Thursday, July 24, 2014

Prisoners

In the first episode of the second season of Orange is the New Black, the series presents a variation on the prisoner's dilemma problem that is often discussed in mediation programs and texts. Piper and her former girlfriend Alex both have to testify against the drug kingpin they used to work for. Alex persuades Piper to lie and say she had no contact with the guy, otherwise he might take reprisals against them both. After giving her testimony, Piper finds out that Alex in fact told the truth at the trial, leaving Piper exposed to a possible perjury prosecution and an increase in her sentence.

In the prisoner's dilemma scenario, an opportunity to communicate as well as familiarity with the other player's past moves is supposed to allow each player to learn to trust the other (or not), and if trust is established, to encourage greater cooperation. In the show, the two players did have an opportunity to communicate and also had a long history together.  That is what leads Piper to trust what Alex was telling her and follow her advice. What she failed to consider, however, was that this long history should not have led to greater trust but instead to greater suspicion. In season 1 we found out that Alex had already played the defector card once, by betraying Piper and landing her in prison in the first place. In that situation, the parties' history and knowledge of each other's actions should have led Piper not to trust Alex again.

Piper seems to have such a strong need for love and acceptance that she trusts Alex even when she should not. I have seen it happen occasionally in mediation that a party develops (or previously had) warm enough feelings for the other side, that they make deals that they might later regret. Communication and trust are wonderful things , but nobody wants to be played for a sucker either. Sometimes it's a good idea to stay on your guard even while the other side is trying to play on your warm and fuzzy feelings. The way to test a deal is to consider not only whether the deal will work if the other side lives up to it, but also whether the deal makes sense even if the other side defaults.

That's a reminder that it is the lawyer's job to provide that kind of dispassionate advice. Piper's real mistake in this episode was failing to follow her lawyer's good advice, and instead listening to her untrustworthy friend.  

Saturday, July 19, 2014

War and peace

Conflicts that have recently erupted into violence in Gaza and in Ukraine raise the question of how to end the killing and lead the parties back to a less destructive process. President Obama yesterday, in his press conference following the tragic downing of a Malaysia Airlines passenger jet over the Ukraine, attempted to respond forcefully without further inflaming the situation. The president was careful not to jump to any more conclusions than are warranted by what we know so far. He was firm in condemning the responsible parties, yet careful to emphasize the goal of de-escalating tensions and violence so as to prevent further loss of life.

In short, it was just the sort of speech that was bound to infuriate hawks such as Senator McCain who called the president's response to the fighting in the Ukraine "cowardly." At the same time, it wasn't the kind of speech likely to inspire the president's supporters either. What would probably stir people more might be a Rooseveltian ("day that will live in infamy") or Churchillian ("fight on the beaches") type of response to the outrageous act of violence that appears to have been committed by Ukrainian separatists with the help of their Russian patrons.

But remember that both Roosevelt and Churchill made their stirring remarks in an effort to whip up national resolve to fight and defeat an enemy that had already brought war to their shores. Our side needed to be mobilized for all-out war. President Obama's much harder challenge is to stir up the desire for peace, not only to avoid a military confrontation with Russia, which no responsible person wants, but also to reduce tensions in the Ukraine. He faces a similar task dealing with the situation in Gaza.

Even though the United States supports the Ukrainian government in its struggle against the separatists, and supports Israel in its struggle with Hamas, the president was attempting to play the role of mediator. To do that you have to emphasize the goals of fairness and impartiality. You have to be careful not to exaggerate threats or to accuse the enemy of anything more than you can prove. You have to give your adversary a face-saving way out of a dangerous situation.

Laying out a path to peace in this way is far from easy. It's certainly not cowardly. The challenge for the president, as for any would-be mediator, is to persuade the parties that they can accomplish their goals more readily by peaceful means, and that further retaliation will only make the situation worse. Perhaps to make peace, we have to talk less about the grand designs and historical claims of the respective parties, and turn the talk toward such mundane topics as implementing a ceasefire, conducting an independent factual investigation of plane wreckage, restricting arms shipments to the combatants, and calculating the damage to lives and property inflicted by the scourge of war. If the parties can focus their effort on cleaning up the mess, maybe they will consider less destructive means of managing these conflicts.

Monday, July 14, 2014

Dawn of the Planet of the Apes

Surprisingly, the second in the new series of Planet of the Apes movies (Dawn of the Planet of the Apes) presents a pretty good illustration of the forces that drive groups into violent conflict, or provide opportunities for diplomacy. As the story begins, we find a rapidly-evolving colony of apes living in the woods, while a group of humans, perhaps all that is left of humanity (most people having been wiped out by a virus and the mass chaos caused by the virus) are struggling to survive in what's left of San Francisco. An exploring party makes contact with the apes, and both sides have to decide whether to go to war against the other, or find a way to co-exist peacefully.

On each side, there is an advocate for peace, and a counter-advocate for war. The apes' leader, Caesar, still has kindly feelings toward humans, and thinks they might be able to establish trust and respect each other's boundaries, while his rival Koba wants to keep humans away or destroy them. The two points of view on the human side are represented by Malcolm, who asks for a chance to negotiate with the apes to allow the human city to re-build, and Dreyfus, who is skeptical of this diplomatic mission, and makes preparations to fight.

What I liked about this set-up is that there is a logic to each of these four points of view. The dreamers on each side who hold out hopes for peace are correct in pointing out the awful toll that war would take. They recognize the risks, but only ask for a chance to test whether a means can be found for both groups to achieve their goals without threatening the other's. On the other hand, those who advocate for war are correct in suggesting that the other side cannot be fully trusted, and that peaceful coexistence might never be possible.

The movie also demonstrates the powerful roles that fear, distrust, selfishness and bias all play in leading both sides toward violent conflict. Peace is difficult to achieve, and fragile to maintain. It requires individuals to get to know and understand individuals on the other side. It requires trust, which can easily be broken. War seems natural for those not ready to shed their prejudices and fears.

An important lesson for conflict resolution is well illustrated in this film. That is that you generally can't use logic and reason to persuade people to avoid taking a confrontational approach. The hawks will not be persuaded by logic, and their arguments are just as strong as those of the doves. Instead you have to appeal to deeper emotional needs, such as self-preservation or brotherhood, in order to avoid destructive conflict.

(For those who prefer historical drama to science fiction, an even better movie with similar themes is Ridley Scott's Kingdom of Heaven, illustrating the forces that drove both sides to war leading up to the siege of Jerusalem in 1187.)

Sunday, July 6, 2014

Joint sessions

I heard about a mediator who started a session by asking all the participants to spend some time talking about their personal histories and interests, presumably in an effort to get the parties to see each other as human beings and establish connections that might help them resolve the dispute. Lo and behold, these parties did resolve the dispute to each side's great satisfaction, but at least one side later reported that they disliked this touchy-feely aspect of that mediation. So even though this technique was proven to work well, it still made one of the parties uncomfortable enough that they would probably prefer a more conventional and perhaps less effective approach.

Mindful of stories like that, I try to make sure parties buy into whatever process we might be following in a mediation before proceeding. So I don't force participants into joint sessions. I also don't require people to share details of their private lives, or sit around the campfire and sing Kumbaya. But I do generally encourage parties and attorneys at least to think about doing a joint session at some point in the process. I also tell them we can retreat to separate rooms if they feel uncomfortable about continuing.

In Southern California, it's often an uphill battle to persuade parties and attorneys even to consider participating in a joint session. For some reason, joint sessions have a bad name here, unlike in a lot of other places where they are apparently still the norm. Maybe that is just the way the practice has evolved. Maybe it is because parties in mediation have somehow gotten the wrong idea about what is supposed to happen in a joint session. Or maybe it's because some of the mediators who still hold joint sessions are doing them wrong.

As an example of the common reluctance to engage in joint sessions, one of the attorneys in a case I mediated recently told me almost as soon as he walked into my office, that he disliked joint sessions and thought a joint session was out of the question in this case. That would exacerbate the conflict further, he told me. It would give each side an opportunity for chest-thumping that would only inflame passions on the other side. The parties were already angry enough with each other, and probably shouldn't be in the same room. This was far from the first time I've heard these perceptions expressed.

I responded that if we did decide to do a joint session, I didn't expect to see any chest-thumping. I had no desire to listen to each side's attorneys give a preview of their opening statement or their closing argument at trial. I don't think that is productive. Instead, what I suggested we might do in a joint session was to exchange information that might be helpful to resolution of the case. Information about the parties' respective future business plans, for example. Information supporting the parties' respective damage claims, to the extent that had not already been exchanged. Exchanging that kind of information directly across the table is often more efficient that requiring the mediator to go back and forth to convey questions and answers. It's also helpful to dispelling some of the suspicions and distrust that builds up between opposing parties in a lawsuit.

A second purpose is to allow the mediation to be conducted in a more transparent manner. Rather than wondering what is happening in the other room, each side can hear directly from the other side what is troubling them, and what is important to them. If mediation works by means of communication and understanding, that process is often facilitated by face-to-face contact. Not always, mind you. Sometimes parties are more receptive to having the mediator convey information indirectly. But you lose a lot of body language and emotional content that way.

Finally, in the ideal situation, a joint session can allow the parties to brainstorm together to design a solution to the conflict, rather than work at cross-purposes and in opposite directions. But it takes some time to break down the barriers of distrust and hostility that prevent parties from working together.

Eventually, the lawyer who adamantly told me at the beginning that he was opposed to joint sessions became so curious about what was going on in the other room, that he finally decided he wanted to go in and meet everyone, and convey to them some of the things that were motivating his client. And he did. And we eventually settled the case. With only a small amount of chest-thumping.


Thursday, June 26, 2014

Multi-tasking

Some interesting back-and-forth occurred during the last panel of the day yesterday at the 2014 ODR conference, when David Bilinsky, a legal practice consultant, described the high tech tools he uses in teaching law students. To oversimplify his presentation, these tools allow students to conduct side discussions during lectures in a chat feature that can be employed either during an online or even an in-person class. The theory is that these side chats can expand on the lecture, and reinforce learning by facilitating more interactive participation.

This idea rubbed some people in the room the wrong way, especially those of us who pre-date the online revolution and went to school in the days when teachers constantly told us to stop chatting with our neighbors and pay attention. Even though multi-tasking is now the norm, a lot of us still wonder whether it can really done effectively. Texting while driving, for example, has been known to cause a lot of deadly accidents.

This was the point in the program where the ideas behind using technology to increase efficiency and do things that we are not capable of in the real world, came into direct collision with one of the fundamental ideas behind mediation, which is that active listening and understanding are key to the success of that process. Especially if we are trying to teach conflict resolution and negotiation skills, where we need to impart the importance of paying close attention to what others are saying, staying attuned to the moment, and reflecting empathetically on what is being communicated, does it make sense also to encourage the listeners of those lectures simultaneously to chat with their fellow students about whatever related or unrelated topics may come to mind during the lecture? Well, said some of the panelists, students these days are doing that anyway. I understand that, but wonder whether what we really need to be teaching is how to put down the cell phone and the laptop and just listen carefully to what somebody else is saying without letting your own activities get in the way.





ODR 2014

Attending the 13th International Online Dispute Resolution Forum, being held at Stanford Law School, the first time the conference has taken place in the United States, offers a glimpse into the future of conflict resolution.

Ethan Katsch, dubbed the "father" of online dispute resolution, started the day by telling us that while it began as an outgrowth of ADR, ODR is developing into a distinct field with its own expectations, assumptions and values. I think this might be true, but I'm skeptical based on the evidence so far. Online tools are still mostly applied to allow us to conduct traditional litigation, arbitration, mediation, or negotiation, in more efficient ways.

As a number of speakers told the group, traditional practitioners are often highly resistant to online dispute resolution. John Pardun from JAMS said that about 80 or 90% of their clients are either unfamiliar with ODR or unwilling to use it. India Johnson, the CEO of the American Arbitration Association, mentioned that many of their panel arbitrators are highly resistant to technology. And Kent Walker, general counsel at Google, speaking about patent litigation, thinks that the difficulties of calculating the commercial value of patents, as well as the likelihood that they will be upheld in court, make these cases unsuitable for ADR or ODR. (I wonder about that, since I often find that the great uncertainties of litigation are helpful to mediated resolution of complex commercial disputes: if neither side is sure what something is worth, that leaves a lot of room for potential agreement.)

These attitudes are bound to change, and the change seems to be occurring from the bottom up, rather than the top down. One of the themes of the day concerned the vast numbers of disputes that are too small to be resolved by the traditional justice system, and ODR's potential to efficiently serve this vast market. Services like Rocket Lawyer, Legal Zoom, Smartsettle, Modria, and eLance, all of whom had representatives at the conference, have developed efficient ways of delivering conflict resolution services to parties for whom the traditional court system makes no sense. Many of these consumers are not well served by traditional ADR either.

Potentially this enormous under-served market could even absorb a lot of the lawyers whose workloads have been affected by the shrinking market for traditional legal services. Maybe there is hope that the dawning new age of robot lawyers will create some new opportunities for human lawyers as well.


Sunday, June 22, 2014

Conflict resolution

Mediators often describe the process they lead as antithetical to the traditional justice system. I do it myself, sometimes explaining to the participants in a mediation that we do things in mediation the opposite way from court. For example, I might point out that in a courtroom, the judge is the most important person, and arguments in court are directed at the judge; while in mediation the parties are most important, and arguments are directed at each other.

Mediators also sometimes try to persuade parties that the process is much better than litigation. Litigation is "bad" because it's expensive; or because it's adversarial; or because it produces far from perfect results. Mediation is "good" because it's consensual; or because it's cathartic; or because the parties control the outcome. I use these arguments myself sometimes, in an effort to persuade parties to resolve disputes in a mediated setting to avoid the pain and expense of continued litigation.

Rather than think of litigation and mediation as two competing systems, however, it might be more accurate to consider that they are both aspects of a more complete whole. When we choose to litigate, for example, we might be surprised to find ourselves in a less than wholly-adversarial process. Disputes between the parties in litigation--from something as mundane as getting an extension of time to file a pleading, to discovery disputes, to more substantive disagreements--are usually best resolved by a process of negotiation. Indeed, many courts require that parties attempt to meet and confer to resolve such disputes before bringing them before a judge. Many judges get very involved in settlement negotiations, or at least encourage the use of settlement conferences, or face-to-face negotiation to settle cases. And the vast majority of contested cases in litigation end in settlement, through a process of negotiation, not by trial.

When we choose to mediate, we do it with the backdrop of the court system and the entire body of legal principles and court cases behind us. We can disregard that backdrop if we choose, allowing the parties to reach results very different from the way the legal system might resolve them. But more often parties, their attorneys, and the mediator, all treat the traditional justice system as a touchstone to guide their private attempts to resolve the dispute. So we often find ourselves in mediation attempting to predict how a judge or jury might decide the controversy before us, assigning weight to the probabilities of an outcome in favor of one side or the other. Or the parties might make the same legal arguments they would make in court, arguing that the result should favor one side or the other because that is the result the law demands. In that situation the legal system can serve as a measuring stick to assess the fairness of a proposed resolution. Some mediators function very much like judges, advising the parties on how the case should be resolved under the law. And parties sometimes look to the mediator for an authoritative-sounding resolution.

It seems that in nearly every dispute, parties use a combination of adversarial and non-adversarial means to reach resolution, and parties always retain the full spectrum of tools at their disposal. So even when parties find themselves in court, they know they will probably negotiate their way out of court. And when parties decide to mediate, they still keep the hammer of the litigation system in their back pockets if they cannot resolve the dispute through mediation. In other words, mediation never operates completely outside of the traditional legal system. Even when we try to ignore it, that system always intrudes, like an elephant in the mediation room.

One reason I decided to change the name of this website to "Conflict Resolution" is to recognize that the process of conflict resolution is all of a piece. Just as von Clausewitz recognized that war is the continuation of politics by other means, so litigation is merely a more adversarial form of conflict resolution. We need not view either litigation or mediation as "bad" or "good," nor see the two competing processes as in irreconcilable conflict with each. They are both tools, to be used as appropriate, to help resolve conflict.

Thursday, June 12, 2014

Patent litigation

While not very impressive grammatically, the statement published today on Tesla's website that "all our patent are belong to you" might have some earthshaking consequences in the intellectual property world. Tesla has decided that in the interest of developing an electric car market and battery infrastructure, they will no longer bring patent infringement lawsuits against anyone using their electric car technology in good faith. Perhaps there is an element of "save the world" altruism in this gesture, as Tesla claims to be motivated by a desire to get all gasoline-powered vehicles off the road. And Tesla acknowledges that they themselves can't possibly build enough electric cars to accomplish that goal. But Tesla's new policy also seems like a remarkable recognition that the usual strategy of protecting intellectual property rights for the purpose of preventing competition or obtaining license revenue, might actually be counter-productive to Tesla's interest in building the electric car market, and creating the necessary support network of charging stations that will sustain it. Non-enforcement might be better for business.

Will Tesla's new stance cause other companies to re-think the value of enforcing their patent rights? Quite possibly if the patent-holder is, like Tesla, trying to expand the market for its products, and encourage the development of related technology. But even apart from that situation, some patent holders might well question whether the pursuit of patent infringement claims is worth the enormous cost and risk, and whether a more open approach to technology might better serve companies' business interests. Elon Musk's explanation of his company's new policy recognizes that receiving a patent often only buys you a ticket to a costly lawsuit, something that many other patent-holders have learned the hard way.

I'm not necessarily endorsing Tesla's new strategy for everyone, as it probably doesn't make sense for a lot of businesses, and I'm not sure whether it's good for my business either. But the question whether to pursue litigation to enforce or defend against intellectual property claims, as opposed to some other strategy, is always worth careful consideration for every business on either side of the issue.

Saturday, May 31, 2014

Confidentiality and due process

Can mediation confidentiality threaten a party's right to due process? A recent case out of the Central District of California, Milhouse v. Travelers, currently on appeal to the Ninth Circuit, held that the due process rights of a party can override the parties' agreement, and a state evidentiary rule precluding the admission in any subsequent proceedings of statements made in mediation. The district court allowed an insurance company being accused of bad faith refusal to settle a claim, to introduce evidence of the plaintiffs' demands made during a mediation, for the purpose of showing that it was the plaintiffs, not the insurance company, who were acting unreasonably.

Generally in California mediation confidentiality is treated as sacrosanct. Maybe a little less sacrosanct in federal court than in state court, but confidentiality is still highly protected in both systems. Courts understand the value of mediation in helping to resolve disputes. They also understand that parties are often reluctant to participate in mediation unless they can be assured that the statements they make in mediation will not be used against them if the case fails to settle and ends up in trial. Confidentiality allows parties to make admissions without fear they will be bound by them at trial, and to disclose information without having their statements used against them. But confidentiality also protects parties who take unreasonable negotiating positions during mediation. Parties deciding to mediate rely both on their freedom to make concessions, as well as their freedom to refuse to settle, without either stance being held against them later.

In the Milhouse case, the insurance company wanted to justify its conduct toward the homeowners seeking payments under their policy by showing that they were making extravagant demands during the mediation. The court decided that it was only fair to allow a party accused of bad faith to introduce evidence that the other side was acting unreasonably. But once the door is opened to allow statements made during mediation into evidence, it seems difficult to limit how wide that opening should remain. What is the scope of a "due process" exception to the generally strict protections for mediation confidentiality? And how would such an exception change parties' willingness to participate in mediation?

From the court opinion, it's difficult to discern on what basis the court concluded that due process demands that a party accused of bad faith must be allowed to introduce otherwise inadmissible evidence to rebut that claim. We don't allow exceptions to other evidentiary privileges, such as attorney-client or spousal privileges, even where the evidence obtainable from that source might determine the outcome of the trial. We don't generally consider due process violated by rules that exclude all kinds of potentially helpful evidence.

The district court's opinion also fails to articulate a "rule" that would provide the necessary certainty for parties to preserve their expectations of confidentiality in mediation. Would it be limited to insurance bad faith cases? Or would anyone be able to claim that their due process rights were being violated if they were not allowed to offer evidence of statements made during mediation? While it's true that mediation confidentiality can sometimes provide a shield for bad behavior, it's difficult to see how we could remove that shield without destroying mediation confidentiality entirely, and that could dissuade many people from using mediation in the first place.

Tuesday, May 27, 2014

The business of mediation

An article in the spring issue of the ABA's Dispute Resolution magazine (Maurits Barendrect and Christopher Honeyman) sets out some daunting statistics on the overall size of the market for ADR services in this country. The number they throw out is $500 million in billings annually. That sounds like quite a lot, but it includes arbitration as well as mediation. And in comparison to the market for legal services, the ADR market is still minuscule, approximately equal to the annual billings of the 50th largest U.S. law firm. Moreover, the top two commercial providers, the AAA and JAMS, account for more than two thirds of this market.

For someone hoping to make a living, or even a partial living, as a mediator, these statistics tell us that it's a difficult field in which to succeed. Unless an aspiring mediator already has a broad reputation (as for example, with some distinguished retiring judges), or an established list of referral sources, it generally takes years to start building any kind of viable mediation practice. It's a small and crowded field.

All is not lost, however. For one reason, the market for ADR services appears to be growing substantially. While the use of mediation and other ADR processes has become much more prevalent over the years, the public is still only dimly aware of these means of obtaining satisfaction in conflict. Greater public awareness of the benefits of mediation will likely expand the market. Also, as the authors of the Dispute Resolution article point out, wherever there is some push from the court system or the legislature toward mediation, the market can expand dramatically, as happened for example, when Italy instituted mandatory mediation of civil cases.

In contrast, the market for legal services in general appears to be shrinking. So however dim the prospects seem for finding work as a mediator, we can at least expect that the demand for mediators will continue to increase (perhaps not as fast as the number of people trying to enter the market, but increasing nevertheless), as opposed to the legal profession as a whole, where technology and other factors have been reducing the demand for lawyers.

It's also important to remember that becoming a professional mediator of litigated disputes is not the only career path for those who wish to put their mediation training to good use. Mediation skills can be applied in a wide variety of contexts. In fact, in dealing with almost any inter-personal situation, it's helpful to know how to listen, how to empathize, how to negotiate. Whether in their place of employment, or in business negotiations, or in resolving conflict among family members, people who have studied mediation and negotiation are likely to use those skills every day in whatever situation they find themselves. In my own litigation practice, I find myself using mediation techniques constantly, both as a result of my training and experience as a professional mediator, and as a result of changes in the practices of litigation that emphasize the negotiated resolution of most cases.

The Dispute Resolution magazine article paints mediation as a disruptive business. I wasn't sure what that meant until I read another article this week about the difficulties Microsoft has been having breaking into the market for tablets and smartphones. Because Microsoft built its business on designing operating systems and software for PCs, they have a tendency to try to make every new system work like a PC. But the newer portable devices aren't meant to work like PCs. They lack a lot of the capabilities of a PC, but they greatly simplify the tasks they are good at performing. That's what makes them a disruptive technology. So according to Microsoft's critics, unless Microsoft abandons its efforts to cram the Windows operating system, and Microsoft Office software into its tablets and smartphones, the company is going to have difficulty adapting to these new technologies.

Mediation lacks a lot of the infrastructure--rules, forms, procedures, rights--that characterizes litigation. Litigation can thus be analogized to the PC business, and mediation represents a new, disruptive technology. Mediation is not going to up-end the traditional model of conflict resolution as quickly as happens in the tech field--and after all, those traditional dispute resolution processes have been around for several thousand years--but it is slowly transforming the practice of law, and finding other new applications. If we think of the "mediation business" in a broad sense, to encompass the incorporation of conflict resolution skills in a variety of contexts, an awful lot of people are succeeding in the field--far more than the number who make a living as professional neutrals. And the field is still expanding.