Certainly there is no shortage of candidates for blame when you have lost something. Yet finding the right person to pin the blame for failure can't be the whole story.
When to Fight
President Obama's speech to the United Nations this week is worth reading to study the evolution of the president's foreign policy views in response to new and continuing conflicts around the world. With respect to such crises as Russian aggression toward Ukraine, preventing a nuclear Iran, and the Israeli-Palestinian conflict, the president reiterated his belief in finding cooperative, negotiated solutions.
When to Fight
President Obama's speech to the United Nations this week is worth reading to study the evolution of the president's foreign policy views in response to new and continuing conflicts around the world.
Truth, Justice, and Peace
One of the top reasons people advance for being reluctant to agree to a negotiated resolution of conflict is that they cannot abandon the quest for truth and justice. I just heard this feeling expressed recently in a mediation between two former business partners who each felt betrayed by the other.
We know that mediators sometimes need to act as an amateur psychologist, an amateur economist, an amateur diplomat, an amateur judge, or apply other kinds of expertise to help resolve conflict. That's what makes the practice of mediation so interesting. We might not have realized that mediators also need to act as amateur philosophers. This book provides great approaches to look at many of our clients' questions.
What a remarkable turnaround we witnessed today in Ferguson, Missouri, where five days of protests in the wake of the shooting death of Michael Brown this past weekend, had been met with police armed to the teeth with military weapons and tactics. But when Governor Nixon finally decided to replace the local police force with state highway patrol officers, the situation changed almost immediately. Today the new representatives of law enforcement started marching with the protesters, and a much different atmosphere returned to the streets.
In the first episode of the second season of Orange is the New Black, the series presents a variation on the prisoner's dilemma problem that is often discussed in mediation programs and texts.
Some interesting back-and-forth occurred during the last panel of the day yesterday at the 2014 ODR conference, when David Bilinsky, a legal practice consultant, described the high tech tools he uses in teaching law students. To oversimplify his presentation, these tools allow students to conduct side discussions during lectures in a chat feature that can be employed either during an online or even an in-person class. The theory is that these side chats can expand on the lecture, and reinforce learning by facilitating more interactive participation.
While not very impressive grammatically, the statement published today on Tesla's website that "all our patent are belong to you" might have some earthshaking consequences in the intellectual property world.
Confidentiality and Due Process
Can mediation confidentiality threaten a party's right to due process? A recent case out of the Central District of California, Milhouse v. Travelers, currently on appeal to the Ninth Circuit, held that the due process rights of a party can override the parties' agreement, and a state evidentiary rule precluding the admission in any subsequent proceedings of statements made in mediation.
Given the huge numbers of settlements, in contrast to adjudications, we should perhaps think of the DFEH not so much as a law enforcement agency, charged with putting teeth into statutory prohibitions against discrimination, but rather as a conflict resolution service offered by the government to assist parties in dealing with all manner of employment disputes.
The California State Bar Standing Committee on Professional Responsibility and Conduct has issued a proposed opinion attempting to draw the line between unethical misrepresentations during negotiations, and permissible "puffing." Using this distinction, false statements about, as examples, the existence of favorable witnesses, or about the amount of a party's earnings, or about policy limits, would all fall on the unethical side of the line, and would subject an attorney making them to potential discipline. On the other hand, false statements about a party's "bottom line" of settlement authority, or about a party's willingness to litigate or its plans to file bankruptcy, would be considered mere "puffing," basically the kinds of lies that parties expect the other side to tell during negotiations, and that they should not rely on.
At the ABA Dispute Resolution section spring conference, I attended a talk on mediating discovery disputes, a subject that has been of interest to me for a long time, but which should be more urgent given the difficulty traditional court processes and rules have in managing the continuing explosion of data. As Marian Riedy, who has written about the difficulties of retrieving electronic data, pointed out, the enormous costs of discovery of such data make it essential that parties cooperate in crafting agreements on the scope of discovery. Indeed, federal and state rules generally require efforts to resolve discovery issues by negotiation. That being the case, there would seem to be a place for mediators to step in and assist attorneys and parties having difficulty reaching negotiated solutions.
Say you're planning an excursion to the beach. Would it make sense to suggest that the best way to get there would be to head in the opposite direction, toward the desert? When your passengers question that route, the only excuse you might have to offer is that after they spend a few hours driving around in the dry heat, they will appreciate eventually getting to the beach even more.
While exaggerated, television depictions of international diplomacy has its roots in reality. I heard a talk the other day about the history of negotiations between the US and Iran over Iran's nuclear program. Those negotiations broke down a number of times over the past 10 years, in part because the negotiators for each side did not always have the full backing of their respective governments.
I've heard a number of evangelists of the mediation world talk about the seemingly limitless future of the mediation process. That future seems to depend on the public finally becoming more aware of the possibilities of mediation to resolve not only conflicts that have already worked their way through the court system, but also conflicts that have never even made it to court, or that might be unsuitable for court.
Familiarity in Mediation
One of the more interesting assignments I had this year required me to mediate a dispute between two mediators. In preparing for this mediation, I wondered whether my usual conflict resolution techniques would work. These two experts were already wise to all of the usual mediators' tricks. What could I possibly suggest that they had not thought of already?
One of the more interesting assignments I had this year required me to mediate a dispute between two mediators. In preparing for this mediation, I wondered whether my usual conflict resolution techniques would work.
Crisis in the Courts: Making a Virtue out of a Necessity
Crisis grips the California court system.
In Los Angeles County, budget cutbacks
have forced the courts to do away
with court reporters, reduce clerical staff,
close 10 courthouses, and assign personal injury
cases to a master trial calendar system.
At a time when ADR might be considered
one of the solutions for relieving
the increased burdens on the civil trial
courts that these changes will impose, the
Superior Court in Los Angeles instead
took the surprising step of closing its
entire court-connected ADR program.
Should we be celebrating the fact that Congress finally voted yesterday to allow the federal government to re-open and pay its bills? The bi-partisan agreement to re-open the government merely preserves the status quo for a short period, and leaves open the possibility of another round of brinksmanship very soon.
The recently-elected President of Iran, Hassan Rouhani, is starting to sound like a mediator. Recently Rouhani published an interesting op-ed piece in the Washington Post.
The August issue of the California Bar Journal is devoted to the theme of lawyer as peacemaker. In his introduction, State Bar President Patrick Kelly argues that it is time for lawyers to refocus their efforts from advocacy to more of a problem-solving, peacemaking role.
Back to School
Wayne LaPierre owes an apology, or at least an explanation, to Antoinette Tuff, the Georgia school employee who successfully talked down a gunman who entered her elementary school with an assault rifle and some 500 rounds of ammunition. Remember it was NRA spokesman LaPierre who responded to the Newtown shooting by advising us that the only way to stop a bad guy with a gun is to rely on a good guy with a gun.
I remember reading a piece by a newspaper columnist who described the process by which someone in that field can finally claim to have mastered the trade. The aspiring newspaper columnist starts with a head full of ideas. He might even have rough drafts or outlines for many weeks’ worth of columns in a bottom desk drawer. But after about a year of doing the column, all of those ideas are going to be exhausted, and the columnist will have nothing left in the storehouse to draw from.
Select a Mediator
Created in response to the dismantling of the LA Superior Court random select and party select mediation panels, our directory represents a substantial upgrade of SCMA's member directory. It allows users to search for mediators by geographical area, by rate range, and by area of substantive expertise.
Anytime we are withholding information, we are engaged in a form of deception. Whichever parties are being deceived--and that usually means both sides--are going to do their best to find out the truth.
There was talk around the ABA Dispute Resolution Conference this week that the demand for mediation services may be declining. If that's true, does that mean that mediation is falling out of favor, just as arbitration has somewhat fallen out of favor? Or is it a reflection of the economy and the decline in demand for dispute resolution services in general?
Empathy is an essential tool in mediation, both for the mediator and hopefully a quality the participants develop as well. Mediators recognize, unless we want to act purely as evaluators (and even then the capacity for empathy is still important), that we need to try to empathize with the needs and feelings of both sides in every case, to build trust and encourage understanding.
Thanks to the Consumer Attorneys Association of Los Angeles and the Association of Southern California Defense Counsel for putting on an informative program tonight detailing changes about to take place in the LA Superior Courts due to budget cuts. Thanks especially for the plug provided for the Southern California Mediation Association's program still in development to provide a referral source for mediators.
I find myself charged with an unexpected project, trying to figure out how to deal with the probable demise of one of the largest court-assisted ADR programs in the country. At the same time, the court system is also implementing drastic funding cutbacks that are likely to increase backlogs and reduce the availability of court services, suggesting that mediation is needed more than ever to resolve disputes that the court system is less and less capable of resolving.
How to Talk About Guns
As the nation embarks on a debate about how to reduce gun violence, it might be a good idea to set some ground rules. First rule: it's useless to frame this issue in terms of constitutional rights. The meaning of the Second Amendment is a legal question that is determined by the Supreme Court.
Free Mediation, Revisited
The prospect of elimination of all ADR administration by the the Los Angeles County Superior Court, discussed in a previous post, seems about to touch off another debate about pro bono mediation. LA's court-connected mediation panels have always had a strong pro bono component, and this rankles a lot of practicing and prospective mediators, who quite rightly feel that mediators deserve to be paid, just as judges, court personnel and the parties' counsel all need and expect to be paid for their services.
Peacemaker of the Year
Kenneth Feinberg was the keynote speaker at the SCMA fall conference November 3, 2012, where we presented him with the Cloke-Millen Peacemaker of the Year Award. Feinberg gave a fascinating talk on the dilemmas involved in allocating compensation to victims of such famous disasters as the BP Gulf Oil spill, the 9/11 attacks on the World Trade Center and Pentagon, and the recent shootings in Aurora, Colorado.
However shaky the European Union is today, whatever its deficiencies, it still deserved the Nobel Peace Prize, for its contributions to peace over decades.
Bi-partisanship and Negotiation
Is a willingness to negotiate a sign of weakness? That seems to be the thrust of the critique of Thomas Frank, the latest prominent leftist critic of the Obama administration. Frank charges that Obama gave away too much to the right, because he stressed the importance of bi-partisanship, when he should have been fighting harder on substantive issues, such as punishing Wall Street bankers, or achieving more economic stimulus.
Who Needs to Attend?
This question comes up a lot. And the answer seems simple. Parties need to personally appear at mediation. In private mediations, we decide who should attend when we set up the mediation. In court-annexed mediation, there are rules addressing this question. In LA County Superior Court, for example, it's local rule 3.272 now. In the Central District of California Federal District Court, it's local rule 16-15.5.
When to Quit
Last week Kofi Annan, as prestigious and qualified a mediator as one could ask for, resigned his assignment to try to broker a peace agreement in Syria. Annan cited the Syrian government's intransigence, and the rebels' desire to achieve their ends by force of arms.
Doug Noll, a mediator from Fresno, California, along with Don Philbin, a mediator from Texas, explained that hardly any of the information we process in communication with others is contained in their words. Nearly all of it lies in people's gestures, facial expressions, tone of voice, and other non-verbal cues. Lawyers have trouble accepting this fact, trained as we are in the importance of words. And we haven't grasped its full implications.
Changing the Atmosphere
Even in the course of the most hard-fought lawsuits, opportunities may arise for the parties to decide to stop fighting for a moment, and try to work out some problem or another together. Parties are encouraged to resolve discovery disputes cooperatively, for example, instead of fighting over every document request and deposition notice. Parties are also encouraged to resolve entire disputes through mediation rather than battling it out in court. To do that, we need to change the atmosphere from one of mutually assured destruction to one of cooperation. How do we do that?
How to Win
A piece in the New York Times last week called How Liberals Win, reminds us of the deals that FDR and LBJ made with corporate power in order to enact their signature reforms. What President Obama did to pass health care reform followed that tradition. But when the Obama administration made a deal with pharmaceutical companies to obtain their support for health insurance reform, many of his supporters viewed that agreement as a sell-out.
Rules and Ethics
Suppose the party inserting such a provision admits their deceitful intent and specifically instructs the mediator not to tell the other side of the land mine's existence. Is the mediator bound to keep that information confidential?
AudioBlog: Talking to the Enemy
I heard an amazing interview on the The World radio program today, with a young American Army commander, Captain Michael Kolton, who decided to reach out and forge a relationship with one of the Taliban commanders that his unit was fighting in Afghanistan.
Oftentimes, all we need to do to resolve a dispute is arrive at an agreed-upon value for the subject of the dispute--whether that is a lawsuit, or a company, or a piece of property. It therefore behooves the parties to come to mediation armed with as much objective information as they can get that would support the value they are seeking. In the case of property, that might be an appraisal.
Last year the California Supreme Court upheld California's expansive protection for mediation confidentiality to bar evidence of attorney-client communications made during mediation in support of potential malpractice claims against attorneys. In doing so, however, the court practically begged the legislature to consider amending the statute to allow the use of such evidence.
I heard LA Superior Court Presiding Judge Lee Edmon speak at a County Bar Association lunch recently about the current dire state of court funding. Due to the state budget crunch, the state legislature began drastically slashing the courts' budget several years ago, but the courts have managed to avoid the worst effects of these cuts by diverting capital funds and reserve funds to current operations.
When to Negotiate
Anyone who has still been following budget negotiations in Congress has no doubt noticed that they have reached another interesting stage. Recall that last summer Congress struck a deal in which Republicans agreed to go along with raising the debt ceiling, in exchange for appointing a super committee to come up with additional debt reduction measures.
Ryan Lizza's article, "The Obama Memos," in this week's New Yorker, contains some inside information explaining how candidate Obama's promises to usher in a new style of politics, ran into the realities of a Congress that is more partisan than ever before. Commentators like Paul Krugman have jumped on the bandwagon, chiding President Obama for being so naive in thinking he could "transcend partisanship."
There is a lot in Daniel Kahneman's book Thinking, Fast and Slow of interest to mediators and people involved in conflict. The book sums up a lifetime of work in psychology and economics, and serves almost as a catalog of cognitive biases we encounter in business, the legal system and elsewhere.
One of the touted benefits of ADR is that it allows parties to design their own dispute resolution process specially suited to their needs.
Imagining the Future
Congratulations to my fellow SCMA board member, and new president Barbara Brown, for pulling off a very successful SCMA fall conference at Pepperdine this weekend!
The Illusion of Validity
Kahneman describes some team-building exercises he engaged in many years ago in the Israeli Army, that were used to predict the leadership qualities of soldiers. It turned out that these exercises had no predictive power whatsoever, yet those who participated and evaluated the results continued to believe in their value, even after seeing their lack of predictive power.
First, recognize that the number of people responsible for the vast majority of violence in most cities is relatively small. So concentrate on those people. Next, let the street gangs know that violence will no longer be tolerated.
If you've been paying attention to the news from the Middle East lately, you've probably read about large peace demonstrations in Israel, as well as the violent attack earlier this week in Egypt against the Israeli embass
How Litigators Negotiate
If you walk into a negotiation to settle a lawsuit with the expectation that both sides should start with numbers that bear some relation to reality, you may encounter frustration and delays.
War is Over!
Joshua Goldstein has an article in Foreign Policy (and apparently a book coming out on this topic) in which he proves that, as President Obama announced in June, and contrary to popular belief, the tide of war in fact is receding, and has been for some time.
Are mediation briefs important? I will admit that I find most of them less helpful than they could be.
The Blame Game
A cartoon in the New Yorker a couple of months ago showed a family lost in the jungle. The father, scratching his chin, is saying, "OK, I admit it, we're lost. But the important thing is to remain focused on whose fault it is."
Deal or No Deal?
We're starting to hear outrage from both the left and the right in response to the debt ceiling deal that leaders of both parties have made on Sunday. We're being assured by the usual gang of pundits that this outrage from the most partisan members on both sides demonstrates that the deal is probably fair.
Sanctions and Mediation
Those who take mediation seriously want to encourage parties to participate in good faith, and to prepare properly for mediation sessions, so that the process can achieve maximum benefit.
Mediator in Chief
In the budget negotiations going on in Congress, once again we see the president assuming the role of mediator.
At a recent seminar, the lecturer was telling us that the Kubler-Ross model of the five stages that people go through when they are dying--denial, anger, bargaining, depression and acceptance--has applicability to many other processes, including mediation.
Last night I had the chance to hear Adam Hochschild talking about his new book To End All Wars, which is mainly about the conflicts between pro and anti-war leaders in Great Britain during World War I.
Our clients usually only get one chance to vindicate their claims, and they have to think seriously about whether they really want to roll the dice.
Negotiating with Terrorists
Risk In Litigation
Twins, especially before they learn to speak our language, seem to share their own secret language, and communicate in ways that outsiders cannot understand.
Since we hung back several weeks before intervening militarily in Libya, Gingrich attacked the administration for that. Once we intervened, Gingrich attacked the administration for that. I'm sure some of Newt Gingrich's supporters prefer this stance of unrelenting opposition, but I have to think a lot of voters looking for a more coherent, logical approach, must be turned off by it.
Does Mediation Threaten Lawyers?
I remember hearing a lawyer joke about a father taking his son into his law practice, then going on the first extended vacation he had taken in many years. When he returned, the son said, "Great news, dad, I settled the Jarndyce case!" Shocked, the father replied: "You fool! Don't you realize that case put you through law school? Now what do we do to keep the practice going?"
Formalism And Mediation
Justice Scalia is known for his theory of interpreting the Constitution by reference solely to the text in light of the meaning that the drafters supposedly intended at the time they wrote it.
Building A Better Mousetrap
I used to think, back when I was a naive young law clerk, and even into my first few years of practice, that the legal system should provide a clear answer to most legal questions. If you were to read and research carefully any random motion, say for summary judgment, or listen to all the evidence and argument presented in any civil case, the vast majority of the time, the system should provide the same answer to each problem. Especially for pure questions of law. If we're not all getting the same answer, we probably just haven't analyzed the problem carefully enough.
Vickie Pynchon has a fun post up on the Forbes website about Dennis Kucinich's suit against the Congressional cafeteria for breaking a tooth on an errant olive pit found in his sandwich. Her post got me thinking about how mediation deals with so-called "frivolous" lawsuits.
Some mediators I was meeting with this morning expressed trepidation about the new TV series Fairly Legal. (See my prior post on the announcement of this series over a year ago.) We were all curious to see it, but worried about such questions as whether mediators in real life can live up to the glamorous image of a TV mediator. We also wondered whether the show will give people the wrong idea about mediation.
Language And Politics
Each time we are forced to deal with another attempted or successful political assassination or other violent act, we react in a slightly different way, depending on the political concerns of the moment. Some past incidents have sparked calls for stricter gun controls. Sometimes we have heard cries for more law and order. You used to hear people blame overly permissive child-rearing practices for violent or disruptive behavior. Sometimes violence has been explained as the result of injustice or prejudice in society. This time, in the wake of the attempted Giffords assassination, we have heard a lot of talk identifying the high level of violent rhetoric among politicians and the media as a source of the problem.
How well has Athena's new system of justice held up over the ensuing 2500 years? How fully has it transformed the previous system? Have we yet grasped the power of wisdom and kindness, or are we still mired in deterministic law based on force and revenge? Are we now at a point where we need another transformation of the court and jury system in favor of an even more inclusive, just and harmonious process? The rise of the ADR movement, as well as contemporary complaints that our court system is too complicated and expensive, and that it often fails to provide needed finality and peace, suggest that many are looking for an alternative to this long-standing system of justice. Would a modern Oresteia help us find it?
When we meet Orestes at the beginning of the second play in Aeschylus's trilogy, Choephori (The Libation Bearers)(for the first post in this series, click here), he is at his father's grave, gathering his courage "to do what must be done." Once he gets to the palace, in disguise, Orestes doesn't hesitate to kill Aegisthus, who has usurped his father's throne, and taken up with his mother. But killing his own mother is a bit more difficult for him. After finding that Aegisthus has been murdered, Clytemnestra confronts her son, laying the full guilt treatment on him. First she reminds him that she gave him life.
We can trace our justice system back to Moses receiving the Ten Commandments, or Hammurabi's Code (1700 BCE), if we wish. I'd prefer to start with Aeschylus's Oresteia, from 458 BCE. I've been thinking about how this ancient Greek tragedy about the origins of a new concept of justice, might shed some light on transitions that seem to be occurring in our modern legal system. Readers might have to bear with me for a few blog posts before I reach that goal.
Common Ground, Not Compromise
Here is a portion of a 60 Minutes interview with incoming Speaker of the House John Boehner, who explains why he thinks "compromise" is a dirty word
Negotiation Lessons From The President
The media seems preoccupied with trying to figure out which party gains politically and which party loses; who wins and who caves. Partisans on both the right and left seem anguished by how much each side had to "give up" to make a settlement. Watching the president explain the rationale for making a deal, I am struck by how hard he has to work to persuade these partisans of the necessity and justifications for the deal. It is remarkable how similar the president's rationales sound to the explanations lawyers and mediators have to provide for parties to a litigation, to justify the benefits of a settlement over the uncertainties of litigation.
Mediator's Proposals Redux
Being a trial lawyer, a mediator, and most importantly, a Dodgers fan, I can't help following the newspaper reports of the juicy ongoing divorce litigation between Frank and Jamie McCourt. The latest news illustrates some of the pitfalls of mediator's proposals. I am speculating to some extent as to what is really going on here, but based on this LA Times report, it seems that Frank's side accepted, but Jamie's side rejected LA Superior Court Judge Peter Lichtman's confidential proposal.
Learning To Negotiate
I had the chance yesterday to lead two groups of first year law students at USC in some mock mediation sessions. This is truly my idea of fun! I was impressed by how eager these students were to learn how mediation is done in the real world. It was also interesting to see how quickly untrained law students adopted many of the attitudes and tactics of experienced attorneys and parties in settlement negotiations.
A Is For What?
Only a fearless writer would title her book "A is for Asshole." I know Vickie Pynchon mainly as a fellow mediation blogger. Because I follow her blog, I can attest that she does not shy away from controversial topics, or refrain from telling you what she thinks. She also offers a lot of sound advice about the practice of mediation. Her book is an entertaining, and highly personal tour of the characters and problems you meet in conflict resolution.
A big battle is shaping up in Congress in the next few weeks over extending the Bush tax cuts. If Congress does not act before the end of the year, all of these tax cuts will expire automatically, an outcome that is favored by hardly anyone. Compare this situation to the typical scenario in private disputes. In those cases, both parties may want to avoid the cost and risks of trial, but they still retain the hope that if the case goes to trial, their side might prevail. In the tax debate, however, both sides know that if they let the deadline pass, both sides will certainly lose. You might think that would make this tax debate easier to resolve, but it doesn't appear that it will be easy at all. Why?
In a talk I heard yesterday at the Southern California Mediation Association annual conference, Lee Jay Berman used the metaphor of a funnel to describe how how the legal system squeezes the issues involved in conflicts to the shape of a dried-out hamburger patty, so that most of the concerns of the participants in the dispute get left out of the process. So one could think of the legal system as a kind of meat grinder. And the mediator has the job of putting some flavor back into the squeezed-out meat, and adding some new ingredients to the mix.
What People Want
I tried doing some unscientific research to find out what people are seeking from mediation. What I did was to use sitemeter, a tool for measuring web traffic, to identify some of the Google and other searches that led people to my site. I understand that my methodology will mainly turn up search queries that happen to coincide with subjects I am already addressing in this blog. But such a list of search queries may also reflect how well (or poorly) people understand the mediation process, and what they are hoping to get out of it.
Words To Avoid
In a caucus with the plaintiff's attorney and his counsel, we were trying to persuade the plaintiff to lower his settlement demand. Plaintiff's attorney started telling his client that he had to compromise. As soon as he said that, I saw the client visibly flinch. This client had no interest in compromise. Instead he was interested in greater recognition on the defendant's part of the debt that was owed. I told him he didn't have to settle the case at all that day, and should probably take some more time to think about his options. I was still hoping we would settle the case that day, but I could also see that this person was not about to be browbeaten into an agreement. As a result, I think I gained a measure of trust.
Free Mediation: Part II
Following up on an earlier post, in which I discussed the frustrations of many mediators with pro bono court-annexed mediation, I want to try to figure out where we should draw the line between cases appropriate for free mediation and cases in which parties should be expected to pay for mediation services.
Now that another one of those trials of the century that Los Angeles seems to enjoy about once a decade has concluded (I'm talking about the McCourt divorce trial of course), everyone wants to know who won.
A mediator at a study group I sometimes attend raised a good point about the limits of most mediators' expertise. He wondered whether it is even a good idea to delve into all of the psychological issues that may be motivating the parties to a dispute, since attorney-mediators are not psychologists or psychiatrists and are not qualified to diagnose or solve such problems.