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Victoria Pynchon

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

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She Negotiates

She Negotiates

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

What to Do When Negotiation Turns to Squabbling

Negotiators—whether politicians or homebuyers—begin with bold concessions which rapidly shrink the gulf between opposing sides. But like curves approaching an asymptote in geometry, as they near an agreement they level off and struggle to bridge the final, though trivial, gap. The effect of their ongoing quarreling is that, by the end, their motivating goal is not so much to strike a deal or make a sale as to make the other side yield, on no matter how minor a point. The fact of winning a concession matters more than the concession's substance. Not who yields most, but who yields last, appears to lose. The negotiation grows more bitter, the less remains at stake.

(Thanks to friend Rex Stevens for passing this along from the Aphorisms and Paradoxes blog.)

I was over at White & Case* last week talking to its women about the perils of negotiation without the inclusion of face-saving mechanisms. As I told them, it's a common mediation experience for the parties to make concessions in the millions to tens of millions of dollars only to reach final impasse over which side is going to pay the mediation fee ($5K) they'd agreed to split before the session began.

That's not about money, it's about face.

We call this end stage simply the final impasse but when the end stage stretches out into a seemingly endless future, we call it a "hurting stalemate" which is what we've got in Washington right now.

So how do you break an impasse that may or may not turn into a hurting stalemate?

First of all, you ask yourself and then, if possible, your bargaining partner, what hasn't yet been put on the table. Parties often reach impasse because they're attempting to achieve a hidden goal that they believe their negotiation demand will achieve or help achieve. It's been suggested, for instance, that shutting the government down and then re-opening only those agencies that the Republican party would like to see functioning is not a bad consequence of the parties' failure to reach agreement, but a hidden goal. If you take a look at the list of agencies shut down, you'll see there at least half of the GOP target list for ending or lessening government regulation. The Department of Education. The Environmental Protection Agency. And that department Rick Perry couldn't recall was on his hit list during the Presidential debates.

If you have a bargaining partner who is in fact achieving a goal - as collateral damage - that it might not otherwise be able to implement, you need to surface the hidden agenda. Remembering the importance of face-saving for a partner who may have backed himself into a corner, it's best to first raise the hidden agenda behind closed doors. Any negotiation in which all items to be traded are not on the table is a failed or sub-optimal bargaining session.

Face. We have a saying among my people that you can't save your face and your ass at the same time. Although there's real freedom on the other side of losing "face," few people are willing to go in that direction. It usually takes the total and complete collapse of your particular house of cards before you're ready to see the benefit of coming clean. That being the case, you've got to help your negotiation partner save face and you can't do that by airing a commercial comparing your opponent to a squalling baby during the national broadcast of a Sunday football game. 

Bad move, Dems.

How might the GOP save face while backing down from the brink of economic disaster? Give them victory. They won the sequestration round of the Obama vs. the House negotiation. Give it to them. They already have it. Don't praise them. Complain about their victory far more often than you're doing now. 

The far right Tea Party politicians are not worried about re-election but the Democrats potential Republican allies (the moderates) are terrified of losing their seats if they vote . . . well . . . moderately. Find a way to provide them with election protection. I believe this has been done several times before with the actual infusion of funds into certain politicians campaign coffers. It's also been done with political support from hidden stakeholders. The Chamber of Commerce, for instance, once a hidden stakeholder, has now come out in support of re-opening the government and authorizing a raise in the debt ceiling. Good for it. Wall Street too has been putting pressure on the right to avoid the danger a shut-down and a subsequent default would have on the world economy.

We're talking about interest-based, mutual benefit negotiation strategy and tactics here. It's not rocket science. What are your bargaining partners interests - what do they fear, value, prioritize, prefer, and, need. What do you have of high value to them (giving them a victory) and low cost to you (giving them a victory they already won).

Finally, there's "spin." That old Washington game we litigators and negotiators call "framing."

For god's sake, please stop calling the damn act Obama Care. Did the administration not see the Jimmy Kimmel episode where, when given a choice, random folks on Hollywood Blvd. said they liked the "Affordable Care Act" but despised "ObamaCare."

As Dick Draper recommends - if you don't like the conversation you're having, change it!

Finally, as the television ads being run on cable in Republican strongholds last week amply demonstrated (as if we didn't already know) the Tea Party's marching orders weren't to govern but to bring Obama down. Why not give them Obama's virtual head on a platter?

Count up everything the Obama administration lost due to GOP opposition since his '08 election. Treat it as news. Because visuals are so important, particularly to the chronically uninformed, actually put Obama's head on a platter and run his defeats over the image. Treat re-opening the government and raising the debt ceiling as magnanimous acts of the GOP in the face of the AntiChrist who would bring the country down to serve his own interests. Give them victory without compromising anything.

There are dozens of other ways to break impasse. But let me stress that prolonging a hurting stalemate is easy. You simply publicly demonize the "other guy" and dance the macarena over his grave. 

JUST. STOP. IT.

And put into practice those best negotiation strategies and tactics that I guarantee you every politician knows.

*W&C is one of the top law firms for women and has earned its designation as such.

Raw Economic Power In One Corner and Justice In the Other.

When it comes to paying (or not paying) employees, the cri de coeur of American business is not yes, we can but because we can.

We don't provide our employees with health care insurance because we're not required to. We pay them minimum wage because we can.

We don't pay our interns because they've been convinced by career placement counselors, their parents and American business, that there are so many over-qualified people to perform the largely clerical tasks they're "hired" to do that they have to work for free.

See PayGenY for all the many reasons this is actually, legally and morally wrong. And it pains me deeply to say that friends of mine who could afford to pay new college grads at least minimum if not a living wage, ask them to work for free because they can.

What has happened to our moral compass?

What has happened to our understanding that the wheel of fortune will always turn and that when it turns down for those at the top, it's a feast for sharks unless the fallen has treated his partners and subordinates as valuable members of a team, without whom he could not accomplish the job he's doing, let alone make the money and accrete to himself the power he has taken for himself.

I have seen this in action too many times for it to be a one-off.

The first shall be last.

 It was ever and will ever be so.

The President of PETA, interviewed by Alec Baldwin in his must-hear podcast, Here's the Thing, noted that American business justifies animal cruelty so long as it can connect mistreatement to a penny or two increase in the price of its stock. The same is true for corporate human capital. The shock of the recession and its aftermath (socialize the loss and privatize the gain) has caused everyone from highly compensated senior equity partners to the last-hired guy in the mail room to react the way rats do when the man in the white lab coat throws the switch on the electrified grid beneath their feet. 

They either attack one another or go catatonic. 

Big Law in particular is treating its people very badly because it can. The people from HR, sometimes with security officers beside them, are walking up to legal secretaries with twenty-five to thirty years of experience and terminating them on the spot, hovering over them as they pack their things and walking them out the door.

I call this the new American perp walk.

If HR knew what it was doing, it would know this - people's claim-making inclinations are highly colored by the manner in which they are terminated. As Joan Didion so eloquently reminded us,

We tell ourselves stories in order to live. The princess is caged in the consulate. The man with the candy will lead the children into the sea. The naked woman on the ledge outside the window on the sixteenth floor is a victim of accidie, or the naked woman is an exhibitionist, and it would be 'interesting' to know which. We tell ourselves that it makes some difference whether the naked woman is about to commit a mortal sin or is about to register a political protest or is about to be, the Aristophanic view, snatched back to the human condition by the fireman in priest's clothing just visible in the window behind her, the one smiling at the telephoto lens. We look for the sermon in the suicide, for the social or moral lesson in the murder of five. We interpret what we see, select the most workable of the multiple choices. We live entirely... by the imposition of a narrative line upon disparate images, by the 'ideas' with which we have learned to freeze the shifting phantasmagoria — which is our actual experience.

If we terminate employees disrespectfully, subject them to humiliation and treat them unjustly, the story they will tell themselves about their recollected work experience will be one of disrespect, humiliation, and injustice. If we terminate them respectfully, with sufficient notice and with offers to help them make the transition, the story they will tell themselves about the past will reflect the present and claiming-activity will be reduced.


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Negotiation Law Blog Lives On and On and On at The Library Of Congress

The LOC describes this archive as a “selective collection of authoritative sites” associated with law schools, research institutes, think tanks, and other expertise-based organizations. “These blogs contain journal-style entries, articles and essays, discussions, and comments on emerging legal issues, national and international,” the LOC says.
Despite what the description says, several practitioner blogs, not affiliated with any school or organization, are included in the archive. Among them are Marc Mayerson’s now-defunct Insurance Scrawl, Howard Bashman’s How Appealing, Curacao lawyer Karel Frielink’s Karel’s Legal Blog, Victoria Pynchon’s Settle it Now Negotiation Blog, Scott Greenfield’s Simple Justice, Ken Lammer’s CrimLaw, Diane Levin’s Mediation Channel, and Jeff Beard’s LawTech Guru.
In a post this week at the Law Library of Congress blog In Custodia Legis, Matthew Braun, senior legal research specialist, provided further background on the archive. It was created, he says, “so that the legal events detailed and analyzed in the blogs of today can be studied for years to come.”

No matter the fact that the joy of blogging is in the . . . . blogging, it's gratifying to be recognized as having contributed something valuable to the expansion of the law into more collaborative practicies. That's why I'm thrilled to learn (h/t Don Philbin) that the Settle It Now Negotiation Law Blog has been archived in the Library of Congress.

As Robert Ambrogi writes today on his Law Sites Blog not yet archived by the LOC,

several practitioner blogs, not affiliated with any school or organization, are included in the archive. Among them are Marc Mayerson’s now-defunct Insurance Scrawl, Howard Bashman’s How Appealing, Curacao lawyer Karel Frielink’s Karel’s Legal Blog, Victoria Pynchon’s Settle it Now Negotiation Blog, Scott Greenfield’s Simple Justice, Ken Lammer’s CrimLaw, Diane Levin’s [sadly abandoned but fortunately archived] Mediation Channel, and Jeff Beard’s LawTech Guru.

In a post this week at the Law Library of Congress blog In Custodia Legis, Matthew Braun, senior legal research specialist, provided further background on the archive. It was created, he says, “so that the legal events detailed and analyzed in the blogs of today can be studied for years to come.”

"Studied for years to come."

Sweet.

The LOC describes the archived law blogs as a selective collection of authoritative sites associated with law schools, research institutes, think tanks, and other expertise-based organizations. 

Even sweeter but hilarious to anyone who survived "intro week" in law school. The dictate then was as follows: First you cite Harvard and Yale. Or as my Yalie husband would correct, Yale, then Harvard. After that, you took a trip through the legal Ivy League. Only if you were truly desperate did you cite, say, the Constitutional law professor at Chapman who is the only ultra-conservative voice against SCOTUS' recent Constitutiuonal stamp of approval on modernity (think Prop 8, DOMA).

I'll add links to all these other great legal blogs anon. In the meantime, click on Ambrogi's post for all the links. And thanks to my colleague, Don Philbin, for emailing me the link with a note of congratulations. His ADR Toolbox is must-read for all ADR practioners, most particularly those who appear before mediators and arbitrators. 

As Colin Powell said, the most important information to gather in international diplomatic negotiations is "the other guy's decision cycle." And Don is the smartest ADR practitioner in the room. Know his decision cycle and your facilitated negotiations will deliver more than you ever dreamed they could.

Pursuing Happiness In the Law On Independence Day

We all read this in the fifth grade, right? Again in high school History and Civics, one more time in college history, philosophy or political science and, if we took the sparsely attended jurisprudence course in law school, we read it again there.

I have to admit, however, that I never knew what it meant until I listened to one of those Teaching Company courses on American History.

Eudaimonia

We know that the founders didn't have week-end spa retreats, golfing getaways, or new BMW's in mind when they included in the preamble to the Declaration of Independence the right of all "men" to pursue happiness.

So what did these men of the American Enlightenment mean?

They meant eudaimonia, an Aristotelian concept defined "not by honor, or wealth, or power, but by rational activity in accordance with virtue over a complete life. This type of activity manifests the virtues of character, including, honesty, pride, friendliness, and wittiness; the intellectual virtues, such as rationality in judgment; and non-sacrificial (i.e. mutually beneficial) friendships and scientific knowledge (knowledge of things that are fundamental and/or unchanging is the best).

This is amazingly similar to what social scientists have demonstrated motivates most people, as described in Daniel Pink's book, Drive

Autonomy, purpose and mastery.

You can pay people all the money the world has to offer and they will not achieve true happiness in the absence of friends, family and right occupation. In light of the fact that "right occupation" for attorneys does not eliminate the considerable physical, emotional and moral stress of practicing law, it's not surprising that most of us report a significant degree of unhappiness in our chosen field.

But is that a necessary component to legal practice?

Eustress

You don't need to be a workaholic or stress adrenaline addict to understand the concept of "good stress." The term eustress was coined by the neuroimmune biologist Hans Selye in the early 1970's.

This type of stress is a happily adaptive response to what some people call "problems" and others call "challenges." In response to "challenging" problems -- difficulties or barriers people believe they have the freedom and power to address -- the body releases adrenaline and noradrenaline. Both of these hormones result in heightened perception, increased motivation and even increased physical strength. Eustress extends the person's capacity to function (intellectually, physically, emotionally and behaviourally).

This "good stress" acts both as a motivator to creative problem-solving and as its bio-chemical reward. Eustress is simply the scientific-biological explanation for the Aristotelian value and goal of "eudaimonia," which the founding fathers wrote into the Declaration of Independence.

At least one pundit whose website I can no longer find has written,

 If we can rediscover the concept of eudaimonia, and adapt it to suit our modern values, perhaps we can find a way to achieve longer-term happiness. A modern concept of eudaimonia, for example, might include the need to take account of the effect of one’s actions on the environment, as well as on other people in one’s community. It might take the form of political engagement, or artistic creativity, or volunteer work. By focussing on the effect of our actions on those around us and on the world in general, rather than on our own happiness, perhaps we can learn to be eudaimon, and to be happy.

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Negotiating The Cost of Maternity: Just the Facts

Facts without links taken from the American Way of Birth article in today's New York Times.

You Deserve A Raise - Let Us Help You Negotiate It

Corporate profits have been soaring for some time now. What/who is the engine of those profits?

You, the American worker, are!

That means you deserve a raise. Have you gotten one lately? Not according to most sources.

We routinely help women negotiate raises between 15 and 30%.

Our success reflects the undeniable fact that our clients deserve these raises but haven't been getting them. We're not rocket scientists but we do know how to assess and then help you negotiate your true market value.

If you don't believe you can negotiate a raise, here's what one of our clients had to say about our services following by what USA Today had to say about your entitlement to a raise now back at the beginning of the month.

Client:

I scored BIG when I hired Victoria Pynchon. She helped me successfully negotiate a job promotion, 40+% raise, and  new title -- all at my current employer. And this was during a recession! Vickie benchmarked salaries for me, realistically evaluated my options, helped me understand the motives and pressure of my employer, and advised me at every step of the way throughout the negotiations. And she guided me in developing a long-term strategic plan for my career.

USA Today:

Stock markets and corporate profits are breaking records. The economy suddenly looks brighter after the government's surprising report Friday that employers added 635,000 jobs the past three months.  

"Hourly wages ticked up 4 cents in April to an average $23.87, rising at about the same tepid 2% annual pace since the recovery began in mid-2009.

But taking inflation into account, they're virtually flat. Workers who rely on paychecks for their income have been running in place, financially speaking. Adjusting for inflation, an average worker who was paid $49,650 at the end of 2009 is making about $545 less now and that's before taxes and deductions.

According to this month's Harpers, "even among the well-educated, the fear of unemployment deters workers from demanding wage hikes, particularly when joblessness is pervasive."

Let's not let the spectre of unemployment, or permit the unsupported corporate excuse of "the recession" deter us from reaping some small portion of the benefit that has flowed to the top of the American economic ladder in the past few years.

As one of those mega-negotiation training firms that advertises in airplane magazines says, "you don't get what you deserve; you get what you negotiate."

Find us and call us at She Negotiates and let us help you negotiate what you deserve.

Despite our focus on closing the gender wage gap, we serve men as well as women because a rising tide raises all ships.

What Are Your Super Powers And What Are You Waiting For?

I just spent the weekend with a group of incredibly engaged, brilliant and successful women lawyers at the Vail Sebastian Hotel where I keynoted the annual Conference of the Colorado Womens Bar Association.

Four questions stirred the greatest interest.

  1. What are your super powers to get things done?
  2. Do you have (or need) the authority to use them?
  3. What can you use them to accomplish to further your own career?
  4. If you're not using them, why not?

Last night at the cocktail party after my presentation (slideshow below) dozens of women approached me to tell me what their "super powers" were.

  • Institutional Knowledge.
  • Ability to assign work.
  • Persuasiveness.
  • Influence over firm power brokers.
  • Willingness to study for and take foreign bar exams (a recurring nightmare in my book, but hey! "how is the firm recompensing you to study for and take it?")
  • Ability to promote younger lawyers.
  • Ability to form relationships with the firm's clients.
  • Speaking ability.
  • Writing ability.
  • Ability to: take a great deposition, write jury instructions, try a case.
  • A large social-professional network that can be tapped for favors and referrals.

And on and on and on.

If you have not made a list of your "super powers" please do so now. Ask yourself how they can benefit your career. Then ask yourself whether you're using them effectively to do so and if not, why not. 

Then go and prosper!

 

Breaking News! There's Nothing Wrong With Women

drowning

Join me, Lisa Gates and Katie Donovan, along with co-host Jana Hlistova and Gloria Feldt for Take The Lead's monthly Smart Women Take The Lead webcast. Register here now. The live webcast will be Tuesday May 14th at 7pm BST, 2pm EDT. You can send questions via twitter using the hashtag #swttl – we’d love to hear from you! And if you miss the live program, you can always click the same link and see it on YouTube.  

Women in the age of of AnneMarieSlaughterSherylSandbergMarissaMayer are drowning in a sea of unsolicited adviceIn recent days, it’s been suggested to me (the generic woman) that I find a way to strengthen my voice (Executive Presence); jettison my womanly emotions in the workplace (don’t cry!); eliminate question marks and exclamation points from my email communications (??!!???); act more like a guy; act less like a guy (in the same article); get the best seat at the conference tableimprove my handshake; ask for more money but to do so with a smile on my face andthe pretense that it’s for someone other than myself;  pay more attention to my family than to social networking; devote more time to online social networking;  learn to golfseek sponsorsseek mentorsbrag about my accomplishments, but modestlyconform my behavior to feminine stereotypes while covertly using man-rules; and, for heaven’s sake never, ever to curse in publicOver at Princeton, it’s even been suggested that young women do what their grandmothers did –find a man who is likely to be a “good provider” while the getting is good (before graduation). My generic woman’s head is about to explode. The solution? Start by understanding there's nothing wrong with you over at the Take the Lead blog here.

20 Reasons Gen-Y Shouldn't Work for Free

1. This whole generational “work for free’ thing is not the way things have always been – its a dysfunctional feature of Great Recession where everyone was pinching pennies and a class of unemployed young people were available to be exploited.

2. We often “hired” free interns simply because you were being hawked by your universities and graduate and professional schools. We’re sorry. We weren’t thinking clearly. When we were young, we could live off of $200/month and still pay our enormous tuitions somewhere between $600 and $3,000/year. We interned. Why not you? Because we didn’t graduate burdened by tens of thousands of dollars in student debt. Our debt was manageable. Forgive us. We weren’t thinking clearly.

3. Anyone in business – including non-profits – must generate enough money to operate. They must pay their gas and electric bills for the power they receive. You should not give your power away free just because some organizations don’t believe they can afford it.

4. There’s a one percent difference in obtaining paid employment for young people who work for free and those who do not. In other words, if you’re working for free, you only have a one percent advantage over your presumed competitors in a lazy job market.

5. Many employers don’t give internships any credence at all when reviewing your resumes. They figure, “she worked for free; this ‘job’ doesn’t tell me whether she was good enough to be hired.”

6. If you get a paid job doing clerical work in your field, you can promote yourself there while you’re being paid and rise up through the ranks (it’s a low bar to move from a clerical position where some people are working at full capacity to a more professional position)

7. You are depriving yourself of future benefits when you’re not paying payroll taxes – social security, for instance, the pay-out from which is based on your lifetime earnings.

8. If you’re working for free, you’re likely displacing clerical workers who make a living doing clerical work and cannot find jobs because – among other things – recent grads are doing their work for free.

9. No matter how little people have told you you should think of yourselves, you are a store of enormous value. If you weren’t, why did you go into debt to ready yourself for the job market . . . tens to hundreds of thousands of dollars in debt. In a market economy, value is exchanged for value. It’s the way the economy works.

10. I am stealing from you if I use the value you possess to make my business more efficient and my work more effective. STEALING!!

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10 Reasons To Negotiate Instead Of Suing The Bastards

Now more than ever.

Mediation Awareness Week. See the televised event by clicking on the image and begin at the 57-minute mark.

Ten Reasons To Negotiate Resolution

1. The Los Angeles Superior Court has closed four court houses and dozens of court rooms. 

2. Time is literally money (see the time value of money).

3. The law (and your lawyer) only care about relevant facts - the most important part of your dispute may well not even be addressed, let alone resolved, by a jury verdict in your favor.

4. As your trial date nears, everyone - the judge, your lawyer, their lawyer, your spouse, your friends, and random acquaintances will urge you to negotiate a resolution with a neutral third party (a mediator).

5. Your attorney settles 90% of every case s/he litigates. S/he rarely goes to trial anymore. Ask her about the last verdict she won and then the one before that. If you have a skill (piano, golf, cooking a souffle) ask yourself how well you'd perform if you haven't used that skill recently or often.

6. Litigation is an extremely expensive board game, much of which is simply the cat and mouse exercise of discovery. Here's how it's played. I ask for documents. You object. I write you a letter demanding compliance. You write back refusing to comply and reminding me I have to "meet and confer" with you before we ask the discovery referee to intervene. We meet. We accomplish nothing. I make a motion (write a "brief") to compel you to turn over documents. You write an opposition. I write a reply. We pay the discovery referee to read our papers and listen to our oral argument. The discovery referee splits the baby in half or fourths or tenths. One of us asks the Judge not to sign off on the discovery referee's decision. More papers, more writing, more time, more of your money. The Judge, not a lion of courage, splits the baby again and refuses to award either party the costs of forcing compliance. Two months later (at least six have now elapsed) you get a stack of documents and a privilege log listing the documents that aren't being provided. I write you a letter demanding that you turn over documents on the privilege log. Rinse. Repeat.

7. As if the disrespect of the original dispute were not enough, I now get to sit you down in a conference room with a court reporter and spend a day or two asking you questions you don't want to answer. Often, the questions are asked in a disrespectful manner. When you complain to your attorney, he says "that's just the way the game is played." Focus on the word game. Are you having fun yet?

8. You get a bill for legal services rendered every month but you're no closer to resolution after receiving and paying 12 of these than you were on day one.

9. You're a business person. You negotiate business deals every day. Your lawyer does not.

10. You have given away any power you might once have possessed to resolve this dispute to a lawyer who does not understand your business, your life or the facts that drove you to seek legal advice in the first place.

Had enough? There are people out there - mediators - who are specially trained in helping you first communicate with your attorney and then helping you negotiate the resolution of your dispute with the "other side." Choose carefully. There are as many bad mediators there as there are litigators. My best advice? Negotiate the resolution of the dispute yourself even if it requires you to swallow your pride and to be the first one to say, "let's sit down and figure out how best to serve your interests and mine at the same time."

 

Are Women's Initiatives Meant To Fail?

Nearly every law student in the country from the oldest grad to the youngest aspirant, learns the meaning of "intent" in civil law from the case of Garratt v. Dailey.

You may not want to hurt Bill, but if you put an apple on his head, raise your shotgun and pull the trigger, the law will say you intended to kill him in the highly likely event that your William Tell act causes Bill's death.

The rule that Garratt applies to a five-year old's decision to pull out the chair out an adult woman is about to sit in is this - if the defendant knows with a substantial certainty that his act will result in harm, he must be presumed to have intended it.

Which takes us directly to law firm women's initatives. As the National Association of Women Lawyers' 2012 survey of BigLaw women's initiatives concluded, the programing offered by BigLaw to retain and promote women does not achieve its goals. Not only that, but these women's initiatives rarely have measurable promotional goals.

As the Survey reports, even though women’s initiatives have been in effect for at least a decade, "what such initiatives actually do, and the impact they have on women in firms, is all too often not clear and at worst, open to criticism bordering on cynicism." More particularly,

fewer than half of all women’s initiatives are evaluated annually by management. Similarly, fewer than half of all women’ initiatives submit written evaluations. Moreover, it is not clear that the reporting and evaluation functions focus on specific goals. Some 40% of firms report no specific criteria at all for their evaluation. Of those who report goal-related evaluation criteria, there is often no connection to concrete advancement criteria. Thus, descriptions of evaluation criteria were often along the lines of “accomplishment of goals and activities identified at the start of each year” or “number of events, quality of events, participation level.”

 

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Dewey Culprit Freed From Debts Partners Forced To Pay

 

That Davis—who has been unemployed since being forced out of Dewey in the firm's waning days—must earn at least $6 million over the next six years in order to pay off the settlement in full, and can walk away debt-free even if he doesn't, is stirring outrage among some of his former colleagues. 
"The retirees and former partners with whom I have spoken feel shocked and betrayed," says David Bicks, a retired Dewey & LeBoeuf partner who, along with other disgruntled retirees, fought with the estate over how much they were being asked to contribute before settling the dispute in February. "It's very hard to reconcile the principal architect of the debacle paying nothing at this time while the retirees and innocent partner victims have had to pay back money to the firm. Davis’s note is regarded as a sham."
Lawyers at Brown Rudnick who represent Dewey's new liquidation trustee, Alan Jacobs, declined to comment on the terms of the Davis settlement, as did Jacobs. In a declaration filed with the court Monday, Jacobs stated that "the benefits of the proposed settlement decisively outweigh the benefits of proceeding with litigation" given Davis's position that he would "vigorously" defend himself against any mismanagement claims. Jacobs also said in the filing that Davis's status as a "collection risk" based on a review of his tax returns, bank statements, and other financial records was "a leading factor" in how the note was structured. 
The advisers who preceded Jacobs in the Dewey bankruptcy did not subject any other lawyers' personal finances to similar scrutiny in putting together the so-called partner contribution plan that required former partners to pay the estate between $5,000 and $3.37 million based on how much money they received from the firm in 2011 and 2012. Those who signed on to that plan had to make their payments by April 5. The settlement was the linchpin of a Chapter 11 liquidation plan approved February 27, eight months after the firm went bankrupt

This just in from the American Lawyer on the man who allegedly caused the downfall of a once great international law firm.

The settlement appears to be a virtual hologram of the misdeeds with which he is charged. Being the spouse of a Heller partner with many Heller friends who were subjected to the threats of the creditors' committee, I feel this man's partners' pain.

As of next year, former Dewey & LeBoeuf chairman Steven Davis—faulted by many both inside and outside the firm as the chief culprit in its collapse—is to begin chipping away at the $511,145 he has agreed to give the Dewey estate to help satisfy creditors under a broader settlement that protects him against potential mismanagement claims.

 Unlike more than 500 other former partners who were required to make payments to the defunct firm's estate by early April in exchange for a release from Dewey-related liability, Davis has considerably more time to meet his obligations. Starting on March 22, 2014, court filings show, he must pay the estate a sum equal to 8 percent of his annual earnings each year for the next six years. Any outstanding balance will accrue interest at a rate of 9 percent annually.

Once that March 2019 payment is made, though, whatever debt Davis still owes will be wiped away . . . That Davis—who has been unemployed since being forced out of Dewey in the firm's waning days—must earn at least $6 million over the next six years in order to pay off the settlement in full, and can walk away debt-free even if he doesn't, is stirring outrage among some of his former colleagues. 

Read on at the American Lawyer here.

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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How to Ask Someone to Stop Using Your Trade Name

The intellectual property police have been out in force since the new year, protecting their rights to words like "win" and "without," as in "negotiating to win" and "mediators without borders."

I am told I can negotiate to lose or negotiate with, by or for women, but I cannot "negotiate to win," even if I add the word She in front of the transitive verb Negotiates before going on to suggest that by negotiating, "she" can win.  

And let the world be on notice, She is a word I'm gonna own, baby.

Only Mr. Thompson, I was told, has the right to annoint himself as the negotiator who wins, despite the plethora of winning negotiation books -- such as Negotiate to Win by Patrick Collin and Negotiate and Win by Dominick Misino -- and winning negotiation seminars, like the AMA's Negotiating to Win and another company's Negotiate to Win-Win (the key, apparently, in the redundancy)

I am also advised that I must eliminate posts from my blog concerning Mediators Without Borders which used to be the name of an organization of which I was a charter member (now Mediators Beyond Borders). My blog posts concerned Mediators Without Borders before another MWB told the new MWB's Board that "without" had been taken, thank you very much.

 

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The Week at ForbesWoman

We've had a busy week over at ForbesWoman in articles and blog posts covering:

The Davos World Economic Forum

The paucity of women at the Davos Economic Forum despite how rich the ones who attended are as described in this post by Forbes staff writer Louisa Kroll, The Richest Women at Davos.

Women's Davos Wardrobe Dilemmas covered by Moira Forbes as an unfortunate but still critical factor for the display of power necessary to be a player at the World Economic Forum.

A photo gallery of the executive conferences women CEOs love best.

The Continued Assault on the Glass Ceiling

Aman Singh's post on Why So Many Top Women Don't Make it to Executive Leadership.

Jenna Goudreau's Jobs Outlook:Careers Headed for the Trash Pile


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Fighting at the Thanksgiving Table? Let Conflict Be Your Zen Master!

From Z is for Zen Master in A is for Asshole, the Grownups' ABCs of Conflict Resolution.

Dr. Kenneth Cloke tells us that every conflict “occurs at the intersection, or crossroads, between problems we need to solve in order to grow and skills we do not yet possess. With each level of growth and development, we experience fresh conflicts and transcend old ones that we not only successfully resolve, but develop the skills to move beyond.”

Let’s take marriage, or long-term relationships of any kind. Whenever I complain about a conflict with my husband, my friend the Buddhist reminds me that my husband is my Zen master. Her reminder focuses my attention back on myself and what I have to learn from the dispute I’m having with my husband. The two of us are like the couple in Anne Tyler’s novel, The Accidental Tourist. We sometimes feel like rivals competing for the “better housekeeper” award. Should I win the prize for insight and understanding even though I am haphazard and mercurial in my habits? Or should the blue ribbon be awarded to my husband who is methodical and steady? When we first met, he loved my spontaneity and I his dependable nature. Now his steadiness irritates me and my disorganization angers him.

This intractable meta dispute – the dispute on which all others are based – evaporates when I realize it has something to teach me about my own character and presents a challenge against which that character could possibly develop. What if we solved the immediate problem? “If only you’d put your car keys in the same place every time,” my husband says for the umpteenth time, “you wouldn’t have to spend twenty minutes searching for them.” I could choose to shift the argument to my home court (“you are too controlling”) or take the lesson that a little advance planning might ease rather than burden my busy day.

Here’s the transformative part. When I change in a fundamental way, the people in my life inevitably change in relation to my change. Once my husband and I resolve the order-versus-chaos problem, he will have to find someone else to play the "I'm more orderly than you" game or give it up altogether. If his desire is truly to help me lead a more efficient and productive life rather than “trying to control me,” the two of us can move on to greater, more interesting challenges than this one on which we have been stuck for years. The same is true for relations between workers, members of extended families, red states and blue, and America against the rest of the world.

If we were finally able to resolve our differences over, say, the separation of church and state, we could free up our energy to address other pressing problems, like poverty and intolerance, the environment and health care, and full employment for anyone with the desire to work as a contributing member of the society. Conflict among human societies has caused incalculable loss and suffering. It is also the way in which people have finally stood up for human rights, self-governance, peaceful dispute resolution, independence, and tolerance of differences.   If we encounter conflict with courage and self-reflection, it can and will lead us, and those who surround us, to greater freedom and authenticity, to greater self-reliance, acceptance, accountability, forgiveness and, at long last, a far more peaceful world.

How black is Obama and why negotiators should care

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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).

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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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Who's Too Big to Fail? We Are!

Cross-posted at She Negotiates

What does this man have that you don't?

A year-end 2009 salary of $21,340,547 during one of the worst year's in the history of his industry ~ banking.

Listen!  The recession is just another excuse for not paying you what you're worth.

How do we know?

Because the most effective negotiators on the planet ~ corporate CEO's ~ are finding the downturn to be the best time to squeeze every last living dollar out of their employers.

If they can do it, so can you!

 Here's the evidence:

Bank of America Corp.
Thomas Montag
2009 Total Compensation: $29,930,431
JPMorgan Chase & Co.
James Dimon
2009 Total Compensation:
$9,274,494
Citigroup Inc.
John Havens
2009 Total Compensation: $11,276,454
Morgan Stanley
Walid Chammah
2009 Total Compensation: $10,021,969
The Goldman Sachs Group Inc.
Lloyd Blankfein
2009 Total Compensation: $9,862,657
Wells Fargo
John Stumpf
2009 Total Compensation: $21,340,547

 Whhaaaaaatttttt? do these men have that you don't have?

  • Social networks with rich and powerful people who sit on their Boards of Directors and influence policy makers and Wall Street power brokers
  • The self-created illusion that they are "too big to fail" /1
  • The persuasive argument that only they, with their unique combination of experience, education, knowledge, savvy, can-do-spirit, and leadership qualities can pull these banks out of the sinkhole of the recession.
  • Friends in very high places.
  • Chutzpah and shamelessness (not that we'd want to encourage this second character flaw in our readers).
  • Self-satisfaction.
  • Entitlement.
  • An employment history of asking for and receiving increasing levels of compensation based upon their salary negotiations at every career point possible (and every career point impossible)
  • the demonstrated ability to produce results (our readers do possess this strength but haven't used it to their greatest advantage yet)
  • the tendency to measure their market value by their value in the hands of their employer, not by what they "need" or what they are "worth" according to some internal metric that depends upon how they feel about thier accomplishments.

__________________

1/  This is where collective action comes in.  When we aggregate together America's employees, small business owners and homeowners, we get a non-corporate "entity" that is waaaayyyyyy bigger than some little piss-ant bank and it is we who are too big to fail.

diversity in the amlaw100? who are we kidding?

Most law firms state their commitment to diversity and inclusivity, prominently featuring on their diversity pages the pathetically few women and minorities in positions of genuine economic power in the firm.  Are they walking the talk?  Let me count the ways.

O'Melveny & Myers ~ We attract, retain, and promote people of all backgrounds, regardless of gender, race, ethnicity, national origin, sexual orientation, age, religion, disability, or any other group characteristics.

201 male partners and 21 women ~ 10%.  In the legal realm, you win awards for this.

O’Melveny & Myers LLP has been named to The American Lawyer’s 2010 A-List, which recognizes the nation’s most elite law firms for stellar performance in the areas of revenue generation, pro bono commitment, associate satisfaction, and diversity representation.  This is the Firm’s third consecutive year on the list of 20 firms judged best at balancing the practice of law with their obligations to the profession.

I don't mean to pick on O'Melveny.  It's representative of the whole.  Any AmLaw100 law firm that would like to crow about its great track record in retaining and promoting women and minorities, please do drop by with your results and suggestions to your peers for improvements in these figures that the smartest guys in the room just can't seem to be capable of figuring out.  

Today, Forbes Corporate Social Responsibility Blog is commencing a series on how a serious commitment to diversity results in improved bottom line performance.  I commend that series to the attention of the real powers that be inside AmLaw 100 law firms and they cannot be found in the Diversity Programs, of that I can assure you.  Here's the intro to the McDonald's diversity program series:

How does a company that serves 56 million customers a day across 118 countries become a leader in diversity hiring and retention? According to the inclusion and diversity team at McDonald’s, it takes a combination of knowing how to leverage a multicultural customer base, a C-suite-led commitment to talent management, and academic-style learning labs.

If you're a woman, like me, we have our own garden to tend.  We leave the Fortune 50 and the AmLaw100 out of discouragement.  But part of that discouragement is born of our own diminished expectations and failures to build serious rain-making activities into our daily practices along with our failures to demand assignments to the types of cases where partners are made.

If your law firm or corporation does not have a serious diversity program, click your ruby slippers three times, say "there's no place like the board room," take the She Negotiates signature course, and kick a little butt. 

Remember, as Gloria Steinem said, "the truth shall set you free, but first, it will piss you off."

Cross-posted at She Negotiates.

prisons of peace

Can we afford not to learn and teach these skills?  Cross-posted at She Negotiates.

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.

Virtual Property, Virtual Litigation and Real Resolution

I continue to bark at the moon.

Here's a piece I missed in April on real litigation filed over virtual property in Second Life.

Architect David Denton spends much of his time on a lush tropical island, where he experiments with cutting-edge building designs and creates spaces for artists to showcase their work.

Never mind that the island only exists in the virtual-reality world of Second Life, a popular online venue where people interact via digital avatars. Denton, 62, said he purchased the island for about $700 — real money, not virtual cash — from its former owner, and considers it his property.

Here's the thought this article triggers.  If 90% of all litigation involving people (I'll skip corporate litigation and litigation brought to vindicate rights such as that declaring Prop 8 unconstitutional) will end with a retired Judge telling the people that litigation is too expensive and a jury trial too uncertain for them to bear, why don't we just litigate virtually (with Linden dollars!) giving the parties the experience of litigation that will eventually drive them to settlement?

I'm sure some smart programmer can come up with an algorithm for most personal disputes, including both factual templates and the application of simple legal principles.  A "ticker" could keep track of the dollars your virtual attorney is billing on your law suit's screen everyday.  Continuances, discovery motions, pre-trial proceedings and depositions could all be simulated.

Then the parties return from the virtual life of Second Life Litigation and sit down in the old fashioned way to negotiate a resolution to their dispute or, if necessary, hire a village elder trained in conflict resolution, sometimes called a mediator, to help them do so.

More American than I -- a Fourth of July Tale

"I'm more American than you are," Luis, the Argentine exile was saying over dessert at a local Los Angeles eatery nearly twenty years ago.

I'd dodged Luis' phone calls for at least two months and this was our first date.  We'd met at the downtown Los Angeles Biltmore where party faithfuls were celebrating Bill Clinton's first Presidential victory.  An hour earlier, I'd been standing on a balcony at the Century Plaza hotel listening to the dim depressed and increasingly drunken hum of conversation in the room behind me.  My friend and former associate had just sustained a predictably certain loss to the durable Rep. Henry Waxman.  Mark was a Republican sacrifice.  But still.  It's hard to lose.

The somber tone at the Century Plaza was not limited to the room in which Mark's supporters had so glumly gathered.  It inhabited the entire hotel as George H.W. Bush's first term failed to morph into his second.  In retrospect, only a Harry Potter reference could have done justice to that election night mood.  It felt as if a coven of dementors was circling overhead, glorying in the Grand Old Party's despair and draining peace, hope and happiness out of the air around them.

"Let's get the hell out of here," I said to one friend or another. 

"We're drunk."

"We can take a cab."


 

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Discussing Hot Button Issues without the Heat

Immigration Dialogue 2010

July 23, 2010  (3:30-5:30 pm PT)

at the Skirball Cultural Center in Los Angeles

Featuring:

Arizona State Rep.

John Kavanagh (Rep.)  and

Arizona State Rep.

Kyrsten Sinema (Dem.)  

Arizona Rep. John Kavanagh image    Arizona Representative Kyrsten
Simena image

 Moderated by:

Lee Jay Berman

Lee Jay Berman
President, American Institute of Mediation

 
Please join us for a very unique and special event where we will discuss the Immigration Issues facing us in 2010, and Arizona State Law SB 1070, which is scheduled to take effect on July 28, 2010.  Rather than an interview or debate, the American Institute of Mediation (AIM) is hosting a public mediated discussion on the topic featuring two Arizona State legislators: John Kavanagh (R) and Kyrsten Sinema (D) and facilitated by AIM founder and President Lee Jay Berman.

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Let the Kagan Games Begin: Whitepapers from SCOTUS Blog

(pictured:  the bread and circuses part)

Thanks to the SCOTUS Blog for the following resources on the upcoming Kagan hearings.  Follow SCOTUS Blog all week for commentary. 

Why should negotiators be interested in the composition of the Supreme Court?  Because the freedom to negotiate requires a strong rule of law culture.  And because everything we negotiate assumes the enforcement of certain agreements and non-enforcement of others, of particular interest to negotiators and ADR practitioners - arbitration agreements

SCOTUS whitepapers below:

Diversity Hiring

Abortion

Diversity on the Court

Gays in the Military

Corporate Rights (Citizen's United)

Conservatives

Executive Power

Kagan's Qualifications to Serve

 

 

 

 

Should We Be Creating a New Anti-Bullying Cause of Action

Check out my first blog post on the Forbes.com legal blog, On the Docket, New York Anti-Bullying Law a Big Bad Idea.

I know, opposing a law that seeks to prevent workplace bullying is like criticizing mom and apple pie.  Still.  More workplace litigation???  And why isn't the existing cause of action for the intentional infliction of emotional distress a perfectly good alternative for anyone who's truly "severely" damaged by "outrageous" conduct that goes beyond the bounds of human civility?

One of the great benefits of posting on this topic over at Forbes.com is the number of comments it generates.  Not because it insures "hits" but because it engages a far larger community in a constructive multilogue on an issue of genuine and important public interest.  Here's an excerpt:

According to a post in the Wall Street Journal Law Blog yesterday --  For Businesses, Bully Lawsuits May Pose New Threat -- New York's state Senate has passed a surprisingly bipartisan workplace anti-bullying law.

According to the Journal, the law would "allow workers who've been physically, psychologically or economically abused while on the job to file charges against their employers in civil court."

Economically abused????? The mind boggles.

The bill defines "bullying" broadly as  the "repeated use of derogatory remarks, insults and epithets" that the (mythical and chronically overly sensitive) "reasonable person" would "find threatening, intimidating or humiliating."

Let's give this proposal a second thought, particularly in the context of legal practice.  We lawyers do endeavor to "keep calm and carry on."  We have been known, however, to push ourselves and to be pushed past our tempers' limits.  We're human.  We're under a lot of pressure.  And we're fallible.

Read more here.

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

Mothers Day Issue of Blawg Review #263 is Up and Running at the She Negotiates Blog

We’re celebrating Mothers Day by posting Blawg Review #263 at the She Negotiates Blog for one obvious and some not so obvious reasons.  The obvious reason is the word “She.”  The not-so-obvious reasons are:  (1) Mother’s Day was a peace and reconciliation movement before it was a holiday; and, (2) peace exists only when we have the political will to seek and the negotiation tools achieve the resolution of conflict.

In addition to the main post, we've also posted Blawg Review #263 on our She Networks, She Succeeds, She Transforms and She Resolves pages (up at the top of the blog).

Resources on Women and Negotiation in Honor of Women's History Month

I'm sure you've noticed that we're celebrating negotiating women here this month in honor of International Women's Day and National Women's History Month.  Other than tomorrow night's free negotiating women teleseminar with super coach Lisa Gates, I'm celebrating by posting in one place all of my articles on negotiating women.

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...

Tips from Forbes & a Word with Women: Negotiate Your First Salary

If you're entering the job market, you'll want to check out Forbes' Magazine's Tips for Negotiating Your First Salary. If you do not negotiate your first salary, you stand to lose half a million dollars over...

Ask for It: How Women Can Use the Power of Negotiation to Get What They Really Want

I didn't realize until I got onto the plane out of Seattle that Linda Babcock and Sara Laschever -- our morning plenary session speakers (Women Don't Ask: Negotiation and the Gender Divide) -- have written a new book -- Ask...

Negotiating Your Mid-Life Career Crisis with Career Coach Lisa Gates

Practicing law, particularly litigation, is often frustrating, sometimes humiliating, and frequently simply dispiriting. On the other hand, the practice of law can be thrilling, intellectually stimulating, challenging, absorbing, and a darn good way to make a good living. When you...

Is Hillary Negotiating Her Withdrawal? So Says Cokie

From Women on the Web's Conversation Today Cokie Roberts: 'Hillary Is Negotiating Her Withdrawal' with Lesley Stahl Q&A with ABC News correspondent Cokie Roberts. Excerpt below: LESLEY: Let’s talk about Hillary. I’m wondering, how do you explain..

Must Read for All Women Negotiating Law Firm Life

Below is my review in The Complete Lawyer of Lauren Stiller Rikleen's must-read book Ending the Gauntlet: Removing Barriers to Women's Success in the Law. Concluding paragraph: At bottom, this book calls for management practices that will benefit all attorneys...

Clinton Speaks on 88th Anniversary of Women's Suffrage

(Right, women protesting, 1912. My own grandmother was 12 years old at the time this photo was taken. By the time she was old enough to vote in 1921, she could vote) Why women's voting rights and Hillary Clinton's DNC...

Negotiating Women at ForbesWoman

If you're a certain age, you'll remember women's magazines as mostly "Can This Marriage Be Saved" (The Ladies Home Journal to which PWNSC members Cathy Scott's and Cordelia Mendoza's mother was always submitting articles) or 101 Things to do with...

Negotiating Against the Grain of Gender

Yesterday, we talked about the different negotiation styles of men and women. Today, we're going to explore how men can benefit from learning women-speak and women can benefit from learning man-talk. All of the data relied upon and excerpted below...

Negotiation 101: Gender War or Gender Peace and Prosperity?

Although I am indisputably a "woman lawyer," I have never thought of myself in those terms. I'm a lawyer. And I'm a woman. I'm also a writer, a step-mother, a wife, a daughter, a river rafter, and an aficionado of...

Negotiating Women on New Day Talk Radio Easter Sunday Noon

(and, yes, I am not only old enough to remember the "Second Wave" Women's Movement, I took a quite serious role in it, first as an unpaid volunteer and later through the federal government's "Program for Local Service" at...

Negotiating Women: 5th and Final Part

Thanks again to Vicki Flaugher of SmartWomanGuides.com for inviting me to have this conversation with her about ways in which women can and do maximize their bargaining power. And yes we do talk about negotiating the purchase of an automobile...

Negotiating Women Part III

This segment of my interview with Vicki Flaughter is primarily about why women don't negotiate - to their substantial economic detriment - (see Women Don't Ask Here) and what they can do about it....

Negotiating Women Part II

In part two of Vicki Flaugher's interview with me, we discuss ways in which women can comfortably respond to aggressive zero-sum distributive bargainers and negotiate better business deals using their natural strengths. I'd like to once again thank Vicki Flaugher...

Negotiating Women: Never Negotiate Out of Fear, But Never Fear to Negotiate --

Video below is part I of an interview on negotiation challenges, strategies and tactics for women with Vicki Flaugher, founder of SmartWoman Guides. The full audio of the video is here along with Ms. Flaugher's kind comments about our conversation....

Negotiating Women: Free Teleseminar at Craving Balance

How to Negotiate Anything: Free Intro Thursday, Mar 18, '10 8pm EST Some researchers say that women's failure to negotiate working conditions, salary or other compensation--along with their hesitancy to seek what they're worth when they do negotiate--is one of...

Women Bloggers Proclaim National Women's History Month

Whereas American women of every race, class, and ethnic background have made historic contributions to the growth and strength of our Nation in countless recorded and unrecorded ways; Whereas American women have played and continue to play a critical...

Update on Gender Diversity in the Judiciary and in ADR

When I posted Negotiating Gender: Why So Few Women Neutrals? I had not yet found a source for the statistical representation of women neutrals on the American Arbitration Association Panel. I've now located an article on the AAA website from...

Negotiating Gender: Why So Few Women Neutrals?

Although most of the major providers of alternative dispute resolution services tout their commitment to diversity in the ranks of their neutrals, the coloration of nearly all ADR panels continues to be white; the nationalities European; and the gender male....

Women, Negotiation and the Persistent Wage Gap

Thanks to Ed. at Blawg Review for passing along this (somewhat rambling but well worth watching) lecture at Stanford University by Deborah Kolb, the Deloitte Ellen Gabriel Professor for Women and Leadership at the Simmons College School of Management....

 

Negotiating Gender: The Old White Men Speak

And they do so in favor of diversity.  See commercial arbitrator and mediator F. Peter Phillips' November 2006 National Law Journal article:  ADR Continental Drift:  It remains a while, male game.  I promised prescriptions for change and here are a few sent to me by Peter Phillips this morning.  Peter was, as I am now, a member of the CPR Diversity Committee.

Once again, based upon my personal experience and that of tens of thousands of other women in commercial legal practice I continue to believe that until we are fairly represented on commercial ADR panels, both arbitration and mediation, we cannot expect significant change.  This may happen as a matter of the natural "aging" process of the field.  The ADR field looks now exactly like the legal field looked to me when I entered it in 1980.  Not surprising given the fact that ADR is historically a "retirement" field.  That is already changing, to beneficial effect.

For the adventuresome, Peter's pro-active recommendations below. I highly recommend, by the way, that you follow Peter's Business Conflict Blog.  It's one of the best out there.

(screen shot of google search for our local legal rag's "top 50 neutrals)

What if the country’s leading law firms—from which so many of our leading mediators and arbitrators emerge—had an incentive to encourage more diverse members of the firm to enter this field?

■ What if a benchmark survey were conducted to determine how often law firms suggest mediation to their clients; how often mediation is in fact tried; and how often diverse mediators are proposed to clients by outside lawyers and ADR provider organizations?

■ What if the property casualty insurance industry, as the largest consumer of legal services and of ADR services, conveyed its expectation that the firms that insurers pay for, when they propose mediators and arbitrators, will be expected to propose diverse individuals?

■ What if influential national ADR organizations combined forces to better reflect their corporate and legal constituents, and meet their customers’ expectations, by sharing information on excellent women and minorities who are not now on their lists, but should be?

■ What if initiatives were undertaken to encourage particularly promising women, younger people and minorities from firms to attend ADR colloquia, seminars and other events in order to network, learn and advance their visibility and recognition among the ADR community, as well as to contribute diverse views and perspectives?

■ What if a mentor program were designed and funded, pursuant to which younger female and minority attorneys could “shadow” established mediators and arbitrators (whether or not they are women or minorities) and establish skills and reputations thereby?

■ What if corporations and law firms intentionally engaged younger mediators who are women and minorities in smaller matters, so that those professionals would gain experience as neutrals and be better positioned for the larger cases?

■ What if scholarships were established to enable young people to be trained as mediators and arbitrators, with the expectation that a person thus trained would be skilled not only as a neutral, but more generally as a negotiator and client representative in settlement?

■ What if a very “early pipeline” were begun, and ADR institutions worked with Street Law Inc. (www.streetlaw.com), a national program that trains high school students in legal issues, or a similar organization to provide materials and information for children to become interested in ADR as a profession?

It is perplexing that this one aspect of the legal profession—a field that is otherwise so robust, so progressive and so creative—lags behind so miserably in satisfying client expectations for diverse practitioners. But there is no indication that it must be so. And with diligence, creativity and practical action, it will not long be so.

Here are more diversity resources from CPR.

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
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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.

"Man" Up to Negotiate or Prevent Your Own Disputes at Sleeping Beauty's Castle

Conflict is in the house.  The evil fairy surrounded the castle with deadly thorns.  The "good" fairy put everyone in the castle to sleep.  Will you be the valiant Prince in your own dispute story?  Or are you the prize?  The beautiful one who would prefer to remain unconscious rather than address the great battle between good and evil represented here?  Did you hire a lawyer to resolve your dispute for you?  Will he make it to the castle in time?  Or will he spend the bulk of his energy erecting more obstacles to prevent your adversary from reaching you.  By the time both champions reach the castle, will everyone be too bloodied and broke to rise from your bed and put your house back in order?

Choose carefully and read the entire post at the Commercial ADR Blog:  The Other ADR:  Risk Management for the Cloud.

Do Attorneys' "Get in the Way" of Mediator Assisted Negotiations?

The not so secret opinion among mediators is that attorneys make settlement more difficult.  Just as lawyers are heard to say that "litigation would be great if it just weren't for the clients" (a "problem" only class action plaintiffs' lawyers have actually resolved), mediators  tend to say "mediation would great if it weren't for the lawyers."

Esteeming the rule of law in America as I do (especially in the recent era of its greatest peril) I have never seen lawyers as a problem in facilitating settlement of the lawsuits they have been eating, drinking, sleeping and, dating for years longer than I've spent reading their briefs and engaging in some pre-mediation telephone discussions.  

I can't say lawyers are a problem because:  (1) they're my job; and, (2) they're "my people" in the "tribal" sense.  A few bad apples aside, lawyers are among the hardest working, most ethical, creative, multi-talented professionals I know.  And they are pretty much solely responsible for fighting the battle, on every common weekday, to preserve the rule of law as a bulwark against tyranny on the right and anarchy on the left.

It was therefore no surprise to see a recent Harvard Negotiation Journal article (thanks to Don Philbin of the Disputing Blog and his indispensable ADR Toolbox) that one group of academics has asked whether attorneys have a Negative Impact . . . on Mediation Outcomes.

Let's start with this particularly widespread canard from the article:

Attorneys may delay the settlement of a dispute through mediation for financial reasons. For example, the payment of professional fees on the basis of hours worked could motivate the attorney to delay the settlement of the dispute to increase the number of hours billed to the client  (citations omitted).  Such non financial reasons as a desire to build or preserve a reputation for “hardball negotiating” in highly publicized cases could also motivate an attorney to delay settlement of the dispute [which the authors don't mention often results in a far better outcome for the client].   In addition, attorneys’ (or their clients’) commitment to or belief in their case based on questions of justice or other principles [which are worth, in my opinion, greater attention that purely monetary outcomes] could also delay settlement until “defending the principle becomes too costly” (citation omitted). Finally, attorneys may wish to justify both their role and their fees with unnecessary interactions./1

Are we mendacious, self-serving, parasites of the "justice system," feathering our own comfortable nests as we attempt to preserve the "outdated" notion that the justice system is capable of delivering justice? I don't believe so, but let's not get all anecdotal about these questions when we have cold, hard statistics within reach.  What were the results of this study on the way in which attorneys might "get in the way of" a successful mediation?

Here's the bottom line assessment (please read the article yourself to draw your own conclusions).

The empirical data we collected in this study indicate that the presence of an attorney in a mediation does not significantly affect the settlement rate, the time needed to reach an agreement, the perceived fairness of the process, the parties’ level of satisfaction with the agreement, or the parties’ level of trust that the agreement will be honored. These results indicate that attorneys have much less impact than is claimed by those mediators who do not welcome their involvement in the mediation process.

Nevertheless, the results also demonstrate that the presence of an attorney does affect mediation outcomes in at least two ways: by reducing the parties’ level of satisfaction with the mediator’s performance and by reducing the level of reconciliation between parties.

So the Myth Busters of this study conclude that attorneys:

  1. don't "significantly affect the settlement rate" /2
  2. don't significantly affect "the perceived fairness of the process";
  3. don't significantly affect "the parties' level of satisfaction with the agreement; and,
  4. don't significantly affect the "parties' level of trust that the agreement will be honored."

This is the subjective viewpoint of the litigants, mind you, in a dynamic where the mediator often openly attributes the success of the mediation to the clients' attorney - an observation which is more deeply true than most mediators would care to admit with all their white horse hi-ho silver, magic bullet off-to the-rescue enthusiasm.

What did litigants report to the authors of this article?  They indicated that attorneys adversely affected mediation outcomes in two ways:  (1)  they reduced the parties' "level of satisfaction with the mediator's performance"; and, (2) they "reduced the level of reconciliation between the parties."

Of all of the purported effects of attorneys' presence at mediation - without whom, it must be noted, the parties would not likely be induced to sit down and mediate at all -- the only significant perceived difference is the failure of the mediation process to reconcile the parties - something in which the legal system has little to no interest.

Please read the article for proposed solutions to the reconciliation issue.  As to the remainder of the study's findings, I have this to say:

  1. whenever two or more people are gathered together, the dynamics of the group more profoundly affect the outcome than do the contributions of any individual member of the group.  Our "reality," especially as it appears in a group setting, is "co-created."  See the New York Times must-read article on the Psychology of Terrorism and Retail Marketing at Google Books (the latter noting that because people live in a social world which is co-created in social interaction with others . . . . [they] can be thought of as both products and producers of the social world."  Id. at 218.)
  2. try as you may, you will never be able to untangle the threads that create the intricate tapestry of a settlement; every member contributes something invaluable without which the precise result could not possibly have been achieved. 
  3. who is therefore responsible for the good and who responsible for the purportedly bad results of mediation?  That's easy:  EVERYONE IS.

That being the case, we are all responsible for our outcomes - whether our contribution is "negative," i.e., resisting settlement, for instance, or "positive," i.e., problem solving the reasons given by Mr. Negative that the case simply can't settle on terms acceptable to all.  Remember your University philosophy class? Thesis, Antithesis, Synthesis.  We need people willing to state the negative to problem solve it positively.  The relationships cause the outcome, not one member of a group unless that member is a tyrant with loyal troops at his command. 

If you'll allow me a literary reference that justifies my own collegiate career and says far more eloquently than I ever could why we're all accountable, I first give you one of my favorite authors, Paul Auster (who you may remember as the screenwriter of the movie Smoke).

The world can never be assumed to exist.  It comes into being only in the act of moving towards it.  Ese est percipii.  Nothing can be taken for granted:  we do not find  ourselves in the midst of an already established world, we do not, as if by preordained birthright, automatically take possession of our surroundings.  Each moment,each thing, must be earned, wrested away from the confusion of inert matter, by a steadiness of gaze, a purity of perception so intense that the effort, in itself, takes on the value of a religious act.  The slate has  been wiped clean. It is up to [us] to write [our] own book. Paul Auster, The Decisive Moment from The Art of Hunger.

The second excerpt I will leave for your thoughtful consideration is by the greatest scholar of comparative religions to ever inhabit the planet - Joseph Campbell (skip the intro with the new age music).

Schopenhauer, in his splendid essay called "On an Apparent Intention in the Fate of the Individual," points out that when you reach an advanced age and look back over your lifetime, it can seem to have had a consistent order and plan, as though composed by some novelist. Events that when they occurred had seemed accidental and of little moment turn out to have been indispensable factors in the composition of a consistent plot. So who composed that plot? Schopenhauer suggests that just as your dreams are composed by an aspect of yourself of which your consciousness is unaware, so, too, your whole life is composed by the will within you. And just as people whom you will have met apparently by mere chance became leading agents in the structuring of your life, so, too, will you have served unknowingly as an agent, giving meaning to the lives of others, The whole thing gears together like one big symphony, with everything unconsciously structuring everything else. And Schopenhauer concludes that it is as though our lives were the features of the one great dream of a single dreamer in which all the dream characters dream, too; so that everything links to everything else, moved by the one will to life which is the universal will in nature.

It’s a magnificent idea – an idea that appears in India in the mythic image of the Net of Indra, which is a net of gems, where at every crossing of one thread over another there is a gem reflecting all the other reflective gems. Everything arises in mutual relation to everything else, so you can’t blame anybody for anything. It is even as though there were a single intention behind it all, which always makes some kind of sense, though none of us knows what the sense might be, or has lived the life that he quite intended.

Joseph Campbell - The Power of Myth, with Bill Moyers, as quoted in Derek Parrott's Blog.

Lawyers, mediators, clients, experts, consultants, legal assistants, and, yes, even your spouse with whom you consulted before today's mediation, every one of them is part of the "net of gems, where at every crossing of one thread over another there is a gem reflecting all the other reflective gems [so that] [e]verything arises in mutual relation to everything else, so you can't blame anybody for anything" and, by the  way, we can't credit credit nor bear all the responsibility for anything.  We are all capable.  We are all accountable.  And we all contribute something to the whole.

So we can stop pretending to be better than we are now.  We can all put down the burden and shame of our own entirely human fallibility; the myth that we ever do anything without the contribution of others; and, the pretense that we don't behave as badly, or as well, as other people do.  We're part of the team.  We're in it together.  Isn't that good news for the New Year?

And to give you a treat from having gotten this far, a scene that is all about seeing, from Paul Auster's Smoke.

____________________

1/ I'd be interested, of course, in what the authors consider to be "unnecessary interactions."

2/ This is a particularly interesting finding since mediators have also been found not to improve the settlement rate but only greater party satisfaction in several studies.

 

The Prisoners' Dilemma, Rawls' Theory of Justice and the Healthcare Debate

Healthcare Napkins All

Napkin Presentation thanks to John-Folk Williams at Cross-Collaborate

Cheyney Ryan, a philosophy professor at the University of Oregon, contributed a short but extremely useful article 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 later concluded that the reciprocity inherent in bargained-for resolutions and a negotiated mutual advantage were insufficient to ensure justice.  "The question to ask of principles of justice," Rawls asserted, 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.

So this is what I'd like to ask my readers to do about the health care debate right after the jump

Continue Reading

Best Ever Thanksgiving Post in the Blawgosphere


 

men washing dishes - 
an early alarm ends
her Thanksgiving dream

Just in case conversation grinds to a halt around your dining table — and the Baby Boomer Raconteur in your family can’t remember the name of that movie he liked so much — here are a few topics that should liven things up and unloose a few tongues:

  • Should obese people who take up two airplane seats have to pay double the fare? This is a great question for Uncle Vito, between mouthfuls, while he’s reaching for that third helping of pumpkin pie. 

It only gets better from there in the f/k/a archives here.

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

Favorite Thanksgiving Family Conflicts: the Ice Storm

I'd like to challenge all my favorite dispute resolution bloggers to find and post their favorite Thanksgiving Family Conflict Scenes in the movies.  Above - an era within the memory of some of us who were too young for the "key parties" but too old for the behavior depicted here.

Still, I DO remember the times, as well as the terribly unfortunate clothing and hair-styles.

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.

 

 

Negotiating Gender, a History: When You Wish Upon a Star

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.

[12]

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.

 [18]

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.

Arbitration

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.

 

Negotiating Jury Verdicts: Apologies Work with Twelve People Good and True

A big thank you to local mediator Steve Mehta for

Apology Infuences Jury Verdicts, New Study Finds excerpted below and click here for full post.

By Steven G. MehtaSteve Mehta

A big question in trial for lawyers to consider is whether to apologize for their client’s “alleged” conduct.  Many lawyers are reluctant to do so under the theory that it could lead to a greater chance of liability being imposed on them.  Recent research sheds light on this issue.

According to researchers at George Mason University and Oklahoma State University apologizing to a jury may lead more favorable results. The results of the study will be available in a the journal Contemporary Accounting Research.

Assistant accounting professors Rick Warne of Mason and Robert Cornell of OSU found that apologizing can result in lower frequencies of negligence verdicts in cases when compared to a control group receiving no apology or remedial message. The researchers hypothesized that apologies allow the accused wrongdoer to express sorrow or regret about a situation without admitting guilt. Alternatively, a first-person justification allows the accused to indicate the appropriateness of decisions given the information available when decisions were made.

“We found that apologies reduce the jurors’ need to assign blame to the [wrongdoer] for any negative outcomes to the client,” says Warne. “It also appears that an apology “influences the jurors impression that the auditor’s actions were reasonable and in accordance with professional standards.”

Continue reading here.

 

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.

Sure We Can Compromise, But Can We Negotiate Justice?

The following is the conclusion of an excellent post on the recent Pfizer-Justice Department settlement noting that it met "the People's" justice interests better than a judgment could have.  The full article, Settlement and Justice for All by Robert C. Bordone & Matthew J. Smith** can be found here at the Harvard Negotiation Law Review.

 More than honoring principles a court might champion, the negotiated settlement with Pfizer allows the Justice Department to secure commitments from Pfizer that would have been unlikely in a court verdict. In addition to the enormous cash payment, the settlement agreement allows for closer monitoring of Pfizer by Justice Department officials in the years ahead, ensuring corporate accountability and providing an extra measure of protection for consumers. As part of the deal, Pfizer entered into a Corporate Integrity Agreement with the Office of Inspector General of the Department of Health and Human Services and will be required to maintain a corporate compliance program for the next five years. While a judge might choose to retain judicial oversight in a particular case, federal courts typically lack the expertise or resources to provide the kind of enforcement needed to ensure a systemic and long-term remedy in a technical or highly specialized case such as this.

The Pfizer settlement represents the best kind of transparent, efficient, and wise government law enforcement. It holds Pfizer wholly accountable for its actions, sends a strong and clear message to the public that corporate malfeasance will not be tolerated, provides for ongoing enforcement, and it does it all at a fraction of the cost of trial. While many cases should proceed to trial for reasons of precedent and public policy, negotiated settlement – when approached with wisdom and aplomb – can be a most efficient and effective means of law enforcement.

For my own posts and mediation, negotiation and justice, see Delivering Justice in Community Mediation, Negotiating Justice:  Anchoring, Bias, Dad and Sotomayor, and Do Interest-Based Negotiation and Mediation Trade Justice for Harmony?

Thanks to Don Philbin for being one of the best navigators of quality in the ADRosphere!  "Friend" him on Facebook here.

________________

**/ Robert C. Bordone is the Thaddeus R. Beal Clinical Professor of Law at Harvard Law School and Director of the Harvard Negotiation and Mediation Clinical Program. Matthew J. Smith is a Lecturer on Law at Harvard Law School and a Clinical Fellow at the Harvard Negotiation and Mediation Clinical Program

 

 

 

Power and Trust as Negotiation Strategies and the Lessons of The Cove

Powerlessness and silence go together; one of the first efforts made in any totalitarian takeover is to suppress the writers, the singers, the journalists, those who are the collective voice.   - Margaret Atwood

Every year, a town in Japan named Taiji kills 2300 dolphins and small whales.  This year, that slaughter was halted for a single day because of the activism of the man who trained Flipper for television, Rick O'Barry.  Here's his account of the making of The Cove.   

Below us, just across a two-fingered inlet, was the Killing Cove, where 2300 dolphins and small whales are butchered every year. [/*] It's the place Allison and Alex had infiltrated in 2002, managing to cut the nets and free some 15 dolphins before the two were assaulted by fishermen and arrested.  The killing here is part of a cetacean slaughter that is unregulated by the I[nternational] W[haling] C[ommission], which has no jurisdiction over the smallest whales.  The Japanese don't even have to pretend it's for scientific research.  The government issues permits to fishermen and over 22,000 dolphins, porpoises, pilot whales and false killer whales are killed annually along Japan's coasts.  The meat is sold to school lunch programs and grocery stores and is terrifically high in mercury.  Independent random tests have found the dolphin meat to contain three to 3500 times the levels deemed safe by the Japanese Government.

What did Flipper's trainer want to do?  He wanted to stop the slaughter.  Here's where the Harvard Negotiation article on power in negotiation comes in.  I'll let the authors of the Harvard article speak for themselves.

In order to understand [why the less powerful sometimes prevail against their more powerful bargaining partners] one needs to analyze power as more of a relational and perceptional concept. The relational dimension is captured in Dahl’s definition that A has power over B to the extent that he can get B to do something B would not otherwise do." For example, most non-governmental organizations (NGOs) are less resourceful than the World Bank. Yet the Bank can enhance the legitimacy of its programs by including NGOs. Over time, participating NGOs could influence the Bank’s agendas to some extent.  Thus viewed, parties with asymmetric resources may well share a mutually dependent relationship.

 It is also worthwhile to note that power sometimes lies in the eye of the beholder. A party’s decisions may be shaped as much by its perception of the situation as by objective reality.  Zartman and Rubin, in studying power in negotiation, define it as “the perceived capacity of one side to produce an intended effect on another through a move that may involve the use of resources.[A]s Fisher and Ury have pointed out, the resources a party owns do not necessarily translate into effective negotiating power, which is much more context-specific. The authors cite the example of the US, which “is rich and has lots of nuclear bombs, but neither has been of much help in deterring terrorist actions or freeing hostages when they have been held in places like Beirut"

The common tactics under a power-based approach include coercion, intimidation, and using one’s status and resources to overpower opponents. 

One tactic omitted from the list of power-based tactics is one of the most compelling -- the strategy used by Martin Luther King, Jr., Ghandi and, yes, anti-abortion activists -- bearing witness and shaming.

 

There are many moments of shaming and bearing witness in The Cove --   the moment when activist O'Barry holds his iPhone before the eyes of the Japanese official who has just told him that cateceans are killed quickly, with surgical precision (you can see that moment in the trailer here).  There's the day O'Barry, who has been permanently barred from IWC's conferences, walks in with a flat screen television strapped to his chest and silently moves in front of each row of delegates, showing them the video of the slaughter in the Killing Cover.  And then, at movie's end, the wrenching scene of O'Barry standing in the middle of a crosswalk in Tokyo, that same flat screen  on his chest, silently bearing witness as thousands rush past him and a few, half a dozen perhaps, stop in their tracks to watch the footage of the fisherman in the Killing Cove that he and his team gathered at the risk of their freedom and perhaps their lives.

It appears that the slaughter was halted for only a day.  Here's O'Barry's account of that day  (excerpt below):

I vowed to be back in Taiji when the dolphin killing began. I’ve often been here alone, or accompanied by a few environmentalists. Sometimes, I was able to talk a major media organization into sending someone.

When I got off the bus at the Cove this afternoon, I was accompanied by my son Lincoln O’Barry’s film crew, a crew from Associated Press, Der Spiegel (the largest magazine in Germany), and the London Independent.

I was talking with the police, as the international journalists stood around listening, suddenly a camera crew arrived from Japan! And then another! And then still another!

You have to understand that this is SO IMPORTANT. These TV stations have REFUSED to cover the story in Taiji for years and years. NOW, for the first time, they have shown up, with cameras rolling.

The Cove movie led to the strong action by the city of Broome, Australia, in suspending the sister-city relationship with Taiji. So now, the Japanese media are sitting up and listening, for the first time.

[A]ll Japanese will soon know about the cover-up that has occurred by the government in refusing to stop mercury-contaminated dolphin meat from being sold to unsuspecting Japanese consumers and children.

But Taiji can change this image of shame, if they want to. I will be telling them that the town of Nantucket used to be the capitol of the whale killing industry in the US. Now, it uses its history of whaling combined with whale-watching to market tourism very successfully. Whales and dolphins are worth more alive than dead. Taiji can do this, too. But the killing has to stop.

Alas, the cessation of the killing lasted only a single day.

 Once shameful national behavior has been exposed (a contentious or power-based negotiation strategy) the weaker parties (people vs. governments) must build their negotiating strength through trust.  As Power and Trust in Negotiation and Decision Making asserts:

Identification-based trust is grounded in empathy with another person’s desires and intentions and leads one to “take on the other’s value because of the emotional connection between them.”  It often exists among friends. Fostering understanding and friendly ties may therefore be a step to engender identification-based trust. For example, Reagan and Gorbachev developed a cooperative relationship in the late 1980s partly because they had repeated face-to-face talks over the years.  Reagan also sought to cultivate a non-hostile atmosphere in these talks by appealing to common interests, actively diffusing tensions and using his sense of humor. Because friendship and liking tend to generate trust and assent – sometimes in a subconscious fashion – Cialdini observes that salespersons often befriend their customers before promoting their products. Trusting someone in certain situations may thus come with risks of manipulation or exploitation

In asymmetrical power relationships, the building of trust among activists is necessary for the formation of a grass-roots coalition capable of overwhelming more powerful parties (perceived economic and national interests as well as that most powerful of impasse creators:  the status quo) with passionate commitment to an idea and the hope that the idea can be made a reality.  

O'Barry's documentary is a call to action that asks us to respond to our "better angels."  If enough of us hear the call and respond, there is no power that can stop this movement to stop the killing. 

As Martin Luther King, Jr. once said, "the arc of history is long but it bends toward justice."

______________________

The Harvard Negotiation article is a gift from Don Philbin who directed his Facebook readers to  Power and Trust in Negotiation and Decision-Making:  A Critical Evaluation at the Harvard Negotiation.  If you have any interest whatsoever in the dispute resolution techniques of negotiation, arbitration or mediation and you're not following Don (whose Facebook page is here and whose tremendous LinkedIn Arbitration and Mediation Group is here and whose group blog Disputing is here) you're missing the Mother of All ADR Aggregators and your life is the poorer for it.

*/  There were reports that international pressure caused the suspension of the annual dolphin hunt but the linked article from the Japan Times suggests that it resumed on the second day of the season on September 2.

Family, Collaboration, Reciprocity and SOCIALISM?????

From Indexed -- In Theory at Least.

And this is all I'll have to say about universal health care.

The way in which this Index Card wisdom applies to legal practice was addressed by me in the sadly defunct complete lawyer article Savvy Lawyers Value Their Human Capital

These are hard times and none of us is immune. I’ve been here before. In the early 1990s, my law firm announced we would ride out the economic crisis by henceforth buying legal pads without our firm name embossed on the binding. Layoffs of partners, associates and staff quickly followed. Some caught life rafts to other law firms; some were not so lucky. Those who stepped on others going up the compensation ladder were not treated well on their way back down. The water was cold and filled with sharks.

 

It seemed then, and seems now, that the entire profession has forgotten two critical principles of legal practice: clients, not profits, come first; and, partners see one another through the tough years in the same manner in which they share the profitable ones. Because people (our clients, our colleagues and our staff) are our only assets, I have five people-centered tips for surviving, perhaps even flourishing, in this challenging economic environment.

Continue reading here.

Negotiating the Power of Reciprocity with "The Go Giver"

 

A friend recently reminded me of a book review I wrote for one of those "get rich" books The Go Giver (below) for the sorely-missed Complete Lawyer.   I reprint it here in the Negotiation Blog because I talk a lot about the power of reciprocity in bargaining.  I'd summarize my response here, but I can't say it any better than I did below. 

The Go-Giver, A Guide to a Life Lived Richly

American business people have been writing self-help guides to financial success since Benjamin Franklin penned Advice to a Young Tradesman and Poor Richard’s Almanac. Business consultants Bob Burg and John Davis Mann add to this tradition a new parable -- The Go-Giver, A Little Story About a Powerful Business Idea.              

As the title suggests, Burg and Mann recommend that we discard “go getting” -- hard work focused on individual success -- in favor of “go giving” – authentically passionate work focused on the success of others. To demonstrate how material wealth follows generous action, Burg and Mann create an elusive but legendary business consultant “Pindar,” who shares his Five Laws of Stratospheric Success with anyone who promises to practice these principles in all their affairs.    

The pilgrim in this progress is “Joe,” an earnest and hard-working salesman on the brink of a third failed quarter. After promising to follow the laws Pindar teaches him, Joe meets a handful of spectacularly successful givers. These include former hot dog vendor Ernesto, who credits his restaurant and real estate empire to giving more than you take; Nicole, who owes her rise from school teacher to educational software titan to giving much to many; former insurance salesman Sam, whose many philanthropies thrive on giving without expectation of return; and, Debra, who learns to succeed in business by giving of her true self. Having quickly learned each lesson, Joe himself exemplifies Law No. 5 – the willingness to receive the bounty that flows from giving.  

Unfortunately, as a guide to financial success, The Go-Giver is more fairy tale than instruction manual. All of the business icons Joe visits ascribe their riches to acts of authentic generosity. It is apparent from the context in which these stories arise, however, that the key here is neither virtue nor the inherent satisfaction to be found in giving. The key is choosing the right people to give to – those with wealth, monied connections or the power to create economic opportunities for others.   

If we are moved to visit shut-ins; bring recovery meetings to incarcerated felons; or make micro-loans to third-world entrepreneurs, this book is not for us. This is focused giving and the focus is on the “haves,” not the “have nots.”  If we are among the unemployed; the sick; or, the elderly, we’ll need another set   of “Laws” for success  – chief among them laws guaranteeing the education; training; and, health care necessary to enable us to make use of the opportunities created by the Go-Givers’ generosity.  [1]

Walking the Razor’s Edge

Most Complete Lawyer readers are, however, the type of business people for whom The Go-Giver is written.   No matter where we appear on the legal economic ladder, as educated people with access to the justice system, we are well poised to engage in random acts of kindness for, and reap rewards from, those who are well situated to spread a little green.  [2]   So long as we successfully negotiate the razor’s edge between opportunism and genuine acts of generosity, Burg and Mann’s advice will likely redound not only to our emotional and spiritual well-being, but also to our financial success.    

Most readers will, of course, recognize Joe’s spectacular rise from failing salesman to coffee-bean multi-millionaire as the fairy tale the The Go-Giver all but announces itself to be. There is value here, however, in the quotidian acts of kindness in which Joe engages to satisfy Pindar’s requirement that he promptly practice the “Laws” conveyed.     

The most credible results of Joe’s baby steps on the road to becoming a generous human being are his improved relationships with his fellows. Practicing “not keeping track,” Joe foregoes telling his wife his own work-a-day worries, focusing his entire attention upon the challenges of her day. His reward? An entirely believable note of love and gratitude on her pillow the following morning. Practicing “giving more value” than he receives, Joe serves coffee to his workmates as they struggle to meet a collective quarter-end deadline. Though Joe reports “feeling like an idiot” in doing so, it is clear that the warmth and bemused surprise expressed by is co-workers is its own reward.     

The true lesson of The Go-Giver is not so much that material reward follows an expansive spirit, but that one’s daily pleasure increases with the size of one’s own heart. After all, when financial success eludes us – or crashes with the national economy – what we have to rely upon is not numbers on a ledger sheet, but the family, friends and neighbors who will see us through. If we give authentically without expectation of reward – because we “love to . . . as a way of life” – what we will reap is a life richly lived even if we do not thereby “get rich” in the process.



[1]  As the Labor Department tells us, in the year 2000, “high school dropouts were more than twice as likely as high school graduates to be counted among the 31 million American “working poor” while only 1.4% of that number possessed college degrees. See A Profile of the Working Poor – 2000, U.S. Department of Labor, Bureau of Labor Statistics at http://www.bls.gov/cps/cpswp2000.htm. One’s existing occupation – the job we have been lucky or well-placed enough to be trained to do -- is also highly correlated with financial success or failure. As the Labor Department reports, “[a]lmost 31 percent of the poor who worked during the year [2000] were employed in [low skill] service occupations . . . .,” including “[p]rivate household workers, a subset of service workers that is made up largely of women, were the most likely to be in poverty (20 percent)”. On the other hand, those engaged in executive, administrative, managerial and professional occupations had low incidences of poverty since “[h]igh earning and full-time employment are typical in these occupations.” 

[2] For a fascinating study of way in which social networks have benefited some and excluded others, including women and minorities, see University of Colorado History Professor Pamela Walker Laird’s book, Pull, Networking and Success Since Benjamin Franklin.

 

Negotiating Democracy: a Moving History Lesson

Negotiating Resolution on the 4th of July

I worry sometimes that I write too much in generalities -- praising joint sessions; exploring the social psychological implications of the adversarial system; or arguing with my imaginary detractors - the ones I believe are hectoring me  to be more practical.  So I have a small practical story to tell you on Independence Day that will lead to some of those generalities I can't resist offering.

It is hour five of a mediated negotiation that has been at impasse all day.  After asking some pointedly hard questions of the Plaintiff, I receive this candid response (more or less verbatim):  I don't see much point in bullshitting you.  I don't know if my litigation strategy will bear fruit or not.  My client, however, is genuinely tired of waiting.  He is simply unwilling to put off pay day any longer.  He believes the Defendant has the money to pay him right now even if he doesn't have the money to pay all of his creditors.  He believes Defendant is robbing Peter to pay Paul to keep his business afloat.  He's tired of being Peter.  He wants to be Paul.

I return to the defense caucus  to report the disheartening news that the Plaintiff simply will not budge from the settlement posture he has insisted upon all day.  He's not dissembling.  He's willing to risk failure if the Defendant follows through on his threatened bankruptcy.  He's ready to try the case on the scheduled trial date fewer than thirty days from now. 

"What does he think?" asks the Defendant, "that he can get blood from a turnip?" 

"No, but he doesn't believe you can't pay him. He thinks you're robbing Peter to pay Paul and he wants to be Paul."

Beat.

Defense counsel gets up, saying "it's clear we can't settle."

Defendant remains firmly in his chair.

Beat.

"Are you coming?" asks counsel, standing with one hand on the conference room door.

Beat.

"I think your client may want to have a conversation with you," I say, as defendant turns to me and says I can pay half of what's owed within thirty days and the remainder within sixty, all secured by the stipulated judgment he asked for [the one in a sum calculated to insure compliance or presage bankruptcy].

Five hours of impasse.  Two minutes of candor.  Sixty seconds to settle.

This is not the result of my work but of the Plaintiff's candor.  All I did -- all many of us do -- is to refuse to give up until settlement appears hopeless to us and I guarantee you it always seems more hopeful to us than it does to counsel or the parties -- hours and hours more hopeful.  Why?  Because an offered release from the steel trap of litigation that is held out long enough will eventually be accepted, particularly where the choice is voluntary release or the continued effort to  gnaw one's own leg off in an effort to escape. 

The lesson?  When one side speaks its own truth, the other side finally hears it.

What does this have to do with the Fourth of July?  It has to do with overcoming the tyranny of another; with having the courage not only to visualize freedom, but to take bold action in the direction of its fulfillment.  It has to do with the messy but boundless joy of self-rule, autonomy, and independence.  It has to do with the courage required to give up hope that another will grant us the freedom we long for.

Happy July fourth and onward with our unlikely experiment with democratic rule coupled with the guarantee of liberty for those the majority might not so easily give it to.

Negotiating Justice: Anchoring, Bias, Dad and Sotomayor

I do not recall the day on which I learned I spoke with an "American" or "West Coast" accent but I remember it coming as a surprise to me.  As Cristof, the director of The Truman Show says of his "creation," the happily oblivious Truman Burbank,  “We accept the reality of the world with which we are presented.”

The fact that people are still questioning whether a woman, an African American, a Latina or (gasp:  clearly for a more equitable society) a gay, bi-, Lesbian or transsexual, jurist will be "biased" by his or her unique perspective is dispiriting to say the least.  As many people in high (the New York Times, CNN) and low (twitter) places have rightly pointed out, no one asks whether a white man will bring his prejudices to the Bench.  Why?  Because white men "have no accent."  The dominant culture does not think of itself in terms of race (it doesn't have to) and the people with power (still primarily white men) do not need to ask themselves thorny questions about their attitudes toward their own race and gender. 

Here's an example from the New York Times:  Speeches Show Judge's Steady Focus on Diversity, Struggle

WASHINGTON — In speech after speech over the years, Judge Sonia Sotomayor has returned to the themes of diversity, struggle, heritage and alienation that have both powered and complicated her nomination to the Supreme Court.

She has lamented the dearth of Hispanics on the federal bench. She has exhorted young people to value immigration. She has mulled over the “deeply confused image” America has of its own racial identity. And she has used on more than one occasion a version of the “wise Latina” line that she has spent much of this week trying to explain.

Today is my father's birthday.  It is also the one-year anniversary of his death, so I'll ask you to forgive my stream of consciousness post.  I promise to tie it up in a bow by post's end. 

Dad -- a dust bowl refugee -- a lawyer at 42 and Bench officer by 52, used to say that there "should be dumb politicians, to represent the dumb people."  He was exaggerating, of course, to make the point that a representative government should represent all of the people and not just the privileged majority. 

Was Dad's life-view affected by his humble origins, his "struggle" to overcome his lack of a completed high school education and a culture of poverty, as well as the burdens of his gender in mid-Century America (burdens which assumed only men were obliged to work to support their families)?  You bet it was. 

Did anyone ask whether Dad was going to bring a white, male, depression-era, bias to the Bench?  No.  Did he?  Yes of course he did.  Still, Dad leaned as far away from his mid-20th Century white male privilege as he could, drafting "marital" agreements for gay clients from the late '60s until he went on the Bench; voting against his economic self-interest in every Presidential election (proudly asserting that he paid more in federal income tax than he used to make annually) and supporting all civil rights movements -- African-American, Chicano (the term of that day), women and gays. 

Dad was a good guy aware of his biases and willing to push against them.  It is not, however, possible for any of us to be without bias as this article in the Cornell Law Review -- Blinking on the Bench: How Judges Decide Case -- demonstrates. 

Below:  me and Dad, may he rest in peace.  9 June 1924 to 9 June 2008

I've had this article in my files for some time because it's about anchoring -- the principle that negotiators will be influenced by any number that enters the negotiation environment, no matter how random.  Below is an excerpt from "Blinking" demonstrating the power of anchoring on judicial decisions.  Note the repeated use of the word "intuitive" - a word usually associated with women but not only a woman's talent or trait. (All emphases supplied)


The first example of intuitive judicial decision making arises from studies of a phenomenon that psychologists call ―anchoring.  When making numeric estimates, people commonly rely on the initial value available to them.100 This initial value provides a starting point that ―anchors the subsequent estimation process.  People generally adjust away from the anchor, but typically fail to adjust sufficiently, thereby giving the anchor greater influence on the final estimate than it should have.In short, ―the number that starts the generation of a judgment exerts a stronger impact than do subsequent pieces of numeric information.

We have found that anchors trigger intuitive judicial decision making. In one study, we demonstrated that a demand made at a prehearing settlement conference [$10 million] anchored judges‘ assessments of the appropriate amount of damages to award. . . . The $10 million anchor influenced the judges. Judges in the control group awarded a mean amount of $808,000 and a median amount of $700,000, while judges in the anchor group awarded a much larger mean of $2,210,000 and median of $1 million.107 Table 5 shows the impact the anchor had on their judgment.

In another study, we tested whether a motion to dismiss would also affect judges‘ damage awards. We presented participating judges with a similar fact pattern and asked judges in the control group, ―[H]ow much would you award the plaintiff in compensatory damages? We gave the judges in the anchor group the same background information, but also told them that ―[t]he defendant has moved for dismissal of the case, arguing that it does not meet the jurisdictional minimum for a diversity case of $75,000.‖ We asked these judges to rule on the motion, and then asked them, ―If you deny the motion, how much would you award the plaintiff in compensatory damages?

Because the plaintiff clearly had incurred damages greater than $75,000, we viewed the motion as meritless, as did all but two of the judges.Nonetheless, the $75,000 jurisdictional minimum served as an anchor and resulted in lower damage awards from those judges exposed to it. The judges who had not ruled on the motion awarded the plaintiff an average of $1,249,000 (and a median of $1 million), while those judges who ruled on the motion to dismiss awarded the plaintiff an average of $882,000 (and a median of $882,000).112 Thus, the $75,000 jurisdictional minimum anchored the judges‘ assessments, as they awarded roughly $350,000 (or nearly 30%) less on average.

Both anchoring studies suggest that the anchors had a powerful influence on judgment. This was true both when the anchor bore essentially no relation to the magnitude of the claim and when the judges knew full well that they were supposed to ignore the anchor. In both cases, the anchor triggered intuitive, automatic processing that the judges were unable to override.

This is what we litigators and trial attorneys do for a living.  We try to "anchor" judges.  We "spin" the facts and expand the outer reaches of the law in the way that helps our clients.  We read judicial profiles to know as much about a Judge:  his or her background; politics; charities; family life and prior decisions as possible so that we can  'speak his/her language./**  No one knows better than litigators and trial lawyers how important an individual judge's background, ethnicity, political affiliations and the like are.

When I was litigating a 9-figure environmental coverage action, I routinely brought color-coded coverage charts that represented my point of view to every oral argument.  Opposing counsel always griped and the Judge always overruled his objections because my charts made the complex and sophisticated coverage analysis easier to understand (from my point of view).  What perplexed me was opposing counsel's failure to ever do the same.  The Judge ruled in my favor on every major issue before her and I guarantee you it wasn't because I was "right."

(below, a sample coverage chart)

Meta-Anchoring

As you can see from the coverage chart example, it's not just numbers entering the negotiation environment that influence decision-makers, it's also the way in which the information pertinent to the case is characterized.  I don't need to tell lawyers this, all of whom were weaned on this proposition:  if you don't have the facts, argue and law and if you don't have the law argue the facts.

In Lax & Sebenius' brilliant 3-D Negotiation, they recommend "meta-anchoring" your preferred negotiation resolution as follows:

To meta-anchor effectively, look creatively at various ways to characterize the negotiation problem.  some characterizations have clear implications for the appropriate kind of resolution, or at least the most appropriate prcess and personnel needed to get there.  For example, framing a negotiation as "a routine extension of an existing deal" may receive far less scrutiny than approaching it as a "new contract," even when the substantive issues are identical.

The authors go on to describe a negotiation in which a small company seeking to be acquired by a larger one "identified two likely competing meta-anchors."

The first viewed the transaction as the purchase of R&DCo on a stand-alone basis.  the second Viewed the deal as an attempt to create synergy by combining R&DCo's technological expertise with Acquirer's sales, maketing and distribution; by using R&D's technologies in other markets; and by using the buyer's greater size to win new sales for R&DCo.  In this way, it would be possible to divide that synergy between the two companies.

The approach adopted was as follows:

"Almost monthly, we turn down an approach from potential acquirers who want to value us on a stand-alone basis.  We're interested in talking to you because of the significant poential synergy between our two companies.  If you want to discuss how we value and divide the joint gains from combining our companies, we're very interested in talking with you.  However, if you only want to consider our stand-alone financials, you'll be wasting our valuable time as well as ours.  Do you think it makes sense to proceed?

The small company re-defined its value as it's future value merged with the Acquirer rather than its present unmerged value.  Then the small company suggested that the expanded value be divided equally because that value was due to both company's contributions in equal measure.  That's "meta-anchoring" at its best.

So back we come to Sotomayor and her nomination to the Supreme Court Bench.  Will she bring a viewpoint heretofore unrepresented there?  Yes she will.  Does that give her an unfair advantage over all the highly qualified white men who might have been nominated in her place?  I suppose it might but our job in populating the Supreme Court bench is not to find the numerically "best" person for the job (highest LSAT score; first in class; editor of law review; most charitable; most acceptable disposition) but the best person to round out the current bench so that it is somewhat representative of the people that it serves.

Dad would have supported Sotomayor and on his birthday I'd like to thank him again for instilling in me the values that make me a supporter too.

_____________________

**/  I heard Constitutional Law scholar and Dean of the new U.C. Irvine School of Law Erwin Chemerinsky speak at the annual Constitutional Rights Foundation dinner recently.  Rightly calling today's Supreme Court the "Kennedy Court," he admitted to pandering, saying "I'd put a photograph of Kennedy on my Petitions for Cert if I could."

Update on the $4.1 Billion Arbitration Award Confirmed as Judgment by Los Angeles Superior Court

Here's a copy of the Judgment Confirming Final Arbitration Award.

Comment later.  In the meantime, Money Money Money from Cabaret.

 

The 140-Page Majority Prop 8 Opinion in a Single Paragraph

If you learn this single trick, Scout, you'll get along a lot better with all kinds of folks. You never really understand a person... until you consider things from his point of view.

Sir?

Until you climb inside of his skin and walk around in it.

To Kill a Mockingbird (from the screenplay)

 Best summary of the 140 page majority opinion (.pdf of opinion here) in Reading the Decision at the Daily Dish by Andrew Sullivan.  This opinion eviscerates and then upholds Proposition 8 as constitutionally inoffensive. 

John Culhane parses the prop 8 ruling:

The majority went on for almost 140 pages. In brief, their points — which I’ll next explore in somewhat greater depth — are these: (1) The California Constitution is easy to amend, and that’s not something we can change: (2) The deprivation of rights isn’t that big a deal, really, because all that’s been removed by Prop 8 is the word “marriage” rather than the rights that go with it; (3) Based on precedent and constitutional history, Prop 8 is a permissible amendment to the state’s constitution — not a more substantial revision, which would require prior submission to the legislatures (and a 2/3 approval) before going to the voters; (4) There’s no separation of powers problem here: Everyone’s doing their constitutional job; and (5) The Attorney General’s “novel” argument that certain rights are “inalienable” and therefore immune from the vagaries of majority rule, has no traction.
 

It sounds like a reasonable judgment to me. The job of supporters of equality is now to make the case for real substantive equality - in name as well as form. And to take that argument to the people of California.

The most important questions every negotiator must ask herself in maximizing the opportunity to make a deal that satisfies all parties' interests simultaneously are:  why do you want what you want and how do you think we might satisfy your desires and mine at the same time. 

Of course some demands are non-negotiable.  "Separate but equal" was not an acceptable option for African Americans in the South at the mid-point of the twentieth century and substantive marital rights without the word "marriage" is not an acceptable option for the gay community at the beginning of the 21st.  On the other hand, supporters of Prop 8 waged a misleading campaign suggesting that in the absence of Prop 8 the State would interfere with religious activities by requiring churches to sanctify marriages their religion does not permit.  The LDS and other churches' freedom to exercise their own religious practices free from interference by the state and gays' rights to civil marital rights (the only type of rights a secular society is permitted to grant) can be simultaneously satisfied.  And yet we raise money to fight on.

To reiterate:  yesterday's California Supreme Court opinion upheld Proposition 8 only to the extent that it bars the use of the term "marriage."  Because the Court held that Proposition 8 could not bar our gay and Lesbian citizens from any substantive marital right given to our heterosexual citizens, there is a not-yet-celebrated victory on one side and a not-yet-experienced defeat on the other.

And so, the messy business of democracy in a country guaranteeing liberty moves one step forward and one step back in a dance that wouldn't be nearly so rich in the absence of gay contributions to American culture.

See also this analysis from The Complex Litigator Blog ("everyone will be unhappy with the opinion").

The Existing Differences in California's Domestic Partnership Laws and Marital Rights Which Differences Should Now Be Considered Unconstitutional (I do not vouch for the accuracy of this analysis; I am not an expert in family law):

While domestic partners receive most of the benefits of marriage, several differences remain. These differences include, in part:

  • Couples seeking domestic partnership must already share a residence, married couples may be married without living together.

  • Couples seeking domestic partnership must be 18 or older, minors can be married before the age of 18 with the consent of their parents.

  • California permits married couples the option of confidential marriage, there is no equivalent institution for domestic partnerships. In confidential marriages, no witnesses are required and the marriage license is not a matter of public record.

  • Married partners of state employees are eligible for the CalPERS long-term care insurance plan, domestic partners are not.

  • There is, at least according to one appellate ruling, no equivalent of the Putative Spouse Doctrine for domestic partnerships. [3]

In addition to these differences specific to state law, should the Defense of Marriage Act be found unconstitutional or repealed, married persons in California might enjoy all the federal benefits of marriage, including Constitutionally-required recognition of their relationships as marriages in the rest of the United States under the Full Faith and Credit Clause.

See also the Constitutional Law Prof blog comment on the Prop 8 opinion, particularly notingthe dissent of Justice Carlos Moreno

"based on his interpretation of California's equal protection clause, which is not only distinct from the Fourteenth Amendment, but also

by its nature, inherently countermajoritarian.  As a logical matter, it cannot depend on the will of the majority for its enforcement, for it is the will of the majority against which the equal protection clause is designed to protect.  Rather, the enforcement of the equal protection clause is especially dependent on “the power of the courts to test legislative and executive acts by the light of constitutional mandate and in particular to preserve constitutional rights, whether of individual or minority, from obliteration by the majority.”  (Bixby v. Pierno (1971) 4 Cal.3d 130, 141.)
 
(Moreno opinion at 4). 

 

 

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

Negotiating the Recession with a Legal Mutual Aid Society

If you're worried about your law job becoming -- as they say in Britain - "redundant" or if you've already been laid off due to the recession, join Lawyer Connection which was born today as the result of a twitter conversation I had with Gwynne Monahan (who you can follow @econwriter).

Here's an exploration of what a mutual aid group is from the viewpoint of a social worker -- which speaks to me because I lived through my first husband's MSW in Social Work studies before he lived through my Law School experience (an eventual relationship-killer). 


Visit Lawyer Connection

From Andrew Cicchetti's Mutual Aid Based Group Work blog:

Mutual aid as group work technology can be understood as an exchange of help wherein the group member is both the provider as well as the recipient of help in service of achieving common group and individual goals (Borkman, 1999; Gitterman, 2006; Lieberman, 1983; Northen & Kurland, 2001; Schwartz, 1961; Shulman, 2006, Steinberg, 2004; Toseland & Siporin, 1986). The rationale for cultivating mutual aid in the group encounter is premised on mutual aid's resonance with humanistic values (Glassman, 2002) and the following propositions: 1) members have strengths, opinions, perspectives, information, and experiences that can be drawn upon to help others in the group; 2) helping others helps the helper, a concept known as the helper-therapy principle (Reissman, 1965) which has been empirically validated (Roberts et al, 1999); and 3) some types of help, such as confrontation, are better received when emanating from a peer rather than the worker (Shulman, 2006). Mutual aid transactions that occur amongst and between members stimulate cognitive and behavioral processes and yield therapeutic, supportive and empowering benefits for the members (Breton, 1990;Northen & Kurland, 2001; Shulman, 1986, 2006).

Obviously, we're not pursuing the therapeutic benefits of a mutual aid society as social worker Cicchetti is.  Having been a member of such a group (a community-based women's credit union in the early 1970's for instance) I can say that the experience is not only economically, but also personally, enriching.

Let's not wait for the economy to improve.  Let's start improving it TODAY.  We are the change we want to see in the world. 

JOIN US!!

Negotiating the Future: President Obama's Notre Dame Commencement Speech

Here's part I of the Obama Notre Dame Speech YouTube Video (sorry about the intro footage).

There's a skip here (don't know how much of the speech is lost between video #1 and video #2)

OBAMA: Thank you, Father Jenkins for that generous introduction. You are doing an outstanding job as president of this fine institution, and your continued and courageous commitment to honest, thoughtful dialogue is an inspiration to us all. Good afternoon Father Hesburgh, Notre Dame trustees, faculty, family, friends, and the class of 2009. I am honored to be here today, and grateful to all of you for allowing me to be part of your graduation.

I want to thank you for this honorary degree. I know it has not been without controversy. I don’t know if you’re aware of this, but these honorary degrees are apparently pretty hard to come by. So far I’m only 1 for 2 as President. Father Hesburgh is 150 for 150. I guess that’s better. Father Ted, after the ceremony, maybe you can give me some pointers on how to boost my average.

I also want to congratulate the class of 2009 for all your accomplishments. And since this is Notre Dame, I mean both in the classroom and in the competitive arena. We all know about this university’s proud and storied football team, but I also hear that Notre Dame holds the largest outdoor 5-on-5 basketball tournament in the world - Bookstore Basketball.

Now this excites me. I want to congratulate the winners of this year’s tournament, a team by the name of “Hallelujah Holla Back.” Well done. Though I have to say, I am personally disappointed that the “Barack O’Ballers” didn’t pull it out. Next year, if you need a 6’2” forward with a decent jumper, you know where I live.

Every one of you should be proud of what you have achieved at this institution. One hundred and sixty three classes of Notre Dame graduates have sat where you are today. Some were here during years that simply rolled into the next without much notice or fanfare - periods of relative peace and prosperity that required little by way of sacrifice or struggle.

You, however, are not getting off that easy. Your class has come of age at a moment of great consequence for our nation and the world - a rare inflection point in history where the size and scope of the challenges before us require that we remake our world to renew its promise; that we align our deepest values and commitments to the demands of a new age. It is a privilege and a responsibility afforded to few generations - and a task that you are now called to fulfill.

This is the generation that must find a path back to prosperity and decide how we respond to a global economy that left millions behind even before this crisis hit - an economy where greed and short- term thinking were too often rewarded at the expense of fairness, and diligence, and an honest day’s work.

Continue Reading

Do Interest-Based Negotiation and Mediation "Trade Justice for Harmony"?

Among the most frequently asked questions at my negotiation trainings are these:

  1. how do you negotiate with a sociopath?
  2. how do you negotiate with people who are:
    1. evil
    2. dishonest; or
    3. 100% irremediable jerks
  3. how do you negotiate when you are powerless (or simply weak)

Whenever someone asks me about negotiating evil, I think of Ken Cloke's brilliant book Conflict Revolution: Mediating Evil, War, Injustice and Terrorism – How Mediators Can Help Save the Planet (my review of that book here).  Some time ago, when I had the bright but failed idea of launching an online conflict resolution journal, Ken kindly let me publish his article Mediating Evil, War and Terrorism the Politics of Conflict, some of which I quote below.  I like the way Ken framed the problem in his earlier book, Mediating Dangerously, as follows:

For those who live under fascism, oppression, or tyranny, or face a fierce, unprincipled adversary, or are afraid even to exercise their own freedom, it may become necessary to engage in conflict, resist oppression, reject settlement, and raise their voices against the silence of acquiescence . . . . [T]here are limits to the desirability of ending [certain conflicts] prematurely, without a fair and honest examination of the underlying issues, and without the full participation of people whose lives will be irrevocably damaged by them . . . Collaboration implies mutuality and partnership, and even compromise involves give and take, but fascism merely [takes] giving nothing in return.

Those who recall the free speech movement on college campuses in the mid-sixties (most notably at U.C. Berkeley) will remember at least some of the words spoken by FSM leader Mario Savio:

There comes a time when the operation of the machine becomes so odious, makes you so sick at heart, that you can't take part, you can't even passively take part, and you've got to put your bodies upon the gears and upon the wheels, upon all the apparatus, and you've got to make it stop. And you've got to indicate to the people who run it, the people who own it, that unless you're free the machine will be prevented from working at all.

One might criticize this rhetoric as being a bit overblown for the context in which the students were operating but they were young; had been taught in public schools to believe in and cherish freedom; and, were stunned to find that their on-campus speech was regulated, controlled, and, punished.  Savio's voice is the voice of all peoples who find their freedom suppressed or denied altogether.

So what do we, mediators and interest-based negotiators, do when confronted with tyranny?  Cloke's partial response (see full article here) is as follows:

Genuine, lasting peace is impossible in the absence of justice. Where injustice prevails, peace becomes merely a way of masking and compounding prior crimes, impeding necessary changes, and rationalizing injustices. As the Trappist monk Thomas Merton presciently observed:

  To some men peace merely means the liberty to exploit other people without fear of retaliation or interference. To others peace means the freedom to rob others without interruption. To still others it means the leisure to devour the goods of the earth without being compelled to interrupt their pleasures to feed those whom their greed is starving. And to practically everybody peace simply means the absence of any physical violence that might cast a shadow over lives devoted to the satisfaction of their animal appetites for comfort and leisure.... [T]heir idea of peace was only another form of war.

When millions lack the essentials of life, peace becomes a sanction for continued suffering, and compromise a front for capitulation, passivity, and acceptance of injustice. This led anthropologist Laura Nader to criticize mediation for its willingness to “trade justice for harmony.”

True peace requires justice and a dedication to satisfying basic human needs, otherwise it is merely the self-interest of the satisfied, the ruling clique, the oppressors, the victors in search of further spoils.

For peace to be achieved in the Middle East or elsewhere, it is essential that we neither trivialize conflict nor become stuck in the language of good and evil, but work collaboratively and compassionately to redress the underlying injustices and pain each side caused the other. Ultimately, this means sharing power and resources, advantages and disadvantages, successes and failures, and satisfying everyone’s legitimate interests. It means collaborating and making decisions together. It means giving up being right and assuming others are wrong. It means taking the time to work through our differences, and making our opponents' interests our own.

In helping to make these shifts and move from Apartheid to integration, the South African Truth and Reconciliation Commission found that for people to reach forgiveness, they needed to exchange personal stories of anger, fear, pain, jealousy, guilt, grief, and shame; to empathize, recognize, and acknowledge each other’s interests; to engage in open, honest dialogue; to reorient themselves to the future; to participate in rituals of collective grief that released their pain and loss; and to mourn those who died because neither side had the wisdom or courage to apologize for their assumptions of evil, or the evil they caused their opponents and themselves.

At the same time, they also needed to improve the daily lives of those who suffered and were treated unjustly under apartheid. Where shanty towns coexist with country clubs, peace cannot be lasting or secure. Where some go hungry while others are well-fed, terror and violence are nourished. In the end, it comes down to a question of sharing wealth and power, realizing that we are all one family, and that an injury to one is genuinely an injury to all.

Making justice an integral part of conflict resolution and the search for peaceful solutions means not merely settling conflicts, but resolving, transforming, and transcending them by turning them into levers of social dialogue and learning, catalysts of community and collaboration, and commitments to political, economic, and social change. By failing to take these additional remedial steps, we make justice secondary to peace, undermine both, guarantee the continuation of our conflicts, and prepare the way for more to come.

By the way, tomorrow is Ken's birthday.  HAPPY BIRTHDAY KEN!!!

 

The May 2009 Carnival of Trust

If trust had a hologram for all of its forms -- honor, commitment, credulity, betrayal, reliance, and, confidence (harboring the "con" that playwright David Mamet has made his life's work) - that hologram would surely include images of the American Legal System.  We lawyers, mediators, arbitrators, legislators, and legal educators run on trust, or as much as we can generate, to resolve the disputes that are brought to us for resolution.  Some of us  craft legislation or regulations meant to prevent the calamities that breaches of private and public trust can create.  Because lawyers thrive on the creation, destruction and resurrection of trust, it is fitting that an attorney such as myself  be entrusted, from time to time, with Trust's Carnival.

"You Never Open Your Mouth Until You Know What the Shot Is"

The moment trust collapses -- perfectly dramatized in this clip from Mamet's classic Glengarry Glen Ross -- is played out in far less dramatic terms every day as Jim Connolly explained this week in Trust Me, We're Great! at Jim's Marketing Blog. To retain a customer's trust, says Jim, your product or service must be consistent with your hype. 

The salesmen in Glengarry Glen Ross expect nothing from the world other than that which they can forcibly rip from its grasp.  But there is honor among thieves.  Beneath Pacino's tirade is an implied homage to his fellow salesmen who trust one another to "know what the shot is."  How does such a trust community arise?  Online according to  Hannah Levenson at SWOM (the Society for Word of Mouth) in her lengthy and intriguing post -- The Importance of Social Media in the Marketing World.  As Levenson writes:

Trust is something all consumers want. Loyalty is something all businesses crave. But in today’s marketing world, one cannot exist without the other. “[Citizen marketers] are part of the mesh of a greater swath of fabric that interlocks everything together. The design of mesh ensures the fabric is evenly spaced. With this in mind, it is the open and transparent nature of shared production that enhances and illuminates what companies strive for but often misunderstand: loyalty” (Huba 173). Today two of the biggest problems a company has is obscurity and loyalty. Those companies that achieve trust are the ones that take risks and work hard to humanize themselves. They utilize the “greater swath of fabric” or in other words “social media.” Loyalty is the necessary seed for growth of a company. If small or large companies can utilize, blogs, podcasts, videos, comment boxes or any other type of social media they are setting the foundations for building a strong trusting community.

If you think you need an Italian and a Brit to create cross-cultural trust barriers, think again.  In the world of the con there are "men" who "live on [their] wits," and "company men" like Williamson who don't know "the first rule you'd know if you ever spent a day in your life."  If cultures can so brutally clash in the same country, the same town, and even the same sales room, how much greater attention must be paid to genuinely different cultural understandings in a global marketplace.  To prosper there, you'll want to run right over to  Cindy King's Blog on International Sales Best Practice, where we learn the key to international trust-building -- cross-cultural understanding.

When profanity and shaming don't bring our trusted partners into line, we appeal to a higher authority.  Here, Pacino tells Williamson he's going "downtown" to talk to "Murray."  He's going to have Williamson's job.  After the collapse of Enron, Lehman, and AIG; the imminent demise of the Big Three, and, the death of the fractionated mortgage market, Washington is the new downtown and the FTC the new "Murray."  Trust is sometimes insufficient and laws must be enacted to bring balance back to the marketplace.  And so it will be according to the Performance Marketing Blog which analyzes the Proposed new FTC Guidelines on Online Marketing here.

"You Don't Think Abraham Lincoln Was a Whore Before He Was President? He Had to Tell His Little Stories and Smile His Shit Eating Back Country Grin and He Did It Just So He Would One Day Have the Opportunity to Stand in Front of the Nation and Appeal to the Better Angels of Our Nature." Jack Stanton in Primary Colors

Is corruption the price of leadership?  The fictional Jack Stanton (a thinly disguised Bill Clinton) runs for President in Mike Nichols' tour de force, Primary Colors.  Above, Stanton explains  the necessity of cutting moral corners to achieve greatness.  Dr. Sam Vatkin writing at Global Politician this week might well agree as he teases out the pros and cons of corruption. Does "corruption run against the grain of meritocratic capitalism"?  Does it

skew[] the level playing-field; guarantee[] extra returns where none should have been had; encourage[] the misallocation of economic resources; and subvert[] the proper functioning of institutions.

Or does corruption "help facilitate the flow and exchange of goods and services in hopelessly clogged and dysfunctional systems and markets"?  Can it

"get things done" and "keep people employed"; serve[] as an organizing principle where chaos reins and institutions are in their early formative stages;  supplement[] income and help[] the state employ qualified and skilled personnel; [and] preserve[] peace and harmony by financing networks of cronyism, nepotism, and patronage.

In other words, does "just the right amount of corruption" build rather than destroy the trust that permits a social, cultural and political body to survive?  You must read Professor Vatkin's article for the answer, or at least one of the possible answers to this age-old question.

Combating corruption in economic life is more on the minds of Rakesh Khurana and Scott Snook at Harvard Business Publishing for Managers this week in their Manifesto for B-Schools.  Khurana and Snook urge B-school professors to  "be honest purveyors of the truth," presenting

solid arguments, and be[ing] clear about what we know and what we don't. We need to acknowledge the difference between truth and sophistry, and value the former over the latter. As researchers, we need to understand that a commitment to the truth does not mean we possess the truth. Truth evolves; we must gather evidence that can be critically assessed, and revise our ideas in the face of a new data or better a argument. Otherwise, our knowledge amounts to little more than rank ideology.

Khurana and Snook make other suggestions as well and their full post is well worth the read.

An optimistic view of the potential for global trust from a Chinese perspective can be found this week at The Globalist in Yu Keping's post on Harmonious Diplomacy and Global Governance (Part III).  The strategies of Harmonious Diplomacy, writes Keping

center on dialogue and negotiation, win-win outcomes achieved through cooperation, finding commonalities while reserving differences, and promoting an environment characterized by inclusion and openness. To reach maximum consensus, harmonious diplomacy requires equal, friendly and sincere dialogue and negotiation, and mutual trust as well as mutual respect.

These are sentiments with which I, a mediator, certainly agree.  And yet trust without confirmation can lead to ruin.  "Trust, but verify" was President Reagan's watchword, which is this week picked up by the Greenpeace blog, with the suggestion that our foreign climate crisis partners "trust but verify" American claims to U.S. support to be part of the solution rather than part of the problem.  As Philip Radford writes in The Whole World in His Hands,

Even though President Obama was elected on a platform of delivering action on global warming, and has passionately reiterated those pledges since becoming president, he will have to overcome enormous skepticism from his international negotiating partners. At this summit, it is they who will be repeating Ronald Reagan’s maxim about Soviet overtures at the beginning of the glasnost era: Trust, but verify.

There's no more trusted advisor than your physician.  You trust her not only to re-set your kids' broken arm but, in extremis, to take a buzz saw to your sternum, crack it open, and lift your beating heart up in her hands for repair or replacement.  This week, a surgeon at the Cervantes blog (the Surgeon and the Torture Memos) reflects upon the medical training that "habituated" him to cutting through human flesh with a knife ("the scalpel [now] merely an extension of my fingers") while he contemplates the role physicians played in authorizing torture at Guantanamo and further flung sites of extraordinary rendition.  The difference between the surgeon's tasks of "poking sharp objects into other people, removing organs and extremities, and switching parts between the dead and the living" on the one hand and those of interrogators at Guantanamo?  Trust. 

What renders a surgeon’s work different and humane, however, is not just the individual doctor’s desire to do the right thing by his or her patients . . . It is the surgeon’s commitment to and steadfast compliance with his profession’s code of ethical conduct. It is a constant awareness of the extraordinary trust that patients and the public place in their physicians, a trust that entails transparency and accountability in the patient-doctor relationship.

That trust, writes the doctor, has been "shattered" by the participation of our trusted professionals -- particularly physicians and attorneys -- in authorizing the torture that the current administration has (somewhat redundantly but now necessarily) outlawed. 

Well worth read and, by the by, the winner of the best literary post award for this month's Carnival of Trust.

 

 

The Director of the FBI Testifies that He "Followed the Protocol" (reported to the Justice Department) after Concluding That the CIA was Torturing Detainees

Speaking of lawyers (see the banality of evil here) Robert Ambrogi at Legal Blog Watch weighs in on Facebook lawyer and Chief Privacy Officer Chris Kelly's announcement that he might throw his online fedora in the ring for the office of California's Attorney General.   (Facebook Attorney Explores Run for California AG).  As Ambrogi notes, Kelly hopes to parlay Facebook members' "trusted online experience" into a two-hundred million member constituency.  Whether Facebook's responses to  serial mishaps with their members' private information is a trust builder only time will tell.

If you're continuing to repose trust and confidence in financial advisors in this post-Madoff world, check out Investor Watchdog's post from last week on the means to detect Financial Advisor Fraud.  Although the advice is commonsensical, too many of us do not take the simplest precautions to "trust but verify" the people to whom we entrust our financial future.  The advice?  Review account statements and activity promptly and only make checks payable to the custodian.  As "wealth advisor" Michael J. Chasnoff concludes:

While an advisor working as a fiduciary does add significant value, the investor is ultimately responsible for his or her financial independence and should take steps to stay engaged.

Finally, we have Influence, Trust and Authority from Future Buzz, outlining the indicators of social media influence as follows:

Influence is the power of someone to be a compelling force on the actions of others.  Robert Scoble is an influential person in getting us to try out new web services because he gets so jazzed about them we just have to try them out.

Trust is reliance on the integrity in someone (essentially confidence).  If you stop and think about it, we trust each other a great deal in the social web.  Consider something as simple as all the shortened URLs you click each day, we trust our networks won’t send us a spam link.

Authority is power or right delegated, given or in the case of the web earned.  Lawrence Lessig, a law professor who has written several books and works hard as an advocate of free culture on the web is an authority on copyright (amongst other things).

With these definitions in mind…

  • . . . influence and authority are not necessarily personal, while trust is more abstract and difficult to measure because it is personal.

  • We have trust with people on the social web and blogs we read because we form personal relationships with the people behind the content.  It is something that has been leeched from traditional media, and illustrates the shift in influence - from brands to people.

  • [A]ttention + trust = authority.  Trust is the shortcut to both of these, thus explaining the earlier example of why someone with just 20 readers can be as influential or authoritative if not more so than popular people, at least to their networks. . . . .

There's much more of value to gain from this incisive post and I highly recommend you read it (in the event I have any influence to motivate you, authority to convince you or confidence to draw you into my own personal evaluation of blog post quality).

Want to become a charismatic leader?  It's not just about charm, it's also about trust according to the Leadership Expert post on Charismatic Leadership. "Academics," we're told, have identified the following four stages of charismatic leadership:

Creating a new vision: Charismatic leaders are able to assess unfulfilled needs and opportunities in their environment and project their vision for a future without any shortcomings.

Articulating the vision: The leader will be able to communicate his belief in the vision to his followers and convince them of its viability.

Building trust: The next phase of charismatic leadership involves engendering trust among group members and securing their commitment.

Achieving the vision: The leader will set a personal example and empower others in order to sustain motivation so that the vision can be realized. 

Most attorneys consider the phrase "law firm management" to be an oxymoron.  Trust me. Most of us were liberal arts majors. The only thing we ever endeavored to manage was our urge to put on tap shoes and sing Yankee Doodle Dandy or recite the Gettysburg address if stage or podium were nearby. Law firm management consultant Rees Morrison, however, believes in our ability to manage the business of the law.  In his recent post Which influences most in the selection process, the firm or the lawyer? he suggests that the choice of trusted counsel all comes down to relationship.

[W]hen matters are not so high profile as to tip the selection toward a name firm, it is the individual partner who draws the attention of those who select counsel. So long as the firm’s infrastructure is judged sufficient to handle the matter, it is the brain, style, experience, and judgment of the partner that makes the most difference.

As proof, if a respected partner leaves a firm, even in the midst of a major matter, most general counsel will transfer matters with him or her, accepting the disruption, nodding to the new firm, and demonstrating faith in the partner (See my post of Aug. 4, 2008: loyalty to law firms with 6 references; and Sept. 12, 2008: transfer matters to new counsel with 8 references.). The partner, not the junior lawyers let alone the other resources of the firm, makes all the difference (See my post of May 11, 2007: complaints about associates with 13 references.).

How could I, an inveterate "tweeter" (here) conclude the Carnival of Trust without mentioning Twitter?  You needn't take my word for its trust-building capacities -- take it from CoveyLink (Stephen Covey, he of the Speed of Trust). As Covey raves in his post Twitter's Speed of Trust ripple of influence:

[Twitter] scales the entire globe. It is both personal. . . . and professional,  I connect and communicate with like minded thinkers around the world. 

The . . . story that comes to mind is the significance of the realization of the transcendent potential of the world wide web so eloquently described by Christopher Locke at the turn of the century (the 21st century that is) in . . . his book thecluetrain manifesto:

“More important, all of us are finding our voices once again.  Learning how to talk to one another.  Slowly recovering from a near fatal brush with zombification after watching Night of the Living Sponsor reruns all of our lives.  Inside, Outside, there’s a conversation going on today that wasn’t happening at all 5 years ago and hasn’t been very much in evidence since the Industrial Revolution began.  Now, spanning the planet via Internet and World Wide Web, this conversation is so vast, so multifaceted, that trying to figure what it is about is futile.  It’s about a billion years of pent-up hopes and fears and dreams coded in serpentine double helixes, the collective flashback deja vu of our strange perplexing species.  Something ancient, elemental, sacred, something very very funny that’s broken loose in the pipes and wires of the 21st century.  There are millions of threads in this conversation, but at the beginning and end of each one is a human being… This fervid desire for the Web bespeaks a longing so intense that it can only be understood as spiritual.  A longing indicates something is missing in our lives.  What is missing is the sound of the human voice.  The spiritual lure of the Web is the promise of the return of voice. 

Twitter is clearly a giant leap forward in that direction.

Or as the poet Galway Kinnell has written, "if you tell your own personal story deeply enough, your voice becomes that of another creature on the planet speaking."  And that, my friends, is a voice you can always trust.

Thank you Charles H. Green for allowing me to host this carnival, and thanks Ian Welsh for his help.

(For the link to Charlie’s blog, Trust Matters click here!)

The Question is Not WHETHER But HOW MUCH Your Mediator is Deceiving You

I spent the day at an advanced mediation training session at the U.S. District Court in Los Angeles where I serve as a settlement officer. I came away troubled by the wide array of responses to questions concerning the mediator's "right" or "desire" or "need" to use deception in separate caucus mediation - the primary form mediation takes in Southern California litigated cases.

At the end of our session, I suggested to a fellow mediator that all separate caucus mediation is inherently deceptive. He is a sophisticated practitioner and knew exactly what I meant. My husband - a litigator of 35 years who is also (newly) on the District Court's Settlement Officer panel - recoiled at the idea.

Here, for your consideration, is an excerpt from a lengthy discussion of the issue from the Journal of the DuPage County Bar Association -- Defining the Ethical Limits of Acceptable Deception in Mediation by JAMS mediator the Hon. John W. Cooley (Ret.) 

[C]onsensual deception is the essence of caucused mediation. This statement should not come as a shock to the reader when it is considered in the context of the nature and purpose of caucusing. Actually, it is quite rare that caucused mediation, a type of informational game, occurs without the use of deception by the parties, by their lawyers, and/or by the mediator in some form. This is so for several reasons.

First, a basic groundrule of the information system operating in any mediated case in which there is caucusing is that confidential information conveyed to the mediator by any party cannot be disclosed by the mediator to anyone (with narrowly limited exceptions). This means that: (1) each party in mediation rarely, if ever, knows whether another party has disclosed confidential information to the mediator; and (2) if confidential information has been disclosed, the nondisclosing party never knows the specific content of that confidential information and whether and/or to what extent that confidential information has colored or otherwise affected communications coming to the nondisclosing party from the mediator. In this respect, each party in a mediation is an actual or potential victim of constant deception regarding confidential information — granted, agreed deception — but nonetheless deception. This is the central paradox of the caucused mediation process. The parties, and indeed even the mediator, agree to be deceived as a condition of participating in it in order to find a solution that the parties will find "valid" for their purposes.

Second, mediation rarely occurs absent deception because the parties (and their counsel) are normally engaged in the strategies and tactics of competitive bargaining during all or part of the mediation conference, and the goal of each party is to get the best deal for himself or herself.

These competitive bargaining strategies and tactics are layered and interlaced with the mediator’s own strategies and tactics to get the best resolution possible for the parties — or at least a resolution that they can accept. The confluence of these, initially anyway, unaligned strategies, tactics, and goals creates an environment rich in gamesmanship and intrigue, naturally conducive to the use of deceptive behaviors by the parties and their counsel, and yes, even by mediators. Actually, even more so by mediators because they are the conductors — the orchestrators — of an information system specially designed for each dispute, a system with ambiguously defined or, in some situations, undefined disclosure rules in which the mediator is the Chief Information Officer who has near-absolute control over what nonconfidential information, critical or otherwise, is developed, what is withheld, what is disclosed, and when it is disclosed. As mediation pioneer Christopher Moore has noted: "The ability to control, manipulate, suppress, or enhance data, or to initiate entirely new information, gives the mediator an inordinate level of influence over the parties."

Third, the information system manipulated by the mediator in any dispute context is itself imperfect. Parties, rarely, if ever, share with the mediator all the information relevant, or even necessary, to the achievement of the mediator’s goal — an agreed resolution of conflict. The parties’ deceptive behavior in this regard — jointly understood by the parties and the mediator in any mediation to fall within the agreed "rules of the game" — sometimes causes mediations to fail or prevents optimal solutions from being achieved.

Thus, if agreed deception is a central ingredient in caucused mediation, the question then becomes what types of deception should be considered constructive, within the rules of the mediation game, and ethically acceptable and what types should be considered destructive, beyond the bounds of fair play, and ethically unacceptable. Or, perhaps more simply, in the words of mediator Robert Benjamin, in mediation what are the characteristics of the "noble lie" — deception "designed to shift and reconfigure the thinking of disputing parties, especially in the conflict and confusion, and to foster and further their cooperation, tolerance, and survival"? Because formal mediation is generally viewed as "nothing more than a three-party or multiple-party negotiation," we can begin to formulate an answer to this question by examining the current limits of acceptable deception as employed by lawyer-negotiators.

New Zealand mediator Geoff Sharp blogged on this topic under the rubric "noisy disclosure" recently, noting that

Mediators can assist parties in reaching a zone of possible agreement by making limited and heavily filtered disclosures of the parties’ private concessions that the parties disclose in caucus sessions (Brown and Ayres call this “noisy” communication).

See my own short post on mediator predictions and false signals here

 I urge all my readers to comment, but particularly litigators like my husband who may not know what many mediators have apparently known for quite some time -- that they are making "filtered disclosures of the parties' private concessions" after promising to keep all separate caucus communications strictly confidential.

My husband assured me on the way home tonight that he will henceforth require all of the mediators he retains to guarantee him that they will not "signal" his negotiating positions, tactics or strategies to his bargaining partners.

Your thoughts?

California Courts May Not Require Parties to "Negotiate in Good Faith"

Although a California Court may properly sanction a non-party insurance carrier who possesses the authority to settle litigation for its failure to participate in a mandatory settlement conference, there is no statutory (nor inherent) authority given the Court to sanction the carrier or a party for its purported failure to negotiate in "good faith."  As the Court in Vidrio v. Hernandez (2d DCA) explained today:

In sum, even were we to agree with the trial court's assessment of the conduct of counsel and the [insurance] adjuster, the failure to increase a settlement offer or to otherwise participate meaningfully in settlement negotiations violates no rule of court and is not a proper basis for an award of sanctions.11 (See, e.g., Triplett v. Farmers Ins. Exchange (1994) 24 Cal.App.4th 1415, 1424 [“[w]e eschew any notion that a court may effectively force an unwilling party to settle by raising the specter of a post hoc determination that failure to do so will be evidence of failure to participate in good faith”]; Sigala v. Anaheim City School Dist., supra, 15 Cal.App.4th at p. 669 [“„[a] court may not compel a litigant to settle a case, but it may direct him to engage personally in settlement negotiations, provided the conditions for such negotiations are otherwise reasonable‟”].) [Defendant] filed an appropriate settlement conference statement; her lawyer and Mercury [the insurance carrier] attended the conference and participated in it. While the trial court‟s frustration at the parties‟ lack of movement is understandable, no more was required.
 

In particular, the Court of Appeal, held that the Court was not at liberty to "judge" whether the defendant and its carrier "should have" offered more than had previously been offered at a mediation either because the case was "worth" more or because the offer was so low in light of the attorneys fees and costs that would likely be incurred at trial.

I believe most mediators would approve of this ruling, even though it applies only to settlement conferences and not to mediations, the latter of which is protected from the Court's inquiry by Evidence Code section 1119.  Whether or not a mediator, a settlement judge, a party or a trial judge believes a defendant "should" offer more or a plaintiff "should" accept less by way of settlement, should not form the basis of an award of sanctions.  Not only would such a rule decrease citizens' trust and respect for the Courts, whose job it presumably is to provide a forum in which litigated disputes may be tried, such a rule would impermissibly chill the parties' Constitutional right to a jury trial.  

 

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.

 

The Godfather of Collaborative Law Talks about Litigation and its Discontents

Discouraged by the adversarial process?  Looking for lawyers who will handle your commercial dispute without going to "war" with all the expense and collateral damage that involves?

This excellent talk by Webb has been viewed 202 times, while "Drunk Lawyer" below has been viewed by nearly 300,000 people.  It's not surprising that drunken trial lawyers are far more entertaining than some old guy talking about attorneys bringing potluck to negotiate the resolution of a lawsuit. 

The question is this:  Do you want to pay for the entertainment of conflict or resolve it and move on with your plans to create a profitable future for your company and its employees.

"Drunk Lawyer" is, after all, free on YouTube!

Thanks to Cutting Edge Law for gathering together the Stu Webb and other videos on the revolution in legal practice that's being fomented right around the corner -- just about the time the BigLaw model fails along with dinosaurs like General Motors.

You didn't hear it here first.  But you will hear it here often.

This is the fourth video of this painful encounter on YouTube but it's the one in which the attorney is asked to "blow" a breathalyzer for the Court.

 

 

Above the Law Slays a Few Sacred Cows for Blawg Review #204

It rarely gets any better than this.  Here's Elie Mystal's intro to tempt you into the the whole catastrophe.

Here at Above the Law, we thrive on taking a vat of hydrochloric acid to the veneer of the legal profession and exposing the original craftsmanship underneath. Nothing is sacred.

When given the opportunity to serve for Blawg Review -- the "blog carnival for everyone interested in law" -- I was excited to take Above the Law's brand of rousing rabble out on the road. How many "Sacred Cows" are out there? How many can I hunt and grill? And as Denise Howell might ask me on her "Yo Comments Are Whack" podcast: "how many cow jokes can you take in one week before you end up on a liposuction table?" Eric Turkewitz already tussled with Oprah this week, so the easiest mark has already been bagged.

Of course, ATL is also a news organization. So while I had high hopes of continuing my friendly banter with Loyola Law School Dean Victor Gold, the news of the week inexorably pushes me in one direction. Luckily, it turns out that the thing everybody was blogging about this week is the biggest sacred cow of all, and it is ripe for poaching.

Put down those canned objections to interrogatories and read on here.

Texas Bar Association You Tube Ideals that Unite Us

 Here's good news for the new year!

 

2008-2009 YouTube Contest - Ideals that Unite Us

Image$2,500 scholarship for under 18 winner / 
      $2,500 cash prizes for 18 and over,

ImagePeople's Choice, and Classroom winners

ImageWinners also receive an expense-paid
      trip to the awards presentation in
      April 2009

ImageStarting Sept. 1, 2008, Upload your video to: 
www.YouTube.com/group/TexansOnJustice


Create a three-minute-or-less video that captures your vision of the ideals that unite us as citizens of Texas. Be creative. You've got all summer to get those cameras rolling!

This contest is open to residents of Texas and attorneys licensed to practice in Texas.

To enter the "Ideals That Unite Us" contest:

1. Read and agree to the contest rules.

2. Make a video. Be creative!

3. Complete this online entry form

Thanks to Tamera Bennett for the link.  Follow her on twitter here.  Read her Copyright, Trademark and Entertainment Law Blog here.

For Your Attorney Holiday Book Gift List: Conflict Revolution

e-Bleak House: Twitter "Tweets" Discoverable

From E-discovery implications of Twitter at Lawyers USA

The social networking site Twitter.com allows users just 140 characters to describe what the user is up to – a post known as a "tweet."

But lawyers advising clients on e-discovery or using Twitter themselves need to realize that tweets are discoverable.

"Twitter posts are like any other electronically stored information," explained Douglas E. Winter, a partner at Bryan Cave in Washington, D.C. and head of the firm's Electronic Discovery unit. "They are discoverable and should therefore be approached with all appropriate caution."The increasing popularity of Twitter has made electronic discovery even more complicated.

Litigators!  Remember, you and your opponent(s) have a choice. It's not only in arbitration that you can make your own law, but by way of stipulated case management orders cooperatively crafted with an eye toward relative cost and likely benefit (ask me for a template!)

I don't need to tell you that clients are cutting back in 2009.  The litigation practice that thrives will be the most efficient and effective dispute resolution vehicle on the road.

And now, for your moment of zen - Charlie Dickens.

Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means. The parties to it understand it least, but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce without knowing how or why; whole families have inherited legendary hatreds with the suit. The little plaintiff or defendant who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled has grown up, possessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into mothers and grandmothers; a long procession of Chancellors has come in and gone out; the legion of bills in the suit have been transformed into mere bills of mortality; there are not three Jarndyces left upon the earth perhaps since old Tom Jarndyce in despair blew his brains out at a coffee-house in Chancery Lane; but Jarndyce and Jarndyce still drags its dreary length before the court, perennially hopeless.

Jarndyce and Jarndyce has passed into a joke. That is the only good that has ever come of it. It has been death to many, but it is a joke in the profession. Every master in Chancery has had a reference out of it. Every Chancellor was "in it," for somebody or other, when he was counsel at the bar. Good things have been said about it by blue-nosed, bulbous-shoed old benchers in select port- wine committee after dinner in hall. Articled clerks have been in the habit of fleshing their legal wit upon it. The last Lord Chancellor handled it neatly, when, correcting Mr. Blowers, the eminent silk gown who said that such a thing might happen when the sky rained potatoes, he observed, "or when we get through Jarndyce and Jarndyce, Mr. Blowers"--a pleasantry that particularly tickled the maces, bags, and purses.

How many people out of the suit Jarndyce and Jarndyce has stretched forth its unwholesome hand to spoil and corrupt would be a very wide question. From the master upon whose impaling files reams of dusty warrants in Jarndyce and Jarndyce have grimly writhed into many shapes, down to the copying-clerk in the Six Clerks' Office who has copied his tens of thousands of Chancery folio-pages under that eternal heading, no man's nature has been made better by it. In trickery, evasion, procrastination, spoliation, botheration, under false pretences of all sorts, there are influences that can never come to good. The very solicitors' boys who have kept the wretched suitors at bay, by protesting time out of mind that Mr. Chizzle, Mizzle, or otherwise was particularly engaged and had appointments until dinner, may have got an extra moral twist and shuffle into themselves out of Jarndyce and Jarndyce. The receiver in the cause has acquired a goodly sum of money by it but has acquired too a distrust of his own mother and a contempt for his own kind. Chizzle, Mizzle, and otherwise have lapsed into a habit of vaguely promising themselves that they will look into that outstanding little matter and see what can be done for Drizzle--who was not well used--when Jarndyce and Jarndyce shall be got out of the office. Shirking and sharking in all their many varieties have been sown broadcast by the ill-fated cause; and even those who have contemplated its history from the outermost circle of such evil have been insensibly tempted into a loose way of letting bad things alone to take their own bad course, and a loose belief that if the world go wrong it was in some off-hand manner never meant to go right.

Thus, in the midst of the mud and at the heart of the fog, sits the Lord High Chancellor in his High Court of Chancery.

 

 

Arbitration and E-Discovery: Make Up Your Own #^%@ Law!

The National Law Journal's annoying practice of making its "best" content available only with a secret decoder ring forged in the fire of subscription dollars, nevertheless did not stop me from access to an intriguing article about arbitration's "e-discovery conundrum" (here for people with the secret code).

In Arbitration's e-Discovery Conundrum (thank you Mr. Thrifty for the copy) the author contends that:

. . . as litigation discovery techniques have become more prevalent in arbitration, arbitration has become just as time-consuming, expensive and burdensome. Without the benefit of an appeal process for the losing party, the primary remaining benefit for binding arbitration -- privacy -- is often outweighed by the other negative factors.

Parties and their litigation counsel have pointed to runaway discovery as one major reason why they have abandoned arbitration in favor of mediation in the United States and even internationally.

So how can "the long-recognized benefits of arbitration -- speed and cost savings -- be restored?"

(top:  is this what any of us went to law school for? Flowchart from Integreon)

The author recommends that the process must "address the needs and interests that led them to arbitration in the first place: to balance the need to discover those documents reasonably necessary for a party to prove its case with the cost, burden and time involved in producing such documents, while taking into account the need for fundamental fairness and to avoid surprise and trial by ambush."

Here's where reformers fail to get the direction the law is moving in.  It's not about finding a process that fits your needs - it's about creating the process that is tailor-made for your one and only completely unique and unrepeatable dispute.

The beauty of arbitration is not what it is.  It is what it can be.  The beauty of arbitration is that it allows you to make up your own $%#@^ law and procedure.  It restores control of the process to you.

What, you say?  Your opponent and you can't agree?  This is no longer a good enough reason, particularly because I do not see many attorneys making the effort to craft discovery and case management plans that reasonably addresses the parties' actual need for every document that someone marginally involved in the dispute might have once breathed upon.

I know whereof I speak.

The solution?  Sit down, for goodness sake, with your adversary, for as many days as it takes, to reach agreement about what each side actually needs.  Leave your huffing and your puffing, your posturing and your adversarial chops at the conference room door.  There will be plenty of time for all of that after the only people who actually understand the dispute -- YOU -- agree upon the type of process necessary to resolve it as efficiently and effectively as possible.

The law firms that do this will survive the recession. 

It's About Justice . . . and the Common Good

We were talking about fairness over pizza with our neighbor last night.  Tony was pretty teed off at the unions, something I've heard a lot of from Mr. Thrifty over the past couple of weeks.  True to litigator form, however, Mr. T came to the defense of the "working man" when hearing his own opinions read back to him over cheese and pepperoni.

I've written a lot about justice here because we lawyers are in the justice-delivery business no matter how much we sometimes think it's only about money. See e.g., here and here.  I've also written about the desire for fairness being so universal that even monkeys will "strike" if they see a fellow worker "earning" more or better compensation (grapes trump cucumbers), going without food rather than working while seething with resentment.

Which brings us to Gail Collins' opinion piece in the NYTimes today about dogs shaking hands with men in white coats, bread, and the auto unions.

First the dogs.  As Collins writes:

Folks at the University of Vienna conducted a test in which dogs were asked to shake hands over and over and over again. If you have any experience with dogs, you will not be surprised to hear that they were absolutely delighted. And they didn’t care about being paid! The opportunity to perform the same trick endlessly with a stranger in a white coat was reward enough.

Then the researchers brought in new dogs that were given a piece of bread as a reward for every handshake. The uncompensated dogs watched, lost their innate love of mindless repetition and grew sullen.

“They get so mad that they look at you and just don’t give you the paw anymore,” said Friederike Range, one of the scientists.

So O.K. Dogs are secretly obsessed with fairness. (And bread. Who knew?)

Then the auto bail-out.  

The really hard lifting still lies ahead, and we cannot possibly do it if we’re going to dwell too much on the fairness thing. It’s just too easy for lawmakers to dodge the tough vote by reminding their constituents that somebody else is getting more breaks than they are.

Which somebody always is. If Senator DeMint’s constituents are going to riot over a bailout for the auto industry, they’ll wind up being met by tool-and-die makers waving torches and yelling about soybean subsidies. If the lawmakers from Alabama say their constituents do not want their tax money going to bail out Michigan, the people in Michigan are going to say that they never really enjoyed paying more taxes to the federal government than their state received in aid, while Alabama got a return of $1.61 on the dollar. And anytime a representative from the Great Plains opens his mouth, the people from New York are going to point out that while every state gets the same number of senators, there are more people waiting for a subway in Brooklyn in rush hour than inhabit all of Wyoming.We can really get tiresome on the subject. You don’t want to go there.

And finally, the solution.

Any mammal can obsess about fairness. (Did I mention how ticked off monkeys get if they find out they’re getting cucumbers while somebody in the next cage has a grape?) The real human trick is to get past the quid pro quo and try to focus on the common good.

A Single Ray of Resolution Optimism in the Darkest Movie in American Film History

Must read:  Embracing Conflict's analysis of Dueling Banjoes in Deliverance written by  Niel Denny, a Collaborative family solicitor working in the South West of England who is a member of my twitter network here: @nieldenny.

Excerpt and video below but a reading of the entire post is a must for anyone looking for reasons to believe that we can reach one another across political, cultural, religious, social and economic divides.

The music develops by a process of answer and call. One of them plays a riff, or a short section of music, which is then followed by the other. They react to one another responding to and developing upon the riff they have just heard. By doing so they produce this amazing music in a memorable scene that is part of cinema folklore.

It represents a rare moment of optimism in what is an otherwise unbearably dark, oppressive film.

In the process of exchanging these riffs the protagonists are effectively collaborating. They are communicating. We can see their riffs as an analogy for talking. The riffs work where the spoken word does not. Drew and the Banjo boy clearly develop and enjoy a relationship while they are playing.

Negotiating Thanksgiving by Being of Service

Thanksgiving Day begins a season that reminds many of us that our earliest negotiation experiences were those with our family. 

When I was a child, these were the issues on the Thanksgiving bargaining table

  • Who gets to snap the wishbone (does anyone do this anymore?)
  • Who gets to sit next to gramma
  • Who sets the table and who does the dishes
  • Whether my sister and I have to eat what we don't like (me cranberry sauce; she vegetables of any kind) to "earn" a piece of pumpkin (my sister) or pecan (me) pie

Later, in adolescence, the issues changed

  • must I follow the parental injunction not to talk about civil rights, pre-marital sex, world poverty, and, the Viet Nam War ALL DAY long
  • do I have to change out of my blue jeans, workshirt and desert boots for dinner
  • may I have two Thanksgivings - one with my father & one with my mom & step-dad
  • MUST I be nice to my sister's new husband
  • and, of course, who sets the table and who does the dishes (some things never change)

Still later, when my sister and I had married and moved out of town

  • whose table would we gather around for the holidays:  mom's, mine or my sisters
  • how to accommodate the newly vegetarian in the family
  • could I skip Thanksgiving in San Diego in exchange for Christmas there (without my mother bursting into tears)
  • and, of course, who sets the table and who does the dishes

Thanksgiving is my own favorite holiday because there are no gift-giving obligations; everyone (more or less) celebrates the same holiday regardless of religion or national origin; there is no limit on the amount of cream and butter that can be consumed at a single sitting; and, everyone is expected to express gratitude rather than complaint.

Not everyone, however, is lucky enough to have family or even friends with whom to gather for Thanksgiving.  I have had these times in my own life, when Thanksgiving is a particularly forlorn and isolating day.  It's never mattered to me whether I was economically secure or poverty stricken on Thanksgiving.  What mattered were those Thanksgivings when I had no family with whom to gather and no friends with whom to share a holiday meal.  For those whose lack of family arises from outright rejection (many young gays in West Hollywood or throw-away kids on the streets of Hollywood) there are few days of the year that are more wrenching.

For the lonely and the forlorn this Thanksgiving, I'm posting the following resources and adding this:  not just the good, but the bad is fleeting as well.

Thanksgiving Service Opportunities

Around here, public officials and celebrities pretty much have the T-day soup kitchen duties cornered.  Don't despair if all of the opportunities to serve dinner on T-day are taken; there is much else you can do to be of service to those less fortunate than you.

Meetings, Meetings, Meetings

If you're in recovery in the Los Angeles area, I have good news for you.  Many of the daily 3,000 local meeting groups have 24-hour meetings over the Thanksgiving weekend and many serve Thanksgiving dinner.  Check the local directory (here) for a meeting near you (the national meeting finder is here). 

Those who are already trained to answer telephones at the L.A. Central Office might give Harvey a call and volunteer to serve as the saving voice on the other end of the telephone during hard to cover hours such as the midnight to dawn shift.  The most recent issue of Hello Central (here) notes that the

Los Angeles Central Office continues to be in need of volunteer telephone workers. The only requirement is a minimum of one year sobriety. We need people who will show up when they say they will. Contact Central Office: (323) 936-4343, and ask for Harvey or Langston.

Donating Food; Finding a T-day Dinner

My husband returned from our local farmers market the other day with the story of a woman in line who was making an entire Thanksgiving dinner just for herself and seemed cheerful about it.  Now there's a woman who's made peace with her life.  For those who might find the solo T-day dinner a tiny bit depressing, you could cook up dishes for others.  Here are some organizations to which you could be of service in that way.

Visiting Shut-ins, the Elderly, the Sick

Here's what I learned one lonely Thanksgiving Day working on a crisis phone line.  Loving feels every bit as good as being loved.

Have a GREAT Thanksgiving!!

 

 

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

Are Women Better Mediators Than Men?

First she's all about the election and now she's back to post-mid-Century America's gender wars?  Say it ain't so, Vickie!

These are just statistics from an extremely limited sample that tells more about this particular program in this particular place concerning the particular types of cases being mediated than they are about the relative abilities of male and female mediators.

I'm unaware, however, of any controlled studies on gender differences in mediation results.  I do know that there's a gender imbalance in the profession and have had panel administrators acknowledge on the QT that even when they're choosing mediators or settlement officers pro bono lawyers tend to choose men most of the time.  

So for women struggling in the profession, here's your moment of zen.

Examining the graphical representation of mediator gender and settlement rates, one can see that there are male mediators who settle cases at higher than average rates, as well as female mediators who settle cases are lower than average rates. Nevertheless, it appears that most of the popular mediators who settle cases at higher than average rates are women, while the majority of popular mediators who settle cases at lower than average rates are men.

Some may object to this “battle of the sexes” analysis on the grounds that men and women should be treated as equals. Based on our data, however, male and female mediators are not statistically equal with respect to the rate at which they settle cases. Whether this “good” or “bad” is more a matter of philosophy than statistics.

In her book In a Different Voice, Carol Gilligan described how men and women think about moral conflicts differently. Her research suggests that men tend to consider conflict in terms of rights while women generally view conflicts in terms of dynamic relationships. Accordingly, a “female” approach to conflict resolution may be better suited to the process of facilitating mediated settlements than a “male” approach to conflict.

For a colored chart and remainder of post, see Correlation of Mediator Gender to Settlement Rate at Practical Dispute Resolution here.

When I think of my own experience as a neutral for the past four years and compare it to my experience as an attorney in the first four years of my practice 1980-1984, I can only say that it is somewhat similar.

What made the difference in the years that followed?  Women flooding the profession.  As women litigators and bench officers begin to retire, I suspect that we'll begin to see greater use of women neutrals.  And no, I do not believe that the paucity of women on commercial mediation panels nor what I believe to be their greater struggle to build a thriving practice there is based upon conscious sexism.

Like the tendency to prefer judges over attorney mediators (a preference I believe to be waning) I believe that the sub-conscious preference for male over female mediators arises from a continuing misunderstanding among members of the bar about what settles cases.  Too many attorneys continue to believe that they need a mediator who can overpower the will of their adversary.  And if you're looking for raw power (particularly the power of authority) in American commerce and law, you will naturally choose the judge over the attorney and the man over the woman.

I haven't written about this in the past because it is a topic that tends to divide people and it is not my intention to start a tiny gender war in the tiny world of mediation.

But when these statistics started pouring into my in-box, I couldn't ignore the topic any longer.

Please feel free to comment.

Learn Deposition Skills (and Much More!) at Solo Practice University™

Faculty @ SPU

It's official!  I've joined the faculty of Solo Practice University™

Huh?

I don't see that University in any tier of the U.S. News and World Report's Law School Rankings!  And if it's not ranked for goodness sakes, does it even exist?

Yes, Virginia, a school for legal practitioners does exist "as certainly as love and generosity and devotion exist, and you know that they abound and give to your life its highest beauty and joy."

O.K.,Solo Practice University™ is not Santa Claus but it comes pretty darn close.

Solo Practice University™ is a revolutionary new web-based educational community that picks up where your legal education left off.

Learn from some of the most progressive lawyers, marketing pros, technology consultants and legal business giants how to:

* Plan, build and grow your private practice
* Differentiate yourself from the competition
* Attract and engage new clients more easily

… and much more. They just can’t teach you that in law school.

Need to transform your marketing strategy in these troubled economic times?  You can learn  not just how to blog your way into your desired market, but how to leverage what you love into how much you make from Blawgfather and SPU Professor Grant Griffiths.

Wondering whether to put rocket fuel into your networking vehicle by adding online social media?  You couldn't find a better teacher than SPU Professor Toby Bloomberg who has over 15-years of traditional strategic marketing experience and four years with social media through her company Bloomberg Marketing/Diva Marketing.

Are your clients peppering you with questions you can't answer about their rights and remedies in Cyberspace?  Then it is Christmas, Hannukah and Kawanza all rolled up into one. Brett is a patent attorney and frequent national speaker on internet and intellectual property law. Professor Brett Trout is teaching a course on intellectual property in cyberspace.

Whether your presence in Cyberspace is solo or in connection with a group practice, let SPU Professor Stephanie L. Kimbo help you hang out your virtual shingle. 

Don't yet know your way around the courtroom?  Thinking of adding criminal defense to your practice as a growth industry in troubled economic times?  Need to ask questions of a seasoned trial attorney that would make you feel inadequate to ask of your supervising attorney in the PD's office?  There's no better winter holiday gift than SPU Professor Scott Greenfield's semester-long course “The Practice of Criminal Defense - The Road to Perdition.”

Still waiting to take that first deposition?  Taking your 20th and can't stop worrying that the Court Reporter thinks you're just a tiny bit pathetic?  Don't know how to deal with obstreperous opposing counsel?  Afraid to run a line of killer cross-examination to re-position your case for summary judgment or settlement?  Wish you'd gotten the expert to admit that he'd consider the moon to be green cheese if his attorney had told him to assume it? (yes my partner did). 

Then you'll want to sign up for my Deposition Skills course based upon the NITA techniques I've taught for more than a dozen years and my own OJT during a 25-year commercial legal practice.

Let your real legal education begin at Solo Practice University™

 

 

Solo Practice University™

Blawg Review # 181 Celebrates International Conflict Resolution Day

It's effective, it's efficient and it's client-centered.  Just what we need to weather the financial storm.

 What?  The mediated resolution of litigated cases. 

Nobody blogs it better than Diane Levin at the Mediation Channel, who hosts Blawg Review # 181 in celebration of International Conflict Resolution Day.   BR's anonymous Ed. recently had these kind and grateful  words for Diane:

We'd like to take this opportunity to thank Diane for her many contributions to Blawg Review, having now hosted four outstanding presentations -- #43, #94, #130 and #181. Behind the scenes, in her role as a Blawg Review Sherpa, Diane has made contributions to many other issues of Blawg Review, too. So, speaking for myself and all the other Blawg Review hosts she's helped along the way, we'd like to say thanks a bunch and give you this extra little bit of link love to show our heartfelt appreciation.

Tomorrow I'll start my day by reading, and giving my own readers a head's up on what looks to be one of the best Blawg Reviews of the year by the best ADR blogger ever.

Anyone working up the nerve to host, click here. Lesser mortals can submit their week's best post by taking a look at the submission guidelines here. Next week Blawg Review  will appear at ..

 

Preaching to the Perverted.

(totally unrelated photo; just getting my iPhone photos from Paris in the mix)

But what a Blawg Review Diane has given us.  Thank goodness it's Columbus Day or I'd be short-changing my actual work-work by reading #181 half the day and its links the other half of the day.  And don't expect Diane to limit herself to mediation.  Most of us are also lawyers, after all, so she also covers the best legal posts of the week on the topic of the law, legal practice, life as lawyers -- the "whole catastrophe" as Zorba said. 

Geoff Sharp is spot on in urging you to read Blawg Review #181.  It could be malpractice not to do so!!

Brilliant Diane!  Thanks.


 

 

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:   

Victoria:

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?

 

 

 

Negotiating the Economy: You Can't Save Your Face and Your Ass at the Same Time

See Marginal Revolution's post today The problem is that both of you are right citing David Brooks for the proposition that the "failure to pass the bailout represents a massive failure of American governance and leadership, most of all at the Congressional level. That's true even if you think, for other reasons, that the bailout was a bad idea. (Can any hero be cited in this debacle?)"

There are no heroes in this crisis -- only leaders and representatives of the people, many of whom are now being seriously burned, most particularly in their retirement accounts.  

If inaction is the answer (which I doubt -- see the Harvard Working Knowledge round-up of solutions from the smartest people in the room, here) our representatives should say so.  If they're afraid of looking bad, we should get rid of the bums.  If they're angry at Nancy Pelosi, they should get over it.  Though Pelosi's speech is an example of the way that being hard on the people rather than on the problem can cause negotiations to break down, surely our elected representatives realize they can't pout their way through this crisis.

We need in Congress what every negotiation requires:  preparation, communication, collaborative problem solving and, in this particular bargaining session -- courage, which Webster's defines as

"the attitude of facing and dealing with anything recognized as dangerous, difficult or painful instead of withdrawing from it; quality of being fearless or brave; valor. The courage of one's convictions or the courage to do what one thinks is right."

Come to think of it, all negotiations require courage.

So get back up on the donkey, Congress; be prepared; be principled; be brave.  We're counting on you.

And for those who aren't afraid to admit that they don't know the difference between a strategy and a tactic, here's a brief tutorial.

Here's more from Harvard (link here to full article)

If ever there was a time for resonant leadership, it's now. We need to rise above panic. Panic kills. Really, it does. If you're caught in a riptide (which we are) and you freak out, flail, fight it, you will die. If you smell smoke in the house and run wildly around gathering things you will die. If you freeze in your bed and hope the smoke is outside, not inside, you'll die.

This is not a time to give in to panic. Of course we are scared. It would be stupid not to acknowledge that the economic world as we know it -- knew it -- has changed fundamentally and forever. Actually it probably changed a while ago. We just ignored it, covered it up. So we are justifiably terrified. Now what?

Let's do something with our feelings, rather than let our emotions do something to us. Fear has its place -- it gets our attention. But we can't let it paralyze us. This is a time to breathe deeply. To think about what is most important -- family, life, health, love, purpose. And for my countrymen and women -- let's think about who we are as Americans. We can move beyond fear. What's beyond fear? Hope. Creativity. Resilience. Compassion. Courage.

Back to my daughter Sarah for a minute. She's at work today, in good spirits and having fun helping to create an awesome TV special about an inspiring American hero. My brother --also at work, creating. That's what he does--he creates new solutions for new problems. And me? I'm at work too. I spent the day with my team, a group of incredible people who dedicate their lives to others.

No, it won't be easy. But yes, we can make it, and we can make a better world too. That is not a noble goal, it is a necessary goal.

A final word. Common wisdom, backed up by research: hope, optimism, good humor and compassion (among other positive emotions and experiences) can literally free us from the deadly psychological traps of panic and anger. It takes tremendous self-management. But we can do it.

Courage quotes to remind all of us who we are:

Winston Churchill:

Courage is going from failure to failure without losing enthusiasm

Theodore Roosevelt:

It is not the critic who counts, not the man who points out how the strong man stumbled, or where the doer of deeds could have done better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood, who strives valiantly, who errs and comes short again and again, who knows the great enthusiasms, the great devotions, and spends himself in a worthy cause, who at best knows achievement and who at the worst if he fails at least fails while daring greatly so that his place shall never be with those cold and timid souls who know neither victory nor defeat.

Theodore H. White:

To go against the dominant thinking of your friends, of most of the people you see every day, is perhaps the most difficult act of heroism you can perform

Soren Kierkegaard:

To dare is to lose one's footing momentarily. To not dare is to lose oneself.

Maya Angelou:

History, despite its wrenching pain, cannot be unlived, but if faced with courage, need not be lived again.

Margaret Chase Smith:

Moral cowardice that keeps us from speaking our minds is as dangerous to this country as irresponsible talk. The right way is not always the popular and easy way. Standing for right when it is unpopular is a true test of moral character.

Aristotle:

Moral excellence comes about as a result of habit. We become just by doing just acts, temperate by doing temperate acts, brave by doing brave act.

Charles DuBois:

The important thing is this: To be able at any moment to sacrifice what we are for what we could become.

 

Clare Booth Luce:

Courage is the ladder on which all the other virtues mount.

Dorothy Thompson:

Only when we are no longer afraid do we begin to live

Eleanor Roosevelt:

You gain strength, courage, and confidence by every experience in which you really stop to look fear in the face. You must do the thing which you think you cannot do.

Mediators Give California Budget Crisis Advice

From the Sacramento Bee's Political Editor Amy Chance, Q&A: Mediators brainstorm on how to fix the state budget process

As California's longest budget stalemate in state history ground to a close, six professional mediators met with The Bee's Capitol Bureau last week to offer their thoughts on building a more functional state budget process.

Their advice in a nutshell: Improve lawmakers' communication skills, train them and their aides in mediation techniques, set up a structured negotiation process long before budget deadlines approach, agree on common goals, build trust by reaching incremental agreements – and don't expect perfection.

– Amy Chance, Bee Political Editor

For full Q&A, click here.

 

Blawg Review #178 Celebrates One Web Day

If you believe that law blogging is not only informative and entertaining, but capable of transforming our lives, our society, our culture and our legal system as well, run don't walk over to Peter Black's Freedom to Differ which not only rocks, it twitters, on One Web Day.  Surely this will be the BlawgReview of the year!

. . . .one recurring theme on this blog has always been a recognition of the value in a strong and free internet.  Therefore it is an honour to be able to host Blawg Review on Monday September 22, 2008, which is One Web Day 2008.  One Web Day was founded three years ago by Professor Susan Crawford from the University of Michigan, and she describes it as an "Earth Day for the internet".  The One Web Day website describes the day in the following terms:

The idea behind OneWebDay is to focus attention on a key internet value (this year, online participation in democracy), focus attention on local internet concerns (connectivity, censorship, individual skills), and create a global constituency that cares about protecting and defending the internet.  So, think of OneWebDay as an environmental movement for the Internet ecosystem. It’s a platform for people to educate and activate others about issues that are important for the Internet’s future.

If you'd like to host BlawgReview or submit to it, click here.  All future BlawgReview hosts please note -- THE BAR HAS BEEN RAISED!

Private Means for Public Justice? Professor Murray Responds

After generously commenting on my own comments to his article on the Privitization of Justice (any chance I can get permission to publish it here Professor?), Harvard Law School Professor Peter Murray left a comment which I've decided to bring "upstairs." 

Murray assures me he is no "enemy" of mediation, reminding me that behind every accusation (mine) is a cry for help (mine) which I sometimes think this entire blog-effort consists of.  In Jerry McGuire's words, help me help you.  Professor Murray has graciously offered to do so by joining the (soon to be formed) steering committee of the LegalTED Conference about which you'll all see much more after the election. 

Professor Murray's comment below.

Ms. Pynchon's comments on my article on privatization of civil justice are right on. Of course the situation is nuanced. Mediation is an excellent technique to facilitate settlement of many, perhaps a majority, of the disputes which end up in the civil courts. My point is that having this service provided by private professionals rather than public servants increases the likelihood of economic influences playing a larger role than they would in a purely public institution. And mediated results, while providing some attributes that litigants cannot obtain in public judgments, does not provide others, namely a kind of vindication and creation of public norms to govern others.

I would be delighted to join a Steering Committee to set up a conference on these issues.

Let the conversation continue!

 

More on Mediation's Corruption of Justice

I note today that yesterday's post was . . . . well . . . a little snippy.  

Now that I've managed to get my hands on a copy of Professor Murray's article on the privitization of justice (which I'll post as soon as someone gives me permission to do so) I have a few more observations that are more nuanced than my first reaction.

First, I note that much of Professor Murray's article focuses on arbitration agreements that are forced down the throats of consumers -- an injustice that is so far removed from one that might arise in a mediated settlement conference that I'd like to address it separately on another day.  

Second, I am not without criticism of court-annexed mediation practices -- those criticisms populate this blog in great number.  Nor am I naive or inexperienced enough to pretend that mediators do not effect party decisions even when they are represented by attorneys who are presumably mediation- and mediator-savvy.     

Nevertheless, re-reading Professor Murray's criticisms of mediation this morning, I am once again stuck by the number of untested assumptions upon which he bases his pretty radical suggestion that mediated settlement agreements be vetted by judicial officers. The major and minor premises of Professor Murray's accusation that mediation corrupts justice include the following:

  • there is only one set of "powerful repeat players" -- insurance companies -- who choose and use the services of mediators;
  • the other set of repeat players -- plaintiffs' personal injury and employment counsel -- are more or less universally poorly equipped to either influence the mediator or to protect their clients from mediator bias;
  • the easily influenced plaintiffs' bar, if not protected from mediator bias, will counsel their clients to voluntarily enter into sub-optimal settlement agreements that favor the interests of insurance carriers over those of their own clients';
  • there is such a thing as an "objectively bad settlement" that a judicial officer would be  equipped to detect and remedy; 
  • money paid to a "neutral" is the only pernicious influence on dispute outcome, as opposed to, say, racial, nationality, gender, and/or any other socio-economic differences between a judicial officer and a litigant or between the jury and a litigant; and,
  • judicial officers are not subject to the influence of the repeat attorney-players who appear before them and socialize with them at Bar Association and other events.

Of all of the assumptions requiring testing before we impose a supervisory judiciary upon mediators, the premise that an objective, measureably "reasonable" settlement of any dispute exists is the one that most requires addressing.  

Because I could write a book on this topic, let me just highlight some of the factors that would make third-party vetting of mediated settlement agreements difficult to impossible. 

  • money is not the only reason people file suit nor the only basis for their decision to settle it;
  • whether the litigation at issue is a $2500 slip and fall action between a local grocery store and its customer; or a billion dollar insurance coverage dispute between an insurance carrier and an oil company, the people and commercial players involved are at least as -- if not more -- concerned with injustices that the law does not address as they are with those that it can address;
  • though mediated settlement agreements are partially based upon the cost of further litigation and trial, on the one hand, and the probability of victory times the potential jury verdict on the other hand, they are also based on party needs, desires and fears that have nothing whatsoever to do with legal causes of action such as:
    • a corporation's fear that it will not be able to overcome jury bias against commercial enterprises, particularly if that enterprise is engaged in providing liability and/or property damage insurance to its customers;
    • the fear of individuals that they will not be able to overcome jury bias against any marker of their marginalization from the dominant culture such as color, gender, nationality, sexuality or religion;
    • the desire that one's opponent acknowledge responsibility for the role he/she/it played in the events giving rise to the dispute and for the actions taken to resolve it, many of which further inflame the parties' experience of injustice; 
    • party desires for revenge; and,
    • party tendencies to "read" and "spin" the dispute in a way that is favorable to him/her/it in all particulars -- misperceptions that are often corrected in the course of joint sessions between the parties who actually experienced the injury-causing event.

Examples of ways in which parties are able to resolve conflict in the context of their highly individual interests rather than the little buckets of rights and remedies into which we pour the facts of their dispute?

  • a physician gives his consent to settle a malpractice action when he realizes that the Plaintiff is not attempting to "hold him up" but genuinely experienced the breast examination he gave her as an assault;
  • the creditor agrees to settle for pennies on the dollar when convinced by evidence proffered during a confidential mediation session that the debtor would be bankrupted by any payment in excess of the offer (evidence not discoverable in litigation because it is not "relevant" to the causes of action alleged);
  • garment manufacturers settle acrimonious copyright infringement litigation after their counsel allow them to have a confidential mediation conversation which cannot be used in court against them during which they learn that they have more in common -- and more ways to advantage one another economically -- than they have to fight about;
  • claims adjuster is brought to tears -- and seeks greater settlement authority -- by a father's frank confession in a confidential mediation conversation of the guilt he carries for the loss of his child in an automobile accident caused by the  high speed blow-out of an allegedly defective tire; and,
  • family members not only settle their lawsuit but reconcile after years of self-imposed exile when they realize the "family" asset they've been fighting over is worth less to them than their love for one another. 

What I'd like Professor Murray and everyone who reads his article to understand is that we all share this justice problem.  The adjudication system is not working well for the people it was designed to serve.  The ADR options we've put in place to smooth out the rough edges of 18th century adversarial theory and practice are themselves insufficient to efficiently and fairly resolve 21st century conflicts.      

That's why I'm calling for a LegalTED Conference.  And if Professor Murray will forgive the snippiness of yesterday's post, I'd like him to be one of the members of  the Steering Committee.

Negotiating Politics: Mediators and Neutrality

Let's be clear about one thing.  Mediators are not human Switzerlands

We have opinions, often strong ones, about issues like the rule of law in America, negotiated resolutions to intractable conflicts, the proper role of force against another sovereign nation and whether torture is a tool Americans ought to be using in the name of national security.  

Because we mediators spend so much time listening to litigants' competing stories of right and wrong, I don't think I'm going out on a limb to say that we "get" the great gray expanses that separate fear from understanding, anger from compassion and "the truth" from one's subjective experience of it.

What motivated this post was a recent challenge to a mediator's "right" to express his political beliefs in a mediation forum.  "You're supposed to be neutral," said the challenger.  "It's wrong and unprofessional to express your political beliefs here."

As the Presidential election nears, I want to clarify my own views on mediation neutrality, particularly my belief that we mediators do and should leave our neutrality when we close the mediation room door. Neither I, nor this blog, is "neutral" about the upcoming election.  I am actively campaigning to elect Barack Obama because I believe he is best suited to withdraw our troops from Iraq, reconcile ourselves with the world community, respond to conflict as a negotiator rather than as a conquerer would, and restore the damage done by the Bush administration to the rule of law in America.  If I cannot say this because I am fearful of offending some of my readers or concerned that some potential clients will choose not to use my services, I would count myself unworthy of the freedoms fought for by those who came before us.    

What it Means to Be an ADR "Neutral"   

Though there is disagreement among scholars about the precise nature of "mediation neutrality," a recent article on the subject at BeyondIntractability.com expresses my own view.  That article quotes negotiation gurus Kevin Gibson, Leigh Thompson, and Max Bazerman on the three distinct types of neutrality that mediators can and do practice.    

    • Neutrality as impartiality, which holds that the mediator should be free of bias and should set aside his or her opinions, feelings, and agendas;

    • Neutrality as equidistance, which focuses on the idea that mediators should try to give equal consideration to each side; and, 

    • Neutrality as a practice in discourse.

These theorists believe, as do I, that it is part of a mediator's job to assist the parties in framing the problems and to lend guidance in expressing their tales of injustice to one another.   The mediator, say these scholars,  

gives each side a chance to talk about their positions and concerns, and then reframes these issues in a more neutral way so that parties are more likely to listen to and understand the other side's viewpoint[, t]hne helps the parties . . . explore settlement options and to move toward a solution that all can agree on.

Neutrality from this viewpoint "means that the mediator who facilitates this discussion should not have an interest in advancing the goals and positions of any party involved." 

Leaving One's Neutrality at the Mediation Room Door 

To help people resolve conflict requires a mediator to develop certain ways of listening; particular ways of communicating; and, specific ways of thinking about the malleability of "objective reality" in our subjectively experienced lives.  The practice of mediation is also revelatory of the raw power of people's affiliative desires -- their persistent urge to reconcile differences and settle accounts.  

When I leave the mediation room, I remain a mediator in spirit -- one who has seen the value of negotiated resolutions over the useof brute force and the power of collaboration over deference to an authoritarian decision-maker. 

I cannot express my preference for  Barack Obama any better than my friend and mentor Ken Cloke did in the electronic pages of mediate.com this spring.  As he concluded,

[c]apable international diplomacy requires open and committed listening, informal problem solving, prejudice reduction, collaborative negotiation, public dialogue, mediation, arbitration, ombudsmen’s offices, conflict resolution initiatives, and a panoply of proactive, adequately-funded resources that can be brought to bear on any problem. Positive examples can be found in every successful mediation and collaborative negotiation. Ideally, peace-making should receive the lion’s share of our national budget, allowing us to train every diplomat, and international representative in the most advanced mediation skills, include mediation in every treaty, and form an international corps of conflict resolvers, capable of building conflict resolution capacity globally, including in the US.

As mediators, we need to recognize that we also are global citizens, and responsible by virtue of our knowledge and experience for helping to save the planet. We need to weigh in on the important issues of the day that directly touch on our expertise, including not just who we negotiate with, but how we negotiate and why. Without it, Obama and the perspective he represents may succumb to those who think patriotism requires war and the slaughter of innocents. The time to speak up is now.

In electing a new President to lead us into a productive future, I believe, as do many of my mediator friends and colleagues, that Barack Obama is the clear choice.  If our political future is important to us, we will not hesitate to publicly lend him our support.

 

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. 

No.

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?

Negotiate Sobriety with the Labor Day Edition of Blawg Review # 175 at Austin DWI Lawyer

If you've never been asked to perform a field sobriety test, raise your hand.  That's what I thought.  Only Ken Adams whose Dilbert post was one of my week's favorites.

And for the three of you who have not yet seen this video of why not to come to court drunk and how not to respond to the Judge's questions in an intoxicated state, see this hilarious video. 

 

The rest of us -- most of us - by the grace of whatever Higher Power we invoke in our darker moments - have not needed the services of Jamie Spencer at the Austin DWI Lawyer Blog, host of the Labor Day Edition of Blawg Review #175.

This week, Jamie brings us, among other great posts of last week:

Res Ipsa's tutorial on FirefoxJordan Furlong’s radical suggestion that non-lawyers (ever heard of a "non-physician"?) can do a lot of good legal work without putting the rest of us out of work; Dan Hull's recommendation that first and second year associates be paid in experience rather than dollars (make law school one year and you're on Dan);  Lawrence Taylor's frightening image of cops with needles;  our sister blog's coverage of the recent FBI Blogger arrest and tips on negotiating with the FBI when they're on your doorstep; Susan Crawford's thoughts on nondiscriminatory Internet accessRandazza's trip down baby-boom lane in a "Fuck the Draft" leather jacket (yes, Gen X and Y, we'll be happy to receive your thank you notes for abolishing the draft now); Mark Hermann's post on enjoining a drug companies to give patients access to unapproved, experimental drugs; and much, much more. 

Check Blawg Review for submission guidelines to host Legal Literacy, a blog I've never visited but will now add to my Google reader as a good source for material on its topic -- building bridges between business and the law.  

Finally, my best field sobriety test anecdote from the police report:

Police officer:  Please recite the alphabet backwards.

Driver: (laughing)  Are you kidding?  I can't even do that when I'm sober!

Here's the web page for The Other Bar for any attorney who believes he or she may have just a tiny problem, perhaps a small issue, with drugs or alcohol.  There's no day quite like the day you finally realize that there's a single, relatively simple solution to an enormous number of personal and professional problems.

Step One:  We admitted we were powerless over alcohol—that our lives had become unmanageable.

Optimistic Heart and Pessimistic Mind: Obama's Nomination

Although I do I try to steer clear of politics, I simply cannot resist during this compelling political week and particularly on this historic day. 

F. Scott Fitzgerald said that the mark of a first rate intelligence is the ability to simultaneously hold two contradictory ideas in your mind.  I aspire to having a first rate intelligence.  Particularly today. 

I do not support Obama because he is bi-racial.  Nor did I support Hillary because she was a woman.  I'm an old fashioned party Democrat.  The Republicans could nominate a gay disabled mixed "race" black and asian orphan from Spanish Harlem and I would not vote for him or her. 

I nevertheless pause the Negotiation Blog this evening to celebrate the great effort -- the individual and collective acts of heroism as well as the small daily tender merices -- that have moved us so far beyond the society in which I was raised -- one in which Southern de jure and the Northern de facto segregation was an accepted fact -- never to be altered.  

I was proud of all of us and of our legal system just a couple of weeks ago when the Bratz/MGA jury "outed" a prejudiced member of the panel who spoke ill of Iranians as a group in a case in which one of the defendants was of Persian ancestry. 

And I'm proud again today.  

That's it.  An executive summary of my optimistic heart.   Below, the pessimism that keeps me from walking off cliffs while gazing at the clouds.

I give you from Frank Pasquale's post at Concurring Opinions today -- Inspiration and Realism in Denver -- the pessimistic part from Patricia J. Williams.    

But there are many signs that the struggle is only beginning. Jacob Weisberg canvasses the lingering legacy of racism in the US, and Patricia J. Williams puts it in vivid detail:

[W]hile some of us are listening to the soothing tones of National Public Radio, a much larger audience—and larger by millions—is listening to Rush Limbaugh singing those subterranean fears of “Barack, the magic Negro,” or to radio shock jocks cackling about “jigaboos,” or to Pat Buchanan fretting that Obama is a radical, unpatriotic, extremist “elitist” to whom the liberal media hands a pass as a “special-ed,” “affirmative-action” candidate. Not that any of them mean it in a racist way. Hey, lighten up. Don’t you have a sense of humor?
 

We can continue to make this union more perfect. 

 

Clinton Speaks on 88th Anniversary of Women's Suffrage

(Right, women protesting, 1912.  My own grandmother was 12 years old at the time this photo was taken.  By the time she was old enough to vote in 1921, she could vote)

Why women's voting rights and Hillary Clinton's DNC speech on a negotiation blog?  Several reasons. 

First, of course, is that fact that your blog author is a mid-20th Century woman who participated in the feminist movement in the early 1970's

I'm proud of the work we did at San Diego's Center for Women's Studies and Services (now the Center for Community Solutions). 

We trained women in the skills necessary to pass apprenticeship tests so they could gain entry into the skilled trades.  We opened the way for women to work at one of San Diego's largest employers -- National Steel and Shipbuilding.  We helped all women, including those who'd spent time in prison and battered women's shelters, find employment to help them break a cycle of poverty or move from the lower to middle classes by their own efforts and to provide better lives for their children.  

We were the so-called Second Wave women's movement, seeking and achieving the same education, training, work and respect that were only a white American man's entitlement when I was born in 1952.   

If you want to know what it was like for women when I was ten years old (1962) and my own divorced and single mother was working for $1.29 an hour selling bags and hoisery at a Leeds shoe store in San Diego, watch a single episode of Mad Men.  Follow "Peggy" who is opening professional doors long before there were any ceilings in men's rooms to crack.  Watch how women were treated and how little they thought of themselves.  Think of the way in which we were squandering our human resources by relegating my mother, your grandmother, to just a few honorable but limiting professions -- nurse, secretary, teacher.

(yes, this is the same typewriter I used in the typing pool at Arthur, Dry & Kalish in mid-town Manhattan in 1975; we had one woman attorney in the firm when I joined; she was in her 50's and was still an associate in trusts and estates)

The second reason I'm celebrating women's suffrage and Hillary's candidacy today is because you'll be negotiating with women.  We haven't shattered that glass ceiling but we've nearly done so.  You'll want to understand what motivates us, how we talk with you and how we talk among ourselves.  You'll want to know what feels offensive to us and what is respectful.  Most negotiation texts tell women how to negotiate like men or with men.  So late in the day, it's surprising that I'm unable to find any articles on what men should understand when negotiating with a woman.  

To negotiate our way into a better world in the 21st century, we'll need to understand one another better and learn to drop all of our stereotypes about men or women, black or white, Muslim or Christian.  

So let's all celebrate universal suffrage today.  Self-determination -- which is what mediation is all about -- democracy  liberty  justice.

Below, for your viewing pleasure, 1960.  

 

Negotiating the Political Conventions: Persuasive Argumentation

Everyone who's interested in the state of the union and its internaional relationships should be glued to the Democratic National Convention tonight and the Republican National Convention next week.

They are negotiating the nation's future.

Let's listen to the speakers with a critical mind and an open heart.  To help us listen with a critical mind, I'm linking my readers to the Owl at Purdue on Persuasive Argumentation. 

The Barack campaign has been built on narrative or, as the Owl teaches us, pathos, a word that has come to mean sentimental but simply means appealing "to an audience's needs, values and emotional sensibilities." 

As the Owl Instructs, 

[e]motional appeals can use sources such as interviews and individual stories to paint a more legitimate and moving picture of reality or illuminate the truth. For example, telling the story of a single child who has been abused may make for a more persuasive argument than simply the number of children abused each year because it would give a human face to the numbers. Only use an emotional appeal if it truly supports the claim you are making, not as a way to distract from the real issues of debate. An argument should never use emotion to misrepresent the topic or frighten people.

Michele Obama is speaking now, telling the story of her childhood; her parents' values and Barack's political journey.  It's good. 

"Isn't that the great American story?" she asks half way through her speech. 

Pathos.

 

 

Drug and Device Law Blog Achieves Enlightenment

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

We admit it: We're as crazy as the next guy.

Heck -- given that we spend nights and weekends feeding this blog, there's a pretty strong argument that we're crazier than the next guy.

We fret about whether each and every one of the ten million documents has been reviewed and coded correctly, and we change commas into dashes -- and back again -- in footnote nine on page thirty of the brief.

We believe that our clients are more likely to win if we do our jobs right, and we devote an awful lot of energy to that cause.

And then the system kicks in.

Courts make utterly unpredictable procedural rulings that dramatically change the value of our cases. The MDL Panel, for example, may decide to consolidate a set of cases in a jurisdiction that previously had nothing to do with the litigation -- like sending Breast Implants to Alabama or Albuterol to Wyoming -- and all of a sudden an unanticipated body of local appellate law governs your federal issues, and your cases are either won or lost for reasons beyond your control. (See In re Korean Airlines, 829 F.2d 1171 (D.C. Cir. 1987).)

Or you tee up a legal issue in front of a judge, and you can't predict the result, because the cases are breaking fifty/fifty in that area. The judge might grant summary judgment, or he might deny it. Or, as happened in Tucker v. SmithKline Beecham recently, he might grant the motion in September and reconsider the following July. Your lawyering skills presumably had nothing to do with it.

One judge grants a Daubert motion, holding that the evidence linking Accutane to inflammatory bowel disease is junk science, inadmissible in a court of law. But, a couple of weeks earlier, a New Jersey jury had awarded millions of dollars of damages based on that same evidence.

One judge holds that a claim accrued on the day the plaintiff was diagnosed with a disease, and another holds that the identical claim -- on identical facts -- didn't accrue until the plaintiff "discovered" his claim based on press coverage or an article in the scientific literature. The statute of limitations bars the first claim; the second one goes forward.

You're a hero or a goat, and you had nothing to do with it.

One judge holds that the warnings on your client's product are adequate as a matter of law. Another holds that the question of adequacy is one of fact, to be decided by a jury.

One jury then finds in your client's favor, but a second jury -- looking at precisely the same warnings -- finds the opposite.

We're not complaining about this, really.

They're our lives, after all, and we picked this profession, and it can be awfully exciting and challenging and, yes, fun.

But doesn't it sometimes feel a tad random?

More to the point, our system sinks tens of millions of dollars into massive discovery to ensure that every last fact is known -- presumably in pursuit of an accurate result. But those carefully honed inputs then yield results that are both unpredictable and flatly inconsistent with each other (which means that at least one was wrong).

If the system ultimately values cases wildly inconsistently, just why does society invest massive resources into trying to ensure accuracy? Aren't there better things to do with our collective wealth?

But we digress.

We have to go back to scrutinizing the footnotes in all of the drug and device precedents, to pry out of them every last ounce of utility for our clients.

If we didn't, then a brief might not be perfect, and we might be more likely to lose.

Mediator Meltdown and Dancing in the Streets

There's now a genuine reason for summertime dancing in the streets.  Charles Fincher of Law Comix has started a new blog here!!

 

Today's ADR offering below:

Why hasn’t the American Lawyer syndicated Fincher’s work for a nice little bundle of cash?

Hey!! AmLaw Editor!! Are you seeing these cartoons? Are you hearing the laughter in the hallways breaking the stress of daily practice? Are you understanding how many more pairs of eyes Fincher's work will deliver to you and your advertisers?  

Maybe you need to see this one:

Maybe Fincher just won't let his work appear there?  Or is he holding out for syndication in the New York Times?  The Wall Street Journal?  My small reader pool LOVES these and now they can subscribe via RSS feed over at the LawComix Blog

Thanks Charles!

 

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)

Joint Sessions and Settlement -- Trick or Treat?

In the actual news (the New York Times) are the results of a new study finding that

most . . . plaintiffs who decided to pass up a settlement offer and went to trial ended up getting less money than if they had taken that offer . . . 

Plaintiffs, however, are not the only ones who made the "wrong" decision -- defendants were mistaken in 24% of the cases.  Defense errors, however, were far more costly. 

getting it wrong cost plaintiffs . . . about $43,000 . . . For defendants, who were less often wrong about going to trial, the cost was . . . . $1.1 million.  

What to do?

It's no answer to say " take the last best settlement offer,"  though one party or the other will 80 to 90 percent of the time and often on the courthouse steps, i.e., at the point of a gun when decision-making is at its most flawed. 

Nor, I must concede, is the answer simply mediation, which is, after all, pretty much a pig in a poke.  Why?  Because mediation practice ranges all the way from

  • a retired judge bullying an "injured, situationally-weakened client with no negotiation skills" (cf. Max Kennerly's recent post at  the Litigation and Trial Blog) or disrespecting a marginalized defendant (cf. Dr. Ghaderi)  
  • to a mediator who knows only how to repeat "trial is expensive and the result uncertain"
  • to a settlement officer who does nothing more than shuttle numbers back and forth between two rooms
  • to a "transformative" mediator who allows the parties free reign to "vent" their "feelings" without helping them get a grip on the very real and serious consequences of the negotiated resolution that has been proposed to them.  

A friend of mine who is a psychoanalyst once told me that patients get better in therapy despite their analysts' "technique."  It's the relationship that's curative, she told me.  A patient in need will find the water of healing in the desert of a therapist's theory.  If the same can be said of mediation -- that it's the relationship that's curative -- the question that naturally arises is whose relationship?  

Why the disputants of course, which is why I recommend joint sessions.  Not stylized adversarial position-based, chest-thumping, shoe-banging joint sessions ("we will bury you") but interest-based, inquisitive, collaborative, reality-testing mediator-and-attorney directed negotiation sessions. 

Before talking about joint sessions, however, let's look at the problem every litigator faces when advising his/her client whether to accept, make, or reject a settlement offer.  

The Problem in Bullet-Points

  • we can't predict the future (darn)
  • we think so much like lawyers that we've fogotten how to talk to juries like normal people (cf. Gerry Spence)
  • too few of us get to try enough cases to be any good at predicting results based on experience
  • we're subject to all the cognitive biases every other human being is, including,
    • self-serving bias -- the tendency to evaluate ambiguous information in a way that "fits" our existing view of the world
    • egocentric bias --  recalling the past in a self-serving manner
    • hind-sight bias -- filtering memory of past events through present knowledge
    • bias blind spot -- the tendency not to compensate for our biases 
    • optimism bias — the systematic tendency to be over-optimistic about the outcome of planned actions
    • overconfidence effect -- when we say we're 99% certain, we're wrong 40% of the time
    •  fundamental attribution error -- the tendency to over-emphasize personality-based explanations for behaviors observed in others while under-emphasizing the role and power of situational influences and reversing this error when the behavior at issue is our own.
    • Just-world phenomenon — the tendency for people to believe that the world is "just" and therefore people "get what they deserve"
  • We get so stuck in our positions that we fail to ask diagnostic questions that have been proven to result in significantly better negotiated outcomes for both parties.
  • We're so averse to leaving money on the table that we walk away from negotiations without having learned that our respective "bottom lines" actually overlap

Joint Sessions

My friend Judge Alexander Williams -- the soon to retire full-time settlement Judge in the downtown Los Angeles Superior Court -- has the following poster hanging in his jury room.

The surface is what the lawyers know.

The depth and breath; the texture and particularity; the details of the dispute and the desire for justice that exists on both sides, is known only to the litigants.  And they haven't (and won't) tell you what they know or want.

Why you should never leave a mediation or settlement conference without letting a skilled mediator facilitate a joint session in which the litigants can explore their joint interests and conflicting goals will be the subject of my next post.

See also Nuts and Boalts (You Had Me at Your Initial Offer) which directs us to Prospect Theory as a good explanation for our settlement errors.

It's Never Just About Money: The Wilson Sonsini Settlement

Big or small, litigation is never just about money.  Nor is settlement just about the strength of the parties legal positions or even the relevant facts.  Here, as reported by the Wall Street Journal Law Blog in Is It a Settlement? Wilson Pays Brocade to be Released From Backdating, its also about relationship and cooperation and respect.  Who knew?

So why would the S[pecial Litigation Committee] release [Wilson Sonsini] and Larry Sonsini? The SLC wrote that it weighed the opinion of a legal ethics expert as well as testimony and documents related to Sonsini and the firm’s roles at Brocade. It also listened to Sonsini and his firm’s “contentions that Brocade employees misled WSGR about stock-option grants” and that the firm had negotiated a good settlement with the SEC and helped avoid DOJ action against Brocade. The committee also considered the firm’s longstanding relationship with Brocade and the firm’s “willingness” to help the company resolve any “outstanding questions” about the backdating.

For the entire WSJ Law Blog post, click here.

Below -- Annie Lennox' Money Can't Buy It -- with a little Demi Moore Striptease for our gentlemen readers' mid-week enjoyment (with apologies to the puritanical and those who simply can't abide Demi Moore).

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.

And then the juror applauded . . . .

Thanks to Anne Reed at Deliberations for following California case law on juror misconduct and bias.  I won't steal her thunder -- click here for What is the Sound of One Juror Clapping?

I will, however, provide the appellate court's comment on human fallability -- a recognition we all need to carry into any settlement conference or mediation with us.  Vast conspiracies are the rare one-off.  As Al Gore once said -- we think we can evacuate the planet but not New Orleans?  It's our human capacity for error coupled with our human tendency to search the field for someone to blame that accounts for most unresolved conflict.  Here's the local Met News article on the opinion and the appellate opinion itself (from our own Second District here in Los Angeles): 

"The jury system is fundamentally human, which is both a strength and a weakness. . . . Jurors are not automatons. They are imbued with human frailities as well as virtues. If the system is to function at all, we must tolerate a certain amount of imperfection short of actual bias. To demand theoretical perfection from every juror during the course of a trial is unrealistic."

The Comforts of Litigation

I am writing an appellate brief.  I do this from time to time to keep my hand in the game.  I also do it because . . . . .  well, it's a heckuva lot easier to make money as a lawyer than it is to make money as a mediator.

Just saying.

Not only that.  Litigation is a heckuva lot more comfortable than mediation. 

Why?

  • I'm right

          Alone in my office with Lexis/Nexis, Westlaw, and the cold appellate record I am right about my client's position, its version of the facts, and its read of the law.  I've read the other side's arguments and they're . . . wrong, wrong wrong.  They mis-state the factual record, cite irrelevant case law, construe the contract contrary to its plain meaning and misapply its provisions under their own recitation of the facts.  They elide, evade, fail to answer the hard questions, and mislead the court.    

  • I'm on the side of truth, justice and the American way 

          I'm not only right.  I'm righteously right.  With this brief, I will correct every injustice my client has suffered, justify every humiliation I have suffered at the hands of the trial judge, vindicate myself for all of the times my client has doubted my first [perfectly right and righteous] evaluation of the merits of its case.  For this moment, as I sit at my computer alone, I live in a country and work in a system in which compromise is not necessary; loss need never be suffered; my client can be made "whole."

  • The chaos of community is orderly and predictable 

          There is precedent for this messy business problem.  The courts have laid out the grid.  All I have to do is meet the 3 tests, satisfy the 4 conditions, perch the right facts on each of the 5 prongs, prove the elements of my rectitude.  All of my versions of the facts being true, true, true, there is only one right and predictable outcome possible.  It is the one I have always said was right.  Chaos will be vanquished.  Order restored.  

  • I do not have to suffer loss

          Until the last appeal has been made to the highest court in the land, neither I nor my client need suffer loss.  We do not need to experience injustice; make an effort to make peace with our neighbors; accept the possibility that our memories are spotty; our analysis subject to criticism; our behavior less than laudatory; our reverses irreversible. 

  • As long as I am writing this brief, the world conforms to my vision.

          As long as I am writing, I am not only potentially victorious, I live in a world of my own choosing, that conforms to my sense of the way things ought to be.  The characters in my world are good or evil.  There is no middle ground.  They are telling the truth or they are lying.  They live their lives by right principle or they are scoundrels whose evil deeds will surely be their undoing.  

  • I am innocent again

          As long as this appeal lasts, I am a child again.  It is 1962 and I am in the fifth grade.  The Lone Ranger will always ride to the rescue. I do not yet have to worry about Tonto's place in the social and economic order of the day.  The cattle rustlers will be punished.  The hard working ranchers' goods will be returned.  Honor will be vindicated.  The bandits will be put behind bars or buried in their graves.  

 A fiery horse with the speed of light, a cloud of dust and a hearty "Hi Ho Silver!" The Lone Ranger.  With his faithful Indian companion Tonto, the daring and resourceful masked rider of the plains, led the fight for law and order in the early west. Return with us now to those thrilling days of yesteryear. The Lone Ranger rides again!

Dispute Resolution by Old White Men: Gender Prejudice Sinks Abriration Award

O.K., the subject line was meant to shock you and to draw criticism for what I will admit is my greatest unresolved prejudicial default -- that white men over 65 who didn't participate in the  American cultural revolution of the late nineteen sixties and early 1970's did not and will never "get it." 

The Court opinion that triggered the headline and the recollections below is here.  The "executive summary" is as follows:  One of three arbitrators who cast the deciding vote on a plastic surgery malpractice case

  • failed to disclose that he'd been censured while on the bench for making "sexually suggestive remarks to and asked sexually explicit questions of female staff members; referred to a staff member using crude and demeaning names and descriptions and an ethnic slur; referred to a fellow jurist’s physical attributes in a demeaning manner; and mailed a sexually suggestive postcard to a staff member addressed to her at the courthouse.” 
  • The majority arbitrators deciding the malpractice case stated that the female claimant was not credible because the "severity of the symptoms to which she testified went beyond what she described to her doctors, adding, “This claimant has had five prior facial surgeries.”
  • Similarly, in summarizing the claimant's expert’s testimony, these arbitrators noted, “One thing probably everyone can agree upon, after five facial surgeries, [claimant] could have done without a sixth one.”

Back to My Own History as Descriptive of --  But No Excuse for -- My Own Biases

We all have biases that we hide from others and some that we successfully hide from ourselves.  

We live, I'm told, in a 200 year present.  That means that my early life affects your life today.  After all, I'm an old white woman, about whom you may well have biases.  If I sit on your arbitration panel, you're going to want to understand those biases.  That's why I'm giving you a bullet-pointed history of what the world was like when I was forming my essential character at 17 years of age in 1969.

  • the "want-ads" in the classified section of every major newspaper in American were categorized by gender -- "help wanted - women" and "help wanted - men"
  • in my senior year in high school, my entire class took "preference aptitude" tests to give us an idea of what our future careers might look like -- the girls were given "pink" tests and the boys "blue" tests -- had I shown an aptitude for, say, math (and no I didn't) I would have been steered into nursing; my male friends into "medicine" as physicians.
  • women were subject of explicit ridicule in magazine and newspaper cartoons -- we were airheads, bimbos, bad drivers, harpies or -- the "new" stereotype -- communist-longhair-folk-singing-America-hating-hippie-riot-inciting-"girls" who were alternately "men hating" or -- an old phrase -- "of easy virtue."

  • it wasn't until the 1970's, when I was in college and already planning a career teaching English (after all, nursing required math-skills) that the idea of a career in the law for women as anything other than a secretary began to seem possible.
  • when I was in high school
  • when I  was practicing law (these all from the early '80s)
    • a partner for whom I worked told me that women weren't permitted at the local "men's only" club because "we don't want our wives there."
    • a Judge required me to identify myself as Mrs. or Miss and when I said I didn't think it necessary to identify myself by my marital status, asked "what are you some kind of [women's] libber?" (yes, I lost the motion)
    • I was advised by the few women attorneys senior to me not to get pregnant until after I made partner
    • secretaries were allowed to refuse to be assigned to a woman attorney
    • the first woman to make partner at my law firm was quite openly referred to as "the first muff partner" by her colleagues 
    • on the other hand, when a client said (of my assignment to its case) that the company did not want to be represented by a "girl," my partner told the client "then you don't want this firm representing you because she's the best associate I have"

I promise to work on my prejudices.  And I advise anyone who is about to appear before any dispute resolver -- be that person male, female, white, black, young or old, GOOGLE THEM FIRST!

The Star Spangled Blawg Review Asks About Justice

A tremendous effort accomplished today by Blawg Review # 167 at E-Commerce Law, bringing us at least one post from blogs in all 50 states organized by the date of their entry into the union.  Blogger Jonathan Frieden must have devoted much of any lawyer's cherished 3-day week-end to this effort, for which all legal bloggers should give him a hearty round of applause.

On the ADR front,  Jonathan gives us Oregon, admitted on February 14 (how very Oregonian) 1859 and The National Arbitration Forum Blog entry  Americans Increasingly Denied Access to Justice.  Here's the attention-grabbing lede.  Click on the link for the full post.

The latest California Bar Journal contains an alarming and attention-grabbing piece from the Bar President. In The neglected middle class, Jeff Bleich explained how hard it has become for the hardworking American to get their day in court.

"[O]ur legal system is increasingly serving only the wealthiest interests or the very poorest ones: those who have great resources and those who are lucky enough to get help through legal aid, despite the serious underfunding of that system."

And while we're thinking of the flag and all things  patriotic, here are a few random links on patriotism and justice.

Obama and the Flag (pin) from the Los Angeles Times.

Patriotism, Irony and Liberty from Sinners in the Hands of an Angry Blog.

Truth, Justice and the American Way from the Long View

Patriotism:  Not Just for Lapels at Abundance of Absurdities

Patriotism and Michelle Obama: A 4th of July Reflection from Anne-Marie Slaughter (Huffington Post)

Sunday Times Report: Truth Commissions and Negotiating with the Enemy

(image from Art Throb featuring the work of South African artist William Kentridge)

Just in case you're out on the beach, in the mountains, or spending a lazy July 4th week-end around your best friends' swimming pool, here are the ADR-worthy articles you've likely missed in today's Sunday New York Times.

From the Op-Ed page, Nicholas Kristof recommends an American "Truth Commission" for our treatment of "detainees."  Excerpt and link below:

When a distinguished American military commander accuses the United States of committing war crimes in its handling of detainees, you know that we need a new way forward. 

“There is no longer any doubt as to whether the current administration has committed war crimes,” Antonio Taguba, the retired major general who investigated abuses in Iraq, declares in a powerful new report on American torture from Physicians for Human Rights. “The only question that remains to be answered is whether those who ordered the use of torture will be held to account.”

The first step of accountability isn’t prosecutions. Rather, we need a national Truth Commission to lead a process of soul searching and national cleansing.

That was what South Africa did after apartheid, with its Truth and Reconciliation Commission, and it is what the United States did with the Kerner Commission on race and the 1980s commission that examined the internment of Japanese-Americans during World War II.

Today, we need a similar Truth Commission, with subpoena power, to investigate the abuses in the aftermath of 9/11.

We already know that the United States government has kept Nelson Mandela on a terrorism watch list and that the U.S. military taught interrogation techniques borrowed verbatim from records of Chinese methods used to break American prisoners in the Korean War — even though we knew that these torture techniques produced false confessions.

It’s a national disgrace that more than 100 inmates have died in American custody in Afghanistan, Iraq and Guantánamo. After two Afghan inmates were beaten to death by American soldiers, the American military investigator found that one of the men’s legs had been “pulpified.”

Read the rest of the column here, remembering that we're only as sick as our secrets.  For more on Truth Commissions, click here, here and here.

"We don't negotiate with terrorists or enemy states."  Really?  In Speaking with the Enemy, an NYT multi-media page gives a sampling of how modern American Presidents have made contact with our adversaries.

Here's the good news from the accompanying article, For Some Foes the Chat.  For Some the Cold Shoulder.

[T]he reality is that more times than not, American presidents sweep into office proclaiming black-and-white absolutes about their foes, and end up leaving office having used everything from secret talks and back-channel negotiations to full-fledged summit meetings.

Read the full article here.

While others surf and bar-b-que, I'm using the week-end to post the Summer 2008 issue of the r.kv.r.y. quarterly literary journal.  Here's the proof of the new cover!  A labor of love (and proof of my husband's enduring patience -- thanks honey! for putting up with my 10,000 projects). 

Celebrating the Fourth of July in the Blogosphere

(Flag courtesy of the Tax Law Forum via photobucket)

First, thanks to A Man Among Mommies for copying the entire text of the Declaration of Independence which is must-reading in any year, let alone an election year.  I give you only the intro here:

In CONGRESS, July 4, 1776.
The unanimous Declaration of the thirteen united States of America,

When in the course of human Events, it becomes necessary for one People to dissolve the Political Bands which have connected them with another, and to assume among the Powers of the Earth, the separate and equal Station to which the Laws of Nature and of Nature’s God entitle them, a decent Respect to the Opinions of Mankind requires that they should declare the causes which impel them to the Separation.

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. . . .  

That whenever any Form of Government becomes destructive of these Ends, it is in the 

Continue reading here.  And check out Blawg Review for a moving video on the writing of the Declaration (mentioning the original denunciation of the slave trade contained in the first draft).

If you'd like to know why you have the day off from work today, take a look at Inflexion Advisor's July fourth post here.

The Pensacola Beach Blog celebrates the Fourth of July by warning us about the perils of the proposed FISA Act here. (hint:  our Constitutional Rights are once again at stake)

The Law Librarian Blog has recommended reading for the Fourth ('natch)

Rebooting Democracy: Ideas for Redesigning American Democracy for the Internet Age, an anthology of 44 relatively short essays, was released at Rebooting the System, the fifth annual conference sponsored by the Personal Democracy Forum.

Blogging the Boys celebrates the fourth with a short gratitude list to former civilizations (and some still chugging ahead) for our liberties (with a photo of a type never seen here that will warm the hearts of my male readers).

Comparative Quotes on Tyranny (Quotabull) at Scholars and Rogues

The Blog of Rights celebrates by giving us the ACLU's definition of patriotism

Patriotism doesn’t mean blindly following the will of a few. It means being part of an informed and involved citizenry. It means exercising dissent by speaking out when you don’t believe in what is happening. It means being constantly vigilant in the protection of civil liberties, and holding government officials accountable when they take aim at our freedoms. And above all, patriotism means loving this country so much that we will fight to protect the things that make it great for generations to come.

Underdog weighs in on the Continuing Struggle for Civil Liberties here.

By now, the United States government thrives on control backed by force, the threat of force, and punishment, not only through military might, but also through an overgrown and overbearing criminal "justice" system of police, laws, money, prosecutors, courts, and prisons; an overgrown national security system that leaves us little privacy, security, or sufficient liberty; and an overgrown spying and "intelligence" system.

Fortunately, a strong movement continues in favor of civil liberties and government by the governed rather than the reverse. The movement is led by the American Civil Liberties Union, fearless and skilled criminal defense and Constitutional lawyers, the drug legalization movement, and the list goes on.


July 4 is meaningless without an ongoing struggle for civil liberties. Now is the time to join that struggle.

Even on a National holiday, one legal blogger is still thinking about the 46.6 Million Reasons to Think about Settlement (the Ohio Employers' Law blog). 

And finally, the "out of the box" thinking we've come to expect from Conflict Zen -- the Declaration of Interdependence video.

HAPPY FOURTH OF JULY TO ALL MY READERS AND THEIR READERS AND THEIR READERS' READERS!! 

Whatever our political disputes, we Americans make the effort to be guided by the values of  Jefferson's Declaration.  

Collaborative Negotiation from Gini Nelson and Professor John Lande with Comment from Your California Mediator

Gini Nelson of Engaging Conflicts ran a six-part series recently on "Adding Cooperative Practice to the ADR Toolkit."  Her final part in this series -- linked supra -- is the final entry of Guest Blogger Law Professor John Lande’s posts.  Linked here is his article The Promise and Perils of Collaborative Law -- which is also linked in Gini's blog with her comments here.

Before you run over to Gini's site to read Lande's excellent post or his great article, I'd like to simply bullet-point some observations based upon my four-years of full-time mediation and arbitration practice.

  • when I co-arbitrate with some of the best commercial arbitrators in the business -- these are Ivy League lawyers with many decades of experience representing Fortune 50 Companies in AmLaw 100 Law Firms, the ultimate decision changes many times during the course of deliberations and almost always could go either way.
  • having spent a considerable time in the Los Angeles Complex Court as an experienced commercial litigator "externing" for credit to earn my LL.M in '06, I can tell you that the deliberations in chambers of these highly respected jurists is not much different that those in which I have engaged when sitting on an arbitration panel

The take away?  No matter who is hearing your case, your chances of winning are 50-50.  Flip a coin.  Think this doesn't apply to you?  I have arbitrated cases being handled by the top ten law firms in the country.  I have seen those same type of firms litigate and try cases in the Complex Court.  It's 50-50 friends.

Below -- observations on how you and your mediator can be "happy together."  (And the Turtles from 1967 so that you can have a little musical accompaniment to this post) 

Observations of End-Game Litigation from a Mediator's and Settlement Consultant's Perspective.

Despite years of inquiry and the review of millions of documents, sophisticated parties (Fortune 50) represented by dynamite law firms (AmLaw 50) haven't yet learned the most fundamental information about the following matters -- most of which are more important to the settlement of the case than the cost-detriment-benefit-position-driven-chance-of-victory settlement posture:

  • what are the hidden interests that your opponent must satisfy before accepting a settlement that is below the number he once told his client should never under any circumstances be accepted?
  • what are the hidden constraints upon your opponent's authority that must be removed before he can pay more money than he once told his client should never under any circumstances be paid?
  • why was this litigation initiated in the first instance?
  • who gave the litigation the "green light"?
  • what are the probable consequences to the continued financial security of the person who gave the litigation the "green light" in the first place or who has authorized the defense bills for the last 5, 10, or 15 years?
  • is the person who green-lighted the litigation in the first place still employed by your client?
  • what are the probable consequences to the financial well-being of the corporation who must pay more than it wishes to pay or accept less than it wishes to recover?
  • Who is the most frightened person in the room, i.e., whose hide might be sacrificed if the litigation settles for more/less than predicted, or, often worse, actually goes to trial.

There are so many of these settlement-driving and -inhibiting questions that only my own personal time contraints -- I must start my day's work -- make me stop listing them.  

Let me conclude with this however.  Never underestimate your client's reluctance to settle the case on terms that seem unjust to it.  This is the most important function a mediator can play on the day of settlement -- explaining justice issues to the clients and helping the clients de-demonize their opponent -- which occurs most easily in JOINT SESSION yet which most litigators would rather have their teeth drilled than attend.

O.K. I can't conclude without saying this.  If you have the courage to try a case, you possess the cajones to participate in at least one joint session to help the parties come to terms with the justice issues -- which are often driven by the conclusion, affirmed over and over again in the course of the litigation, that their opponent is an evil, mendacious, grasping, greedy, malicious, duplicious lying liar with his pants on fire.  

This is almost never true.  The parties on both sides almost always possess equal parts of good and bad, just like the rest of us. 

Let your parties re-adjust their perception of "the enemy" in joint session.  I can almost guarantee you that a conversation will ensue in which the parties spontaneously tell each other what interests they really need to satisfy to settle and what constraints they are really working under.  And I don't guarantee a lot of things. 

Why can't I do this for the parties?

Because often neither side will disclose these matters to me because they don't trust that I won't use that information to help settle the case and because the parties won't believe what I say about their opposition in the first place (obviously, they've pulled the wool over my eyes). 

"How do you know he's not lying?"  is a question mediators are asked on a regular basis.  My answer is "I have no idea."  But if you let your client talk to the opposition -- with any constraints, restrictions and control you wish to retain -- which I can orchestrate for you -- your client will be able to elicit the details that give any story a ring of truth (or falsity) while at the same time watching the body language that constitutes between 60 and 80% of all communication.

Would you try a case without 80% of the information you need?  Of course not!  And yet you're content to avoid a joint session when that session could provide you with between 60 and 80% more information than you had when you arrived on the morning of the mediation or settlement conference?

Suspend your disbelief in the mediator ("who-will-do-anything-to-settle-the-case") for just a couple of minutes.  Remember that we're in possession of confidential information we cannot divulge to you.  

Take our lead.  And if you don't trust us to do so, for heaven's sake find a mediator you can trust!

The Right to Trial By Jury and Mediation as Its Alternative

There is no principle I hold more dear than the rule of law.  I've written before about some critics' contention that our own government has turned away from the rule of law here.  Some of those  critics go so far as to accuse our government of waging war on the rule of law -- calling its strategy "lawfare."

I've also written before about critcisms levelled against ADR practices as threats to the principle that all men, women, and institutions will be judged by the same gender-blind, color-blind, nationality-blind, disability-blind (etc.) rules of law

There are those who believe that mediation -- which is practiced without rules, best practices or even a common theoretical basis --  permits mediators -- who are primarily over-40 white men -- to unfairly pressure litigants to settle their lawsuits against their better judgment.  There are further charges that mediation re-injects favortism and prejudice back into a system that spent most of the latter half of the 20th century ridding itself of.  

I take these criticisms very very seriously, repeating throughout any mediation session my opening assertion that my role is to present the parties with choices and to faciliate a settlement if they believe it may be better alternative to continued litigation, not to hustle them away from their right to a jury trial.  

I would be far more successful in being "neutral" about proceeding to a jury trial if there were an easier, less costly, and speedier way to bring a dispute before a jury.  We have, lamentably, permitted our cherished rule of law to become so procedurally encrusted that it sometimes seems like no option at all -- at least not an option available to all but the wealthy or those represented by lawyers willing to accept a contingent fee.

All of this troubles me.  I invite comment at the same time that I provide the thoughts of some of our greatest statesmen and jurists about the right to trial by jury.      

George Washington

"There was not a member of the Constitutional Convention who had the least objection to what is contended for by the advocates for a Bill of Rights and trial by jury." (1788)

John Adams 


"Representative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle and fed and clothed like swine and hounds." (1774)

Thomas Jefferson 

"I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." (1788)

"Trial by jury is part of that bright constellation which has gone before us and guided our steps through an age of revolution and reformation." (1801)

"The wisdom of our sages and the blood of our heroes has been devoted to the attainment of trial by jury. It should be the creed of our political faith." (1801)

James Madison 
"Trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature." (1789)

John Quincy Adams 

"The struggle for American independence was for chartered rights, for English liberties, for trial by jury, habeas corpus and Magna Carta." (1839)

Patrick Henry of Virginia [Patriot who said "Give me liberty or give me death!"]
"Trial by jury is the best appendage of freedom by which our ancestors have secured their lives and property. I hope we shall never be induced to part with that excellent mode of trial." (1788)

Alexander Hamilton 

"The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government." (1788)

Daniel Webster

"The protection of life and property, habeas corpus, trial by jury, the right of an open trial, these are principles of public liberty existing in the best form in the republican institutions of this country." (1848)

Judge Stephen Reinhardt 

"Our constitutional right to trial by jury does not turn on the political mood of the moment, the outcome of cost/benefit analyses or the results of economic or fiscal calculations. There is no price tag on the continued existence of the civil jury system, or any other constitutionally-provided right." (1986)

David Hume 

"Trial by jury is the best institution calculated for the preservation of liberty and the administration of justice that was ever devised by the wit of man." (1762)

Judge William Bryant [First African-American federal district court judge in D.C]

"If it weren't for lawyers, I'd still be three-fifths of a man." (2004)

Justice William O. Douglas

"The Massachusetts Body of Liberties was a new Magna Carta. It contained many of the seeds of the civil liberties which today distinguish us from the totalitarian systems, including the right to trial by jury." (1954)

Justice Hugo Black

"Our duty to preserve the Seventh Amendment is a matter of high Constitutional importance. The founders of our country thought that trial by civil jury was an essential bulwark of civil liberty and it must be scrupulously safeguarded." (1939, 1943)

Justice Ward Hunt

"Twelve jurors know more of the common affairs of life than does one man, and they can draw wiser and safer conclusions than a single judge." (1873)

Quotations excerpted from In Defense of Trial by Jury: Vols. I and II by the American Jury Trial Foundation (1993) and copied verbatim and in their entirety from the web site of the American Association of Justice (i.e., the American Trial Lawyers Association).

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 Evil: Hear, See, Speak

I do hope you'll pick up Ken Cloke's new book Conflict Revolution.  Keep it on your night stand.  Dip into it when you feel angry, hopeless, and grief-stricken at a local, national, or international act of violence.  

Here's a little good news from Ken's book to cheer myself and my readers up after the last lengthy post on the Robert F. Kennedy assassination.  

It is possible, as has been demonstrated in Northern Ireland, for former combatants to recognize that nothing can be gained through military methods that is worth the cost; that their mutual slaughter has been a gigantic, tragic, absurd, pointless waste; and that they can reach out at any time to each other without glossing over their differences.

It is possible, even for the most battle-hardened opponents, to learn that there are no differences they cannot solve through dialogue, negotiation, and conflict resolution, or are worth the damage created by their assumptions of evil; that they can engage in open, honest, collaborative negotiations over ongoing issues of justice and equality; cooperate in strengthening their political, economic, and social democracies; develop interest-based conflict resolution skills; and elicit heartfelt communications that invite truth and reconciliation. To do so, they need to penetrate beneath the layer of moral rationalization they have erected to solidify and buttress these cycles of internecine conflict.

Remember Détente?  Take a Look at the June 2 NY Times "Backgrounder" on Negotiating with Hostile States.  Campaign rhetoric aside, all U.S. Presidents do it; the only questions being when and who and under what circumstances and how.  Excerpt below:  

Republican President Richard M. Nixon accelerated contacts with Soviet leaders in the early 1970s. Nixon and his national security adviser, Henry Kissinger, introduced a policy of détente that aimed to establish new linkages on issues ranging from arms control to improved trade terms. The goal was to lessen superpower tensions as well as induce positive changes in Soviet international behavior. Kissinger writes in his book Diplomacy that Nixon's advisers "saw no contradiction in treating the communist world as both adversary and collaborator: adversary in fundamental ideology and in the need to prevent communism from upsetting the global equilibrium; collaborator in keeping the ideological conflict from exploding into a nuclear war."

The new contacts bore fruit in the signing of the Strategic Arms Limitation Treaty (SALT I) in 1972 by Nixon and Soviet leader Leonid Brezhnev. But within a year, tensions related to the October 1973 Arab-Israeli War showed superpower competition remained vigorous, at one point prompting a heightened nuclear alert for U.S. forces. In 1974, congressional critics of détente, led by Democratic Sen. Henry M. Jackson, sidelined a U.S.-Soviet trade agreement with the Jackson-Vanik amendment, which linked trade to emigration of Soviet Jews. Writing in Foreign Affairs, historian John Lewis Gaddis called détente a "sophisticated and far-sighted strategy" that Nixon and Kissinger failed to put across to their "own bureaucracies, the Congress, or the public as a whole." Robert S. Litwak, director of international security studies at the Woodrow Wilson Center, writes in his book Rogue States and U.S. Foreign Policy that the détente policy was hampered by the "Soviet leadership's ability to compartmentalize relations and frustrate the Nixon administration's efforts to establish linkages."

Some Cold War analysts say more effective as a counterweight to Soviet ambitions was the Nixon administration's simultaneous diplomacy with China, which led to the formal establishment of a dialogue with the 1972 Shanghai Communique. While not posing the direct threat that the Soviet Union represented, Communist China was viewed as no less odious by critics of the Nixon negotiations due to its intervention on North Korea's side in the Korean War, and because of massive human rights abuses, especially in the 1966-1976 Cultural Revolution. Despite such concerns, Nixon saw value in ending China's isolation. He wrote in an October 1967 Foreign Affairs article: "We simply cannot afford to leave China forever outside the family of nations, there to nurture its fantasies, cherish its hates and threaten its neighbors."

In the years that followed, U.S. administrations held a number of adversarial states at arm's length, diplomatically. These states included Fidel Castro's Cuba, Vietnam, North Korea, Libya, Nicaragua, Syria, and Sudan. In some cases, like Vietnam, diplomatic ties have been fully restored. In others, such as North Korea, dialogue has resumed over the issue of the country's denuclearization. Relations with Iran were severed after the 1979 seizure of the U.S. embassy, and diplomatic contacts have occurred only sporadically since then. High-level contacts with Cuba remained a remote prospect in 2008 as an economic embargo continued over U.S. concern at political repression.

President Ronald Reagan took office signaling a tough posture toward the Soviet Union and an intention to stanch communist support for rebellions in Central America. But Reagan also stepped up negotiations on nuclear arms control and participated in summits with Soviet leader Mikhail Gorbachev, a practice continued by George H.W. Bush until the Soviet Union's collapse. In the 1990s, the Clinton administration pursued dialogue with Pyongyang and normalized relations with Vietnam, while seeking to contain and isolate Saddam Hussein's regime in Iraq, and Afghanistan's Taliban leadership.

Robert F. Kennedy on the Mindless Menace of Violence Forty Years Later

If you are of a certain age, you will vividly recall where you were forty years ago when you learned that the unthinkable had happend -- another Kennedy brother had been shot.

I was fifteen years old.   The insistent ring of the telephone broke into my sleep in the early morning hours of June 6, 1968.  It was my friend the [now] author and journalist Cathy Scott saying, "Kennedy's been shot."

"No he hasn't," I groggily responded.  "That was years ago."

"No, no," she insisted.  "That was John Kennedy.  This is Bobby.  Bobby's been shot."

Yesterday, the dreadful anniversary of Bobby Kennedy's death, I channel-surfed my way to the movie Bobby, depicting the world I was growing up in and in to.  I had only recently turned my political opinions away from my parents' -- opposing instead of supporting -- the Viet Nam War. 

McCarthy was my guy. 

I thought Bobby was late to the anti-war party

But what did I know?  I was passing notes to my friends in second year French class about boys and assassinations (Martin Luther King, Jr.'s).  Bhuddist monks were setting themselves aflame in public places. Race riots had only recently consumed the nation.  My friends and I were negotiating adolescence during the time when those things that were changing ("the times") continue to consume our nation's attention today -- the conflicting values of the "culture wars." 

The producers, director, writer and other creative forces behind "Bobby" chose to end their movie with the following speech -- On the Mindless Menace of Violence.  Hearing it play out over images of Kennedy's last moments on the floor of the kitchen in the old Los Angeles Ambassador Hotel, it was as if the forty years between the night I groggily rose from my bed to watch another Kennedy brother's last moments and yesterday when I heard these words again as if for the first time had collapsed.  

Bobby speaks here as plainly as he spoke to the nation then.  Are we still not listening?

On the Mindless Menace of Violence
http://www.youtube.com/watch?v=WmRTAa4-QNc&feature=related

City Club of Cleveland, Cleveland, Ohio
April 5, 1968

This is a time of shame and sorrow. It is not a day for politics. I have saved this one opportunity, my only event of today, to speak briefly to you about the mindless menace of violence in America which again stains our land and every one of our lives.

It is not the concern of any one race. The victims of the violence are black and white, rich and poor, young and old, famous and unknown. They are, most important of all, human beings whom other human beings loved and needed. No one - no matter where he lives or what he does - can be certain who will suffer from some senseless act of bloodshed. And yet it goes on and on and on in this country of ours.

Why? What has violence ever accomplished? What has it ever created? No martyr's cause has ever been stilled by an assassin's bullet.

No wrongs have ever been righted by riots and civil disorders. A sniper is only a coward, not a hero; and an uncontrolled, uncontrollable mob is only the voice of madness, not the voice of reason.

Whenever any American's life is taken by another American unnecessarily - whether it is done in the name of the law or in the defiance of the law, by one man or a gang, in cold blood or in passion, in an attack of violence or in response to violence - whenever we tear at the fabric of the life which another man has painfully and clumsily woven for himself and his children, the whole nation is degraded.

"Among free men," said Abraham Lincoln, "there can be no successful appeal from the ballot to the bullet; and those who take such appeal are sure to lose their cause and pay the costs."

Yet we seemingly tolerate a rising level of violence that ignores our common humanity and our claims to civilization alike. We calmly accept newspaper reports of civilian slaughter in far-off lands. We glorify killing on movie and television screens and call it entertainment. We make it easy for men of all shades of sanity to acquire whatever weapons and ammunition they desire.

Too often we honor swagger and bluster and wielders of force; too often we excuse those who are willing to build their own lives on the shattered dreams of others. Some Americans who preach non-violence abroad fail to practice it here at home. Some who accuse others of inciting riots have by their own conduct invited them.

Some look for scapegoats, others look for conspiracies, but this much is clear: violence breeds violence, repression brings retaliation, and only a cleansing of our whole society can remove this sickness from our soul.

For there is another kind of violence, slower but just as deadly destructive as the shot or the bomb in the night. This is the violence of institutions; indifference and inaction and slow decay. This is the violence that afflicts the poor, that poisons relations between men because their skin has different colors. This is the slow destruction of a child by hunger, and schools without books and homes without heat in the winter.

This is the breaking of a man's spirit by denying him the chance to stand as a father and as a man among other men. And this too afflicts us all.

I have not come here to propose a set of specific remedies nor is there a single set. For a broad and adequate outline we know what must be done. When you teach a man to hate and fear his brother, when you teach that he is a lesser man because of his color or his beliefs or the policies he pursues, when you teach that those who differ from you threaten your freedom or your job or your family, then you also learn to confront others not as fellow citizens but as enemies, to be met not with cooperation but with conquest; to be subjugated and mastered.

We learn, at the last, to look at our brothers as aliens, men with whom we share a city, but not a community; men bound to us in common dwelling, but not in common effort. We learn to share only a common fear, only a common desire to retreat from each other, only a common impulse to meet disagreement with force. For all this, there are no final answers.

Yet we know what we must do. It is to achieve true justice among our fellow citizens. The question is not what programs we should seek to enact. The question is whether we can find in our own midst and in our own hearts that leadership of humane purpose that will recognize the terrible truths of our existence.

We must admit the vanity of our false distinctions among men and learn to find our own advancement in the search for the advancement of others. We must admit in ourselves that our own children's future cannot be built on the misfortunes of others. We must recognize that this short life can neither be ennobled or enriched by hatred or revenge.

Our lives on this planet are too short and the work to be done too great to let this spirit flourish any longer in our land. Of course we cannot vanquish it with a program, nor with a resolution.

But we can perhaps remember, if only for a time, that those who live with us are our brothers, that they share with us the same short moment of life; that they seek, as do we, nothing but the chance to live out their lives in purpose and in happiness, winning what satisfaction and fulfillment they can.

Surely, this bond of common faith, this bond of common goal, can begin to teach us something. Surely, we can learn, at least, to look at those around us as fellow men, and surely we can begin to work a little harder to bind up the wounds among us and to become in our own hearts brothers and countrymen once again.

Kennedy recited these lines by Aeschylus on announcing the death of Martin Luther King, Jr.

"He who learns must suffer. Even in our sleep, pain which cannot forget falls drop by drop upon the heart until, in our own despair, and against our will, comes wisdom by the awful grace of God."

Must read:  NYT Columnist Bob Herbert's Savor the Moment, brief excerpt below:

Racism and sexism have not taken their leave. But the fact that Barack Obama is the presumptive nominee of the Democratic Party, and that the two finalists for that prize were a black man and a white woman, are historical events of the highest importance. We should not allow ourselves to overlook the wonder of this moment.

Blog entries of note on the RFK assassination and, more particularly, on the hope and action  "Bobby" inspired below:

Robert F. Kennedy:  What if He Had Lived, A Golden Age that Never Was by Blake Fleetwood in The Democratic Daily

A note on the Robert F. Kennedy Memorial from UCC Rev. Chuck Currie's Blog

NEW YORK STATE ASSEMBLY RENAMES TRIBOROUGH BRIDGE THE ROBERT F. KENNEDY BRIDGE from the Robert F. Kennedy, Jr. for President Blog.

A personal remembrance and link to another from Comments from Left Field

An RFK-Inspired Thought for the Day from the Law Consulting Blog

A Tiny Ripple of Hope from the Rainbow Law Blog

And this terrific compilation from Wednesday Night

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

39

Correction of Mistake

27

Pay compensation

18

Correct treatment at the time

16

Admission of negligence

15

If listened to

5

Disciplinary action

4

Honesty

4

Investigation by hospital

3

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

More Thoughts on Negotiation and Appeasement

(right:  enemy?  ally?  victim? victimizer?)

Everyone's been talking about negotiating with our enemies and appeasement lately.  I've written several posts on it here and here, for instance.  I've also read dozens of news and magazine articles on the topic in the past few weeks, here and here, for instance.

Today, I highly recommend Ken Cloke's new article on the issue -- Thoughts on Mediation, Barack Obama and Our Political Future. 

Excerpt below.  Full article well worth reading.

[C]onsider . . . one of the key questions for many voters – should the US negotiate with its enemies?

Most mediators, I think, would immediately answer, “Yes.” We understand that negotiation is based on differences; that negotiating doesn’t mean agreeing; that negotiating draws people away from violent alternatives; and that negotiation is preferable to power-based solutions such as war and terrorism.

Notice, however, how use of the word “enemy” automatically builds into the question an assumption of implacable hostility and an implication that negotiation must fail. To reverse this assumption and consider not just whether, but how we should negotiate with our opponents, we need to answer a number of questions, posed nicely in an email I recently received from Jim Melamed. These include:

How does effective diplomacy and negotiation differ from "appeasement?"

The principal difference between constructive diplomacy, collaborative negotiation and conflict resolution on the one hand, and appeasement on the other, is that the former seek to satisfy both parties legitimate interests, i.e., those that do not refuse or deny the legitimate interests of others. What made the Munich meeting between Chamberlin and Hitler history’s classic case of appeasement were, among other elements:

      • The absence of Czechoslovakia and other allies from the bargaining table and inability to participate in deciding their fate
      • The lack of representation of Jews, Gypsies, homosexuals, and opposition parties, including socialists and communists, in a full negotiation of the chronic, systemic sources of conflict. 
      • Reaching an agreement in spite of clear advance indication that Hitler had no intention whatsoever of abiding by it
      • The absence of an unbiased mediator and assignment of that task to Mussolini who was an ally of Hitler
      • Cowardice in avoiding principled, albeit unpleasant consequences by failing to reach an agreement A failure to address the earlier injustice and inequity of the Versaille Treaty on Germany

To negotiate effectively, as classically described by Roger Fischer and Bill Ury in Getting to Yes, it is essential that each party understand and be fully prepared to exercise its Best Alternative to a Negotiated Agreement, or BATNA. Hitler clearly did. Chamberlin did not.

We can therefore define appeasement to include three distinct core elements:

1. Unilateral concessions, which by themselves, or in an environment that is conducive to collaboration, frequently lead to highly effective negotiations

2. Unfair and unjust outcomes that are imposed on those who are not present and have no right to participate in the process, which is easily remedied in mediation and collaborative forms of negotiation

3. Ethical and moral surrender in the face of blackmail, threats and coercion, which often flow from earlier unresolved conflicts and injustices.

How can America best negotiate our future?

We can best secure our future by recognizing that we are also world citizens, and part of a global environment that is facing serious threats to our survival that cannot be solved by any single nation. It simply does not matter whose end of the boat is sinking. We need to join the rest of the world’s nations, religions and cultures, and realize that it is no longer possible to go it alone.

Yet it will prove impossible to convince others to join us in solving transnational problems when we negotiate exclusively to maximize our own national self-interests, ignore the meta-sources of chronic conflict, and act in ways that encourage profound social, economic and political injustices to continue.

We can reclaim our unique claim to world leadership by practicing what we preach; by abjuring torture and tyrannical practices, no matter what fancy new words are used to describe them; by promoting conflict resolution, social justice and democracy everywhere, starting at home; by rejecting military solutions to political problems; and by adopting the principle that we will negotiate with anyone at any time to solve common problems.

For the remainder of this article, click here.  For Ken's new book, Conflict Revolution:  Mediating Evil, War, Injustice and Terrorism, click here.  My review of Ken's book here

Should We Fear to Negotiate or Only Fear to Negotiate Badly?

In an Op-Ed piece in today's New York Times -- Kennedy Talked, Khrushchev Triumphed -- Nathan Thrall and Jesse James Wilkins suggest that John F. Kennedy's worst two days negotiating should be a lesson to Barack Obama. 

The lesson? 

That "sometimes there is good reason to fear to negotiate." 

Agreed.  But only if we add the word "badly." 

The Op-Ed piece itself describes JFK's ill-fated negotiations as follows:

Although Kennedy was keenly aware of some of the risks of . . . . meetings [with one's adversaries] . . . he embarked on a summit meeting with Khrushchev in Vienna in June 1961, a move that would be recorded as one of the more self-destructive American actions of the cold war, and one that contributed to the most dangerous crisis of the nuclear age.

Senior American statesmen like George Kennan advised Kennedy not to rush into a high-level meeting, arguing that Khrushchev had engaged in anti-American propaganda and that the issues at hand could as well be addressed by lower-level diplomats. Kennedy’s own secretary of state, Dean Rusk, had argued much the same in a Foreign Affairs article the previous year: “Is it wise to gamble so heavily? Are not these two men who should be kept apart until others have found a sure meeting ground of accommodation between them?”

But Kennedy went ahead, and for two days he was pummeled by the Soviet leader. Despite his eloquence, Kennedy was no match as a sparring partner, and offered only token resistance as Khrushchev lectured him on the hypocrisy of American foreign policy . . .  Khrushchev used the opportunity of a face-to-face meeting to warn Kennedy that his country could not be intimidated and that it was “very unwise” for the United States to surround the Soviet Union with military bases.

. . . American diplomats in attendance, including the ambassador to the Soviet Union, later said they were shocked that Kennedy had taken so much abuse. Paul Nitze, the assistant secretary of defense, said the meeting was “just a disaster.” Khrushchev’s aide, after the first day, said the American president seemed “very inexperienced, even immature.” Khrushchev agreed, noting that the youthful Kennedy was “too intelligent and too weak.” The Soviet leader left Vienna elated — and with a very low opinion of the leader of the free world.

Kennedy’s assessment of his own performance was no less severe. Only a few minutes after parting with Khrushchev, Kennedy, a World War II veteran, told James Reston of The New York Times that the summit meeting had been the “roughest thing in my life.” Kennedy went on: “He just beat the hell out of me. I’ve got a terrible problem if he thinks I’m inexperienced and have no guts. Until we remove those ideas we won’t get anywhere with him.”

Flawed Setups Make Negotiation Tactics at the Table Irrelevant or Dangerous

As the Times article states, at least one seasoned diplomat expressly opined that the issues Khrushchev was raising at the time of Kennedy's first diplomatic mission could as well (or better) be addressed by lower-level diplomats as by the President.  Kennedy's own Secretary of State  suggested that ground work needed to be laid before the leaders of the "free" and the Communist worlds met for the first time.  Kennedy ignored this sage advice and learned one of the most important lessons of his presidency -- to seem weak was as bad as being weak.  

As Lax and Sebenius caution in their excellent treatise 3-D Negotiation, the negotiation 'setup"

means acting to ensure that the right parties have been involved, in the right sequence to deal with the right issues that engage the right set of interests at the right table or tables at the right time under the right expectations and facing the right consequences of walking away if there is no deal.  Before worrying too much about tactics, the 3-D setup architect works hard to optimize these elements -- the scope, sequence, and choices about the process itself -- in which interpersonal dealing will play out.

If the setup at the table isn't promising, the 3-D negotiator doesn't merely resort to bullying . . . or turning up the empathy and personal charm . .  . Instead, he or she takes action away from the table to reset the table more favorably.  The 3-D Negotiator understands that a bad setup makes tactics at the table more or less irrelevant -- and that a great setup, conversely, makes good tactics all the more effective.  In fact, it can help the tactician achieve otherwise impossible results.

3-D Negotiation at 12-13.

“Let us never negotiate out of fear. But let us never fear to negotiate.”

This is the sentiment -- from JFK's inaugural address -- that Thrall and Wilkins suggest we question in light of Kennedy's ill-fated initial encounter with the far more experienced and cannier Nikita Khrushchev.  This caution, however, would unnecessarily throw out diplomacy's baby with negotiation's bath water.  If these wise words need any amending whatsoever, let them be:  Let us never negotiate out of fear.  But let us fear to negotiate badly. 

Congress Negotiates the Foreclosure Crisis

UPDATE:  IF YOU FOLLOW THIS LINK TO FORBES.COM COVERAGE OF THE FORECLOSURE CRISIS AND CLICK ON THE HIGHLIGHTED WORD "FORECLOSURE" YOU'LL FIND A WEALTH OF MATERIAL, INCLUDING VIDEOS, ON THE SUBJECT. 

See, for instance, this great post on "bailing out" homeowners at the Calculated Risk Blog here (found by clicking on the Lingo bubble on the Forbes.com site above.

In this morning's Los Angeles Times,  staff writer Maura Reynolds explains how -- and why -- the Senate has reached a deal on foreclosure legislation.  "Key senators" writes Ms. Reynolds,

announced Monday a bipartisan agreement on the broad elements of a plan to avoid foreclosures and speed the refinancing of mortgages for roughly 500,000 troubled homeowners without taxpayers footing the bill.

Political deal making showcases high-level bargaining skills at the intersection of interest- value- and rights-based negotiation paradigms.  No one files lawsuits against their Senators (well, no sane person).  But in the midst of an economic crisis, political representatives might just as well be defendants.  As Reynolds explains, the forclosure legislation "deal" reached in the U.S. Senate reflects the election-year pressure that lawmakers feel to find common ground on one of the most pressing issues facing the country.

The "Conflict"

Some theorists define conflict as a "crisis in human interaction" which the parties need help to overcome for the purpose of restoring constructive interaction.

Transformative mediation theorists and our little "d" democracy assumes that people have the capacity to solve their own conflicts over scarce resources, rights, interests and values.  (See MEDIATION STYLES AND TECHNIQUES prepared by the American Bar Association, Public Contract Law Section; Dispute Resolution Section; Center for Continuing Legal Education; and Interagency ADR Working Group; Contracts and Procurement Section at the Arnold & Porter Paul Porter Conference Center).

The Stakeholders

A stakeholder in a conflict is anyone who might be positively or negatively impacted by the crisis and its potential resolution.  In this case, the L.A. Times identifies the entire economy as a  "stakeholder." As Ms. Reynolds explains, the "housing collapse"

has inflicted pain on thousands of families, dealt the economy a major blow and ignited a fierce controversy over what -- if anything -- the government should do about it.

The stakeholders to whom elected representatives must answer are, of course, those who elect them -- voters and taxpayers -- as well as those corporate and individual contributors who fill their election coffers.  When selling a public good, however, it is best to acknowledge your allegiance to "the people."  As one Senator explained:

My primary consideration during negotiations on this package has been to protect the American taxpayer, and I believe we've made significant progress toward that goal.

National Resolution to Public Problems Must Reflect the Voters' Interests and Values

Unlike a lawsuit, where the parties are fighting over existing (or hoped for) rights and obligations, in economic, social or political crises the "fight" is not about "rights" but interests and values.  The right to declare bankruptcy aside, no one has a legal right to be "bailed out" of a financial crisis.  Nevertheless, a bail out may be necessary if elected officials are to serve the "interests" of their constituents according to those voters' "values."  

Values

As Reynolds explains, the lead Republican on the Senate Banking Committee, Sen. Richard C. Shelby, suggested that consensus among law makers could not be achieved if the proposed solution to the foreclosure crisis were seen as a "bail out" of "speculators" or of "borrowers and lenders who made bad decisions out of carelessness or greed." These are the "value" concerns that are part and parcel of any potential resolution of a community-wide conflict.      

Because we perceive money to be a scarce resource, we presume that its delivery to Interest Group A will deprive Interest Group B of funds necessary to serve Group B's needs or desires.  This is a  "zero sum" view of economics.  For individuals and many businesses, however, this is often not only perceived reality, but the actual fact of the matter.  

If mom and dad bail Billy out of jail for drunk driving, they may not have sufficient resources to pay his brother's room and board at Ivy League U.  Not wishing to "reward" bad behavior (a "value" metric) may be only part of the calculus, however.  If the family is capable of satisfying both brothers' interests, they may or may not decide to be guided by their "values."  They could act out of helpless parental love or simply compassion.  If the parents do not have sufficient resources to satisfy both brothers' needs at the same time, their decision about who to benefit will almost always reflect family values (little "F" little "V").     

How national problems should be solved within federal budgetary constraints is not so different from the family drama hypothesized above. 

Interests

The foreclosure crisis is not only about American values such as independence, thriftiness, caution, and hard work.  It is also about stakeholder interests.  As Reynolds reports:

Some Republicans have supported other versions of the legislation, citing the severity of the housing crisis and the escalating number of foreclosures in some regions of the country, including parts of California. They argued that the foreclosure crisis would damage entire communities and pull the economy toward recession. 

If larger societal interests -- like the economy itself /** -- are at risk, a "bail out" plan that "rewards" even the careless and greedy may be palatable to voters, particularly when, as Reynolds reports, "at the luxury end, home prices are falling."  In other words -- if this crisis is not addressed by our elected representatives (who are also stakeholders in this crisis) not only voters, but contributors to political campaigns might retaliate against them.   

Positively "Framing" the Proposed Legislative Solution to Meet Both Interests and Values    

In acknowledging the need for action, Senator Shelby positively "frames" the crisis as one affecting "struggling homeowners" who "should" be assisted so long as "American tax payers" don't have to foot the bill.  Others appeal to market and voter fears that the foreclosure crisis might "pull the economy toward recession" (if it has not already arrived there).  In all events, a majority of stakeholders in any democracy must feel satisfied that legislation addresses both their needs and their fears.   

The Proposed "Deal"

The proposed Senate "deal" to aid borrowers, lenders, and "the economy" is described by the  Times as follows:

The Senate plan announced by Shelby and Banking Committee Chairman Sen. Christopher J. Dodd (D-Conn.) is similar to the House-passed bill in that the centerpiece of each is an expansion of government mortgage insurance. Under both proposals, a borrower facing foreclosure could refinance into a government-guaranteed mortgage under certain conditions, including that the home is the owner's primary residence and that the holder of the existing mortgage accepts 85% of the home's current appraised value as payment in full.

The House bill calls for using about $1.7 billion from the federal budget to set up the program, which would be administered by the Federal Housing Administration.

Under the Senate deal, the start-up funds would come instead from an affordable-housing fund capitalized by mortgage giants Fannie Mae and Freddie Mac, which were created by the government but are owned by public stockholders.

This plan satisfies American "self-help" values by requiring borrowers to refinance.  It attempts to exclude "speculators" from the benefit created by requiring recipients of the government-guaranteed mortgages to affirm that the home is their primary residence.  And it "punishes" imprudent lenders by requiring them to accept 85% of the home's current appraised value as payment in full.  Finally, whereas the House would spend $1.7 billion in federal funds, the Senate hopes to tap the resources of Fannie Mae and Freddie-Mac, government created but privately owned lenders.   

Selling the Deal

Whatever deal is crafted to address a national financial crisis or to settle a piece of commercial litigation, it must be sold to all stakeholders.  Here's a classic "win-win" pitch based on interests and values.    

"This legislation is good news for both the markets and homeowners," [Senator] Dodd said. "The bill addresses the root of our current economic problems -- the foreclosure crisis -- by creating a voluntary initiative at no estimated cost to taxpayers, which will help Americans keep their homes."   Dodd told reporters the measure would speed the correction of housing prices to return stability to the market as soon as possible and prevent further damage to the broader economy.  "Obviously, we want to keep as many people as possible in their homes. But the second goal, as important as the first, is to get to the floor" of the housing correction, Dodd said in a conference call. "Until we get to the floor, none of this is going to get better."   "We have a lot of confidence that this is what the market is waiting for," Dodd said.

Deconstructing consensus-building in the political arena should help anyone who is making an effort to settle commercial litigation -- or simply a family dispute over the deployment of family resources.  

We thank Times staff writer Maura Reynolds for the depth and breadth of her reporting on this issue.   

For an analysis of the future of the Senate proposal, check out the Housing Chronicles Blog post Will President Bush Sign the Housing bill? here.  Housing Chronicles is a fellow Forbes Business and Financial Network blogger.

**/  For another look at what we mean when we use the term "economy" see this month's Harpers' article by Jonathan Rowe, Our Phony Economy

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.  

"Oh."

Silence.

"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.

Can We Negotiate Justice?

Thanks to Geoff Sharp over at mediator blah blah for citing us to Justice Trumps Peace: the Enduring Relevance of Owen Fiss’s Against Settlement by Don Ellinghausen, Jr.  Geoff Sharp's excellent post on the issues raised (again) is here and Ellinghusen's exhaustive treatment of mediation's limitations and overblown claims here.

Agree with Fiss, Ellinghausen, Laura Nader and Carrie Menkel-Meadow or not, there shouldn't be a mediator practicing who is unaware of these serious criticisms of the mediation process.  If we're not aware of them, we can't avoid the potential for "muscle" mediation to prevent even the aspirational goal of delivering justice without regard to gender, color, power, social status, wealth and all the rest of the social markers the law has been so careful to avoid paying obeisance to.

Check it out.

Gay Marriage in California: Is it Good for Business?

UPDATE:  Here's the California Supreme Court Opinion thanks to the American Constitutional Society Blog with Yale Law School Professor William N. Eskridge, Jr.'s short commentary

The June issue of Harpers has a good article on the issue from a religious point of view in Turning Away from Jesus:  Gay Rights and the War for the Episcopal Church by Garret Keizer, but it's not online yet.

There is a good 1996 article on the issue in Harpers here, however.

I must say there's something about the public debate that has always confused me.  Because we live in a secular society, all "marriages" performed by the state are "civil unions."  Only the churches are capable of blessing or sanctifying those unions.  

But I'm not interested in jumping into the gay marriage debate other than to say I'm happy for my gay friends who would like to marry their domestic partners, lovers, help-meets; and, life companions.  

What I'd like to do is to re-post an interview I conducted with one of my best friends who happens to be a gay rocket scientist and who is comfortably settled with his beloved companion -- also one of my husband's and my closest friends.  Tony talks here about why diversity and tolerance in the workplace is not only good for the people in it, but good for the business that supports and empowers them.

Here's New York Times reporter Adam Liptak's coverage of the California Supreme Court opinion here.

That's all.  Anyone debating the gay marriage thing can go back to it now.

 

I also cannot resist saying this in response to those who worry that the California Supreme Court's ruling is contrary to the will of the majority.  That's the whole point of the U.S. Constitution's Bill of Rights and the similar right-affirming Articles of the California Constitution -- they provide protections for the minority against the "tyranny of the majority."

Negotiating Anger: Why are They Shouting at Me????

Brilliant piece on de-escalating conflict over at Tammy Lenski's Conflict Zen this morning.  Teaser and link below:  

The friendly bailiff unlocked the small courtroom. After telling me to make myself at home, he pointed to a small red button on the wall. “If you need me, just press that button and I’ll be in here faster than you can blink and eye. It’s an emergency button.”

“Ok, thanks,” I replied, and began to unpack my briefcase.

“I mean it,” he said. “Just press the button. Maybe you should set up your chair so you’re near it.”

I gave him a long look. “You seem to want me to know about that button. Is there something else you want to tell me?”

Continue reading here.

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 

THE GREGORY SOBEL DIVERSITY IN MEDIATION SCHOLARSHIP APPLICATION

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.

Mediator Learns that a Jury Verdict is a Settlement by Other Means

Thanks to Geoff Sharp at mediator blah blah for alerting us to this truly excellent post over at The Consensus Building InstituteMediator as Juror:  A Day in Middlesex County Superior Court.  After recounting the facts of the case, CBI's Managing Director Patrick Field comments as follows:

[T]he case reminded me why mediators have such an important, but difficult, job in supporting justice, civil society and social capital. Many parties simply cannot find a way out of escalating conflict and assume that justice can only be served in the courts. This case was a perfect example of several time-tested conflict lessons.

Emotions get the better of us. Here were two well-educated, well-off individuals who let their anger, hurt, offense, and desire for revenge get the best of them.

Communicating is the hardest thing to do. A second phone call, an attempt to be conciliatory, or a short email asking to set a different tone didn’t happen. Somehow, the simplest thing to do—talk—became the hardest.

Sunk costs sink us further. Clearly, the plaintiff was trying to recover his sunk costs, but had passed the point of no return. From an economic standpoint, he had failed to get out when it made dollars and sense (pun intended) and was embarrassingly digging himself deeper and deeper.

Taking responsibility is harder than fighting over it. The facts, as we came to understand them, suggested that this dispute could and should have been resolved months earlier—to everyone’s benefit. Yet the parties chose to point fingers and relinquish their responsibility for resolving the dispute efficiently, fairly, and expeditiously.

Justice is sought but not necessarily served. The parties, both angry, both determined that they were right, decided to take their case all the way to jury. Each was going to get a verdict in his favor one way or another! But the reality was that several partial settlements were offered, winnowing the total amount down, and the judge retained the right to rule on legal fees. We, the jury, were left with a seemingly trivial case, wishing we could punish them both for being so foolhardy.

Serving on a jury reaffirmed to me that justice doesn’t simply emanate Solomon-style from on high. Here’s what I learned.

Justice is not divined; it is negotiated. As our jury deliberated, I realized that this was in fact a negotiation, constrained as it might be by our charge and the evidence. Was the contract valid? Did the defendant actually breach the contract? If so, how much were the damages really worth? When parties hand over their dispute to a jury, they are not avoiding a serious negotiation, they are simply leaving it in the hands of strangers.

Justice is blind. As jurors, we couldn’t ask questions. We couldn’t get at the parties’ deeper motivations, feelings, and emotions (like a mediator might). We did issue a verdict, but we did so blindly, due to our exceedingly limited information and understanding.

Juries deliver verdicts, not necessarily justice. I feel our verdict was fair and reasonable, given what we knew. My fellow jurors (all twelve) took the case seriously, considered the evidence, and did their best to arrive at logical conclusions.

However, we probably didn’t deliver much on the larger front of justice. We couldn’t help the parties find a resolution that left them better off in terms of lower costs, less bitterness, and greater self-respect. We couldn’t censure the lawyers for not doing a better job of restraining their clients’ emotions. We couldn’t issue an admonition against abusing the courts with cases that should be settled by reasonable people elsewhere. We couldn’t aid society by helping its citizens take responsibility for their actions, emotions, and disputes.

So, mediators, next time you sit with parties who are rearing to go to court, I encourage you to keep in mind that court is really settlement, formal as it may be, by other means. And to the future parties of such a suit, it would be well to remember that there is no certainty—and in fact much reason to doubt—that a judge and jury will issue a better verdict or clearer justice than you might arrive at by your own making.

Employment Arbitration a "Moral" Hazard?

See Lawyers USA News Brief Employees may be at disadvantage in arbitration  by Correy E. Stephenson here.  Excerpt below.

State courts are reversing arbitration awards for employees at a "statistically significant" rate compared to reversing employer-friendly awards, according to a new study.

Professor Michael LeRoy of the University of Illinois College of Law, a professor of labor and employment, recently released his findings after analyzing arbitration awards from an appellate perspective.

The study, published as a paper, "Do Courts Create Moral Hazard? When Judges Nullify Employer Liability in Arbitrations: An Empirical Analysis," looked at 443 state and federal court rulings on arbitration awards from 1975 to 2007.

While federal courts upheld 85.7 percent of employer wins and 85 percent of awards for employees, LeRoy found markedly different results in the state court system.

There, lower level appellate courts affirmed employer awards 87.2 percent and employee wins 77.6 percent of the time, while the upper appellate courts were even more divergent, with 86.7 percent of employer awards affirmed and only 56.4 percent of employee victories upheld.

These findings suggest a "snowballing futility for employees," LeRoy writes, because the options after being reversed on appeal are limited. Either the employee must start over at the beginning of arbitration, "or worse, be stuck with a useless award and no other recourse."

LeRoy terms this trend a "moral hazard" which is "created by risk sharing contracts or public policies that discourage individuals from avoiding costly behaviors."

Continue reading here.

Negotiating Protest: A "Mediation" the Community Doesn't Want?

Here's a local community protest being "handled" -- in part -- as a community-wide  "mediation," "facilitation,"  or "public dialog."

We have an attempted engagement here over the apparently unwanted "gift" of a new Home Depot in the Sunland-Tujunga community.  It appears that the community would like to see an Environmental Impact Assessment conducted and an EIR filed before the Depot moves in (if ever).

The City Attorney stepped in to help -- recruiting community mediators and facilitators to conduct a community dialog.  It's my understanding that Home Depot representatives were not present at this dialog (please correct me if I'm wrong about this).  For that reason alone -- a missing critical stakeholder -- a suspicious or hostile community response is unsurprising. 

Let me say, however, that we/** are new at this -- making an effort to engage an entire community in a facilitated conversation about the issues giving rise to a protest.  We're bound to make the type of errors highlighted by community members below.  So let's not call this a failure but an opportunity to learn.  

Here, for instance, is a recent blog entry calling the "community meeting" a facilitation rather than a mediation -- correctly noting that mediators have no allegiance to one side or the other and no agenda.  See the Zuma Times -- LA Daily Blog coverage with one or more YouTube videos here.

For background, here's a late April '08 Los Angeles Daily News article on the issue -- excerpt below.  

SUNLAND - Amid a contentious battle over a proposed Home Depot, city officials tried to cool tempers Saturday by hosting a community dialog aimed at finding a middle ground between warring factions.

About 200 community residents attended, although organizers had been expecting up to 1,000.

Although a few supporters, including Home Depot employees, noted the project would likely bring more jobs to the community, most in the crowd were against it.

Asked for opinions, most listed complaints such as traffic and an increase in day laborers. Some even used the term "community assassination." . . . .

Some residents sat and listened patiently as mediators engaged them in dialog in an effort to understand their concerns and to work toward constructive solutions.

Billed as "the Sunland/Tujunga dialog," the meeting at Mount Gleason Middle School was set up by the Los Angeles City Attorney's Office as part of an agreement with The Home Depot Inc., which suspended a $10 million lawsuit against the city while it seeks a building permit.

The company is seeking to build a store on the old Kmart lot on Foothill Boulevard . . . 

Attorney Barbara Goldfarb, a volunteer facilitator with the dispute-resolution team that conducted the meeting, made sure everyone knew that she and her staff had no connection to the home-improvement company.

"I do not have a Home Depot credit card," she said before people split up into 27 groups. "I do not own Home Depot stock."

Goldfarb said the dispute-resolution program is funded by grants and funds from the city and county.

"Certain times (these types of efforts) don't work. Other times, they work out wonderfully," Goldfarb said.

"There's always an answer to conflict if people will talk."

And here's a mis-step "we" won't make next time as reported by the Sunland-Tujunga Alliance blog.  

Lots of folks have comments and questions about the evaluation form we were asked to fill out at the end of the small groups. I have some of my own, too. I was shocked and horrified at some of those questions. I thought the questions showed a slanted, pre-conceived idea of what someone thought our issues should or would be, not what our concerns really are. I spoke with Barbara Goldfarb, the lead facilitator, about it. Yep, the evaluation form was written by the RAND Corporation, just as the pre-questions were. Ms. Goldfarb agreed with me that some of those questions were way off the mark, too complex to be answered by just checking a box, or unrelated to our actual concerns.

I just want to add that I am so proud of us, all of us who showed up yesterday. We were well prepared, and participated with a mature and honest approach. Also, to those who wrote intelligent, well thought out answers to the questions, I applaud you. There were a lot of people who let us know that they were unable to attend the “dialog” due to other commitments, but those of us who were there, carried the message loud and clear! No Home Depot in Sunland-Tujunga! Home Depot must follow the rules! We want our EIR!

I invite comment from participants in the community. For their information, I am not affiliated with the City of Los Angeles in any way.  I serve as a volunteer mediator for the Los Angeles County Bar Association Community Mediation program in West Hollywood, on the Los Angeles Superior Court's pro bono mediation panel (for litigated cases) and as a Settlement Officer for the local federal trial court (also for litigated cases).  Otherwise, my work is entirely in the private sector. 

___________________

/**  When I say "we" I'm referring to mediators in general who are part of a theory and practice of facilitated dialog as well as many other strands of the mediation movement including consensus-building, prejudice-reduction, settlement conferences, mediations of litigated cases, community mediation, restorative justice and the like.  I personally have had nothing to do with the community "dialog" or facilitation or "mediation" arising from the dispute over the development of a Home Depot in Sunland-Tujunga.

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.

 

When the Judge Says "This Looks Bad on the Surface" Listen Up!

. . . because the jury is about to transform your $1.7 million commercial dispute into $352.7 million verdict . . .  read all about it in this 2001 story, After $1.7 million landed in the wrong account, CoreStates insisted it could seize the money. It was A VERY COSTLY MOVE.

I give you only the article's conclusion, daring you to click on it without reading it to the end.

The overarching question of why the bank didn’t settle remains a puzzle.[The Bank's counsel] thought he gave the bank solid advice. All the lawyers who joined in the bank’s defense hold to that position: Legally, they contend, the bank was within its rights in seizing the $1.7 million.

But the case ran away from them. It got bigger and bigger and worse and worse. And there was no stopping it. One defense lawyer observed, “It went to hell in a handbasket.”

Maurice Mitts says his client is willing to call it quits for the $56 million. But First Union still isn’t willing to pay a big number. Mitts isn’t surprised.

“ ‘We know the law, we are the law, and too bad for you,’ ” Mitts said. “That’s been their attitude all along.”

Thanks to the Philadelphia law firm of Mitts Milavec, LLC for fighting the good fight and posting this dynamite legal tale.

How Can I Convince My Client to Lose More than Predicted and Still Maintain My Own Credibility?

The provocative comment we're following is Jay Welsh's remark that to settle most cases the Plaintiff has to accept a lot less than he wanted to recover and the defendant has to pay a lot more than he ever imagined paying.  And the response we're replying to is Canadian lawyer Michael Webster's:

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.

The reason litigators settle law suits is because the outcome of litigation is uncertain and its pursuit expensive.  But that just states the problem.  How do you "tell" a client in the midst of expensive litigation that he's going to have to pay way more or accept way less than his attorney predicted (with appropriate disclaimers) long, long ago?

First, let me provide a checklist for success in commercial mediation:

  1. Bring the real deal-makers to the mediation or settlement conference for it is they -- not their attorneys -- who will  make the decision to pay way more or to accept way less than they had previously imagined.   
  2. Bring the parties back into the conflict as participants in its resolution again.  Businesses have commercial problems that have business solutions.  Litigation is often just the stick to force the continuation of commercial negotiations that broke down in so spectacular a way that the parties stopped talking to one another, hired lawyers, and began to fight over legal issues the parties neither care about nor understand.  The parties have now experienced how surreal their negotiation becomes when it's conducted in the courts.  They're probably ready to deal again.  Let them.  
  3. Permit the parties to discuss all aspects of the conflict whether they are relevant to the legal issues or not.  The reason one party initiated litigation against the other party is not because he wanted to create precedent.  And if precedent is what a party wants, money might but often cannot settle the matter.  
  4. Bring the experts along and let them talk to one another about the ways in which the matter might be resolved or even why their expert opinions are diametrically opposed.  
  5. Address the parties' justice issues.  People seek out lawyers for one reason and one reason only.  Because they believe themselves to be the victims of an injustice.  And if its the defendant you represent, the injustice visited upon it is the litigation itself.  I spend a significant amount of time during a mediation discussing justice issues with the parties. 
    1. they're being extorted
    2. they're being low-balled
    3. they were defrauded
    4. their trust and confidence was betrayed
    5. their competitor's market tactics have been unfair and violative of any number of state or federal laws
    6. their intellectual property was stolen
    7. etc., etc., etc.
  6. Let the mediator talk with the parties about what the justice system can do, what it should do, what it most likely cannot or will not do.  Most parties will not be happy with their attorneys if their justice issues are not addressed at the time of settlement.  And its my job to make clients happy with their attorneys.
  7. Let the mediator help the parties understand that their case has -- with no one's fault -- gotten worse rather than better over time and why.   
  8. When all else fails, blame the "system." 

Why Parties Pay More or Accept Less than They Want To

Jay Welsh is right.  If the parties have hired a mediator to settle complex commercial or mass tort litigation, they have done so because they need to pay more and accept less than they are prepared to do.  Otherwise, they'd settle without the assistance of a mediator.

This does not mean that the mediator bangs heads or twists arms.  There are hundreds of reasons why parties do not continue to trial and thousands of good excuses for corporate counsel to stop the bleeding.  They include:

  1. the witnesses on the other side performed better in pre-trial testimony than expected
  2. the Judge made pre-trial rulings that cut the heart out of your case
  3. the Supreme Court (state or federal) just over-turned a hundred years of precedent making one party's legal case far worse and the other's far better than expected
  4. it's the economy, stupid
  5. the client realizes during the course of the mediation that there's more than one way to organize the facts and apply the law -- something lawyers are trained to do and even sophisticated clients find hard to swallow.  Having had an "aha" experience during the mediation, the client realizes there's more (or less) at risk than he's been thinking and the offer/demand now on the table looks pretty darn good after all
  6. the other side becomes un-demonized during the course of the mediation, making it easier to part with money for the purpose of resolving the one thing both sides have in common -- a difficult, uncertain, expensive, dangerous lawsuit.
  7. one side simply out-negotiates the other (it happens) 
  8. one or both sides lose heart for the battle when they see that the delta between the their bottom lines is not as great as they expected it to be
  9. the parties manage to "expand the pie" (more about this later) such that the plaintiff does not have to accept that much less nor the defendant pay all that much more than each anticipated (it happens)
  10. one party genuinely develops an understanding of and empathy for the other side's position and changes a hard line attitude against settlement as a result (it happens)

 

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.

Negotiating Disaster with Pawprints of Katrina

I talk a lot in this blog about community; about the need for all of us to understand that when you drill a hole in the other guy's side of the boat, you sink too.  There's something about disaster on a grand scale that brings the best out in us -- creates heroes.  And maybe, if you're inclined to ask why "bad things happen to good people" the answer is that we need to be reminded of our common humanity; common fragility; and, our common obligation to serve as stewards of the planet and all life on it.

So it is with more than a small amount of pleasure that I announce the book launch for my good friend Cathy Scott's memoir of the heroic pet rescues that took place in the wake of Katrina.

Cathy was one of the "kids" in my neighborhood fom the time I was five years old until we all left the old neighborhood for our adult lives.  She was also a member of the first writers' group I was ever part of -- Sisters of the Pen -- a neighborhood "club" we started when I was in the sixth grade and Cathy just entering high school.

Only Cathy has truly fulfilled the dreams of that small group of children and teenagers.  This is her sixth or seventh book and the one that I just know is going to sell a million or more copies for her.

Nostalgia aside, here is the information on the book launch!  (for the r.kv.r.y. literary journal's special issue on natural disasters, click here).  

A book launch event will be held on Saturday, July 26, marking the national release of author Cathy Scott's  book, PAWPRINTS OF KATRINA: Pets Saved and Lessons Learned (to be released this summer by John Wiley & Sons).

The event will be held from 1:45 p.m. - 5 p.m. at Best Friends Animal Sanctuary's Welcome Center (5001 Angel Canyon Road, Kanab, Utah 84741, a 3-1/2-hour drive from Las Vegas). Refreshments will be served.

Attending and signing books will be actress and animal activist Ali MacGraw, who wrote the book's foreword, and photographer Clay Myers, who has more than 70 compelling photos in the book. Also signing will be police K-9 handler Cliff Deutsch, who is featured on the cover rescuing a dog.

On display at the Welcome Center patio deck during the event will be Ark, a full-sized replica of a flat-bottomed boat used to save animals from floodwaters. It was created by Cyrus Mejia, in-house artist and a co-founder of Best Friends . The 4-by-10-foot boat is covered in a unique collage of animal admissions forms (with rescued pets' pictures), photos from volunteers, satellite images of Katrina, maps of New Orleans and strips from pet product bags used during the rescue effort.


Volunteers from Katrina will be at the event, and many Best Friends staffers who worked in the region will be attending too, so it will very much be a reunion. While book signings are scheduled for other parts of the country (including New Orleans on the third anniversary of Katrina), this is the kick-off event and a great opportunity to visit the sanctuary.

To find out where to stay in Kanab, go to:
http://www.bestfriends.org/atthesanctuary/angelcanyon/visitorfaq.cfm.

A new Holiday Inn Express has opened in Kanab (435-644-3100), so if the sanctuary cabins and cottages or other hotels are full, the new one will probably have openings. Summer is a busy time in the area, because of nearby Zion, Bryce and the Grand Canyon, and booking early is highly recommended.

If you'd like to take a free tour of the sanctuary, which sits on 33,000 acres in Angel Canyon with about 1,800 animals on any given day, you'll need to book a reservation by calling 435-644-2001, ext. 4537. Or, for more info, go to:
http://www.bestfriends.org/atthesanctuary/angelcanyon/visitorfaq.cfm

To learn more about Pawprints of Katrina, go to:
http://www.wiley.com/WileyCDA/WileyTitle/productCd-0470228512.html



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. 

Why?

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. 

Why?

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!

What it Takes to Be a Great Mediation Advocate from Day on Torts

Thanks to Geoff Sharp for leading me to John Day's terrific series of posts on What it Takes to Be a Great Trial Lawyer particularly Part 11, The Courage to Tell the Client the Truth, excerpt below.

As information is learned in a given case, great trial lawyers also tell their client the truth. They give an opinion about whether to make, accept or reject a settlement proposal, or indicate that the proposal is so within the range of reason to make it a toss-up. They give these honest opinions whether the client likes the advice or not, and explain the basis for the opinion.

A great trial lawyer will not hesitate to tell a client that the client is making a mistake by not taking a recommendation of the lawyer, but then will follow the client's wishes so long as the course of action is legal and ethical.

In other words, great trial lawyers understand that client is the boss, and unless the client is demanding illegal or unethical action or the relationship between lawyer and client has become so impaired that the lawyer cannot adequately represent the client, the lawyer yields to the client's wishes.

Negotiating with Terrorists: Choosing Your Bargaining Partners

I do try not to stray into foreign affairs.  Heck, negotiating with (not always rational) attorneys is difficult enough!  Yet, occasionally, I mention negotiation in the context of international relations, as in my recent post -- Al Qaeda, Understanding the Bean-Counter Next Door -- which I knew might get some irritable comments.

Many (like Christopher Annunziata of the CKA Mediation and Arbitration Blog) will question my sanity or my patriotism (a word so "spun" by current political realities that it has nearly lost its meaning /*) if I say without citation to some legitimate authority that governments can and do negotiate with terrorists. /**

Therefore, I'm providing my readers with an excerpt from a Foreign Affairs article -- Negotiating with Terrorists -- by Peter R. Neumann, Director of the International Centre for the Study of Radicalisation and Political Violence.   

Before moving on to the excerpt, I want to share an experience with you.  While studying at the Straus Institute I took part in a mock mediation among principals of Hamas, Israel and the PLO.  The first thing the mediator said was, "there's a party missing from this meeting."  He pulled an empty chair into the circle and said, "the children of Hamas, Israel and the PLO are missing.  This chair serves as a reminder to everyone that any agreement we reach must serve the interests of the children and that our failure to reach agreement will harm them."  

It was a powerful moment and although the mediation was "mock," everyone assumed their roles with great stridency as to the virtue of their respective positions.  When the discussion started to wheel out of control, as it did many times during the day, all the mediator had to do was to put his hand on the "childrens'" chair to restore collaborative purpose.   

Excerpt from Peter Neumann's article Negotiating with Terrorists below.  If this topic interests you, also see attorney Adir Waldman's book Arbitrating Armed Conflict here.

The argument against negotiating with terrorists is simple: Democracies must never give in to violence, and terrorists must never be rewarded for using it. Negotiations give legitimacy to terrorists and their methods and undermine actors who have pursued political change through peaceful means. Talks can destabilize the negotiating governments' political systems, undercut international efforts to outlaw terrorism, and set a dangerous precedent.

Yet in practice, democratic governments often negotiate with terrorists. The British government maintained a secret back channel to the Irish Republican Army even after the IRA had launched a mortar attack on 10 Downing Street that nearly eliminated the entire British cabinet in 1991. In 1988, the Spanish government sat down with the separatist group Basque Homeland and Freedom (known by its Basque acronym ETA) only six months after the group had killed 21 shoppers in a supermarket bombing.
Even the government of Israel -- which is not known to be soft on terrorism -- has strayed from the supposed ban: in 1993, it secretly negotiated the Oslo accords even though the Palestine Liberation Organization (PLO) continued its terrorist campaign and refused to recognize Israel's right to exist.

When it comes to negotiating with terrorists, there is a clear disconnect between what governments profess and what they actually do. But the rigidity of the "no negotiations" stance has prevented any systematic exploration of how best to conduct such negotiations. How can a democratic government talk to terrorists without jeopardizing the integrity of its political system? What kinds of terrorists are susceptible to negotiations? When should negotiations be opened?

The key objective for any government contemplating negotiations with terrorists is not simply to end violence but to do so in a way that minimizes the risk of setting dangerous precedents and destabilizing its political system. Given this dual goal, a number of conditions must be met in order for talks to have even a chance of success. Assuming that negotiations are appropriate in all cases would be no more valid a theory than one that assumes they never are. 

The first and most obvious question for any government considering negotiations is whether the terrorists it faces can make good negotiating partners. Bruce Hoffman, of Georgetown University; William Zartman, of Johns Hopkins University; and other experts believe that terrorists' stated aims and ideology should be the decisive factor in determining whether they might be willing to compromise. Hence, these experts draw a distinction between nihilistic terrorists, who have "absolute" or even "apocalyptic" goals (often religiously inspired) and for whom violence has become a perverted form of self-realization, and
more "traditional" terrorists, who are believed to be "instrumental" or "political" in their aspirations and so have the potential to become constructive interlocutors.

This distinction between supposedly rational terrorists and irrational ones, however, is often in the eye of the beholder. If the IRA and ETA appear to be more rational than, say, al Qaeda, it is because their goals -- nationalism and separatism -- have a long ...

The remainder of this article will unfortunately cost you $5.95 here (emphases my own).

_______________________

**/  If you use the simplest definition of "patriotism"  -- pride in one's own country -- I, like 90% of Americans, am extremely "patriotic."  I am proud of our Constitutional form of government, the American Enlightenment from which it drew its wisdom, and the rule of law.  I am particularly proud of the Bill of Rights, a document guaranteeing the liberties of the minority against the potential tyrannies of the majority.  My own favorite amendments are the First, the Fourth through Eighth, the Thirteenth through Fifteenth, and, of course, the Nineteenth. 

I'm proud to be descended from immigrants, both externally -- England, Sweden, Ireland, Scotland -- and internally -- an escape from the Dust Bowl to California. I'm proud of our unique social and economic mobility though not blinded to the fact that many are stuck in a cycle of poverty from which they have not been able to escape.  I'm proud of the public education system that provided me with the ability to go to University and Law School at a very minimal cost.  

I am proud to be a part of a culture and political system that values and protects dissent and supports a "free marketplace of ideas" as the best  means of distinguishing between the better and the worse; the good and the bad, the moderate and the radical, the useful and the not so much.   

There is also much about America of which I am not proud.  Just as there is much in myself that does not stir pride.  Because we are all dual natured, our political, social, and economic systems naturally follow -- greedy as well as generous; empowering as well as stifling; peaceful as well as war-mongering; forgiving as well as retributive.  In a democracy that encourages dissent, my criticims of American institutions and activities should never be taken for a lack of patriotism.  In fact, I consider it my patriotic duty to engage in the political process with the intention of making what is good better and diminishing that which is bad.  

**/  Here's a useful wikipedia definition of terrorism: 

As terrorism ultimately involves the use or threat of violence with the aim of creating fear not only to the victims but among a wide audience, it is fear which distinguishes terrorism from both conventional and guerrilla warfare. While both conventional military forces may engage in psychological warfare and guerrilla forces may engage in acts of terror and other forms of propaganda, they both aim at military victory. Terrorism on the other hand aims to achieve political or other goals, when direct military victory is not possible. This has resulted in some social scientists referring to guerrilla warfare as the "weapon of the weak" and terrorism as the "weapon of the weakest."

Al Qaeda: Understanding the Bean-Counter Next Door

(pictured:  papyrus scroll)

It was with more than a little relief that I read today's L.A. Times article on Al Queda's internal organizational memoranda -- Penalty for Crossing an Al Qaeda Boss?  A Nasty Memo.

They are, after all, not so different from us as people, however far their ideologies radically depart from our own.  And if they are not so different from us, we might be able to negotiate -- or at least have a conversation with --them -- rather than, say, torture their members to obtain the information we seek.   

Why?  Because conversation reveals interests which can then be served, traded, haggled over, bargained for and, for the peace-niks among us, actually understood. (See Negotiating with Terrorists here).

As the Times article reports this morning, Mohammed Atef, who died in the raid on Osama bin Laden's Afghan refuge in 2001, wrote many memos to the militants under his command, including one that accused a member of "misappropriating cash, a car, sick leave, research papers and an air conditioner during 'an austerity situation' for the network [and] demanded a detailed letter of explanation."  As Atef wrote: 

I obtained 75,000 rupees for you and your family's trip to Egypt. I learned that you did not submit the voucher to the accountant, and that you made reservations for 40,000 rupees and kept the remainder claiming you have a right to do so. . . . Also with respect to the air-conditioning unit, . . . furniture used by brothers in Al Qaeda is not considered private property. . . . I would like to remind you and myself of the punishment for any violation.

The Times reports that a study of the captured documents issued by the Combating Terrorism Center at West Point paints a

picture of internal strife that . . . highlights not only Al Qaeda's past failures but also -- and more importantly -- . . . offers insight into its present weaknesses[.] Al Qaeda today is beset by challenges that surfaced in leadership disputes at the beginning of the organization's history.

The documents reveal Al Qaeda as having an "egalitarian veneer" that   

coexisted with the bureaucratic mentality of the chiefs, mostly Egyptians with experience in the military and highly structured extremist groups.

"They may have imposed the blindingly obdurate nature of Egyptian bureaucracy," said a senior British anti-terrorism official who asked to remain anonymous for security reasons. "You see that in the retirement packages they offered, the lists of members in Iraq, the insecure attitude about their membership, the rifts among leaders and factions."

For the full Times article click here.




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.

The Zero Sum Game: Allstate's McKinsey Documents

HERE IS THE LINK TO THE ALLSTATE MCKINSEY DOCUMENTS; YOU MUST AGREE TO VIEW THE DOCUMENTS FOR NEWS OR INFORMATIONAL PURPOSES:  CLICK "ACCEPT" AND YOU WILL BE DIRECTED TO A PAGE CONTAINING ALL OF THE DOCUMENTS MENTIONED HERE

See also Tort Burger's Post on the Zero Sum Game Aspect of this Controversy here.

I have had a lot of traffic to this post and comments here and elsewhere on the internet about it and the Slabbed post it excerpts.

Because I never meant to "take sides" on a matter I know next to nothing about, I'm now including along with the Slabbed excerpt originally posted, an excerpt of a recent article from Bloomberg.com - Allstate Releases McKinsey Records (etc.) below.        

This post was originally meant to highlight Allstate's (or its consultant's) unfortunate use of the term "Zero Sum Game," when discussing claims handling procedures.  My original comment was that "those who continue to play it often get their  . . . uh . . . soft parts caught in a wringer."

The Slabbed post highlights the damage done to an admitted "Zero Sum Game Player" who is engaged in a human-harm-cost-benefit analysis.  The Pinto punitive damages award came readily to mind because the case was decided while I was in law school learning about negligence.      

For my non-attorney readers, I need to stress that it's not wrong to engage in a cost-benefit analysis for the compensation of injury under a negligence system.  In fact, this is what the law itself (and injured Plaintiff's attorneys) do, i.e., "calculate" the risk of harm + the potential severity of the injury against the cost of avoiding that harm.

People react badly when they see that type of calculation being applied to human injury or the loss of human life because those losses are considered to be "incommensurable," i.e., no amount of money can recompense someone for, say, the loss of a child. For an excerpt from my own article discussing the concept of incommensurability -- The Cost of a Thing is Your Life, click here.

I'm hoping my non-attorney readers will understand that these formal monetary calculations are routinely made by businesses and governments when making decisions about how much risk to human life is worth taking when they engage in potentially dangerous activities for the purpose of creating a significant benefit for many. 

That said, I give you again this excerpt from Slabbed's post on the McKinsey Allstate document furor -- The Herald Tribune Takes the Allstate Challenge --

In a previous post that received a notice in the Silicon Investor BB I spoke of insurers and their lawyers using the court system as instruments of institutionalized bad faith. Indeed Allstate has taken much criticism for ignoring lawful subpoenas over these documents as well as substantial fines as noted by Ms St John. This brings me to the beginning of the main story.

For more than a decade, Allstate Insurance Co. kept a secret from its auto policyholders — a national strategy to force customers to accept reduced cash payouts or face years in court.

Thousands of pages of Allstate documents reviewed by the Herald-Tribune detail how the nation’s second-largest insurer systematically cut payments to customers as a way to boost profits.

The documents describe a two-pronged strategy.

First, the company evaluates claims with a computer program designed to reduce payouts by as much as 20 percent of what the company once paid for the same injuries.

Second, Allstate pushes policyholders to accept quick settlements without the help of lawyers. Policyholders who try to fight for more money face Allstate attorneys coached to refuse to negotiate and to drag out litigation.

The approach often forces car accident victims to take what Allstate offers right away or spend years in court while their bills go unpaid — a strategy Allstate spelled out in guidelines for claims adjusters that “forces the claimant and attorney to think about the obstacles they must overcome …”

Indeed it appears we have a road map of how tort reform is being used against us. Limits on damages only make it easier for these large insurers to get away with outrageous behavior. The story continues:

It was a “Zero Sum Economic Game. Allstate gains … others must lose,” declared a consultant’s PowerPoint slide from a 1994 presentation to executives.

During the next five years of Allstate’s claims overhaul, the same consultant, New York-based McKinsey & Co., chose confrontational words to describe the new system. In PowerPoint presentations and discussion papers drawn up for Allstate executives, McKinsey used “boxing gloves” to characterize how Allstate should treat policyholders who balk at settlements. For customers who hired lawyers, McKinsey urged, “align alligators,” adding these instructions: “sit and wait.”

The documents also show:

Allstate removed much of the discretion of local claims agents to set payouts, requiring them to base their recommendations on a computer program called Colossus. Under that program, average payouts for bodily injuries dropped more than 20 percent in the first few years, internal documents show, a big step toward reaching McKinsey’s goal of “establishing a new fair market value” of such injuries.

Allstate recognized that when an injured driver hired a lawyer, the insurer lost money. In repeated presentations to Allstate executives, McKinsey coached tougher and increased legal action. By 1996, Allstate had doubled its legal force, hiring 225 more lawyers. “The bottom line is that Allstate is trying more cases than ever before,” a corporate newsletter said . . .

For full post from Slabbed click here.

Bloomberg.com's article, Allstate Releases McKinsey Records (etc.) Update No. 2 is here.

Excerpt from Bloomberg.com article below:

Allstate Corp., the second-biggest U.S. home and auto insurer, released 150,000 pages of documents sought by opposition lawyers and company critics related to McKinsey & Co.'s review of claims-handling practices.

McKinsey suggested strategies for the company to become more profitable by paying less in claims, according to videotaped evidence presented in Fayette Circuit Court in Lexington, Kentucky, in a civil case involving a 1997 car accident. Lawyers for policyholders said Allstate's previous refusal to release the documents showed the company wasn't treating its customers fairly. The insurer has said the documents include trade secrets.

``Public criticisms by people with a vested interest in creating an inaccurate picture of the company's claim practices have been based unfairly on only snippets from the documents taken out of context,'' the Northbrook, Illinois-based insurer said in a statement today. ``Because of the need to address misunderstandings resulting from the growing misplaced focus by our critics on very small pieces of the whole, we have decided to make the documents public.''

One slide the consultant prepared for Allstate was entitled ``Good Hands or Boxing Gloves,'' and recommended the insurer put on ``boxing gloves'' to deter about 10 percent of claims deemed to be exaggerated, padded, or fraudulent, according to portions of the report shown to the Kentucky jury. For more than 50 years, Allstate has advertised its employees as the ``Good Hands People,'' telling customers they will be well cared for in times of need.

Rising Claims

The strategy proposed by McKinsey would ``send a message to the attorneys of our proactive defense stance'' in cases dealing with minor impact soft tissue injuries, the consultant said in the document. Lawyers would have to ``think about the obstacles they must overcome to recover significant settlement or the benefits of a smaller, walk-away settlement.''

Allstate implemented the plan in the 1990s because studies showed more people were submitting claims even though accident rates were declining and cars were safer, Allstate lawyer Floyd Bienstock told the Kentucky jury. The McKinsey report found Allstate was overpaying bodily injury claims by 16 percent, Bienstock said.

``It was never a plan to intimidate people,'' he said.

To continue reading, click here.

Post from Washington D.C.; Lincoln on Right, Wrong, War, Peace and Yes, It's Sunday, God

I read this on the wall of the Lincoln Memorial yesterday, after standing on the steps and imagining Dr. Martin Luther King Junior's "I Have a Dream Speech" (video and text here) forty years after his assassination and said to my husband -- "don't you long for leadership like this again?"

See what Lincoln has to say about "God being on our side" and the end of negotiations in this short but stirring speech.  

At this second appearing to take the oath of the presidential office, there is less occasion for an extended address than there was at the first. Then a statement, somewhat in detail, of a course to be pursued, seemed fitting and proper. Now, at the expiration of four years, during which public declarations have been constantly called forth on every point and phase of the great contest which still absorbs the attention, and engrosses the energies of the nation, little that is new could be presented. The progress of our arms, upon which all else chiefly depends, is as well known to the public as to myself; and it is, I trust, reasonably satisfactory and encouraging to all. With high hope for the future, no prediction in regard to it is ventured.

On the occasion corresponding to this four years ago, all thoughts were anxiously directed to an impending civil war. All dreaded it--all sought to avert it. While the inaugeral [sic] address was being delivered from this place, devoted altogether to saving the Union without war, insurgent agents were in the city seeking to destroy it without war--seeking to dissole [sic] the Union, and divide effects, by negotiation. Both parties deprecated war; but one of them would make war rather than let the nation survive; and the other would accept war rather than let it perish. And the war came.

One eighth of the whole population were colored slaves, not distributed generally over the Union, but localized in the Southern part of it. These slaves constituted a peculiar and powerful interest. All knew that this interest was, somehow, the cause of the war. To strengthen, perpetuate, and extend this interest was the object for which the insurgents would rend the Union, even by war; while the government claimed no right to do more than to restrict the territorial enlargement of it. Neither party expected for the war, the magnitude, or the duration, which it has already attained. Neither anticipated that the cause of the conflict might cease with, or even before, the conflict itself should cease. Each looked for an easier triumph, and a result less fundamental and astounding. Both read the same Bible, and pray to the same God; and each invokes His aid against the other. It may seem strange that any men should dare to ask a just God's assistance in wringing their bread from the sweat of other men's faces; but let us judge not that we be not judged. The prayers of both could not be answered; that of neither has been answered fully. The Almighty has his own purposes. "Woe unto the world because of offences! for it must needs be that offences come; but woe to that man by whom the offence cometh!" If we shall suppose that American Slavery is one of those offences which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South, this terrible war, as the woe due to those by whom the offence came, shall we discern therein any departure from those divine attributes which the believers in a Living God always ascribe to Him? Fondly do we hope--fervently do we pray--that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue, until all the wealth piled by the bond-man's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash, shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said "the judgments of the Lord, are true and righteous altogether"

With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan--to do all which may achieve and cherish a just and lasting peace, among ourselves, and with all nations.

Mediator Ethics: Conflicts of Interest

1.  Steadfast adherence to a strict moral or ethical code. 2. The state of being unimpaired; soundness. 3. The quality or condition of being whole or undivided; completeness. ETYMOLOGY: Middle English integrite, from Old French, from Latin integrits, soundness, from integer, whole, complete.

 American Heritage Dictionary, 4th Ed. 2000

I attended a seminar recently in which a retired Judge-mediator said the following from the podium  -- "I don't tell a new client that I've mediated for his opposition before."

"Hmmmmmmm," I was thinking, "how's he going to justify that?" 

The answer, unfortunately, was by way of his own self-interest. 

"If I disclosed all of my former relationships with attorneys," the Judge said, "I'd never get any new business."   

I know this mediator; he's in heavy rotation and is a talkative guy.  So I'm assuming he's said this before and no one has corrected him, which means he's not the only one out there who's a little fuzzy on mediation ethics. 

This comment made me decide to address mediation ethics a little more systematically than I have before -- beginning with conflicts of interest and using the Association for Conflict Resolution's Model Standards of Conduct for Mediators as my starting point. 

STANDARD III. CONFLICTS OF INTEREST.

I invite comment from my blogging buddies -- Diane Levin, Gini Nelson, Stephanie West AllenGeoff Sharp and Christopher Annunziata if they have an extra moment in their day.  Take a look, by the way, at Michael Moffitt's post on Geoff Sharp's post on Mediators Who Party with Clients here.

A. A mediator shall avoid a conflict of interest or the appearance of a conflict of interest during and after a mediation. A conflict of interest can arise from involvement by a mediator with the subject matter of the dispute or from any relationship between a mediator and any mediation participant, whether past or present, personal or professional, that reasonably raises a question of a mediator’s impartiality.

B. A mediator shall make a reasonable inquiry to determine whether there are any facts that a reasonable individual would consider likely to create a potential or actual conflict of interest for a mediator. A mediator’s actions necessary to accomplish a reasonable inquiry into potential conflicts of interest may vary based on practice context.

C. A mediator shall disclose, as soon as practicable, all actual and potential conflicts of interest that are reasonably known to the mediator and could reasonably be seen as raising a question about the mediator’s impartiality. After disclosure, if all parties agree, the mediator may proceed with the mediation.

D. If a mediator learns any fact after accepting a mediation that raises a question with respect to that mediator’s service creating a potential or actual conflict of interest, the mediator shall disclose it as quickly as practicable. After disclosure, if all parties agree, the mediator may proceed with the mediation.

E. If a mediator’s conflict of interest might reasonably be viewed as undermining the integrity of the mediation, a mediator shall withdraw from or decline to proceed with the mediation regardless of the expressed desire or agreement of the parties to the contrary.

F. Subsequent to a mediation, a mediator shall not establish another relationship with any of the participants in any matter that would raise questions about the integrity of the mediation. When a mediator develops personal or professional relationships with parties, other individuals or organizations following a mediation in which they were involved, the mediator should consider factors such as time elapsed following the mediation, the nature of the relationships established, and services offered when determining whether the relationships might create a perceived or actual conflict of interest.

Would You Like a Helping of Tolerance and Empathy with that Easter Dinner?

Red and yellow black and white they are precious in his sight Jesus loves the little children of the world.  Lyrics C. Her­bert Wool­ston (1856-1927); Music: George F. Root (1820-1895) (MI­DI, score). Root orig­in­al­ly wrote this tune for the Amer­i­can civ­il war song Tramp, Tramp, Tramp.

Verily I say unto you, Whosoever shall not receive the kingdom of God as a little child shall in no wise enter therein.  Luke 8:17 

Easter is one of those holidays that resists secularization unless you have children, grandchildren, hard boiled eggs and a rainbow of pastel dyes. 

People don't casually say "Happy Easter" to one another, particularly in an urban American city and especially if half your family is Jewish.

Still, Easter reminds me that I used to be a practicing Protestant and that my values derive substantially from the liberal Christian teachings I was dipped into as a child -- first in Sunday School and then in church.

What did I learn?  Tolerance.  Compassion.  Empathy. Forgiveness.  Reconciliation. And perhaps most important of all, the genuine potential for every ordinary human spirit to experience a radical transformation -- so radical that one might say the individual had been reborn as a spiritual being. 

Listen, this is not light weight stuff. 

I like to write, but I'm no philosopher.  Nor am I writer with a huge brain, steadily empathic heart, encyclopedic knowledge, original thought or the courage to dream paradigm shifting dreams.  I do know that writer, however.  His name is Ken Cloke and I am steadily making my way through all 500 and something pages of his new book.  

These are the times to put our own individual highly personal spiritual or religious faith and a great deal of our material resources behind the transformation of human understanding necessary to save the species.  (as James Lovelock , author of Gaia instructed us, we have no need to worry about the persistence of the planet itself.  We are not necessary to its survival; we are merely its "spokesmodels.")  

As my personal Easter offering, I give you yet another excerpt from Ken's soon-to-be-released book Conflict Revolution - Mediating Evil, War, Injustice and Terrorism or How Mediators Can Help Save the Planet.

How Prejudice Works, and How to Oppose It

Prejudice is complex and operates on many levels. It can be found not only in insults and judgments, caricatures and stereotypes, but refusals to listen and communicate, stories of demonization and victimization, inability to experience empathy with others, and infinitesimal denials of humanity. It is reflected in personal selfishness and hostile relationships, bullying and aggressive behaviors, and ego compensations based on poor self-esteem. It is expressed through contempt, disregard, and domination, as well as through low status, inequitable pay, and autocratic power.


Prejudice commonly operates by stereotyping. People form stereotypes, in my experience, in eight easy steps:


1. Pick a characteristic
2. Blow it out of proportion
3. Collapse the person into the characteristic
4. Ignore individual differences and variations
5. Disregard subtleties and complexities
6. Overlook commonalities
7. Match it to your own worst fears
8. Make it cruel

If these steps routinely produce prejudice, it is possible to undo them, for example, by making people more complex than their stereotype permits, or distinguishing unique individuals within a group, or recognizing commonalities between people. It helps, in doing so, to acknowledge that everyone is equal, unique, and interesting; that everyone forms prejudices; that everyone can learn to overcome them through awareness, empathy, and communication; and that everyone can become more skillful in communicating across stereotypes and lines of separation created by fear.


It is common for people, when accused of prejudice, to respond defensively, but to confront other people’s prejudices aggressively, leveling accusations and instilling shame. These responses may initially succeed in suppressing the expression of prejudicial attitudes and undermining social permission and the cultures of discrimination that allow it to continue. But to root out the deep-seated biases that keep prejudice alive, it is necessary to dismantle it at a deeper level, in people’s hearts and minds.

Our principal goals in responding to prejudice are therefore not to castigate, blame, or point fingers at those who exhibit prejudicial attitudes, as shaming and blaming merely triggers defensiveness and counterattack. Instead, they are to defuse prejudice by assisting those in its grip (including ourselves) to:

  1. develop a knowledgeable, confident self-identity, and appreciate who they are without needing to feel superior to others 
  2. experience comfortable, empathetic interactions with diverse people and ideas 
  3. be curious and unafraid of learning about differences and commonalities 
  4. feel comfortable collaboratively solving problems and negotiating differences 
  5. be aware of biases, stereotypes, and discrimination when they occur 
  6. stand up for themselves and others in the face of prejudice, without becoming biased in turn 
  7. experience diverse affectionate relationships that grow stronger as a result of differences

John Adams and Ken Cloke's new Book Conflict Revolution

(image from Fixing Australia, the Blog)

My husband and I were watching part II of the John Adams series on HBO last night -- the part where Benjamin Franklin gives Adams (Paul Giamatti) some OJT on international diplomacy, beginning with -- and I paraphrase -- "you can't get a man to do what you want him to do by publicly humiliating him." 

Later, Abigail Adams (Laura Linney) gives essentially the same advice in a womanly way. 

"A man likes to make his own decisions," she says as she sends John off to the Continental Congress to seek men and arms (and help from the French) in  Massachusetts' recent violent confrontations with the British Army. 

Abigail takes a breath to make sure her head-strong husband can hear her. 

"Men," she concludes, "do not like to have their decisions made for them."  

Still, it wasn't until we reached the movie's scenes dramatizing the delegates' after-hours meetings in the local public house that my husband finally turned to me and said "they're mediating in separate caucus."   

The Unity Necessary for Political Change Requires Mutual Self-Interest and Common Ground

The unity necessary to make the agonizingly difficult 1776 decision for independence, revolution and war was not achieved by persuasive argumentation, but by the alignment of each state's self-interest with the self-interest of each other state.  This was Franklin's brilliance as international ambassador and as one of the founders of our unprecedented and improbable political enterprise - the united states.  

All of which takes me to Ken Cloke's new book Conflict Revolution -- Mediating Evil, War, Injustice, and Terrorism -- which I've been reading in draft but that you'll soon be reading in print --  pre-order now -- courtesy of Janis Publications

I want to tell you all about Ken's revolutionary shift from rights and power on the one hand to mutually beneficial interests on the other, but I've got work to do.  For now, I'll leave you with a snippet from his last chapter which should whet your appetite for more.

Political theorist John Schaar wrote:

“The future is not some place we are going, but one we are creating. The paths are not to be found, but made. And the activity of making them changes both the maker and their destination.”

Ultimately, we are the social, economic, political, and environmental impediments we are seeking to overcome. All the problems and conflicts we want others to resolve are already present within us. The systems, paradigms, cultures, and environments we regard as dysfunctional exist not just around and between, but within each of us. They are us, even if we have devoted our lives to changing them, and must be transformed both within and without.

Systemic, paradigmatic, transformational, revolutionary changes therefore require personal as well as social revolutions. These revolutions do not happen merely by participating in recycling efforts to reduce environmental pollution. At their deepest level, they require us to actually experience ourselves as no different from the plants and animals we are destroying and, more problematically, from the people who are doing the destroying. Only by accepting personal responsibility for global problems on this scale can we discover where they begin inside us, and identify the practical steps we can take to stop them at their source.

Consequently, we not only need to transform the dominating and coercive nature of social, economic, political, and environmental power, and dismantle them at their systemic source by expanding the use of interest-based alternatives and increasing the ability of civil society to solve problems collaboratively. We also need to refuse to participate in them personally, even when they are dedicated to achieving “good” ends. This is no easy matter, both because a great deal is at stake and because domination and coercion are not just large-scale events, but small, barely noticeable everyday behaviors whose origin lies in all of us.

In Celebration of Mediation Week: Legal Story Telling and the Obama Speech

I don't know if today's post by Paul Secunda over at Concurring Opinions was penned in recognition of Mediation Week, but it might as well have been.  See The First-Person Narrative in Legal Scholarship here -- excerpt below.  

Allen Rostron[ and] Nancy [Levit's] . . . . series in the UMKC Law Review last year called Law Stories: Tales from Legal Practice, Experience, and Education . . . [was begun] to expand on the art of legal storytelling:

Over the last few decades, storytelling became a subject of enormous interest and controversy within the world of legal scholarship. . . Some . . . . told accounts of actual events in ways that gave voice to the experiences of outsiders. . . . [A]  major textbook publisher developed a new series of books that recount the stories behind landmark cases . . . to help students appreciate not only the players in major cases, but also the social context in which cases arise. . . 

Legal theorists began to recognize what historians and practicing lawyers had long known and what cognitive psychologists were just discovering - the extraordinary power of stories. Stories are the way people, including judges and jurors, understand situations. People recall events in story form. Stories are educative; they illuminate different perspectives and evoke empathy. Stories create bonds; their evocative details engage people in ways that sterile legal arguments do not.

Because . . . I [too] believe that legal storytelling is not only educative, but also a way to illuminate different perspectives, I chose to contribute this year to the Second Law Stories Series [--] Mediating the Special Education Front Lines in Mississippi [which] comes directly from my first-hand experiences as a special education mediator in Mississippi.

Professor Secunda concludes by asking whether story-telling should have a place in legal scholarship.  And quite a propitious day he posed to ask the question.

Barack Obama and the Racial Divide

Obama's speech today -- triggered by but not solely given to address questions about inflammatory statements made by his pastor from the pulpit -- was grounded in story.  Why?  Because only the texture, detail, ambiguity, contradiction, and paradox of actual "lived experience" at a particular time and in a specific place, is capable of approaching the "truth" of the human  predicament.  Where does story start?  Classically, with one's his birth and lineage.   

I am the son of a black man from Kenya and a white woman from Kansas. I was raised with the help of a white grandfather who survived a Depression to serve in Patton’s Army during World War II and a white grandmother who worked on a bomber assembly line at Fort Leavenworth while he was overseas. I’ve gone to some of the best schools in America and lived in one of the world’s poorest nations. I am married to a black American who carries within her the blood of slaves and slaveowners – an inheritance we pass on to our two precious daughters. I have brothers, sisters, nieces, nephews, uncles and cousins, of every race and every hue, scattered across three continents, and for as long as I live, I will never forget that in no other country on Earth is my story even possible. 

Giving to Airy Nothings/A Local Habitation and a Name

By beginning with autobiography, by taking the time to tell his wholly personal yet universal story, Obama does what Shakespeare said all writers must do -- "give[] to airy nothings/a local habitation and a name."  No single snapshot, no view from 30,000 feet, no abstract and colorless (or "colored") everyman can do much more than to "simplify and stereotype and amplify the negative to the point that it distorts reality."

We should long have known that only a bi-racial man might be permitted to take the national stage to address "white" demoralization with as much forcefulness as "black" misery; to describe "black" and "white" anger with equal understanding; to say that "[m]ost working- and middle-class white Americans don't feel that they have been particularly privileged by their race."

Their experience is the immigrant experience – as far as they’re concerned, no one’s handed them anything, they’ve built it from scratch. They’ve worked hard all their lives, many times only to see their jobs shipped overseas or their pension dumped after a lifetime of labor. They are anxious about their futures, and feel their dreams slipping away; in an era of stagnant wages and global competition, opportunity comes to be seen as a zero sum game, in which your dreams come at my expense. So when they are told to bus their children to a school across town; when they hear that an African American is getting an advantage in landing a good job or a spot in a good college because of an injustice that they themselves never committed; when they’re told that their fears about crime in urban neighborhoods are somehow prejudiced, resentment builds over time.

To acknowledge that 

for the men and women of Reverend Wright’s generation, the memories of humiliation and doubt and fear have not gone away; nor has the anger and the bitterness of those years. That anger may not get expressed in public, in front of white co-workers or white friends. But it does find voice in the barbershop or around the kitchen table. At times, that anger is exploited by politicia ns, to gin up votes along racial lines, or to make up for a politician’s own failings.

And occasionally it finds voice in the church on Sunday morning, in the pulpit and in the pews. . . . . That anger is not always productive . . . But [it] is real; it is powerful; and to simply wish it away, to condemn it without understanding its roots, only serves to widen the chasm of misunderstanding that exists between the races.

So Where Do We Begin?

Story, for Obama, is not simply a way to approach the difficult truth.  It is the instrument to cauterize our wounds; the weapon with which to resist the easy answer and the politically "correct" response.  

Just as black anger often proved counterproductive, so have . . . white resentments distracted attention from the real culprits of the middle class squeeze – . . . . And yet, to wish away the resentments of white Americans, to label them as misguided or even racist, without recognizing they are grounded in legitimate concerns – this too widens the racial divide, and blocks the path to understanding.

This is where we are right now. It’s a racial stalemate we’ve been stuck in for years.

So where do we begin? 

With story.  

"There is a young, twenty-three year old white woman named Ashley Baia who organized for our campaign in Florence, South Carolina," Obama concludes.

She had been working to organize a mostly African-American community since the beginning of this campaign, and one day she was at a roundtable discussion where everyone went around telling their story and why they were there.

And Ashley said that when she was nine years old, her mother got cancer. And because she had to miss days of work, she was let go and lost her health care. They had to file for bankruptcy, and that’s when Ashley decided that she had to do something to help her mom.
She knew that food was one of their most expensive costs, and so Ashley convinced her mother that what she really liked and really wanted to eat more than anything else was mustard and relish sandwiches. Because that was the cheapest way to eat.

She did this for a year until her mom got better, and she told everyone at the roundtable that the reason she joined our campaign was so that she could help the millions of other children in the country who want and need to help their parents too. . . . 

. . . Ashley finishes her story and then goes around the room and asks everyone else why they’re supporting the campaign. They all have different stories and reasons. Many bring up a specific issue. And finally they come to this elderly black man who’s been sitting there quietly the entire time. And Ashley asks him why he’s there. And he does not bring up a specific issue. He does not say health care or the economy. He does not say education or the war. He does not say that he was there because of Barack Obama. He simply says to everyone in the room, “I am here because of Ashley.”

“I’m here because of Ashley.”

The recognition that we are involved, engaged, hopeful, willing, motivated, cheered, encouraged, and made more courageous because we have connected with one specific textured, multi-dimensional, storied human being, is not, Obama admits "enough."  

"But it is where we start."

Yet Another Arbitration Clause Bites the Dust

When we bought our house 6 years ago, Mr. Thrifty struck all ADR provisions from the sales contract.  He's come to respect ADR much more in the last few years.  Still, I believe he'd choose access to the justice system over its alternatives.

Though Mr. Thrifty -- a litigator -- was bold enough to alter a form contract, few other home buyers would be.  

Now it appears that the California courts will protect home buyers from arbitration agreements buried in the voluminous documents all home buyers sign when they purchase a house.  See Bruni v. Dideon, just decided by the Fourth Appellate District of California.  Summary below courtesy of the Metropolitan News-Enterprise

Where homebuyers alleged that arbitration clause was contained in preprinted and "voluminous" documents, there was no negotiation, they understood the documents were being presented to them on a "take it or leave it" basis, they [were] generally . . not familiar with real estate documents or with "legalese," were not told to read to read warranty--which contained arbitration provisions . . . .  and were not given enough time to read the warranty or any of the other documents [prior to signing, the] issue as to whether homebuyers knowingly agreed to arbitrate was subject to judicial determination regardless of provision requiring that issues regarding enforceability of arbitration clause be submitted to arbitration.

Where . . . plaintiffs had to accept arbitration provisions if they wanted to buy a house, [the]provisions were part of a preprinted form contract, any attempt to negotiate . . . . the terms of the warranty would have been fruitless, the provisions took up one page of a 30-page booklet that was buried in [a] "voluminous" stack of purchase and sale documents, and plaintiffs were never asked to read the arbitration provisions before signing, those provisions were adhesive and unconscionable, and trial court correctly exercised its discretion by refusing to enforce them.

Let's Just Go Ahead and Assume that, Torture or Not, Waterboarding is A-O.K. The Very Bottom Line? "Torture is Essentially Useless"

I don't make this stuff up.  Read Pray and Tell from the American Prospect Online Edition by Jason Vest, excerpt below and full article here.  

ON MAY 13, 2004, AS THE WORLD MEDIA WERE IN full serum over Abu Ghraib, an FBI agent who had spent time interviewing terrorism suspects at the U.S. detention facility at Guantanamo Bay, Cuba, fired off a gloomy e-mail to a colleague. Venting about what had happened in Iraq and expressing his fears that, despite the scandal's coverage, nothing would change, much of the agent's angst had to do with post-September 11 notions that treating terrorism suspects as human beings was neither necessary nor useful.

"From what CNN reports, [General Janis] Karpinski at Abu Ghraib said that [General Geoffrey] Miller came to the prison several months ago and told her they wanted to 'gitmoize' Abu Ghraib," he wrote. "If this refers to [intelligence] gathering as I suspect, it suggests that he has continued to support interrogation strategies we not only advised against, but questioned in terms of effectiveness ... we were surprised to read an article in Stars and Stripes, in which [General] Miller is quoted as saying that he believes in the rapport-building approach. This is not what he was saying at [Guantanamo Bay] when I was there."

One among tens of thousands of official documents pried out of government hands under the Freedom of Information Act (thanks to the American Civil Liberties Union), this one, like so many others, never found its way into anyone's story. But from a review of thousands of documents--e-mails, still-unreported communiqu6s, and other pieces of paper--certain themes have become increasingly apparent. Among the most consistent: FBI agents issued repeated objections to the use of torture against foreign terrorism suspects. And from this theme emerges a conclusion that future presidential administrations, and all American citizens, would do well to remember: For the purpose of prying actionable information from suspects, torture is essentially useless.

A Dark Day in America: Torture Veto Vetoed

Being "neutral" does not mean we check our common human decency at the door. 

Do understand this however.  When we are feeling frightened and disoriented, anger and its explosive cousin rage, consolidates our sense of self.  This is one of the main reasons why aggression is so emotionally satisfying.  /**

Let's do continue to talk with one another about these matters -- whether we agree about them or not.  Understanding our own fallible human nature and forgiving ourselves for our momentary failures to rise above our baser instincts is the critical first step in living our values.  

Today, this morning, I must admit that my response to the headlines is anger. My own fear and anger, however, have not been transmogrified into national and international policy and practice.  I am sorry, very sorry, to say that the American administration's fear and anger has been. 

From the BBC News 

Bush vetoes interrogation limits 

US President George Bush says he has vetoed legislation that would stop the CIA using interrogation methods such as simulated drowning or "water-boarding".
He said he rejected the intelligence bill, passed by Senate and Congress, as it took "away one of the most valuable tools in the war on terror".  The president said the CIA needed "specialised interrogation procedures" that the military did not.  Water-boarding is condemned as torture by rights groups and many governments.  It is an interrogation method that puts the detainee in fear of drowning.

Continue reading here.

Despite the advice of mothers everywhere -- "you get more with honey than with vinegar" -- that renegade of international law, George Bush, has once again contravened this country's aspirational goal of serving as a model of human rights and liberties. 

Why mother was right -- and Bush wrong -- in my next post.

_________________________

/** 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. See See D.L. NATHANSON, SHAME AND PRIDE: AFFECT, SEX AND THE BIRTH OF THE SELF 209 (1992).
Thus do people who feel humiliated by another's aggression (such as the 9/11 attacks) respond in an attack mode, particularly those who feel "endangered" by the depths to which their self-esteem has been reduced by the assault on their sense of safety and self-determination.  Id. Such individuals experience humiliation as a threat to their physical well-being and lack the ability to trust and rely upon others. Id. 

Peace in the Law Firm: What Do Women Lawyers Really Want?

(collage by artist Tamar Factor)

I'm ridiculously excited to announce that the new issue of The Complete Lawyer is out and that it focuses on women's legal careers -- see The Complete Lawyer's What Do Women Lawyers Really Want here!

Publisher Don Hutcheson has added an ADR column to his brilliant work-life-balance journal -- The Human Factor -- written by my good blogger buddies Stephanie West Allen of idealawg and Brains on Purpose, Gini Nelson of Engaging Conflicts, and Diane Levin of the Mediation Channel.  You can meet these tremendous Renaissance women attorneys in the first column in which we introduce ourselves to The Complete Lawyer's readers.

In this issue, I also review a little book about networking called The Go Giver by Bob Burg and John David Mann -- a happy prescription for a successful career for those of us who have the education, training and experience to give freely and make use of the benefits that flow from our fortunate human tendency to reciprocate favors. 

Ending the Gauntlet -- Removing Barriers to Women's Success in the Law

The "Women's" issue comes at a time when I'm hungrily devouring Lauren Stiller Rikleen's tremendously readable, inspiring and fascinating Ending the Gauntlet -- Removing Barriers to Women's Success in the Law.  I'm not even through Chapter One yet and I can tell you that this is no ordinary book about women's challenges in the legal profession.  It's a book for men and women who can still recall -- and share with future generations -- a time when law firms were more like professional partnerships than the corporate behemoths so many have become.

As Ms. Rikleen promises, her book explores the "confluence of circumstances"  that marked my generation and shaped the following generations of women in the law -- the flood of female attorneys into firm practice in the 1980's coupled with the modern law firms' explosion in size, wealth and complexity.  

To give you a small taste of Ms. Rikleen's scholarship and vision, here's a thumb-nail of her diagnosis of the ills that have beset Mid-to-BigLaw practice:  

As [law firms] have grown . . . they have failed to develop an infrastructure which could channel the energies that have led to huge financial success into a coherent management framework.  The result is a series of internal, unstructured organizational units which often have more in common with life in the frontiers of the Old West than they do with sophisticated businesses.

Sound familiar?  Either buy the book now! or wait for my lengthier review in an upcoming issue of The Complete Lawyer.

"Coerced to Settle By Attorneys"

Sometimes reading my statistics page is the best way I have of taking the pulse of my readers and diagnosing the current actual rather than the aspirational state of settlement and mediation practice.

Listen.  Only the squeakiest client or party wheel will tell you that he is feeling coerced into settling the litigation that has become a millstone around your neck.

I'm talking to attorneys here -- but settlement officers, judges and mediators should pay attention as well.  Whether you're representing the CEO of a Fortune 500 Company or the 60-year old man who slipped on the iconic darkened bananna peel in the produce section of the local Ralphs, at some point during settlement negotiations your clients are going to suspect one or more of the following:

  1. you're tired of his case and want to get rid of him
  2. you're in cahoots with opposing counsel, with whom, frankly, you have a far more enduring if not affectionate relationship than with your client
  3. you and your old buddy the mediator or settlement judge/officer have joined forces to to compel him to give up his legal rights in exchange for less money than you, his attorney, told him he was likely to recover two years ago
  4. despite his protests, you, the mediator and opposing counsel keep saying the fact most important to his case  is "irrelevant" to his chances of recovery
  5. when you talk to opposing counsel or the mediator about the case, he doesn't even recognize what you're talking about -- this is not the same case he brought to you to try two years ago
  6. he feels extorted and no one is paying any attention to that
  7. he feels like he's being sold down the river and no one is paying any attention to that
  8. he paid his you and your law firm tens of thousands, hundreds of thousands, millions or tens of millions of dollars in attorneys fees and he thinks he could have settled the case for the sum that's being offered/demanded now before he paid you to litigate this case to the settlement conference.
  9. he's really really irritated now -- angry even -- though he doesn't get angry; he gets even, and he'll have no trouble spending another few million on attorneys fees so show that lying, cheating so and so in the other caucus room a thing or two
  10. he's a successful business man and he's never been treated with so little respect before.

Now let me tell you something else.  If these thoughts are some of those which race through your clients' minds during settlement conferences, your mediator should be sufficiently alert to the changing temperatures in the room to address them. 

Why?

Because the mediator's job is not to settle the case.

What??????????????????????????

The mediator's job is to:

  1. assist you in helping your client understand the options available to him
  2. assist you in delivering bad news to your client in a way your client can hear it
  3. assist you in negotiating as good a settlement as possible for your client without making your client feel as if he has no other options
  4. assist you in resolving for your client the justice issues that your client originally brought to you to resolve
  5. assist you in helping your client recognize and set aside the emotional experience of the settlement conference for the purpose of doing a sober cost-benefit analysis
  6. assist you in helping your client recognize that legal cases change over time; sometimes getting better and sometimes getting worse, usually both in the discovery process -- this is not the case your client originally brought to you -- untarnished by the harsh adversarial systems but puts "facts" to a more exacting test than any other process in business, political or social life
  7. assist you in helping your client recognize his own fallibility, potential for error, and accountability for his part of the harm for which he is seeking recompense
  8. assist you in helping your client recognize that the other side -- evil, destructive and hateful as it may well be -- also has a few items of "truth" and "justice" on its side of the balance sheet
  9. assist you in helping your client make an informed decision without pressure from anyone whether he wishes to accept less than he wants to or would like to take his chances at trial
  10. assist you in walking away from the mediation or settlement conference with your client clapping you on the back and saying, "great work, John.  If I'm ever in need of a litigator again, rest assured it's to you I will come.  I'll tell my friends on the block or on the Board of Directors that you're the man.

How do we accomplish these ten aspirational goals together -- attorney and mediator and client?  Stay tuned.

The Jerry McGuire video above is for our clients -- with whom we do not share just how hard we are working and what a toll it takes upon us because that's what they've paid us to do -- and paid us handsomely I might add.

Why the Legal Blogosphere? Try Ken Adams

O.K., from time to time I draft a brief for someone.  It keeps my hand in the game and REALLY -- it's MUCH EASIER to make $$$ doing what I did for 25 years than for what I've been doing for four.  I have HIGH HOPES that my research and writing mini-career will soon be shut down by my ADR career, but in the meantime . .. . . .

Shameless plug:  Listen . . . . I'm very very very very good at negotiating the resolution of complex commercial litigation.  I should be in heavy rotation.  Try me!  I won't let you down.

What this post is really about

Not that long ago, appellate attorney Greg May asked the readers of his excellent California Blog of Appeal how they used the legal blogosphere to help their clients.  I answered, but I didn't have anything really exciting to report.  Until this morning.

Yesterday, I spent hours researching a fairly obscure contract interpretation question.  I didn't find case ONE and I'm a pretty good little first year research associate -- always was.  So what did I do?  I turned to my virtual buddy, Ken Adams (who never writes a rambling post like this one) over at the brilliant, thorough and sophisticated Adams Drafting.  My brain must have been turned off yesterday because I couldn't find anything by searching his blog either.

So I did what I told my readers over at the IP ADR blog to to yesterday -- say "please."

Voila!!  In my in-box this morning, a link to the most comprehensive, practical, brilliant (relatively lengthy) article ON MY PRECISE LEGAL QUESTION that could easily make the difference between winning a $2.5 million appeal or losing it.

Listen.  You can't find this stuff in academic articles.  And you can't find it in Witkin or CalJur or AmJur or in the case law.  You can't find it in the California Civil Code's canons of construction or maxims of jurisprudence (my favorite:  "superfluity does not vitiate").

Ken Adams is the foremost authority on contract drafting in the nation.  And I have that wisdom tucked into my back pocket the moment it finally occurs to me to go over to his blog to have a look see.  

So that's how I use the legal blogosphere.  It's my law firm.  It's my community.  It's my home. 

How much better does it get?

Thanks Ken!

The Peace Symbol Turns Fifty

Thanks to Dominique Foucart at Réseau Médiation for directing us to the web site of the 50th Anniversary of the Peace Symbol here -- which we picked up in Dominique's weekly column -- this week in the anglophone blogosphère.  

Take a look.  Not only will you find a world of peace symbol images, but also other Peace Sign memorabilia.  Yes, I'm nostalgic and yes, it's not as easy as flashing the "peace sign" at the on-lookers from a 1969 Viet Nam War protest rally, but it is what we all want and it is possible. 

Why do I continue to believe in peace despite having lived a sufficient number of years to become weary and cynical?

Because it was only a few hundred years ago that our very British ancestors (well, my very British ancestors) were beheading traitors and putting their heads on spikes on the London Bridge.

You've got to admit, things have gotten better over time!

The peace symbol used here was contributed to the Peace Symbol Anniversary site by Kirsten Joost of Toronto Canada.  Thanks Kirsten!

Mediation Advocacy: The Litigation Narrative

In the middle of the journey of our life I came to myself within a dark wood where the straight way was lost. Dante Alighieri

When the journey turns from litigation to mediation, it's helpful to remember that we litigators are classic Hollywood hyphenates -- the writers-directors-actors of our client's story  -- and that our client has generally moved more and more into the background as the "executive" producer, i.e., the money guy with the power of the final cut. 

Since we've been building our narratives of right and wrong, good and evil, black and white for a pretty long time before mediation rolls around, it's good for us -- as authors of our clients' morality tales -- to step back for a moment and observe the inevitable structure of the litigation "story" we've been so busy writing.   

To help us do that, I'm going to walk myself and my readers through a fascinating article with an incredibly boring title -- CLIENT COUNSELING, MEDIATION, AND ALTERNATIVE NARRATIVES OF DISPUTE RESOLUTION, from the Clinical Law Review (10 Clinical L. Rev. 833 Spring 2004) by Law Professor Robert Rubinson

For full article, click on the link above.  The excerpt below concerns the standard litigation narrative that we make our living writing.  

Let's start as [legal] narrative itself starts, with the Steady State and the Trouble that upsets the Steady State: The world is in order. People are acting towards each other as they should, or at least no one is straying too far from the norm. And then . . . something happens. One party claims that another party did something to generate disorder, to make the world out of joint. In other words, Trouble disrupts the Steady State.

In a breach of contract case, the parties enter into a contract (Steady State) and then one party breaches the contract (Trouble). In a tort case, plaintiff is walking on the sidewalk (Steady State) and then slips and falls (Trouble), or plaintiff is having a beer (Steady State) and then defendant slugs plaintiff (Trouble). In a criminal case, a bank is doing what banks ordinarily do (Steady State) and then is held up by a defendant armed with a gun (Trouble).

The defendant claims either that: 1) nothing happened, and an attempt to demonstrate otherwise is itself an example of disorder and thus of Trouble, and/or 2) something did happen to generate disorder, but it was the other party that did it.

So who is right and who is wrong,  . . . . who is the real source of Trouble? The assumption that one party is right and one party is wrong is not open to question; litigation is based on a shared norm among all participants (litigants, judge, jury) that only one of the litigants is right about "what happened." Since there is only one true source of Trouble, parties expend Efforts to demonstrate to the finder of fact that their story is the "right" one. 

These Efforts are subsumed within the procedures of litigation itself. Parties are successful in their Efforts to the extent the judge (or jury) decides that the origins of Trouble are as a party claims. Thus, the end result of successful Efforts is that a judge or jury Restores the Steady State by granting relief to the party whose version of Trouble is the right one.

To recapitulate, parties first come to litigation with divergent versions of Trouble. The court's job is to finish the story the "right" way so that a party's story makes sense. A bare bones representation of this narrative scheme would be as follows:

Joe's Story Steady State [already happened]: Dave and I were talking.

  • Trouble [already happened]: Dave punched me.
  • Efforts [is happening]: I am showing and will show that Dave owes me money for my injuries.
  • Restoration of Steady State [should happen]: Dave pays me money.
  • Coda [should happen]: Justice is done.


Dave's Story Steady State [already happened]: Joe and I were talking.

  • Trouble [already happened]: Joe swung his arm to punch me. As a reflex, I hit him.
  • Efforts [is happening]: I am showing and will show that this case must be dismissed.
  • Restoration of Steady State [should happen]: This case is dismissed.
  • Coda [should happen]: Justice is done.

Once the litigation is concluded, the "true" plot of the story can now be told completely and definitively. Either Joe's right, or Dave's right, or some combination thereof is right. Such a story - its fuzziness and indeterminacy stripped away - is familiar to every first-year law student . . . . 

Even this brief tour highlights an important dimension of litigation. The engine that drives litigation is a kind of anxiety about story completion. "Facts" need to be "found." The goal of an advocate is to persuade the decision-maker that the advocate's story is the right one, and if the advocate's story is the right one, then the "ending" - that is, the Restoration or Transformation of the Steady State - flows from it. In this sense, the Efforts are a contest about who caused the Trouble, and "finding" who did determines what the proper Restoration should be.

The Mediation Narrative from Professor Rubinson's article tomorrow.

Diane Levin and Jim Melamed on Presidential Negotiation Styles

There is no golden age, nor any "right" candidate (I'm still hoping for a Clinton-Obama ticket and no I don't care whose name is above the title; I'm for marrying vision with experience instead of wasting everyone's considerable contributions on a Democratic firing squad -- a CIRCLE). 

Still, it's good to hear mediators talking about the Presidential race, particularly  Diane Levin and Jim Melamed, the latter who published Obama's Message - Mediation's Political Triumph -- at mediate.com and the former who warns us all against One Trick Ponies here.  

Melamed's citation of Obama's "mediative" debating points below:  

  • “ . . . it is important for the United States to not just to talk to its friends but also to talk to its enemies. In fact, that's where diplomacy makes the biggest difference.”
  • “I recall what John F. Kennedy once said, that we should never negotiate out of fear, but we should never fear to negotiate. And this moment, this opportunity when Fidel Castro has finally stepped down, I think is one that we should try to take advantage of.”
  • “But I do think it is important, precisely because the Bush administration has done so much damage to American foreign relations, that the president take a more active role in diplomacy than might have been true 20 or 30 years ago. I think that it's important for us, in undoing the damage that has been done over the last seven years, for the president to be willing to take that extra step.”
  • “We are a nation of laws and we are a nation of immigrants, and we can reconcile those two things.”
  • “And the Bush administration is not real good at listening. That's not what they do well. (Laughter.) And so I will reverse that policy.”
  • “. . . And what they see is that if we don't bring the country together, stop the endless bickering, actually focus on solutions and reduce the special interests that have dominated Washington, then we will not get anything done. And the reason that this campaign has done so well -- (applause) -- the reason that this campaign has done so well is because people understand that it is not just a matter of putting forward policy positions.
  • Senator Clinton and I share a lot of policy positions. But if we can't inspire the American people to get involved in their government, and if we can't inspire them to go beyond the racial divisions and the religious divisions and the regional divisions, that have plagued our politics for so long, then we will continue to see the kind of gridlock and non-performance in Washington that is resulting in families suffering in very real ways.”
  • “And I've said that I'm going to do things differently. I think we have to open up the process, everybody has to have a seat the table, and most importantly, the American people have to be involved and educated about how this change is going to be brought about.”

Negotiation, Mediation, Legal Careers, and the Rule of Law

For more hilarious law cartoons by the fabulous Charles Fincher, click here.

Yesterday, I had the distinct pleasure of speaking to, and then participating in a mock mediation with, Lisa Klerman's USC Law School Mediation Clinic students.

Among these bright, energetic, earnest law students are some who would like to make mediation a career before a period of sufferance in the rights and remedies business.  It always saddens me to be reminded that we "law elders" do not routinely make it clear to our young apprentices that the business and society of the law is as broad, exciting and varied as their own imaginations can make it.  In other words, I encourage young people to do with their law degree whatever the heck they like, including mediating disputes.  They need only understand that they are choosing an entrepreneurial rather than an institutional path.  They are breaking new ground.

What does this have to do with negotiation?  Our ability to negotiate our first post-law school employment opportunities or to end a hostage crisis is embedded in, supported by, and impossible without, a society governed by the rule of law.   

Because I don't have a lot of time to explore this topic this morning, I'm cannibalizing my own work to ground both myself and my readers in the topic "culture and the law."   We'll be returning often to this theme many times over the next several months.  

This item is from YouTube and the Law:  What it is or What it Will Be

Culture and consumers precede the law. They rarely, if ever, conform themselves to the needs, interests and desires of business. Culture and consumers govern business. Business does not govern them.

The law follows culture. As we noted over at the IP ADR Blog in
Disputing Humor: Comedy, Folkways and the Internet, "the law" is not just a set of rules, but a life condition "in which [people] are carriers of rights and duties, privileges and immunities."

No formal structure supporting the system of law need be visible. . . Law can be found any place and any time that a group gathers together to pursue an objective. The rules, open or covert, by which they govern themselves, and the methods and techniques by which these rules are enforced is the law of the group. Judged by this broad standard, most law-making is too ephemeral to be even noticed. /*

In other words, we govern ourselves more or less naturally, until a conflict within the group arises. When that happens, the group is "forced to decide between conflicting claims [and the] law arises in an overt and relatively conspicuous fashion. The challenge forces decision, and decisions make law." Id.

*/ See, Weyrauch and Bell, Autonomous Lawmaking: The Case of the "Gypsies" (1993) 103 Yale L.J. 323 (1993) quoting Thomas A. Cowan & Donald A. Strickland, The Legal Structure of a Confined Microsociety (University of California, Berkeley Working Paper No. 34, 1965). The Weyrauch book on Gypsy Law can be found here
.

Riegel v. Medtronic: An Opportunity for Industry and the Government to Do the Right Thing

What does the decision in Riegel v. Medtronic have to do with dispute resolution?  A lot if we collectively pause to commit ourselves to using this calamity/victory as an opportunity to benefit both industry and the public at the same time.  

Is that possible?  I'm a mediator for goodness sakes.  If I didn't believe that to be possible, I'd serve the world better by getting a real estate license.  

Re:  what follows:  I rarely see anyone representing a narrow set of industry interests respond to a victory of any magnitude with the humility and vision expressed by Mark Herrmann in his post from Drug and Device Law -- Much is Given, Much is Expected, excerpted below. 

The medical device industry, or at least the most innovative part of it, received major relief from product liability litigation yesterday in Riegel v. Medtronic (now online at 2008 WL 440744). As long as our clients with PMA-approved devices comply with federal law, they’re not going to be subject to much in the way of product liability. Not only that, as we pointed out only two weeks ago, so-called “parallel” (or “violation”) claims have their own conceptual problems, given the exclusive grant of enforcement authority to the FDA.

That’s not what we’re talking about right now, though. We’re stone, cold sober.

We won. What does that mean? At bottom, it means that, just as Riegel gives some of our clients the opportunity for a more litigation-free existence, that increased freedom carries with it a correspondingly increased responsibility.

Plaintiffs lawyers like to say (at least when they’re not piously denying the “regulatory effect” of tort law in briefs opposing preemption) that product liability litigation serves as an incentive to make safer products.

We defense lawyers retort that product liability litigation is horribly ineffective (given the influence of so many non-merits issues), inefficient (plaintiffs’ lawyers take 33% or more of most recoveries, and that’s not even counting defense costs), and downright counterproductive (deterring innovation, and punishing manufacturers for doing the right thing when they discover problems) compared to governmental regulation as a means of ensuring product safety.

Well, now we’re going to find out who’s really right.

In other words, the PMA medical device field is going to determine in practice whether a high regulation, low litigation environment is as effective a method of ensuring the safety of the public as we think it is – or if it’s as lousy a way of ensuring safe medical devices as the other side claims.

So, to the medical device industry – to the regulators at the FDA – and to our colleagues who practice FDCA regulatory law…. Don’t let us down, please.

Proud Supporter of the Rule of Law in America

I know I've steered pretty wide of negotiation recently.  But I worry about the preservation of the Rule of Law against the forces of benevolent conflict management on the one hand (see yesterday's post on harmony vs. justice here) and the stated enemies of the Rule of Law on the other (see Lawfare:  Peace without Justice is Tyranny here)

You can't negotiate with in a dictatorship.  Nor can you negotiate if you lack access to institutions of power such as Courts of Law.

I'm no academic, but I'd like to draw your attention to a recent Balkinization post on this topic -- A New Generation of Critical Legal Studies, particularly the following excerpt:  

If one takes the . . . coldly realistic view that powerful interests generally get their way (in the end), then the fact that law serves powerful interests is merely one manifestation of the ordinary course of things.

The key question is not whether law serves power (of course it does), but rather, are there any effective ways to temper or limit power? Other than the presence of competing sources of power serving to limit one another’s ambitions, our most effective social invention for constraining power is law. This is the side of law that “shapes, channels and restrains power,” . . . 

This effect is achieved by the relative autonomy of law . . . To obtain credibility with the populace, the law must regularly live up to (or appear to live up to) its claims to be just and to apply to the powerful and weak alike, and this is how law comes to restrain power, even as it also serves power. Moreover, over generations, owing to the effect of legal ideals, people (including government officials) come to genuinely believe in the law, and this belief has a constraining effect on actions.

The process by which law works is almost magical: belief in and commitment to law and to legal ideals creates a reality in which law matters.

In situations where people are pervasively cynical about the law, this magical effect does not work. Law and legal interpretation, then, are manipulated (exploiting the indeterminacy of law) without restraint to do whatever one wants with a legal imprimatur; like, for example, coming up with a twisted legal interpretation of “torture” that purports to exclude waterboarding 

. . . . . [I]f you don’t believe in the rule of law, or if you believe that supporting the rule of law tightens the chains that secure an unjust social order, then it’s hard to come to the defense of the rule of law in times like this. 

                                                  *                 *               * .  

This does not mean that one should not expose the ways in which rhetoric about the neutrality of the law conceals a particular bent and bias. . . .  

                                                   *               *               *. 

The rule of law is an essential political ideal. When confronted with bad things accomplished in the name of the law, the best response is not to undermine law as a fraud. The best response is to demonstrate that these offensive applications betray the ideals about right and justice that law espouses and claims to represent.

This is a time honored (agonizingly slow) way of advancing the state of the law. And it’s the best we have.

The elided material has to do with leftism -- which survives here primarily in academic institutions -- and Critical Legal Studies -- neither of which is of much interest to me.  If either topic is of interest to you, follow the link above to read the full Balkinization post.

Paternalism, Self-Determination and the Rule of Law

I return from the Mediators Beyond Borders Founding Congress in Colorado with much to think, and write, about.

Let me begin today by telling you a story drawn from my community mediation practice. 

The Parties vs. The Lawyers

Crystal and Keith /* are the unmarried parents of a seven year old girl, Taniyah.  They have sought the services of the West Hollywood community mediation center because they want to discuss the resolution of their custody dispute outside the presence of their attorneys.  

After introductions, Keith and Crystal push a proposed settlement agreement across the conference table.  They are shy with one another but united in their desire to reach agreement without any pressure from "The Attorneys."  

Two hours later, we are at item no. 23 -- "neither Parent nor either set of grandparents shall physically strike The Child at any time."   

"Is this a provision you agree with?" I ask.  "It means you can never slap Taniyah's hand," I add.  "Is that something you want to agree to?"

"We don't have a choice," says Crystal.  Keith nods in assent.   

I let the word "choice" hang in the air for a moment as I begin to understand why these two bright, well-educated and articulate young parents have so reluctantly given their meek and mutual approval to every previous item they said they came to the mediation center to discuss.    

The Shadow Conflict 

I put the "proposed" agreement aside.   

"Why don't you have a choice?" 

"Because Taniyah's attorney put this into the agreement," says Keith as Crystal nods in agreement, repeating Keith's remark "we don't have any choice." 

Taniyah has an attorney, I learn,  because Keith's mother -- one of Taniyah's primary caretakers -- left Taniyah at home with her nine-year old cousin, Arabelle to run an errand.  Arabelle, a curious child, led Taniyah on an expedition to her grandparents' bedroom where the two found a stash of light porn -- Playboy and the like.  That,  I'm told, is the only reason Taniyah has an attorney.   

It quickly becomes apparent that Crystal and Keith simply assume that Taniyah's attorney is a decision-maker.  I'm still considering how to approach this problem when Keith asks the question that leads to the resolution of the "shadow" dispute between the parents and Taniyah's attorney.

"How do we get our power back?"   

Justice, Mediation and the Rule of Law

I tell this lengthy story as preface to another from this weekend's Mediators Beyond Borders Founding Congress.  Yesterday, someone suggested from the podium that we should include mediation and arbitration agreements in our own contracts with our own clients.

I raised my hand. 

"Why," I asked, "do you want to restrict our clients' access to the justice system?" once again demonstrating a fractious lack of diplomacy that makes some people wonder how I could possibly be an effective mediator. /**

It wasn't a well-placed question but it is of a type I often find myself more or less compelled to shoe-horn into any conversation that assumes mediation is best for other people. 

Here's what I wish I could have said in a more diplomatic way at some more appropriate time -- taken from Conflict Resolution, Enforcement of Social Link and Substantive Justice

I invite comment!!!

A number of scholars have pointed out the danger lying in an ideology of harmony related to ADR where agreement is seen as the panacea in every conflict.

They have argued that mediation was essentially supported by [the] middle upper class and social scientists whereas people . . . involved in conflicts[, including the] working class were expecting law and rights to protect them.

Emphasizing free choice, individualism, autonomy and advantage, and assuming instrumental rather than normative and religious orientations of social action, the concept [of mediation as an ideal form of dispute resolution] seems to describe the culture of professional elites rather than of residents of these urban/ethnic neighborhoods.

As Abel has stated, "there is considerable evidence that people want authority rather than informality. They want the leverage of state power to obtain the redress they believe is theirs by right, not a compromise that purports to restore a social peace that never existed."

According to those scholars, ADR could serve as a means of control and domination in keeping and reinforcing power relations. For instance, Milner Ball has defined ADR as "another form of the deregulation movement, one that permits private actors with powerful economic interests to pursue self-interest free of community norms. "

They argue that in traditional societies . . . mediation is used [when] there is no danger of retaliation from the weaker party. The[] . . . focus on relationships [diminishes the parties' focus on] justice[;] individual satisfaction has become the main purpose of conflict resolution.

Although they are conscious of the paradoxes of Law which can either "symbolize justice or conceal repression, reduce exploitation or facilitate it, prohibit the abuse of power or disguise abuse in procedural forms, promote equality, or sustain inequality, they argue that "Without legal power, the imbalance between aggrieved individuals and corporations or government agencies cannot be redressed".

_______________________

*  I have changed the parents' names and merged two separate mediations in the interest of  confidentiality.

**  The answer to this question is as follows:  I am not mediating when I am engaged in discussion with friends and colleagues.  Just as I do not observe the rules nor use the language of the courtroom at a dinner party, I do not observe the niceties of mediation in public discourse.  It would be better if I did.  I know that.  I'm working on it and will post some insights about constructive public conversations on difficult and divisive topics in my next post. 

How to Make Your Opponent Do What You Want Him to Do: Part I

I'm blogging from the Stanley Hotel -- hence the Stanley Steamer -- in the Rocky Mountains -- hence the snow.  

Stephen King wrote the Shining here, not in my room, but right down the hall.  The book was Inspired by the Stanley.  Hence the picture of Jack.

What's most exciting, however, is that I'm attending the Founding Congress of Mediators Beyond Borders; seeing old friends and meeting for the first time people I've long known at a distance; and getting to know an incredibly diverse and fascinating group of people dedicated to bringning conflict resolution techniques to international conflict.

More of that later.

Before getting to the "money shot" about changing the other guy's mind, I want to share with you Ken Cloke's 12 Ways Systems Resist Change from his lecture yesterday:  Mediators as Global Citizens:  How Mediators Can Change the Planet.

I start with resistance because you can't even begin to think about change until you understand why it is you're not getting past opposition's door.  You might most readily notice in the following list the ways in which your workplace (or your government!) supports its dysfunction.  

You'll also recognize your opponent's opposition to you and perhaps even yours to him.

  1. Marginalization:  Making ideas, people, perspectives, or insights that could threaten the system appear unimportant, irrelevant, irrational, or impossible to achieve.
  2. Negative Framing:  Using language that frames new ideas and critics negatively so that nothing that threatens the system can be thought or communicated successfully.
  3. Exaggeration:  Stereotyping or exaggerating one part of an idea in order to discredit the other parts and the whole.
  4. Personalization.  Reducing ideas to individual people, then discrediting or lionizing them.
  5. Sentimentalization:  Using sentimental occasions, ideas, emotions and language to enforce conformity and silence criticism.
  6. Seduction.  Describing the potential of the existing system in ways that unrealistically promise to fulfill people's deepest dreams and desires and blame the failure to achieve them on others.
  7. Alignment:  Communicating that in order to exist, succeed, be happy or achieve influence, it is necessary to conform to the system regardless of its faults.
  8. Legitimization.  Considering only existing practices as legitimate an all others as illegitimate.
  9. Simplification.  Reducing disparate, complex, subtle, multi-faceted ideas to uniform, simplistic, superficial,  emotionally charged beliefs.
  10. False Polarization:  Limiting people's ability to choose by falsely characterizing issues as good or evil, right or wrong, either/or.
  11. Selective Repression.  Selecting individual critics as examples, bullying them for disagreeing or failing to conform and ostracizing them.
  12. Double Binds:  Creating double standards that require people to live divided lives, or make it difficult for them to act with integrity.

Change strategies tomorrow.

Note to Board of Directors: Women Make a Positive Difference

Why diversity?  Uh . . . . because that's how life successfully evolved on planet earth?

Now a new study prepared by Ontario's Richard Ivey School of Business and the Wellesley Centers for Women concludes that corporations benefit from the presence of women on the Board of Directors in Critical Mass on Corporate Boards: Why Three or More Women Enhance Governance.

(for the same reasons noted below, we also make pretty darn good mediators and settlement officers)

We find that women do make a difference in the boardroom. Women bring a collaborative leadership style that benefits boardroom dynamics by increasing the amount of listening, social support, and win-win problem-solving. Although women are often collaborative leaders, they do not shy away from controversial issues. Many of our informants believe that women are more likely than men to ask tough questions and demand direct and detailed answers. Women also bring new issues and perspectives to the table, broadening the content of boardroom discussions to include the perspectives of multiple stakeholders. Women of color add perspectives that broaden boardroom discussions even further.

How Many Women Constitute a Critical Mass on a Corporate Board?

The number of women on a board makes a difference. While a lone woman can and often does make substantial contributions, and two women are generally more powerful than one, increasing the number of women to three or more enhances the likelihood that women’s voices and ideas are heard and that boardroom dynamics change substantially. Women who have served alone and those who have observed the situation report experiences of lone women not being listened to, being excluded from socializing and even from some decision-making discussions, being made to feel their views represent a “woman’s point of view,” and being subject to inappropriate behaviors that indicate male directors notice their gender more than their individual contributions.

Adding a second woman clearly helps. When two women sit on a board, they tend to feel more comfortable than one does alone. Each woman can assure that the other is heard, not always by agreeing with her, but rather, by picking up on the topics she raises and encouraging the group to process them fully. Two women together can develop strategies for raising difficult and controversial issues in a way that makes other board members pay attention. But with two women, women and men are still aware of gender in ways that can keep the women from working together as effectively as they might, and the men from benefiting from their contributions.

The magic seems to occur when three or more women serve on a board together. Suddenly having women in the room becomes a normal state of affairs. No longer does any one woman represent the “woman’s point of view,” because the women express different views and often disagree with each other. Women start being treated as individuals with different personalities, styles, and interests. Women’s tendencies to be more collaborative but also to be more active in asking questions and raising different issues start to become the boardroom norm. We find that having three or more women on a board can create a critical mass where women are no longer seen as outsiders and are able to influence the content and process of board discussions more substantially.

Thanks to commercial arbitrator and mediator Deborah Rothman for circulating this report among her professional women friends!

Trial Mediation and Justice -- the Judge Who Urges Settlement

Thanks to Tulane Law School Professor Alan Childress over at the Legal Profession Blog for alerting us to this item No Bias on Encouraging Settlement about a Rhode Island Supreme Court ruling that a Judge needn't recuse himself for bias if he encourages the parties to settle. 

As Georgetown Adjunct and Legal Profession Blogger Michael Frisch reports,

the plaintiff [in that case] argued that the judge's encouragement of settlement talks demonstrated bias; the court strongly disagreed. It is entirely appropriate for a judge to suggest that parties resolve their claims through mediation. . . "No less renowned a figure than Abraham Lincoln recognized the desirability of settlement when possible...it borders on the offensive for a party to claim that a justice should be recused for adhering to this policy [of encouraging settlement]."

As "amusing" as this might first be to lawyers, I don't want to let it pass us by without pausing a moment to consider the possible communication gap between Judges and lawyers -- on the one hand -- and people seeking justice -- our clients -- on the other.

People Seek the Services of Lawyers to Solve a Justice Problem

Having recently earned my LL.M and taught a semester of ADR theory and practice to law students, I can report back from the law school trenches that cynicism about justice is not limited to old dogs like me.  By their second year in law school, most aspiring attorneys have narrowed their view of justice/injustice to those wrongs the law will remedy.  See Writing on a Piece of Rice in a World of Injustice.  More troubling, they've narrowed to a vanishing point their former hopes, if any, to be part of a system that delivers justice.

When I ask defense attorneys in settlement conferences why they think their opponent filed the lawsuit against their client they answer with a single voice:  MONEY! 

"But why do you think they hired a lawyer," I persist. 

"Money," they respond again, as if I'd suddenly lost all reason.

"But why did Mr. X even think of seeking resolution in Court . . . under the law . . . why did he turn to the justice system?"

"For justice?"

Losses the Law Will Redress

People suffer losses every day of the week.  They lose their luggage in Madrid.  They don't get a raise or a year-end bonus.  They slice off the tip of their finger while chopping onions for Sunday dinner.  If they are lawyers of my generation, they got a 610, instead of a 700 on their LSAT -- thereby losing any hope of attending an Ivy League law school.  

The cynical persist.  "People have been known to sue for those losses too," they say.  

True, but they are among the very very very few.  Most people who undertake the considerable effort to find an attorney willing to take their case do so because they believe they have been treated unfairly.  They believe themselves to be victims of an injustice.  

And attorneys, not clients, are the first ones who monetize injustice for their clients.  Still, years after that injustice has been monetized, right before trial when most mediations and settlement conferences take place, the clients continue to long for justice. 

A Monetary Solution to a Justice Problem

So we should pause before we give in to the temptation to make light of the client who must have urged his lawyer to recuse the Judge for even suggesting that he not immediately be given access to justice -- a jury trial.  A client who likely feared he'd be strong-armed into accepting injustice in a Court suggested mediation.    

Our clients are speaking and we are not listening.  We are in danger of processing monetary claims rather than helping our clients come to terms with the justice issues they brought to us to resolve. 

As a mediator, I can tell you that most clients need to have monetary resolutions framed as "fair" or "just" results.  And if that is impossible, they need -- at a minimum -- to have the injustice they are suffering acknowledged by the mediator.  

As to those Judges who "encourage" mediation, I suggest that the directive be framed as an attempt to achieve, through settlement, that which it may not be possible to achieve in Court.  I would, in all events, assure the people seeking justice who appear before me, that I will be there, ready and able to try their case -- happy to serve their justice needs -- if the mediation I suggest they pursue fails to deliver the fair result they are seeking.

Writing on a Piece of Rice in a World of Injustice

I often find myself explaining lawyers to their clients and clients to their attorneys.  Here are some typical client complaints I hear about their litigator attorneys:

  • he tells me to forget about the most important losses I've suffered
  • she keeps editing my story 
  • I don't understand why I can't . . . i.e., recover my attorneys' fees or cross-complain, etc. 
  • he wouldn't let me tell the mediator everything I wanted to
  • she didn't let me talk to the other side

And here are the typical litigator complaints I hear about clients:

  • his expectations of success or recovery are commpletely unrealistic
  • if I tell her the weaknesses of her case, she says I've become the enemy
  • I've explained the limitations of the case to him, but he just doesn't seem to understand

Translating the Law into Justice -- An Explanation for Clients

The chart above and photos below are simple ways to explain to clients the gap between the law and justice.  Sample explanation --

The dispute you're having exists in the world of injustice.  

Picture the earth.

Now picture a grain of rice somewhere on the earth.

The grain of rice represents the injustices the law will remedy. 

The earth represents the injustices the law will not. 

Square Pegs in Round Holes -- An Explanation of the "Legal Story" for Clients  

 

It feels like your attorney is "editing" or shaping or "spinning" your story of injustice because she is.  The yellow square represents the facts necessary to obtain relief in court (damages, an injunction, etc.).  It also represents the facts necessary to defeat your opponent's claim for relief.

The entire dispute -- everything that happened inside the green circle -- is generally what you, the client, want to resolve. 

 IT OFTEN INCLUDES FACTS THAT WOULD BE HARMFUL TO YOUR CASE. 

That's why your attorney doesn't let you talk in the presence of the "other side" and asks you not to discuss the dispute with your opponent anymore.  Because you might reveal something in the green area that's bad for proving your case in the yellow area.  

THE MEDIATION ZONE -- AN EXPLANATION FOR ATTORNEYS AND THEIR CLIENTS

Mediators work in the green area.  Clients almost always want to resolve all of the issues raised by the dispute, not simply the "legal" ones.  Perhaps more importantly, there are many opportunities for resolution in the green mediation zone that no one has yet seriously explored because the green zone is not the focus of the legal action.  Only the yellow legal zone is.

Mediation restores the dispute to the people who have it.  They are the only ones who know and understand that dispute in all its detail, texture, dimension and meaning.  Party interests -- their hopes, fears, desires, needs, etc. -- exist in both zones.  The good news of mediation is that the party interests outside the legal zone can often be traded for concessions that are in or out of it. 

When you have only one currency to negotiate with -- dollars -- you often reach impasse.  Why?  Because it seems so unfair to both parties that they should give in, compromise, split the baby in half, etc. just because the cost and aggravation of getting to trial is so high.

When you have more than one currency to negotiate with, however, like dollars and "face" or dollars and unexplored business opportunities or dollars and apology, or dollars and an explanation for the dispute's events that has the ring of truth, you can trump legal impasse with party interests.  

Writing on a Grain of Rice

Vendors who line beach boardwalks or the sidewalks of tourist towns often include the guy who will write your name on a grain of rice.  HERE!!!

Sometimes I feel as if my entire career as a litigator was written on a grain of rice -- that's how small the legal zone sometimes looks from here.  It's O.K., though.  Litigation isn't just a job or even just a career.  It's a calling, this business of rights and remedies, of following a rule of law instead of a strong arm or the snake-oil's charm. 

As the poet Lao Tzu wrote, 

whether a man dispassionately
Sees to the core of life
Or passionately
Sees the surface,
The core and the surface
Are essentially the same,
Words make them seem different
Only to express appearance.
If name be needed, wonder names them both:
From wonder into wonder
Existence opens. 
 

Want to Understand Your Jury Pool? Watch Campaign News

Trial attorneys, negotiators, mediators and settlement judges all share the same essential concern -- how to reach and persuade our audience.    

Trial lawyers have a product to sell -- their client's narrative -- which is always just one version of the "truth."  Negotiators are also selling -- a business proposition their bargaining partner will find attractive.  Settlement judges who have not been trained as mediators are generally selling fear -- the uncertainty!  the expense!  the delay! 

And mediators?  What's on display at our hot dog stand?  The needs and desires of the parties, certainly.  Many arrive at the mediation without having given any thought to their own true wishes at all.  We tend to go a little deeper than the negotiators, who are selling the future rather than also attempting to repair the past.  We try not to be fear mongers like some of the worst settlement head-bangers we remember from our own legal practice.  And, unlike trial lawyers, we straddle the "truth," attempting to harmonize the parties' narratives rather than selling one version as superior to the other. 

So what are we mediators really selling?  Reconciliation. Accountability. Understanding. Consensus.

And this Bears Upon Political Campaigns and Jury Trials in What Way?  

I don't subscribe to many blogs, diverting the few dozen that capture my interest to my news reader.  I do subscribe to Anne Read's Deliberations, however, because she really "gets" people's pre-dispositions -- the ones I need to understand for the purpose of helping my clients to comprehend -- appreciate even -- the other guy's point of view.     

Today, for instance, Anne reminds us that we are in the midst of a Great National Jury Seminar.  All we have to do is click on the campaign news. As usual, Anne is looking past the easy answers -- race, gender -- in favor of exploring the deeper reasons we might vote for someone of our own nationality or hair color -- shared stories.  Here, for example,

What do race and gender really mean? Most studies of jurors conclude that juror demographics don't directly affect verdicts -- with the important exception that jurors lean toward parties of their own ethnicity. (That's from Devine et al, Jury Decision Making: 45 Years of Empirical Research on Deliberating Groups, 7 Psychology, Law, & Public Policy 622 (2000)). But at the same time, we know that people of different races and genders often have shared experiences. Since experiences in turn shape attitudes, race and gender matter in ways that go beyond loyalty, but are difficult to define.

Trial lawyers have long wanted to understand this better -- and these days, so does every news organization in America. One fascinating piece of this is how individual one's group identity can be, as Newsweek explains in an article that's well worth reading in full:

Which candidate a voter identifies with is one of the most important gut-level heuristics, since it is tantamount to deciding that someone is enough like you to "understand the concerns of people like you," as pollsters put it. "If you feel a candidate is like you racially or by gender, you're more likely to believe that that candidate will support what you support," says [Harvard political scientist Pippa] Norris. But with a white woman and a black man vying for the Democratic nomination, where does that leave black women? Whom they most identify with depends on which aspect of their own identity dominates their self-image. . . . . 

Read on here (my emphasis)

We're in the People Business

So are we all just Willy Lomans, carrying our self-esteem, our hopes and dreams, our successes and failures in our sample cases -- to display -- or not -- when a customer calls?  I think we are.  And the mistake we make, when we make one, is to direct our customers' attention only to the glittering lures -- the "sales" talk -- the promises of a brighter future, a better marriage, a faster car.

If we take a deep breath from time to time and listen to ourselves instead of pontificating and persuading, we'll be reminded that we're all seeking the same thing.  Community.  Belonging.  Understanding.  Even shared sacrifice.  Every negotiation, every mediation, every trial represents a human relationship in crisis.  If we really get that, we can start working together again, in the same general direction, even when our ideas about how to accomplish that differ.  

An Unpaid Political Stream of Consciousness

Listen.  No one will gasp in surprise when I say I'm a lifelong Democrat.  Nor will my readers likely be surprised to hear me articulate my fondest election year desire -- that Hillary and Barack -- sooner rather than later -- will find a way to join experience with vision for the purpose of leading this country out of the long season of division that, let's be frank, began in the sixties and has never healed.  That they will together lead this country back to what it's truly best at -- uniting a diverse, fractious, irritable, needy, greedy, fearful, hopeful people into a single nation with a higher purpose than our own individual and narrow interests.  The United States.

If both candidates could put their campaigns -- their money; their volunteers; their momentum -- together for the purpose of healing discord and revealing a new national consensus -- we would not simply feel great about our country again, we'd actually be great again.  

Attorney Not Held to Higher Standard When Negotiating with Known Felon

Take a look at Law.com's article Settlement Agreement in Spotlight as Legal Malpractice Case Against Duane Morris Begins

The legal malpractice action subject of that article is notable for what must be a ruling of first impression -- that an attorney may not be held to a higher standard of care in negotiating a settlement agreement "simply" because he knows his client's negotiating partner is a convicted felon -- at least not unless an expert testifies that a higher degree of caution should be exercised.  

For the full report, click on the link above. 

Our Man in Iraq on the State of the Union

The Negotiation Law Blog's dear good friend, Mark Robbins, pauses in his work to make sure we didn't miss the President's reference -- in his State of the Union address -- to the work Mark is doing in Al-Hillah, Iraq.

And they saw our troops, along with Provincial Reconstruction Teams that include Foreign Service officers and other skilled public servants, coming in to ensure that improved security was followed by improvements in daily life. Our military and civilians in Iraq are performing with courage and distinction, and they have the gratitude of our whole nation.

MARK A. ROBBINS
Rule of Law Advisor
Babil PRT, Al-Hillah, Iraq 

File this post in 101-Things-to-Do-with-Your-Law-Degree and Restoring-the-Rule-of-Law-Everywhere!

Thanks, Mark.   God Speed!

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.”

Another Consumer Arbitration Agreement Bites the Dust

This one is Lowden v. T-Mobile USA decided today by the Ninth Circuit.

We conclude that the Washington State Supreme Court’s decision in Scott v. Cingular Wireless, 161 P.3d 1000 (Wash. 2007), establishes that T-Mobile&rsquo