an offer was rejected. Anger at being treated unfairly by other players appeared to override rational economic reasoning. In the minority of cases when the offer was accepted, the dorsolateral prefrontal cortex was most active.

 We, like the capuchin monkeys mentioned yesterday, will deprive ourselves of thousands, tens of thousands, even millions of dollars if we believe the compensation being offered is so little related to our value or our loss that it seems unfair.  We will not pay money at the point of a gun nor accept money offered to us by villains or cheapskates

Mediation, Money and Justice

In today's semi-hypothetical mediation, the $3,000 offered felt too unfair to the plaintiff and the hypothetical $6,000 demanded felt too unjust to the defendant for the parties to reach a rational economic deal.  The parties' potential to achieve settlement was also seriously undermined by the degree of anger they expressed toward one another and the way in which they had villified one another - "rich deadbeat" on one side and "dishonest fiduciary" on the other.

I am neither magician nor miracle worker.  Nor am I in the social work or therapy business.  I do, however, know that when parties to a lawsuit are hopping mad and believe that the opposition behaved immorally, money is unlikely to change hands. 

In an effort to defuse the anger and de-demonize the parties, I held two joint sessions -- one that was not coached and one that was.  Then I separated the parties for the purpose of conducting a distributive bargaining session (she offered x; he counters with y, etc.)

In both the joint session and in the separate caucuses, I strove to humanize the parties for one another; attempted to reframe their behavior in a less villianous light; and, assisted them in conducting as rational a cost-benefit analysis as possible.  I also helped the parties reality test their beliefs about the likely outcome at trial and to evaluate the likelihood that the strength of their feelings today would translate into a hearty appetite for further, higher-stakes litigation two years down the line.  

No dice.

So What Can You Do?

I would love to deliver a stirring tale of a heroic mediator helping parties settle their dispute in the early stages before the threatened action and cross-actions were even filed.  But I can't.  This is more art than science and compared to my 25 years of experience as a litigator, I'm still a little green as a mediator after four years of full-time neutral practice.      

Let me just say this.  Mediating settlements in the early stages works more often than it fails, particularly if you do one or more of the following:

  • hire a mediator who can rock and roll with the process rather than one who is a one-trick pony -- head-banger, or evaluator, or prophet of doom; peacemaker, or rabble-rouser or King of the Distributive Bargain -- your mediator should be able to play all or any of these roles as the situation demands;
  • if you're angry and if you have villified opposing counsel or the opposition party, take a deep breath, sit down at your computer and write down the best, the mid- and the worst-case scenarios (I know you've done it already; but take a fresh look again right before the settlement conference)
  • share these evaluations with your client
  • if a trustworthy mediator with whom you've worked before suggests that it would be useful in joint session for your client to express his irritation, disappointment, anger or any other feeling that might interfere with his ability to make a rational decision, don't reject it out of hand 
  • help your client de-demonize the opposition, reminding him that the "other side" is human and therefore fallible and is rarely downright evil
  • remind your client that many disputes that seem to arise from malicious conduct actually stem from faulty communication
  • know your bottom line and stick to it unless you genuinely learn something that makes you see the entire dispute in a different light, remembering that "a foolish consistency is the hobgoblin of little minds" 
  • despite everything I've now said about litigants behaving irrationally, as I've written elsewhere in greater detail, Harvard negotiation gurus Deepak Malhotra and Max H. Bazerman suggest that negotiators too often confuse hidden interests and constraints with irrationality.  The mistakes and solutions when this is the case?  
    • Mistake No. 1: They are Not Irrational; They Have Hidden Interests -- find out what they are and you may well be able to resolve the dispute and settle the litigation without putting any more money on the table or making any further concessions;
    • Mistake No. 2: They are Not Irrational; They Have Hidden Constraints -- keep one ear to the ground for hidden constraints, explore them with the mediator, opposing counsel or the opposing party; often those constraints can be problem-solved away;
    • Mistake No. 3: They are Not Irrational; They Are Uninformed -- listen and respond; respond and listen.  You will find that EACH of you is uninformed about something that will likely make a genuine difference in the manner in which the litigation is resolved.
  • If your opponent cannot or will not see reason, there's always the joy of just trying the darn thing.


**/  This thesis is based on the work of  Antonio Damasio as described by him in Descartes’ Error. 

Joint Sessions and Unicorn Settlements

Max Kennerly over at Litigation and Trial has graciously and profusely responded to our call for comments about the road-blocks to achieving optimal negotiated resolutions to litigated disputes.

Because Max and I are straining toward the same goal every litigant does when the burdens of a lawsuit begin to outweigh its anticipated benefits, I'm going to include my readers in the conversation.

Our Interests are Adverse, Not Mutual or Intertwined

Max suggests that the hypothetical "business school" negotiated resolution doesn't provide litigators with much guidance in resolving litigated disputes because the buyer-seller-mutual-or-intertwined-interest template cannot be comfortably laid over a conflict between parties whose interests are entirely adverse.  As Max explains:  

The parties to a lawsuit do not have intertwined interests: they have directly adverse interests. Unless there's some possibility of a future relationship, the defendant doesn't want to resolve the conflict: they want the plaintiff to drop their frivolous claim. In their mind, their best alternative to a negotiated agreement ("BATNA") is for the plaintiff to crawl in a hole and die.

Same with the plaintiff. Unlike buyers and sellers, who usually don't get much joy out of their 'conflict' as a conflict, the plaintiff usually prefers imposing a conflict on the defendant (who the plaintiff believes cast the first stone) in pursuit of justice, an imposition they will only relieve for at least "full"  compensation. 

The problem is that most parties don't consider their claims to be assets; the problem isn't that there's emotional baggage around the economic understanding, it's that the parties interpret their dispute as fundamentally non-economic. 

Before moving on to adverse/intertwined/mutual interests, I want to emphasize that what the parties "interpret . . . as fundamentally non-economic" is the key to the settlement of litigated disputes -- not a roadblock. 

Nor can the feelings that accompany litigation be called  "emotional baggage" unless we interpret the desire for justice as pathology. 

This hunger for justice is so fundamental to our social relationships that even  primate relatives like  capuchin monkeys will deprive themselves of food if they sense it is being distributed unfairly.  In capuchin monkey land, injustice appears to consist of being required to do five times more work to "earn" the same benefits as another.  

People seek out lawyers rather than therapists to resolve the emotional issues that accompany conflict -- because they believe themselves to be victims of  injustice and lawyers are in the justice business.  Our clients have not simply suffered an injury (tripped over their own feet) but have a wrong (stumbled over a trip wire placed in their path by a malicious or careless actor).  We can explain until we're blue in the face that money is the only remedy the law can provide.  Our clients will continue to seek justice and will not easily settle for money alone.  

"The Unicorn Settlement"

Max asks that I acquaint him with the Unicorn -- the state "where two hostile parties on the verge of a lawsuit get lawyers, almost file suit, and then, through deft representation, settle their differences peacefully and move on" Unicorns. Excluding business disputes where the parties have an existing and potentially mutually beneficial on-going relationship, this type of settlement, says Max, is a myth.  He explains:

I entered the law expecting The Unicorn to be rare but real; by this point, I have been trained by defense lawyers not to bother to check for it. I still usually do, throwing out what I think is a perfectly reasonable offer early on, which is routinely ignored or dismissed by a letter that gratuitously refers to my claims as baseless, frivolous, or made in bad faith.

So that's my biggest question to you: how do you suggest I get defendants, prior to the courthouse steps, to even enter the mindset that there's a valid claim and mediation / settlement should be considered? Reframed in words closer to your post: what can I do to (a) get the joint session to happen and (b) ensure everyone's in the right mindset?

The Conditions in Which Unicorns Flourish

When I started practice -- in 1980 -- I did so in a small community -- Sacramento -- where everyone was a "repeat player" with everyone else.  Perhaps more importantly, you could file a suit in year one and try it to a jury in year two.  Not only defense counsel, but insurance adjusters, knew which plaintiffs' attorneys would try cases and which would not.  They also knew which ones could persuade a jury to bring back a hefty award.    

Though I only handled personal injury litigation for my first two years of practice (after which I changed firms and moved on to commercial litigation) I saw dozens of "unicorns" in my first few months of practice.  As the junior-most attorney in a small P.I. practice, I settled hundreds of cases without ever filing a lawsuit -- on the telephone with insurance adjusters.  (A really, really good reason to leave PI practice, but that's another story). 

I settled these cases in the world of "three times specials" at a time when and in a place where everyone knew one another and used a common metric to evaluate potential liability and damages.  In that environment, Unicorns flourished.

Unicorn Hunting in the 21st Century

Max isn't asking me to shoot ducks in a barrell here.  He's asking me to deliver the holy grail of mediation -- how to convene an early settlement conference in which the parties (and their attorneys) are united in a desire to settle litigation without protracted discovery or pre-trial procedural wrangling.  

I hate to keep leaving my readers on the edge of a satisfactory resolution, but I DO have work to do and will return to this -- and Max's further observations -- soon, really soon.  Stay tuned.  And join the conversation by leaving your own comments here.

What's Prospect Theory Got To Do With It?

(photo from Wikimedia Commons -- an Example of What Does Make Us Happy -- Mastery, Accomplishment, Pride, Team Effort, and, yes, Winning (though winning is an emotional high that has a short half-life) 

Consider this a place marker to provide a plain English version of the Prospect Theory link I gave you yesterday.  While you're waing, here's a reminder of a fact we ofen cite here.

psychological research [concerning] happiness . . . . finds subjective measures of wellbeing are relatively stable over time, even in the face of large increases in wellbeing (Easterlin, 1974; Frank, 1997)

Negotiating Influence: How to Help Your Opponents Change Their Minds

I have alot more to say about this but for the moment am simply linking you to an article at Cognitive daily demonstrating the known fact that you are far more likely to persuade another if you are making eye contact with him.  

And still opposing parties resist sitting in the same room with one another when attempting to settle litigation!

There is a considerable body of research showing that eye contact is a key component of social interaction. Not only are people more aroused when they are looked at directly, but if you consistently look at the person you speak to, you will have much more social influence over that person than you would if you averted your gaze.

For full article, click here.

The IP Executive Summary of Blawg Review # 171

There's been some salacious commentary (such as WAC's Like a Vixen) about Blawg Review # 171.  I just want to say to anyone who missed the sexual revolution -- on either side of the generation gap -- we're sorry to have started it all.  We just never really left high school.

We've also heard some complaints that the most recent Blawg Review is just too darn long.  In honor of our sister blog and those attorneys who are still billing 2400 hours/year, we give you the IP Executive Summary of the Virgin Blawg Review #171 below. 

Isaac Newton.  The Straight Dope thinks the virginity of this octogenerian scientist and mathematician is less surprising that the fact that the math gene somehow keeps perpetuating itself.   We consecrate Newton's virginity to this week's best IP and IT posts.  William ("I am virginal") Patry is asking questions about the government's engagement in copyright infringement  but it is  Patry's final blog post that we celebrate as a true virginal moment.  Pause here.  

My late mother, aleha ha-shalom, told me repeatedly that I had a religious obligation to learn every day, and I have honored her memory by doing exactly that. Learning also involves changing how you think about things; it doesn't only mean reinforcing the existing views you already have. In this respect, Second Circuit Judge Pierre Leval once said that the best way to know you have a mind is to change it, and I have tried to live by that wisdom too. There are positions I have taken in the past I no longer hold, and some that I continue to hold. I have tried to be honest with myself: if you are not genuinely honest with yourself, you can't learn, and if you worry about what others think of you, you will be living their version of your life and not yours.

Other IP bloggers have, of course, reflected on Patry's Final Blog Words here and here

Back in the worldly word, Patently O -- which promiscuously shares itself with millions of readers every year -- turns its pen over to David McGowan who discusses why we should not interpret the recent Quanta decision too broadly Lou Michels suggests we be the masters of our own domains, using the the recent San Francisco IT fiasco as a cautionary tale -- don't let a single person have control of all the keys to your kingdom.


We've heard tell that reading your iPhone has replaced the cigarette for post-coital bliss, in which case you'll be glad to hear Brett Trout at BlawgIT suggest that you might soon be watching television from that device.  Protection, protection, protection.  In a software license, boilerplate integration and non-reliance terms might not insulate a firm from claims based upon its salesfolks "over"promises.  Elsewhere, at least one IP Blogger wonders whether blog content licensing might be dying for lack of buyers? (people pay for Blog content while I give it away for free?????)

The IP Dispute of the Week, of course, is Hasbro's suit against Rajat and Jayant Agarwalla for their Facebook hit Scrabulous.  Scrabble itself was invented during the Depression by Alfred Mosher Butts, an out-of-work architect.  How did he do it?  As the New York Times explained in its review of Steve Fastis book, Word Freak (Zo. Qi. Doh. Hoo. Qursh) Scrabble's inventor assumed that the game would work best if the game letters  "appear[ed] in the same frequency as in the language itself."  So he

counted letters in The New York Times, The New York Herald Tribune and The Saturday Evening Post to calculate letter frequencies for various word lengths. Playing the game with his wife, Nina, and experimenting as he went along, Butts carefully worked out the size of the playing grid (225 squares, or 15 by 15), the number of tiles (100), point values for the letters, the placement of double- and triple-score squares, the distribution of vowels and consonants, and so on.

In response to the Hasbro lawsuit Ron Coleman at Likelihood of Confusion asks "How Many Points is Infringement?" -- one of those rare legal questions that actually has an answer rather than 20 more questions.     

If Player 1 opens with "fringe" (double word) for 24 points; Player 2 follows by slapping an "i" on the triple word score followed by an "n" for "infringe" and 33 points; and, Player 1 responds with "ment" for 19 points, the combined score for "infringement" is 75 points. Our readers can do the math and moves on "trademark" and copyright." 

On the matter of greater moment --  Will the ax fall on Scrabulous -- Jonathan Zittrain at The Future of the Internet answers his own question in the affirmative based on the name alone, opining that by calling it "rainbows and buttercups” instead of “Scrabulous” there’d be little claim of brand confusion but noting the "residual claim that the Scrabulous game board infringes the copyright held in the Scrabble game board."  More on Scrabulous and its replacement with Word Scraper at the Video Game Law Blog here. (Mr. Thrifty's and my first game of Word Scraper here!) 

Has anyone recently said God bless the best IP aggregator in the universe -- the IP Think Tank's Global Week in Review?  This week IPTT points to the following posts on the Hasbro Scrabble debacle -- (Spicy IP), (Techdirt), (The Trademark Blog), (Out-Law), (Law360).  While we're talking IP aggregation, check out Patent Baristas' regular Friday IP Round-up.  All around aggregators include Anne Reed's (Deliberations) reading list and Kevin O'Keefe's LexMonitor.

Both Geoff Sharp and I picked up 8 impediments to settling patent cases on appeal (a desire for "justice" is not an impediment but a means to settlement).  While we're taking an ADR angle, Virtually Blind's post Second Life Lawsuit Avoided; Law is Cool's Love, Actionable; and,    Slashdot's recommend reading of the week (The Pragmatic CSO) are all well worth a look.  

Slashdot also reminds us that IP prevention is worth a pound of IP litigation with the post WB Took Pains to "Delay" Pirating of the Dark Knight as follows: 

"a new studio tactic [is] not to prevent piracy, but to delay it . . . Warner Bros. executives said [they] prevent[ed] camcorded copies of the reported $180-million [Dark Knight] film from reaching Internet file-sharing sites for about 38 hours. Although that doesn't sound like much progress, it was enough time to keep bootleg DVDs off the streets as the film racked up a record-breaking $158.4 million on opening weekend. .  . The success of an anti-piracy campaign is measured in the number of hours it buys before the digital dam breaks.'"

If you're sufficiently virginal to believe in magic, check out the Law and Magic Law Blog's announcement of the dismissal of a defamation lawsuit against Magic Mag as protected opinion while Ernie the Attorney has at least one more make to make your iPhone magic here.

Meanwhile, the Legal Talk Network gathers together bloggers and co-hosts, J. Craig Williams and Bob Ambrogi to welcome Attorney Kevin A. Thompson from the firm Davis McGrath LLC, and Lauren Gelman, Executive Director of Stanford Law School's Center for Internet and Society to discuss Viacom's suit against Google's YouTube for the violation of its copyrights in a $1 billion lawsuit.

Because I used to type patent applications for Uniroyal (IBM Selectric - 5 carbon copies) I get a sweet whiff of nostalgia from Wiki Patents -- like this one -- Flexible Row Redundancy System 7404113 -- a row redundancy system is provided for replacing faulty wordlines of a memory array having a plurality of banks. The row redundancy system includes a remote fuse bay storing at least one faulty address corresponding to a faulty wordline of the memory array . . . .  Another available data base for the engineering-attorney crowd is the subject of  Securing Innovations post IBM Technical Disclosures' Prior Art Data BaseConcurring Opinions covers IP in the News this weekPeter Zura's 271 Patent Blog considers a patent that was a "Colossal Waste of Time" and  IP Kat curls up with Small and Sole.  

Next week, the Blawg Review will be hosted by the Ohio Employer's Law Blog which we expect will be far more respectful of BR's readers' political, religious and sexual sensitivities than this one was.  Thanks for letting us play.  And a very, very, very good night!

Negotiating Revenge

Who negotiates revenge? 

Lawyers, of course. 

In the criminal law, the negotiation ends either in a plea bargain or the Best Alternative to it -- trial.

Most civil lawyers don't think about revenge much.  When settling a case, however, they should understand their clients' desire for vengence if they want to break past the psychological impasse to giving up the ultimate reward in a society based upon the law -- vindication of a party's  position and punishment of the opposition by way of a jury verdict.

Today, the New York Times -- in Calculating Economics of an Eye for an Eye by Patricia Cohen -- brings us a better way to understand the primal need for vengence which, it seems, is based not only on our "human nature" but also on our acculturation and personal experience. 

Even Dr. Melfi wants revenge in a world where the "justice system is %$^#'ed up."


The good news for countries clinging to the rule of law (as we are despite the recent assaults upon it) is as follows:

vengeful feelings are stronger in countries with low levels of income and education, a weak rule of law and those who recently experienced a war or are ethnically or linguistically fragmented. Anthropologists tend to believe that vengeful feelings were useful in binding a family or group together in early human society. They were protective devices before states were established and did the job of punishing wrongdoers.

Check out the full article here.  H/T to Marginal Revolution here.

Can You Say What You're Writing to Opposing Counsel Face-to-Face? Would you Want to?

Thanks to David R. Donoghue at the Chicago IP Litigation Blog for picking up my recent Daily Journal article on the Dangers of Email in Litigation and running with it in A Call for Face-to-Face Communication in Litigation.  As David comments:

It is no surprise that increased aggression in a naturally aggressive proceeding has negative consequences. For example, parties that often meet for the first time at a mediation or settlement conference arrive not trusting or respecting each other, making resolution much more difficult. Pynchon suggested a somewhat radical solution to the email problem -- live meetings with opposing counsel. She suggested that you routinely have live meetings with opposing counsel throughout the course of a litigation, including perhaps even doing some meetings over a meal. The face-to-face contact would generate the trust and respect needed to resolve issues that always arise during a litigation. I have always advocated live meetings with co-counsel in a multi-party litigation. Email communications (or even conference calls) tend to get out of hand and the parties tend not to pay enough attention to others' positions. I am going to expand that practice to opposing counsel.

One other thought, that I do not know if Pynchon will agree with. Those who still avoid email and continue using letters as a main communication means are not off the hook. I started practicing when letters, not emails, were how you communicated with opposing counsel. Those letters tended to be far more aggressive than the attorneys were in a live conversation. And I suspect people tended to read extra aggression into the letters they received. I do not know if aggression is stronger in emails than letters, but the same problem exists whether you hit send, hit print or use a pen to write to opposing counsel.

Looking for help with your communication skills?  Though directed at teachers, here is a list of Six Ways to Improve Non-Verbal Communication Skills that will assist lawyers and their clients in resolving conflict face-to-face. 


Don't Send that Email; Pass Me the Pliers!

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

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

 There are no one-man jets cruising the skies; no robots running my errands or cooking my dinner; no tele-transportation; and, on the political scene (it's not yet 9/11) no Big Brother

My personal 2001 "future" is mostly about my instantaneous access to information and "real time" communication via the "killer app" -- email -- telegraphic, spontaneous, unnuanced, and about to get me in a great deal of trouble.  (See Vanity Fair's must-read oral history of the internet here.)  

There's an associate back in Los Angeles, you see, the quality of whose work and the strength of whose dedication to the case at hand is in alarming decline.  More troubling, his work is deteriorating at the same time I'm taking old fashioned passenger jets from province to province to take the testimony of as many witnesses still living who know how 500+ toxic waste sites got that way in the first place.    

Did I say it's 3 a.m.?  The associate I'm thinking about failed to get me the outline I need for tomorrow's deposition on time -- or at all.  The "hard copies" that were supposed to be waiting for me when I arrived at the hotel have gone missing.  I'm tired.  I'm hungry.  I'm lonely.  And I'm angry. 

Worst of all, I'm composing an email to my  associate about my considerable disappointment in his recent performance.  There is a moment, a split second, in which my finger hovers over the "send" button while a rational voice in my head says "no."  Then I push "send."

Email Makes Settlement More Difficult  

More and more often when I'm meeting counsel on the morning of a mediation, they're also meeting one another for the first time.  In fact, they often have not even previously spoken to one another unless they've met in Court ("good morning, counsel") or in depositions (eyes averted; objections made).  Increasingly, by far the vast percentage of their communications have taken place via email.  

And that's a problem. 

Conflict Escalation

There's no question that litigation escalates whatever conflict existed when our client first walks in our door.  We don't, after all, make requests.  We issue demands.  We don't seek concessions.  We insist upon them.  We don't make inquiries.  We require responses.  And we're not such great listeners.  Rather, we impatiently tap our feet in Court, waiting for counsel to finish his argument (which we've heard dozens of times before) so we can press our case.

Are these bad things?  Not necessarily.  So long as we understand what we're doing and the likely results our conduct will have, escalation is not necessarily worse than maintaining a steady state or even deescalating conflict.  

The problem for most of us is that we don't know what we're doing and we don't understand the breadth and depth of the likely repercussions.  

In Conflict Escalation: Dispute Exacerbating Elements of E-Mail Communication, author Raymond A. Friedman of the Owen Graduate School of Management at Vanderbilt University quotes conflict specialists Rubin, Pruitt and Kim on the difficulties caused by escalation tactics and strategy.  According to Rubin, et al., escalation is 

"an increase in the intensity of a conflict as a whole.”  Escalation is important . . . because when conflict escalates it “is intensified in ways that are sometimes exceedingly difficult to undo.”  One reason why escalated conflicts are so hard to undo is that when more aggressive tactics are used by one side they are often mirrored by the other side, producing a vicious cycle.

Email, Friedman argues, unnecessarily, and often drastically, escalates conflict in ways none of us fully appreciate.  Unlike conversation -- in person or by telephone -- we are not

physically present with others, can’t see their faces or hear their voices, and can’t give or get immediate responses. The lack of contextual clues . . . impose high “understanding costs” on participants in e-mail interactions, making it harder to successfully ground the interaction. . . . /*  [T]the inability to carefully time actions and reactions . . . makes communication less precise.  

E-mail Not Only Lacks Social Clues, it is "Profoundly A-Social." 

Sitting in my Toronto hotel room at 3 a.m., reviewing online documents for tomorrow's deposition and now "penning" an email to my errant associate, I am, argues Friedman, not simply making communication more difficult, I have become "profoundly asocial" as my associate will also likely be when he reviews my email the following day.  "E-mails," writes Friedman,

are typically received and written while the writer is in isolation, staring at a computer screen – perhaps for hours at a time, so that awareness of the humanness of the counterpart may be diminished.

As evidence, Friedman cites research in which subjects played the "prisoner's dilemma" game against a computer.  Not only did the gamers act asocially in this context, "many continued to act asocially even when told that they were now playing with people (through the computer)."

E-mail, Friedman concludes, "often occurs in a context devoid of awareness of human sensibilities."

The Precise Difficulties Caused by E-Mail Communications?

Use of aggressive tactics. If e-mail communication encourages the use of more aggressive tactics during a dispute, or makes a counterpart’s tactics appear more aggressive, then escalation will be triggered.

Changes in view of other. Escalation is more likely if e-mail causes negative changes in psychological processes (e.g., perceptions and attitudes) towards the other, such as (1) seeing the other as unfair, (2) lessening empathy toward them, (3) increasing deindividuation and anonymity, or (4) or seeing the other as immoral.

Weakened interpersonal bonds. If e-mail weakens social bonds with the other, then escalation is more likely (e.g., due to reduced inhibitions for aggression).

Problems are difficult to resolve. If the communication limitations of e-mail (e.g., asynchrony deficits) make problems more difficult to solve, conflict may be escalated as frustrated disputants move from mild to more aggressive strategies to achieve their goals.

As a result, says Friedman, there are "higher rates of escalation when disputes are managed via e-mail than via face-to-face communication or other relatively rich media . . . such as telephone conversations." /**

Back in Los Angeles the Following Day

You knew this story was not going to have a happy ending.  What a cranky, tired, stressed partner types into her computer at 3 a.m. and what a fully awake associate reads with his morning coffee the following day are, as Friedman stresses, two quite different things.  And though I've rarely had a face-to-face disagreement with a colleague that cannot be mended by further communication, apologies, explanations and the like, this particular communication caused a rift that I was unable to heal.

This experience from several years ago, coupled with my recent mediation experiences, makes me want to advise, exhort, plead, beseech, entreat and pray that you commence every litigation with a telephone call rather than a "demand" letter or email.  And that you continue to communicate with opposing counsel by telephone or, even more radically, in person over a meal, throughout the litigation to make sure channels of communication are as open and clear as possible.

The difficulties saved will not only benefit your personal life (reduce stress, increase fellow-feeling and the like) but will benefit your client as well -- in case efficiencies and better settlements all around.     



*/  "Grounding" is the process 

by which two parties in an interaction achieve a shared sense of understanding about a communication and a shared sense of participation in the conversation. Grounding is important because “speech is evanescent...so Alan must try to speak only when he thinks Barbara is attending to, hearing, and trying to understand what he is saying, and she must guide him by giving evidence that she is doing just this."

** /  There's much more to be learned from this article, but these highlights should tell you whether further reading is in your interest or worth your time.  

The title?  The Firesign Theater here.

Negotiating with Alpha Centaurians

(right, our ancestor, built for fighting)

In How to bargain with aliens, Marginal Revolution asks its readers the following questions:

 Let's say you meet up with an alien race and you need to bargain with them by radio or some other method of signaling. You don't have any other information other than your knowledge of human beings. What traits should you think are overrepresented in humans, relative to what a rerun of evolution can be expected to produce in an intelligent being? Would you expect them to be more or less benevolent than humans?  Should it matter if they have demonstrated superior technology? Should such achievement make you think they are more or less cooperative toward "outsiders"?

I suspect that all of these questions are meant to lead to the conclusion that "people" from more advanced civiliations would naturally be more peaceful, less aggressive and more cooperative with one another than we are. 

Why?  Because scientific and technological advancement occurs more quickly and is less prone to error if researchers are collaborating with rather than trying to "scoop" one another..

And the traits that are "overrepresented" in human beings?  Aggression of course.  As reported last year in MSNBC's Technology and Science column:

Even though [our primate forbears the] ustralopiths walked upright on the ground, they retained short legs for 2 million years for the same reason squatness helped out other great apes—for male-male combat. With the advantage in combat, short-legged primates would likely be victorious and gain access to females. That meant passing their genetic traits, like shortness, to offspring.

Could intelligent human beings have evolved without aggression?  Certainly. 

Chimps vs. Bonobos.

Over at theIP ADR Blog, */ we quoted author Nicolas Wade's 2003 comparison between the aggressive, violent, male-dominated, territory defending style of the chimpanzees with the gentler ways of the bonobos as follows:

researchers Male[] and female[] [chimpanzees] do not associate in families but in separate hierarchies. Males make females defer to them, with violence whenever necessary, and every female is subordinate to every male.

A female chimp advertises her fertile period with a visible swelling and is then so pestered by males that she may get to eat only at night. . . .

Though bonobos are almost as aggressive as chimps, they have developed a potent reconciliation technique -- the use of sex on any and all occasions, between all ages and sexes, to abate tension and make nice.

Assuming the common ancestor of people and chimps had social behavior that was essentially chimplike, how much of that behavior has been inherited by people? The unusual behavioral suite of male kin bonding and lethal territorial aggression may look as if it has been inherited with little change. Among the Yanomamo, a South American tribe, the number of males who die from aggression is about 30 percent, the identical rate found among Gombe chimps.

Dr. Wrangham said the consistent pattern of aggression seen at all the chimp sites suggests that male chimps have ''a strong emotional disposition'' to be aroused by the sight of strange males, to form coalitions against enemies, to be sensitive to balances of power and to be attracted to hunting. The same disposition could have been inherited down the human lineage.

Turns out Freud was right.  Aggression is all about sex.  But it's also about tool-making (i.e., weaponry).  So we have evolved to be competitive and collaborative.  Tool making to ease our work-load and to kill our "enemies."  So far, our advances continue to outpace our many attempts to destroy ourselves.

What might have worked for the advancement of other civiliations?  If all possible worlds exist, as physicists claim, other worlds may well have developed life in some way other than evolutionarily.  Maybe by intelligent design!  There's simply no telling.  I would, however, speculate that a species taste for its members blood must be balanced by affiliative instincts and activities or its development would be cut short by species-cide.

The take-away for negotiators who are strangers in a strange land?

Learn how to communicate with the aliens.  Ask them questions concerning their needs, interests and desires.  Tell them about your own.  Put down your weapons and back slowly away.

Anyone who is as fascinated by these questions as I am, read this post from Such is Life about whether or not we'd "see" aliens if they arrived on our shores.  Answer?  Not likely.  


*/ And, no, the accompanying photo there is not from Judge Kosinzski's stash.

Decision Made - Let the Rationalizing Begin

Thanks to Slashdot for picking up an item from the Wall Street Journal -- Get Out of Your Way -- showing that we make up our minds 10 seconds before we let ourselves know it.

Experiments with the usual brood of university undergraduates (read about them here) revealed that

our best reasons for some choices we make are understood only by our cells. The findings lend credence to researchers who argue that many important decisions may be best made by going with our gut -- not by thinking about them too much.

Trial lawyers know this, right?  Anne Reed?  You there?

Mom always said I thought too much.  And Dutch researchers are proving her right (another one for you, mom!)

Dutch researchers . . . recently found that people struggling to make relatively complicated consumer choices -- which car to buy, apartment to rent or vacation to take -- appeared to make sounder decisions when they were distracted and unable to focus consciously on the problem.

Moreover, the more factors to be considered in a decision, the more likely the unconscious brain handled it all better, they reported in the peer-reviewed journal Science in 2006. "The idea that conscious deliberation before making a decision is always good is simply one of those illusions consciousness creates for us," Dr. Dijksterhuis said.

Here's another lesson I learned nearly thirty years ago in law school that the researchers are only now proving -- you just have to feed your brain the information and then, literally or figuratively go to sleep.  Start writing and you will write your way into the solution that your brain already knew.

(I also used this technique preparing the depositions of technical expert witnesses -- petrochemical engineers, statisticians and the like)

The Take Away for Negotiators?

Prepare.  Ask questions.  Have a firm bottom line (or, better yet, fool yourself into believing your bottom line is less or more than it already is). 

Then rock and roll! 

The more you negotiate (try it at your local retail store) the better your mind will become at improvising the moves necessary -- in the commpletely unpredictable present -- to get what your brain already knows you really want.

How Can We See Eye to Eye When Perception is 90% Memory?

According to writer and surgeon Atul Gawande's recent article The Itch, the way the pepper tree in my back yard appears from my bedroom window may be as much as ninety percent memory and only ten percent "data."   As Gawande writes: 

Given simply the transmissions along the optic nerve from the light entering the eye one would not be able to reconstruct the three-dimensionality, or the distance, or the detail of the bark -- attributes that we perceive instantly. 

In other words, perception is not merely reception.  "Objective reality" is just the brain's "best guess" about what the eyes observe, the ears hear and the fingers touch.

(image:  Phantom Limb #2 by Lynn Hershman

"The images in our mind," Gawande explains, "are extraordinarily rich."

We can tell if something is liquid or solid, heavy or light, dead or alive. But the information we work from is poor -- a distorted, two-dimensional transmission with entire spots missing. So the mind fills in most of the picture. You can get a sense of this from brain-anatomy studies. If visual sensations were primarily received rather than constructed by the brain, you'd expect that most of the fibres going to the brain's primary visual cortex would come from the retina. Instead, scientists have found that only twenty per cent do; eighty per cent come downward from regions of the brain governing functions like memory. Richard Gregory, a prominent British neuropsychologist, estimates that visual perception is more than ninety per cent memory and less than ten per cent sensory nerve signals.

Gawande doesn't explain how we manage to agree on anything with such impoverished perceptual abilities and richly imagined constructs of "objective reality."   I suspect that our insatiable urge to tell one another stories is the primary way we create the collective memories that allow us to agree upon such simple "facts" as "the apple is red and somewhat round," if not necessarily that "the blue Kia entered the intersection after the traffic light turned red."  

What strikes me about Gawande's article is not so much the pure science described there, but the way in which opposing parties in litigation resemble "phantom limbs" and joint sessions the mirrors used by physicians to treat the pain "felt" in them.       

Recent research demonstrates that amputees' phantom limb pain can be reduced or eliminated by "fooling" the brain into believing that the missing limb is "well."  When researchers asked amputees to put their surviving arm through a hole in the side of a box with a mirror inside and to then move "both" arms, 

[t]he patients had the sense that they had two arms again. Even though they knew it was an illusion, it provided immediate relief. People who for years had been unable to unclench their phantom fist suddenly felt their hand open; phantom arms in painfully contorted positions could relax. With daily use of the mirror box over weeks, patients sensed their phantom limbs actually shrink into their stumps and, in several instances, completely vanish. . . .

. . . here’s what the new theory suggests is going on: when your arm is amputated, nerve transmissions are shut off, and the brain’s best guess often seems to be that the arm is still there, but paralyzed, or clenched, or beginning to cramp up. Things can stay like this for years. The mirror box, however, provides the brain with new visual input—however illusory—suggesting motion in the absent arm. The brain has to incorporate the new information into its sensory map of what’s happening. Therefore, it guesses again, and the pain goes away.     

Litigation separates the parties from one another as radically as an amputation, often under circumstances where the law suit is all they have in common.  Like amputees, the parties cannot massage the missing muscle, scratch the irritating itch, or ease the frustrating pain.           

When physicians give their patients mirrors and instruct them to move their one remaining arm in concert with its physically re-imagined partner, they conduct a silent concert of healing.  With "new" information (hey! there's my other arm and it's not all cramped up!) the brain readjusts and stops sending false signals.  The muscle relaxes.  The itch is scratched.  The pain is relieved.  

Joint sessions can be used as mirrors to make missing disputants appear again./*  The mediator -- who is trained in this art -- creates an environment (the "box") in which the parties are able to adjust the mis-impressions and correct the mis-communications that make the conflict so difficult to resolve. After a brief period of discomfort and incoordination, the disputants begin to tell their stories of injustice in concert, spontaneously harmonizing the points on which there is little disagreement and resolving those parts of the tale where the greatest differences lie. 

Those parts of the story that have grown wildly distorted in the absence of any corrective influence, are shrunk back to their appropriate size.  Freed from the tyranny of their phantom "others,"  the parties begin to work collaboratively to solve the problem that they now understand is mutual.  

Though this is surely metaphor, the process is not just theory.  When parties consent to a joint session orchestrated by the mediator in collaboration with their attorneys, this type of reconciliation happens more often than not.  

Don't, however, confuse this joint session with those in which attorneys  give one another presentations proving their entitlement to victory as if there were a phantom "decider"  -- a missing arbitrator or judge -- somewhere behind a curtain.  These are the type of "joint sessions" that have given joint sessions a bad name because counsel well know their opponents' "positions"and the parties tend to become less rather than more amenable to settlement when their opponents' point of view is once again argued to them -- this time in quarters that are far too close for most lawyers, let alone their clients. 

We'll keep exploring this issue.  For now, more of the Gawande article below.  

A new scientific understanding of perception has emerged in the past few decades, and it has overturned classical, centuries-long beliefs about how our brains work—though it has apparently not penetrated the medical world yet. The old understanding of perception is what neuroscientists call “the naïve view,” and it is the view that most people, in or out of medicine, still have. We’re inclined to think that people normally perceive things in the world directly. We believe that the hardness of a rock, the coldness of an ice cube, the itchiness of a sweater are picked up by our nerve endings, transmitted through the spinal cord like a message through a wire, and decoded by the brain. . . .

[There are] some serious flaws in the direct-perception theory—in the notion that when we see, hear, or feel we are just taking in the sights, sounds, and textures of the world. For one thing, it cannot explain how we experience things that seem physically real but aren’t: sensations of itching that arise from nothing more than itchy thoughts; dreams that can seem indistinguishable from reality; phantom sensations that amputees have in their missing limbs. And, the more we examine the actual nerve transmissions we receive from the world outside, the more inadequate they seem.

Our assumption had been that the sensory data we receive from our eyes, ears, nose, fingers, and so on contain all the information that we need for perception, and that perception must work something like a radio. It’s hard to conceive that a Boston Symphony Orchestra concert is in a radio wave. But it is. So you might think that it’s the same with the signals we receive—that if you hooked up someone’s nerves to a monitor you could watch what the person is experiencing as if it were a television show.

Yet, as scientists set about analyzing the signals, they found them to be radically impoverished  . . .


*/   I don't know if any of this relates to mirror neurons, but I am certainly led to think about them.  See Stephanie West Allen's post Mirror Neurons, Some Resources here.  Whenever I see the word "mirror" I'm also always moved to think of my friend, the artist and mediator Dorit Cypis.  For more on her work, click here.

Why You Shouldn't Squeeze the Last Nickel Out of a Deal

The cost of a thing is the amount of life that you must exchange for it -- now or in the long run (Thoreau)

  • if you have an on-going relationship -- even as limited as a note payable -- squeezing the last nickel out of the deal may impair your bargaining partner's ability to perform 
  • what goes up, must come down, i.e., squeezing out the last nickel creates enemies who  none of us can afford when times are good, let alone when times are bad 
  • taking advantage of another's weaknesses tears at the social fabric
  • it makes us all more watchful and less productive
  • it doesn't actually feel good to line your pockets with the misery of others
  • sometimes the downtrodden rise up -- every couple of centuries or so, creating an entirely new order -- the generous man and woman will not be on the wrong side of that revolution
  • global warming -- think about it -- the order will change as will the countries who will be asking for favors
  • you reap what you sow (I'm pretty sure I learned this in Sunday School)
  • social relations do not exist "out there" -- they are co-created by one person's relationship with every other person -- the society you inhabit is the one you create -- if you don't want your neighbor taking your last dime, don't take his
  • collaborative effort results in greater progress than individual activity -- if you decrease trust, you impede advancement in business, the arts and science

Readers!  Can I count on you to give us all more reasons?

Alex Kozinski: the Prurient and the Personal

Here are a few S.A.T. questions for the legal community:  

  1. how is the relationship between adult sexuality and prurient sexual interest like that between a dispute and litigation?  
  2. Is our interest in Kozinski's sexual interests itself prurient, i.e., are we inordinately interested in Kozinski's presumed "inordinate[] interest in matters of sex." ?  
  3. And what type of interest is inordinate?

"Inordinancy" is not, I think, a matter of time but of focus.  One's sexual interests might be classfied as  prurient if they are stirred by a single act, item or physical characteristic and disregard the humanity of the object of one's desire.  In feminist terms, pornography objectifies people, elevating their parts above the sum of their parts and using them to satisfy our own -- but not their -- desires.          

And how is pornography like litigation, Ms. Pynchon?

I've said this on too many occasions already.  Litigation takes the texture, depth, dimensionality, and moral ambiguity out of disputes for the purpose of achieving what Justice Kozinski himself defines as justicethe application of the law to facts without regard to the outcome in a particular case.  Kozinski wrote concisely and movingly about this business of applying the law to the facts in his Slate Diary, published in 1996 and republished on on the occasion of his public de-pantsing.  

After more than 10 years as a judge of this [Ninth Circuit Court of Appeal] I find that the flow of cases begins to resemble a moving train, with each window revealing a still life of an individual human drama. The sheer volume of cases, and the fact that we rarely see the faces of the participants--just written words on paper and, sometimes, the arguments of lawyers--makes it difficult to remember that there are human beings somewhere looking to us with hope and yearning for a decision in their favor. The law, too, is quite complex. Cases often turn on legal technicalities that bear only a tangential relationship to concepts such as fairness and equity. Justice, we tell ourselves--and I do believe this--is done if the law is applied without regard to the outcome in a particular case.

The artifacts of litigation -- usually called "briefs" and sometimes sprung into life as depositions or trial testimony -- make a fetish of one or more aspects of a complex human drama.  Litigation sucks the people out of the play, requiring both litigants and attorneys to objectify and demonize one another.  By the time the "case" is ready to be "mediated" or "settled," the people with the problem often feel as if they long ago watched the litigation train leave with someone else's story in it -- that the "still-life" Kozinski observes at a glance through the moving window has little to do with the people and a lot to do with process.  

Are we interested in knowing one another?  Would a genuine interest in the man Kozinski be more satisfying, finally, than the briefly titillating party joke we might wish to make of him?  Do we privilege the prurient or the personal?

If you'd like to know the man Kozinski -- and he is well worth knowing -- read about his fear of flying here or the joy of suburban tomato farming hereTake a journey back to Kozsinki's ancestors' Polish village of Dzurov  to share the grim irony that a "scoundrel" grandfather inadvertently saved the Kozinski clan from the fate of their Jewish neighbors, all of whom now lie in a mass grave just outside of town.  Read Kozinski on writer's block and suicide.  

If you do this, you will no longer be capable of reducing Kozinski to a ribald joke or reveling in his public embarassment.  You will recognize the humanity in him, which is the necessary pre-requisite to recognizing and forgiving the fallible humanity in all of us.     

And litigation?  Here's my unsolicited advice:  Let your clients tell their stories to one another in a joint mediation session.  Neither you nor they will thereafter be capable of reducing the "opposition" to a single demonic character trait. 

I will say it again.  Litigation is not about money.  It is about justice. 

The defense balks at paying Plaintiff at the point of a gun.  The Plaintiff resists releasing the defendant from liability until satisfied that a wrong has been righted or never really existed in the first place.  

You can accomplish justice with money.  But you can accomplish it far more easily, and with far greater satisfaction for your clients, if you allow them to once again share the depth and dimensionality of their dispute with one another; harmonizing their mutual stories of injustice and betrayal.

In the meantime, I suggest we let Kozinski -- and ourselves -- off the hook by recognizing that the sum of the parts is greater -- and in the end far more interesting -- than the temporary public revelation of the smallest part of any man.

Other coverage of note:

Thanks to Anne Reed at Deliberations (this week's ABA Journal featured blog) for pointing us to the Volokh Conspiracy on how Kozinski's Web Site got "outed" in the first place.

If you follow the Volokh links, you'll eventually find Larry Lessig's Web for Dummies Explanation on Why We Shouldn't be Chortling over How Naive Kozinski Is and Why We Should Worry about Spreading This Type of Semi-Purloined Material Around. 

Cyberspace is weird and obscure to many people. So let's translate all this a bit: Imagine the Kozinski's have a den in their house. In the den is a bunch of stuff deposited by anyone in the family -- pictures, books, videos, whatever. And imagine the den has a window, with a lock. But imagine finally the lock is badly installed, so anyone with 30 seconds of jiggling could open the window, climb into the den, and see what the judge keeps in his house. Now imagine finally some disgruntled litigant jiggers the lock, climbs into the window, and starts going through the family's stuff. He finds some stuff that he knows the local puritans won't like. He takes it, and then starts shopping it around to newspapers and the like: "Hey look," he says, "look at the sort of stuff the judge keeps in his house." 

Read the rest of Lessig's great analysis here.


Kozinski's Ribald Sense of Humor from the WSJ Law Blog

Susan Estrich's 'take" in her post Good Humor, excerpt below:

If everyone who ever viewed or shared pornography were disqualified from judging the line between protected speech and criminal obscenity, we all would be in trouble. The problem facing Judge Kozinski illustrates what's wrong with the prosecution, not with the judge.

Concurring Opinion's post Judges Gone Wild with this observation dug out of a very lengthy post:

Which brings us to the broader point. Judge Kozinski's actions affect the reputation of the judiciary, on which rest foundations of the state, like public respect for the rule of law. To the extent that this public disclosure undermines public confidence in the judiciary or the rule of law, it's a very bad thing. There's a reason for the outrage that's expressed when the public hears about judges' bad behavior. As Stephen Gillers told the LAT, "The phrase 'sober as a judge' resonates with the American public."

The National Law Journal's compilation of Expert Opinion on the matter including legal ethics professor Ronald Rotunda's opinion that the material on Kosinzki's site was "demeaning, infantile, pornographic, [and] offensive," which just makes me want to see what type of internet porn the good Professor prefers.

KTLA video report here (from L.A. Times website)

Regulation of Obscenity Web Page with Pertinent Supreme Court Cases on the Issue 

Naked Brunch's article UN-BANNING BOOKS How the courts of the United States came to extend First Amendment guarantees to include pornography by Jack Hafferkamp

Negotiating Life's End: the Coming Crisis and Likelihood of Litigation

One of the reasons I began this series was to explore the type of professional behavior that tends to trigger professional malpractice litigation -- and how that litigation might be avoided.   

As you may recall, my first post cited a study finding that the top three reasons for filing litigation against a medical provider were:  

so that it would not happen to anyone else . . . 91%

I wanted an explanation . . . 91%

I wanted the doctors to realize what they’d done . . . 90%

In that same study, only 66% of respondents said they'd brought suit because they wanted money.   

Other studies have found that the failure to health care professionals to effectively communicate with patients and their families give rise to more litigation than negligence or bad results in treatment.  As reported in the March/April issue of Patient Safety and Quality Healthcare

ineffective communication with patients and families, rather than quality of care, was the underlying cause of patients' and families' decisions to file suit against their caregivers (Vincent et al., 1994; Hickson et al., 1992). Other researchers found that most patients would be less angry and less likely to sue if physicians honestly and compassionately disclosed medical errors that occurred, admitted responsibility, took steps to reduce the chances of repeat errors in the future, and offered sincere apologies for the suffering that may have resulted because of the bad outcomes (Gallagher et al., 2003). Similarly, research on apologies suggests that individuals receiving a full apology that both expresses sympathy and takes responsibility by the person who wronged them are more likely to accept settlement offers and negotiate towards a resolution rather than going to trial (Robbennolt, 2003). 

See Conflict Management From the Heart:  A Day in the Life of a Medical Ombuds/Mediator by Carole S. Houk, JD, LLM, and Leigh Ana Amerson, BA here.

In Why People Sue Hospitals and Health Care Professionals in Heatlh Industry Online we learn that 40% of respondents answered "yes" to the question whether anything could have been done to prevent litigation after an adverse medical incident.  Those pre-litigation interventions were reported as follows:  

Actions That Might Have Prevented Litigation

% of Respondents

Explanation and apology


Correction of Mistake


Pay compensation


Correct treatment at the time


Admission of negligence


If listened to


Disciplinary action




Investigation by hospital


Conflict Associated with End-of-Life Decisions

Someone once told me that a divorce is a hologram of the marriage -- that all of the marital dynamics that have never been resolved -- or even surfaced -- by the divorcing couple -- take shape and form in one way or another in the course of the divorce.  Not surprisingly, the "weapons" of marital dissolution are its most precious assets -- relationship and children -- and its most symbolic -- money. /*

So it is that historic family dynamics (rife with unresolved conflict) will more or less naturally play themselves out around the bed of a loved one who is -- or may  be -- dying.  

How much conflict is there?

One recent study found that conflict associated with decisions about life-sustaining treatment were rife with conflict between medical staff and the families of dying patients.  An abstract of an Conflict associated with decisions to limit life-sustaining treatment in intensive care units reported: 

MAIN RESULTS:  At least 1 health care provider in 78% of the cases described a situation coded as conflict. Conflict occurred between the staff and family members in 48% of the cases, among staff members in 48%, and among family members in 24%. In 63% of the cases, conflict arose over the decision about life-sustaining treatment itself. In 45% of the cases, conflict occurred over other tasks such as communication and pain control. Social issues caused conflict in 19% of the cases.

CONCLUSIONS: Conflict is more prevalent in the setting of intensive care decision making than has previously been demonstrated. While conflict over the treatment decision itself is most common, conflict over other issues, including social issues, is also significant. By identifying conflict and by recognizing that the treatment decision may not be the only conflict present, or even the main one, clinicians may address conflict more constructively.

It's Not About Money But it Will Become About Money if Conflict is Not Treated at the Source

I have much more to say about this but I need to get out to the Valley to see my dad who is -- amazingly (to me at any rate) -- surviving without food or water into Day Nine.

For now, I will simply remind my readers of the following:

Why the Coming Crisis and Likelihood of Litigation?

The parents' of the baby-boom are dying.  Extraordinarily high levels of conflict in health care settings are associated with dying.  Hospitals and health care professionals are not yet up to par in resolving conflict at its source.  In the absence of programs to assist the families of the dying negotiate their way through this traumatic experience, people will seek out attorneys; attorneys will, as the law does, monetize pain, suffering, and injustice. 

The research is in.  The solutions are available.

It's up to us.  


*/   Money is symbolic?  Yes it is.  As my longer article on the many meanings people give to money notes:

It is money’s nearly infinite plasticity that makes exchange of unlike things not only possible, but nearly effortless. Unlike barter, which famously requires a “double coincidence of wants,”  money creates a bridge to the future; permits trade at a distance; allows the exchange of durable objects for perishable goods; and, is capable of reducing nearly every human activity into a quantitative monetary value. 

Although contemporary money seems to have shed all of its qualities except its quantity,  “its oneness or fiveness or fiftyness,” we do not in fact use money as if it were fungible. We experience the value of a dollar earned differently from the way we experience one that is stolen or given to us as a gift and we spend it differently as well. 

See The Cost of a Thing is Your Life here

Negotiating Life's End: Part Three

(right:  Mom and Dad, late '40s)

Dr. X promptly sent me a social worker who was willing and able to answer all of my questions about my father's present condition; the common courses end-stage Parkinson's takes; and, the options available for his care -- aggressive treatment; tube feeding with hydration; palliative care; and, in-home hospice services.

I left the hospital that evening feeling not just better informed but comforted knowing there were people who were educated, trained, skilled, and talented at helping families make the type of decisions we were struggling to make with integrity and compassion.      

"This Man is Nowhere Near Death's Door"

I was awoken from a light and troubled sleep by a telephone call from my step-mother, who was now just as agitated with a physician as I had been the previous afternoon.  

She spoke with urgency. 

"That doctor you fought with," she said, "he sent a neurologist to your father's room at midnight.  Some woman I'd never met before.  I think I might have insulted her." 

"Good for you," I responded, thinking it progress for Juanita to question authority.    

"It's your doing," she said flatly. 

I was uncharacteristically silent.  I couldn't tell if she was expressing gratitude or blame.  

"It's because you yelled at Dr. X.  He wouldn't have sent that woman unless you'd done that."

I still couldn't tell.  It didn't really matter.  We were both doing the best we knew how. 

I asked for the story of the new neurologist as I slid out of bed to avoid waking my husband.  

Juanita was huffy.  "She examined your dad for an hour and then said his medication was completely wrong.  She prescribed him new medication and I don't know what right she has to do that."

"What did she say about his condition?"

I could hear Juanita take control of the conflicting emotions this doctor's diagnosis must have raised in her.        

"That doctor said, 'this man is nowhere near death's door.'"

The Parent Trap -- Hey, Hey, Hey

My parents' divorce in 1961 coincided with Walt Disney's upbeat movie about marital collapse and child custody -- The Parent Trap.  The brilliant Hayley Mills, squared into twins separated in infancy, divided like community property between the beautiful Maureen O'Hara and dashing Brian Keith upon their divorce, and re-united as teens to heroically reignite "their" parents' romance, was as far from my own experience as possible.  Children aren't capable, really, of processing this particular complex set of emotions:  relief that a violent father and physically fragile mother will no longer be scaring the wits out of their children; and, the aching loss a father leaves behind when he believes that divorce means removing from his life everyone associated with his marriage --  including his children.      

In other words, at nine years old, I didn't know whether to be happy or sad; guilty or justified, in response to my Dad's sudden departure.  But the idea of wilfully re-uniting this mismatched pair -- though perhaps some other child's Disney fantasy -- was not my own. 

Nearly forty years later when my father, in his first semi-psychotic episode, left and later divorced his second wife, his second set of children abandoned him.  

By the time my father lay in his hospital bed last week -- either "on the brink of" or "nowhere near" death -- the person with the absolute legal right to decide his fate was his wife of a mere five years duration.  And the only "child" with any interest in stepping forward to help make that decision was me.  

Next:  No Food, No Hydration

Negotiating Life's End

(left:  Dad, middle, after the dust bowl in Julian, California)

I am told that my father is dying.  This is not news.  Dad has a progressive disease that ordinarily results in death only after years of suffering. 

I'm telling you this story (which will be the subject of several posts) because it's been suggested to me that I lodge a complaint with the local community hospital dad was checked into last week.  Or that I sue the doctor who will play a large role in this story.  I'm thus reminded of the type of conflict that causes people to go to the considerable trouble of finding and hiring legal counsel.  The experience I am about to relate considerably deepens my empathy for those people.    

Before I tell this story, I caution my readers not to take the easy way out.  These feelings accompany every kind of conflict -- personal and commercial.   


Essential Familial Tremor

Most of us on Dad's side of the family have something called Essential Familial Tremor.  That means our hands shake for reasons the medical community doesn't understand. 

Because denial was and remains my family's primary response to ill health , I was not diagnosed with this condition until I graduated from law school even though I began to suffer its effects at age 14.  When your primary family dis-ease is denial, it's more than a little painfully ironic to have a shared medical condition that quite visibly signals fear.  But we survived the American dust bowl.  We do not complain.  And we do not seek medical treatment.  

EFT and Parkinson's

I digress to EFT and denial because the "benign symptom" of EFT -- shaking -- is the same as one of the early symptoms of the disease Dad is dying from.  Parkinson's

For as long as I can remember, Dad's hands shook though my my step-mother (welcome to the family!) vehemently denied it.  "He doesn't shake," she'd snap if we noted dad's inability to get liquid from one container into another without spilling a fair part of it onto the dining table.  

So I can't say when Dad began to show the earliest signs of Parkinson's disease.  I can, however, say when it became undeniable. 

"I Left Your Step-Mother," 

dad is saying into a telephone I've just learned is located on the night-stand next to his bed in a Las Vegas hotel.  "She's sleeping with the gardener," he insists without a trace of skepticism at the fantastic idea that his second wife -- a woman ten years his senior -- has fallen into trampy ways with the "help" at 85 years of age.  "I think my phone is tapped," he continues without interruption.  "I'm going to fly to Sacramento to see my sister Lucille."  

This is the point at which my family is generally willing to first seek medical treatment.  Unmitigated disaster.  

So I sought and was granted (against strenuous opposition, I might somewhat irritably add) a continuance of a trial date that was breathing hot down the back of my neck, boarded a plane for Sacramento and got dad to doctors, psychologists and neurologists. 

Parkinson's is treatable and the dementia abated for a sufficient amount of time to allow dad to pretty cogently divorce his second wife of 35 years and marry the woman who served as his court clerk when he'd been on the bench two decades earlier.

You can't make this stuff up.

This is where we're headingFeeding tube and Reasons patients sue their physicians. Read Part Two Here  /* 

So that it would not happen to anyone else                              


I wanted an explanation


I wanted the doctors to realize what they’d done


To get an admission of negligence


So that the doctor would know how I felt


My feelings were ignored


I wanted financial compensation


Because I was angry


So that the doctor did not get away with it


So that the doctor would be disciplined


Because it was the only way I could cope with my feelings


Because of the attitude of the staff afterwards


To get back at the doctor involved



*/  figures represent the percentage of people who agreed with the statement to the left.

Looking for More Cooperation? Expand the Group

Michael Tomasello, co-director of the Max Planck Institute for Evolutionary Antrhopology, authors "Idea Lab" in this morning's Sunday New York Times Magazine, asking How are Humans  Unique?

Absent our collaborative skills, Tomasello tells us, we're not even the smartest animals on the planet.  When comparing adult chimpanzees and orangutans to 2-year-old human children, Tomasello and his colleagues found that apes and toddlers performed equally well on every test other than those measuring social skills -- "social learning, communicating and reading the intentions of others."

We've always known that if you put a human infant on a desert island, he dies.  This does not distinguish us from other social animals who depend upon their family, clan, group or tribe for survival.

What's new is Tomasello's observation that we're the only social animal who shares for the sake of sharing.  "Human infants," he writes

gesture and talk in order to share information with others — they want to be helpful. They also share their emotions and attitudes freely — as when an infant points to a passing bird for its mother and squeals with glee. This unprompted sharing of information and attitudes can be seen as a forerunner of adult gossip, which ensures that members of a group can pool their knowledge and know who is or is not behaving cooperatively. The free sharing of information also creates the possibility of pedagogy — in which adults impart information by telling and showing, and children trust and use this information with confidence. Our nearest primate relatives do not teach and learn in this manner.

That's the good news.  Here's the bad.

[H]umans beings are not cooperating angels; they also put their heads together to do all kinds of heinous deeds. But such deeds are not usually done to those inside “the group.” Recent evolutionary models have demonstrated what politicians have long known: the best way to get people to collaborate and to think like a group is to identify an enemy and charge that “they” threaten “us.” The remarkable human capacity for cooperation thus seems to have evolved mainly for interactions within the group. Such group-mindedness is a major cause of strife and suffering in the world today.

This evolutionary biologist is not content, however, to simply describe primate (that's us) behavior.  He also hopes to improve it. 

Tomasello's elegant solution to a seeminly intractable problem?  

Find new ways to define the group.

Negotiating Justice in Community Mediation

Negotiated Resolutions in Community Mediation

Nearly every condominium complex harbors an outlaw -- the man, woman, couple or family who refuse to follow the rules.  The young couple who blasts the woofers off their stereo system at 3 a.m.  The elderly woman who doesn't clean up after her dog.  The raucous family that plays "Marco Polo" in the community pool after midnight.  

Offended and outraged, other homeowners make demands on their volunteer board who contact the (often unresponsive) management company.  The HOA board does its best.  It issues warnings to procure compliance.  To no avail.  Eventually, someone reads the CC&R's.  They learn that the Board has enforceable legal duties and the homeoweners actionable legal rights. 

Many of these disputes make their way to the Los Angeles County Bar Association's Dispute Resolution Center in West Hollywood.  And some of them make their way to me. 

Welcome to community mediation -- the non-zero sum, value-based, rights-seeking, joint session transformative dispute resolution process.  We're well trained and we're free.

But can we deliver justice?


Attorneys, the Law, Mediation and Justice 

Maybe it was just my G-g-g-generation, but I went to law school primarily because I was interested in the delivery of justice.  Although my primary involvement in the 20th Century 's civil rights movements was as a Vista volunteer at an activist women's center in San Diego in the early 1970's, I wasn't simply pursuing my own narrow self-interests when I applied to law school.   

As early as I can recall -- long before I'd conclude that 1950's and '60s women were oppressed -- I'd already developed a deep longing for the reconstruction of adult relationships along the lines of fairness.  This must be a typical childhood longing premised upon our predicament of being physically small and powerless.  An "unjust" world that rewards only power would not ensure our survival while a world in which everyone is valued and treated fairly would.     

Couple a child's sense of justice with televised images of "the law" aiming fire-hoses at peacefully demonstrating "Negroes" and you get a life-long commitment not simply to the "rule of law" but to the necessity for that "rule" to be premised upon justice.   

Are Negotiated and Mediated Resolutions Trumping Justice?   

These are just a few of the reasons it troubles me so when scholars suggest that mediated and negotiated resolutions to litigated disputes are unjust.  See yesterday's post here and the article that prompted it, Justice Trumps Peace (etc.) here.  If mediation is truly what its critics contend it to be -- a full-frontal assault upon the rights gained by marginalized citizens during the Civil Rights era -- I'm in serious moral trouble here. 

Consider this contention in Justice Trumps Peace

“ADR rhetoric” reinforce[s] a conservative challenge to “the law and reform discourse of the 1960s, a discourse concerned with justice and root causes, and with debates over right and wrong.” “The rights theme, consistent throughout earlier debates over legal resources,” was conspicuous by its absence in “the policy discussion on alternative dispute resolution.” . . . . 

Laura Nader . . . not[ed] that ADR’s “process of communication” ethos took necessary rough, ideological edges off claims, and fostered what she called “coercive harmony.” Nader argued that ADR was permeated with “conformist ideology,” which was employed to “suppress the realities of class, gender, and racial antagonism” endemic to American society, and as such, it comprised an “unreal law movement.” Nader contended that ADR’s emphasis on conciliation meant that critical considerations of “blame or rights” were “avoided and replaced by the rhetoric of compromise and relationship.” She concluded that “cultural notions of justice are factored out.” 

This tendency to screen-out unpleasant, divisive, but nonetheless vital social concerns supports Fiss’s characterization of ADR as a “sociologically impoverished universe,” in which critical issues of class, race and gender are subsumed to construct “a world composed exclusively of individuals.”

Can Justice be Negotiated?

Cheyney Ryan, a philosophy professor at the University of Oregon, contributed a short piece to the must-have Negotiator's Fieldbook entitled Rawls on Negotiating JusticeJohn Rawls, Ryan explains, is the seminal philosopher of justice in the 20th century.  "From the start," writes Ryan,

Rawls asked us to think of justice as  a matter of agreement.  He suggested that we think of the principles guiding a just society as the ones that individuals would agree to -- with the crucial proviso that they do not know where they themselves would end up in society, on the top or the bottom.  They would thus act from behind a "veil of ignorance . . . Given this constraint, no individual could tailor the principles of justice to his or her special talents or circumstances, which is why Rawls called this approach "justice as fairness."  Rawls suggested that the principles that would be agreed to would be ones that were deeply committed ot basic human rights and had a strong presumption in favor of economic equality.  Inequalities would only be tolerated if they most greatly benefited the least well off.

According to Ryan, Rawls concluded in his later writings that the reciprocity inherent in bargained-for resolutions and negotiation's search for mutual advantage were insufficient to ensure justice.  Rawls therefore shifted the basis of his theory from the search for rational resolutions to the implementation of reasonable ones.  "The question to ask of principles of justice," posited Rawls, was,

what were the most reasonable ones for people to agree to given the nature of our society and the nature of who we are?  Justice, thus reconceived, lost the harsh individualism that Rawls' earlier theory seemed to possess.  The stress on reasonableness meant that people taking others into account was an essential part of what justice was all about.  His theory also moved away from his earlier hyper-abstraction, insofar as we talk of what is "reasonable" invariably refers not to some hypotheitcal persons with hypotheical aims but to real people -- in this case, us, here and now.

Negotiating Justice in Community Mediation 

Condominium owners John and Betty Jones (not their real names) were being driven to distraction by their neighbors who arrived home at 2 a.m. only to commence what felt like a Pekinese rodeo in their upstairs apartment.  The indominable Kathryn Turk who convenes mediations for LACBA's Dispute Resolution Services in West Hollywood managed to procure the attendance of an HOA Board member with full authority to "settle" the case.  Unfortunately, the "outlaw" homeowner refused to attend.

John Jones had practically memorized the CC&R's governing the Board's duties and the homeowner's rights.  His wife repeatedly broke into tears as she described sleepless nights spent on the living room couch where the upstairs neighbor's early morning antics were the least disturbing.  The volunteer Board member was sympathetic but at a loss for solutions.  She'd contacted "management" and sent warnings to the miscreants, all to no avail. 

Only punitive measures would do at this point, said Jones. The CC&R's called for sanctions to be imposed on rule-breakers but lacked a means of implementation and enforcement.  The HOA representative indicated that she not only had the Board's authority to settle the matter, but to impose any necessary and reasonable rules to flesh out the CC&R's inadequate policies.

"We want monetary sanctions imposed," Jones was saying, "sanctions that can be made liens against the property just as HOA dues can be." 

"What about notice?"  I asked.  "And  a hearing?  There's nothing in the rules about the procedure for imposing sanctions."

"24 hours!" shouted John.  "If they don't comply, a $500 sanction to be made a lien against their property.  And another $500 for every day they continue to violate the noise restrictions contained in the CCR's."

Not knowing about Rawls' veil-of-ignorance-just-rule-making principle, I nevertheless wondered aloud whether Mr. and Mrs. Jones understood that the bylaws they were suggesting could be used by their scofflaw neighbors as easily as they could be pursued by the Jones.  



"What set of rules do you think would be fair?" I asked.

Two hours later, we had achieved what my Con Law professor would have called "procedural due process" -- a set of rules that would likely pass Constitutional muster that came from the parties -- not from the mediator.

Whether justice and fairness are, at some level, hard-wired into us (see Brain reacts to fairness as it does to money and chocolate) or culturally controlled, it seems that Rawls' conception of "justice and fairness" based upon reasonableness and enlightened self-interest might flow more or less naturally from a mediated dispute resolution forum where the parties, rather than the mediator, are in control.

Negotiating the Recession: We Can't Be Forever Blessed

The New York Times reports this morning that there were 243,353 foreclosure filings in April alone, nearly three times the total in the same month just two years ago," making it all but inevitable that  "many millions of American families will be losing their homes before long."

In The Scars of Losing a Home, Times writer Robert A. Shiller reports that following a brief moment of sympathy for such unfortunates, we will almost instinctively turn the full force of our judgment upon them.    

[I]nstead of having sympathy for these homeowners, many people blame them for their predicaments. That isn’t surprising. It’s an example of a general tendency that was documented by social psychologists decades ago.

In his 1980 book, “The Belief in a Just World: A Fundamental Delusion,” Melvin Lerner, a social psychologist, argued that people want to believe in the inherent justice of the economic system in which they live, and want to believe that people who appear to be suffering are in fact responsible for their own situations.

He provided empirical evidence, derived from experiments, that after an initial pang of sympathy, people tend to develop negative views toward others who are suffering. That negative tendency seems to be at work today.

Losing "Everything" -- How Bad is It?

When the Northridge earthquake threw me out of bed in the early morning hours of January 17, 1994, my financial life was sliding out of control.  By May, I'd be laid off from my job as an associate attorney in a prominent Los Angeles law firm and by July I'd be signing bankruptcy papers.  Foreclosure would follow.

More pertinent to the morning of the earthquake is the fact that neither my downstairs neighbor --the HOA's President -- nor many of the other owners in my 50-unit condominium complex were speaking to me.  Not only was I failing to pay my HOA dues in a timely fashion, I had the scent of failure about me. 

Neighbors in Los Angeles tend to come together only following natural disasters.  Fire, flood, earthquake, O.J.  These were the seasons of the year in which the the federal government erased my indebtedness; the bank foreclosed on my home; and, I was thrown up on consumerism's shores without any credit cards.   

On the morning of the earthquake, the shame associated with my financial distress kept  me from joining my neighbors on the sidewalk as aftershocks continued to wrench the foundations of our building.  Instead, I opened the French doors to my small balcony, pulled the  pillow and blanket from my bed and laid down on the living room floor in order to take comfort from the small talk rising up from the street below.

By June, foreclosure papers would be posted on my front door and  I would be living in the "studio" apartment good friends created for me out of the chaos of a spacious but unused basement in their small Echo Park house.  As L.A. began the slow re-construction of its streets, apartment buildings and houses, as fallen chimneys were rebuilt and freeways restored, I too would begin a recovery of my own, not only materially, but spiritually as well.    

It's All right, It's All Right, We Can't Be Forever Blessed/ **

Another story in today's Times recounts the shame white collar workers experience in their hot-house communities when they are laid off from high paying jobs.  In The Language of Loss for the Jobless  we learn that failure leaves our friends speechless and ourselves ashamed.  "Victim-blaming," writes Hoffman, 

dates to Job’s mourners. “It helps people who are still employed to believe that people who have been laid off did something wrong,” Ms. Baber said. “If you can blame them, then you can feel protected. If it’s just random — ‘they moved customer service to Dallas’ — then nothing will protect you either, and that’s scary to people.” 

Though we may not know what to say, most of us know what to do.  As the wife of one laid off executive recounts -- “Friends have kept us alive. . . and given us clothes for our kids.  One friend just found a job for my husband.” 

  Material Losses and Spiritual Gains

Our culture suffers from the burden of success.  Not only does failure tend to cause us shame, many see the inevitable losses that necessarily punctuate even the most "successful" careers as moral failings.  And let's not be coy -- often bad decisions and poor judgment cause successes that are precariously balanced and relationships that are already strained to "suddenly" collapse.    

Because we tend only to share our stories of success and not our failures, we hardly know what to do when misfortune knocks on our door.  That's why today's Times "recession" stories made me want to share my own tale of loss.  Because we too often feel as if we can only share the "success" bits of our personal family narratives. 

Here's the good news for those facing bankruptcy and foreclosure:  if you are able to find a community of people who are also recovering from life's inevitable reverses, you will eventually find that success -- with its attendant pretense of imperviousness to disaster -- is actually more alienating than its opposite.  I consider myself more than lucky to have found such a community.  One that taught me how much more important it is for me to be of service to my fellows than to reach some perceived pinnacle of success.  One that taught me that it is better to be a worker among workers than it is to be "best in show"  One that taught me that my fortune lies in neighborliness and my wealth in the quality of my relationship with my fellows.  One that taught me, finally, that it is better to weather flood, fire, earthquake, riot, and recession in a community in which I am simply one of its fallible members than it is to huddle under a blanket holding onto my fragile self-esteem while yearning to join the company of my  neighbors on the street below.  

(see criticism of Shiller's commentary, in The Mess That Greenspan made here -- The Mess is another Forbes Business and Financial Network Blog that I've enjoyed reading)


**/  Taken from Paul Simon's American Tune

We come on the ship they call the Mayflower
We come on the ship that sailed the moon
We come in the age's most uncertain hour
and sing an American tune
But it's all right, it's all right
You can't be forever blessed
Still, tomorrow's going to be another working day
And I'm trying to get some rest
That's all I'm trying to get some rest 

Negotiating Competitive Arousal: When the Cost of "Winning" is Too High

Take a look at this summary of the article When Winning Is Everything by Deepak Malhotra, Gillian Ku, and J. Keith Murnighan, now available online here as well as in the May '08 Harvard Business Review.

Malhotra and colleagues suggest that an adrenaline-fueled emotional state [which they] call  competitive arousal, often leads to bad decisions.

Negotiating litigators may want to note that all of the conditions giving rise to "competitive arousal" are the day-to-day conditions in which litigation is conducted, i.e., intense rivalry, especially in the form of one-on-one competitions; time pressure . . . ; and being in the spotlight—that is, working in the presence of an audience.

Sound familiar?  Take a look at the consequences and the potential solutions below. 

Individually, these factors can seriously impair managerial decision making; together, their consequences can be dire, as evidenced by many high-profile business disasters. It's not possible to avoid destructive competitions and bidding wars completely.

But managers can help prevent competitive arousal by anticipating potentially harmful competitive dynamics and then restructuring the deal-making process. They can also stop irrational competitive behavior from escalating by addressing the causes of competitive arousal.

When rivalry is intense, for instance, managers can

  • limit the roles of those who feel it most
  • reduce time pressure by extending or eliminating arbitrary deadlines
  • deflect the spotlight by spreading the responsibility for critical competitive decisions among team members.

Decision makers will be most successful when they focus on winning contests in which they have a real advantage—and take a step back from those in which winning exacts too high a cost.

Negotiating Irrationality

Recently, I excerpted the expressed concerns of in-house counsel about ineffective mediators.   Among the complaints was some mediators' refusal to see or acknowledge the other side's "irrationality" As Where's the Magic from the U.K. online Mediator Magazine noted:

It can be frustrating where they [the mediator] can see the irrationality of the other party, how their claims and positions are unsubstantiated, and choose to ignore it,' says Frank Aghovia, legal adviser at Exel Plc. He continues, 'It's like saying, "I know he's talking out of his backside, but can you give him what he wants anyway." He concludes that 'steadfast neutrality is irritating and wastes time.'


Helping litigants and their attorneys reassess their case is one of the mediator's greatest challenges.  The mediator intervenes only after the parties' dispute has reached stalemate.  Each party to a stalemate has negative attitudes about his adversary that are maintained and prolonged by three psychological mechanisms: selective perception, self-fulfilling prophecy, and autistic hostility.

Selective perception:  people tend to select those perceptions that tend to confirm their existing attitudes, and ignore or discount information that would disconfirm their existing attitudes.

Self-fulfilling prophecies:  people with negative attitudes about their adversary engage in conduct that provokes the adversary's "expected" response, which confirms the party's original expectation, and a vicious cycle ensues.

Autistic hostility:  Parties in litigation have stopped talking with one another about their dispute, communicating only through their attorneys.  The social scientists would say that such people are "stuck in autistic hostility, that is, their hostility is perpetuated by their refusal to communicate."

(for a full discussion of these and other conflict dynamics see CR Info's Book Summary of Social Conflict: Escalation, Stalemate and Settlement by Dean G. Pruitt and Jeffrey Z. Rubin). 

When the parties are in this frame of mind -- particularly after years of highly contentious litigation -- they genuinely believe that the other side is either completely irrational or downright evil.

So how does the mediator reality test in this climate of anger and distrust while continuing to maintain his ability to work effectively with both parties.  

Peter Robinson, co-director of the prestigious Straus Institute of Conflict Resolution in Malibu, California, tackles this problem by way of a hypothetical.  He assumes that one side believes his adversary came here from another planet via UFO.  What should a mediator -- who needs to retain the trust and confidence of both sides -- do?  

Robinson answers his own rhetorical question in this fashion:

When talking to the UFO-guy, I am totally with him.  Listening, asking questions, trying to understand whether his delusion actually has some hidden meaning that might suggest a way to resolve the dispute without asking the other party to "buy in" to the UFO story.

After giving Mr. UFO an opportunity to have his say and to experience -- perhaps for the first time ever -- another human being's willingness to temporarily suspend his disbelief -- I begin to gently "reality test."  To do so, I do not have to doubt Mr. UFO's story.  I can suggest, however, that not everyone is as understanding as I am. 

"Have you told this story to many people?" I might ask.  "And what has their response been?"  Do you have any reason to believe that a judge or jury might be more likely to believe this narrative of events more than, say, your mother, sister, cousin, wife, best friend, etc. were?

Robinson's suggested action between the rock of understanding and the hard place of consensual reality is shrewd and effective.  It neatly avoids the problem recently raised by my friend and colleague Jeff Kichaven who has likened piling rationales atop one another for the purpose of changing another's mind to raising your voice for the purpose of communicating with a deaf man.   

Harvard Business School professors Deepak Malhotra and Max H. Bazerman address the irrationality problem in another fashion in their tremendously useful book Negotiation Genius. 

"Whenever our students or clients tell us about their 'irrational' or 'crazy' counterparts," they write, "we work with them to carefully consider whether the other side is truly irrational.  Almost always, the answer is no."

Malhotra and Bazerman list the mistakes that lead us to call our negotiating partners "nuts," "delusional" or "evil" as follows:

Mistake No. 1:  They are Not Delusional, They are Uninformed. 

If you can educate or inform your bargaining partner, say Malhotra and Bazerman

about their true interests, the consequences of their actions, the strength of your BATNA, and so on - there is a strong likelihood they will make better decisions . . . [I]f someone says "no" to an offer that you know is in her best interest, do not assume she is irrational.  Instead, work to ensure that she understands why the offer is in her best interest.  She may simply have misunderstood or ignored a crucial piece of information.

Mistake No. 2:  They are Not Irrational; They Have Hidden Constraints

In negotiation, a wide variety of possible constraints exist.  The other side may be constrained by advice from her lawyers, by the fear of setting a dangerous precedent, by promises she has made to other parties [this is a particularly common constraint in IP infringement actions] by time pressure and so on.  [D]iscover these constraints . . . and . . help other parties overcome them . . . rather than dismissing others as irrational.

Mistake No. 3:  They are Not Irrational; They Have Hidden Interests

[P]eople will sometimes reject your offer because they think it is unfair, because they don't like you [or are tired of feeling as if you don't like them] or for other reasons that have nothing to do with the obvious merits of your proposal.  These people are not irrational; they are simply fulfilling needs and interests that you may not fully appreciate.  .  .  [I]nvestigate:  "What might be motivating her to act this way?  What are all of her interests?"

But What if They Really Are Irrational

If your counterpart truly is irrational -- in other words, he is determined to work against what is in his best interest -- then your options will be fewer.  You can try to push through an agreement despite his irrationality, you can try to "go around him" by negotiating with someone else with authority who seems more willing to listen to reasons . . . or you may decide to pursue your BATNA because his irrationality has eliminated all hope of creating value.

I have a friend who is, literally,  a rocket scientist.  He says that there are no problems which cannot be solved -- only problems that we don't yet understand.  This is as true in negotiation as it is in rocket science.  In both cases, the wisest course is to assume you know nothing and begin asking the type of questions that would help learn something.


Negotiating Diversity: What's ADR Got to Do with It?

I'm asked this morning by an ADR colleague whether we can criticize diversity without sounding like racists.  The question itself is problematic because it not only assumes a racial divide, it places "us" on the "white" side of it. 

The question arose from a recent press release by local mediator Elizabeth Moreno -- Is Mediation Losing Its Effectiveness:  Lack of Diverse Mediators.  The release describes an ADR diversity initiative being pursued by Shell Oil.  Shell, noted Moreno, is  

 introducing supplier diversity to the ADR profession [by] extend[ing] business opportunities to certified minority and women ADR neutrals. These efforts, coined as "second tier," allow Shell to influence prime or majority ADR firms, with whom they do business, to also contract with minority and women owned ADR firms within the business community.

In the upcoming months Shell will be targeting  . . . ADR services to participate in second tier efforts. Shell astutely recognizes that by embracing the concept of inclusion, the company will rise to a higher level, reflecting its belief that it "will benefit from diversity through better relationships with customers, suppliers, partners, employees, government and other stakeholders, with positive impact on the bottom line."

I'm assuming that my questioner does not agree with the "affirmative action" aspect of this program.  Having debated the affirmative action issue since I began law school at U.C. Davis where the Supreme Court Bakke decision originated, I know well how divisive this issue can be.  But it is an important issue -- an issue critical to a nation not only "conceived in liberty" but "dedicated to the proposition that all men (sic) are created equal."

So Let's Take a Look at ADR and Diversity

I'll ask the academics over at the ADR Prof Blog to correct me if I'm wrong.  

I understand the academic criticism of mediation to be this:  in the immediate post-civil rights era while greater legal protections have been afforded to women and under-represented minorities, the "people" have been channeled into a system -- mediation -- that lacks the prejudice-flattening constraints of the rule of law.  More disturbing, say critics, is the fact that this "lawless" system is largely presided over by -- excuse me if this offends anyone -- OLD WHITE MEN.

I've learned more about racial bias talking to my liberal (white) "unprejudiced" friends this election season than I have since I participated in the "second wave" women's movement in the early nineteen seventies (remember consciousness raising?)  I do not judge them, nor myself, for our necessarily limited view which just happens to be that of the dominant culture.

I know we still have a serious racial divide because when I talk to my educated and liberal African American friends they say things that shock me. Things like -- the U.S. may have started the AIDS epidemic to rid the world of Africans. OK. I get it.  There's something about their experience of America that is so radically different from mine that I think their point of view is, frankly, just a little nuts.  This is what I do know -- I will never truly be able to see the world from their point of view.

That said, I do think we can criticize people for taking advantage of "diversity" issues to forward an agenda -- or their own personal advancement -- other than forwarding diversity itself. We can criticize those who would deepen the divide to profit from it.

I think Obama is modeling the correct response to racial divide, which is one of the reasons his candidacy impresses me so.  There haven't been many public figures willing to talk about the elephant in America's living room -- racism.  Nor has anyone on the national stage in my memory ever said "your dreams do not have to come at the expense of mine."

If I could write a sentence in a circle at this point, instead of linearly as the language requires me to do, I would do so.  Here is what I understood Obama's response to the question of the racial divide in America to be.

Acknowledge it Heal it Move on Heal it Move on Acknowledge it Move On Heal it Acknowledge it

There are no periods in this sentence because this activity needs to be constant and on-going.  Because we will always be stuck in our own point of view.  Because in-group and out-group prejudice will always be with us. And because the more visible markers there are for "otherness" in others, the more prey we are to the error of dividing the world into "us" and 'them."  

The answer?  Diversity.  Vigilance.  Education. 

Toward that end, here are some ADR Diversity resources

Commonality to Balance Diversity

Mediation:  the Great Equalizer?  A Critical Theory Analysis

Toward a More Perfect Union in an Age of Diversity: A Guide to Building Stronger Communities
through Public Dialogue

Center for Dispute Resolution, whose mission is to "to promote and provide education and comprehensive approaches to dispute resolution that constructively serve the needs of our culturally diverse society."   

ACCESS ADR:  A 2004 Diversity Initiative Launched With The Support Of The JAMS Foundation And The ABA

Striving for DIVERSITY in ADR & Why it Matters: An Interview with the Hon. Timothy K. Lewis, the Chairman of the AAA's Diversity Committee [who] speaks candidly about his interest in diversity in the decision making professions, and why allowing minorities and women an opportunity to participate is so vitally important.

The Diversity Task force of the International Institute for Conflict Prevention and Resolution ("CPR") whose mission it is to "adopt businessdriven initiatives to increase the ethnic, gender, and social diversity of mediators, arbitrators, and those involved in alternative dispute resolution, both within CPR institute and on a national scale."

Compilation of mediate dot com articles on diversity in mediation 


Slouching Towards Inclusion by Carol Miller Lieber & Jamala Rogers

Diversity Resistance

The Media Diversity Institute

The Biggest Lie in the Business: It's Only About Money

A friend and former legal partner was fond of saying that the biggest lie in the business was I don't take it personally. After four years of full-time mediation, I have another "Big Lie" to add – it’s only about money.

The social scientists who sutdy these things say that the way in which we respond to adversity "often reflects the fact that [our] prestige or status has been threatened more than the fact that [our] purchasing power has been diminished." Miller, Disrespect and the Experience of Injustice, Annual Review of Psychology (2002). In other words, the corporate C.E.O., like any other kid on the block, will retaliate when he feels he has been disrespected.

Conversely, research shows that business people are reluctant to recommend legal action if they believe that they and their company have been treated respectfully. Although this is particularly true of fiduciary and special relationships such as lawyer-client and business partnerships of all kinds, it also applies to arm's length business transactions.

Every commercial interaction, we are told, "represents a social exchange and every form of social behavior represents a resource." Id. People's satisfaction with the outcome of a commercial transaction therefore "depends highly, and often primarily, on their perception of the fairness of those outcomes." Id.

When we, as litigators and counsellors, actively listen to what our clients and our adversaries are saying about the rights and responsibilities of all participants in an ethical business community, we stand the best chance of engendering mutual trust and respect among the parties. In that atmosphere, the probability of becoming embroiled in litigation decreases precipitously. When the parties believe that their concerns are being heard and respected, losses that might otherwise become lawsuits, are far more likely to be addressed as the understandable consequence of the inevitable mistakes and miscommunications that attend all human enterprises.

As much as we'd like to believe that we don't take it personally or that it's only about money, the good news for all of us is that we do and it's not.

New Negotiation Resources: Preparation, Preparation; Preparation

I'll add these to my blog roll when I'm not rushing out the door.  For now, check out Jonathan Farrington's Blog post on Negotiation - Dealing with the Early Phases, a resource I have to thank the Business Growth Blog for, cited at the end of more excellent advice on Negotiating:  Thinking it through

Here's a teaser to get you to the Business Growth post:

Remember that classic scene in "Erin Brokovich" where the high powered, electric utility law team shows up in force to negotiate with the small town law firm? Ed Masry sees them coming in and gets all his staff to file into the board room so they have more "lawyers" on their side of the table… and overpowers the power brokers.

Would you like to have a system that helps you think on your feet like that?

Here is a list of 8 questions you can ask yourself when you suddenly realize that you have to prepare for a negotiation. Use these to generate quick preparation for any negotiation

For the list of 8, click here!

Thanks guys!  Great advice in both posts with more good negotiation resources at the end of the Business Growth Blog post.

Thinking Like a Mediator with TCL's The Human Factor

In the new issue of The Complete Lawyer, my fellow Human Factor columnists and I talk about what new tricks we had to learn and old skills we had to re-invent when we took the journey from legal to mediation practice.  I give you my section of the column below, encouraging you to link to the Human Factor here to read what my my good friends and colleagues Gini Nelson, Stephanie West Allen and Diane Levin have to say.

My first day of mediation training progressed in somewhat the same fashion as my first few weeks in Civil Procedure. I remember struggling with the theoretical bases of jurisdiction in Pennoyer v. Neff one day only to be told the following week that Pennoyer was no longer the law. “Why,” I remember thinking, “did we even bother with Pennoyer when this Buckeye case about an exploding boiler now seems to be the law? Or would it be replaced next week as well?”

Law school, which taught me to “think like a lawyer,” was the precise opposite of my new mediation studies. Now, it seemed, I was being trained to stop “thinking like a lawyer.” Still, mediation, like the law, was full of conflicting ideologies from which it appeared I was required to choose.

It was easy for me to be evaluative: I had 25 years of legal practice in my backpack. I learned Dr. Cialdini’s “Principles of Ethical Influence”—Reciprocation, Scarcity (the rule of the rare), Authority, Commitment, Empathy, and, Consensus. These power principles helped the mediator to “make the other side see reason” when called upon to do so.

But the evaluative style was not the only prescribed route to mediation mastery. There were many who favored facilitation. The facilitative mediator first creates an atmosphere of hope and safety before helping the parties locate areas of agreement and mutual benefit. Here, the mediator is a follower or helper on the path to resolution, like the protective figures who appear early in a hero’s journey to enlightenment.

You can’t immerse yourself in mediation for long before you hear the clamor of the transformative crowd. Facilitative mediators, say the transformative folks, too often present themselves as wizards who intrude upon the parties’ conflict with their own agenda—usually “resolution be damned, let’s settle this darn thing!” The transformative mediator lets the session wheel out of control if that is where it is eager to go. Conflict is not seen as a state to be avoided or suppressed. Like a loving mother following the course of her child’s flu, the transformative mediator provides the parties with encouragement, opportunities to rest, lots of fluids and a metaphoric place to lay their heads as the conflict runs its natural course.

When I first brought this tangle of methodologies to the few master mediators I know, they all made short work of it with the scalpel of experience. “You are the technique,” they instructed. “Just stay in the process. Don’t guess. Ask questions. Listen. Don’t give up before the miracle of mediation happens.”

Now, four years into a full-time ADR practice, I am still struggling to embrace the entire dispute—the business or people problem that found its way to an attorney because of the justice issues with which it was burdened. I often feel that I’m walking a razor’s edge. I will never stop “thinking like a lawyer.” Nor will I stop pursuing this new way of thinking—one that looks for the opportunity to finesse the legal impasse by using the problem itself as an opportunity to broker a deal.

Why mediation? For me, it’s simply a broader canvass on which to paint a new picture. How mediation? In baby steps, one after the other, in just the same way I learned to be a litigator and trial attorney. How can the Human Factor help with your own life and legal practice? Stick around. Miracles are common here. We think you’ll enjoy the ride.


There Are No Non-Relational Zero-Sum "Pure Money" Negotiations: Part I

Canadian Lawyer Michael Webster asks about Jay Welsh's comment (see videos) that "in a mediation the plaintiff has to settle for far less than they thought and the the defendant has to pay far more than they ever thought." 

"So," asks Webster, "this would be the lose/lose theory of mediation?"

I know when Michael's being sarcastic but decided to respond seriously by noting that Jay himself  used the phrase "lose-lose." 

I went on to say that the most valuable service I can often perform is to "break through confirmation and other biases/ ** that have interfered with case analysis and caused impasse."

Michael's reply was important:  

When the issues have been crystallized into legal ones so well, you are in a lose/lose situation. The manager's dilemma then becomes counsel's dilemma: how do I manage to convince my client to lose more than I ever predicted and still maintain my own credibility.

Though I'm a little tempted to be flip ("this is why they pay me the big bucks") Michael's question nails one of the most difficult issue attorneys must deal with in settlement negotiations.  It is certainly one of the most delicate tasks a mediator is called upon to perform.

First Let's Re-Visit Interest-Based vs. Distributive Settlement Negotiations, Asking Ourselves Whether There's Really Such a Thing as a "Pure" Money Case

My husband, with 35-years of complex commercial litigation practice under his belt is my attorney-mediator-communication weather-vane.  So I asked him over pancakes this morning, "Honey, do you think there's any such thing as a 'pure' money case?"

Two months ago, he would have said "yes," and given me that "you've changed too much" look.  I don't know why he said "no" this morning.  But here was the gist of his response.

"Every case involves someone's interests, whether it's the GC or a company executive, or even a 'little guy' down the management chain who made a decision that impacted the course of the dispute four or five years ago.  So of course there are innumerable non-monetary concerns that impact why the case is settled and when and for how much.  Then again, maybe I've just been living with you for too long."

So let me first say that there is no such thing as a non-interest based negotiation.  There are only negotiations in which we ignore the fact that party interests are at play.  

This is one of those nature/nurture mind/body duality questions.  Yes, it's "just" about money.  And yes, the money represents party interests.  It's nature and nurture, mind and body, budgetary constraints and party goals and relationships.

Here's another thing.  Although the disputing parties may never again be in relationship with one another, the people on each side of the conflict-fence are not only in daily contact, their well-being, livelihoods, self-respect, reputation, promotions, demotions, and salaries depend upon their on-going relationships with one another, which are all in play in every negotiation of every commercial dispute.

And one more thing.  Conflict cannot arise in the absence of a relationship.  Even though the disputing parties may never again be in relationship, they're sure the heck in relationship now.   And the relationship of the disputing parties from the moment conflict arises to the minute it settles has everything to do with its resolution.

There is no "zero-sum" game outside the realm of the virtual or the hypothetical.  There is no "rational" man.  People -- messy, conflicted, emotion- and interest-driven people -- are the necessary pre-requisite to conflict.  How we deal with apparent lose-lose conflicts, "manage" party expectations and deliver bad news in a way our clients can hear it in the next post.  Immediately hereafter.  


**/   "Confirmation bias" refers to our "unwitting selectivity in the acquisition and use of evidence" in ways that are "partial to existing beliefs, expectations, or a hypothesis in hand."  See Confirmation Bias: A Ubiquitous Phenomenon in Many Guises by Raymond S. Nickerson of Tufts University.

Negotiate with Your Head, Not Your Heart

Thanks to Anne Reed over at Deliberations for forwarding this April 22 Psychology NewsWire, It Pays to Know Your Opponent: Success in Negotiations Improved by Perspective-Taking, But Limited by Empathy.

It Pays refers to recent work done by Kellogg School of Management Professor Adam Galinsky, who has demonstrated (with colleagues William Maddux -- (INSEAD -- Debra Gilin -- St. Mary's U. --  and Judith White -- Dartmouth) that success in negotiations depends on focusing on the head and not the heart. In other words, it is better to take the perspective of negotiation opponents rather than to empathize with them. (You may remember Galinsky as the academic responsible for demonstrating that the person who makes the first offer will (nearly) always get the larger share of the delta between the two parties' "bottom lines."  See Making the First Offer here)

Now Galinksy and friends inform us that we are far more likely to reach a negotiated resolution to a conflict if we use our heads rather than our hearts.  As It Pays reports:  

Perspective-taking, according to the study published in the April 2008 issue of Psychological Science, a publication of the Association for Psychological Science, involves understanding and anticipating an opponent's interests, thoughts, and likely behaviors, whereas empathy focuses mostly on sympathy and compassion for another.

"Perspective takers are able to step outside the constraints of their own immediate, biased frames of reference," wrote the authors. "Empathy, however, leads individuals to violate norms of equity and equality and to provide preferential treatments."

The researchers performed a total of three studies designed to assess the relationship between successful negotiations and perspective-taking and empathy tendencies. In two of the studies, the participants negotiated the sale of a gas station where a deal based solely on price was impossible: the seller's asking price was higher than the buyer's limit. However, both parties' underlying interests were compatible, and so creative deals were possible. In the first study, those participants who scored highly on the perspective-taking portion of a personality inventory were more likely to successfully reach a deal. In contrast, higher scores on empathy led dyads to be less successful at reaching a creative deal.

Why Enlightened Self-Interest Trumps Sympathy

Just when you were about to stereotype "negotiated resolutions" as commie-pinko limp-wristed new age aquarian left-of-liberal kum-by-ya marshmellow toaster solutions to the problems of (excuse me fellas) real men -- along comes new research once again demonstrating that negotiation requires hard heads rather than soft hearts. 


Because our competitive natures ("I need my stuff to survive") will almost always trump our collaborative inclinations ("we need each other to survive").  If this weren't so, the world wouldn't be divided into its current "pie pieces" -- the first, second and third worlds for instance.  

More particularly, because distributive non-interest based bargaining is all about getting "our share" of a fixed pie while interest-based or integrative negotiations require the parties to:  (1) learn about and attempt to satisfy their bargaining partners' often non-apparent needs and desires; and, (2) to collaborate in an effort to find ways to satisfy those needs and desires in novel and creative ways, reaching an integrative agreement becomes much more likely than reaching a purely distributive one. 


Because the integrative deal will -- by its very nature -- serve more of both parties' interests than would its distributive counter-part.  

Perspective-Taking, Sympathy and Foreclosure

I don't know my neighbors well.  They have a small family with very young children and keep pretty much to themselves.  I understand from the local grapevine, however, that they're selling their house because one of them lost their job and they can't make the mortgage payments.   

If we lived in another country or if the neighborhood belonged to certain religious sects that make it their business to take care of their own, we might all come together to help the neighbors save their house.  But we don't.

We have and express a lot of sympathy when we discuss our neighbors' plight.  "Must be hard for the kids," we say, "and the parents have worked so hard to improve the property.  It would be a shame if they lost their equity."

Our sympathy, however, does not lead us to trump our self-interest (which includes simply "keeping to ourselves") in favor of the interests of the neighbors.

If, however, we learned that the neighbors were about to sell the house to a local fraternity, you can put easy money on the neighborhood mobilizing into action to find a solution.  And once the neighborhood starts looking for an affordable solution to a neighborhood problem, the chances that the interests of the distressed family and their (temporarily) better-off neighbors will intersect and that new resources will be brought to the table ("hey, George, I know a lawyer who specializes in these things" or a banker or a politician or a journalist for the L.A. Times) increase exponentially. 

Heck, instead of hiring lawyers to stop the sale to the fraternity, we might put together an emergency neighborhood loan-fund.   Or simply help find the unemployed neighbor a new job.  There are a lot of resources in my neighborhood.  And many good-hearted people.  But I'm afraid modern American folk-ways just don't allow for a neighborhood solution to one of its member's problems.  Until, that is, our own self-interests are threatened.

So it might seem counter-intuitive to say that mentally putting ourselves into another's shoes to ascertain their interests needs and desires (perspective-taking) is more likely to create a "deal" between people than simple sympathy. 

But we didn't survive as a species because we're particularly loving.  We survived as a species because its in our best interest -- our only interest -- to cooperate with one another. 

Or, quite simply, we die.

Which reminds me that it's Earth Day.  Make a contribution to the planet and our collective and individual survival as a species today by clicking on the image below!

The Role of Specialized Settlement Counsel by Jay McCauley

From AAA arbitrator and Judicate West mediator Jay McCauley's website:  The Role of Specialized Settlement Counsel

At bottom, virtually all litigation is a tool of negotiation. The numbers say it all: Ninety-five percent of all filed lawsuits in fact settle before trial, and upwards of ninety-nine percent perhaps should. Nonetheless, the specialized and challenging task of negotiation is normally left to the “trial lawyer” – a person whose training and orientation are focused on trial preparation, and whose efforts at negotiation are almost always secondary and often ineffectual.

The problem is not that trial lawyers don’t settle lawsuits; they almost always do. But when the mission of settlement is left to the trial lawyer, opportunities for early and optimal settlements are lost.

The solution for clients is not simply to engage trial lawyers who are sensitive to the task of negotiation and skilled in that art. Regardless of such lawyers’ negotiating skills, the reality is their task cannot be optimally accomplished while they are otherwise burdened with the "role” of being the trial lawyer.

The reason for this is basic: negotiation, by its nature, is driven by an inescapable tension – the tension between cooperation and competition. To display enough cooperation to promote early settlement, a trial lawyer almost inevitably must risk the client’s competitive position in the bargain. When a trial lawyer extends a proposed resolution to the adversary, the adversary will focus not only on the advantages of the proposal, but also on the firmness of the trial lawyers’ resolve. When a proposal is attractive enough to be tempting in itself, the fact that it is offered at all undermines the trial lawyer’s apparent resolve to fight, thereby tempting the adversary to do the wrong thing: defer or avoid serious settlement discussion.

Trial lawyers know this. And a vicious cycle therefore develops – to protect against the risk of appearing to lack resolve, they naturally tend to make their opening bids extreme. As a consequence, their adversary is characteristically left with nothing but two bad options: either to respond in kind (with an equally extreme and polarizing counter-offer) or not respond at all. Further negotiation is thereby sidetracked, while each party spends more time and treasure on “trial preparation” – i.e., extensive and expensive discovery exercises – to show further resolve and thereby bring the other side to its (apparently missing) senses.

Repeated experience tells us this vicious cycle is rampant in litigation. And an extensive body of literature from the fields of game theory and cognitive psychology tells us why: litigants are playing out the consequences of reactive devaluation – the dynamic wherein an otherwise attractive proposal becomes unattractive by virtue of its being presented by the adversary. See Lee Ross, “Reactive Devaluation in Negotiation and Conflict Resolution,” in Barriers to the Negotiated Resolution of Conflict (Kenneth Arrow et al, eds., 1995).

What, then, is the solution? Police departments bargaining for a confession from the suspect really do separate the “good cop” role from the “bad cop” role. Clients exposed to major lawsuits would do well to separate the roles as well – by engaging a specialized settlement counsel in addition to the needed trial lawyer, and commissioning the settlement counsel to bring his or her skills to bear on a single critical objective: early and optimal resolution of the dispute.

Who are settlement counsel? They are, by background, experienced trial lawyers capable quickly to become intimately familiar with the subject matter of the dispute at hand. They are also more than this: specialists in the methodology of risk-based claims valuation analysis and in the science and art of interest-based negotiation. Ideally, they are also experienced in the techniques of mediation advocacy, and familiar enough with the mediators in their community to advise and represent the client in achieving mediated resolutions in cases that warrant that treatment.

But they are not the trial lawyers for the case. By design, their mission is a short one. If they do not achieve a settlement quickly, they pass the baton to the trial lawyer, along with the full benefit of their early analysis. Their role is revealed to the adversary from the outset. It is because they are nothing more and nothing less than settlement counsel that they can afford to use some needed cooperative techniques to foster early resolution. No lack of resolve is conveyed by that effort. They can demand and measure a response in kind from the adversary, and exact a unique penalty if that response is not forthcoming: their own departure. The adversary knows from the outset that if, through recalcitrance, the mission of early settlement is not achieved, a new lawyer will appear – one who is single-mindedly focused on an entirely different mission: victory at trial.

Mediation Advocacy: the Self-Serving Bias

(top: we assimilate and organize data in our own favor:  click here for full size chart)

Despite our own beliefs that we've adequately analyzed the weaknesses in our own cases, we have all been told at one time or another that we are "buying our own bull%#@^."

Is there a remedy?

First the Social Science Research

According to Bargaining Impediments and Settlement Behavior, studies of self-serving bias on estimates of probable damage awards provide strong evidence that:

  • we assimilate information based on our existing biases (remember the OJ verdict);
  • even when told we're doing so, we continue to organize information in such a way that it supports our existing opinions;
  • the receipt of additional information, without more, will simply "confirm" existing biases; and,
  • to make a difference in the parties' views of the merits of their case, mediation practices must include techniques for de-biasing the parties.

The Research

Research subjects were given the identical "case" materials and randomly assigned roles as "Plaintiff" or "Defendant." The subjects were put into bargaining pairs and asked to: (1) estimate a "fair" award by a Court to the Plaintiff; and, (2) to attempt to settle the dispute.

The experimental results and their implications were reported as follows:

  • Plaintiffs' predictions of the [probable award] were, on average, $14,527 higher than defendants'.
  • Mean plaintiffs' fair settlement values were $17,709 higher than defendants'.
  • Not surprisingly, the settling parties' assessments of what a fair settlement would be and what a judge would likely award were closer together than were those who did not settle.
  • Among the 59 pairs who settled, the mean difference between the plaintiffs' and defendants' predictions of the judge's award was $9,050.
  • For the 21 pairs who did not settle, the average difference was $29,917.
  • The strong correlation between the magnitude of the bias in a bargaining pair and non- settlement supports the conclusion that the self-serving bias often prevents parties from settling disputes at the most advantageous time and for optimal mutual benefit.
  • Even when asked to tell the "other side's" story in an essay before predicting possible awards or when told about the existence of the bias, the subjects continued to evaluate the case according to their own material interests.
  • Only in one experimental setting where subjects were both informed of the bias and made to write an essay substantiating the other side's case was the effect of the bias mitigated.
  • That subjects were unable to rid themselves of the bias when informed of its existence demonstrates that it is not a deliberate strategy.

Other findings of the experiments point to biased assimilation of information as the likely psychological mechanism underlying the self-serving bias.

When subjects were presented with eight arguments favoring the side they had been assigned (plaintiff or defendant) and eight arguments favoring the other side and were asked to rate the importance of the arguments as perceived by a neutral third party, there was a strong tendency to view the arguments supporting one's own position as more convincing than those supporting the other side, suggesting that the bias operates by distorting one's interpretation of evidence.

This study suggests that litigants may not be seeking to maximize their own payoff, but are rather trying to obtain what they deem to be fair.  

Conclusions from the Experimental Data 

The application of the self-serving bias to bargaining behavior led the authors of the study to tentatively conclude that 

  • exchanges of information are not in themselves necessarily conducive to settlement, i.e., obtaining more discovery before the dispute is "ripe" for settlement may be neither cost-efficient nor an effective settlement strategy;
  • the importance of information exchanges to the settlement of a dispute can only be analyzed in terms of how that information may effect preexisting biases, which suggests that attorneys pay greater attention to their opposition's case theories when analyzing information obtained during discovery; and,
  • to act as an effective counter to the self-serving bias of both "sides," mediation practices should be, at least in part, directed at de-biasing parties rather than simply facilitating information exchange.

Mediation Advocacy: Priming Mediator and the Opposition with a Collaborative Brand

Can you marry a blog?  If so, we're ready to propose to Deliberations, which is packed with more good advocacy tips than we can incorporate into our negotiation blog advice.  

Today, Deliberation's Anne Reed brings us the following useful information in The Brand Name Brain.  

When we're exposed to a famous logo for even a microsecond, [researchers have] concluded [that] we act out the qualities we've learned to associate with that picture. . .

[R]esearchers [asked] subjects [to] watch[] a screen explaining what they were supposed to do -- but also on the screen, too fast for them to notice, corporate logos flashed momentarily. When subjects turned to the assigned task, which logo they'd seen made a difference:

Subjects who saw the Apple logo, symbol of creativity, thought of more possible unusual uses for a brick than did subjects who saw the IBM logo, symbol of corporate sameness.
Subjects who saw the Disney logo, which we associate with earnestly pure things like Mickey Mouse and Snow White, confessed to more bad behavior (like calling in sick) than did subjects who saw the E! network logo, which we associate with celebrity gossip, honest or not.

What it means in real trials

Can lawyers use this? I say yes, but maybe not in the way you think.

There are trial lawyers out there who can use priming to underscore ideas and themes in trial, while still keeping track of where their cross-examination outlines are and whether the client understands what's going on and who's doing the jury instruction argument and whether they brought enough matching socks. . . . 

For the rest, here's a message from priming research we can all use. Jurors make decisions without knowing why.

And here's what in means to mediation advocates

Attorneys' initial contacts with the mediator are more important than many realize. As are mediation briefs.  But not to persuade the mediator of the rectitude of your position.  To "prime" the mediator to be more part of your negotiation team than your adversary's.  Of course we're neutral.  But, like research subjects and jurors, we make decisions (and form alliances) without knowing why.

What are your mediator's interests?  To settle the case, of course.  But to do so in a way that makes all parties and all attorneys satisfied with the result and with the mediator's services.  So what subliminal messages do you want to send to the mediator before negotiations begin?

  • I'm reasonable, as is my negotiation strategy
  • I understand that there are weaknesses in my case, which I'll admit to you, Ms. Mediator, for the purpose of attempting to resolve this lawsuit
  • I'm collaborative
  • I'm bringing my client, who is prepared to re-engage in the conflict, understanding that defensiveness and self-righteousness are not attitudes calculated to achieve peace in the Middle East nor to settle commercial litigation.
  • I'm having trouble with my client (for a pre-mediation telephone conference only) and would like you to help me coach him/her/it on any of the following:
    • the merits of the case
    • the dangers of proceeding to trial
    • the unredeemably evil nature of the opposition
    • the art of haggling
    • the genuine interests -- needs, desires, fears, etc. -- underlying the client's negotiation position
  • I understand a little bit about my adversary's
    • style
    • motivations
    • position and would like to help you work with him/her/it effectively.
  • I'll be prepared to make the negotiation moves necessary to settle the matter without fruitless bargaining in the nano- or strato-spheres.
  • I recognize that a handshake, a conciliatory manner and the expression of genuine empathy by my client for the party on the other side can dramatically effect negotiations and have alerted my client to the benefits of setting aside rancor, suspicion and judgment for at least a few hours on the day of the mediation.
  • if anyone is going to take the larger share of any distributive bargaining delta, it ought to be me.

Guilt-Based Apologies as Used in 12-Step Programs

Once again, from my article Shame by Any Other Name (etc.) here:

Understanding the differences between guilt and shame make even ordinary attempts to apologize and mend relationships damaged by careless, selfish or unkind acts, easier to understand and manage.

Use as an example the revelation that a spouse has had an affair. The anger, even rage, of the betrayed partner in this scenario is both understandable and familiar to all of us. A typical shame-suffused unfaithful spouse would more readily respond with shame-based confessions of powerlessness and helplessness than a guilt-ridden partner ("I couldn't help myself; I'm bad through and through; I wouldn't have done it if I were able to stop myself, but I was helpless against my desire") or aggression ("if you weren't so involved with your work, if you weren't so cold and distant, if you satisfied my needs more often, I wouldn't have had to seek solace in the arms of another").

Not only are these shame-based confessions unlikely to lead to a change in the unfaithful spouse's behavior, they are almost certain to further anger the betrayed spouse who likely wishes, at a minimum, an acknowledgement of wrong-doing, accountability, sincere apology and a promise not to offend again.

A typical guilt-based confession would have an entirely different focus. The guilty party, knowing himself to be the "locus of control," is far more apt to hold himself accountable for wrongdoing once it has been discovered. Guilty expressions of remorse would include "I'm sorry; I know I could have behaved better but I chose to ignore my better judgment" or "I have felt you to be distant and cold and I do feel my needs are not being met, but I understand that is no excuse for this bad behavior."

An individual who feels in control of his actions is more likely to feel accountable for them, and therefore, more likely to accept responsibility for them, apologizing and atempting to make amends.

As I go on to note in recommending to restorative justice practitioners some of the practices of 12-step programs, the widely misunderstood custom of "making amends" has much to recommend it for "restoring" criminal offenders to their communities.

As the Big Book [of Alcoholics Anonymous] explains:  

[We must] launch ... out on a course of vigorous action, the first step of which is a personal housecleaning, which many of us had never attempted. Though our decision [to stop drinking] was a vital and crucial step, it could have little permanent effect unless at once followed by a strenuous effort to face, and to be rid of, the things in ourselves which had been blocking us. Our liquor was but a symptom . . . . Putting out of our minds the wrongs others hand done, we resolutely looked for our own mistakes. Where had we been selfish, dishonest, self-seeking and frightened? Though a situation had not been entirely our fault, we tried to disregard the other person involved entirely. Where were we to blame? The inventory was ours, not the other man's. When we saw our faults we listed them. We placed them before us in black and white.  

The moral accounting created by the recovering alcoholic "working" Step Four is not simply a record of "bad deeds" committed. It is a means to put one's actions in perspective and to enable the alcoholic to create a new moral order from the ashes of his life. By way of Step Four, the AA member can mitigate his harsh self-condemnation while nevertheless taking responsibility for his misdeeds.

Indeed, in making amends, the Big Book advises [12-step] members to be "sensible, tactful, considerate and humble without being servile or scraping."  Only after putting his faults down in "black and white," admitting his wrongs honestly and becoming willing to set matters straight, does the [recovering individual] begin to learn "tolerance, patience and good will toward all men." 

The [12-step] member does not acknowledge these "sins" alone nor store his "inventory" in a bottom drawer, continuing to hide his shame. Rather, Step Five makes quite explicit the need to admit these wrongs to another human being. This step is the first opportunity to be freed from one's shameful secrets and any continued resistance to group participation. 

By reading their inventory to sponsors who have "been there," members recognize they are fallible rather than evil. They come to understand that they can set right many, if not all, of the things they put wrong. 

This set of suggestions pertains to the soul-searching necessary to locate "one's own part in" conflicts, particularly those concerning harm caused by one person to another.  The actual making of amends -- successful apologies -- is another of the 12 steps in all manner of recovery programs.

[After] a [recovering] member [of a 12-step community] brings his . . . list [of persons he has harmed] to his sponsor . . . [they discuss and] agree upon the details of restitution. 

For those victims who are dead or untraceable, amends must be indirect. So-called living amends are required under these circumstances. Members vow to be generous where once they had been selfish, faithful where treacherous, honest where deceitful. They agree to practice "restraint of pen and tongue" lest they lash out too quickly or too harshly at those they love. 

For other wrongs, making amends is direct and simple, if not easy. Money is paid back, even if it takes years. If a crime was committed, after much contemplation and discussion with sponsors, friends and family, some members consider confession to the authorities and may serve jail or prison time as a result. 

Members do not stop there. Recognizing that God will not relieve them of human fallibility, a commitment is made in Step Ten to continue to take personal inventory and when wrong to promptly admit it. Members keep their own side of the street clean and try not to take a broom to anyone else's. They do not "take another person's inventory." 

Finally, members agree to "be of service" to others. "Being of service" is not only repeatedly stressed in [12-step communities] it is recognized as one of the most effective avenues to achieving lasting [recovery].  Many opportunities exist for members to serve others - from making the coffee or setting up chairs at a meeting, to becoming a sponsor one's self, assisting even newer members in working the steps.

Through these twelve steps, [12-step groups] achieve[] the moral education and esteem building necessary for a productive norm-abiding life in a community of mutual trust and respect.

For references used in this article, click here.


Apology: Shame, Guilt, Rupture and Repair

A friend of mine once told me that "the most successful learning dyad in the history of the world" is the mother-infant/child relationship.  Contemporary psychologists who have studied that relationship have discovered that toddlers whose caretakers help them "repair" the loving relationship that existed before the moment shame is elicited, learn guilt and apology instead of chronic shame and denial or withdrawal.  

The explanation below (from my article Shame by Any Other Name) is largely drawn from the work of two scholars --  ALLAN N. SCHORE, particularly his book AFFECT REGULATION AND THE ORIGIN OF THE SELF: THE NEUROBIOLOGY OF EMOTIONAL DEVELOPMENT (1994) and D.L. NATHANSON, particularly his book SHAME AND PRIDE: AFFECT, SEX AND THE BIRTH OF THE SELF (1992).

Distinguishing Guilt from Shame 

By age two, children develop the ability to empathize with the feelings of another and by age three to evaluate their own conduct against objective behavioral standards. As soon as we are able to experience shame and guilt, we instinctively attempt to regulate our emotional state by engaging in spontaneous acts of confession and reparation. . . . .

Shame . . . "acts as a powerful modulator of interpersonal relatedness and . . . ruptures the dynamic attachment bond between individuals."   When an individual has broken this bond, he wishes to recapture the relationship as it existed before it turned problematic.

Toddlers shamed by their mothers, for instance, naturally initiate appeals to repair the momentary break in the emotional bond resulting from the shame-inducing behavior. This process is called self-righting. It is natural and universal. The shamed toddler reflexively looks up at and reaches toward his mother. Even a preverbal child will spontaneously express this need to be held in an attempt to reaffirm both self and the ruptured relationship, to feel restored and secure.

A healthy and responsive mother accepts and assuages the child's painful feelings of shame, enabling the toddler to return to a normal emotional state, one in which love and trust are ascendant. If the caregiver is "sensitive, responsive, and emotionally approachable," especially if she uses soothing sounds, gaze and touch, mother and child are "psychobiologically reattuned," the "interpersonal bridge" is rebuilt, the "attachment bond" is reconnected, and the experience of shame is regulated to a tolerable emotional state.

This series of events between child and care-giver has been termed the "positive socialization of shame." It permits the infant to "develop an internal representation of himself as effective, of his interactions as reparable, and of his caregiver as reliable." . . . Importantly, when shame goes unacknowledged, "it is almost impossible to mend the bond." The natural resulting inclination to hide one's misdeeds "creates further shame, which creates a further sense of isolation."

Thus, while shame in the absence of a consistently repaired interpersonal bridge creates pathology, repair teaches emotional self-regulation, creates "secure attachments" and leads to the development of empathy and conscience.

Tomorrow, How to Make the Apology that is Most Likely to Result in Reconciliation 

Apology: the Guilt Ridden vs. the Shame Infused

(thanks to Beyond Intractability for the graphic)

We talk a lot about apology as a means of descalating conflict for the purpose of engaging in successfully mediated settlement conferences and non-mediated commercial negotiations alike. 

You can bargain with someone who is enraged at (or even merely irritable with) you, but your negotiation will be derailed over and over again as feelings interfere with business judgment. 

Although you can't have one without the other (judgment without emotion) some emotions are conducive to successful negotiations and some are corrosive. 

APOLOGY:  I'm writing a book and my blog-job is interfering with my deadline.  So I'm stealing my own material, for which I aplogize to myself and to any reader who has already read my published article on Restorative Justice -- Shame by Any Other Name Lessons for Restorative Justice from the Principles, Traditions and Practices of Alcoholics Anonymous (2005) 5 Pepp. Disp. Resol. L.J. 299 (2005). 

If you're interested in what shame and guilt have to do with moral development as a preclude to recognizing the difference between guilt-ridden and shame-infused apologies, read on.  (and yes Janis, I'm working on it!)


A. The Origins and Effects of Shame.

The word shame is derived from the Indo-European skem which means "to hide." Shame makes us want to hide - from ourselves, our God and our peers - making shame an existentially isolating state of mind. Feeling shame makes a person "dejection-based, passive, or helpless," causing the "ashamed person [to focus] more on devaluing or condemning his entire self" than upon his behavior. He sees himself "as fundamentally flawed, feels self-conscious about the visibility of his actions, fears scorn, and thus avoids or hides from others."

The shamed individual wants "to undo aspects of the self" whereas the guilt-ridden one wishes to undo aspects of his behavior. It is therefore not surprising that guilt tends to motivate restitution, confession, and apology, whereas shame tends to result in avoidance or anger.

The psycho-biology of the constellation of emotions we call "shame" is innate. It produces a sudden loss of muscle tone in the neck and upper body; increases skin temperature on the face, frequently resulting in a blush and causes a brief period of incoordination and apparent disorganization. No matter what behavior is in progress when shame affect is triggered, it will be made momentarily impossible. Shame interrupts, halts, takes over, inconveniences, trips up, makes incompetent anything that had previously been interesting or enjoyable. 

A state of cognitive shame follows this initial cluster of feelings. After the painful jolt of shame, we begin to search our "life scripts" for some way to integrate the shameful experience with our prior experiences, to make sense of the pain and disorientation caused by the sudden upset of a positive emotional state.

Because our earliest experiences of helplessness relate to our size, strength and intelligence, only anger and its explosive cousin, rage, allow us to prove to ourselves and others that we are powerful instead of weak, competent rather than stupid, large rather than small. Thus do many shame-suffused individuals respond to chronic shame in an attack mode, particularly those who feel "endangered" by the depths to which their self-esteem has been reduced. Such individuals experience shame as a threat to their physical well-being and lack the ability to trust and rely upon others.

Shame thus serves as a barrier to one's capacity to achieve empathy and develop conscience.

Distinguishing guilt from shame tomorrow.

Changing the Other Guy's Mind

Because I'm busy finishing a brief to change someone's mind and Greg May at the California Blog of Appeal is also engaged in making a living instead of answering my idle questions (what? they don't pay us to do this?) he sends along this link at Raymond Ward's blog the (new) legal writer which links to a site we'll all be wanting to visit 

ChangingMinds.org is a web site covering “all aspects of how we change what others think, believe, feel and do.” Go there and wander around a bit; you’ll probably learn something you didn’t know. (Hat tip: Visual Thesaurus.)

Prostitutes, Strippers and Forgiveness

Sex scandals.  Terrible?  Shocking?  Repugnant? 

How about forgiveable? 

As someone who has made the resolution of conflict a full-time job, I can tell you that forgiveness -- explicit or implicit -- is a critical factor in every successful settlement. 

But I tempted you to this post with sex scandals and do not wish to disappoint.

Today we're not talking about Spitzer (NY Times asks about likely continued vitality of his law license here) but a Florida  appellate judge (below from the St. Petersburg Times courtesy of How Appealing). 

A New York City stripper . . . . Christy Yamanaka says she had sex with 2nd District Court of Appeal Judge Thomas E. Stringer Sr. three times during their 15-year friendship.
She paid him rent in a home he once owned in Hawaii, and now lives in a New York City apartment leased under his name. She says the married father of five owes her hundreds of thousands of dollars that he helped hide from creditors. 

Looking for Forgiveness?  Try Women.  Then Remind the Men of their Trespasses.

Given these stark reminders of our universal need to forgive one another our human fallibility, it's a good week for Anne Reed over at Deliberations to be talking about forgiveness, healing and reconciliation. 

In her timely March 11 post Asking for Forgiveness, Anne introduces her readers to an article in the Journal of Personality and Social Psychology entitled "Not so Innocent: Does Seeing One's Own Capability for Wrongdoing Predict Forgiveness?"   Anne quotes the press release (since the article requires putting change in the vending machine) as follows:

Forgiveness can be a powerful means to healing, but it does not come naturally for both sexes. Men have a harder time forgiving than women do, according to Case Western Reserve University psychologist Julie Juola Exline. But that can change if men develop empathy toward an offender by seeing they may also be capable of similar actions. Then the gender gap closes, and men become less vengeful.

In seven forgiveness-related studies Exline conducted between 1998 through 2005 with more than 1,400 college students, gender differences between men and women consistently emerged. When asked to recall offenses they had committed personally, men became less vengeful toward people who had offended them. . . . .

The researchers found that people of both genders are more forgiving when they see themselves as capable of committing a similar action to the offender's; it tends to make the offense seem smaller. Seeing capability also increases empathic understanding of the offense and causes people to feel more similar to the offenders. Each of these factors, in turn, predicts more forgiving attitudes. "Offenses are easier to forgive to the extent that they seem small and understandable and when we see ourselves as similar or close to the offender," [Exline] said.

This study tends to answer the question -- why does she stand there with him at the press conference?

More importantly, it serves as a reminder that we need only consult our own experience to forgive that of others.  How many of us, after all, in evaluating the times we did not get caught . . . . shoplifting, being unfaithful, driving in an intoxicated state, lying on our taxes, being casually cruel to people we love . . . can only sigh and say "there but for the grace of god . . . . "

Negotiating a Culture Inimical to Emotional and Physical Abuse

I saw Athol Fugard's disturbing play Victory tonight at the Fountain Theatre (local L.A. Weekly Review here).  As the Weekly writes, "[w]here and how to direct one's rage is the drama's unanswerable, theological question."

I returned home to a reader comment on my Zimbardo post Avoiding Evil and Promoting Good,  directing my readers to the Situationist which recently posted a Zimbardo lecture:  Genocide to Abu Ghraib:  How Good People Turn Evil

As yesterday's post suggested, we are continually negotiating law and culture with one another, sometimes consciously and sometimes not.  The more we understand our own human frailtiies, the better chance we have of avoiding their enactment and the better opportunity all of us have to negotiate self-determination, independence and inter-dependence for all of us.

Should You Raise the Spectre of "CSI" Juror Bias at a Mediation?

Listen, if corporate entities believed they couldn't overcome juror bias, they would never try a case.  How to accomplish that feat is the difficult task of every great trial attorney who represents a corporate defendant.  

Despite the research cited below, I do not suggest that plaintiffs' attorneys, as a matter of mediation strategy, suggest to corporate defendants that they will lose at trial because of juror bias.  Why?  Because it more or less enrages people, including corporate representatives, to be told that they must pay more money than they believe a case is worth because the system is unjust.     

Remember, fairness in the distribution of resources is more important to people than the absolute amount of resources distributed

The report on juror bias -- particularly so-called CSI juror bias -- below.  

The good news is that the bad news comes from one of the best jury consulting firms in town -- Jury Impact.  What's so good about that?  Jury Impact doesn't simply report bias, its people understand bias and are prepared to combat it.  Without consultants like Jury Impact's Chris St. Hilaire, however, a corporation's best alternative to trial may well be a reasonable settlement that serves its commercial rather than its justice interests.  

The Jury Impact report below:

In a question we’ve asked in several surveys, approximately 62% of prospective jurors say they would ignore the law in order to hold a corporation financially responsible, if they thought the individual was sympathetic.

While this is a general bias, among . . . “CSI jurors”  [those who watch crime/medical drama TV shows] it’s consistently worse. Approximately 72% of the “CSI ju­rors” said they would ignore the law and hold a corpora­tion responsible.

Why is this? A Hollywood producer recently gave us a pretty succinct and convincing explanation: “Look at the plotlines in these shows. Is the corporation ever the good guy? The jurors are using confirmation bias to build the storyline they want to believe…the one they’re familiar with.”

Do It Yourself: The Most Effective, Personally Satisfying and Least Costly ADR

I'm in the middle of reading two books, both of which should be on every mediator's night table -- Final Exam, A Surgeon's Reflections on Mortality by Pauline W. Chen and Faith-Based Reconciliation:  A Moral Vision that Transforms People and Society by Canon Brian Cox.

Why should a commercial mediator read these books?  For the same reason your business clients should -- they address the most important technology for making business effective and efficient -- do it yourself dispute resolution.

Maximizing Profit by Negotiating Peace

As my dear friend attorney-mediator Richard Millen says, "people don't have legal problems; only lawyers have legal problems; people have people problems."

I've adopted Richard's mantra for commercial litigation -- businesses don't have legal problems; businesses have business problems and most of those business problems are people problems. 

Organizing teams of people into efficient working groups -- whether it be your Board of Directors; your research scientists; your associate attorneys; your sales staff; or, your physicians -- is the greatest challenge of every business -- making inventing the cure for cancer look like child's play. 

We are a fractious, competitive, grudge-bearing, insecure, angry, difficult bunch.  And yet everything we have ever accomplished by way of creating civilization and insuring our own survival as a species has resulted from our ability to communicate with one another for the purpose of engaging in a team effort. 

As the author of The Brain Rules, John Medina has written of the course of evolutionary human events,

Suppose you are not the biggest person on the block, but you have thousands of years to become one.  What do you do?  If you are an animal, the most straightforward approach is becoming physically bigger, like the alpha male in a dog pack, with selection favoring muscle and bone.  But there is another way to double your biomass.  It's not be creating a body but by creating an ally.  If you could establish cooperative agreements with some of your neighbors, you could double your power even if you did not personally double your strength.  You could dominate the world.  Trying to fight off a woolly mammoth?  Alone, and the fight might look like Bambi vs. Godzilla.  Two or three of you however, coordinating your  behaviors and establishing the concept of teamwork, and you present a formidable challenge:  You can figure out how to compel the mammoth to tumble over a cliff.  There is ample evidence that this is exactly what we did.

Did I say I'm also in the middle of reading The Brain Rules and you should be too?

So, here's the thing.  I'm starting a new category on the negotiation blog -- Do It Yourself Dispute Resolution.  The next several posts are going to talk about what we need to understand to do that, jettisoning our attorneys for most of the business and people problems that end up in court so that we can reserve the attorneys to plan a better, more profitable future instead of fighting over the unprofitable past.

And the litigators?  There will always be matters of principle; new law; new problems; and, new conflicts to resolve that require the process of an adversarial proceeding.  I'm just looking to notch up your legal work a bit -- make it more interesting, satisfying and people-problem free.

Ready?  Let's roll!

Geoff Sharp Returns with a Mediation Puzzler for the New Year

Welcome back from vacation Geoff!  We do miss your voice.

Readers -- here's Geoff's slightly edited vacation story coupled with a mediation puzzler

there we were - just after Christmas - on a main highway at the bottom of the South Island of New Zealand and crossing a one-way road/rail bridge. .  .  a one-way bridge on the main trunk road and the train goes over the top!

As we pulled up to the bridge I saw a number of cars in line . . . . 

I got out to investigate wishing I was a doctor. The cry rarely goes out for a mediator at roadside emergencies, although we probably see about as much blood on the floor as they do.

I eventually got to the head of the line of rubber-neckers half way over the bridge, only to observe two beefy looking high context campers facing each other off, both red from the sun and the conflict - one with his belly protruding under his dirty white singlet, the other in a terry towling hat known to be extinct since the seventies.

They were at a stand off. They had entered the bridge at the same time from opposite ends and neither was willing to select reverse gear. As onlookers enjoyed the sport, it was clear they were growing restless in the heat of the day.

What was to be done?

A couple of people were making half-hearted interventions to make both men see sense, but they were ineffectual.

I diagnosed the situation...nothing, nada, a blank - hey! I was on holiday.

Then, as I stood there, on that old creaking wooden bridge, I had my new year's eureka moment.


That was the problem. Both men had got themselves into a corner, neither knew a way to put themselves and their overloaded old cars into reverse without backing down.

I was a doctor after all!  But how to address this prickly barrier to resolution in the hot midday sun so far from a whiteboard?

So I hesitated - well they were big, fat and angry - and I was only one of those after my Christmas day.

Then I did what any reader of this blog would do... I acted in a decisive and professionally appropriate way.

And that's my question to you, my dear reader: What did I do to get the traffic moving?

Resolving Moral Conflicts

As you can imagine, I have a lot to say about the resolution of conflict -- and the negotiation of solutions -- where moral beliefs are implicated and non-negotiable.  Because I don't have time, I'm leaving you with the end of an excellent, must-read Sunday New York Times Magazine article by scholar Steven Pinker -- author of How the Mind Works -- entitled The Moral Instinct.

But in any conflict in which a meeting of the minds is not completely hopeless, a recognition that the other guy is acting from moral rather than venal reasons can be a first patch of common ground. One side can acknowledge the other’s concern for community or stability or fairness or dignity, even while arguing that some other value should trump it in that instance. With affirmative action, for example, the opponents can be seen as arguing from a sense of fairness, not racism, and the defenders can be seen as acting from a concern with community, not bureaucratic power. Liberals can ratify conservatives’ concern with families while noting that gay marriage is perfectly consistent with that concern.

The science of the moral sense also alerts us to ways in which our psychological makeup can get in the way of our arriving at the most defensible moral conclusions. The moral sense, we are learning, is as vulnerable to illusions as the other senses. It is apt to confuse morality per se with purity, status and conformity. It tends to reframe practical problems as moral crusades and thus see their solution in punitive aggression. It imposes taboos that make certain ideas indiscussible. And it has the nasty habit of always putting the self on the side of the angels.  .  .  . 

There are many [] issues for which we are too quick to hit the moralization button and look for villains rather than bug fixes. What should we do when a hospital patient is killed by a nurse who administers the wrong drug in a patient’s intravenous line? Should we make it easier to sue the hospital for damages? Or should we redesign the IV fittings so that it’s physically impossible to connect the wrong bottle to the line?

. . . . . . Our habit of moralizing problems, merging them with intuitions of purity and contamination, and resting content when we feel the right feelings, can get in the way of doing the right thing.

It's About Fairness, Dummy!

(right:  is the key to settlement really money?)

This is the dialogue I often have when attorneys (and some mediators!) suggest to me that the settlement of litigation is "only" about money.

V[ickie]:   "Why do people seek out your services?"

A[ttorney]:  "Because [i.e.,] they've been ripped off or injured or sued; someone used their intellectual property without permission, interfered with their business; lied to them about the scope of the software license; refused to pay their covered claims . . . . etc. etc. etc."

V:  "But why did they seek you out?  Why do people hire lawyers?  Why do people turn to the justice system?  

A:  "Because they want justice?"

V:  "Yes!  they are looking for fairness; not money."

Still, the skeptics fix me with a suspicious eye and say, "well let's just see about that."

Listen, all too often the people who monetize justice -- who translate what is unfair into a monetary sum -- are the very people who seek me out to help them depress their clients' unrealistic monetary expectations.  Part of my business is to re-translate money back into fairness.

So it is always with pleasure that I point my readers to that which confirms my existing world-view (a cognitive bias that I will not resist this morning).

Take a look at yesterday's L.A. Times article, "Why People Believe Weird Things about Money" by Michael Shermer, author of The Mind of the Market:  Compassionate Apes, Competitive Humans, and Lessons from Evolutionary Economics. 

The executive summary?  It's not about money -- it's about fairness.  Excerpt below:

Consider one more experimental example to prove the point: the ultimatum game. You are given $100 to split between yourself and your game partner. Whatever division of the money you propose, if your partner accepts it, you each get to keep your share. If, however, your partner rejects it, neither of you gets any money.

How much should you offer? Why not suggest a $90-$10 split? If your game partner is a rational, self-interested money-maximizer -- the very embodiment of Homo economicus -- he isn't going to turn down a free 10 bucks, is he? He is. Research shows that proposals that offer much less than a $70-$30 split are usually rejected.

Why? Because they aren't fair. Says who? Says the moral emotion of "reciprocal altruism," which evolved over the Paleolithic eons to demand fairness on the part of our potential exchange partners. "I'll scratch your back if you'll scratch mine" only works if I know you will respond with something approaching parity. The moral sense of fairness is hard-wired into our brains and is an emotion shared by most people and primates tested for it, including people from non-Western cultures and those living close to how our Paleolithic ancestors lived.

When it comes to money, as in most other aspects of life, reason and rationality are trumped by emotions and feelings.

Los Angeles Grand Jury Pursuing Cyber-Bully Suicide Case

We've covered cyber-bullying here before as well as organizational bullying at the IP ADR Blog here. 

As regular readers know, the new issue of the Complete Lawyer is dedicated to bullying by and of lawyers with my own confessional of a little workplace bullying here.

Today, L.A. Times Staff Writers Scott Glover and P.J. Huffstutter report that an L.A. Grand Jury has issued subpoenas in the cyber-bullying case that led to the suicide of a 13-year old girl.  As that article explains:  

A federal grand jury in Los Angeles has begun issuing subpoenas in the case of a Missouri teenager who hanged herself after being rejected by the person she thought was a 16-year-old boy she met on MySpace, sources told The Times.

The case set off a national furor when it was revealed that the "boyfriend" was really a neighbor who was the mother of one of the girl's former friends.

Local and federal authorities in Missouri . . . said they were unable to find a statute under which to pursue a criminal case.

Prosecutors in the U.S. attorney's office in Los Angeles, however, are exploring the possibility of charging Drew with defrauding the MySpace social networking website by allegedly creating the false account, according to the sources, who insisted on anonymity because they are not authorized to speak publicly about the case.

The sources said prosecutors are looking at federal wire fraud and cyber fraud statutes as they consider the case. Prosecutors believe they have jurisdiction because MySpace is headquartered in Beverly Hills, the sources said.

Click here for the remainder of the article.

The Conditions that Give Rise to Bullying

Among other things, bullying is a "contentious tactic" deployed to get someone else to do something you want them to do.  (see Conflict Map here

As a mediator, I can tell you that lawyers on both sides of litigation -- and their clients -- often report being "bullied" by the other side.  This is not surprising.  We're trained to use power to get what we want, not to seek and obtain cooperation.    

In this shocking case of cyber-bullying, the motive was not behaivor change but revenge.  The mother who posed as the cyber-boyfriend who first woo'ed and then brutally rejected the 13-year old suicide victim -- was allegedly "punishing" her own daughter's former friend for terminating that friendship.

So what is it about the internet that makes it such a fertile ground for bullying?  

The social scientists say that bullying -- the deliberate and repeated abuse of power – is most likely to occur in relatively stable social groups with a clear hierarchy and low supervision.


Because hierarchy – a system that ranks people one above the other -- makes low-status individuals visible and easy to get at. It also makes them less likely to receive protection by their peers.

Though the internet itself is not necessarily hierarchical -- those so often targeted on it are usually deeply enmeshed in hierarchical sub-cultures such as schools.  More importantly, social networking sites make low-status individuals such as children and teenagers visible and easy to get at.  Finally, the inteernet, due to its anonymity, makes those low-status individuals less likely to receive protection by their peers. 

Resources for Identifying and Combatting Bullying

For a good online resource for ways to combat "virtual" bullying, see Cyberbullying here.  See also the Anti-Bullying Alliance here ; Helping Kids Deal with Bullies here; the American Psychological Association Bullying Sheet; and, the Workplace Bullying Institute.

Do Good Looking People Negotiate Better Deals?

Both the Wall Street Journal Law Blog (Do Looks Matter in the Law?) and the ABA Journal (Good-Looking Lawyers Make More Money) are reporting -- the WSJ beside a photo of the none-too-beautiful but apparently universally "sexy" Matt Damon -- that good looking people -- even those in the legal profession -- make more money than their less comely peers

One of my favorite blogs, Deliberations, also covered this topic from the angle of jury persuasion in How to Be Better Looking here.

We've also covered this topic as thoroughly as we believe it deserves in the Power of Beauty here.

The executive summary?

Physical beauty creates a "halo effect" that leads us to believe that our better looking peers are smarter and more talented, generous and good-natured than the rest of us.  

The Lesson?

If we live life joyously and authentically, we will possess the qualities people automatically ascribe to the "beautiful" among us.  More imporatantly, we will have become beautiful by being the kind of person people imagine -- say -- Angelina Jolie or Matt Damon to be.

Negotiation, Communication and I.Q.

(image: Kpelle woman harvesting rice links to article on Liberian-Americans)

I was just talking about class and privilege over at the Professional Women's Network Blog the other day. Then, since ideas seems to come in pairs, our favorite social science writer Malcolm Gladwell wrote about culture and IQ in the New Yorkers -- a topic that's blown the top off  more than a few academic institutions in its time (see None of the Above:  What IQ Doesn't Tell You About Race).

You Say Potato, I Say Paring Knife

Before getting to the negotiation point, here's the meat of the Gladwell article.  In explaining why IQ scores predictably creep up every generation, Gladwell discusses the category of questions that show the biggest gains -- similarities.  

The big gains on the [IQ test] are largely in the category known as “similarities,” where you get questions such as “In what way are ‘dogs’ and ‘rabbits’ alike?” Today, we tend to give what, for the purposes of I.Q. tests, is the right answer: dogs and rabbits are both mammals. A nineteenth-century American would have said that “you use dogs to hunt rabbits.”

“If the everyday world is your cognitive home, it is not natural to detach abstractions and logic and the hypothetical from their concrete referents,” Flynn writes. Our great-grandparents may have been perfectly intelligent. But they would have done poorly on I.Q. tests because they did not participate in the twentieth century’s great cognitive revolution, in which we learned to sort experience according to a new set of abstract categories.

In Flynn’s phrase, we have now had to put on “scientific spectacles,” which enable us to make sense of the WISC questions about similarities. To say that Dutch I.Q. scores rose substantially between 1952 and 1982 was another way of saying that the Netherlands in 1982 was, in at least certain respects, much more cognitively demanding than the Netherlands in 1952. An I.Q., in other words, measures not so much how smart we are as how modern we are.

Cross-Culutral Pairings

How modern indeed!  Take a look at what happens when the IQ mavens go to "primitive" societies with a "similarity" test.

[When researchers gave] members of the Kpelle tribe, in Liberia [the IQ] similarities test, they took a basket of food, tools, containers, and clothing and asked the tribesmen to sort them into appropriate categories.

To the frustration of the researchers, the Kpelle chose functional pairings. They put a potato and a knife together because a knife is used to cut a potato. “A wise man could only do such-and-such,” they explained.

Finally, the researchers asked, “How would a fool do it?” The tribesmen immediately re-sorted the items into the “right” categories. It can be argued that taxonomical categories are a developmental improvement—that is, that the Kpelle would be more likely to advance, technologically and scientifically, if they started to see the world that way.

But to label them less intelligent than Westerners, on the basis of their performance on that test, is merely to state that they have different cognitive preferences and habits.

So, how does this help us negotiate?

First of all, the research Gladwell cites powerfully reminds us that everyone does not think in the same way we do.  The assumption that they do is likely responsible for our failure to ask diagnostic questions when to do so would dramatically improve our negotiation position (see Negotiating Past Impasse, noting that "only seven percent of negotiators seek information that would reveal the other parties' true goals and aspirations when it would be dramatically helpful to do so.")

Second, and more importantly, it reminds us that we don't really have any idea what our negotiation partner is thinking; what he's after; and, how we might satisfy one another's true needs and desires.  

So here's our negotiation tip of the week

Act like every one of your bargaining partners is a member of the Kpelle tribe, sorting the subject matter of the negotiation according to functionality instead of abstract categories.  Remind yourself that just as you're rating your opponent's intelligence as sub-par, he's already decided that only a fool would be categorizing the facts in the way you are.

With those stark differences in mind, what's a negotiator to do?

Ask questions. 

"What are your goals?  Why do think I'd be willing to enter into an agreement that appears to be so foolish to me?  What metric are you measuring your benefit by?  What metric do you imagine I'm applying to mine?"

These are the type of questions that take the struggle out of the negotiation -- that relieve you of the chore of overpowering your negotiating partner into accepting the "wisdom" of your offer. 

Don't miss the opportunity to ask that crazy Kpelle why he paired a potato with a knife and jump at the chance to explain why you set it down next to the yam.

Settle It Now Joins the Forbes.com Business and Finance Network

(Notting Hill Gate by Paolo Margari)

What is that advertisement at the top of Victoria Pynchon's Negotiation Law Blog?

It's the first of several ads to be delivered on this site by Forbes.com.

Why is she junking up her blog with advertising; does she need the $$$ that badly?  . 

It's true that I will earn some income (a few dollars a month?  a couple of hundred?  I have no idea). 

But I'm not in it for the ad revenue.  

Why then?

Believe it or not, this blog is not merely a marketing device.  It is also an attempt to spread the good news of collaborative problem solving and interest-based negotiation to whomever those skills might help in their business and personal lives.  

Learning interest-based negotiation and mediation skills radically changed the quality of my life, my work and my personal relationships.  I don't just want to share that, I'll go all the way to say I have a mission to share that. 

O.K., But What Does This Have to Do With Advertising from Forbes.com

I'm joining the Forbes.com Business and Financial Network to bring the Settle It Now Negotiation Blog to as many people as might find it useful, most particularly business people and attorneys.

Forbes.com's homepage has -- drum roll please -- 20 million visitors a month. 

I have 5,000-6,000 visitors a month. 

I'd like to have more.

I'm truly hoping that the Forbes.com network will provide a greater array of information and advice to my existing five to six thousand monthly visitors and that the addition of my blog to the network will get the central message of this blog to more people.

What is your blog's central message anyway?

Here it is.  

A community thrives on collaboration and reciprocity.  All communities -- local and global -- thrive on collaboration and reciprocity.  And individuals living in collaborative and reciprocal communities are happier and healthier than those who don't.

The rest is implementation.  And practice.

So, let's see how this Forbes.com community can further that goal. 

Hop on board!  The train is getting ready to leave the station. 

But don't worry about being left behind.  We're a local so you can jump on any time you're ready!! 

Avoiding Evil and Promoting Good: the Bully in the Workplace

As social psychologist Phillip G. Zimbardo proved in his Stanford University "student prison" experiment in the 1970's and Stanley Milgram proved in his "susceptibility to authority" experiments in the 1960's, we are not only all capable of bullying behavior, we are all capable of torture.

Zimbardo's students who were randomly divided into "guards" and "prisoners" eerily anticipated the horror of Abu Ghraib decades before the American military was pantsed by its own people and a few digital cameras. 

If you don't recall Zimbardo's study, shortly after being assigned their roles as "guards" or "prisoners" the "guards" began tormenting the "prisoners," the "prisoners" began to have mental break-downs, and Zimbardo, by his own accounting, become "a Prison Superintendent [who] began to talk, walk and act like a rigid institutional authority figure more concerned about the security of 'my prison' than the needs of the young men entrusted to my care as a psychological researcher."

In Zimbardo's article -- The Psychology of Power and Evil:  All Power to the Person?  To the Situation?  To the System? here, he describes those situations in which we are all prone to become bullies and those workplace practices that can prevent us from "going rogue."   

(above, a short documentary with original footage from the prison experiment)

Zimbardo's prescriptions for creating a culture of good rather than evil after the jump. 

Continue Reading

Mediator Diane Levin on the Mysterious Math of Adding and Dividing by Two

Friend Diane Levin of the Online Guide to Mediation writes:

I think the question you raise here, requires a cognitive psychologist to answer. Having said that, I've seen this phenomenon [of the negotiation ending half way between the first two offers] myself. I suspect it's because the notion of "splitting the difference" or "meet me halfway" is so deeply ingrained in us.

Perhaps on some level this result "feels fair" to parties -- not surprising when 
even envious monkeys can spot a bum deal.

When the "Fair" Result Doesn't Result

However, I don't think it's fair to assume that this applies in all cases. I don't believe it holds true in mediations between an attorney and his/her client on one side and an unrepresented party on the other, when you're more likely to get out-of-the-ballpark initial demands from the unrepresented party (the "it's what my third cousin who's going to law school said I could get" phenomenon), or when either or both parties are unprepared to negotiate and have no objective criteria on which to base their dollar demands. Then the end result is wildly different from what you've described. And those are the cases that can break your heart.

For example, consider a not-so-untypical employment discrimination case between an unrepresented complainant and an employer with their lawyers. The complainant's first demand is $900,000 -- about $896,000 shy of what would have been a reasonable starting demand. The counteroffer is $500. The complainant's next move is to $50,000. The counteroffer is $750. In the next exchange of numbers, the complainant moves to $35,000, followed by a counteroffer of $900, which astonishingly settles the case.

Mathematical formulae are all very well, but they don't take into account all the variables that can come into play at the table. I've long stopped trying to predict what clients will do -- I just strap on my seatbelt and get ready for the ride.

I'm curious to hear what the experts on human behavior have to say on this. And I'm very much looking forward to the next installment in this series, Vickie.

THANKS DIANE!!  You can see Diane's thoughts on all things mediation at the Online Guide to Mediation.


Outcome Satisfaction in Negotiation -- Good News for Year-End

(photo:  The Choices by Robert La Londe-Berg)

All things being equal -- or, more to the point -- most things being impossible to equalize -- your clients' satisfaction with the settlement you negotiate is going to depend upon something other than the absolute number attained. 

In fact, the social scientists who study these things have told us that people tend to be more satisfied with the outcome of negotiations in which the following occur:

  1. the other side makes numerous concessions (even if they are small or inconsequential);
  2. the outcome achieved is as good or better than similar outcomes obtained by colleagues or competitors (i.e., a 10% raise in salary tends to be viewed favorably if one's co-workers receive 7% raises and unfavorably if one's co-workers receive 12% raises);
  3. the negotiator does better than he hoped to (without regard to whether the expected outcome is "good" or "bad" based upon objective factors);  
  4. the negotiator feels that the process by which the outcome was reached was "fair and reasonable"; and,
  5. the negotiator does not believe that his will was overridden by a stronger negotiator on the other side.

For the academically minded, see e.g. Disconnecting Outcomes and Evaluations: the Role of Negotiator Focus here and Voice, Control and Belonging:  the Double-Edged Sword of Procedural Fairness here.

Now, from the "Pride and Preferences" post at The Proper Study of Mankind (hat tip to TEDBlog's post How Toddlers (and Monkeys) Make Choices) we learn that the social scientists down the lane have once again proven that which our own experience has already told us -- that we routinely justify the choices we make by discounting, devaluing or demonizing the unchosen option and telling ourselves that we had always favored the chosen one.    

What's new about this relatively commonplace insight is that it is at work not only in sophisticated bargainers, but also in human toddlers and our primate friends the capuchin monkeys.  

How do we apply this "choice preference" insight to client satisfaction with settlement outcomes? 

It's not hard to do. 

Whatever a client's reservations about the course a negotiation session takes, by the end of the day they've made dozens of small decisions among (potentially) equally attractive or unattractive choices.  Add to the negotiation mix the fact that we tend to value choices that were made only after great difficulty and the "satisfaction outcome" is nearly guaranteed.

Even without coaching by you or assurances given by the mediator, your client should be pretty satisfied with any negotiation outcome by the end of the day.  If not, only a little negotiation post-mortem back-patting should be necessary to focus your client on the difficulty of your mutual  achievement and on your joint superior wisdom in settling at the time and for the number you both did.  

We're not suggesting being disingenuous here.  Most cases can profitably settle in a fairly wide range.  So long as you've done a thorough cost-risk analysis with your client and have a firm bottom line you've agreed not to alter, most settlements of risky and unpredictable litigation are the smartest decision you and your client can make at any stage of the proceedings.

Year-end's coming and with it the time to close the book on many cases that are becoming more problematic with time.

Clear these troublesome pieces of litigation away and both you and your client will have much to celebrate in 2008.

Knowing and Using Your Cognitive Biases to Negotiate a Better Deal

 Here's the power point for the first session of today's "Settle to Win" Seminar and the notes I used to give the talk

Because these materials are the basis for a speech and not the speech itself, they may be a bit confusing.  I'm providing them for those who attended the seminar.  If you didn't, please understand that not everything discussed appears in these materials.  

The entire day of speakers (a pretty high powered group) will soon be available in audio from the Pincus CLE company here.

How Tough was the Vioxx Negotiation? "Each lawyer had a greased football and was running like a wild monkey"

(right:  wild monkey)

Catch the thorough and fascinating Law.com report on the Vioxx settlement here.

And yes, only a Plaintiffs' trial lawyer from New Orleans can get away with similes like that!

Settlement negotiations began last December and have proceeded fitfully since, reportedly spurred on by Fallon and other judges. The final stretch began Thursday morning at the New Orleans offices of Russ Herman, liaison counsel for the plaintiffs, and wrapped up Friday morning around 5 a.m.

Herman says the primary lawyers for the plaintiffs included Chris Seeger of Seeger Weiss, Birchfield of Beasley Allen, and Arnold Levin of Levin, Fishbein, Sedrad & Berma. Merck was represented by Doug Marvin of Williams & Connolly, John Beisner of O'Melveny & Myers, and Adam Hoeflich of Bartlitt Beck. "It was a true, hard-fought rough and tough negotiation on a very high, professional plane," Herman told Legal Times, ALM's Washington weekly.

(left:  football without the grease)

Herman says a general deal was struck 10 days ago. "But the devil's in the details and they can break down at any point," says Herman. "Nobody raised their voice. Or made threats. But people's positions were very hard. It was like each lawyer had a greased football and was running like a wild monkey."


Bueno de Mesquita's Negotiation Science: If Only Lawyers Could Do the Math

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

Because I am always looking for the most efficient and effective means of resolving disputes, I am often drawn to what's new in social science.  Political science too often goes under my radar, as does mathematics -- the number one reason people go to law school -- because they can't do math.

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

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

What made me decide to introduce my readers to the father of "rational choice" theory, Bruce Bueno de Mesquita, however, was the application of his theory to international political problems such as the reduction of conflict between Israel and Palestine (quoted below).   

I'll have to admit that his claim to "produce a settlement [in litigation] that is 40 percent better than what the attorneys think is the best that can be achieved” -- also caught my attention.  Of such smaller conflicts is my attention consumed by.

So, I give you a little Bueno de Mesquita from Good Magazine's article The New Nostradamus

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

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

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

The "rational" solution?

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

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

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

If that intrigues you, you'll want to read the entire article here.

Michael Webster's Resolution to the Shubik Dollar Auction Game

(photo:  Bill IV by cmiper)

We've had a lively discussion going about making agressive first offers, for which we are indebted to our regular readers Michael (da Game Man) Webster and mediators Chris Annunziata and Geoff (Coalface???) Sharp.  

Michael provided a link to his solution to the "Shubik" Dollar Auction Game that most of us have played in mediation seminars.  Because the game itself demonstrates just how irrational bargaining can be, and Michael's solution demonstrates how everyone can "win" when cooler heads prevail, I am quoting part of his post here and commending to my readers' attention the full post here.

Shubik reported [of the Dollar Auction Game described in Michael's post]:

"Experience with the game has shown that it is possible to 'sell' a dollar bill for considerably more than a dollar. A total of payments between three and five dollars is not uncommon." Possibly W. C. Fields said it best: "If at first you don't succeed, try, try again. Then quit. No use being a damn fool about it."

Without at all diminishing my respect for W.C. Fields, I venture to suggest that there is a more reasonable way to play this game as opposed to quiting. What is it? 

First, lets update the game to the 21st century and restrict it to two players. Replace the $1 with $20 and each bid must be a multiple of $1. Each person must bid at least once, or they can agree not to play at all. What should they do? Suppose first bidder bids $1, and second bidder pays $2, what is the first bidder's reasonable response? Right now, as a collective they are paying $3 to get $20, or netting $17. He should demand that the second bidder pay his $9.50 not to bid! Alternatively, second bidder can offer first bidder $9.50 not to bid again.

Then the second bidder will the $20, paying $2 to the auctioneer, $9.50 to first bidder and so he nets $8.50. First bidder gets $9.50, pays $1 to auctioneer and nets $8.50, jointly getting $17.00. As I see it, $8.50 is better than nothing, giving lie to the claim that you cannot get something for nothing.

This is why I usually defer to Michael's greater wisdom.  He can do the math.

Loss Aversion and the World Series: It's Not Popcorn, Peanuts and Crackerjacks Anymore

(right, Fenway Park Scoreboard by Alex)

Listen to this NPR podcast about the sale and scalping of World Series tickets if you want to experience the loss aversion bias while standing in line to buy tickets for the great American passtime.

The quote to listen for?  Hometown purchasers who say "someone offered us $500 each for our places in line; no way" or "not on your life."  Something along those lines.  Click on the audio for the exact quote.

Online and broker ticket prices currently range from "$25 per seat for Game 4 at Coors Field, home of the Rockies, to $20,589 for a potential Game 7 at Fenway Park."  


Here's the point.  These guys would not likely pay $500 per ticket to go to the game, but will not give up the right to buy a ticket for $500

Losses loom larger than corresponding gains.  Loss aversion. 



Aggressive First Offers and the Nash Equilibrium

Recently, in response to my Power Point Presentation on Cognitive Biases (the one labeled Social Psychology Insights) I mentioned that aggressive first offers "anchor" the bargaining range in favor of the first offeror.

Our correspondent and resident blog expert on cognitive biases, Michael Webster of the BizOpNews Due Diligence Blog, responded as follows:

Hmm, anchoring to support aggressive opening bids? Doubtful, despite the academic literature -which in my opinion has little contact with real negotiation.

And nothing about coordination versus nash equilibrium reasoning? Big oversight, in my opinion.

Because I respect (and generally defer to) Michael's opinion, but because I disagree with him this time, I include here my response and open the discussion to our readers.  To help our readers, I'd like to ask Michael, if he has the time, to provide us with his thoughts about the coordination v. nash equilibrium reasoning that is absent from my Power Point Presentation (an absence I'd like to rectify before giving this presentation on the 13th of November)

Response to Michael:

 For once in my blogging-career, Michael, I'm going to differ with you but ask for help on the coordination v. Nash equilibrium reasoning. 

It's difficult to "observe" the effects of anchoring and framing outside of a controlled environment. You need to have a kind of duplicate bridge experience where the bargaining partners are all negotiating the same deal to determine the effects of framing and anchoring. Research shows we'll all deny that we've been effected.

I have, however, participated in these types of role plays with "teams" of seasoned attorney negotiators.

In fact, it was the first of these experiences, on my first day of mediation training through the Straus Institute here in Malibu (at Pepperdine where the fires were yesterday -- terrible) that I experienced the power of anchoring first hand.

All twenty attorney teams negotiated a buy-sell contract for about 45-minutes. When we returned to the classroom, we all put our negotiated deals on the blackboard together with the first offer made.

I'd been taught as a young attorney NEVER to make the first offer -- folk practice where I come from, i.e., California.  In the role play, without exception, the negotiator who made the first offer in the hypothetical bargaining session got the best deal -- often by many magnitudes.

THIS is the moment when I decided I wanted to return to school to learn more about this and everything else having to do with negotiation -- rules of persuasion, the effect of cognitive biases, etc.

Since that time, what I've read in the academic literature on controlled negotiation studies, not only on students but on judges and attorneys and business people, has concluded that he who makes the first offer sets the bargaining range and gets the best deal.

As to Personal Bargaining Experience.

Since I've been mediating full time, I've helped lawyers negotiate hundreds of deals. Still, it's difficult for me to say whether the first offer had a substantial anchoring effect because I don't know how the negotiation would have turned out had the other side made the first offer or if the first offer had not been more or less aggressive.

More importantly, a REAL negotiation to settle a REAL dispute is so multi-determined that I can't imagine being able to opine on which of the many factors was determinative (assuming one factor could ever be determinative) of the final deal.  

Every deal in my business results from a combination of the vitality of the parties' legal and factual positions; their financial and personal or business interests; the personalities of the attorneys and the disputants; the willingness of the disputants to share information that will increase the number of options available; the negotiation and "people" skills of the mediator; and, numerous other factors that I often am never advised of, i.e., at the end of one difficult negotiation session, I learned for the first time that two of the three parties had been negotiating the sale of one of their businesses while I was negotiating the settlement of an unfair competition lawsuit.

We weren't even negotiating the same matter!


Insights from Social Psychology to Help You "Win" Your Next Negotiation

My fellow panelists (Superior Court Judges Chaney and Williams; former Federal Magistrate John Leo Wagner; Patent Infringement and Competition Arbitrator and Mediator Les J. Weinstein; and, Complex Commercial Arbitrator and Mediator Jay McCauley) have all been working hard in preparation for our November 13, 2007 Winning Settlement Strategies Seminar (.pdf flyer here and complete program description here).

I'm posting my power point presentation on the Social Pysch Insights that Can Help You "Win" Your Next Negotiation for the benefit of anyone who is interested in attending the seminar and for those who cannot.  

Remember, this is just one of six presentations by an extremely talented and experienced group of Judges, former Judge[s] and attorney-mediators and arbitrators.

Stay tuned for more great ideas and fresh perspectives to help you get the best settlement you've ever achieved.  Really! 

Reframing and Reality Testing

(Photo by Dean Ayres)


Another good reason to hire a mediator:

People will interpret the same information in radically different ways to support their own views of the world. When deciding our view on a contentious point, we conveniently forget what jars with our own theory and remember everything that fits.

From PsyBlogHow and Why We Lie to Ourselves:  Cognitive Dissonance.

Settlement Techniques that Give You the Winning Edge



Deal Yourself a Winning Hand

November 13

Los Angeles


 (photo:  Four Aces by Ian Grainger)

Novice and seasoned litigators will learn to maximize the value of their litigation positions by learning winning settlement techniques from a panel of seasoned ADR experts.

Experienced mediators and Judges teach the latest settlement techniques, such as distributive (splitting the settlement “pie”) and integrative or interest-based (expanding the settlement “pie”) bargaining.

Topics also include the dynamics of conflict resolution, settlement best practices, negotiating techniques, settling complex and patent litigation cases, and international disputes. Don’t miss this chance to hear from those who truly know -- how you can best maximize your client’s settlement opportunities and outcomes.

Speakers:  Los Angeles Superior Court Judges Alexander Williams, III (full-time settlement Judge) and Victoria Chaney (Assistant Supervising Judge of the Complex Court); former Federal Magistrate John Leo Wagner (also at Judicate West), AAA Arbitrator, Mediator and Registered Patent Attorney Les J. Weinstein, and Straus Institute Professors and Judicate West Neutrals Jay McCauley and Victoria Pynchon.

For more of what you'll learn, click here.

Flyer and Order Form Here

Fees Individual: $349 per person
Group: $324 per person for 2 or more from the same company pre-registering at the same time.
Government employee/Non-Profit* Rate: $299
Students: $199 (current students only)

Long Live the Death of the Reasonable Man

(left:  the "reasonable man?")

According to Saturday's New York Times Talking Business column Can We Turn Off Our Emotions When Investing?, few of us could make the boast ascribed to Los Angeles lawyer Charles T. Munger when asked the secret to being a great investor.

"I'm rational," he said. 

Lawyers, Economists and "Reasonable Men"

Both law and economics have long assumed a hypothetically objectively "reasonable man" or investor.

I can still recall the precise moment during my first year of law school when all of my core courses came together under the rubric "reasonable."  The potential tortfeasor was liable to his victim only if he failed to behave "reasonably" -- a standard also imposed upon the plaintiff lest she be found contributorily or comparatively negligent.  In actions for the breach of an agreement, the contracting parties were required to demonstrate that their performance expectations were objectively reasonable.   Even the ancient law of property rights required that covenants and restrictions not unreasonably burden the use or transferability of real estate. 

The dry rules of civil procedure were also governed by standards of reasonableness.  They assumed the giving of reasonable notice when civil actions were filed and required that pleadings contain reasonably detailed allegations of wrongdoing.  Finally, every generation of television watching Americans knows that an accused could be convicted of a crime only if his guilt were proven "beyond a reasonable doubt." 

We lawyers were thus trained to be reasonable, rational people, unaffected by passion and prejudice, unemotional.  

That's a good thing right? 

Not if we believe we're acting reasonably and rationally when we're not.  

Continue Reading

Conflict Avoidance: Social Obligations, Larry David and Shame

How deeply do you renosonate with the feelings described by New York Times writer Bob Morris in yesterday's "Age of Dissonance" column, How to Avoid, Well, You

THE invitation was too good to refuse — an August weekend at the august home of a friend on a little New England island.

Yet, from the moment I pulled up to the ferry dock, there was dread in my soul. Two years ago, I had offended an entire family of friends likely to be there. Would one of them be on the boat, where avoidance is impossible?

Checking a reservations list, I was relieved to find myself in the clear. But later, getting an ice cream on the island’s small village green felt like being in highly exclusive enemy terrain, and I walked with head down and turned in fear from each passing station wagon.

In the church thrift store where space is tight (and the clothes irresistible) I hid behind racks with my heart pounding as each shopper entered. 

Why, he asks, are we afraid of the meeting (or confrontation) with the guy whose call we didn't return or manuscript we didn't read?  Whose invitation we didn't accept, whose feelings we offended, or who stole our client?


It was my friend and colleague Ken Cloke who taught me there were five means of dealing with conflict (suppression, avoidance, resolution, transformation and transcendence) and University of Missouri Law Professor and friend Richard Reuben who taught me that there is no such thing as "bad" conflict. 

It was through my communnity mediation experience, however, that I finally learned it was better to address than to avoid conflict.  I have also learned that people will, given the right conditions, spontaneously reconcile.  Those conditions?  Having hope that reconciliation can be achieved without fear of sustaining psychological or physical harm, opening and maintaining channels of communication, and the assistance of a third party who is willing to patiently and lovingly sit with those in conflict like a parent with children recovering from a fever or bad dreams.   

Listen, I have seen an elderly mother reconciled to a child who sued her and then served her with an eviction notice after two years of estrangement.  I have seen (in a documentary film on restorative justice) a woman whose brother raped her at knife point, collapse sobbing into his embrace at a prison where he'd already been incarcerated for this crime for years.  I have seen a man who refused to speak to his gay neighbors for five years stand up at the end of a community mediation and say, "may I hug the two of you?" 

These events are not the rare occasion or the exception to the rule.  Nor are they the result of anyone's brilliant mediation or conflict resolution skills.

They are the norm, the product of the process rather than the result of the technique. 

A mediator can probably prevent these spontaneous acts of reconciliation, but s/he does not create them.  At best, s/he presides over them, serves as their sponsor or appreciative audience, and counts herself privileged to have participated in them from the sidelines.


Mr. Morris asks us what it is that drives us to cower behind clothing racks to avoid seeing someone whose telephone call we "forgot" to return.  What indeed, when when we live among people who have reconciled with brothers who raped them or assailants who killed members of their family?

The answer to the question is shame, the most powerful constellation of emotions we are capable of experiencing. The lengths to which we will go to avoid these feelings was hilariously depicted just last night on Curb Your Enthusiasm, an episode you're just going to have to see. 

Your punishment for not getting your shame-education from pop television references is to read an excerpt from an academic article (written by someone very close to me) on the origins of shame and its role in restorative justice.

The word shame is derived from the Indo-European skem which means "to hide." Shame makes us want to hide - from ourselves, our God and our peers - making shame an existentially isolating state of mind. Feeling shame makes a person "dejection-based, passive, or helpless," causing the "ashamed person [to focus] more on devaluing or condemning his entire self" than upon his behavior. He sees himself "as fundamentally flawed, feels self-conscious about the visibility of his actions, fears scorn, and thus avoids or hides from others." 

The shamed individual wants "to undo aspects of the self" whereas the guilt-ridden one wishes to undo aspects of his behavior. It is therefore not surprising that guilt tends to motivate restitution, confession, and apology, whereas shame tends to result in avoidance or anger.

The psycho-biology of the constellation of emotions we call "shame" is innate.  It produces a sudden loss of muscle tone in the neck and upper body; increases skin temperature on the face, frequently resulting in a blush and causes a brief period of incoordination and apparent disorganization. No matter what behavior is in progress when shame affect is triggered, it will be made momentarily impossible. Shame interrupts, halts, takes over, inconveniences, trips up, makes incompetent anything that had previously been interesting or enjoyable. 

A state of cognitive shame follows this initial cluster of feelings. After the painful jolt of shame, we begin to search our "life scripts" for some way to integrate the shameful experience with our prior experiences, to make sense of the pain and disorientation caused by the sudden upset of a positive emotional state. 

There you have it.  Though it may seem more outrageous than comic for wildly successful adults to feign compliance with a social obligation by showing up a day late for a party pretending to have gotten the date wrong (the Larry David episode) it is no more or less absurd than the ordinary daily ways we all have of avoiding someone who might make us feel ashamed.

Tomorrow we will discuss ways to positively engage yourself with those who you may have inadvertenly offended.

The Most Sophisticated Settlement Judges and Mediators Teach You to Win Your Next Negotiation

(image from Should I Join a Law School Study Group?)

Listen Up!!  This may sound foolish but I had the best study group in my law school (all of us graduated in the top 10%).  Why?  Because I naturally gravitate toward the smartest people in the room and then boldly ask them to join my study group or be a member of my law firm or speak on a panel or write an article with me.

Gee, legal practice is actually just one life-long study group when you think about it, no?

In any event, I loved my study partners and people I practiced with (o.k., there were a few exceptions) and continue to seek out the best and the brightest from whom I can learn and work at the same time.  

That is the very very long introduction to our upcoming Pincus Communications SeminarSettlement Techniques that Give You the Winning Edge.

Who Will You Be Learning From?

How about two of the best and most sophisticated settlement and trial judges in the entire Los Angeles Superior Court system:  full time settlement Judge Alexander Williams, III and Complex Court Assistant Supervising Judge Victoria Chaney?

But that's not all.  Joining us will also be former Federal Magistrate and Judicate West mediator, the Hon. John Leo Wagner (Ret.); former Paul Hastings partner, AAA arbitrator and Judicate West mediator, Jay McCauley; and, Les J. Weinstein, registered patent attorney and antitrust guru (an AAA arbitrator and complex commmercial and IP mediator).

These are the people at whose feet I sit to improve my game and my skill set is pretty darn good if I do keep saying so myself.  

What You Will Learn if You Attend This Seminar

  • The ten social psychological insights that will minimize your own self-defeating negotiation behavior and maximize your opponents’ bargaining weaknesses 
  • The ten basic rules of “distributive” or “fixed sum” bargaining that will give you the “edge” in all future settlement negotiations 
  • The ten ways to “expand the fixed sum pie” by exploring and exploiting the client interests underlying your own and your opponents’ legal positions 
  • The ten ways to get your case settled to your clients’ best advantage at Mandatory Settlement Conferences for both routine and “bet the company” cases 
  • The Top Ten Errors Made by Parties When Attempting to Settle Disputes that their Contracts Require Them to Arbitrate 
  • The Ten Rules of Cross-cultural negotiation in International Arbitration 
  • The Ten Laws Critical to the Enforcement of Mediated Settlement Agreements 
  • The Ten Mediation/Settlement Conference Traps for the Unwary


9:00 – 10:00 a.m. The social-psychological dynamics of conflict resolution taught by attorney-mediator and high-profile ADR blogger, Victoria Pynchon, J.D. LL.M (conflict resolution). Victoria is an Adjunct Professor at the Straus Institute for Dispute Resolution and a neutral with the Southern California ADR firm, Judicate West and the International Institute for Conflict Prevention and Resolution.

10:00 – 11:00 a.m. Settling Disputes in the Arbitral Forum by AAA commercial arbitrator and former Paul Hastings Janofsky & Walker litigator, Jay McCauley. Mr. McCauley is an Adjunct Professor of Arbitration Law at the Straus Institute for Dispute Resolution and a neutral with the American Arbitration Association and the Southern California ADR firm, Judicate West.

11:00 – 11:15 a.m. BREAK

11:15 – 12:15 p.m. Mediating the settlement of intellectual property and technology related litigation with cautionary tales from the antitrust trenches taught by patent infringement and competition law litigator, arbitrator and mediator, Les Weinstein, of Sheldon Mak Rose & Anderson. Mr. Weinstein is an arbitrator with the American Arbitration Association.

12:15 – 1:15 p.m. Lunch on your own

1:15 – 2:15 p.m. Mandatory Settlement Conferences (MSC) “best practices” taught by Judge Alexander Williams, III, Los Angeles Superior Court Settlement Department and Adjunct Professor of Clinical Practice at the Straus Institute for Dispute Resolution

2:15 – 3:15 p.m. The Machiavellian Negotiator taught by former Federal Magistrate John Leo Wagner, who was formerly head of Irell & Manella LLP’s ADR Practice Group. Judge Wagner is a neutral with Judicate West..

3:15 – 3:30 p.m. BREAK

3:30 – 4:30 p.m. Settling Sophisticated, Multi-party Commercial Litigation in the Complex Court, taught by Judge Victoria Chaney, Complex Court Assistant Supervising Judge

Negotiating Your First Law Job: Which Offer to Accept

(right:  Working Mother Identifies the 50 Best Law Firms for Women)

The interview season is over and you have three job offers.

One is from BigLaw in Manhattan, a dazzling, dizzying opportunity coupled with a salary that (you believe) would end all of the financial insecurity you've experienced after 7 years of part-time jobs; student loans; and, macaroni and cheese dinners.  

The other offer is from the Justice Department in Washington, D.C. where you've been promised early trial experience and your own case load during your first year.  The salary is livable but you've got enormous student loans to pay back.  Still, you've always wanted to stand in a courtroom, look Jack Nicholson in the eyes and say, "I want the truth!!"  

Your last job offer is from a mid-size firm in your own home town.  You really like the people you met with there and you can see yourself spending an entire adult life with them.  Getting married, raising a family.  The local schools are good and the chance to build your own "book of business" is better here than in D.C., Manhattan, Los Angeles, Chicago or San Francisco.  You'd be a big fish in a little pond, not to mention remaining close to your extended family.

What to Do?

We have no specific advice.  We do want to alert you to Bazerman's and Malhotra's chapter on cognitive biases in their new book, Negotiation Genius, and particularly their section on


(note to readers:  whenever the word "McKinsey" appears, think Skadden, or whatever law firm would most  dazzle your professors and classmates if you told them you'd been offered a job there).

Apparently, many Harvard MBA students change jobs very quickly after accepting their first position.  Why?  One important reason is the effect of the "vividness bias."   They explain:

Specifically, [the student job seekers] pay too much attention to the vivid features of their offers and overlook less vivid features that could have a greater impact on their satisfaction.  This is a potential trap even for seasoned negotiators.

M & B go on to conduct a little thought experiment, imagining their students talking about their job offers and, more particularly, the following attributes of those offers:

  • great medical benefits
  • proximity to extended family
  • high degree of happiness apparent in the offeror's employees
  • opportunity to travel to Europe on a regular basis
  • $140K starting salary
  • employees have a significant degree of control over work assignments
  • the office space is comfortable; the environment inviting
  • the offer is from McKinsey
  • I would not have to travel too much

You know what's coming next. 

Which of these statements will travel most quickly through the MBA student grapevine, conveying the highest degree of prestige upon the  job-seeker.

For all of our knowledge and sophistication, we're pretty simple creatures.  Bazerman and Malhotra believe that "the answers to these questions are the high salary ($140,000) and the offer from McKinsey (a top consulting firm)."  They continue:

These two items are not only the easiest to communicate quickly, but also the easiest for others to evaluate.  Students who receive these offers will notice the impressed reactions of their peers when such information is shared, and these reactions will make the information more prominent in their mind[s].  As conversation after conversation focuses on these two factors, other aspects of the offer will be overshadowed or entirely sidelined.

One result:  students accept -- and soon quit -- high paying jobs with prestigious firms because they over-weighted vivid or prestigious attributes of their offers and under-weighted  other issues that would affect their professional and personal satisfaction, such as office location, collegiality, and travel.

Malhotra and Bazerman's suggested solution to counter the vividness bias is to create a scoring system that assigns "weights" to job attributes.  They suggest that a professional job seeker "who does not have at least five to ten issues ranked and weighted in her scoring system is probably not thinking rationally enough about all of the important issues in her job negotiations."

When performing this rigorous, logical, left-brained analysis of your job offers, remember what we recently learned from the Neuromarketing Blog's recent post on the new (must read) book -- The Best of the Brain

the left hemisphere of the brain tends to screen creative thoughts from the right hemisphere. Too much screening, and creativity is stifled; too little, and useless ideas can’t be eliminated. Creativity also requires topical knowledge and a detailed examination of the problem. While there’s no simple path to creative thinking for most of us, Kraft concludes by recommending that relaxing and stepping back from the problem are often helpful in letting the brain do its work. 

To conclude our series on job hunting for lawyers, I leave you with the the following list of dangers and pit-falls based upon my own experiences and those of my colleagues, all of whom have been practicing law for at least twenty-five years.

  • property, power and prestige are the most dangerous siren-songs to follow (seethe Cost of a Thing is Your Life);
  • if you're one of those people who believes you can take a BigLaw job, save your excess salary and then move "down" to a more congenial firm, just make sure you have the mental toughness to do so -- I have seen many lawyers "trapped" by the lifestyle this salary can afford them -- I know dozens who have been miserably stuck there for years if not decades;
  • your mom and dad really will continue to love you no matter what you do; you do not have to take an impressive job to prove to them that the kid who could never keep his room clean is all grown up now and a credit to his family; and,
  • money can't buy it (Annie Lenox)

Congratulations on the job offers

Choose wisely and well.  It's a great profession; one you and your family can be proud of of; and one you will never ever completely master -- meaning it will continue to astonish, trouble, bedevil and reward you for the rest of your life.

Negotiating Your First Law Job: Listen to Your Head and Follow Your Heart

(photo:  Tempus Ex Machina by Gisela Giardino based on Dali what makes you tick by Phillipe Halsman)

I'm sending my law student (and job seeking lateral lawyer) readers over to Health Bolt Blog this morning to read 26 Reasons What You Think is Right is Wrong -- a list of cognitive biases that interfere with "rational" decision-making.

While it's great to know about these biases, it's good to remember when job-seeking that you cannot make any decision whatsoever without emotions.  In the absence of emotion, the brain scientists tell us, we would spend our lives making pro and con lists without ever coming to a decision, a kind of existential hell depicted so well by philosopher and playright Jean Paul Sartre.

Because my Advice to Young Lawyers column is a repository for unsolicited advice I try not to give to my step-"children" (who are starting their professional careers this year) here's a little of my own experience to highlight the heart/head conundrum.

When interviewing with BigLaw during my second year in law school, I answered one of Mr. Big Firm's questions (during a call-back interview) in the following manner:

Mr. Big Firm:  "Hmmmmm, I see here Ms. Pynchon, that you're in the top ten percent of your law school class.  Why aren't you a member of the Law Review?" 

Ms. Pynchon:  Because I don't like to write [!!???!!!!???]

Mr. Big Firm:  Well, writing is pretty much all you'll be doing your first several years at Blank, Blank and Blank . . . . .

O.K., this was either the stupidest (not to mention most inaccurate) response ever given during a job interview or I was being driven by my true desire, which was to have courtroom (and preferably trial) experience during my first year of practice.  Unfortunately, my class standing made employment in the AmLaw100 highly likely unless I sabotaged my interviews -- which you can see I did.

The result?  I started practice with a two-man personal injury law firm and appeared in court to try my first one-day court trial the day after being sworn in to practice law in the great State of California. 

Everyone, by the way, all of my mentors, professors, and, advisors, urged me not to start my practice with a small Sacramento P.I. firm because I'd never ever be able to move "up" from there to the kind of practice I was supposed to desire (and you know what that is).

Turns out, I had more fun practicing law (and no billable hours!) during those first three years of my practice than I'd ever have again.  Also turns out that my courtroom, appellate and trial experience made me very attractive to future AmLaw100 employers because none of their associates had any courtroom, let alone trial and appellate experience, by their fourth year as I did when I decided I wanted to switch from P.I. to commercial litigation.

Lesson learned?  Only you know what's "best" for you.  It can never be a mistake to follow your own dreams.

Be a Negotiation Genuis with Harvard's Malhotra and Bazerman

Why am I reading Deepak Malhotra's and Max H. Bazerman's Negotiation Genius in my comfy funky beach shack ON THE SAND on the windward side of Oahu at 8:45 a.m. (local time) listening to the waves gently slap the shore and occasionally looking up to see if the fisherman at water's edge has caught anything besides happiness this morning?

Am I insane?  No, it's because:

  • no one taught me to negotiate in law school and despite being an B+ to A+ litigator for twenty-five years, until I met Peter Robinson at the Straus Institute, I was a C- negotiator.  So learning these skills reminds me learning how to read in kindergarten (yes I do remember, running home at full speed, bursting through the front door and chortling to my mother, "I can spell 'red' Mommy, RED! It's R-E-D red!")
  • Bazerman and Malhotra have been my "distance learning" zen negotiation masters through the Harvard Business School Working Knowledge Newsletter for the past year and I would read with high expectation and rapt attention anything they scribbled on a napkin in a bar after a couple of drinks.
  • who could resist any negotiation book with chapters entitled:  Negotiating from a Position of Weakness and Confronting Lies and Deception, both of which I avidly and happily consumed this morning after watching the sun rise over the Pacific around about 6 a.m.

That's it.  I will be providing the executive summaries of these and other dynamite chapters for you attorneys who are billing 2000-2300 hours/year and any business manager or executive who drops by.  Most of my mediator friends will be consuming it whole.

Right now, I'm putting Bazerman and Malhotra aside to follow Mr. Thrifty to the beach, clutching the new (and fabulous) new biography of Einstein in hand -- a man whose childlike wonder at the mysterious workings of the universe never faded.

This post brought to you by the letter "A" for awe.

Walking the Talk: Tit for Tat in a Collaborative and Reciprocal World

Many thanks to Christine Mast over at DRI's informative, timely and well-written newsletter The Business Suit for mentioning the Settle It Now Negotiation Blog.

Christine is a partner with the Atlanta office of Hawkins & Parnell, LLP, a litigation boutique with offices in Dallas and Charleston, West Virginia. Absent the IP sub-specialty (see the IP ADR Blog) her practice pretty much mirrors my own before I abandoned ship and landed here on ADR Island. 

Chistine's commercial litigation specialties include insurance coverage and professional liability, fields in which I labored for many years


If you're litigating a commercial case, are not a coverage specialist and have decided -- from reading the policy language -- that there's no coverage -- run to someone like Christine, or if it's a really really really big liability, my husband, Steve Goldberg over at Heller -- who litigated the World Trade Center coverage litigation on behalf of Silverstein's lender -- for counsel and advice.  It's not difficult -- it just requires specialized knowledge, knowledge many commercial litigators lack.  See the sad tale of Guess v. Jordache here.


Christine says she's new to the blawgosphere so I wanted to thank her for the mention of our blog by showing her how the whole machinery of the thing works == like a giant internet barter circle of the kind described by author-lawyer Patricia Williams in her groundbreaking work, An Alchemy of Race and Rights.  See also the Benefits of Barter here.

People say "tit for tat" when they want to focus on the aggressive side of that game -- you hurt me; I hurt you.  When talking about it's beneficial effects, they use the words collaboration and reciprocity.  You link to me, I link to you.

But remember, there's a code of excellence here in the blawgosphere and I won't link to www.AccidentLawyers.com just because they mention me (not yet).

I mention Christine's article and the entire Newsletter because it's a great resource and my readers trust me to steer them to good stuff.

Because I'm an aggregator.  See The Long Tail.

Queen Latifa from Chicago on the seemier Tit for Tat side.

So, what do you say, Christine?  Get your law firm to take the blogging plunge by talking to my good friend Kevin O'Keefe over at LexBlog.  Online networking and practice development is geometric, as is LinkedIn, both of which I highly recommend, whether you're building your own business or just expanding your "book."

And, hey!  Thanks for the mention!

Online Cyber-Bullying: Protection How To's in Next Post

(right: Heathers:  only the clothes and hair-do's are dated)

My former law partner, the ridiculously talented and prolific Eric Sinrod of Duane Morris has written an important article about teenage cyber-bullying here.

As Eric reports,

The Pew Internet & American Life Project Report was somewhat of a relief to read. However, another recent Pew report examines a different threat faced by teens: cyberbullying.

About one-third of teenagers on the Internet report that they have been targets of "menacing" online activities, such as receiving threatening messages, having their private e-mails or instant and text messages forwarded without consent, having an embarrassing photo posted without permission, or having rumors spread about them online. On top of this, girls are more likely than boys to be targets.

In terms of raw numbers, 15 percent of teenagers state that they have had private e-mail, instant messages or text messages forwarded or posted without permission; 13 percent claim that they have had rumors spread about them online; 13 percent have received a threatening or aggressive e-mail, instant message or text message; 6 percent have had embarrassing photos of them posted online without consent; and 32 percent fall within in at least one of the four foregoing categories.


Plus ca change, plus c'est la meme chose.  Teenage boys bully with their fists.  Teenage girls bully with their emotional wits.  No one, no one, is more skilled than a teenage girl with the stilleto to the softest part of her girl-target.  I know this from research and from silly movies (my favorite of which is Heathers with Winona Ryder and Christian Slater -- put it on your Netflix list ).

The technology may have changed, but not the malice.  When I was in highschool, my older sister became the target of a group of particularly malicious girls who called her on the telephone to sling at her every possible insult they could.  I remember, I fielded the call for her.

What are sisters for?

Memorable Heathers quote

Heather Chandler: "You were nothing before you met me. You were playing Barbies with Betty Finn. You were a Bluebird. You were a Brownie. You were a Girl Scout Cookie."

The Power of Framing and Anchors

(Photo by lostulysses)

In the political arena, the power of framing is generally called "spin."  You needn't, however, be an expert at renaming torture "coercive interrogation techniques" to become skilled at framing your demands during negotiations. 

The Power of Framing

Frames are cognitive shortcuts that  . . . help us organize complex phenomena into coherent, understandable categories.

When we label a phenomenon, we give meaning to some aspects of what is observed, while discounting other aspects because they appear irrelevant or counter-intuitive.

Thus, frames provide meaning through selective simplification, by filtering people's perceptions and providing them with a field of vision for a problem.

To demonstrate the power of framing, researchers asked subjects questions that contained suggestions of size, number and duration.  The impact of the framing terms -- short and tall, for instance -- were striking:

When asked how long a movie was, research subjects' average estimate was 199 minutes, 69 minutes longer than when they were asked how short the movie was (130 minutes).

When asked how tall the basketball player was, research subjects' average estimate was 79 inches, ten inches taller than when asked how short he was (69 inches).

Research subjects were also profoundly affected by numerical ranges.  When asked whether they'd tried "5 or 10" headache products, subjects' answers averaged 5.2.  When given the option of "2 or 3" headache products, they averaged 3.3.

A common negotiation "frame" is to treat the difference between the parties' offers and counter-offers at the point of impasse as the total amount in controversy.  If, for example, the Plaintiff opened negotiations at $1.5  million and has, in the course of negotiation moved to $600,000, while the defendant commenced negotiations at $250,000 and has moved to $550,000 at the point of impasse, the mediator will generally focus upon the reasonable division of the $50,000 delta rather than upon the total $550,000 offer or the total $600,000 demand.   

Focusing solely upon the value that separates the parties reframes the subject matter of the negotiation as the avoidance of the dispute's continued cost rather than the "fair," or "just" or "reasonable" value of the loss at issue.   

And don't think that attorneys, judges and sophisticated commercial clients are immune to the effects of anchoring and framing.  

The Power of Anchoring

We've discussed before Adam Galinsky's excellent short article When to Make the First Offer in Negotiations

As Galinksy notes:

Research into human judgment has found that how we perceive a particular offer's value is highly influenced by any relevant number that enters the negotiation environment. Because they pull judgments toward themselves, these numerical values are known as anchors.

Continue Reading

WTO, Neuroscience and Impasse

(photo by Maureen Flynn-Burhoe)

We follow high-level negotiations, as well as the small commercial dispute, here.  No matter the stakes, the dynamics are the same.  See, for example, today's AP article, Collapse of WTO Talks Puts Trade Deal in Limbo.

What's at stake? 

a new world trade pact aimed at adding billions of dollars to the global economy and lifting millions of out of poverty.

Who are the negotiating parties?  The United States, the European Union, Brazil and India. 

Are there feelings, i.e., emotions involved?  Have we mentioned recently neuroscientist Antonio Damasio's research on people whose brain injuries interfered with their ability to feel emotion?  They could make endless pro and con lists, but couldn't make decisions.  Why?  Because there is a pro and con to every choice we make.  Paper or plastic?  Fish or Meat?  Peace or warfare?  Settle the lawsuit or try it?  

In the absence of a feeling that makes us desire one outcome more than another, we are at a total loss.  

How does impasse feel?  If you'd been a WTO negotiator, your

emotions rang[ed] from anger to confusion [as they] left Potsdam on Friday knowing they had failed to break a six-year logjam between rich and poor countries over eliminating barriers to trade in farm produce and manufactured goods.

And the angry and confused government officials?  Do they think their own bargaining position is to blame or do they believe that their negotiating partners are acting in bad faith?  Let's see.

European and American officials questioned Brazil's intentions and wondered if it intentionally blocked progress to curry favor with developing countries, many of whom were unhappy with the private negotiations among the four powers.

Brazilians accused Washington and Brussels of agreeing beforehand to protect their agricultural interests.

Many officials criticized Indian Trade Minister Kamal Nath for arriving late on Tuesday after missing a flight and having a return scheduled ahead of the summit's end.

All sides said they negotiated in good faith.

Sound familiar?

The reasons for impasse and ways to break it will be the subject of a lengthy weekend post.

In the meantime, here are two prior posts on impasse -- Negotiating Past Impase and Breaking Impasse.  

The Collaborative, Generous Brain and Good Citizens

(photo by Duane Romanell)

We first mentioned the brain's do-good-feel-good circuitry in our post Unhappy Lawyers and the Cooperative Hard Wire.  Since that time, we've created an entire category for collaboration, showing that it not only makes us feel good and perpetuates the species, but that it also makes us better problem solvers than we could ever be acting on our own (remember law school study groups?)  See e.g. Collaboration Creates Better Science.

The researchers continue to pursue this line of inquiry and today New York Times Writer and Blogger John Tierney (Tierney Lab) tells us that it feels good to pay taxes -- at least those with a charitable purpose.

The research?

Each student was given $100 and told that nobody would know how much of it she chose to keep or give away, not even the researchers who enlisted her in the experiment and scanned her brain. Payoffs were recorded on a portable memory drive that the students took to a lab assistant, who then paid the students in cash and mailed donations to charity without knowing who had given what.

The brain responses were measured by a functional M.R.I. machine as a series of transactions occurred. Sometimes the student had to choose whether to donate some of her cash to a local food bank. Sometimes a tax was levied that sent her money to the food bank without her approval. Sometimes she received extra money, and sometimes the food bank received money without any of it coming from her.

Sure enough, when the typical student chose to donate to the food bank, she was rewarded with that warm glow: increased activity in the same ancient areas of the brain — the caudate, nucleus accumbens and insula — that respond when you eat a sweet dessert or receive money. But these pleasure centers were also activated, albeit not as much, when she was forced to pay a tax to the food bank.

This doesn’t mean that the student, or anyone else, would necessarily enjoy writing a check to the Internal Revenue Service that would be spent on plenty of programs less appealing than a food bank. It is more like the tax collected by a state lottery that dedicates its profits to schools.

For the complete article, Taxes a Pleasure?  Check the Brain Scan click here.

The refinement on prior research here is that charitable giving makes some of us feel better than others  (see Altruist's Paradox, Should It Hurt to Be Nice) and that at least some of those whose pleasure centers aren't stimulated by altruism, give as much as those whose are.

My guess is that those who give without the brain "rush" also say "please" and "thank you," let motorists into the jammed traffic in front of them and help little old ladies across the street.  We used to simply call them "good citizens."  Their parents raised them that way.

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


More on Bad Faith in Mediation

(right:  Lawyer as Satan:  Al Pacino in The Devil's Advocate

Gini Nelson at Engaging Concepts recently alerted me to John Lande's recent and excellent article, Principles for Policymaking About Collaborative Law and Other ADR Processes.  There is much in this article to recommend it, including observations and recommendations about regulating ADR policy and practice.   What caught my attention were Lande's comments about "bad faith" mediation, a topic we've been following in the Couts.  

Good faith in mediation, notes Lande, "is like mom and apple pie—it’s hard to be against them.  .  . Many people  

think that they know bad faith when they see it. They “know” that bad faith in mediation is when one side—the other side—refuses to make a new offer or what they view as a “reasonable” offer.  This conduct clearly grieves some litigants, lawyers, and judges who would like the courts to sanction the alleged offenders.

In virtually all the final reported opinions on this issue, however, the courts have decided that this conduct is not sanctionable bad faith.  The courts have decided that it would be inappropriate to sanction this behavior, which is impossible to adjudicate without evidence about communications in mediation and the participants’ state of mind.

Even proponents of good faith rules recognize that judicial second-guessing of participants’ states of mind would be an inappropriate judicial encroachment into the mediation process.  As a result, the judicial interpretation of “good faith” has come to mean attendance at mediation (possibly with a representative having “sufficient” negotiation authority) and submission of any required premediation materials.

The result is that the good faith rules do not prohibit what people think of as bad faith.

"Bad Faith" Negotiation Strategies and Tactics

In our recent survey (with 78 responses) participants were asked to identify which of several acts  constituted bad faith negotiation practices or strategies:

Those that garnered the most votes were parties lying about facts important to resolution (65.83%) -- which would likely constitute grounds for rescinding any deal reached by the parties due to fraud -- and a refusal to compromise "without good reason" (59.76%).  Withholding information important to obtaining a "fair" deal garnered less than half but nevertheless a substantial number -- 40.51% -- of the "votes."  Again, this type of behavior could well constitute fraudulent concealment and is subject to its own set of sanctions -- rescission and damages. **

Refusing to compromise with good reason (4.5%) however, and not compromising "enough" (3.4%)received so few votes that we must conclude our survey respondents accept these activities as perfectly appropriate when parties are attempting to negotiate  settlement, whether in a mediation or outside of it.

The Importance of Reason Giving

My friend the settlement Judge Alex Williams likes to tell his disputants that he needs "a number and a reason" when shuttling offers between the parties.

As we've discussed before, any reason whatsoever, "reasonable" or not has a salutary effect upon people's willingness to accomodate their fellows See "Why -- an Anatomy of Explanations").    More on the dynamics of reason-giving in negotiating the settlement of your disputes tomorrow.


*  For individual responses to the question, "what constitutes bad faith negotiations?" click here.

A New Neuroscience Blog is Born

I've been reading Stephanie West Allen's Renaissance Woman Blog, Idealawg, ever since I began blogging myself just about a year ago.

Here's the really really really good news.  Stephanie has started a new blog, Brains On Purpose™ Neuroscience and Conflict Resolution in collaboration with Jeffrey M. Schwartz, MD.

Check out their upcoming seminar in January in San Francisco as well.  

The blog is brand spanking new and I, for one, am greatly looking forward to getting a large part of my ADR-Neuroscience reading from these two experts in the field.

Add them to your news reader today!


Cheating: Billable Hours

From time to time we take a look at social psychology and evolutionary biology because ADR practitioners must be good students and careful readers of predictable human behavior and ways to encourage change.

What better place to begin than with ourselves.  In this week's Blawg Review, Enrico Shaefer's Greatest American Lawyer gathers together the week's 411 on self-reported billing irregularities. 

I know this topic is compelling to lawyers because I've had more "hits" to the Bar & Grill Singers' "I'm Billing Time"  video (their song/my video) than for any other post.

Here it is again.  

On to disreputable billable hour violations . . . .

We're Hard Wired to Detect Cheating

In their article Evolutionary Psychology: A Primer, Leda Cosmides & John Tooby report on research finding that our reasoning abilities are more finely attuned to detect cheating than any other type of misbehavior.  Before discussing violations of social norms, Cosmide and Tooby explain the most fundamental norm in human behavior -- reciprocal altruism in social exchanges. 

The evolutionary analysis of social exchange parallels the economist's concept of trade. Sometimes known as "reciprocal altruism", social exchange is an "I'll scratch your back if you scratch mine" principle. . . [S]ocial exchange cannot evolve in a species or be stably sustained in a social group unless the [participant's] cognitive [abilities permit] a potential cooperator to detect individuals who cheat, so that they can be excluded from future interactions in which they would exploit cooperators.

Who are the cheaters?  Individuals who "accept[] a benefit without satisfying the requirements that  . . . [the] benefit  was made contingent upon."  You know, the people who earn a little extra by padding their billable time by two or three hours a week.  Benefit without satisfying its conditions.  Work for hire.

How Good Are We at Detecting Cheating?  Very, Very Good

The researchers designed an experiment to test whether we have a specialized "cognitive architecture" that permits us to detect "logical violations of conditional rules."  The result?  In response to a relatively simple logical problem-solving exercise designed to test this type of reasoning, Cosmides and Tooby found that fewer than 25% of subjects spontaneously detected the violation. 

What about our logical reasoning skills when it comes to detecting cheating or bluffing?  In these circumstances, we become very smart very fast.  The authors explain:

People who ordinarily cannot detect violations of if-then rules can do so easily and accurately when that violation represents cheating in a situation of social exchange . . . This is a situation in which one is entitled to a benefit only if one has fulfilled a requirement (e.g., "If you are to eat those cookies, then you must first fix your bed"; "If a man eats cassava root, then he must have a tattoo on his chest"; or, more generally, "If you take benefit B, then you must satisfy requirement R").

Cheating is accepting the benefit specified without satisfying the condition that provision of that benefit was made contingent upon (e.g., eating the cookies without having first fixed your bed).

When asked to look for violations of social contracts of this kind, the adaptively correct answer is immediately obvious to almost all subjects, who commonly experience a "pop out" effect.

Whenever the content of a problem asks subjects to look for cheaters in a social exchange -- even when the situation described is culturally unfamiliar and even bizarre -- subjects experience the problem as simple to solve, and their performance jumps dramatically.

In general, 65-80% of subjects get it right, the highest performance ever found for a task of this kind. 

No wonder we like to play Texas Hold'em.

And no wonder we get an uneasy feeling whenever we begin to sense that our opponent (or attorney!) is cheating us.  We just know it.

As I've often opined before, this is why the collective wisdom of juries as fact-finders will always trump panels of expert advisors.  They just know who's bluffing and who's not and they don't let a lot of legal or technical mumbo-jumbo interfere with their B.S. Detectors.  

Another Benefit of Getting Your Case Before a Mediator

After mediating full-time for three years, I realize it's not just how astute and perceptive I can be in reading people (there goes another of my own self-satisfied bubbles).  A mediator is simply in a unique position in an adversarial system.  We get to use our hard-wired bluffing skill because everyone talks to us more or less openly for several hours, which is longer than we really need to get a sense of who's bluffing and who's not.

Still, in order to detect this particular violation of the social contract, you do need a mediator more skilled at listening than s/he is at solving intricate logical puzzles.  Ideally, you look for both.   Education.  Training.  Experience.  But it's likely the mediator's ability to set everything else aside and simply listen as the parties explain themselves that separates the masters from the amateurs. 

How and why we too often override our gut feelings in this regard, permitting ourselves to be bilked and scammed, is the subject of Michael Webster's Blogs, which I highly recommend you make part of your skimming.  (who has time to actually read?)

And, oh yes.  It would be best not to cheat your clients.  Biting the hand that feeds you and all that.  Better to look him or her in the eye with a clear conscience and sleep soundly than make that 2200 hour bonus this year.

Negotiating the Future: Know Thyself

From our friends at the Neuromarketing Blog, we learn that twenty-somethings are more risk-averse than seniors. 

Story:  Mediation Practice

In my mediation practice, I find that people accurately assess how risk-averse they are and that they will readily tell you why ("I was poor"; "I was rich"; "I survived the Viet Nam War"; "I lost my parents when I was ten and was sent to live in an orphanage" etc., etc.) 

Because I now help people make decisions on a weekly if not daily basis, I know that both the "why's" and the "therefore's" of risk-tolerance are as unique as fingerprints.

Story:  Dad and the Grapes of Wrath

I, for example, was raised by parents who experienced the Great Depression.  My father's family worked its way west from Nebraska to Portland and finding no source of sustenance there, drove the model-T south through California's fertile Imperial Valley, picking fruit and vegetables on the way (the entire family, including all children old enough to pick).  

Dad's family eventually settled in the foothills of San Diego (Ramona) where they raised chickens.  His mom took in the neighbors' laundry to fill in the financial gaps.  

Other than Mr. Thrifty, Dad is the most financially risk-averse person I know.  (oh no! you DO always marry your dad!)

Story:  Me and Mr. Thrifty

But let's go to the second generation.  Raised by depression-era parents, my older sister is incredibly financially risk-averse and I (to Mr. Thrifty's horror) am on the far end of risk-courting.  Mr. Thrifty's childhood financial distress, on the other hand, seems to have produced two financially prudent children -- neither pathologically "tight" nor abnormally risk-seeking.    

But this is all anecdote, you say. 

Yes, but the truth resides in the particular, not in the general. 

Story:  Innocence and Experience

At the beginning of the semester at the Straus Institute one year, the professor asked each student to jot his or her greatest fear on a piece of paper.  Roughly half of the class was post-forty mid-career people and the other half twenty-something law students.  

I was genuninely shocked by the result.  In a roomful of statistically over-achieving outliers, every  twenty-something law student said "failure" and every mid-career student said "nothing."  

If pressed, I'm sure we mid-career types could have populated a lengthy list of fears:  ill health, war, earthquake, loss of our children, etc., etc., etc.  That our first response was "nothing," however, said something about us.  What?  And why were all these bright, talented young people who were so clearly successfully achieving so afraid of failure.  

Then it struck me.  We mid-career people were not afraid of failure because we had likely already failed.  And survived.  Rather joyously.  The law students who haven't yet failed think failure will be a far greater catostrophe than it ever actually is.  This is not only the wisdom that comes with age, but also the new finding of the neuroeconomists.

Finally!  the Neuroscience

In a 2005 article in the Illinois Law Journal, Law and the Emotions: The Problems
Affective Forecasting
 (80 Ind.L.J. 155, 167)  Syracuse Law School Professor Jeremy A. Blumenthal summarizes the current research on one's ability to anticipate the degree of suffering that might be caused by failure as follows:

although people are relatively adept at knowing which emotion they will experience and whether it will be positive or negative, people are surprisingly inaccurate at predicting the intensity and the duration of those emotions. Moreover, this is so even for relatively “straightforward” emotional experiences, such as winning the lottery or suffering severe injuries.  It is on such inaccuracies—in predictions of the intensity and duration of future emotional experiences—that most of the affective forecasting research has been focused.

Id. (emphasis added).

Parting thought?  There's no greater gift to one's peace of mind than failure.  

Don't Crush that Cross-License: Negotiate a Business Deal

Step four in The Art of Getting the Best Deal:  Solve the Joint Problem

(left:  my first 2-wheeler on which my grandfather, the sign-painter, inscribed my name)

Exploring Different but Compatible Interests

Lax and Sebenius suggest that many negotiators "simply assume their interests to be the opposite of yours -- rather than different and potentially compatible."

You cannot, however, simply instruct the parties to search for different but compatible interests.  The mediator needs to listen long and carefully for the needs and concerns that are driving the parties' legal positions.

But First, a Little Reactive Devaluation*

You'll recall that the parties to my hypothetical patent infringement action had already made lists of extremely valuable non-economic benefits that they might exchange with one another to resolve the dispute.  They soon pushed those bargaining chips aside, however, quickly reverting to purely monetary issues.  

Why do litigants abandon business opportunities more valuable than their total monetary demand?   "Reactive devaluation." ** 

Money seems objective and certain while the value of intangibles is imprecise and risky. 

Non-quantifiable benefits are greeted with the suspicion one reserves for the street vendor hawking Louis Vuitton handbags.  This apprehension is probably expressed by litigators more often than any other professionals -- "if he wants it, it can't possibly be good for me."  


**  I learned everything I know about the social psychology of conflict from University of Missouri Law School Professor Richard Reuben.  This is one of his best and most comprehensive Power Point Presentations.  Take a look when you have a moment.  Learning social psychology is is like hitting the "reveal codes" key in WordPerfect or seeing the matrix:  your entire conflict-life is mapped, graphed and revealed.  Thanks again Richard! 

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Don't Cut that Patent in Half: Negotiate a Business Deal

As promised, we bring you Step Three from the Lax and Sebenius article, the "Art of Getting the Best Deal

Bringing the Deciders and Assessing Party Interests (a Brief Review)

Yesterday we stressed the importance of identifying the "deciders" and those who might get in the way of the deciders' decision (the known unknowns and the unknown unknowns).  

Today, we apply those principles, along with the third Batna step, to a hypothetical patent infringement mediation.  

Because litigators are trained to organize party interests around legal theories and business people to organize their own thinking around commercial interests, your mediator should be facile with both.  At some point, the mediator should assist the parties and their counsel in shifting their attention from litigation "interests" (costs, merits) to business and marketing interests.


Because there are thousands of ways to make a deal and only a handful of legal remedies to resolve a dispute.       

MARKETING MOMENT:  Hiring a mediator 

fluent in the language of party interests and knowledgeable about the industry in which the parties are working will greatly assist everyone in crafting a business solution to a legal problem. 

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Free Lunches and the Short Con

Our friend Michael Webster at the Misleading Advertising Law Blog once reported on a securities scam that bilked almost $600,000 from elderly victims who were lured by a "free investment seminar, complete with lunch."

What is it about a free lunch, our correspondent asks, that would convince individuals to turn over their life savings to [a con man]? The answer, once again, can be found in the social psychological archives, particularly those described by Robert Cialdini.

Cialdini, says Michael, describes the influence tool here as "the rule for reciprocation."

The rule says that we should try to repay, in kind, what another person has provided us. If a woman does us a favour, we should do her one in return; if a man sends us a birthday present, we should remember his birthday with a gift of our own.

Although the reciprocation rule does not appear to require us to turn over our hard earned money to a criminal just because he has bought us lunch, some scientific experiments have shown that the rule can be used to obtain significant economic benefits. The old Amway trick of delivering a "free sample" of merchandise for a 24 trial period ensnared many a consumer who would not have purchased from Amway otherwise.

Why can the rule extract seemingly excessive favours? Cialdini identifies two reasons: (a) most of us find it highly disagreeable to be in a state of obligation, and will quickly try to remove ourselves from its grasp, and (b) to violate the rule is to be a moocher or a welsher. In order to avoid being labeled as such, we might agree to an unequal exchange of favours.

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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. 

Empathy, Evolution, Mediation and Global Warming

I took an urban hike with my good friend the composer, lyricist and novelist Kathleen Wakefield yesterday.  I live at the base of the Santa Monica mountain range, making for a good hour's hike from the Los Angeles Basin to the range's crest on Mulholland Drive and back (even if we only made it to Fountain) (yes, the Fountain of Bette Davis' famous response to the question "how do you get to Hollywood?"  -  "take Fountain") .

Because Kathleen makes her living selling her intellectual property, we were talking about the challenges raised by and opportunities presented to artists as their work becomes more and more their own property and less and less the business of those who "discover" it (A&R), produce it (Viacom, MGM, Capitol Records, etc.), sell it (Madison Avenue) and protect it (ASCAPentertainment lawyers).

Our conversation naturally ranged to Web 2.0; a world without borders; and, global warming, all of which took me back to the book my friend Ken Cloke is writing called "Mediators Can Save the Planet."

Why mediators?  Because WORLD 3.0 will require that we supercharge our natural cooperative and altruistic natures while dampening our competitive drive without thereby discarding our ambition. 

What will it take?  A shift from competition to collaboration.  

Can we do it?  "Yes we can," says Al Gore in An Inconvenient Truth when his audience begins to move from denial to despair.

How?  At least one way to get the global cooperation ball rolling will be to school ourselves in empathy, a necessary prerequisite to tackling the problem of collaborative solutions to worldwide  problems. 

All of which leads us to an old but timely article Empathy, Morality and Otherness by Dr. Douglas Chismar.  Before proceeding to suggest art as one of the ways we can increase our ability to identify the injustices done to and suffering endured by "foreign" others, Dr. Chismar identifies three types of empathy triggers:  (1)  empathizer specificity; (2) situation specificity; and, (3) recipient specificity.  He writes:  

Empathizer specificity refers to the manner in which individual empathizers vary in their general level of empathic responsiveness as a personality trait. Some people empathize quite often and intensively, others rarely and only weakly.

Situation specificity refers to how empathizers respond selectively to a variety of different empathy opportunity situations. Certain circumstances, for example the Challenger disaster, have evoked widespread empathy, while others, such as the civil war in Rwanda, evoked little response.

Recipient specificity speaks of how empathizers respond differently to particular kinds of individuals. A neighboring family left homeless by fire may evoke considerable empathy while a wino on a street corner may stimulate little concern.

After discussing the many reasons why we understandably misread the injustices visited upon and fail to respond to the suffering of distant and foreign "others,"  Dr. Chrismar suggests that we nourish our natural empathy impulses with art.  "We need to find a way to take the initial impulse to empathize and nourish it," he argues,

 rather than letting it slide, as it is prone to do, into the rut of selectivity. Humans have discovered at least two strategies for increasing the frequency and intensity of empathy, and overcoming its partiality.

The first strategy is the largely cognitive operation of what is commonly referred to as “universalizability.” This consists of abstracting from one’s particular situation and viewing oneself as one among many. It takes various forms, including reversibility (placing oneself on the imaginary receiving end of an action) and a kind of stripping away of what makes one particular (“judging a man by the content of his character rather than the color of his skin)”.

 A second strategy appeals to the arts . . . Through drama, poetry, film, and other arts, imaginative participation in others’ experience is enabled where it would otherwise fail to occur. The arts, through creating a mock reality, thrive upon the sense of fascination with the different while creating situations in which empathy is powerfully and irresistibly generated.

Human tendencies towards curiosity and exploration are harnessed to project the emotions into alien situations. The accepted suspension of cultural norms, which has tended to characterize the artworld throughout its history, permits the feeling and expression of unconventional emotions, unloosing a stream of feelings otherwise bottled up in a business-like society.

There's much more of interest in this article to anyone engaged in the project of preparing ourselves for the challenges of the coming century, including the mass relocation of people due to the rise in the sea level and the potential for catastrophic species extinction -- neither of which is science fiction anywhere but in the Bush White House.

Check it out.

Live to Cooperate, Cooperate to Live

I am constantly reminding my readers that we are hard-wired cooperators.  Cooperation alone, regardless of result, makes us happy.  Better yet, cooperation almost always results in a better deal for everyone. 

This is not do-good, crystal-reading, pentagram-worshiping kum-by-ya feel good west coast touchy-feely nonsense.  This is evolutionary biology.

In this week's Sunday New York Times Natalie Angier reminds us that cooperation is not only the necessary pre-condition to the survival of the human species as a group, but is also the pre-condition to each of our individual lives.  In her fascinating article, Sociable Darwinism, Ms. Angier reviews Evolution for Everyone (etc.) by Professor David Sloan Wilson at Binghamton University.  

As Ms. Angier explains:

Wilson has long been interested in the evolution of cooperative and altruistic behavior, and much of the book is devoted to the premise that “goodness can evolve, at least when the appropriate conditions are met.” As he sees it, all of life is characterized by a “cosmic” struggle between good and evil, the high-strung terms we apply to behaviors that are either cooperative or selfish, civic or anomic.

The constant give-and-take between me versus we extends down to the tiniest and most primal elements of life. Short biochemical sequences may want to replicate themselves ad infinitum, their neighboring sequences be damned; yet genes get together under the aegis of cells and reproduce in orderly fashion as genomes, as collectives of sequences, setting aside some of their immediate selfish urges for the sake of long-term genomic survival.

Cells further collude as organs, and organs pool their talents and become bodies. The conflict between being well behaved, being good, not gulping down more than your share, and being selfish enough to get your fair share, “is eternal and encompasses virtually all species on earth,” he writes, and it likely occurs on any other planet that supports life, too, “because it is predicted at such a fundamental level by evolutionary theory.”

How do higher patterns of cooperative behavior emerge from aggregates of small, selfish units? With carrots, sticks and ceaseless surveillance. In the human body, for example, nascent tumor cells arise on a shockingly regular basis, each determined to replicate without bound; again and again, immune cells attack the malignancies, destroying the outlaw cells and themselves in the process. The larger body survives to breed, and hence spawn a legacy far sturdier than any tumor mass could manage.

For the remainder of this article, click here.  For how this phenomenon applies to the legal profession, see Unhappy Lawyers and the Cooperative Hard Wire here.   

To read Professor Wilson's book, EVOLUTION FOR EVERYONE -- How Darwin’s Theory Can Change the Way We Think About Our Lives, click on the title.

Aggressive First Offers: Helpful Notes

Research shows that how we perceive a particular offer's value is highly influenced by any relevant number that enters the negotiation environment -- an anchor.

The greater the ambiguity and uncertainty, the stronger the anchoring effect of the first offer, which will exert a strong pull throughout the rest of the negotiation.

researchers had real estate agents inspect a house and estimate its appraisal value and its purchase price 

  • then they manipulated the house's list price, providing high and low anchors

  • all of the agents' estimates were influenced by the list price, even though they denied factoring the list price into their decisions

  • when they explained the basis for their estimates, they cited features of the property that would justify those estimates

in another study, researchers sent customers to mechanics to obtain estimates on the value of a car

  • after the customer offered his own opinion of the car's value, he asked the mechanic for an estimate
  • half the mechanics were given a low anchor and half were given a high anchor
  • the mechanics estimated the car to be worth a thousand dollars more when they were given the high-anchor value

a Northwestern busienss law school professor explained the phenomenon this way

  • items being negotiated have both positive and negative qualities—qualities that suggest a higher price and qualities that suggest a lower price
  • high anchors selectively direct our attention toward an item's positive attributes; low anchors direct our attention to its flaws
  • a high list price directed real estate agents' attention to the house's positive features (such as spacious rooms or a new roof) while pushing negative features (such as a small yard or an old furnace) to the back recesses of their minds
  • similarly, a low anchor led mechanics to focus on a car's worn belts and ailing clutch rather than its low mileage and pristine interior 

making the first offer anchors the negotiation in favor of the offeror

  • the author of the article from which these insights were gleaned found that when a seller makes the first offer, the final settlement price tends to be higher than when the buyer makes the first offer 
  • the amount of the first offer affects the outcome, with more aggressive or extreme first offers leading to a better outcome for the person who made the offer
  • Initial offers predict final settlement prices better than subsequent concessionary behaviors do

how extreme should your first offer be?

  • this author's research suggests that first offers should be quite aggressive but not absurdly so 
  • the fear that an aggressive first offer will scare or annoy the other side and perhaps even cause him to walk away in disgust is typically exaggerated
  • most negotiators make first offers that are not aggressive enough
  • a nonaggressive first offer requires small concessions or a decision to stand by the original demand
  • one of the best predictors of negotiator satisfaction with an outcome is the number and size of the concessions extracted from an opponent
  • by making an aggressive first offer your opponent is able to "extract" concessions from you
  • in that case, you'll not only get a better outcome, but you'll also increase the other side's satisfaction

from "Should You Make the First Offer?"  by Adam D. Galinsky, an assistant professor at Northwestern University's Kellogg Graduate School of Management, in Evanston, Illinois.

Mediation Strategy: Don't Gloat

(above, Charles Fincher's illustrative cartoon)  

I was talking to an attorney friend this morning about an upcoming mediation in a complex commercial case.  Lots and lots of $$$$$ at issue.  Last week -- a week before the mediation is set to convene --  his team scored a pre-trial victory on an eight figure issue.

If I'd had time to think about it, I'd have given him the mediation strategy advice he was already suggesting to himself.


Aside from your mother's advice to never be a "bad winner" and your own certain knowledge that your shiny new pre-trial ruling can always be reversed, stifling your gloat-reflex will have at least two beneficial effects on your upcoming negotiation.  

  1. your opponents' reflexive desire to retaliate by launching an all-out thermo-nuclear-legal attack will be quieted, if not eliminated; and,  
  2. your opponents' ability to use their higher "executive" brain functions during the upcoming negotiations will be increased, soothing the fear and anger flight-fight mechanism of the  brain's reptilian amygdala, which, when triggered, overrides the sophisticated "executive" brain functions necessary to a successful high-stakes negotiation.

So, my friend had it right on the money this morning.  The hardest thing about the upcoming negotiation will be not to gloat.  

Make "not gloating" the center of your strategy, I replied, and you'll settle that multi-bazillion dollar case and make your corporate client truly happy.

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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My Amygdala Made Me Do It: Neuroscience and the Law

The New York Times Sunday Magazine cover story this coming week -- The Brain on the Stand -- covers a lot of territory on the use (and potential abuse) of neuroscience in the legal system.     

While the scientists debate whether  knowledge gleaned from sophisticated brain imagery demonstrates that our brain activity  controls our  behavior or simply reflects it, those of us concerned with decision making have much to learn from it.         

Because my work is pretty much exclusively devoted to finding mutually beneficial resolutions to hotly contested litigation, neuroscience insights into how and why we make decisions -- and how we might make them better -- have been invaluable in my practice.    

In this article, author Jeffrey Rosen describes the results of one neuroscientific experiment suggesting that dampening our emotional reactions to the regretably common "insulting first offer" might keep us in the negotiation process long enough to let our more rational responses prevail.     

He explains:

'A remarkable technique called transcranial magnetic stimulation, for example, has been used to stimulate or inhibit specific regions of the brain. It can temporarily alter how we think and feel.

Using T.M.S., Ernst Fehr and Daria Knoch of the University of Zurich temporarily disrupted each side of the dorsolateral prefrontal cortex in test subjects. They asked their subjects to participate in an experiment that economists call the ultimatum game.

One person is given $20 and told to divide it with a partner. If the partner rejects the proposed amount as too low, neither person gets any money.

Subjects whose prefrontal cortexes were functioning properly tended to reject offers of $4 or less: they would rather get no money than accept an offer that struck them as insulting and unfair.

[remember -- even monkeys would rather earn no "salary" than let their "CEO" monkey make five times as much as they do -- so this is animal behavior]

But subjects whose right prefrontal cortexes were suppressed by T.M.S. tended to accept the $4 offer. Although the offer still struck them as insulting, they were able to suppress their indignation and to pursue the selfishly rational conclusion that a low offer is better than nothing.

I do not cite this research to suggest that we should be satisfied with "insulting and unfair" proposals.  I cite it only for the thoughtful consideration of litigants and business people everywhere. 

It is perfectly 'rational" to respond to an insulting offer by rejecting it.  Being alert to our tendency to allow emotions to reign in response might give us the breathing room we need to calm our clients and continue to pursue a settlement negotiations that could well lead to resolutions that are neither insulting nor unfair.

The article is invaluable reading for anyone wanting to answer the question -- what in the world could the other side be thinking?  A question that can only be answered when the parties sit down together with a commitment to seeing the negotiation through.  

And if you're not already on speaking terms with your amygdala, click here for a fuller (lay) explanation of its effect on decision making.

Settling Lawsuits, Making Business Deals, Developing Business and Small Talk

Jack Welch shares a golf-cart with former President Bill Clinton 

We've mentioned the benefits of small talk for settling lawsuits before. 

In a recent post entitled What Am I Supposed to Know About  (thanks to mediator blah blah for directing our attention there) professional firm management guru David Maister, praises the marketing value of small talk.  In this post, he suggests that we might  want to be conversant with the following topics to hold up our end of a conversation at a dinner party or on the golf links with potential clients. 

  • Local politics
  • National Politics
  • International affairs not directly involving your own country
  • The latest tech gadgets
  • The latest fiction best-sellers
  • The latest non-fiction best-sellers
  • What’s hot on television
  • The latest art exhibition to open in your town
  • The popular music charts
  • Yo-yo Ma’s latest album
  • What’s good on Broadway this season
  • The latest movies
  • Local sports teams
  • Sports events not involving local teams
  • Latest theories of child-rearing

I'm tired already.  It's hard enough to keep up with what actually interests me let alone with what doesn't interest me in the least.  

Does that mean that my more eclectically knowledgeable mediator peers will be better able to settle lawsuits and develop business?  I don't think so.  Why?   Because they're really just not that into you. 

So here's the super-secret intergalactic decoder-ring mystery of small talk revealed.  Ready?  


You don't need to know anything about sports, local politics, literature, brain surgery, travel in Cambodia, statistical analysis, Islam, the movies, Anna Nicole Smith or the British monarchy.

In fact, the LESS you know, the better.


Because the less you know, the more interest you'll take in your fellows.  Show an interest in what your clients, potential clients and negotiating partners are interested in and you will make friends for life.

Eventually, these people will get around to asking what it is that you do, thinking it must be something pretty wonderful because you're one of the few people who appear to be smart and forward-looking enough to be so deeply interested in how fascinating they are. 

I tell students to whom I teach the art of taking pre-trial testimony, that this is the same principle as the one you use to pick up men in bars -- a talent I have not used in at least 20 years, having turned this dark art into a power for the good.

As we've previously noted, small talk settles lawsuits and greases the wheels of commerce.

The lawyer who gets credit for that new case from the Fortune 50 company is not alas, the lawyer doing the actual work.  It's the lawyer with the monthly golf date with general counsel or the CEO. And what that lawyer talks about on the links is not what she knows about the principle products of Paraguay or any other topic of general or specific interest.  What she talks about is whatever is of current interest in the GC or the CEO.

And the only way to know that, is to take a genuine interest in others and ask a lot of questions.

The Power of Influence

Even the Evangelical-Pie-Expanding-Negotiation-Collective (which awards this week's Exploding Pie Trophy to Diane Levin's Brilliant Post on the Inefficiencies of Trickery, Force and Persuasion) occasionally needs to resort to deception, influence and naked power plays.

So it is that we turn to Robert B. Cialdini's Six Rules of Influence that Could Make or Break Your Next Commercial Negotiation. 

Rule of Reciprocity

The rule of reciprocity is descriptive rather than prescriptive. When one person freely gives another something of value -- time, information, goods, or, in negotiations, concessions -- the receiving party inevitably feels an obligation to reciprocate.

Studies show, for instance, that the peppermint candy your waiter leaves with the check for dinner, dramatically increases the tip you give him. The same principle is used by charitable institutions whenever they send you return address labels bearing logos for -- pick one -- Amnesty International; the Red Cross; Habitat for Humanity, the Union Rescue Mission, and the like.

If unaware of this principle, the recipient of unasked for "favors" can be induced to enter into drastically unequal exchanges. To rid ourselves of the discomfort arising from an unpaid debt, for instance, we often agree to a request for a substantially larger favor than the one bestowed upon us.

Included within this rule is the "rejection-then-retreat technique," which relies heavily on the pressure to reciprocate concessions. By starting with an extreme demand that is certain to be rejected, the negotiator can profitably retreat to a smaller request--one that was desired in the first instance.

No matter how outrageous the opening offer, the second request is far more likely to be accepted because it appears to be and is a tempting concession (so long as the opening "outrageous" offer doesn't cause the termination of the negotiations at the outset).

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The Cost of a Thing is Your Life

The Cost of a Thing is the Amount of Life Which is Required to Be

Exchanged for It, Now or in the Long Run [1] -- Part One  


When a decision-maker says, “it’s only about money,” he means that the choice to be made is purely rational and that strong emotions – feelings – will play no role in the analytic process to follow. When lawyers say a case is “only about money,” they are not only saying that emotional factors will not influence their decisions. They are often also saying that Plaintiffs’ expressions of injustice are insincere – otherwise they would not accept money in exchange for losses that cannot be reduced to monetary value such as the loss of life or emotional suffering. 

Whenever any of us attempt to arrive at a monetary value for anything we buy, barter or exchange, we, like the lawyers and decision-makers above, are engaged in the process of commensuration in which qualities are transformed into quantities. In the case of a legal conflict, commensuration takes place not only in reducing physical and emotional loss into monetary values, but also by contracting the conflict itself into certain rigid categories of redressable wrongs we call “causes of action.” In both cases, the texture, context and idiosyncratic particularities of a conflict are reduced to a common metric of an actionable claim compensable in monetary damages. [2] 

While the process of commensuration allows us to more easily grasp, represent and compare differences in an effort to “manage uncertainty, impose control, and secure legitimacy,” [3] we often thereby give up our recourse to “[e]veryday experience, practical reasoning, and empathic identification, [all of which] become increasingly irrelevant bases for judgment. [4]   In simplifying matters for ease of analysis, we inevitably strip away context, ignore differences, and reduce the “relevant” facts to categories that reproduce past experience for the purpose of equating the thing to be valued with a supposedly objective metric. [5]  

Setting the personal relational and historical account of the conflict aside, lawyers seek from their clients only those facts that will satisfy the “elements” of causes of action for negligence or other breaches of society’s civil legal standards, after which a judge or jury will be asked to value the loss suffered in the form of monetary damages . 

[1]               Henry David Thoreau, WALDEN at 44.

[2]               Stevens, Mitchell and Espeland, Wendy Nelson, COMMENSURATION AS A SOCIAL PROCESS (1998)24 Annual Review of Sociology 313-43.

[3]               Id.

[4]font size="2">               Id. 

[5]               Id.; see also Even, William E. and Macpherson, David A. THE WAGE AND EMPLOYMENT DYNAMICS OF MINIMUM WAGE WORKERS (2003) 69 Southern Economic Journal 676 for examples of the way in which the profound differences in the labor we perform and the products that labor produce are abstracted and reduced to “manageable” categories for the purpose of determining the minimum acceptable wage that our fellows should be required to accept. A quick review of census and other statistical employment data reveals that the identical minimum wage is generally paid to the college student who passes your bag of burgers through McDonald’s take out window; the middle-aged mother of three who changes your sheets and linens at the local Holiday Inn; the retired high school chemistry teacher who tends to the needs of your elderly father at the local assisted living facility; the young actor bagging your groceries at the Bristol Farms; the Viet Nam veteran flipping burgers at an all-night Dennys; the night watchman guarding your downtown office building; the seamstress who embroiders designs on the back pockets of your $200 jeans; and, the cashier calculating the cost a 5,000 mile tune-up for your new BMW.

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Neuroscience, Negotiation and Decision Cycles

Hat tip to our favorite Neuroscience-for- Dummies blog -- Neuromarketing -- for directing us to Time Magazine's recent article on the intersection of marketing and neuroscience.  

(N.B.  There's a permanent link to Neuromarketing in our own left-hand column if you'd like to follow these developments yourself).

Time's article Marketing to Your Mind, tells us about P. Reed Montague's work on the way trust, altruism and feelings of obligation  can divert and modify the steps we ordinarily take to make decisions.  

Of the speed with which neuroscientists are increasing our knowledge of how and why we think the way we do, Montague is quoted as saying,  

The capacity to use brain responses and relate them to behavior has accelerated at a breathtaking pace over the past four years and yielded an incredible amount of information.

That's exciting news for the Negotiation Law Blog because "being inside the other guy's decision cycle" (Colin Powell) is the best way to maximize your negotiating advantage.  

As the simplistic chart above confirms, most of us already know what questions to ask about our negotiating partner before and during any bargaining session.  To whom does he report; what is his personal stake in the outcome; why does he (or his organization) need the advantages he's angling to obtain; what damage to his personal/professional interests or his organization's well-being would be done by walking away from the bargaining table; under what time and other pressures are he and his business operating, who are the true "stakeholders," both internal and external, and the like.  

(Remember -- google everyone and search every public source of information on your bargaining partner and her organization before any negotiations begin).  

Adding to these largely business considerations, an understanding the way all people tend to make decisions could well be the difference between negotiation success and failure.  That's why your Negotiation Blog follows developments in neuroscience and evolutionary biology so closely.  So you won't have to.

Look for our next post on the way  Dr. Montague's insights can assist you in closing your next deal.   

Neuro Everything at Harvard B-School Working Knowledge

Over at Harvard Business School Working Knowledge (one of our favorite resources for what's new in negotiation studies), Jim Heskett, the Baker Foundation Professor at Harvard Business School, heralds the arrival of an avalanche of materials in neuroscience in Neuro Economics: Science or Science Fiction? 

We post a brief excerpt here, but recommend reading the entire article by clicking on the link above. 

Among the propositions advanced from this work thus far, for example, are that risk and return are assessed in different parts of the brain, thereby questioning theories regarding expected utility on which a great deal of decision theory has been based up to now. Thus, according to this research, different qualities of, say, investment decisions are made when perceptions of risk or greed (return) prevail in terms of heightened brain activity.

Another line of work involves the study of the best locus in the brain, conscious or subconscious, for making various decisions. For example, it is thought that more complex decisions involving hard-to-quantify factors are best made in the subconscious after some amount of preparation. That is, study the problem, sleep on it, and decide without further analysis. It's the type of decision making described by Malcolm Gladwell in his book, Blink.

According to this line of thinking, questions involving more quantifiable, straightforward considerations are best answered in the conscious portion of the brain, presumably after considerable conscious thought. Work in neuro marketing at Ludwig-Maximilians University in Munich now claims that strong brands create more excitement in decision-influencing areas of the brain than weak brands, even for mundane products.

Does this influence purchase decisions? Stay tuned.

For more on this topic, see Free Will:  Now You Have It, Now You Don't by Dennis Overbye from the New York Times.

Social Psychology of Negotiation

Hooray for the publication of a new volume on the social psychology of negotiation edited by Professor Leigh L. Thompson, Negotiation Theory and Research

I learned more about negotiation from Leigh L. Thompson's Mind and Heart of the Negotiator than from any book I've read, seminar I've taken, or advice I've been given.  And I've read, taken and been advised a lot since I began my LL.M studies in conflict resolution at Straus in 2004.

So despite the steep price-tage on Negotiation Theory and Research, edited by Dr. Thompson, I'm buying my copy today.  You can await my recommendation or skim Dr. Thompson's on-line work and purchase your volume before any of your negotiating partners do.

Dr. Thompson is one of those frighteningly accomplished people who make you feel as if you must be sitting around watching soap operas all day.  She's currently the J. Jay Gerber Distinguished Professor of Dispute Resolution & Organizations in Northwestern's Kellogg School of Management; has received the multi-year Presidential Young Investigator award from the National Science Foundation; gathered up several National Science Foundation grants; and has served a term as Fellow at the Center for Advanced Study in the Behavioral Sciences in Stanford, California.

At Kellogg, Dr. Thompson directs the Kellogg Team and Group Research Center, the Leading High Impact Teams Executive Program at Kellogg, and the Behavioral Laboratory at Kellogg.

I'm already completely worn out before I'm told that she has published over 90 research articles, books, and chapters, including The Mind and Heart of the Negotiator (3rd edition), Shared Cognition in Organizations (with John Levine and David Messick), Making the Team (2nd edition), The Social Psychology of Organizational Behavior: Key Readings, and Creativity in Organizations.

She is a member of the editorial boards of Organizational Behavior and Human Decision Processes, Journal of Personality and Social Psychology, Journal of Experimental Social Psychology, Journal of Behavioral Decision Making, and International Journal of Conflict Management. 

New Year's Resolutions from Harvard Business School

Because we apparently believe that our future selves will behave better than our present selves, we can "trick" ourselves into "doing the right thing" by agreeing today to take action tomorrow that we wouldn't take today.  Though this is one of those instances of social science researchers confirming what our experience already tells us (ever try to quit smoking?) it's worth taking a look at Future Lock-In, one of the most-read articles of last year in Harvard Working Knowledge

Small Talk and Separate Caucuses

Most attorneys do not like to begin their mediated negotiations with a joint session and neither do many mediators.  The reason most often given is everyone's desire to avoid a polarizing set of zealously adversarial presentations.  

Work done by our neighborhood neuroscientists, however, suggests that avoiding joint sessions may deprive us of the  "small talk" necessary to put the parties into a collaborative, even generous mood.  

First the Neuroscience  (from my favorite source for such insights, the Neuromarketing Blog

Recent research confirms that the miserly not only spend more time thinking about money than their more generous peers, they are also more socially withdrawn.  Although Dickens nailed the personality type on the head  when he created the friendless and miserly Scrooge, it seems that all of us are anti-social and penny-pinching when focusing primarily upon money. 

The confirming research?  Recruiting the usual cadre of beleaguered undergraduates, scientists at the University of Minnesota found that when students have their minds on money, they tend to be both selfish and withdrawn.  Those who were "primed" by money imagery before being asked to engage in (or imagine) solitary, group or "helping" activities  

waited nearly 70% longer to seek help than those who[se attention was not directed to money]; spent only half as much time . . . assisting []other[s] . . . [and] preferred working alone even if sharing the task with a co-worker resulted in substantially less work. 

The young people whose attention was focused on money also  

chose solitary leisure activities . . . preferring a private cooking lesson, for instance, over a dinner for four [and] when asked to set up two chairs for a get-to-know-you chat with another volunteer, . . . placed the chairs further apart than subjects [whose attention had been directed to non-monetary themes].

These findings, concluded the researchers, suggest that thinking of money puts people in a frame of mind in which they don’t want to depend on others and don’t want others to depend on them.  (see Thinking About Money from Neuromarketing here).  

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Copyright Charles Fincher at Scribble-in-Law, www.LawComix.com

You can buy this (signed!) and many other hilarious legal comics at the site that I've linked to above. 

What is it about Texas Lawyers and Art?  See Billing Time. 

Whatever it is, we're grateful for the laugh of recognition.  We all take ourselves too seriously and need to have our balloons popped like this at least once a week.

Why have I never seen any of these before?

I'm going to be late for a mediation because I stayed too long on the Scribble-in-Law site.

Thanks Charles!!

Changing the Other Guy's Mind, Part Two


Change is Pain -- Recap

As Rock and Schwartz demonstrate in the Neuroscience of Leadership, change is pain. Just take a look at the expression of dismay on our cartoon mathematician's face when his colleague explains that he made a mistake in step two or three of his lenghy equation. Like the rest of us, he  experiences error in the "reptile" flight or fight part of his brain -- the amygdala.  

Because the amygdala's response is a hair-trigger reaction to danger -- timed to override any wasted cognitive activity at, for instance, our first detection of a black striped yellow creature softly padding toward us -- our mathemetician's discomfort is far more likely to be expressed in anger or petulant withdrawal than in any further rational argumentation.   

We're threfore extremely unlikely to change our minds when someone is vigorously asserting that we are wrong wrong wrong wrong WRONG!

[Slight Digression -- In the Absence of Information, We Make Stuff Up] 

Our brains are pattern-making organs.  They are always trying to fit the pieces of a puzzle together.  So strong is our desire to "make sense" of unrelated and disparate data that we tell ourselves absoutely sincere and compelling stories which are often completely and demonstratively untrue.  

Researchers have demonstrated our talent for creative narrative by studying people whose left and right brains have been severed by surgery or accident.  These people are perfect experimental subjects because their right (impressionistic, visual, creative) hemispheres have no way of communicating with their left (verbal, linear and logical) hemispheres.  What one hemisphere knows, the other cannot learn.    

In one of the most famous "split brain" studies, researchers presented each hemisphere with two images.  One of the two images presented to each hemisphere matched the picture presented to both hemispheres.  When asked to identify the related images, the subjects were easily able to point to related images with the hand controlled by the hemisphere capable of identifying the "match."    

Because only the left brain can 'talk," however, when asked why the right hemisphere had chosen the correct image, the subject could not accurately explain because his "talking brain" simply didn't know.  "Quick as a flash," said the researchers, the subject simply made up a wholly plausible and reasonable explanation, based upon the information at hand.  

Anyone who has ever watched a mock jury deliberate has seen this creative narrative principle at work.  Trials are not so much won or lost by what is demonstrated, but by some missing detail that the jury deems critical to the creation of a coherent narrative.  In the absence of information, juries, like everyone else, simply make stuff up.

(I learned these "split brain" theoretical and practical lessons by watching several episodes of a now-forgotten PBS series (probable sequels to which can be found here). An excellent article discussing the split brain experiments can be found here for those who wish to pursue it).  

If We Resist Change and Make Stuff Up to Avoid It, How Do We Ever Alter Our Thinking

Had Mother Nature left us without resource other than flight or fight, we likely would never have survived as a species.   Insight ("eureka," the "AHA moment") is our gift the from the gods.  

And it is insight, coupled with the brain's remarkable plasticity that allows us to change our minds and our behavior as well as to encourage others to join us. 

The third and final part of this three-part piece on Changing the Other Guy's Mind will appear tomorrow.


I've gotta go finish decorating my Christmas tree now!

Money Money Money Money Money Money Money

(money money money money money it makes the world go round)

As the comments to recent reports of associate year-end bonuses attest (see the Wall Street Journal Law Blog) it's the comparison of economic rewards rather than amount of income itself that makes workers unhappy with their lot.      .    

The research cited below doesn't explain this behavioral tic but it does normalize it.

                                                                              Liza, Cabaret, singing Money

This is the Capuchin monkey, many of whom have been trained to work for "money" by researchers. (where's PETA when you need them?)  

As Forbes Online reported earlier this year in Primate Economics, these monkeys refuse to work if they see another "earning" an  unequal share of the rewards. 

What does the capuchin consider "unequal?" 

Apparently the capuchin will more or less happily "work" for another "CEO" monkey until the CEO begins to "earn" five times as much food as the "worker" does for the employee's labor.    

When that critical inequity is reached, the laborer rebels and refuses to work, leaving both monkeys without "income."

It's not just quantity that triggers the primate response to the provision of unequal rewards.  The capuchin also digs his heels in and refuses to go to the office if a co-worker is seen to be receiving better quality compensation.

After training the monkeys to trade pebbles for slices of cucumber, the capuchin happily played the game.  Once one was given a more desireable grape while the other continued to receive only cucumbers, the cucumber recipient became agitated, threw his pebbles out of his cage and eventually refused to perform any further tasks for the researchers whatsoever.  

The obvious take away?

People are less concerned about absolute levels of wages or standards of living, compared with how they are doing relative to others. Rewards in a market economy [must be shared, but] the essential flaw in systems like communism [is that] people are expected to share resources without regard to how much work they do. If you cooperate, you have to watch what the other person is getting,"  say the scientists.  You need to have some level of reciprocity.

Creativity -- Interlude Before Changing Minds Part II

The creative act is not an act of creation in the sense of the Old

Testament. It does not create something out of nothing: it uncovers,

selects, re-shuffles, combines, synthesizes already existing facts, ideas,

faculties, skills. The more familiar the parts, the more striking the new


Arthur Koestler

Changing the Other Guy's Mind Part I -- Neural Networks & Mental Maps

How many times have we mediators been asked to  "just make the other guy see how wrong he is." And how many times have we tried?

While ADR scholars debate the pros and cons of evaluative and facilitative mediation, our friends the neuroscientists are proving what we already suspect to be true. 

We can't change anyone's mind but our own.

The good news is that we can assist others in changing the way they think by understanding the mental wiring by which we all think.  

First the Neuroscience

In their recent article, The Neuroscience of LeadershipDavid Rock and Jeffrey Schwartz explain why inspiring people to alter their own way of thinking is not just the best, but the only way to change someone else's mind.    

Habit and Working Memory

When we encounter novel situations (or information that is antithetical to our way of thinking) it is our "working" memory that compares the new information with our old belief systems.  Our brains reward us with a rush of neurotransmitters like adrenaline when we create novel mental connections as a result. 

The emphasis in the phrase "working memory," however, is on work.  

When we engage our working memory, we activate our prefrontal cortex, an energy-intensive part of the brain.  The prefrontal cortex is the brain's gymnasium, its life-cycles and treadmills.  

The rote mental tasks we perform every day are governed by the basal ganglia where neural circuits of long-standing habit are formed and held.  In the gymnasium of the brain, the basal ganglia are the jacuzzi and steamroom.    

To change our way of thinking about things is as much work as changing our diet and exercise habits.  The rewards are great but sloth often overtakes us.  

So one of the major sources of resistance to change is simple intellectual laziness.   

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Fixed Pies and Third Place

In this week's New Yorker, James Surowiecki reminds us that "business is not a sporting event [and] victory for one company doesn't mean defeat for everyone else."

Surowiecki's article, In Praise of Third Place, concerns the fight for market dominance in the video-game industry.  

The players?  Microsoft's Xbox, Sony's Play-Station 3 and Nintendo's Wii.  

The takeaway? Good news for those of us who continually hector our fellows about collaborative problem-solving and the real social, political and environmental dangers of fixed pie thinking.

By not competiting for the number one video-game slot, Nintendo is "beating" its Goliath competitors.

[Nintendo] has five billion dollars in the bank from years of solid profits, and this past year . . . saw its stock price rise by sixty-five percent.  Sony's game division, by contrast, barely eked out a profit and Microsoft's reportedly lost money.

How could this happen to the Big Boys?  Surowiecki explains:

Markets today are so big -- the global video-game market is now close to thirty billion dollars -- that companies can profit even when they're not on top, as long as they aren't desperately trying to get there.

Want to perform like Nintendo?

The key is to play to your strengths while recognizing your limitations.  Nintendo knew that it could not compete with Microssoft and Sony in the quest to build the ultimate home-entertainment device.  So it decided, with the Wii, to play a different game entirely.  Some pundits are now speculating, ironically, that the simplicity of the Wii may make it a huge hit.

Here's a question for the evolutionary biologists -- of Life's Top Ten Greatest Inventions -- multicellularity, the eye, the brain, language, sex, photosynthesis, death, parisitism, superorganisms and symbiosis, how many arose from competition and how many from collaboration (or is the question itself too simplistic?)

The Benefits of Barter

Because I've been building a new business for the past two years and do not have a money tree in my back yard, I've learned to appreciate the value of barter.   

In her ground-breaking legal memoir Alchemy of Race and Rights (Harvard Univ. Press 1992) Columbia Law School Professor Patricia Williams talks about lessons learned in a local "barter circle."

Once upon a time some neighbors of mine included me in their circle of barter. They were in the habit of exchanging eggs and driving lessons, hand-knit sweaters and computer programming, plumbing and calligraphy. I accepted the generosity of their inclusion with gratitude. At first, I felt that, as a lawyer, I had nothing to contribute. What I came to realize with time, however, was that my value to the group was not calculated by the physical items I brought to it. These people included me because they wanted me to be part of their circle, they valued my participation apart from the material things I could offer. So I gave of msyelf to them, and they gave me fruit cakes and dandelion wine and smoked salmon, and in their giving, their goods became provisions. Cradled in this community whose currency was a relational ethic, my stock in myself soared. My value depended on the glorious intangibility, the eloquent invisibility of my just being part of the collective; and in direct response I grew spacious and happy and gentle.

The Benefits of Bartering in Contemporary Commercial Transactions

Professor Williams' paen to barter doesn't sound merely cosy and homey, you say, it positively reeks of flower-child collectivism. What could Professor Williams' little barter circle possibly have to do with settling my $200 million unfair competition lawsuit?

A lot, actually. If you look past the smoked salmon and the dandelion wine, you'll find the phrase "currency [of] relational ethic." Williams is talking about the intangible value of relations as a means of exchange rather than (or in addition to) the numeric value of money.

Understanding Money

We've become so used to valuing most everything in monetary terms, we tend to forget that money is a representation of value rather than value itself. When negotiating a commercial dispute, we all benefit from reminding ourselves that money is simply one medium of exchange -- a good one, but not the only one.

Money is so good at serving as an objective measure of value; a standard of deferred payment, a store of wealth, a criterion for measuring worth and a “universal means to whatever ends are available in the market” (Ingham, Geoffrey MONEY IS A SOCIAL RELATION (2002) 54 Review of Social Economy 507) we often fail to look elsewhere for resources.

Integrative or interest-based negotiations flourish whenever the parties are able to identify tangible goods or services as well as the intangible benefits (apologies, recognition, respect, etc.) that might be available to sweeten a monetary exchange.  

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Unhappy Lawyers and the Cooperative Hard Wire

Why are We Unhappy?

Maybe it's Because We're Hard Wired to Cooperate

By and large, we're liberal arts majors, right? Theater, film, literature, and art history people. Political scientists, philosophers and sociologists. We like mental puzzles. Not the teasers that undid most of us in math class. No, we like problems that require us to be good at analogies and story telling. To sharpen our Hardy Boys or Nancy Drew detective skills. We're good at figuring out who killed Colonel Mustard in the drawing room. We're born litigators.

And the fighting part? Most of us complain. But it's part of the job so we roll up our sleeves and throw our natural competitive spirit at it. Still, all that good feeling about solving the complicated antitrust problem usually comes to a grinding halt just about the time the opposing brief comes in. I'll admit it if no one else will. I wince when I read these responsive briefs. I mean, I sit at my desk shaking my head and looking at the damn thing sideways as if it would be easier to take if I snuck up on it slowly. Then I pray that they've cited the wrong case, failed to shepardize their most compelling authority, been guilty of the shamelessly misleading ellipsis.

When friends ask me what it is I do during the day if I’m not giving closing arguments to a jury every week like William Shatner does on Boston Legal, I explain it this way: Every morning when I get up, someone else is also preparing for their day. And those people will be dedicating a large part of that day to making me look bad. To finding my mistakes and undermining my opinions. To suggesting that I am -- or directly accusing me of being -- a liar.

"Gee," they respond, "that sounds terrible," before I go on to assure them that I actually enjoy winning and, hey! if you want to win, you've got to suck up a fair amount of losing. At which point they understandably walk away figuring I deserve my lot.

We're Hardwired to Cooperate

So I don't know if it's good news I have to share with you or not. For those pursuing a more cooperative or collaborative legal process, I hope the news is good. Here it is. Neuropsychiatrists who have been taking MRI images of their students' brains during collaboration have discovered that the act of cooperating with another person makes the brain light up with joy. 

Sources:  Emory Brain Imaging Studies Reveal Biological Basis for Human Cooperation; Gintis, Bowles, Boyd & Fahr, Explaning Altruistic Behavior in Humans (2003) 24 Evolution and Human Behavior 153;  Stevens & Hauser,  Why Be Nice?  Psychological Constraints on the Evolution of Cooperation, Trends in Cognitive Sciences;  

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When a Negotiated Resolution Appears Premature . . .

. . . understanding cognitive biases can help the parties settle 

I've recently helped several small businesses work out the termination or renewal of business ventures in response to accusations of fraud and the usurpation of corporate opportunities. Although none of these mediations has involved Fortune 500 companies, the owners faced potential losses in the hundreds of thousands to millions of dollars.

Because the money expended on lawyers and forensic accountants hits the bottom line of small businesses faster and harder than those spent by larger companies, critical decisions must often be made in the absence of verified accounting and factual information.

When it would cost tens to hundreds of thousands of dollars to conduct the discovery necessary to truly know your best alternative to a negotiated agreement, what negotiation tools might help your beleagured and embattled commercial clients?

First the Hypothetical

With names and facts altered to protect confidentiality, consider the recent negotiated settlement of a corporate dissolution and accounting action.

The owners, Tom Jones and Bob Smith have been profitably importing restaurant equipment from Hong Kong since the early '90s. In the year prior to litigation, their business -- RSI -- began to experience difficulty in acquiring the same quality goods in a similar price range as it had in earlier years. At the same time high quality goods became scarce, Jones entered into a business venture with a restaurant supply wholesaler selling equipment similar to that imported by RSI.  Smith had also entered a new business venture with a restaurant equipment retailer. 

You don't need to understand the illusory correlation bias to see the lawsuit coming. 

The Business Dissolution Litigation

Smith sues for RSI's dissolution and seeks an accounting, accusing Jones of various business torts.  Jones files a cross-complaint accusing Smith of diverting to his new retail business imports that would have gone to RSI. The RSI warehouse is currently filled with goods imported from an inferior secondary market. Smith claims RSI will be unable to sell these goods for a profit. Jones claims they can be sold for a $500,000 and $600,000 profit.

The parties schedule an early mediation in an effort to avoid crushing legal fees.

Mediator Intervention 

At the commencement of the mediation, each party tells the mediator that he is "absolutely certain" that his valuation of the mechanise is "right." 

How do the parties calculate their potential damages (to analyze their Best Alternative to a Negotiated Agreement) or value the worth of the business for mutual buy-out offers in the face of such wildly competing claims?

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Research on the Art of Negotiation

In a year 2000 article published in the Annual Review of Psychology, Harvard Business School Professor Kathleen L. Valley and Senior Research Fellow Max H. Bazerman, with colleagues Jared R. Curhan and Don A. Moore, synthesized negotiation studies to date, and pinpointed five emerging areas of thought.  

For the full article on this effort, see the Harvard Business School Working Knowledge article The Emerging Art of Negotiation

We provide only the executive summary here.  

1.     Preconceptions Count

"Almost everyone who walks into a negotiation," say the authors, "already holds a fairly strong preconception of how they expect it to go down. How such . . . 'mental models' actually control the outcome of a negotiation is one of the important new areas of investigation." 

Experiments have shown that the degree of cooperation among participants was affected far more by what the game was called—the "Community Game" or "Wall Street Game"—than by the individual dispositions of the participants. 

2.  Ethical  Behavior

Laboratory research on negotiation ethics is beginning to reveal the flexibility and ambiguity in "standards" applied by negotiation "players."  

Once again confirming what common sense tells us, researchers are finding that people see themselves as more ethical than the next person, but justify their own ethically questionable behavior as self-defense.

Hence the term "defense budget" as we wage a preemptive war against, well, not against Iraq exactly, but against the present chaos there.


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Bargaining Strength

Negotiators have much to learn from game theorists. In the book, Higgling: Transactors and Their Markets in the History of Economics, edited by Mary S. Morgan (Duke University Press: Durham 1994) contributor Robert J. Leonard, lists six factors that affect bargaining outcomes as follows:

1. General bargaining dispositions. Tough bargainers are dogmatic, possess a strong sense of themselves and have a highly competitive orientation in regard to personal strength.

2. Payoff system. A negotiator's willingness to make concessions is strongly influenced by what he believes to be the minimum or maximum necessary to provide him with any benefit of the bargain. Other "payoff system" factors include time pressure, the cost of no agreement, the threat capacity of one's bargaining partner and the size of payoffs.

3. Social relationship with the opponent. Not surprisingly, negotiators tend to be more cooperative when they have a friendly social relationship or when there are reasons to be concerned about the other's interests. This is why hostage negotiators always ask captors to take food orders from, and inquire about the medical needs of, their captives. Once the captors begin to take care of their victims, they begin to actually care about their charges.  

4.  Moral Appeals.  Research has proven that moral appeals result in greater concessions by the one from whom concessions are sought. The negotiator who suggests that certain concessions are necessary to satisfy his basic needs or expresses the belief that his negotiating partner will treat him fairly does better than the negotiator who does not appeal to moral considerations. This is an example of "trading power for sympathy," a bargaining tactic often referenced in Ken Cloke's writings.

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Mediation in a Blink

In his book Blink, Malcolm Gladwell uses the term "rapid cognition" in reference to what most of us think of as intuition. Gladwell avoids the "i" word because he does not want his readers thinking he's referring to emotional responses. Rapid cognition, he stresses, refers to our rational thoughts and impressions. Though one suspects that Gladwell steers clear of emotion so he won't be called a "girlie man," he does in fact have a more serious purpose in mind.

Gladwell explains:

I think that what goes on in that first two seconds [of thought] is perfectly rational. It's thinking -- its just thinking that moves a little faster and operates a little more mysteriously than the kind of deliberate, conscious decision-making that we usually associate with "thinking."

According to Gladwell, our rapid cognition often produces far better results than our painstaking analytic analyses of the vast amounts of information we professionals routinely gather.

Diagnosing Heart Attacks with "Incomplete" Information

To demonstrate his point, Gladwell tells the story of one hospital's attempt to encourage its physicians to use their RC in diagnosing heart attacks. The hospital instructed its entire staff of emergency room physicians to gather less information concerning their patients' condition before attempting to diagnose a heart attack.

This information-limiting scheme, allowed the doctors to zero in on just a few critical pieces of information -- like blood pressure and the EKG -- while ignoring everything else, like the patient's age and weight and medical history. 

The physicians resisted of course, because they were committed to the idea that more information is always better.   When forced to rely upon limited information however, the accuracy of diagnoses in the ER increased dramatically.  

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Rationalizing Numbers

I won $200 at Morongo recently, accompanying my husband to one of his law firm's business development events. I always think gambling (excuse me, gaming) outings are good for lawyers and business people -- the litigation risk- taking analogies being so plentiful.

The lesson from this trip, however, was not about sunk costs or risk aversion. It was about my own subjective experience of money.

"Don't worry," I was saying to Mr. Thrifty, as I pulled three twenties from my wallet to pay for an afternoon gourmet picnic in Griffith Park. "I'm paying for it with the casino's money."

Thrifty gently reminded me that this was the third time I'd spent my winnings --the first on that spa visit before I hit the gaming floor; the second on a few Crate and Barrel essentials we picked up at the outlet stores so conveniently located next to the hotel; and, the third for our picnic in the park. Actually, by the time we were collecting our food tickets, I'd also "spent" my unexpected windfall on the gift I'd planned to buy for my father's birthday the following week. 

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The Tip of the Ice Berg


I had the great good fortune to study construction defect mediation recently with two masters of the trade,George Calkins and the Hon. Kevin W. Midlam (Ret.). These two know their way around a construction site; a courtroom; an insurance policy; the law; and, ways to manage and resolve complex construction litigation better than anyone I've ever met.

Though we didn't engage in much "mediator speak" at the seminar -- integrative bargaining and the like -- it's clear that you need to know what Calkins and Midlam have to teach if you want to explore anything other than the tip of the CD iceberg. I did, however, tell one interest-based negotiation story in class that piqued the curiosity of a few classmates. Because it illustrates the potential to reach the parties' interests when you don't know what a cripple wall is, I repeat it here.

I dropped by Judge X's courtroom not long ago as she and Mediator Y were helping the parties settle up with the last couple of subcontractors involved in a Southern California residential development. The sub and his attorney were served late in the case; substantial attorneys' fees had already been expended; and, and the sub's attorney had promised not only complete victory, but reimbursement of all attorneys' fees in the process.

Mediator Y had reached impasse and Judge X was on the bench. They thought they could get the contractor to cut the sub loose for a dismissal with mutual general releases. The sub and his attorney were resisting this generous offer. Since I'd dropped by, could I help?

Sitting in the Judge's chambers, the sub's attorney immediately launched into a tirade about the injustice of his client's having being dragged into the litigation; his planned strategy for victory at the upcoming trial and the reasons that victory would be capped by a successful malicious prosecution action. The sub himself seemed enthralled with his pit-bull counsel and all discussion about the merits of their position made both men dig their heels in deeper.

I'm not certain when I began to realize that the attorney's bravado signaled something closer to a plea for help than a cry to battle. The thought surely originated when I started asking questions about the likelihood of victory in hard percentages.

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The Power of Beauty

Nature gives you the face you have at 20; it is up to you to merit the face you have at 50. -- Coco Chanel

A local judge who has four beautiful young law students working for him this summer asks me how to deal with inappropriate attorney comments about their youth and beauty. For those men over 35 reading this column, young women lawyers do not appreciate being told they are young or beautiful in a professional setting. And they particularly dislike being called girls.

More important is the whole question of beauty -- what it is and what magic it can perform. For negotiation purposes, we ask whether attractive attorneys and their clients can get a better deal than their less attractive peers. At least some of the answers to that question can be found in Coco Chanel's famous comment about beauty quoted above. But first the research.

Beauty is a Powerful Tool of Persuasion

Assuming that the "hits" a quality-describing word elicits from a search engine indicate the relative importance the quality described, I googled "beauty" and "intelligence" this morning. Beauty edged out intelligence by only a slight margin -- garnering 697 million to the 652 million hits generated by intelligence. For what it's worth, people apparently aren't so interested in coupling these two qualities. Searching both beauty and intelligence offered up only 26 million hits.

Because the young women law clerks I spoke to last week assumed that men fascinated by their beauty would not respect their intelligence, this morning's blog should cheer them up.

The Research

In the early 1980's, social science researchers found that physically attractive people are not only considered more intelligent and competent than their less fetching peers, but are presumed more competent in fields completely unrelated to physical attractiveness -- such as piloting an airplane. Other research studies followed, showing that we also expect physically attractive men and women to be more trustworthy, reliable and charitable than their less attractive peers, as well as better educated, stronger, and wiser.

Studies on electoral habits have shown that attractive candidates receive as many as two and a half times the number of votes as unattractive candidates and that voters do not realize their bias. Whether this confirms or disproves the adage that politics is show business for ugly people is up to you.

The influence of beauty does not stop at the political choices we make. Our judicial process is also susceptible to the influences of body dimension and bone structure. Researchers have found that attractive male criminal defendants are twice as likely to avoid jail time as unattractive miscreants. The relative good looks of civil litigants also influences juries, which award twice the damages when plaintiff is better looking than the defendant and half the compensation when the defendant is more physically attractive than the plaintiff.

As Robert Cialdini wrote:

Good looking people enjoy an enormous social advantage in our culture. They are better liked, more persuasive, more frequently assisted, and seen as possessing more desirable personality traits and greater intellectual capacities. It appears that the social benefits of good looks begin to accumulate quite early. Research on elementary school children show that adults view aggressive acts as less naughty when performed by an attractive child and that teachers presume good-looking children to be more intelligent that their less attractive classmates.

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Conspiracy Theories and Granfalloons


Every seasoned trial lawyer knows that in the absence of critical information, juries simply make stuff up to fill in the gaps. They, and we, do this semi-consciously and reflexively.

Psychologists tell us that we are not only "meaning making" beings, but that we are all born conspiracy theorists. Viewing a field of nonsensical, unrelated data, we naturally begin to "connect the dots" - to organize the information into a coherent, and often compelling, narrative.

Pattern making or conspiracy theorizing is a human survival mechanism. We have never been the fastest or the biggest creatures on the planet. We don't have the sharpest teeth or blend in all that well with the scenery. Our soft, easily punctured skin is not covered with a protective shell. In a pinch, we can't take a running leap and fly away from land-bound carnivores who might make us their prey.

We are, however, the canniest creatures on the planet. To avoid the tiger who made lunch of our best comrade, we surveyed the scene and committed the pattern of otherwise unrelated details to memory. Five banyan trees, a narrow stream, and, a pile of rubble left by a recent avalanche means "there are tigers here."

Couple this with Fundamental Attribution Error ("FAE") and you have all of the ingredients necessary to blame inadvertently caused harm on elaborate conspiracies cooked up by our untrustworthy companions -- FAE being our universal tendency to over-emphasize the role of others' negative personality traits to explain why harm befell us.

So it is with our legal adversaries. Once the channels of communication have been severed by the filing of a lawsuit, attorneys and clients alike begin to make up "what really happened" based upon predispositions; scattered conversations; faulty memories; and, scraps of documentation.

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Loss Aversion


Negotiating with a Full Deck

As we all know, negotiating isn't like gambling, negotiating is gambling. All negotiations require the bargainers to evaluate the potential risks and likely benefits of any offered deal -- whether it be a million dollar demand to settle a lawsuit or a $20 offer to try out a new internet service. Since we can can never truly know the mind of another nor predict the future, we should, at a minimum, know our own propensities in regard to risk as well as our best alternatives to a negotiated agreement ("BATNA").

Recent Research on Loss Aversion

Fellow legal blogger, law professor and commercial litigator Michael Webster reports on the most recent research on loss aversion as follows:

Over at the Neuroeconomics blog, they ask are we bad forecasters of loss? In the economic literature, loss aversion is described as turning down risks or gambles with large chance of loss, but with a positive expected value. For example, consider wagering $50 on a bet that returns $200 30% of the time and 70% of the time nothing. Even though the bet has an expected value of $60, which is greater than $50, most people will not play this bet. What is the basis for risk aversion?

Here is Neuroeconomics' conclusion:

Predications of emotional impact weigh heavily on decisions. In fact, people avoid risk even when faced with the prospect of large gain, predicting loss will hurt them much more than an equal gain will please them. If that is true, this phenomenon (termed loss aversion) is simply a rational product of accurate affective forecasting. Currently, research seems split on this question. Studies have indicated that loss induces more intense neural activity, indicating that our forecasting may be valid. However, behavioral economics generally proposes that we are bad forecasters, and studies show that we consistently overestimate the intensity of emotion from life tragedy.

In a new study, participants effectively minimized impact of loss after a game of luck using various coping mechanisms, such as dissonance reduction,self-affirmation, motivated reasoning, and positive illusions. Researchers found that "there was no evidence that losing actually had a greater emotional impact than winning," showing we are indeed poor loss forecasters".

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This is Your Brain on Neuroscience

Better Decision Making through Neurochemistry

OK, this is the stuff that makes me wish I had a science brain instead of a literature brain. Can you guys over at Decision Science News and the Neuroeconomics Blog please explain the firing of orbitofrontal cortex neurons or the dopaminergic system irregularities that account for science/math disabilities among literature majors and law school students while I compare and contrast semiotic decision science in Moby Dick with the new neuroeconomic historicism in Bleak House? You have twenty minutes. You may turn your papers over . . . . . . . . . . . . . . . . . . . . . . NOW!!

But seriously folks. The math/science/economics majors who stumbled their way into law school for reasons known only to their psychoanalysts (or here in California, their Kabbala teachers) shouldn't miss out on the new research being tracked daily by Steve Seletta, unsung summer research fellows like Nikki Sullivan, and Director Kevin McCabe along with their colleagues at the Center for the Study of NeuroeconomicsatGeorge Mason University.

It's heady stuff (no pun intended). Once in awhile I actually understand it and on fewer, but no less exciting occasions, I find it applicable to what we'll call negotiation "science" for 30 seconds so we can "teach the controversy" (could Darwinian natural selection theory explain the development of the rule against perpetuities or factual impossibility in criminal law? I don't think so!)

But don't stop there. Dan Goldstein at the London Business School, teaches and blogs about "Decision Science" in his capacity as Assistant Professor of Marketing. He's been mentioned by social, behavioral and cognitive science popularizer Malcolm Gladwell (Blink and The Tipping Point) so you know he must be easier to understand than the true scientists at George Mason U. And the photo on his web page is pretty cute.

But truly, I'm grateful to the cognitive, neuro- and decision science guys (and women) for giving me something to crack my head open over other than dark matter, black holes and string theory, all of which remain mysterious, but have the same strong pull on my randomly drifting attention as freeway accidents do for Southern California motorists. And you can never use particle physics to help explain your last business negotiation.

"What is the purpose of time," asked eminent physicist Stephen Hawking. "To keep everything from happening at once" he replied. This is what writers and scientists have in common. We all question first principles. It's not a perfect match but it's a start.

Bargaining Strength


Negotiators have much to learn from game theorists. In the book, Higgling: Transactors and Their Markets in the History of Economics, edited by Mary S. Morgan (Duke University Press: Durham 1994) contributor Robert J. Leonard, lists six factors that affect bargaining outcomes as follows:

1. General bargaining dispositions. Tough bargainers are dogmatic, possess a strong sense of themselves and have a highly competitive orientation in regard to personal strength.

2. Payoff system. A negotiator's willingness to make concessions is strongly influenced by what he believes to be the minimum or maximum necessary to provide him with any benefit of the bargain. Other "payoff system" factors include time pressure, the cost of no agreement, the threat capacity of one's bargaining partner and the size of payoffs.

3. Social relationship with the opponent. Not surprisingly, negotiators tend to be more cooperative when they have a friendly social relationship or when there are reasons to be concerned about the other's interests. This is why hostage negotiators always ask the captors to take food orders from their captives and determine whether any of them need medicine or other critical accomodations. Once the captors begin to take care of the needs of their victims, they are more cooperative with negotiators and begin to care about the well-being of the captives.

Research has proven that moral appeals result in greater concessions by the one from whom concessions are sought. The negotiator who suggests that certain concessions are necessary to satisfy his basic needs or expresses the belief that his negotiating partner will treat him fairly does better than the negotiator who does not appeal to moral considerations. This is an example of "trading power for sympathy," a bargaining tactic often referenced in Ken Cloke's writings.

4. Social relationship with significant others. Extremely significant to negotiators representing clients is the tendency of representatives to be more competitive than the parties whose interests are at stake. This higher degree of competitiveness is increased even further when the representative is being monitored by her client.

The mediator's injunction to "have all stakeholders present" is therefore a double edged sword. If you are reprsenting a client with extremely high aspirations, there is some wisdom in resisting the mediator's insistence that your clients be present because you are more likely to cut a better deal in their absence. On the other hand, as all mediators know, settlement itself is much less likely if the stakeholders are not there to balance their own interests (known and unknown to their representatives) in creating a deal that maximizes benefits for everyone.

5. Situational factors. I've never met a litigator who was not attuned to the benefits of the home court advantage. Nevertheless, if closing the deal is your goal, it may well be better to negotiate in neutral territory. Researchers have also found that colorful and pleasant surroundings induce cooperative behavior but may also reduce the sense of urgency of reaching agreement.

6. Bargaining strategy. This, of course, is its own discipline. The balance between cooperation and intransigence is the art of negotiation and is covered more extensively elsewhere.

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Why -- an Antatomy of Explanations

These are the words I never said/This is the path I'll never tread/This is the fear/This is the dread/These are the contents of my head/And these are the years that we have spent/And this is what they represent/And this is how I feel
Do you know how I feel ?/'cause i don't think you know how I feel/I don't think you know what I feel/I don't think you know what I feel/You don't know what I feel. Annie Lenox, Why, from Diva

(see also You Just Don't Understand -- Men and Women in Conversation by Deborah Tannen)

We are once again indebted to New Yorker writer Malcolm Gladwell for making social science research useful.

In his April 10, 2006 articleon Columbia University Professor Charles Tilly's book "Why,"Gladwell explains the sociologist's "anatomy of explanations."

Why should negotiators care? Because explaining why our bargaining partners should settle instead of litigate requires persuasive story-telling -- a compelling account of our business requirements and capabilities -- a reason why what we want is fair and reasonable, even just.

Types of Reasons

Professor Tilly has created four reason-giving categories:

Conventions: These are the rules your mother and grade school teachers taught you. Don't be a tattle tale. Share with your sister. Don't whine. Say thank you to the nice man for giving you an extra dollop of ice cream.

Stories: This is what we attorneys do for a living. Tell stories, read stories, make up stories, listen to stories. Then we compare one story (Mrs. Palsgraf was waiting for a train when a man holding a box of firecrackers stumbled out the door and then) with another story (the sherriff stopped Mr. Green on Highway 50 but let him continue driving even though Mr. Green was clearly drunk and then he passed a truck on a narrow road and then ).

Codes: These are "high-level" conventions -- the formulas that invoke procedural rules and categories. The judge and jury apply codes such as "oral agreements can't transfer real property" to the Plaintiff's story about her landlord's promise to extend her lease for a year.

Technical Accounts: These are stories informed by specialized knowledge and authority. They're the stories your expert witnesses tell.

Talking Past One Another  

Anyone who's spent even a few weeks in law school knows these categories. So why are we bothering with them here? Because, according to Tilly, reason giving is most effective when we "match" the kind of reason we give to the particular role we are playing when the reason is necessary. If one person is giving a technical account and the other a story, for instance, the chances are remote that they will ever begin to understand, let alone agree with, one another.

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