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She Negotiates

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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.

Gladwell explains:

When we say that two parties in a conflict are "talking past each other," we mean that both sides have a legitmate attachment to mutually exclusive reasons. Proponents of abortion often rely on a convention (choice) and a technical account (concerning the viability of a fetus in the first trimester). Opponents of abortion turn the fate of each individual fetus into a story: a life created and then abruptly terminated.

If you believe that stories are the most appropriate form of reason-giving, then those who use conventions and technical accounts will seem morally indifferent - regardless of whether you agree with them. And, if you believe that a problem is best adjudicated through conventions or technical accounts, it is hard not to look upon storytellers as sensationalistic and intellectually unserious.

Reason Giving in Negotiations

Tilly is not, of course, the first scholar to suggest that the legal system strips the litigants' stories of everything that makes them particular and compelling. Though all lawsuits tell stories, they tell them in formalized language for the purpose of matching them to a simple, impersonal code. Though the impersonal nature of these legal stories is meant to make the law fair and impartial, it stifles, frustrates and often makes unrecognizable the actual events the litigants recall.

Mediation has been both praised and criticized for putting the particulars back into the parties' narratives. Given the story telling capability of both negotiation and mediation, are we using it to its full potential? Often not.

But He's Extorting Me

Mediators themselves are at least partially to blame for defendants' perceptions that they have been brought to the mediation table or settlement conference to be extorted. Mediators so often stress the expense of litigation as the primary reason to settle a lawsuit that many defendants justly feel their consent is being given to the barrel of a gun. And none of us wants to be robbed.

Legal extortion was the theme of a recent mediation I conducted with the Chinese immigrant owner of a small motel in Long Beach. A local attorney brought suit against Mr. Wu for his failure to have the required handicapped parking space in his lot and a ramp for access to the registration desk. The lawsuit sought available civil remedies under the Americans with Disability Act (the ADA). Whatever the motivation of the plaintiff and his attorney, the Code called for recompense.

In response to my comments on the requirements of the ADA, Mr. Wu told me a story about his immigration to the United States; the money he and his wife had raised to buy this small motel and the way they both worked twenty-four hours a day to staff it.

Neither Mr. Wu nor his wife recalled any disabled person who'd been unable to use the facility. Nor did he recognize the paraplegic man in the hallway waiting outside -- a man Mr. Wu wouldn't acknowledge as he arrived nor consent to meet in a joint session.

As Mr. Wu spoke, his attorney pulled from his briefcase a map of the street on which his client's motel was located. It flagged a dozen other motels whose owners had been sued by the same client and the same attorney.

"We didn't know about the rules," the motel owner said. "This attorney sues everyone," he insisted, stabbing his finger at the flags on the map. "Now we have done it. Complete," he said, as his attorney passed me photos of the required improvements. " Mr. Wu paused, his face flushed. "He's suing everyone. It's extortion. We won't pay."

Responding to Story with Code and Convention

Foolishly, I didn't respond to the extortion comment. Instead, I talked about making a business decision to settle the lawsuit for less than the cost of the defense. This was part convention and part techinal account.

The convention? It's better to settle even a frivolous lawsuit if the cost of defense exceeds the expense of settling.  

The technical account? The ADA provides statutory remedies taht cannot be defeated by Plaintiff's motiviation for bringing suit.  Nor would Mr. Wu win the case if he could prove that Plaintiff didn't try to register.  Just driving by and feeling discouraged was enough. 

Not surprisingly, Mr. Wu was not moved by either convention nor by my expertise on the requirements of the ADA.

"It's extortion," he said again. We were, as Gladwell notes, talking past one another.

My first concern was cross-cultural. Of course, I thought, not only was I talking code and convention, I was talking American code and convention to a Chinese immigrant. So I tried another angle.

"In your homeland," I asked, "how are building codes enforced?"

The defendant laughed. "Bribes," he said. It's getting better I think. But still. A lot of bribes."

"Here," I replied, "the building inspectors don't usually take bribes. I'm sure there are exceptions. But on the whole," I continued, "the inspectors enforce the codes without taking money. In this country, lawyers do a lot of the enforcing. And they get paid to do it. I'll wager that some Chinese businessmen consider bribes a part of the cost of doing business. Here, business people often consider payments to settle lawsuits a similar cost of doing business."

Not placated in the least, Mr. Wu continued to insist that he would not be extorted.

So much for cross-cultural translation. Mr. Wu's repeated insistence on framing the conflict as a matter of principle -- not giving in to extortion -- was a sure sign I was missing the heart of the conflict. Mr. Wu was telling a story of injustice and I continued to respond with business sense and legalisms. How frustrated he must be with me. I tried again.

Responding to Story with Story-Telling

"Let me start again," I said. "The way I understand it, you purchased the motel without any of the required handicapped access improvements and you didn't know you were required to upgrade. Is that right?"

"Yes," he said, more eagerly than before. "No one needed to sue us. If we'd been asked to upgrade, we would have. And look," he said, pointing to the photos scattered on the conference table, "as soon as we knew, we complied."

I again examined the photos and said, "but you didn't make these improvements until you'd been sued by the gentleman in the wheelchair outside the door. The one who said he drove by your motel but didn't bother stopping because he could see there was no way for him to get in."

"He said that?" asked Mr. Wu, his interest growing.

"That's what he told me," I responded. "He needed a place to stay and he drove past all these motels that you've flagged here, and he couldn't get in to a single one of them."

Mr. Wu was shaking his head slowly up and down now, in the way we do when we're considering information that sounds newly plausible to us.

I continued. "Mr. Smith was in a car accident a couple of years ago and won't walk ever again. He's only thirty years old. It's not just the wheelchair that is so confining to him. It's his inability to go where people not in wheelchairs are able to go."

Mr. Wu was silent, but still thoughtfully nodding his head.

"Some of the money you pay -- if you pay the plaintiff rather than your attorney -- some of that money will go to Mr. Smith. It won't all go to his attorney. And I think that money will help him out. You could see your payment as a charitable act or simply a way of saying you're sorry that Mr. Smith wasn't able to use your motel."

Then I waited.

I could see the motel owner begin to sag under the weight of resignation. His righteous indignation had been spent. There was someone else involved in this conflict. Someone who was even more challenged and more impoverished that Mr. Wu thought of himself as being.

"So, it's at least a bit of rough justice to settle," I proffered. "Not extortion, do you think?"

The Pay-Off -- Material and Personal

This was a rush of reason-giving. Story. Convention. Code. As Gladwell notes, "one kind of reason is never really enough." And the right reasons, or at least the "good enough" reasons did the trick in this instance. The case settled for a small amount of money, less than the cost of defense. I had, of course, also told the plaintiff and his attorney Mr. Wu's story of hardship and his efforts to do the right thing. They lowered their demand in response.

More important than settling the case, was listening to both sides' stories and responding to each with a story from the other. This is what allowed the parties to leave the mediation feeling better than when they'd arrived. Mr. Wu acknowledged his part in the conflict and accepted responsibility for it. And Mr. Smith was able to exercise a bit of generosity by accepting less money from Mr. Wu than he had from the other motel owners he'd sued.

On his way out the door, Mr. Wu thanked me for helping him to understand. Then he stopped by Mr. Smith in the hallway and offered his hand. I couldn't help thinking that some degree of fellow-feeling had been created. At the very least, the rancor was gone. The resentment that someone once told me was like drinking poison and then waiting for the other guy to die.

Whether we're mediating someone else's dispute or negotiating our own business deals, we sometimes manage not only to make the right business decision, but to make the right people decision as well. And resolution just doesn't get any better than that.

Comments (6)

Read through and enter the discussion by using the form at the end
SmokeVanThorn - December 6, 2008 1:06 AM

Unless I'm missing something, this was an ADA Title III case in which the plaintiff was only entitled to injunctive relief, NOT money damages. The fact is that these cases almost never involve genuine lack of access, and the real issues is how much in fees plaintiff's attorney demands for "preparing" a cookie cutter complaint for a professional plaintiff. Frankly, this tale of a touchy feely resolution is not, on the information provided, credible.

Vickie - December 6, 2008 12:07 PM

Thanks for dropping by to comment Smoke.

This thinly disguised actual mediation took place two years ago so my recall isn't perfect. AND I have no expertise in the ADA. I help attorneys help their clients settle litigation. That being said this is what I DO recall however.

The defense attorney acknowledged there were statutory civil "fines" of $4,000 (?) per violation (?).

The defendant acknowledged he had not complied with the requirements of the ADA.

The plaintiff's attorney claimed the pertinent case law did not require the plaintiff to enter the premises to prevail. It was enough that he drove by, SAW there was no access and made the decision not to enter the premises. The plaintiff's attorney also claimed it was no defense for the place of business to have brought itself into compliance after suit was filed.

The plaintiff claimed that he was looking for a motel to say in, saw there was no access and drove on.

The defense attorney did not contest the plaintiff's understanding of the law.

Given these "facts" and this understanding of the law, the defendant had two choices: proceed to trial on a case his own attorney did not think he could win or settle for the cost of defense.

If by "touchy feely" you refer to my attempt to find a way to form a relationship of trust and confidence sufficient to assist a business man make a difficult cost-effective choice when his feelings of exploitation might otherwise cause him to spend more on attorneys' fees than he could possibly gain by defending a weak legal position, I plead guilty.

As to the plaintiff, I don't know if he was a "professional" plaintiff or not. Unless one of the attorneys can give me a good reason to disbelieve the account given by one of the parties, I give both sides' stories equal credit.

SmokeVanThorn - December 9, 2008 12:13 PM

Thank you for the response.

The fact is that mooting the claim for injunctive relief by bringing the facility into ADAAG compliance IS a defense. I have obtained sumamry judgment on this basis numerous times. In addition, once the claim is mooted, there is no entitlement to attorney's fees because the plaintiff is not the prevailing party (see the US Supreme Court's decision in Buckhannon.)
"Driving on" without attempting to obtain access was enough to defeat plaintiff's standing and if plaintiff was so far from his home that a motel was needed, the likelihood of plaintiff being denied access in the future (abother necessary element of standing) was laso very likely lacking.

Finally, you say that you don't know if the plaintiff was a "professional plaintiff" and that you gave each party's story equal credit. But you did not give the defendant's story "equal credit" in this case - you ignored the map showing that the same plaintiff and attorney had sued a DOZEN motels in the same area, convincing proof that you were dealing with a professional plaintiff and a "drive by" plaintiff's attorney (not to mention the settlements reached with the other motels, about which you obviously had knowledge since you cite the lesser amount paid in this case).

It may be that the amount paid was so low that mediation was, from Mr. Wu's point of view, successful. But that seems highly unlikely because it looks like he he went into mediation with the deck stacked.

Vickie - December 9, 2008 12:27 PM

Thanks for your further clarification, Smoke.

What Mr. Wu did was to come to the mediation without YOU as his lawyer. Mr. Wu's lawyer did not believe he was entitled to summary judgment. He may have never tried. When you are mediating pro bono cases in the downtown Los Angeles Superior Court you get some of the best, and some of the worst, lawyers in the country. I rarely, however, see the best use my services free. It's usually the worst.

As to the professional plaintiff angle. Since I'm a commercial litigator, mediator and arbitrator by profession, I'm not certain I'd ever heard the term "professional plaintiff" at the time of this mediation.

I can imagine this, however. An individual in a wheelchair is looking for a motel room. He googles a motel in the area before arriving at the City he is visiting. He drives to that motel and sees that it lacks access for him. It's on a street with numerous motels. He drives past each one. None have access.

This man has suffered harm as a result. He brings suit against all of the non-compliant motels. The owner of those motels hire the attorney who represented Mr. Wu. That attorney does not know what you know. He does not say he is entitled to summary judgment. By his silence in response to my recitation of Plaintiff's attorney's legal position, it appears to the mediator (who is neutral) that he has no defense. With his attorney's implicit if not explicit consent, I make an attempt to help his client settle a case that he believes there is no defense to.

That's what I do for a living. I'm not only NOT an advocate. I'm not a judge. I work for the attorneys to help them help their clients do what they (the attorneys) think is best for their clients.

If Mr. Wu went into the mediation with the deck stacked, it is because he didn't have an attorney who knew the law well enough to win OR to negotiate a better settlement for his client.

What would be helpful at this point would be for you to publish an article in our local legal newspaper (send it to Sara Libby at the Daily Journal for the Focus or Forum column) to educate lawyers (including arbitrators and mediators) about this niche area of the law.

SmokeVanThorn - December 9, 2008 9:46 PM

Thank you again for your follow up response.

I agree with your points about Mr. Wu's representation. But it is obvious that you accepted that the plaintiff was acting in good faith and conveyed that perception to Mr. Wu as you worked him toward settlement. How likely is it that plaintiff was really lloking for someplace to stay and was unable to find a motel that was accessible? I have never been to a chain motel - including the cheapest national chains - that was not accessible.

There have been numerous articles written about ADA litigation mills - including some at overlawyered.com - not to mention dozens of US District Court opinions and orders recognizing the "professional plaintiff" phenomenon.

Best wishes for your litigation and ADR practices.

California VA Broker - February 24, 2013 9:31 PM

Thanks for your post. I’ve been thinking about writing a very comparable post over the last couple of weeks, I’ll probably keep it short and sweet and link to this instead if that’s cool. Thanks

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