From Victoria Pynchon
Congratulations on your 500th Edition. I frankly don't know where I would have been as a new mediator in my mid-50s without the support of and community created by mediate.com. Jim Melamed published my very first article on mediation back when I was earning my LL.M at the Straus Institute and trying to figure out what to do with this challenging new career - most importantly, how to make money doing it after 25 years of an equally challenging but, in retrospect, legal cradle to grave career. I mean - a PAYCHECK. 401K's. Health, life and disability. SUPPORT STAFF. But I digress. Though I did not end up where I presumed I would (a high six-figure mediator of complex commercial litigation) I don't think I would have developed the career I did as a consultant, trainer and author, in the absence of Mediate.com's support. And the personal support of Jim Melamed who guided me whenever we met, gave me heart and hope, and involved me in anything I wanted to be involved in with mediate.com. Praise, praise and eternal gratitude.
5 Top Business Boo Boos
In a special free report from the Program on Negotiation at Harvard Law School, the smartest negotiatiators in the room offer their advice on the five top bargaining errors.
Obama v. Syria - Video
While it's easy to develop your position and defend it, it's much harder to avoid line-drawing and keep the bigger picture in sight. This video shows an example of the perils of line-drawing.
This Week's Attorney Shero Is The Bad Ass Zimmerman Judge
This is an exercise of physical power, not the immaterial forms of persuasion like ingratiation, rational argumentation, authority, commitment, promises or even threats. It is, however, a particular kind of bodily shaming that's a check-the-box-guy thing. I never heard of a woman asking another woman to be her beard.
Power of Anger Ineffective against Powerful Negotiators
Men and women both want their days to pass without having accusations hurled at them, without hearing what a frenemy is saying behind their backs, and without stirring their colleagues or clients to anger.
Failure IS An Option
My students are wondering if it's ever an option to let an organization fail. Not only is it an option, there's an entire legal specialty devoted to organizational failure - bankruptcy, particularly that branch of bankruptcy that permits institutional reorganization.
Escaping Gender Bias in ADR
“A professor was showing his class a chart of the species, at the top of which was man. A student raised her hand, asking why man was at the top. ‘Tortoises are heartier,’ she said, ‘cheetahs more swift, and grizzlies more ferocious. So why are we at the top?’
Conversations Leading Lord Grantham to Agreement
If you think the 20th century’s teen years look an awful lot like those of the 21st – massive technological change and fault lines breaking open between the one and the 99% – you’re quite right. In the most recent season of the rare PBS hit, Downton Abbey the British aristocracy is reeling from post-World War I modernization.
It's Just As Hard To Be Ken As It Is To Be Barbie
Preparing for a presentation on negotiation and gender for 250 tax attorneys and their clients later this week, I’ve been thinking a lot about the ways in which men’s stereotypic gender roles make them worse negotiators than women.
In Stunning Move, Los Angeles Courts Abolish Mediation Programs
In response to brutal budget cuts, the Los Angeles Superior Court is going on life-support at the same time as it abolishes programs that would make the delivery of justice faster, cheaper and more efficient.
Wal-Mart Women Get Their Day In Court
On September 25, 2012, a trial level federal court in Northern California denied Wal-Mart’s motion to dismiss a statewide class action suit whose nationwide sibling was defeated by a 5-4 Supreme Court ruling last year.
Men's Sexual Harassment Claim Against Woman Boss Headed to Mediation
Yes, Virginia, women as well as men can act the role of the sexually bullying boss. We tend to be surprised about this only because of our benevolent biases about women – in this case – that they are too inhibited or “nice” to use sex as a tool for workplace bullying.
New California Resolution to License Mediators Introduced
Thins blog includes correspondence from the Southern California Mediation Association about the proposed new regulation that landed in my in-box today. It includes links to arguments pro and con and urges mediators who are interested in the issue to contact the responsible parties.
You Could be One of the 7%: Get the Most Out of Every Deal
Someone recently told me that you can’t argue with a story, only with a position or another argument. That’s why narrative is such a powerful negotiation strategy and why asking diagnostic questions that elicit stories is one of the best – but most overlooked – bargaining strategies for business men and women alike.
Business Gurus Bet on Women
Now that the Paycheck Fairness Act has been blocked by the GOP, sending federal funding for women’s negotiation training to the dust bin, bargaining experts are out in force advising women on best negotiation practices.
What Women's Initiatives Need
It’s not at all surprising that most women’s initiatives at most AmLaw200 law firms have been dismal failures. They failed because they lack buy-in; are often unfunded; and, no one takes them seriously.
The Necessity of Women-Only Networks
When we’re not being judged by our actions, our speech, our tone of voice or our discussion of families and babies in business setting, we are able to put those perceived (and in many cases, actual) condemnations aside and get down to business.
Getting Your Man (or Woman) To Do What You Want
“We’ve evolved a few tricks over the millennia,” writes Stosny, “but most of them are not adaptable to complex modern relationships.”
The Heroes of Flight 93 as Evolutionary Altruism and Spiritual Practice
The intended victim of Flight 93 was not its passengers nor its crew. The intended victim was the idea of America. The unintentional heroes were ordinary Americans who could easily have behaved differently than they did when faced with their own destruction. Had they privileged fear rather than action, our memories of 9/11 would include a devastated and smoldering national Capitol.
Productive Hurricane Reading from the She Negotiates ForbesWoman Blog
How often does New York City roll up the City streets and the subway system. Unprecedented. And it's not the only City battened down as the eastern seaboard awaits Hurricane Irene. If you tire of Boggle and Scrabble, have already cleaned out your underwear drawer and have thrown aside the week's New Yorker, here's a little additional light reading for negotiators.
Negotiation - It's Not About Gender - It's About Power
I've got two posts over at ForbesWoman about negotiation advice routinely being given to women these days - that they ingratiate themselves with their bargaining partners lest they seem too "assertive" and unlikeable. Some scholars say blaming women for gender blow-back in the workplace is not only unfair, it's inaccurate.
Why the Federal Budget Negotiations Matter to Women
As Bill Maher so hilariously explained, the three primary servings on America’s debt plate are social security, medicare/medicaid and defense. All other government expenses are just garnish – a sprig of parsley, a caper or two, those tiny corncobs you avoid at networking events and a bit of radish.
Principle, Prosperity and Politics Drive Federal Budget Negotiations
As the federal budget deadline nears, I am seeking the advice and analysis of some of the country’s most prominent negotiation gurus to illuminate the motivations driving the on-again, off-again bargaining sessions between the Democrats and the GOP.
Negotiating Life’s End on Medi-Cal: Second in the Series
All I knew in the wake of Cedars-Sinai’s message was that Joel had likely been hospitalized for at least two of the days I’d been on vacation and off-grid.
Do You Have a Reason for that Number? Settling Lawsuits with Better Persuasion Skills
Explaining why our bargaining partners should do what we want them to do requires persuasion — a compelling account of our business requirements and capabilities — along with any other reasons we can gin up to prove that what we want is fair and reasonable.
Mandatory Mediation Sparks Italian Strike
How do you get Italian lawyers to strike?
You give them a long ski weekend.
How Inclusivity Can Save the AmLaw 100
Join the ABA Young Lawyers Division for the Art of the Ask
Despite the strides women have made in law, female attorneys continue to face challenges and struggle to advance in their careers on the way to the top
The Four Magic Words for Women Lawyers
I spoke at the Ms. JD Conference last week, advising the best and the brightest law students in the country how to crack the seemingly bullet-proof private practice glass ceiling.
Duke v. Wal-Mart at Forbes Woman: Implicit Gender Bias and Social Science Evidence
For Supreme Court watchers, here's my article on Duke v. Wal-Mart over at the She Negotiates ForbesWoman blog, Wal-Mart Discrimination Case Grapples with Implicit Biases against Women.
Do you REALLY Want Me to be Evaluative?
A mistake that lawyers sometimes make is failing to ask for what they want. If they do want an evaluation they can ask for it when they hire the neutral. There are processes variously known as neutral evaluation, non-binding arbitration, or early case assessment which are designed specifically for this purpose. They can be used independently or they can be combined with mediation.
When You're Ready to Seriously Negotiate that 10-Year Case, Read 50 Blog Posts that Will Make You a Better Negotiator
Over at B-School today, you'll find a collection of blog posts that will give you an entire semester's worth of negotiation knowledge, training and (if you practice) experience. Don't miss it.
Excuse Me for Having to Be Rescued: Negotiating Order in Japan
I do not know anyone who would apologize to their rescuers for the inconvenience caused by the need to be saved. And I cannot imagine the destruction to my own City by the occurrence of a quake with a magnitude greater than eight. I do know, however, that in the face of crisis, whether we live in Hollywood, Tokyo, Cairo, New Orleans, New York City, or Bangalore, we pull together, set aside our differences, care first for the weakest and and carry on.
Be a Negotiation Hero!
Here are 8 statements I will not have to hear you make if you are a lean, mean negotiation machine.
Must Read For All Negotiators, Particularly Litigators
In business and in life, it's important to strike a smart balance between naïveté and cynicism. Act too naïvely, and someone is bound to take advantage of you. Skew cynical, and you may miss out on new opportunities with good people. This paper discusses the decision errors inherent in leaning too far in either direction. Research was conducted by Chia-Jung Tsay, Lisa. L. Shu, and Max H. Bazerman of Harvard Business School.
La Cinquième Semaine De Salauds
For the faint of heart, the week in bastards/jerks/assholes part five carries its title in French, if google translate can be trusted. Me, I never got much further than je suis très malade on a final day in Paris in 1993 after my amis left the country with me holding the hotel bill. As anyone who follows this blog knows, we define asshole as a behavior not a person and not one person but two
Bad At Science, Math? Success More Tied To Social Skills
Take a look at David Brook's article today on elite boot camp parenting. I wish I'd said what he says best about the importance of social skills and emotional intelligence to success (not to mention happiness). Naturally, these are the skills one needs to negotiate effectively as well.
The Week In Assholes, Part Deux
In honor of the second week of my East Coast Book Tour, I give you the second edition of The Week in Assholes.
The Week In Assholes
A new regular weekly feature here and at The Negotiation Law Blog is The Week in Assholes.
Marrying Rich? Why We Read Advice For Hefner’s Bride-to-Be
Why is Negotiation Advice for Crystal Harris poised to take over the day’s top spot as Forbes.com’s most popular post as LeBron James’ advice for the NBA fades into obscurity (as my item will tomorrow)?
10,000 Boomers A Day Do Not Go Gently Into Retirement
Even before the recession I was asking anyone within shouting distance just exactly what the country was going to do when the largely bankrupt baby boom became the largest impoverished retired class the country has ever known.
Christmas And Conflict ~ A Meditation
Because the New York Times’ most prominent Christmas story on that day’s eve is about furious family battles over the pressing question of white lights or colored on the Christmas tree, I am moved to write about religion and violence.
She Negotiates For Crystal Harris ~ About That Pre-Nup
The question why Hugh Hefner is marrying his 24 year old girlfriend Crystal Harris has been raised around many a post-Christmas table since Hef popped the question along with the diamond on Christmas Day. Jeez, my 85-year old mother doesn't even have a computer, but the ever-young Hef tweeted his proposal. Still, Hef can't have more than a decade of active life left in him while Crystal's got six or seven decades.
The Bronze Asshole Award For November Goes To Akin Gump Partner Steven Pesner
As you may recall, we've recently given Gold and Silver Asshole Awards here ~ the Golden to the "individual making the greatest contribution to reducing assholishness in the profession" and the Silver to the person who best illustrates the proposition that an asshole is not a person but a behavior and not one person but two. See also Legal Blog Watch for a discussion of the proper terminology here ~ assholiness?)
Valuing Commercial Enterprises In Business Litigation
Much of the complex commercial litigation that I mediate requires that businesses be valued. Although we litigators tend to hire experts to do the dirty work we went to law school to avoid (math!!) we do need to understand our own consultants' valuations as well as those of our adversaries in order to perfect our strategy and prevail at trial.
Why Conflict Is Our Zen Master
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.”
E Is For Enemy ~ Poland (And We) Demonize Without Them
I've said this before. "I don't take it personally" is the biggest lie in the legal business. Well, that and "it's only about money" which is pretty much the same thing. But let's pretend that you, a seasoned litigator and trial attorney, have achieved legal practice nirvana. Despite the fact that another attorney is getting up across town or on the other side of the country with the express purpose of making you look like a liar, a cheat and a thief on a daily basis, you rise above it with equanimity every working day.
The Silver Asshole Of The Month Award To The Cornell Senior Lecturer And His Anonymous Student
Today we're creating a Silver Asshole Award for the individuals (there will always be two) who best illustrate the proposition that an asshole is not a person but a behavior and not one person but two. Given the reduced qualifications for the Silver Medal, we'll be sending the winners a .pdf of the first chapter of the ABCs - A is for Asshole. This month's winners are an unidentified yawning student at Cornell (whose name, rank and serial number I will keep confidential if s/he wishes to pick up the prize) and his/her professor, Senior Lecturer Mark Talbert.
Extreme Negotiations At HBR
Let me also say it's not enough to read about these techniques ~ you must practice practice practice practice.
An Asshole Is Not A Person But A Behavior, Not One Person But Two . . .
I felt a great deal of kinship with the writers of theRally to Restore Sanity today, particularly that part of John Stewart’s speech about how we cooperate with one another in traffic regardless of our bumper stickers (“oh no, that says Obama . . . oh well, first you, then me.”)
That’s what A is for Asshole is all about ~ that “assholes” and bullies and enemies are not peoplebut behaviors and not one person but two.
The ABC's Of Conflict Thanks The ADR Blogosphere And Mediate.com
I began to blog on ADR topics in 2006 when I stumbled over local mediator Jeff Krivis’ blog (thanks Jeff!) I’ve often said that the blogosphere is a small Midwestern town where the residents feel safe enough to keep their doors unlocked at night and everyone has carte blanche to walk into the neighbors’ kitchens, open their refrigerators and taste whatever gustatory pleasures await their curiosity.
Paintball Rifle For Line Cutters?
In the first chapter of A is for Asshole, the Grownups’ ABCs of Conflict Resolution, we dissect and illuminate why an otherwise sober member of the Fourth Estate might resort to the purchase of a paintball rifle in response to the asshole who cuts into the long line of cars “crawling toward the exit for the Brooklyn Bridge.
Of Course The Mccourts Will Mediate
Every time we hear the name “McCourt” these days, our heart leaps a little. Who cares if the ridiculous divorce travails of Jamie and Frank end up wrecking the team, after all?
Settle It With Push Ups?
For an enlightened manly-man resolution to the patently insane prospect of litigating a $40,000 dispute, see the WSJ Law Blog post ADR Chronicles: Taylor Lautner Gets Settlement Offer for the Ages.
She Negotiates The End Of The Glass Ceiling
How do we "sell" the nation on the idea that women's work is as valuable as men's? Despite the fact that 90 years have passed since women were given the vote and 40 since an entire generation of women raised their voices against unequal treatment under the law, we continue to make a third of what our men do.
L.A. Mediator And The LASC Pro Bono Panel: The Canary In The Coal Mine
I once lived in the neatly trimmed suburban neighborhood of litigation. Although bullies sometimes populated the streets, because residents share important values (critical thinking, evidence-based fact-finding, and, the application of the rule of law to competing claims) its streets are clean, its trains run on time and its police force keeps most of the "bad element" out of town. Just as importantly, Litigation Land has many town mayors, those be-robed authority figures who can and sometimes do sanction those attorneys who break the folkways of civility. So you can be an asshole in your dealings with fellow members of the Bar, but the practice is strongly discouraged and subject to sanctions imposed by "Mom and Dad."
L.A. Mediators And The LASC Pro Bono Panel
When I first dipped my big toe into mediation's waters by taking Mediating the Litigated Case in a downtown hotel ballroom back in the Spring of 2004, generous attorney-mediators like Jeff Kichaven, Laurel Kaufer, Bob Steinberg, Jan Frankel Schau, Steve Cerveris, and Deborah Rothman all arrived on the beachhead of my new profession with advice, support, empathy, and warnings. Starting a new profession, particularly one that is entrepreneurial, is just like moving into a new neighborhood and these wonderful mediators were my Welcome Wagon (for which I will always be grateful).
L.A. Mediator And The LASC Pro Bono Panel: The Confessional
It is a truism that our greatest weaknesses can also be our greatest strengths. We all have something that we'd like to see changed. We're too easily startled by the unexpected. We don't have easy access to our own emotional lives. We're short-tempered. We speak softly, tentatively, when we'd rather be bold and appear confident. We're confident but we too often appear arrogant. We enjoy the sound of our own voice and tenor of our own opinions better than those of others. We have a difficult time seeing both sides of the issue. We'd rather be right than happy.
L.A. Mediator And The LASC Pro Bono Panel: Hope And Safety Or Rupture And Repair?
My primary job as a mediator, aside from learning the "case" and acquainting myself as deeply as possible with the parties' interests - is to "hold the space" of resolution. That usually means that I begin the process by creating an atmosphere of hope that the matter can be resolved and insuring the parties that they are in a safe environment in which their conflict can be resolved without subjecting themselves to ridicule or other emotional harm.
26 Ways For A Retired Judge To F$@! Up A Will Contest Mediation
I have often bemoaned the spotty state of mediation education, training and mentoring in the ranks of those people who mediate litigated cases. My own recent mediation experience - as a party - makes me even more concerned about the state of mediation practice. As you can see below, it also makes me feel what many people feel post-mediation and that feeling is anger.
Negotiation Is A Conversation Leading To Agreement
If negotiation is a conversation with agreement as its goal, we should not be wasting our time arguing with one another about whose point of view is the best. We should be talking to one another about how we can both achieve as many of the goals we both want to achieve as a result of our conversation.
Please Don't Buy Me Retail
My friend's Women's Bar Association is looking for a speaker. They wanted that other woman who speaks on the topic of women negotiating. You know the one . . . what's her name. Yes, that's her. The annual meeting committee gave her a ring and she quoted them $10,000 for an hour keynote.
Negotiation - It Takes Courage
asked one of my consulting clients for a testimonial yesterday. "Anything," she said, "it's genuinely changed the way I do everything. It's not just the shift in my business relationship with [BigBiz, Inc.]. I dumped a boyfriend last week because of our conversations! So, seriously, what would you like me to say?"
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.
"Winning" Workplace Arguments Is Really Just Consensus Building
In Workplace Negotiating Secrets From Bethenny's Shrink over at Forbes.com, Xavier Amador, the therapist on Bethany Getting Married? gives his "secrets" for "winning" workplace arguments. What Amador suggests (below and at the link) is really just collaborative interest-based negotiation, but his catchy acronym - LEAP - is a good one to remember for all negotiations, whether you're brokering peace in the Middle East or getting your guy to put the toilet seat down. If you read the article, and I highly recommend doing so, you'll see that no one is "winning" any "argument." Rather, people are finding ways to accomodate all of their needs simultaneously.
The Bet Din: Religious Dispute Resolution
Los Angeles has large orthodox and ultra-orthodox Jewish communities. I have, on more than one occasion, been introduced by mediation clients to the Jewish justice system - the Bet Din. I have mediated business disputes that have already been to the Bet Din and those that were destined to go there.
Can A Checklist Lead The Adversarial System Into The 21st Century?
Recently, I suggested that surgeon-author Atul Gawande's Checklist Manifesto pointed the way toward a more effective and efficient means of responding to frivolous claims than potentially protracted litigation. Skeletal checklists for just such dispute resolution processes are already in daily use by peer mediators in our public schools. Because those lists are scalable, they can be readily adapted to address conflicts of far greater sophistication and complexity with minimal effort.
Are You A Negotiator Or A Bureaucrat? Clients Care
I'm lifting the entirety of Ken Adams' post The Connection Between Contract Drafting and Negotiation, along with the insightful comments to it.
Anchoring And Framing: They Work So Well Their Use Is An Ethical Act
Check out The Impact of the Irrelevant on Decision Making in today's New York Times. It's not just another article about the surprising power of anchoring and framing. It suggests that "framing a discussion" is so powerful that it is "an ethically significant act."
No Woman, No Matter How Successful, Ever Has A Pure Business Negotiation
Yesterday at the She Negotiates blog, I posted two quotes by a woman executive (President and CEO) who is blazingly successful in one of the most male-dominated industries in the world - construction of sports arenas.
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.
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 "She Negotiates"
There's a new blog on the block called She Negotiates hosted by popular blogger Victoria Pynchon. Why she negotiates? Read here!
Why Should Women Learn How To Negotiate? A Call To Action
Linda Babcock and Sara Laschever, in the must-read Ask for It!, define negotiation as "a tool to help change [or preserve] the status quo when change [or preservation] requires the agreement of another person.
Why should women learn to negotiate? Here's the succinct and powerful message Babcock and Laschever have for us.
Can You Ever Really Know Your Adversary's Bottom Line?
It was 8 o'clock on a mid-summer evening and the HMO's representative was packing up his brief case. "I appreciate your hard work," he was saying, "but I simply don't have the authority to compromise any further."
Women In ADR With A Wake Up Sound Track
Anyone who's known me for more than twenty minutes will realize the soundtrack to this Women in ADR video is a very very good sign that I'm regaining my sense of humor without losing my commitment to this issue. Rock on . . .
Finesse The Impasse By Changing The Deal: Advice From A Former Disney GC
Former Executive Vice-President and General Counsel to The Walt Disney Company, entertainment law heavy-weight Lou Meisinger (now Judge Meisinger thank you very much) gave me the best impasse-breaking advice ever.
Geoff Sharp Returns With The Best Negotiation/Mediation Advice In The ADR-O-Sphere
Remember mediator blah blah . . . . ? New Zealand mediator and mediation/negotiation trainer Geoff Sharp's justly revered blog? It still exists, along with an incredible treasure trove of helpful suggestions, insights, links, case studies, white papers, forms, shout-out's, call downs, criticisms and praise. mediator blah blah has been shuttered and silent since Geoff "bowed out" in August of 2009, followed by the funereal wailings, rending of garments and heaping of ashes by those whose professional and personal lives were enriched every time Geoff put hand to keyboard.
Do We Really Want To Hire A Woman Mediator On This Case?" Victoria Pynchon Goes All In
Five years ago, after twenty-five years of high-stakes complex commercial litigation, I left legal practice to pursue a full-time ADR career. At the time I left practice, these were the questions my teams and I were asking about the qualifications of mediators: "Do we really want to hire an attorney mediator for this case?" or "Don't you think the client wants a Judge?" The ADR profession has mostly passed that hurdle.
Improving Your Game To Get What You Want How You Want It
If you've been thinking, "but I'm just a mom" or "my job is ruled by pay scales" or "secretaries can't negotiate" -- think again! And register for the 4-week virtual learning and journaling course in the Craving Balance Learning Community.
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.
Master Mediator Jeff Kichaven On "Personality" And Establishing Credibility In Mediated Negotiations
These videos are Mediation 101 by one of the best commercial mediators in the greater Los Angeles area, Jeff Kichaven.
Differences In Men's And Women's Conflict Negotiation Styles
Today I stumbled over the post Women Deal with Conflict Differently than Men, reporting on a study done by the Program on Negotiation at Harvard in 2008. Results of the study showed the following similarities between men and women including:
Two New Blogs To Help You "Win" Your Settlement Negotiation
Put these two dynamite resources in your news reader and be as good a settlement negotiator as you are a litigator and trial attorney.
Mourning the Passing of a Great Friend, Mentor, Lawyer and Mediator, Richard Millen
I don't think there's a mediator in town who didn't know and love Richard. Now, you'll excuse the presumption, a "real" mediator at any rate.
Gender Bias in ADR
This is the list of blog postings compiled by Diane Levine and Victoria Pynchon on Gender Bias in ADR which have been posted in celebration of International Women's Day and Women's History Month.
Combating Implicit Gender Bias in ADR
Now you know the disappointing statistics. As women have populated the Bench, justice has become more privatized, lessening the benefits of diversity to those whose disputes lead them to Court; to arbitration panels and associations; or, to mediation panels.
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.
Negotiating Gender Bias In ADR: The Commercial Client Speaks
I am not advocating here for "special treatment" for women neutrals. I am advocating for the end (or simply the diminishment) of "special treatment" for male neutrals.
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. I generally endeavor to steer clear of this topic because I, as a commercial mediator and arbitrator, have a market that is primarily composed of white men between the ages of 40 and 65. And I don't, of course, wish to offend my market.
Negotiating Prejudice At U.C. San Diego
As the New York Times reports this morning, things are not going well at my old alma mater. Shades of my late-60's, early '70's campus life, students have actually "occupied" the Dean's office even though the trigger for the racial dust-up was not University policy but the activities of a few dunderheaded frat boys who staged a "Ghetto Night" to "mock" Black History Month.
Negotiating With Feeling One More Time
Helping law students master the skills necessary to mediate civil harassment cases last week put me in mind of two recent items -- the e-Discovery Dystopia video posted over at Commercial ADR ( The Horror, The Horror); and, Jared Lanier's new book, You Are Not a Gadget: a Manifesto excerpted this month in Harper's.
How Attorneys Value Your Claim When Making A Recommendation To Settle Or Proceed To Trial: An Explanation For The Parties
I used to receive correspondence like this once every couple of months. For reasons not clear to me, I'm now receiving two or three a week:
Open Source Negotiation Of Public Works
You might recall an earlier post in which I reported the (both expected and astonishing) results of an open source project in which researchers "opened up a set of 166 scientific problems from the research laboratories of twenty-six firms to over 80,000 independent scientists," resulting in the resolution of one-third of the problems that the research labs had been unable to solve without assistance.
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.
Mediate.com Featured Blogger Interview: Victoria Pynchon at Settle It Now Negotiation Blog
Mediate.com is doing a series of articles on our Featured Bloggers. This is the featured blogger interview of Victoria Pynchon.
Negotiating Fallacy: Diane Levin's Brilliant Fallacious Arguments Posts
If you're following this blog but not Diane Levin's Blog The Mediation Channel, I have good news for you. Diane is an extremely focused, disciplined and lively writer. She's also one of the brightest and most canny negotiators, mediators and negotiation trainers I know.
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."
Negotiate A Raise In This Economy? Maybe That's Not What You Really Want
Before you ask a current employer or future employer to entertain a competitive offer, you should sit down and figure out what exactly you're hoping to gain or change through negotiations.
Don't Leave Money On The Table Or Pay Too Much For That Release This Year
Don Philbin, the author of this must-read article on the reasons you walk away from negotiations fearing you've either left money on the table or paid too much for what you receive in exchange, is an attorney-mediator, negotiation consultant and trainer, and arbitrator.
Ten New Year's (Dispute) Resolutions For 2010
O.K., Ladies and Gentlemen: start your 2010 engines; it's going to be a busy and productive year! Lord knows there's lots of conflict resolution work to do.
Settle It Now's Newstex Syndication, Blawgreview 245, Charonqc, Marlon Brandon, Sacheen Littlefeather And Conflict As Your Zen Master
It used to seem odd to me that companies would bundle free blogs and that people would pay for the bundle. With the advent of LawBox, the iPhone application that bundles federal and state codes along with law blog and law news content, I get it. Not everyone's a BlawgReview Sherpa, paging through a news reader containing literally thousands of law blog posts every week for their possible inclusion in BlawgReview. A pre-selected group of law blogs, usefully organized by category (mine is there under ADR) is well worth the money (only the State code materials requirement payment; the federal laws and blogs are free).
Should HR Professionals Work Up The Courage To Negotiate Competitively?
Check out Kris Dunn's recent blog post at the HR Capitalist Retail and Religion - Now Inhibiting the Negotiation Skills of an HR Pro Near You...Though the reasons given for our negotiation hesitancy are insightful and, I believe, spot on, the post moved me to more or less use the HR Capitalist Blog's comment section to write today's post.
Value-Based Mediation Fees? Listen To The Conversation Here
Professional mediators Amanda Bucklow, Tammy Lenski and Diane Levin discuss the problems associated with hourly and project billing, and ponder the promise and challenges of value-based fees.
New Year's Negotiation Resolution: Dialogue With The Public Conversations Project
Join me in my New Year's resolutions to focus on our similarities and common interests rather than on our differences and conflicting goals; find common ground; share the experiences from which our opinions dervice (our stories); set aside argument in favor of dialogue; remember that each one of us is struggling with some great burden despite outward appearances; and, that squeezing the last nickel or concession out of our bargaining partner fails to recognize that we are all in this together.
Flourish In 2010 Without Changing Anything Other Than Providing Your Workforce With Negotiation Training
I've taught in-house negotiators and corporate executives negotiation skills and I can tell you that not a single participant thought they were too negotiation-savvy to benefit from the training. Just let me say this. It's not rocket science. But not enough business executives and managers and not nearly enough lawyers know the basics necessary to get the best deal available to them.
The ABC's Of Conflict Resolution: "F" Is For Friend
My Twitter account tells me I have 1892 "followers" and my Facebook page suggests that I add someone new to my account as a “friend” nearly every day. Despite our modern online age, however, people do not become “friends” (nor loyal "followers") at the push of a button. We start friendships tentatively, with small admissions of fallibility that won’t entirely rip away the costume of the person we’re pretending to be.
Victim Or Gold-Digger: Rock Hudson's Former Partner Marc Christian Macginnis Passes
Why discuss MacGinnis in a blog about negotiation and dispute resolution? Because we all have an imperfect understanding of the reasons people bring suit against one another.
What's Gratitude Got To Do With It?
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).
Nationwide Foreclosure Mediation Resources
Thanks to California State Bar legislative counsel, Saul Berovich.
How Not To Kill Your Relatives This Thanksgiving
I kicked off a recent Thanksgiving holiday season by having an argument with my friend and neighbor the rocket scientist about extraordinary rendition and the effect of immigrant workers on the economy. I knew I'd lost all sense of perspective around midnight as I continued searching for and emailing Tony articles that proved me right, while Mr. Thrifty snored softly beside me, intermittently awakening to say "I thought you said you were going to go to sleep?" Embarrassing, but true.
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 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.
Prejean, Larry King And Hard Facts Making Bad Mediation Confidentiality Law
While reading this opinion (or simply this post) think about Carrie Prejean's accusation that Larry King's question to her -- "why did you settle" --was "completely inappropriate" because (presumably) her thought process was protected by mediation confidentiality.
Why Do You Think They Call Them "War" Stories? A Meditation On Mediation Ethics
Thanks to google translate (daily destroying God's work on the Tower of Babel) I can bring you this mediation war story (loosely and imperfectly translated from a German mediation blog that I'm sorry I've lost the link to).
Trial Lawyers' Dilemma Similar To Mediation Advocates' Dilemma: Making The Initial Demand
Remembering that the advantage in negotiation is always to the party who makes the first reasonably aggressive first offer the decision about how much to ask the jury for should be similar to how large the initial demand in a mediation proceeding should be.
Mediation Advocacy: The Power Of The Story
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).
Negotiating Enforceable Employment Arbitration Agreements
Even so luminary a firm as O'Melveny has been smacked down by the courts (here, the Ninth Circuit) when trying to enforce employee arbitration agreements. California lawyers would therefore be well-advised to read the opinion covered at the California Employment Law Report this week: Arbitration Agreement Upheld Despite Employee's Argument It Was Not Mutual And Adhesive.
Mediators And Industry Knowledge, Game Theory And Understanding Conflict
Check out the range of opinions among litigators' clients on this still-hot topic in mediation circles over at the Business Conflict Blog (quickly becoming one of the most indispensable commercial mediation blogs on the web): Should Mediators Be Expert in the Field of the Dispute?
Mediation As Profession, Hobby Or Retired Occupation
Though I'm not wild about raising the over-discussed issue whether mediation is a profession, in writing L is for Lawyer (for the ABC's of Conflict Resolution) I had occasion to take a look at the characteristics of "professions." I thought I'd share them with my readers to add a little fuel to this long-burning fire because, frankly, L is for Lawyer is one of the most boring chapters of this book.
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.” 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.
Guidelines For Responding To Mediator Complaints Proposed In Virginia
Thanks to Timothy R. Hughes of the Virginia Real Estate, Land Use and Construction Law Blog(@vaconstruction in my fabulous twitter network) for this item on mediator ethics from Virginia.
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.
Mediator Testifies For Insurance Carrier And Court Enforces Mediated Settlement Agreement Against Policyholder
This opinion -- Palmer v. State Farm - is wrong on so many levels that it's no surprise the appellate court ordered that it not be published. The opinion therefore controls only the fate of the parties to the case and cannot be cited as authority. The no-publication order does not, however, diminish my distress about the mediator's decision to file a declaration in support of State Farm's motion to enforce a formal settlement agreement that its insured refused to sign as contrary to the handwritten agreement drafted by the mediator during the mediation proceedings.
Evaluative Neutrals And Mediator's Proposals
Let me begin with a radical proposition the expression of which my colleagues assure me will doom my mediation career.Ready? Attorneys and their clients do not know what type of mediation is best for them any more than they know how to cure their own cancer.
The Difficulty Of Changing Minds By L.A. Mediator Charles Parselle
One of my own favorite quotes about "changing the other guy's mind" is from commercial mediator Jeff Kichaven: "piling rationales atop one another to convince a litigator he is wrong is like raising your voice to communicate with a deaf man." Below is Los Angeles mediator Charles Parsell's more recent take on changing minds from the L.A. Mediator ning group.
The 411 On The AAA's Non-Binding ADR Solutions Program
The American Arbitration Association (AAA), the world’s leading provider of conflict management and dispute resolution services, has unveiled new services for parties involved in business-to-business, business-to-consumer, and employer-employee disputes. AAA’s Non-Binding Dispute Resolution Services provide an appropriate alternative to pre-dispute binding options.
Restrain The Pitbulls And Release The Attentive Questioners For Theirs Is The Kingdom Of Resolution
A mediator who is bullying you or your client to settle simply hasn’t gotten the knack of asking questions and creating opportunities. She’s still too used to wielding power. If it’s important enough to spend your day mediating, it’s important enough to tell the mediator that you do not want her bullying any of the parties.
More Ways To Commit Legal Malpractice As A Mediation Advocate
If you didn't already understand how to protect your mediated settlement agreement from challenge, you do now.
But wait a minute! Is that what you want? What if your client entered into the agreement only because its opponent made a material misstatement of fact? What if one of your co-defendants challenges your settlement agreement as not having been made in good faith, thus exposing your client to potential liability for indemnity or contribution? Can you win the "good faith settlement" motion without the testimony of the participants in the mediation?
Another Malpractice Trap For The Unwary Mediation Advocate: Draft Your Own Confidentiality Agreement
As every mediation advocate must know by now, the California Supreme Court has locked down mediation confidences from attack at every turn. There can be no implied waiver of Evidence Code section 1119's protections and you cannot be estopped to assert it (Simmons v. Ghaderi).
Yet Another Path To Attorney Malpractice In Mediation Proceedings: Coerce Your Own Client
Because the vast majority of my litigation and mediation clients were and are corporate entities or highly successful entrepreneurs, executives or managers, I was and am rarely in a position to coerce a client into doing something it didn't want to do. As a mediator, however, I hear stories.
Yet Another Path To Attorney Malpractice In Mediation Proceedings: Coerce Your Own Client
Because the vast majority of my litigation and mediation clients were and are corporate entities or highly successful entrepreneurs, executives or managers, I was and am rarely in a position to coerce a client into doing something it didn't want to do. As a mediator, however, I hear stories.
Diplomatic Engagement To Settle Your Commercial Litigation
Today's New York Times Op-Ed piece on "diplomatic engagement" (Terms of Engagement) as a strategy for "chang[ing] [Iran's] perception of its own interests and realistic options and, hence, to modify its policies and its behavior," offers good strategic negotiation lessons for mediators and mediation advocates alike.
Power And Trust As Negotiation Strategies And The Lessons Of The Cove
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.
The Inaugural Issue Of The Federal Bar's RESOLVER Hits The Newsstands!
Welcome to the first issue of the Federal Bar Association’s ADR Section Newsletter, The Resolver.
How To Manage Your Negotiating Team From Harvard Business Review
The last time I trained an in-house legal department, I asked every group manager this question: if I could leave a silver bullet behind, what would it be?
The Five Most Effective Ways To Break Negotiation Impasse
I begin a series today on what I believe are the five most effective ways to break impasse. This morning's impasse-breaker will aid business people negotiating the settlement of a commercial dispute the most because it requires the generation of hitherto unseen business advantages to sweeten the pot.
The Five Most Effective Ways to Break Negotiation Impasse: Part II
Someone recently told me that you can't argue with a story, only with a position or another argument. That's why narrative is such a powerful impasse breaker and why asking diagnostic questions, which elicit stories rather than arguments, so often bridges gaps between the parties that yawn as wide as the Grand Canyon That's why I'm listing Asking Diagnostic Questions as the second most powerful means of breaking negotiation impasses.
The Five Most Effective Ways To Break Negotiation Impasse: Part III
In that most famous of sales movies,David Mamet's Glengarry Glen Ross, the under-appreciated Alec Baldwin gave his sorry group of cold-callers the prime directive of sales: Always Be Closing. You close when you convene the negotiation, close when you open it, close when you ask diagnostic questions, close when you offer your bargaining partner coffee, and close by MAKING THE FIRST OFFER.
The Five Most Effective Ways to Break Negotiation Impasse: Part IV
To reinforce anchoring and framing effects of first offers and offer-characterization, always state the reason you are valuing the item to be traded in the manner you are. “I’m offering to pay you $20,000 in exchange for a dismissal because (choose one or more): (a) I impeached your witness with interrogatory answers in the deposition; (b) the only case law in your favor has been questioned by the Supreme Court and hasn’t been cited since 1972; (c) your expert witness went to Ralph’s School of Law and mine went to Harvard; (d) recent jury verdicts for the theft of trade secrets of this nature have been less than the cost of doing the first round of discovery; and, (e) anything else you have.
The Five Most Effective Ways to Break Negotiation Impasse: Part V
Know and Use the Rules of Influence. Nearly all negotiators know Robert Cialdini’s six “rules” of influence: reciprocation, commitment and consistency, social proof, liking, authority and scarcity. They are easy to remember because we are all influenced by them every day.
Letter From Cambodia: American Cambodians For Justice
My name is David Blackman and I am a trial lawyer who practiced in Sacramento, California, for approximately 32 years before coming to Cambodia, where I have made my home for the last three years. I have been a member of the California Bar Association since 1972. I have formed an organization called American Cambodians for Justice. This organization represents American Khmers who were victims of the Khmer Rouge and who immigrated to the US in the early 80’s after the defeat of the Khmer Rouge by invading Vietnamese forces accompanied by Cambodians who fled to Vietnam to escape the purges of the Khmer Rouge during their reign of terror.
Negotiating Rational Choice, Statistics and the Future of Mankind
What makes the Logic of Political Survival Relevant to negotiators is Bruce Bueno de Mesquita's application of game theory to international political problems such as the reduction of conflict between Israel and Palestine.
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.
You Decide from Mediate Dot Com
This new video just in from Mediate.com. No, it won't inspire attorneys to mediate sooner than they already do nor drive any attorney to your mediation door. But it will introduce mediation to young people as a dispute resolution method that is in tune with the times - collaborative, reciprocal, fast, flat and flexible.
Diane Levin Hits Mediator Credentialing Out Of The Ballpark
This week, Diane Levin at the Mediation Channel, hits the issue out of the ballpark, summaizing the arguments on both sides; providing solid resources for study and analysis; and, raising the important issues the mediation community will ignore to its detriment.
Is Starting An ADR Practice To Weather The Recession Like Choosing A Niche In Bobbleheads?
On ABAJournal.com, readers were asked to name some of the lesser-mentioned practices where an attorney might find refuge from this recessionary storm. Here are some of your suggestions: ALTERNATIVE DISPUTE RESOLUTION
The Cop The President The Professor And Civil Harassment Mediation
It's merely coincidental that I volunteered to mediate civil harassment petitions for the first time during the same week as Gatesgate.
Mediating Civil Harassment Petitions With A Few More Thoughts On Gatesgate
Some people are so dangerous and some situations so volatile that restraining orders are of little use. Consider this tragic tale of the courthouse shooting of a woman who had "secured restraining orders that prohibited [her former husband] from possessing or carrying any firearms, that ordered him to turn over his firearms to his lawyer, and that prohibited [him] from being 'within 100 yeards of any firearm' while in the presence of [his ex-wife] Eileen and [the couple's] children."
The Benefits Of Being Candid With The Mediator: A Guest Post By Attorney Gregory Nerland
I reviewed with some dismay the July 12, 2009, post titled Mediators' Proposals: the Good, the Bad and the Ugly, which seemed to endorse counsel who deceive the mediator to push the negotiations to a mediator’s proposal./* I primarily litigate, but I devote a small percentage of my practice to serving as a mediator.
Mediators' Proposals: The Good, The Bad And The Ugly
At the close of the year, our good friend John DeGroote at Settlement Perspectives asked whether mediators' proposals had lost their utility.
Negotiating Unity: Gettysburg, Rhetoric And Poetry
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.
And Now A Word From Mediators Beyond Borders On Climate Change
In December 2009, delegates from around the world will meet in Copenhagen, Denmark for the 15th Conference of the Parties (COP 15) to the United Nations Framework Convention on Climate Change (UNFCCC). Copenhagen will provide a critical opportunity for the world’s nations to reach a comprehensive agreement before the commitments set out in the Kyoto Protocol expire in 2012.
Put Conflict Resolution On The Climate Change Conference Agenda
During eleven days in December 2009 delegates from throughout the world will meet in Copenhagen for the 15th Conference of the Parties – COP15 – to the United Nations Framework Convention on Climate Change, UNFCCC. The Denmark meeting is crucial for the international climate change negotiations. The climate change crisis challenges people throughout the world to invent and implement innovative ways to mitigate and thwart climate changing causes and effects. The crisis calls for new methods for nations and people to overcome differences and work together with the objective of preventing and resolving conflict arising because of limited resources and/or the effects of climate change.
Negotiating God: A Sunday Reflection
According to Robert Wright in The Evolution of God (reviewed in todays NYT Book Review by Paul Bloom) "God has mellowed" from a capricious tyrant into non-zero-sum playing diety. This is good news for mediators and anyone else in search of a better paradigm for conflict resolution than the 16th century adversarial system.
An Interview With Michael Young On The $4.1 Billion Arbitration Award
Michael D. Young, a partner in the Los Angeles office of Atlanta's Alston & Bird, wrote about the award on his firm's labor and employment blog, "Who's the Boss?" Young spoke to The National Law Journal about the lessons that employment lawyers and their clients could learn from the outcome in this case regarding arbitration agreements and the arbitration process.
Negotiating Justice: Anchoring, Bias, Dad And Sotomayor
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.
Foreclosure Mediation Becomes Mandatory In Connecticut
So much for the mediation carrot & the principle that "mediation is a voluntary process."
Who ME? Manipulate? Negotiating Impartiality In Mediation
I was reading a great article in the New York Times this morning about "blue sky" transparent diplomacy in light of Obama's Cairo speech and was intrigued by the phrase "constructive ambiguity" in international diplomacy.
The 140-Page Majority Prop 8 Opinion In A Single Paragraph
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.
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.
Mediate.com Certification Program: An Interview with Mediate.com CEO Jim Melamed
Three of the mediation world’s leading bloggers,
Diane Levin, Geoff Sharp and Victoria Pynchon, not necessarily great fans of
mediator certification, interviewed Mediate.com CEO, Jim
Melamed, on the new Mediate.com Certification Program.
Never Negotiate With Your Creditors Out Of Fear, But Never Fear To Negotiate Lower Interest Rates, Waiver Of Interest, Late Fees, Etc.
O.K., times are tough. And it takes no small amount of courage to face the financial disaster that credit cards can cause to even those who feel themselves to be the most sober of financial citizens. Then it takes real courage to pick up a telephone and make a request to a disembodied and not-likely-friendly voice to ask for help bailing you out of a mess you can barely believe you find yourself in.
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 squash (the game, not the vegetable), photography, literature, and theater. Oh yes. I'm also Caucasian. I rarely have to think of myself in those terms, however, because the society in which I live doesn't require it of me. I'm aware of my skin color only when I'm with my African-American friends or in a racially mixed workplace (shamefully rare in modern American private legal and ADR practice).
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.
50 Ways To Break An Impasse: Sam Imperati At The ABA Dispute Resolution Conference
I'm providing you with just a few clips from mediator Sam Imperati's excellent presentation at the ABA Dispute Resolution Conference in New York City recently. Here's his power point presentation.
An Interview With The Editor-In-Chief Of The Cardozo Law School Dispute Resolution Journal
Jordan Wallerstein is the next year's Editor-in-Chief of the Cardozo Law School's Journal of Conflict Resolution.
Jordan talks about his interest in dispute resolution; the challenges faced by his generation of lawyers; and, the benefits of attending Cardozo Law School in New York City.
Mediation As Sales And Niche Mediation Practice With Jim Melamed Of Mediate.Com
I traveled to the ABA DRS conference in New York City last week with my new video camera. I apologize for my lack of skill with it and with Mac's iMovie. Below, Jim talks about mediate.com's services; its commitment to the further development of the profession; and, mediate.com's commitment to negotiated resolutions in the political sphere.
Separating The People From The Problem At The ABA DRS Conference
The law school professor asked for a show of hands. "How many lawyers are in the room?" I connected to my twitter network and tapped out "now this speaker is going to dis lawyers - let me see if I can stay quiet." If disrespecting lawyers were an unusual event at ADR conferences, my "read" wouldn't have been so spot on. But it's actually a category here: the evils of litigation and its soulless practitioners.
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."
Negotiating Reconciliation, Amends And Forgiveness in Burundi
Whenever I read about restorative justice (my paper on the topic here) I am somewhat ashamed that I cannot put aside my own grievances when others resolve harms of such major magnitudes such as the murder of children and genocide. I am reminded of this today because of Paul and Rebecca Mosley's blog on the work they are doing in Burundi.
Negotiating Women On New Day Talk Radio Easter Sunday Noon
I've trained executive women to use their natural talents, skill and affiliative natures to overcome the statistics I'm about to give you, straight from Babcock and Laschever's site Women Don't Ask: Negotiation and the Gender Divide. Here are the dreary statistics on women and negotiation from Babcock and Laschever's book Women Don't Ask.
You Must Create Disputes To Resolve Conflicts: Contingent Business Interruption Coverage
Most people think ADR professionals believe that all conflicts are bad. Quite the contrary. Those of us who are trained and practiced in dispute resolution understand that conflict must ripen into one or more disputes for society to evolve along the arc of justice.
Getting Your Opponent to the Bargaining Table without Appearing Weak
As a mediator, the question I hear most frequently from lawyers is "How do I convince my opponent to sit down and negotiate without losing my competitive advantage?"
Negotiating Emotion (And Client Development) With Arnie Herz At Legal Sanity
You'll see from my lengthy comment there that Arnie is singing my song about the law and emotion and in particular, the fact that we cannot make decisions without emotion something every trial lawyer, negotiator, mediator and sales person knows down to the knuckles of their spine. Excerpt from Legal Sanity below.
Pursuing A Divide And Conquer Negotiation Strategy? Don't Miss New California Case Law On Good Faith Settlement Findings
Challenges to good faith settlements that cut off the rights of non-settling defendants to seek indemnification and contribution from settling defendants are nearly always doomed to failure. Trial courts are understandably eager to clear their dockets and there's no docket-clean-up pitcher like the first defendant to settle. Deny the motion and bring a settled defendant and his trial-ready resources back in to the litigation when the first defendant-domino has just successfully toppled over? Not likely, my friend. Not in the trial court at any rate.
Los Angeles Daily Journal Profiles Mediator Victoria Pynchon
Mediator Victoria Pynchon relies heavily on human dynamics in helping parties acknowledge realities they may prefer to avoid.
Negotiating the Recession with Social Networking
If you want to negotiate from a position of power, you need to know Robert Cialdini's Rules of Influence.
Your Negotiation Partner is Not Your Adversary
Thanks to Diane Levin at the Mediation Channel for pointing me to a recent post by Ken Adams about the adversarial versus the "meeting of the minds" approach to contract drafting. Thanks to both!
Greater Negotiation Flexibility Results in Greater Anger?
The research subject of the article suggested that having a more flexible approach to resolving an acute conflict interaction results in more frustration and anger. I'll need to see the study itself to be convinced.
Want to Persaude Your Opponent? Tell Her a Story
Want to convince the other side that your case has merit? Don't argue the law. Tell a Story! From The Secrets of Storytelling: Why We Love a Good Yarn in Scientific American:
Settle It Never? More on Stringfellow
These are the cases that made me name my mediation business "Settle It Now."
The contamination of groundwater here in Southern California as the result of discharges from the Stringfellow toxic waste site took many legal forms, including State of California v. Allstate Insurance Company. Like Dickens' infamous Jarndyce v. Jarndyce, this "scarecrow of a suit has, in course of time, become so complicated, that no man alive knows what it means. Innumerable children have been born into [State of California],
Negotiating Law Firm Layoffs: the Series and Its Links
I do have ONE more post on the "negotiated" resolution of law firm layoffs, using "negotiation" in its broadest sense as in this definition at the online American Heritage Dictionary online.
Negotiating Law Firm Lay Offs: You Can't Save Your Face and Your Ass at the Same Time
When last we left the damsel in distress, she'd been laid off by an AmLaw200 firm and employed by a three-man outfit in Westwood. They promised to clean up her office, but right now it was a storage room with a desk. Used computer equipment, wire and cords were strewn about the floor; boxes of redwelds from cases long since settled or tried were precariously stacked one upon the other; while new and used demonstrative exhibits leaned against all four of the black scuffed beige walls.
Negotiating a Better Deal through Framing
When facts are uncertain (height, weight, distance, sequenced events, identity of perpetrators, green lights or red) people are incredibly suggestible. That's why negotiators learn how to "frame" offers in such a way as to make them seem better than they are -- we'll take less than a million rather than more than $750,000 for instance. Now the social scientists have demonstrated not only that our estimates of facts before our eyes are subject to framing, but our recollection of events is as well.
Conflict Resolution: When a Mediator is the Client
This experience is going to take a while to digest. First let me tell you what was GREAT about my recent mediation experience.
Negotiating Unemployment: Hope for Laid Off Lawyers
The last recession is vivid in my own mind because an AmLaw200 /1 law firm laid me off in the Spring of 1992 - a year after the recession's "official" end in March of 1991.
Lawsuit-Proof Your Business to Cut Costs in Downturn
Lawsuits arise from a process social psychologists call "naming, blaming and claiming." I broke my toe last week (youch!) when I was talking to my husband from another room and walking into a closet to hang up my jacket. Jammed it on the door frame, once again engaging in the risk-courting activity of walking and talking at the same time.
Pre-Trial Discovery Decreases Likelihood of Settlement
From the Department of Counter-Intution we learn that our general assumption about pre-trial discovery -- that the open exchange of information will help align the expectations of disputants and increase efficiency by facilitating settlement /1 -- is probably inaccurate.
The Most Efficient Conflict Resolution is Prevention: Avoiding Suit During Era of Massive Lay-offs
The British call layoffs "redundancies." I prefer the American term - layoff - because it focuses on the employer's need in times of economic stress ("I can no longer afford to pay you and so must lay you off) to the British locution which focuses on the employee's presumed inefficiency ("because your work is being performed (better?) by others, you have become redundant.")
Negotiating with Pirates: Squeeze Every Penny Out of the Deal
In Hijacked on the High Seas When Somali Pirates Attacked, They Kicked Off 56 Days of Drama Over the Fate of a Ship and 28 Crewmen, The Wall Street Journal details the negotiation strategy and tactics that resulted in the release of the hijacked ship and its crew.
Negotiating Litigation: First You Have To Win
So what do I mean when I say you have to "win" your litigation before you can settle it? I mean you need to get your adversary playing on your court and actually win a few rounds. You can shake your stick and fulminate and threaten, but unless you're capable of actually winning, your adversary's Best Alternative to a Negotiated Agreement (his BATNA) is beating the pants off you at trial or watching you fold like a lawn chair on the courthouse steps.
Devil in the Details: Sticker Term Shock
The anger, suspicion and ill will that has characterized the first eight hours of this mutli-party, eight-figure antitrust mediation is about to heightened as I deliver Defendants' terms: they will pay the settlement agreed upon in six equal yearly installments over three full years without any security to back it up.
If you live in Ohio, there's some hope that you can negotiate your way out of foreclosure with a Court-annexed foreclosure mediation program. See Foreclosure filings rise in five counties at the the Crescent News. Excerpt below.
Devil in the Details: the Deal, the Whole Deal and Nothing But the Deal
It's 8 p.m. and you've just spent nine straight hours negotiating the settlement of complex commercial litigation with multiple parties that was filed before George Bush first took office. The case has been up on appeal twice and is now scheudled for trial in February. All defendants but the final three standing have settled. Three of the principals have flown in from out of state and two of the attorneys have driven a few hundred miles to Los Angeles from their home towns.
You've Settled? With a Term Sheet? The Devil in the Details
It's 8 p.m. and you've just spent nine straight hours negotiating the settlement of complex commercial litigation with multiple parties that was filed before George Bush first took office. The case has been up on appeal twice and is now scheudled for trial in February. All defendants but the final three standing have settled. Three of the principals have flown in from out of state and two of the attorneys have driven a few hundred miles to Los Angeles from their home towns.
The Devil in the Details: When Do You First Talk Terms?
As you'll recall, we're in hour nine of the mediation. The parties have finally agreed to settle the antitrust litigation the Court ordered them to mediate ("we won't settle; we'll only be here for an hour"). Defense counsel wants to write up the "deal points" and make a quick getaway.
Five Negotiation Rules to Beat the Recession Blues
Before you start bargaining your way through the current recession, you need to decide which of your expenses might be negotiable.
Every Case Is a Winding Road
I have a confession to make. I am about to become embroiled in litigation. Though I preach the religion of negotiated resolution, I've nevertheless hired litigation counsel to assert my rights and pursue my remedies.
Waging War, Collateral Damage & Arbitrated Resolutions
I've directed my readers to Adir Waldman's fine book Arbitrating Armed Conflict before. Now that there is pitched battle in the Middle East with significant civilian casualties, I once again recommend Adir's book to anyone who wishes to look beyond taking sides.
It's Not About the Money; It's About Justice
I'd stop flogging this dead horse if I didn't have to weekly convince litigants of their own enduring human tendency to prefer relative well-being over absolute material possessions.
Negotiation Trust: It's ALWAYS an Inside Job
Whether he's working the Shul, your local evangelical brethren or the elite of Palm Beach, the con man's stock in trade is contained in his name -- "con" for confidence.
We don't get robbed for thousands, tens of thousands, hundreds of thousands or millions when someone jumps out of the bushes and demands our watches and jewerly. No. To get robbed on a massive scale requires trust and confidence in an authoritative figure who - gasp - is one of us.
It's About Justice . . . and the Common Good
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.
We Don't Need No Stinkin' Blawg 100: Great Blogs In The Year 2008
No, I did not make the ABA's Blawg 100 this year, but my good online buddy, the brilliant and energetic Susan Cartier Liebel of Build a Solo Practice and Solo Practice University did. Here's just one of the many reasons Susan has the following she does. She's ridiculously generous.
How We Tell the Tale Determines How We Resolve the Problem
People who are joined together by a dispute -- which includes everyone engaged in litigation and their attorneys -- are suffering more than most from a universal cognitive bias known as fundamental attribution error. FAE is one of the ways we explain our troubles to one another.
Restorative Justice: Accountability and Forgiveness
When I read accounts like the one below, I always ask myself, "what trespasses have I suffered that would permit me not to forgive?"
Small Lessons for Lawyers and Business People in Building Community
Restorative justice is the criminal version of civil mediation. It stresses accountability, admission of guilt, forgiveness and reconciliation. It is the basis for Truth & Reconciliation Commissions that address harm done by one group of people to another that is rarely redressable by a criminal justice remedy.
Feeling Extorted? Mr. Molski's Serial ADA Litigation and Why We Settle
Because 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.
Negotiating Thanksgiving Conversations
This week, tens of millions of people will be sitting down to Thanksgiving dinner with friends and family they haven't discussed politics, sex or religion with for at least one full year.
How to Apologize on the Internet: Larry Bodine Comes Clean
Some attorneys and mediators make light of the power of the apology ("it's only about money"). My education, training and experience consistently suggest otherwise.
Negotiation/Mediation Terms of Art
I have recently been asked by several lawyers to write a few posts on mediation and negotiation terminology not only because some attorneys are unfamiliar with these terms, but also because different mediators and negotiators use them to mean different things.
Difficult Conversations 101: Blaming Sarah
There appears to be no small amount of blame to spread around for the Republican's loss at the polls, much of it centering on Sarah Palin, as if she hadn't been hand-picked and thrown out to American conservatives as a "Hail Mary" pass. Because scape-goating gives rise to oodles of litigation every year, let's talk briefly about having difficult conversations in which everyone "takes their part" in the loss experienced, failure suffered or mistake made.
Negotiating Common Ground: Empathy, Affinity & Shared Values
What did I learn on the campaign trail? Other than breaking a lifetime phobia of the cold call I re-learned what I already knew from my mediation training and experience.
Collaborative Law and Intellectual Property Cases
Thank you to Victoria Pynchon for allowing me to be a guest blogger. In preparing to write the post I had several topics going through my mind, but I thought it would be interesting to pitch this topic out to the fantastic readers of this blog for some feedback. This may be the first blog post that asks more questions than it answers. Is the IP arena ready for the “Collaborative Law” process?
Why Common Sense, Compassion and Listening Twice As Much As You Talk Are The Best Negotiation Strategies In Law and Life
First, I'm honored to be guest blogging while Vickie is away campaigning her heart out until November 4. I'm also a little intimidated to be here as I can't speak on negotiation with the authority Vickie can, after all she's a distinguished and honored expert on the topic.
Collaboration Agreements For Creatives
Turns out the term "Hollywood Contract" is not an oxymoron after all. Not if you follow the three-part series Why Every Writing Team Should Have a Written Collaboration Agreement over at Theater and Entertainment Law.
Obama And The Politics Of Despair
There's nothing like getting a new Harpers in the mail to upset my idealistic dreams of a new America flourishing under an Obama administration. Ouch! I read this magazine for the same reason I watch Fox News. To upset my own comfortable ideologies. That's the trouble with us liberals -- we're always fretting about being fair, when, according to Harper's Roger Hodge we're just a big bunch of conflict-avoidant pussies.
What We Think We Know Can Hurt Our Negotiating Position
I watched the debate last night with people who support my candidate. They all also happened to be mediators, so they understand concepts like confirmation bias --the tendency to search for or interpret new information in a way that confirms one's preconceptions and avoids information and interpretations which contradict prior beliefs.
What Times Are These? The Unruly Tyranny Of Mobs
Bertolt Brecht wrote, "what times are these/when a poem about trees is almost a crime/because it contains silence/against so many outrages." The same can be said for a post about negotiation strategy and tactics.
Armed Conflict and Sexual Assault
Women, who hold civil society together in the course of armed conflict, are rarely at the table when peace is being negotiated. As this lengthy piece asserts, we cannot ignore the sexual assaults that continue after "peace" has been achieved.
The 21st Century: It's All About Collaboration: Pick Up the Lawyers' Guide Today
Say goodby to quill pens and obstreperous adversarial posturing. Join authors Dennis Kennedy and Tom Mighell in learning "Smart Ways to Work Together" in their Lawyer's Guide to Collaboration Tools and Technologies.
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.
Negotiating the Economy: You Can't Save Your Face and Your Ass at the Same Time
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.
New California Case on Mediation Confidentiality and Recovery of 1717 Attorney Fees
How do California's Courts protect mediation confidentiality? Let me count the ways. You can't impliedly waive the protections of Evidence Code section 1115 et seq. nor be estopped from raising them. Their walls will not be breached by allegations of fraud or any lesser form of bad faith.
Still, litigants keep on trying.
The same week during which a Petition for Review of the recent Thottam opinion went up to the California Supreme Court ("the big print giveth, the...
More Dangers in Negotiating by Email
Over at IP ADR, we warned against using email to negotiate because the social scientists tell us that it is "profoundly anti-social," i.e., we're less generous when we respond to an offer via email than when we're negotiating face to face.
Today, Scientific American warns us that emailers tend to deceive one another more readily than do those who use pencil and pad -- see Business, Lies and Email here, excerpt below.
E-mail is often a rather casual form of...
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...
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...
Negotiating Justice: Are Mediators Corrupting the Legal System?
Check out Geoff Sharp's review of Harvard Law School Professor Peter Murray's article The Privatization of Civil Justice recently published in the summer issue of Judicature magazine.
The bottom line?
because mediators are people we must naturally place our own self-interest above that of the people we serve; and,
because insurance companies are ADR "repeat players," we mediators will naturally favor them because . ...
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...
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...
18th Century Technology; 21st Century Problems
LegalTED, coming soon to a conflict near you.
In the meantime, I'm off to one of my two favorite cities in the entire world: Manhattan. In the meantime, I leave you in the capable hands of Albert Einstein.
Any fool can make things bigger, more complex, and more violent. It takes a touch of genius - and a lot of courage - to move in the opposite direction.
Anyone who has never made a mistake has never tried anything new.
Concern for man and his fate must always form...
What Can You Do if Someone Breaches a Mediation Confidentiality Agreement?
(image from and links to HOA Issues Solved in Five Steps)
I've recently been covering mediation confidentiality from an attorney's point of view. Because my statistics page reminds me that clients also read this blog, I sometimes direct posts to the people with the problem -- clients.
This morning I notice that someone landed on my site seeking an answer to this question:
What can you do if your HOA Board member breaks the mediation confidentiality...
California Courts Let You Have it Your Way: Arbitrate and Appeal the Award
(while we're walking down memory lane anyway, "Have It Your Way" from 1976)
When I ask litigators why they don't choose arbitration over litigation before unpredictable judges in a crowded court, their answer invariably is "because I can't appeal the ruling." We cling to appellate review even though we appeal fewer cases than we try -- which is a very small percentage of our case load as it is.
Not surprising, however, we litigators,...
Seven Ways to Improve Your Working Relationships
Thanks to Kevin's Remarkable Learning Blog (a fellow Forbes Blog Network member) for his Seven Steps for Mending Broken Business Relationships.
Each of the seven steps can help litigators de-escalate the conflict inherent in litigation before all-important settlement negotiations, whether they are conducted with the assistance of a third party neutral or not.
One or more of them might also help ease tension in the law firm -- a very tense place these days given the ...
New Riverside Superior Court Mediation Program to Pay Mediators for their Work
From today's Los Angeles Daily Journal
JAMMED RIVERSIDE COURT WILL COMPEL MEDIATION
By Greg Katz
RIVERSIDE - The first thing Riverside County Superior Court Judge Michael B. Donner told a courtroom packed with trial-ready lawyers on a recent Monday was good morning.
Soon after, he added: "I will tell you, I have no open courtrooms for trial, as I did last Monday."
Such is the weekly ritual in Riverside's civil courts, where justice is routinely delayed in the...
The Los Angeles Mediation Community Welcomes Judge Alexander Williams, III
Judge Alexander Williams' retirement from the bench and entry into private neutral practice with ADR Services is good news for the legal community. I co-mediated dozens of cases with the Judge while I was earning my LL.M from the Straus Institute and have spent many hours discussing the nuances of mediation practice with him. Once known for his temper (and the bow tie he appears to have forgotten to wear in the photo at right) the Judge has learned the rewards of...
Malpractice Alert: Is it a Settlement Conference or a Mediation?
Here in California, there's no stronger rule of confidentiality than that applied to a mediation. It cannot be impliedly waived (Simmons v. Ghaderi) like most privileges, including the near-sacred attorney-client privilege. You cannot be estopped from relying upon it. (Eisendrath). And if you want your mediated settlement agreement enforced, you must strictly comply with the requirements of Evidence Code section 1123 (Fair v. Bahktiari).
Over at the Settle It...
Pass Court, Go Directly to Mediation
This just in from Sydney, Australia.
I imagine the results are as good or better here in the States, particularly in Los Angeles where mediation practice is both broad and deep.
Couples, families choosing mediation in battle of wills
DE FACTO couples disputing about property after splitting up, and siblings fighting over their parents' wills, are increasingly using mediation rather than dragging their battles through the court system.
The latest figures show that NSW...
The Trouble with Thottam: Mediation Confidentiality At Risk
UPDATE: See the analysis of Thottam at May it Please the Court, noting that the "big print giveth and the small print taketh away."
Before further discussing the problems created by the Thottam holding, I'm providing a "brief" of the case about which I ranted and raved earlier here today.
A mediation confidentiality agreement entered into by the parties in Thottam provided that “all matters discussed,...
Do Patent Infringement Litigants WANT an Inefficient Dispute Resolution Process?
Now that my step-son is no longer my legal assistant (sniff) but an IP litigator with one of the best IP firms in the country (Irell & Manella) he's a source!!
Yesterday I asked him this question: which patent infringement litigants benefit from the inefficiencies of the patent litigation process -- particularly those who are involved in protracted litigation like those lawsuits recently settled by Nokia and Qualcomm.
"Other than parties with...
New Case on Enforcing Mediated Settlement Agreements Muddies the Waters Again
The new Estate of Thottham case on the enforcement of mediated settlement agreements is troublesome because
it appears to contravene the holding of the Supreme Court in Fair v. Bahktiari (full opinion here)
it turns upon the interpretation of one ambiguous sentence in the parties' confidentiality agreement which I'm almost certain was not meant to create an exception to (or satisfy the requirements of) Evidence Code section 1123(c)
it shows a remarkable persistence in the trial ...
Negotiating Armed Conflict
Thanks to the Daily Kos for citing us to A Possible Mediation/Peace Proposal for Georgian Conflict from Mirror on America.Here are the first four suggestions, click on the highlighted article for the full discussion.Efforts Should Focus on the Following:
1. Establishing a ceasefire to allow for the treatment & evacuation of the wounded and to establish a safe humanitarian corridor for civilians to evacuate. Establish access for Red Cross & other NGO’s.
2. Get all military...
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 IntertwinedMax suggests that the...
Face-to-Face: Emotion in Conflict Resolution
We've been having a blog-versation about joint sessions this past week thanks to attorney Gavin Craig, workplace conflict mediation trainer Guy Harris (see also An Attitude of Curiosity - continued) and Pennsylvania litigator and blogger Max Kennerly.Kennerly says:sometimes I don't want to discuss the case. Sometimes either we're at the end of the road or you're not even on our road, and I'm not going to humor you and your insufficient offers and your attempt to use social influence...
Blawg Review 171
If intellectual property had a theme song it would have to be "Like a Virgin." Why? Because IP is all about "the very first time," the "aha" moment, the creative spark that gives rise to previously undreamed imaginings.
In honor of the moment of creation at the root of every intellectual property dispute, this week's Blawg Review No. 171 gives you the great virgins of history.
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...
My favorite local bankruptcy mediators Ben Siegel of Buchalter (left) former bankruptcy judge Herb Katz (right)Bankruptcy mediation catches on nationwide
A decade ago, there were only a handful of mediation programs in bankruptcy courts.
Long associated with family law disputes, mediation programs were slow to catch on in complex business litigation, including bankruptcy cases.
But that's changing.
More than two-thirds of the 90 bankruptcy courts have mediation available, according to...
SCMA Town Hall Meeting on Mediator Expertise
Live blogging from the SCMA Town Hall MeetingLee Jay Berman: What Makes a Great Mediator: Brain Storm Session with Attendees integrity resourceful reflective etiquette diplomatic non-attachment presence tolerance of silence spontaneous plan common sense love money ethical insight optimism intelligence knowledge self-knowledge emotional social discernment sensible ...
Can You Say What You're Writing to Opposing Counsel Face-to-Face? Would you Want to?
Thanks to David R. Donoghue at the Chicago IP Litigation Blog for picking up my recent Daily Journal article on the Dangers of Email in Litigation and running with it in A Call for Face-to-Face Communication in Litigation. As David comments:It is no surprise that increased aggression in a naturally aggressive proceeding has negative consequences. For example, parties that often meet for the first time at a mediation or settlement conference arrive not trusting or respecting ...
Simmons v. Ghaderi: When the Legislature Said Mediation Was Confidential, It Meant What it Said
Today, the Supreme Court handed down a unanimous ruling in the long-awaited Simmons v. Ghaderi case about which I've commented on many occasions -- both on the importance of the confidentiality laws the Supreme Court held were air-tight today and on the process itself as a common example of a failed mediation proceeding.Highlights from the opinion: "The Legislature chose to promote mediation by ensuring confidentiality rather than adopt a scheme to ensure good...
Enforcing Mediated Settlement Agreements Post-Simmons v. Ghaderi
I'm re-posting this "how to" now that Simmons v. Ghaderi has been decided. You no longer have even a fighting chance of enforcing a mediated settlement agreement that fails to comply with the Code. So here's the procedure, as recommended by my and Deborah Rothman's article in the Daily Journal in November 2006 -- Take Steps to Ensure that Mediated Settlement Agreements Can Be Enforced. Assuming your client insists on orally memorializing the settlement reached in ...
Mediator Geoff Sharp Up Close and Personal (with Vickie Pynchon tagging along)
DAILY JOURNAL NEWSWIRE ARTICLE http://www.dailyjournal.com © 2008 The Daily Journal Corporation. All rights reserved. -------------------------------------------
June 23, 2008
POPULAR ADR BLOGGER GETS SOME FACE TIME IN LOS ANGELES By Greg Katz Daily Journal Staff Writer
SANTA MONICA - Nearly everybody in the Southern California mediation community knows the face of mediator Geoff Sharp but not too many have met him. That's because the New Zealand-based mediator's scruffy mug...
Even if They're Just Hoops to Jump Through ADR Clauses are Worth Getting Right
Bob Hunt over at Realty Times has a nice consumer-friendly article entitled Californa Court Holds That Mediation Provision "Means What It Says". /* As Hunt writes, The standard residential purchase contract in California is produced by the California Association of Realtors® (CAR). It contains two sections that are easy to overlook or to take as “boilerplate”, but that can be very important if things go awry between the parties. One of those sections...
Insurers with Potential Coverage Must Personally Attend Mediation Sessions
Head's up insurance carriers and their counsel!Noting the benefits of appellate mediation and the desirability of participants attending in person, a California appellate court warned insurers in Campagnone v. Enjoyable Pools & Spas that even the potential of coverage requires a representative with full settlement authority to attend court-ordered appellate mediations in person, unless excused in writing by the mediator. Further, the court warned parties and counsel that they may also face...
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...
A Works Progress Administration Act for Mediators?
California mediators, listen up! Your legislature is working for you (and for the AAA). Thanks to the Institue for Conflict Management Blog (h/t to Diane Levin) for hipping us to Senate Bill 1642 requiring public entities to mediate 3rd-party claims relating to a public works contract if the claimant demands that mediation be pursued. The guts of the proposal below: In the event there is any portion of a claim that remains unresolved, ...
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...
Integrative Power: Nirvana of Sales Relationships
Here's one of the best testimonials to integrative negotiation that I've seen lately -- Integrative Power and the Sales Negotiation -- from Paul Misner, author of the Smart Archive Blog and the Sr. Federal Civilian Account Manager for Websense.Integrative power involves both sides working together for a mutual goal. The best outcome for an integrated solution is for both sides to win, the second best outcome is for both sides to suffer equally. Integrated power involves persuasion...
Why Use an Expert IP Mediator? Let the Harvard Negotiation Law Review Tell You How
EXPERIENCED INTELLECTUAL PROPERTY MEDIATORS: INCREASINGLY ATTRACTIVE IN TIMES OF PATENT UNPREDICTABILITY Winter 2008 (Westlaw Link Here)Thanks to Ms. Tran for citing to the IP ADR Blog's Interview with Jay Taylor: Interview by Victoria Pynchon with Jay Taylor, Partner in IP Practice, Ice Miller LLP (July 13, 2007).13 HVNLR 313 Student Note by Sarah TranExpert IP Mediators Can Give Attorneys the Gift of a Reality Dose One of the beauties of an expert...
How Can We See Eye to Eye When Perception is 90% Memory?
According to writer and surgeon Atul Gawande's recent article The Itch, the way the pepper tree in my back yard appears from my bedroom window may be as much as ninety percent memory and only ten percent "data." As Gawande writes:
Given simply the transmissions along the optic nerve from the light entering the eye one would not be able to reconstruct the three-dimensionality, or the distance, or the detail of the bark -- attributes that we perceive...
Decision Made - Let the Rationalizing Begin
Thanks to Slashdot for picking up an item from the Wall Street Journal -- Get Out of Your Way -- showing that we make up our minds 10 seconds before we let ourselves know it.Experiments with the usual brood of university undergraduates (read about them here) revealed thatour best reasons for some choices we make are understood only by our cells. The findings lend credence to researchers who argue that many important decisions may be best made by going with our gut -- not by thinking about...
Negotiating with Alpha Centaurians
(right, our ancestor, built for fighting)In How to bargain with aliens, Marginal Revolution asks its readers the following questions: Let's say you meet up with an alien race and you need to bargain with them by radio or some other method of signaling. You don't have any other information other than your knowledge of human beings. What traits should you think are overrepresented in humans, relative to what a rerun of evolution can be expected to produce in an intelligent being? Would you...
NeuroAnatomist Jill Bolte Taylor Narrates Her Own Stroke and Finds Nirvana
It's Sunday . . . and since I inadvertently celebrated my own little Brain Week here, I thought I'd give you something extraordinary to watch . . . it has ABSOLUTELY NOTHING to do with negotiation!UPDATE: As you can see from the link in my friend Stephanie West Allen's comment below (she blogs on neuroscience and the law at Brains on Purpose) there's considerable controversy about the brain science recounted in this arresting presentation. This presentation...
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...
Settlement Shocker!! Early Settlements Save Businesses Money
From the National Law Journal -- Academics Proving that Which Everyone Already KnowsStudy Shows Early Litigation Settlements Save Businesses Money Sheri Qualters The National Law Journal June 9, 2008
A study of court settlements in personal injury lawsuits against businesses estimated companies could save an average total of $114,000 per claim or $670,000 for severe injuries by promptly settling cases instead of fighting them in court.
The study, which was published this month in the...
Is Collaborative Negotiation an Oxymoron? Should Litigators Care?
"No," to question no 1 says Clarke Ching of the software blog More Chili Please who is hosting this week's Carnival of Trust. (Hat Tip to Chicago IP Litigation Blog) And "yes" say I to question no. 2.Ching cites us to Davis Anderson's post, "Stop Negotiating, Start Collaborating" in the Agile Management Blog, an article that was first published in the Cutter Journal. Ching says,It's a very good article - important to...
Negotiating Conflict Denial and Avoidance with Geoff Sharp and Joe McMahon
I'm tempted to just import Geoff Sharp's entire post on joint session vs. separate caucus mediation or, as Joe McMahon positions the split in current mediation practice in Moving Mediation Back to Its Historic Roots, "dialogue-based" v. "separation-based" practice.That seems silly when I can simply link you to Geoff's post The Legal Community Has Learned to Accept Low Functioning Mediation. I will give you a few excerpts, though, both...
Interest-Based Negotiations: A Quick List of Preparation Questions
I've linked to Negotiating: Thinking it Through from the Business Growth Blog before, but haven't quoted the Eight Preparation Questions listed there. The more I mediate (yes, one's practice does grow) the more I'm reminded that litigators resist interest-based bargaining techniques. I get stuck in position-based negotiations as well. It remains a challenge for me, after 25 years of litigation practice, not to be sucked into the attorneys' arguments...
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. ...
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...
Los Angeles Mediator Jerry Lazar Brings Mediation to Reality T.V.
(right: mediate this??)Reporter Greg Katz reports in today's Daily Journal, that Two L.A. Mediators Are Shopping a TV Pilot That Would Showcase Their Art -- one of whom is Settle It Now's friend local mediator and magician Jerry Lazar of the Fight Nicely Blog. Excerpt below. Jerry Lazar and Richard Klinger recently have been shopping around a pilot for "The Peacemaker," a show that would spotlight mediation. "Its time has really...
More Great Resources from the Bar Association Formerly Known as Stodgy
Before giving you today's list of ABA Journal resources that landed in my in-box this morning, I want to announce my appearance on the Journal's dot com front page in its "Ask the Experts" feature. If you have a question -- any question -- relating to negotiation strategy and tactics, conflict resolution, mediation advocacy, persuading the opposition that he doesn't fully understand just how $%#*^ his case is, the social psychology of conflict, or the settlement of...
The ABC's of Conflict Resolution: "E" is for Enemy
This is your enemy. According to the American Heritage Dictionary, he feels hatred toward, intends injury to, or opposes [your] interests[; he's] . . . a foe[;] [a] hostile power or force, such as a nation[;] . . . [a] member or unit of such a force[; or,] . . . [a] group of foes or hostile forces. Though some enemies are real (Japan bombing Pearl Harbor, for instance; or, al-Qaeda terrorists flying passenger jets into New York's Twin...
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...
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...
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...
Negotiating Justice in Community Mediation
Nearly every condominium complex harbors an outlaw -- the man, woman, couple or family who refuse to follow the rules. Offended and outraged, other homeowners make demands on their volunteer board who contact the (often unresponsive) management company. Many of these disputes ultimately 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?
"B" is for Bully Update: Mom Indicted for MySpace Bullying Leading to Teen's Suicide
I've blogged several times about bullying, both here and over at the IP ADR Blog. We learned from Forbes.com today that federal prosecutors are seeking an indictment against the mom we wrote about here for her alleged role in an online hoax that caused a 13-year old girl to commit suicide. Here's the link with an excerpt below: Indictment sought in MySpace cyberbullying case.LOS ANGELES - Federal prosecutors are seeking an indictment against a Missouri mother for her...
Negotiating Competitive Arousal: When the Cost of "Winning" is Too High
Take a look at this summary of the article When Winning Is Everything by Deepak Malhotra, Gillian Ku, and J. Keith Murnighan, now available online here as well as in the May '08 Harvard Business Review. Malhotra and colleagues suggest that an adrenaline-fueled emotional state [which they] call competitive arousal, often leads to bad decisions. Negotiating litigators may want to note that all of the conditions giving rise to "competitive...
Recently, I excerpted the expressed concerns of in-house counsel about ineffective mediators. Among the complaints was some mediators' refusal to see or acknowledge the other side's "irrationality" As Where's the Magic from the U.K. online Mediator Magazine noted:It can be frustrating where they [the mediator] can see the irrationality of the other party, how their claims and positions are unsubstantiated, and choose to ignore it,' says...
Searching for the Bright Mediation Bulb: Criticisms from Across the Pond
Thanks to Geoff Sharp at mediator blah blah for directing us to this great U.K. Mediation resource, The Mediator Magazine which is great to poke around in a little when you're home for mother's day and mom's gone off to bed. Here, for instance, are some well taken criticisms of mediation practice by in-house counsel from the article Where's the Magic?Top of the list of issues which invite scorn is perceived weakness on the part of the mediator. Giving palpable nonsense ...
"A" is for Asshole: the ABC's of Conflict Resolution
You recognize this guy.He’s the one who stole your parking place. He cut you off in traffic. Just last night at the Olmstead’s party, he interrupted your story about your trip to London for the sole purpose of changing the subject to his trip to Cambodia. You, on the other hand, are not an asshole. You are respectful of other people’s property, return telephone calls promptly, and honor the compacts that grease the wheels of social interaction. These are...
"B" is for Bully: The ABC's of Conflict Resolution
Here’s another familiar character. This is the kid who shook you down for your lunch money on the elementary school playground. The one who taunted you in gym whenever you failed to pass the basketball to the only guy able to sink it. The swaggering bad boy who threw the “dodge” ball in your face and then fell down laughing. But don't be fooled by ribbons and curls. Boys aren't the only bullies in town. There’s no bully quite so deadly as the high school ...
"C" is for Coward: The ABC's of Conflict Resolution
(photo by Cobalt 123)In the ABC's of Conflict Resolution, we call “cowards” by another "C" term. We call them “conflict avoidant.” You can decide whether you are among the “conflict avoidant” by asking yourself how deeply you relate to the feelings described by New York Times writer Bob Morris in his article How to Avoid, Well, You. THE invitation was too good to refuse — an August weekend at the august home of a...
The Chicago IP Litigation Blog Includes Settle It Now in the Carnival of Trust
R. David Donoghue over at the Chicago IP Litigation Blog is hosting a "Carnival" of Blogs that is new to me -- The Carnival of Trust. As David explains:The Carnival of Trust is a monthly, traveling review of ten of the last month's best posts related to various aspects of trust in the business world. It is much like the weekly Blawg Reviews that I post links to and have hosted, but those generally contain far more than ten links. My job this month was to pick those ten ...
Mediation as Leadership in the Eye of the Storm
This morning's guest blog -- Eye of the Storm Leadership: Mediation as Leadership and Leadership as Mediation -- is by Peter Adler, PhD, President of The Keystone Center and author of Eye-of-the-Storm leadership: 150 Ideas, Stories, Quotes, and Exercises on the Art and Politics of Managing Human Conflicts. Not long ago, Bob Benjamin and I offered a session at the ABA meeting in Seattle called “Beyond Orthodoxy: The Adaptive Mediator in a Perpetually Changing...
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...
Negotiating From A Position Of Weakness
I was cruising around the blogosphere this morning looking for links to the prime directive of all negotiations -- know your BATNA -- when I ran across this great 2007 post by Penelope Trunk of the Brazen Careerist -- How to Negotiate When You Have Nothing to Leverage. Penelope suggests the weakest strategy available -- exchange power for sympathy. "If one person has a great BATNA," writes Penelope, "and the other has a terrible one, it’s not really...
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...
Confidentiality of Settlement Proceedings in California's Central District Federal Court
Thanks to Perry Itkin's Florida Mediator for linking to this Memorandum Opinion enforcing, by way of contempt proceeding, a mediation confidentiality order entered by a federal magistrate in the District of Columbia in January of this year.We were just discussing this issue at the yearly Settlement Officer (my own S.O. profile here) "brown bag" lunch meeting with Judge Morrow of the U.S. District Court in the Central District of California. Some of those present...
The Case for Settlement Counsel: Negotiation is Not a Competitive Sport
(right, the must-read Google Story) If the point of litigation is winning what is the point of settlement negotiations? Winning, right? Wrong. The point of settlement negotiations is to create durable agreements that sufficiently serve the parties' interests so that they will either stop bothering one another -- for which the LawGod created iron-clad releases -- or flourish in their mutual business venture.I mention The Google Story in this post...
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 ...
Ten Success Secrets from Top (Non-Starving) Mediators
I'll soon be teaching a short session on career development over at the Straus Institute with one of the hottest mediators in town -- the busily brilliant Lisa Klerman, formerly of Morrison & Foerster and for the past few years the head of the USC Law School's Mediation Clinic.I have my own short list of practice development principles in How to Start a Mediation Practice. These broad guidelines have taken me farther in the first four years of my...
IP Mediation Advocacy: CPR Master Guide to Patent Mediation
Check out this book -- Patent Mediation, Better Solutions for Business -- and other resources at the International Institute for Conflict Prevention and Resolution here today!Provides a five-step roadmap for helping in-house counsel and corporate leaders utilize mediation, when appropriate, a strategy proven to substantially reduce the cost of patent disputes.
By CPR International Commission on Patent Disputes, chaired by Robert Copple. Edited by Kathleen M. Scanlon, Heller Ehrman LLP...
Consensus Building Tips from Work Life Bridge
Thanks to WorkLifeBridge for including us on its resource page. We're happpy to reciprocate and pleased to find another good source of information on collaboration, dispute resolution, and making life and work better for everyone. In their post Creepy Crawly Consensus, the authors of WorkLifeBridge direct their readers to some good consensus building resources. See below for their recommendations and click here for the full post. Here are some resources and ideas to ...
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 for It -- How Women Can Use the Power of Negotiation to Get What They Really Want.(Listen to their WNYC interview here)Here are the statistics from Women Don't Ask that should make every woman who reads this blog sharpen her negotiation skills by picking up Ask for It...
Live Blogging from the ABA ADR Conference in Seattle
Former Federal Magistrate and IP ADR Blogger, John Leo Wagner and I presented Tactics of the Adept in Modern Mediation Practice today at the ABA ADR Convention in Seattle. We had a lively discussion about the ways in which "at the table" tactics can be strategized in advance to assure that the right people are available for deployment at the optimal time to maximize the potential for the most effective and efficient settlement possible. We also covered...
More Live Blogging from the Seattle ABA ADR Conference: Women Don't Ask and People at the Convention
Thanks to Jim Melamed of Mediate.com for the iphone photo taken Friday morning just before the frankly brilliant presentation by Linda C. Babcock and Sara Laschever, authors of the must-read Women Don't Ask, Negotiation and the Gender Divide (men who don't like to negotiate should snap this book up as well -- you can put one of those brown paper covers on it or slip it into the mid-section of Esquire on the plane).I leave the conference early (darn! another engagement)...
Hard Bargaining: What's Machiavelli Got to Do with It?
Former Executive Vice-President and General Counsel to The Walt Disney Company, entertainment law heavy-weight Lou Meisinger knows more about driving a hard bargain than anyone I know. Yet it is Lou who taught me that the deal you drive too hard is the one that will come back to bite you. Why? Because you have to leave enough profit in it for your negotiating partner to survive.
Once, Lou says, his company drove so hard a bargain, leaving so little profit to its bargaining partner, that ...
Original Faith on the Spiritual Benefits of Forgiveness
Though I don't often avert to religion or spirituality, my own values are firmly grounded in mid-century mainstream Protestantism -- most prominent of which are compassion, tolerance, apology, forgiveness, reconciliation and the very real and ever present potential for the redemption of the human spirit.Resentment, bitterness, anger, vindictiveness and the desire for retribution are all emotions that interfere with the expression of the forgiving side of our spirits. More than...
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...
Apology: Shame, Guilt, Rupture and Repair
A friend of mine once told me that "the most successful learning dyad in the history of the world" is the mother-infant/child relationship. Contemporary psychologists who have studied that relationship have discovered that toddlers whose caretakers help them "repair" the loving relationship that existed before the moment shame is elicited, learn guilt and apology instead of chronic shame and denial or withdrawal. The explanation below...
Apology: the Guilt Ridden vs. the Shame Infused
(thanks to Beyond Intractability for the graphic)We talk a lot about apology as a means of descalating conflict for the purpose of engaging in successfully mediated settlement conferences and non-mediated commercial negotiations alike. You can bargain with someone who is enraged at (or even merely irritable with) you, but your negotiation will be derailed over and over again as feelings interfere with business judgment. Although you can't have one without the other...
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...
English Professors Do It -- Negotiate that Is
The google algorithm throws these random musings on negotiation up to me on a weekly basis because "negotiate" is one of my "google alerts." (have I said god bless google recently?)Almost all legal writing is collaborative, so I feel this English professor's pain. I just didn't know we shared this experience. From Blog en Abyme, excuses excuses by Kim Middleton, Assistant Professor of English and Director of the American Studies Program at...
Prostitutes, Strippers and Forgiveness
Sex scandals. Terrible? Shocking? Repugnant? How about forgiveable? As someone who has made the resolution of conflict a full-time job, I can tell you that forgiveness -- explicit or implicit -- is a critical factor in every successful settlement. But I tempted you to this post with sex scandals and do not wish to disappoint.Today we're not talking about Spitzer (NY Times asks about likely continued vitality of his law license...
Mediation Confidentiality in California
Confidentiality in Settlement Negotiations and Mediation - Get more free documents
IP Mediator Michael Young's "Girls Gone Wild" Commentary Catches Court's Attention
From ALTERNATIVES TO THE HIGH COST OF LITIGATION, INTERNATIONAL INSTITUTE FOR CONFLICT PREVENTION & RESOLUTION VOL. 26 NO. 3 MARCH 2008UPDATE: DESPITE MEDIATION RELATED INCARCERATION, GIRLS GONE WILD FOUNDER IS HEADED FOR MORE ADR A federal judge has rejected a recusal motion from the maker of the Girls Gone Wild videos, who challenged the judge’s impartiality for first ordering mediation, and then sending the producer to jail for contempt based on his ADR conduct. That means the ...
Los Angeles Superior Court Judges Alexander Williams, III and Helen Bendix Talk About Settlement Conferences, Mediation Strategy and Tactics, and the Administration of Justice
The prestigious Straus Institute for Dispute Resolution has a new web site -- HERE!!! -- and a few videos that the beginning mediation or settlement advocate shouldn't miss.Here's Judge Williams, who sits in the downtown Los Angeles Superior Court as a full-time settlement judge. In the first part of his video, Judge Williams talks about the differences between settlement and mediation as well as a few of his favorite topics -- CHOICE, RESPECT, JUDICIAL ECONOMY ACCESS TO JUSTICE ...
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...
"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...
Mediation Week in California March 16-22, 2008
MediationWeek - Get more free documentsThanks to Kevin Forrester for the head's up here!
Mediation Advocacy: The Story of Mediation
Compare the hilarious Bob Newhart routine above (from Mad TV) with any episode whatsoever of HBO's new series about psychoanalysis The Treatment. In legal/mediation terms, Bob Newhart's "treatment" -- "just stop it!" -- is akin to the mediator's refrain -- "move past it," "get over it" or simply "move on." Gabriel Byrne's methodology in The Treatment, on the other hand, is more akin to the process of complex commercial ...
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...
Contract Negotiations: "A Sophisticated Ballet Often Ending in Mid-Pirouette"
Negotiations of the type I mediate on a regular basis are rarely the subject of appellate opinions -- at least not the part of negotiations we call the "dance." Having stumbled across this opinion while searching for something else, I couldn't resist the pulll of posting it here -- both for my readers' enjoyment and, frankly, using the blog as my own personal filing cabinet for some of my favorite appellate opinions (yes, I am a geek!). The prose below is...
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...
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...
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"...
Cross-Cultural Negotiation Insights From The Kellogg School of Management
When you mediate disputes in a major urban center like Los Angeles, you do a lot of cross-cultural negotiation as a matter of course. I've relied in the past upon the Kellogg School of Management's Leigh Thompson and am happy to report that one of her fellow professors, Jeanne Brett has devoted an entire book to the intricacies of negotiating across cultural lines. Excerpt below from the Wall Street Journal's LiveMint article on Professor Brett's book The...
One Hundred Articles at Mediate.com for Valentine's Day
O.K., they're not exactly articles. They're posts. It's much much easier to write a post than it is to write an article (N.B. IP ADR BLOGGERS!!!) Maybe it's just me, but I get more miles per gallon out of reading a blog post than an article. Why? First, I'm just generally more interested in people's subjective experience than I am in people's opinions about how things are or should be. This is the primary difference between an article and a...
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...
Money and Power: How to Make Your Opponent Do What You Want Him to Do: An Interlude
Report on Day Two of the Mediators Beyond Borders Conference later this evening. Now, because Jens Thang from the Negotiation Guru dropped by to comment on Ken Cloke's list of ways we resist change, I'm linking to a recent N.G. article on power. Go to Negotiation Guru here to read about each of the eight power principles identified by Jens below. Power of Reward Power of Punishment Power of Competition Power of Consistency ...
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...
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...
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...
IP ADR Dictionary: "S" is for Story Telling
I was once contacted by one of the writers for the hit series House who wanted to know what the parties may do doing a mediation. After explaining several current mediation "processes" to him, I said this. The beauty part is that you can actually do anything you want during a mediation. There are no rules.
Then we had a great conversation about what Dr. House might do in a mediation, none of which made it to the screen because it was...
Mediation With A Mugger
Thanks to Geoff Sharp for this item picked up from this post over at the Legal Profession Blog:The Goetz example [of poor Bernhard having to mediate with his mugger] was used well to argue that law and courts have important social value, in many kinds of cases, that go way beyond dispute resolution, or even trendy alternative dispute resolution, in a classic article by Albert W. Alschuler, Mediation with a Mugger: The Shortage of Adjudicative Services and the Need for a Two Tier Trial...
The Negotiation Guru Tells You to Be Classy!
Check out last November's post on Negotiation Guru, How to Be a Classy Negotiator. Excerpt below:Classy negotiator?! Is there such a thing? I believe there is. A negotiator is not always about being competitive, collaborative, avoiding and the whatnot. Whichever type of negotiating styles you have, you can still be a classy negotiator.
What’s a classy negotiator? Someone with class. Simple as that.
This does not mean that you have to put on your Hugo Boss suit that is...
EVALUATIVE, FACILITATIVE, TRANSFORMATIVE, DIRECTIVE, OH MY!
Because a reader recently suggested that "facilitative" mediators "tell the parties what to do," I decided it was time to revisit our terminology. Mediators! Litigators! Please feel free to weigh in!FIRST, LET'S JUST GO AHEAD AND ADMIT UP FRONT THAT NEGOTIATION IS A COMPETITIVE SPORT -- the goal of which is to take the largest part of the delta between the two parties' real bottom lines.EVALUATIVE MEDIATIONEvaluative...
DIY Dispute Resolution: Accountability, Apology, Forgiveness and Reconciliation
When I was mediating the resolution of litigation on my local court-annexed ADR panel, I used to help attorneys, their insurance adjusters and physician clients resolve medical malpractice cases. Some of my most profound human interactions occurred in these mediations. One surgeon said to me, with burning passion in his gaze, "you do not understand. The operating room is my church." Another told me he could not consent to the...
Do It Yourself: The Most Effective, Personally Satisfying and Least Costly ADR
I'm in the middle of reading two books, both of which should be on every mediator's night table -- Final Exam, A Surgeon's Reflections on Mortality by Pauline W. Chen and Faith-Based Reconciliation: A Moral Vision that Transforms People and Society by Canon Brian Cox.Why should a commercial mediator read these books? For the same reason your business clients should -- they address the most important technology for making business effective and efficient -- do it yourself dispute...
What Every Mediator Wishes Every Lawyer Knew About Negotiation
(image: Avi dancing by Tamar Factor)Because I cannot say it any better than this, I am simply excerpting the Conflict Research Consortium's article on Principled Negotiation. You don't have to be an expert in this -- your mediator is. To the degree you "get" this, you will form a far better negotiation team with your mediator to obtain the best deal possible for your client in any settlement or commercial negotiation. Promise! Principled...
The ABA Approves the Oxymoron of Collaborative Litigation
The ABA Ethics Committee has given the green light to collaborative law agreements -- considered unethical in Colorado -- so long as the clients give their informed consent. See Putting a Kinder Face on Litigation. Excerpt below: “When a client has given informed consent to a representation limited to collaborative negotiation toward settlement, the lawyer’s agreement to withdraw if the collaboration fails is not an agreement that ...
How Rich are We? A Modest Response to Geoff Sharp's Mediator Salary Post
Before a wave of emotional despondency descends upon rank-and-file mediators from Geoff Sharp's revelation that median mediator income hovers around $67,000, let's get a little perspective.First, if you are making $67,000 per year, you are the 52,428,447 richest person in the world and are in the top .87% of the wealthiest people worldwide. See Global Rich List to end your week on a note of gratitude with a donation to the charity of your choice. Chart from...
Conflict in Our Own Backyard: Should Someone Accept Clooney & Hanks Offer to Mediate the Writers Strike
Finally an excuse to post a photo of the world's sexiest man on my blog!The excuse?Professor Carrie Menkel-Meadow's Concurring Opinion Post Can Actors Do Everything? letting us know that George Clooney and Tom Hanks have offered to mediate the writers strike as follows:George Clooney, Tom Hanks and other actors have offered to step in and "mediate" the writer's strike. They say they will just tell the two sides "you have to live with this (particular terms) and get over ...
Los Angeles Grand Jury Pursuing Cyber-Bully Suicide Case
We've covered cyber-bullying here before as well as organizational bullying at the IP ADR Blog here. As regular readers know, the new issue of the Complete Lawyer is dedicated to bullying by and of lawyers with my own confessional of a little workplace bullying here.Today, L.A. Times Staff Writers Scott Glover and P.J. Huffstutter report that an L.A. Grand Jury has issued subpoenas in the cyber-bullying case that led to the suicide of a 13-year old...
Colm Brannigan and Michael Erdle on Mediating Canadian I.T. Disputes
Ontario-based mediator Colm Brannigan * has passed along a valuable article on the mediation of Information Technology disputes from a June '07 Ontario Bar Journal publication. The article, Resolving I.T. Disputes through ADR -- Part I Mediation was written by Colm with his co-author Michael Erdle. **Link above with a tempting excerpt below:[A] common obstacle to settlement in technology cases is differing interpretations of technical terms in a contract or...
Live and Free Vioxx Settlement Forum Conference
Thanks to Drug & Device Law for pointing us to the CSPAN video of a recent forum on the VIOXX settlement here.This American Enterprise Institute forum will not be beneficial to plaintiffs who are searching for advice on whether to accept the settlement themselves. I refer those people back to their attorneys. Here's a link to a Yahoo discussion group for Plaintiffs making the decision whether to accept the offer.For reporters who are following this story...
What Lawyers are Looking for from Mediators
Thanks to Colm Brannigan for posing this question to the LinkedIn Legal Community: What Qualities Do Counsel Look for in a Mediator? We've already posted -- here -- the answer of L.A. Sheppard Mullin attorney Jim Burgess. Below, we give you the thorough and insightful answer of Vermont attorney, mediator and arbitrator Richard Cassidy of Hoff Curtis. From Richard's response you can tell that he understands mediation theory and practice from every angle ...
Do Good Looking People Negotiate Better Deals?
Both the Wall Street Journal Law Blog (Do Looks Matter in the Law?) and the ABA Journal (Good-Looking Lawyers Make More Money) are reporting -- the WSJ beside a photo of the none-too-beautiful but apparently universally "sexy" Matt Damon -- that good looking people -- even those in the legal profession -- make more money than their less comely peers. One of my favorite blogs, Deliberations, also covered this topic from the angle of jury persuasion in How to Be...
Mediating Past Impasse: Humility and Diagnostic Questions
It is the last Friday before the New Year and the Mediation is entering Hour Five. I am cajoling, wheedling, blandishing, coaxing. Mr. Lee's attorney is doing a little begging himself. But we are unconvincing. Mr. Lee wants to settle the case. Every smoke signal he has sent up during the day indicates that he has sufficient resources -- and more importantly -- the committed desire, to settle this troublesome lawsuit for a...
No Jerks Allowed: The Complete Lawyer Vol. 4, No. 1 Goes Live
Now . . . . now . . . . now . . . . now?Yes, indeed, folks, NOW is the time to take the wrapper off the Complete Lawyer Vol. 4, No. 1: No Jerks Allowed! Listen, this is one classy legal journal. Glossy but deep. I'm ridiculously honored to have a place in this issue -- though who could reject the only "I was a jerk" . . . ahem . . . a jerk-in-recovery . . . confessional?Kudos to Don Hucheson and his great staff for putting this issue together. I'm in the middle ...
Negotiation, Communication and I.Q.
(image: Kpelle woman harvesting rice links to article on Liberian-Americans)I was just talking about class and privilege over at the Professional Women's Network Blog the other day. Then, since ideas seems to come in pairs, our favorite social science writer Malcolm Gladwell wrote about culture and IQ in the New Yorkers -- a topic that's blown the top off more than a few academic institutions in its time (see None of the Above: What IQ Doesn't Tell You About ...
Strategic Planning for the Flat Screen TV Negotiation
As Jeffrey Gordon over at the Software Licensing Handbook cogently explains in his post on Strategic Thinking, "when faced with a negotiation [it is important to] sit down and ponder your moves." If you come out guns blazing, the other side is probably going to respond in kind. Which means that you’re setting the stage for an aggressive negotiation and will be fighting for things along the way. On the other hand, too soft, and you’ll give up everything. This is where...
The Power of the WGA's Strike Video: Why We Fight
(image links to Amazon.com)We've talked before (here) about Columbia University Professor Charles Tilly's work on reason giving "Why?" (also see Malcolm Gladwell's article on Tilly's work here)Reading Tilly is one of those events that forever changes the way we look at the world -- in this case -- why we too often seem to be talking past one another. The reason Tilly's book is so important to negotiators should be obvious. As negotiators,...
We Don't Need No Stinkin' ADR Providers?
It wasn't actually John Huston's Treasure of the Sierra Madre, but Mel Brook's Blazing Saddles -- where he parodies the scene above -- in which the bandits famously said "we don't need no stinkin' badges." Are we just as confused about the role played by mediation providers?This is what you hear from litigators:I don't hire a mediation provider, I hire a mediator.
This is what you hear from mediators:People don't hire me because I'm on the JAMS or ADR Services or ...
Avoiding Evil and Promoting Good: the Chapter Being Procrastinated
(photo from Hippo Blog: Stanley Milgram redux)O.K. I'm writing, I'm writing. But to write this book I also need to read. And that means accessing the internet as I write. Hence the last "negotiating procrastination" post."But wait a minute," you're saying, "I'm not reading this blog to be inside this woman's stream of consciousness."But what If that stream of consciousness has dipped itself down into a really...
Mediator Diane Levin on the Mysterious Math of Adding and Dividing by Two
Friend Diane Levin of the Online Guide to Mediation writes:I think the question you raise here, requires a cognitive psychologist to answer. Having said that, I've seen this phenomenon [of the negotiation ending half way between the first two offers] myself. I suspect it's because the notion of "splitting the difference" or "meet me halfway" is so deeply ingrained in us.
Perhaps on some level this result "feels fair" to parties -- not surprising...
Money Mediation Redux
Still riffing off of Geoff Sharp's Money Mediation #1 (where's two big guy?)I keep telling friends that the following formula is descriptive, not prescriptive, and yet, I don't think I really know what I'm talking about. The formula? In a pure distributive bargain, the case will settle half-way in between the first two reasonable offers.The belief? I believe the key phrase here is "reasonable," which is not surprising since the entire practice of the...
money money money money money money money money money money money money money
Take a look at Geoff Sharp's post on the so-called pure money case and then please please please send me your stories on meaning-making about money in the course of mediated or non-mediated negotiations. (see our previous posts on the subjective experience of money here and here)What do I mean by "meaning making"?Let me give you an example of the type of story I'm looking for. I was mediating a personal injury case and we'd reached impasse. The Plaintiff was ...
Outcome Satisfaction in Negotiation -- Good News for Year-End
(photo: The Choices by Robert La Londe-Berg) All things being equal -- or, more to the point -- most things being impossible to equalize -- your clients' satisfaction with the settlement you negotiate is going to depend upon something other than the absolute number attained. In fact, the social scientists who study these things have told us that people tend to be more satisfied with the outcome of negotiations in which the following occur: the other side...
The Ethical Standards that Guide Mediator Conduct
At the close of yesterdays seminar on mediation ethics for lawyers, I was asked what ethical standards guided my own practice. Other than "neutrality" and maintaining confidences, Im sorry to say that the question caught me short.As promised to teleseminar participants, I provide JAMS suggested Mediator Ethics below together with a link to the JAMS article explaining each ethical standard here.
Diane Levin on Mediator Ethics
Diane Levin of the Award-Winning Online Guide to Mediation and the World Directory of ADR Blogs and principal of Partnering Solutions responds to our request for comment on the Rules of Ethics governing the work of mediators as follows:
The JAMS standards that you link to are similar but not identical to the standards of conduct promulgated by numerous other organizations and professional associations for mediators. As a practitioner in Massachusetts, I adhere to a...
Our Friend and Colleague Jan Frankel Schau Responds on Mediator Ethics
In response to our call to mediators to discuss the issue of mediator ethics, ADR Services and AAA neutral Jan Frankel Schau responds as follows:First of all, bravo for raising such an interesting question. I am still mulling over the last one you raised about whether mediation seeks to do justice or only settle cases...Here's my addition:
A mediation should, above all, protect and safegbuard the mediation process by allowing each participant to be fully heard and by facilitiating the full...
Gini Nelson on Mediator Ethics: First, Do No Harm; Then, Do Good?
Gini Nelson is the founder and author of the Engaging Conflicts Blog. Gini received her law degree from George Washington University Law School in 1983 after teaching Social Problems at the University of Kansas while completing her MA in sociology. Gini's practice includes mediation and settlement facilitation. Gini, who posted her response to my request for comments on mediation ethics on her own blog here, did so before I noticed and after I make a few...
Contingent Settlement of the Year: Merck Agrees to Pay $4.85 Billon to Settle Vioxx Suits
(photo: Vioxx back in the day . . . . ) We were just talking the other day at the IP ADR Blog about the power of contingent agreements to settle lawsuits in connection with the recent Verizon/Vonage settlement here.Now its the turn of another BIG "V" LAWSUIT -- Merck's Vioxx litigation -- to benefit itself with the largest drug settlement ever but only in the event 85% of all 26,600 litigants agree to drop their cases.Here's an except and link to...
How Tough was the Vioxx Negotiation? 'Each lawyer had a greased football and was running like a wild monkey'
(right: wild monkey)Catch the thorough and fascinating Law.com report on the Vioxx settlement here.And yes, only a Plaintiffs' trial lawyer from New Orleans can get away with similes like that!Settlement negotiations began last December and have proceeded fitfully since, reportedly spurred on by Fallon and other judges. The final stretch began Thursday morning at the New Orleans offices of Russ Herman, liaison counsel for the plaintiffs, and wrapped up Friday morning around 5 a.m....
More Thoughts from a Labor Negotiator on the Hollywood Writers' Strike
(right: Julia Louis-Dreyfus on the picket line)When we first wrote about the writers' strike and the active picketing just down the street here at Paramount on Santa Monica and CBS on Beverly Boulevard, we asked our friend Jim Stott for comment.Because Jim's excellent comment was buried in small type in our "comments" section, I give it its due here by bringing it up into a post of its own. (for "live" WGA Strike Blogging from the Los Angeles...
Why I Don't Want to Know Your Bottom Line: Reason Two
A couple of days ago I said I don't want to know your bottom line because I cannot guarantee it will not effect my own neutrality. Listen, here's the toughest part of being a mediator -- making a conscious effort not to pursue the weakest party for the purpose of settling the litigation. You tell me your bottom line and you throw temptation in my path, temptation that I'd rather avoid. Keep your counsel on this one with any mediator. We're neutral. We're not...
Why I Don't Want to Know Your Bottom Line: Reason No. One
(photo by Robert Levy whose work is available at istockphoto.com here)"Please don't tell me your bottom line," I say to attorneys who are new to my mediation practice. It's rare to be asked "why." Recently, however, an attorney told me that one of my ADR colleagues always commences mediations by expressly asking for her bottom line. "It's just like trial," I said, "or taking depositions, both of which I teach for the National...
Girardi Troubled by 25-Year Old Confidentiality Agreement in Priest Molestation Case
(left, Los Angeles trial lawyer Thomas Girardi)The subject of private judging and maintaining confidentiality in settlement agreements was in the news again today, this time in the Los Angeles Times article "Prying into Judicial Secrecy." The article announces a significant new study by UCLA Law School and the Rand Corporation on the effect of private judging and confidential settlement agreements on the civil justice system.But what really caught my attention was Tom...
Aggressive First Offers and the Nash Equilibrium
Recently, in response to my Power Point Presentation on Cognitive Biases (the one labeled Social Psychology Insights) I mentioned that aggressive first offers "anchor" the bargaining range in favor of the first offeror.Our correspondent and resident blog expert on cognitive biases, Michael Webster of the BizOpNews Due Diligence Blog, responded as follows:Hmm, anchoring to support aggressive opening bids? Doubtful, despite the academic literature -which in my opinion has ...
Michael Webster's Resolution to the Shubik Dollar Auction Game
(photo: Bill IV by cmiper)We've had a lively discussion going about making agressive first offers, for which we are indebted to our regular readers Michael (da Game Man) Webster and mediators Chris Annunziata and Geoff (Coalface???) Sharp. Michael provided a link to his solution to the "Shubik" Dollar Auction Game that most of us have played in mediation seminars. Because the game itself demonstrates just how irrational bargaining can be, and Michael's solution ...
Ten Settlement Conference/Mediation Traps for the Unwary
1. Leaving stakeholders at home Who's a "Stakeholder"? Anyone who can green- or red-light the final agreement.Why Can't They Simply Be Available By Telephone?For the same reason you don't want your jury to "call in." A settlement negotiation is part process, part presentation, part drama, and, part human interaction. Those who don't participate will never understand the principled reasons for the settlement achieved by day's end. I cannot tell...
It's Official: Money Does Not Make Us Happy
You don't have to rely upon little old me anymore when I say that the negotiation is never solely about the money. It's official.wealth increases human happiness [only] when it lifts people out of abject poverty and into the middle class . . . [I]t does little to increase happiness thereafter.
The full online Newsweek article, Why Money Doesn't Buy Happiness is here."If money doesn't buy you happiness," asks the Newsweek article, "what does?"Grandma was right...
Conflict Resolution Resource of the Week
Because I'm participating in a CyberWeek Webinar today on Conflict Resolution web resources, I took a closer look than usual at one of my favorite ADR web sites Beyond Intractability.org What can you find here?How about an interactive step-by-step guide on how to stop fighting in your personal relationships.There are also checklists to help you resolve the day-to-day conflicts that sap our energy -- such as those in the workplace and to help you...
Fortune 500 GC Says Litigate, Don't Arbitrate, Employment Disputes
(photo: Employees Only by Michelle Thompson) While most of the arbitration news of the week is about the unfair advantage given to corporate "repeat players" in the arbitration of disputes, Senior Legal counsel for DHL counsels employers to abandon arbitration's ship and swim back into litigation's pacific waters. Though I'm the "pro" arbitration speaker with DHL in-house counsel Joshua Frank at this week's ALFA Labor & Employment Practice...
Long Live the Death of the Reasonable Man
(left: the "reasonable man?")According to Saturday's New York Times Talking Business column Can We Turn Off Our Emotions When Investing?, few of us could make the boast ascribed to Los Angeles lawyer Charles T. Munger when asked the secret to being a great investor."I'm rational," he said.
Lawyers, Economists and "Reasonable Men"Both law and economics have long assumed a hypothetically objectively "reasonable man" or investor.I ...
Organizations in Need of an Effective and Efficient ADR Program
(right, the bright and beautiful Miss South Carolina, now at the Wharton School of Business; photo links to the NYT article on the Pageant's broken promises) Before there's Miss America, there's Miss California, South Carolina, Oklahoma and the remainder of the fifty states.The problem? The local "Miss" pageants -- the stepping stones up the ladder to Miss America -- pretty much all offer scholarships as prize money to winners, many of whom may ...
Lies and the Lying Liars Who Tell Them: Mediated Negotiations
(photo by Angie Schwendemann's daughter Christina)We were just talking yesterday about deception in negotiations. But how about deception by the mediator? Take this 2000 mediate.com article by JAMS neutral and former U.S. Magistrate John W. Cooley, Defining the Ethical Limits of Acceptable Deception in Mediation for a spin.This article proceeds from the premise that consensual deception is the essence of caucused mediation. This statement should not come as a shock to ...
I Love You, the Check is in the Mail, and I'm Telling You the Truth: Negotiating with Liars
(right, the incomparable Bansky!)I'm reminded this morning of the MITSloan Management Review's article, Mastering the Art of Negotiating with Liars because today's NYT "What's Offline" column tantalizingly titled "Analyzing Failure Beforehand" mentions it and because it's frustratingly unavailable unless you shell out $6.50 for the privilege.Were I standing at a newsstand, I wouldn't hesitate for a moment shelling out the $20+ bucks for the entire...
Middle East Envoy and Chief Clinton Peace Advisor Gives 12-Steps for Effective Negotiations
The negotiator's equivalent of "don't make a federal case out of it" is "what do you think you're doing, brokering a negotiated peace in the Middle East?"Well (thanks -- again! -- to Geoff Sharp) we bring you negotiation tips from a guy who has brokered Middle East peace treaties -- Dennis Ross (Diplomacy: Talking Sense) former Middle East envoy and chief peace negotiator for both the Clinton and Bush senior administrations.(Ross' new book: ...
Conflict Avoidance: Social Obligations, Larry David and Shame
Conflict Avoidance: Social Obligations, Larry David and Shame
How deeply do you renosonate with the feelings described by New York Times writer Bob Morris in yesterday's "Age of Dissonance" column, How to Avoid, Well, You. THE invitation was too good to refuse — an August weekend at the august home of a friend on a little New England island.
Yet, from the moment I pulled up to the ferry dock, there was dread in my soul. Two years ago, I had...
The Virtual World of Restorative Justice Lives at RJ City
(above chart by Ron Claassen at the Fresno Pacific Center for Peacemaking & Conflict Studies)If yesterday's post sparked an interest in Restorative Justice, you might mosey on over to RJ City to "help build the future of justice." Yes, everything in my conflict resolution and thinking arises from the Straus Institute where I took Dan Van Ness' class on Restorative Justice and was first introduced to the concept of "RJ City," which I'm thrilled...
Robert Creo and Doug Noll Fix Conflict on Talk Radio
O.K., I never listen to Talk Radio because it's all about conflict and I get enough conflict in my day job.Here's a relief, some talk radio exists to FIX YOUR CONFLICTS.Upcoming Doug Noll and Robert Creo, both masters in the field, talk about making felicitous that which is already necessary -- dealing with conflict. CHECK IT OUT HERE
From Victoria Pynchon
Mediate.com has been my online mediation home since I commenced my neutral practice three short years ago. In its "pages" I found useful advice, wisdom and counsel, both as to the theory and practice of mediation and the all-important topic of practice development. Mediate.com was kind enough to publish my first tentative mediation observations and interviews when I was still laying down my neutral roots, before the first bud of my practice raised its head from the ground. The only reason I had the chutzpah to write these articles and to conduct interviews with mentors such as Joe Folger, Robert Baruch Bush and Kenneth Cloke was my sense that they would find a home at mediate.com no matter how green their author. The mediate.com site, and its fabulously committed principals, Jim Melamed and John Ford, have thus been guides, mentors, companions, and finally collaborators in this once in a lifetime journey from legal to neutral practice. I frankly don't know what I would have done without you guys! I send my congratulations and gratitude to you on this your 200th "anniversary." I'm looking forward with eager anticipation to the 300th and 400th editions of your newsletter, which may way well take forms we cannot even imagine now. You're simply THE BEST!
Cal Supremes Forbid Discovery of Reinsurance Information to Assist Settlement Efforts in Clergy Abuse Cases
(right: 12 Angry Men because this post will end up being about depositions, settlement and trial and not simply -- yawn -- reinsurance) Business Insurance reported yesterday that the California Supreme Court has Shield[ed] Reinsurance Details in Abuse Case. As B.I. wrote,In Catholic Mutual Relief Society et al. vs. The Superior Court . . . , victims sought to learn whether the nonprofit entity, which administers self-insurance funds for more than 300 archdioceses and other ...
Negotiating Your First Law Job: Which Offer to Accept
(right: Working Mother Identifies the 50 Best Law Firms for Women)The interview season is over and you have three job offers.One is from BigLaw in Manhattan, a dazzling, dizzying opportunity coupled with a salary that (you believe) would end all of the financial insecurity you've experienced after 7 years of part-time jobs; student loans; and, macaroni and cheese dinners. The other offer is from the Justice Department in Washington, D.C. where...
Negotiating Your First Law Job: Preparation, Preparation, Preparation
(after about half an hour, all your resumes begin to look something like the image at right)Yesterday, we talked about recognizing, naming and claiming your "distinct value proposition" (your DVP in Bazerman & Malhotra's lexicon) to negotiate the best terms and conditions as possible for your first law job.Today, because the beach is beckoning (yes, even bloggers are entitled to Hawaiian vacations) I offer this experience-based post on hiring summer...
Be a Negotiation Genuis with Harvard's Malhotra and Bazerman
Why am I reading Deepak Malhotra's and Max H. Bazerman's Negotiation Genius in my comfy funky beach shack ON THE SAND on the windward side of Oahu at 8:45 a.m. (local time) listening to the waves gently slap the shore and occasionally looking up to see if the fisherman at water's edge has caught anything besides happiness this morning?Am I insane? No, it's because: no one taught me to negotiate in law school and despite being an B+ to A+ litigator for twenty-five years, until ...
Los Angeles County Jails to Introduce Mediation
(left: a mother and child reunion outside the L.A. County Jail)The last time you heard news from the Los Angeles County Jail, it had to do with Paris Hilton's claustrophobia. Today, we bring you less sizzling but perhaps more important news from our local jail cells. A Santa Clarita radio station has announced that Los Angeles County is introducing "disturbance mediation training services for jail inmates." The training, "aimed at reducing racial and...
Conflict Escalation Story of the Week: Judges Threaten to Arrest One Another in Scheduling Conflict
(left: photo of the fighting Judges; listen, they look like really really nice people; this could happen to any of us; thank goodness our fallible human behavior isn't likely to be reported on Fox News).We owe this story (excerpt below) to an alert Wall Street Journal Law Blog reader commenting on Judge Ashamed of Strip Club Charges (I guess this qualifies as my sensationalist Judge posting of the year) MARSHALL, Ark. — A scheduling conflict ...
Improving the Workplace: Don't De-Motivate Your Colleagues and Employees
(left: the country's favorite bad boss)Diane Levin introduced her readers to a great video over at the ej4 Learning Center some time ago but I just got around to watching it today. In the course of this short video, you'll see every bad boss you've ever had as well as (grit your teeth but bear it!) every bad boss behavior you've ever been guilty of.A must-see: Impedership Versus LeadershipWhat does this have to do with negotiation? First off, you'll find...
Best Negotiation Books 2006 from Strategy + Business
In recommending Bargaining for Advantage: Negotiation Strategies for Reasonable People by G. Richard Shell; Negotiate to Win: The 21 Rules for Successful Negotiating by Jim Thomas; and, my favorite Beyond Reason by Fisher and Shapiro as the three Best Business Books [on] Negotiation to arrive on our commercial shore in 2006, reviewer Nikos Mourkogiannis of Strategy + Business outlined the three essential elements of every negotiation -- art, science and wisdom. We reprint an...
Know Your Negotiating Partner: Boom, Gen X, Gen Y
See also the power point slide taken from Tom Baldwin's blog, KnowledgeLine based upon a presentation given at Shepard Mullin by Dr. Larry Richard of Hildebrandt International.These, of course, are stereotypes. An attempt to get at a generalized truth about groups of people whether they be based on age, gender or astrological sign (this is Hollywood after all). Dr. Richard's chart reminds me of a story one of my early mentors, Bob Badal,...
Man vs. Machine: Automated On-Line Negotiated Settlements
(left: Hal from 2001, a Space Odyssey -- Open the pod bay doors, HAL. I'm sorry Dave, I'm afraid I can't do that . . . I think you know what the problem is just as well as I do. . . This mission is too important for me to allow you to jeopardize it. . . . I know you and Frank were planning to disconnect me, and I'm afraid that's something I cannot allow to happen. All right, HAL; I'll go in through the emergency airlock. Without your space helmet, Dave,...
The Negotiator's Field Book and the Shadow Negotiation
I once had a relationship in which we fought about the way we should fight. We called this fight the "MetaArgument." Now, the Negotiator's Field Book -- the Desk Reference for the Experienced Negotiator tells me that what I was having was a "shadow negotiation" (see Deborah M. Kolb's chapter Strategic Moves and Turns here) in which people . . . negotiate how they are going to negotiate [and where] they work out the...
Talking About the Confidential Part of a Mediation is Like Talking About the Wet Part of the Ocean
As we noted yesterday, some members of the insurance policy holder bar suggest that coverage counsel hold non-confidential "mediations," either by calling them settlement conferences or by agreeing that no party will subsequently assert the mediation privilege. Why? Because policy holder counsel is concerned that the insurance carrier will commit acts of bad faith during the mediation without having to answer for its wrongful conduct due to the...
Attorney-Mediator Linda Bulmash Negotiates in a Minute
We seem to be in "five rule land." Today's five "One Minute Negotiation Tips" (courtesy of the Los Angeles County Bar Association) come from attorney-mediator (and good friend) Linda Bulmash. Her five tips below:WINNERS OUTWIT AND OUTCHARM THEIR COUNTERPARTS
"Civility is not a sign of weakness!" President John F. Kennedy Negotiation is not a contest. In other words getting as much as you can does not mean beating the other person. You...
Negotiation Rules from Harvard Business School
If you're not already acquainted with Harvard Business School's free weekly "Working Knowledge" newsletter, do let me introduce you here. There's no better negotiation advice on the internet and when it's all too much reading, skim the concise "Executive Summaries" or, what the heck, check here from time to time and I'll alert you to the most interesting articles posted there. (photo by Jeff Cockshaw)
This week, Harvard professors John Davis and Deepak ...
A July Fourth Lesson: Negotiating American History
The following excerpt from the PBS Benjamin Franklin webpage, Citizen Ben, demonstrates the wisdom of Lax' and Sebenius' advice that every successful negotiation requires moves away from the table to set up the most promising situation once your'e at the table. 3-D Negotiation.Here, those "away from the table" negotiation moves led to the founding of our nation. In 1781, Benjamin Franklin was in France. . . Franklin understood the...
Winning the Negotiation
We recently posted a brief discussion about "Winning" the Negotiation/ Mediation. Though not statistically significant, I can nevertheless report that, aside from the all-time hands-down reader-favorite post I'm Billing Time, Winning the Mediation has had more "hits" than any other. Forget collaboration. People want to win. (a more serious post about this later). And the reason most of us feel like such inadequate negotiators? ...
Friend and mediator Charles Parselle recently sent along this brief but telling mediation vignette. CCP 1942 tenant v. landlord action.
Pl: This is a no-brainer. 175k Def: They must be (expletive deleted) joking, offer 5k Pl: They don’t understand the law. 134k Def: This has only nuisance value. 20k Pl: We are certain to get an award of attorney fees. Atty fees are 75k and counting. Def: They are liars. Atty fees cannot exceed 10k Mediator: Let’s deal with atty fees...
WTO, Neuroscience and Impasse
We follow high-level negotiations, as well as the small commercial dispute, here. No matter the stakes, the dynamics are the same. See, for example, today's AP article, Collapse of WTO Talks Puts Trade Deal in Limbo.What's at stake? a new world trade pact aimed at adding billions of dollars to the global economy and lifting millions of out of poverty.
Who are the negotiating parties? The United States, the European Union, Brazil and India.
'Winning' the Negotiation:Mediation as Poker Game
Check out Bob Steinberg's article in the San Francisco Daily Journal, Influencing the Mediator. Bob's article -- the tip of a trend -- stresses "winning" the mediation by canny, savvy, sophisticated and sometimes just flat-out tricky negotiating tactics. Like what? Like squeezing the mediator into a small room at a round table with your team to undermine his authority on your side while at the same time proffering a large...
More on Bad Faith in Mediation
(right: Lawyer as Satan: Al Pacino in The Devil's Advocate) Gini Nelson at Engaging Concepts recently alerted me to John Lande's recent and excellent article, Principles for Policymaking About Collaborative Law and Other ADR Processes. There is much in this article to recommend it, including observations and recommendations about regulating ADR policy and practice. What caught my attention were Lande's comments about "bad faith" mediation, a...
Interventions for Intractable Conflict: Peacemaking in a Tit for Tat World
Last week, along with my extern, Pepperdine Law School and Straus ADR student Cameron Mitchell, and my friend, the actor, musician, and singer-songwriter Lisa Douglass, I presented an Improv Seminar on Peacemaking in a Tit for Tat World using Baz Luhrman's hypnotic Romeo + Juliet as a jumping off point. The Seminar was sponsored by the L.A. County Bar Association's Dispute Resolution Services and the SCMA's Salon Series. Thanks to Kathryn Turk of the West Hollywood...
State and Federal Mediation Protections in 'Bad Faith' Hearings
Just when you say the mediation privilege would prevent the parties from disclosing such matters as settlement authority and the activities of party representatives, along comes an out-of-state federal opinion that makes you glad you live and practice in California.(photo: Silence is Golden by Memme)Although the District Court in Bauerlein v. Equity Residential Properties Management Corp.Slip Copy, 2007 WL 1521606D.Ariz.,2007.May 22, 2007 refused to award the costs of an unsuccessful ...
Nice perceptive piece on negotiating fees over at the Consultant Journal blog entitled Negotiating vs. Giving Up. Thanks for the tip Andrea.The above negotiation tip is sponsored by the acronym ZOPA.Your mediator should never never never never let the parties believe they've reached impasse until the mediator is as certain as she can be that there is no Zone of Potential Agreement. How does s/he know? Tune in for tips to knowing the mind of your mediator.
Pleading Justice Means Resolution Justice
We've taken to heart Justice Ruvolo's admonition that the Courts should put their resources into their central mission -- providing a litigation and trial forum to resolve disputes that the parties cannot or should not be required to resolve in "alternate" private forums.
Though I'm an ADR fan, I don't think either arbitration or mediation should be utilized simply because the courts can't get your dispute resolved effectively, efficiently or in a...
Cheating: Billable Hours
From time to time we take a look at social psychology and evolutionary biology because ADR practitioners must be good students and careful readers of predictable human behavior and ways to encourage change.What better place to begin than with ourselves. In this week's Blawg Review, Enrico Shaefer's Greatest American Lawyer gathers together the week's 411 on self-reported billing irregularities. I know this topic is compelling to lawyers because I've had more...
Summer Beach Reading for Lawyers
Henry David Thoreau, Walden (the 150th Anniversary Edition)
A couple of years ago, a friend bought me the 150th Anniversary Edition of Walden – a text I hadn’t read since high school. While building his spartan but serviceable cabin in the woods, Thoreau does a cost-benefit analysis of home ownership, calculating that “an average house . . . costs perhaps eight hundred dollars, and to lay up this sum will take from ten to fifteen years of the laborer's life.”...
The Qualities Mediators Think Attorneys are Seeking
Dear Readers,I haven't received nearly enough attorney and/or disputant responses to the Mediation Negotiation Survey, but I can share with you some preliminary thoughts, primarily of mediators, about the qualities they think you're looking for.Patience, by the way, is in the lead as the most-cited essential mediator quality. Are they right? Take the Negotiation and Mediation Justice Survey to let them know now!In Answer to What Qualities a Good Mediator Should Have,...
Our Readers Respond: ADR Part of the 'Big Poker Game'
The question whether mediation should be "fair" or "just" elicited the following thoughtful response from one of our attorney readers, who, as you can tell from the context, primarily represents plaintiffs seeking to recover commercial debts allegedly owed by individuals and small businesses. Distributive Fairness"I only think a settlement is 'fair,' says our reader, "when it incorporates the mathematical calculation of prospective damages...
Mysterious Metallic Ball Falls from Space into Paris Hilton's Lap
OK, so the part about Paris Hilton was pure tabloid (sorry, Paris, just kidding) but look! the mysterious metallic ball part is true! Though like most headline-catching mysteries, not all that interesting after you get past the excited utterance.Justice, however, should be neither hype nor mystery.There are only two days left for you to take the Negotiation Justice survey here.Litigators: tell your mediators what protections and benefits you're looking for in a...
Please Take Our Justice Survey
by clicking on THIS LINK HERE, NOT ON THE TITLE LINK. MY GREAT GOOD BLOGGING FRIEND DINA LYNCH AT MEDIATION MENSCH AND ADR PRACTICE BUILDER ASKS OF THIS SURVEY: "SHOULD I TAKE THE SURVEY AS A MEDIATOR OR A CLIENT/LAWYER?"THANKS FOR HELPING ME SEE THE CONFUSION DINA!HERE ARE THE FUNDAMENTAL QUESTIONS UNDERLYING THE SURVEY:Are we as mediators in the business of delivering justice or simply final resolution? Do the attorneys and/or clients who use...
California Justice Ruvolo Asks: Should the Courts Stay in the ADR Business?
The year's must-read California Litigation Journal article is Justice Ignazio Ruvolo's "It's Time to Re-examine the State of Civil Litigation in California." You have to be a member to read the issue on-line (here Crisis in the Courts?) but if you're not, find a friend who is and steal her copy. Justice Ruvolo begins his concise history of the state of California's courts by suggesting that "if your bar number has fewer than six digits, then you...
More New Law on the Enforcement of Mediated Settlement Agreements
Appellate opinions concerning the enforceability of mediated settlement agreements are coming fast and furious.If you haven't prepared your form term sheets and memoranda of understanding by now, you might end up litigating the settlement whose purpose it was to stop the litigation. Oh the irony! Today's case Irvine v. Regents of University of California (4th Dist. 2007) was decided on a narrow procedural ground, leaving at large the questions of fraud, duress ...
Truth, Justice and the American Way
Thirty years ago (more or less) my law school trial advocacy professor taught me this:Trial is not about ascertaining the truth. Nor is it about justice. It is simply one way to finally resolve a dispute.
I have to admit that my legal career was probably more marked than others by the belief that I was working on the side of truth and justice. But then, I was working small. Did the word "sudden" mean "quick" or only "gradual" and...
Empathy, Evolution, Mediation and Global Warming
I took an urban hike with my good friend the composer, lyricist and novelist Kathleen Wakefield yesterday. I live at the base of the Santa Monica mountain range, making for a good hour's hike from the Los Angeles Basin to the range's crest on Mulholland Drive and back (even if we only made it to Fountain) (yes, the Fountain of Bette Davis' famous response to the question "how do you get to Hollywood?" ...
Aggressive First Offers: Helpful Notes
Research shows that how we perceive a particular offer's value is highly influenced by any relevant number that enters the negotiation environment -- an anchor.
The greater the ambiguity and uncertainty, the stronger the anchoring effect of the first offer, which will exert a strong pull throughout the rest of the negotiation. Researchers had real estate agents inspect a house and estimate its appraisal value and its purchase price
then they manipulated the house's list price, providing...
All the Mediation Emotions from A to A
Amy Lieberman, executive director of Insight Employment Mediation in Scottsdale, Arizona, recently published an intriguing article in the AAA Dispute Resolution Journal, The "A" List of Emotions in Mediation from Anxiety to Agreement
Malpractice, ADR and Client Expectations
Way back in 1997, John Blumberg of the Blumberg Law Offices in Long Beach California asked in a Daily Journal article whether lawyers had a duty to give ADR advice.
Alternative dispute resolution, wrote Blumberg,
has reached such a level of acceptance and availability that failure of an attorney to consider its possibilities or to inform the client of its existence may amount to legal malpractice. This is not to say that every case must be settled. It is to say, however, that an attorney's...
The Cost of A Thing is Your Life
When a decision-maker says, “it’s only about money,” he means that the choice to be made is purely rational and that strong emotions – feelings – will play no role in the analytic process to follow. When lawyers say a case is “only about money,” they are not only saying that emotional factors will not influence their decisions. They are often also saying that Plaintiffs’ expressions of injustice are insincere – otherwise they would not accept money in exchange for losses that cannot be reduced to monetary value such as the loss of life or emotional suffering . . .
Explain Yourself! An Anatomy of Explanations
We are once again indebted to New Yorker writer Malcolm Gladwell for making social science research useful. In his April 10, 2006 article on Columbia University Professor Charles Tilly's book "Why," Gladwell explains the sociologist's "anatomy of explanations." Why should negotiators care? Because explaining why our bargaining partners should settle instead of litigate requires persuasive story-telling -- a compelling account of our business requirements and capabilities -- a reason why what we want is fair and reasonable, even just.
Take Steps To Ensure Mediated Settlements Can Be Enforced
Ladies and gentlemen, start your word processors. Simmons v. Ghaderi, 2006 DJDAR 13065 (Sept. 29), may well have you revising your settlement documents before your next mediation. In Simmons , a majority of the 2nd District Court of Appeal enforced a mediated oral settlement agreement that did not comply with Evidence Code Sections 1115 et seq. The court ruled that the defendant, having divulged confidential mediation communications and having litigated the issue of the agreement's enforceability, was barred by the doctrine of estoppel from relying on the protections of mediation confidentiality.
Finesse the Impasse by Changing the Deal - Negotiation Wisdom from Lou Meisinger
During a recent conversation with Lou about negotiating the resolution of commercial litigation, he said one of those things that can change your negotiation strategy (and hence, your life) forever.
The Pro Bono Problem
Charles Parselle's recent mediate.com article, L.A.’s Policy Of Free Mediation Benefits Everybody But Mediator has generated considerable comment in the BLAWG- and BLARG-O-SPHERE. I have an alternative view.
What Makes a Great Negotiator
According to Harvard Business School Professor Michael Watkins' new book Breakthrough International Negotiations truly great negotiators operate on seven basic principles.
You are the Technique-Notes of a New Mediator
My first day of mediation training in the Spring of 2004, progressed in somewhat the same fashion as my first year of law school. I remembered struggling painfully with the theoretical bases of jurisdiction in Pennoyer v. Neff on day one of Civil Procedure 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 is it just another chimera as well?”
Interview with Ken Cloke: Mindfulness And Commercial Litigation
In the Spring of 2005, long-time commercial litigator and new mediator, Victoria Pynchon, engaged in a series of conversations with mediator and author Kenneth Cloke about the application of mindfulness to the mediation of complex commercial litigation.
Can Transformative Mediation Work In Commercial Litigation? A Conversation With Joseph P. Folger And Robert A. Baruch Bush
The transformative mediation model was first articulated by Robert A. Baruch Bush and Joseph P. Folger in their classic work, The Promise of Mediation: The Transformative Approach to Conflict (Jossey-Bass 1994, Revised Second Edition 2005). Because transformative mediation focuses primarily on the personal interaction between the disputing parties, it seems well-placed in family, partnership and other disputes where the parties must continue to interact with one another. Whether or not this model is useful in the resolution of arms-length commercial transactions was the subject of a recent conversation between author Victoria Pynchon, a Los Angeles commercial mediator and litigator, and the two originators of the transformative model.