Friday, November 25, 2016

Lost in translation

How do we know whether those with whom we are dealing have hostile intentions? How do we establish communication with them? How do we develop trust? The new science fiction movie Arrival addresses these common problems in conflict resolution.

Confronted by forces that appear new and dangerous, our human instincts urge us to fight or flight. Those instincts may also lead us to interpret ambiguous gestures in a threatening way. We face these challenges even when we are dealing with people we know who are speaking our language. Imagine being confronted by an alien race that communicates with symbols we have no key to interpret. The movie nicely illustrates the linguistic complexities involved in asking a simple question like, "What is your purpose here?" It also shows what can happen when communication is misinterpreted. Did the aliens really use a word meaning "weapon"? Or did they mean "tool"? A lot rides on getting the right answer to this question.

The film attempts to make some larger points about language, arguing that the language we speak can actually affect the way we think. The idea that learning a new language might also awaken some new abilities in ourselves takes this point to a more magical level. But sticking to the known and  familiar, we know, when we try to resolve conflicts across cultures, that different cultural norms and habits can affect the way people perceive a problem. The way people of different backgrounds express a problem also affects the ways they approach solving it.

Not only does this film show just how difficult it can be to establish communication, it also preaches the virtues of collaboration over competition. The problem presented by this story can only be solved by twelve different nations working together and sharing information. Once these groups start distrusting one another and withholding information, they risk war. So it's a film that works both on the micro level of establishing communications between two parties who have difficulty understanding each other, and on the macro level of building world peace.

Tuesday, November 22, 2016

Election

Senator George Mitchell, the architect of the Northern Ireland peace agreements, spoke at the SCMA Conference the Saturday just before the election. Not knowing or making any assumptions about who would win, Senator Mitchell addressed what we, and the next president, need to do next to help bring us together and solve some urgent problems. He stressed the importance of listening to opposing views, and working together to find consensus on policy issues. Our political system is supposed to encourage that kind of cooperation because our system of separation of powers, unlike a parliamentary system, rarely puts one party in total control of the government. So what tends to result when the two parties fail to cooperate is political gridlock. That just makes voters even more disgusted with the political process, and even less interested in cooperation. It's a vicious cycle.

Since the election, I see few signs of adversaries reaching out to work with political opponents. President Obama has been gracious and cooperative, but he is about to surrender power. On the Trump side, the names being floated for Cabinet and White House positions do not inspire much confidence that the Trump White House will act in a conciliatory manner. And on the Democratic side, we are already hearing much talk about engaging in the same kind of total opposition to anything the president proposes that the Republicans have engaged in for the past eight years.

While the instinct for payback is natural and understandable, those combative tendencies are not necessarily politically smart, or good for the country. Talk of complete resistance to anything the new government proposes may only increase its authoritarian impulses. Instead we still need to make an effort to listen to opposing points of view, and find points of agreement where we can. We need to have faith that respect for the rule of law will be strong enough to prevail against the most potentially dangerous proposals of the incoming administration. And the new administration needs to make good on early promises to unify the country.

Tuesday, November 8, 2016

Public Meetings

Dorit Cypis put together an interesting workshop at the SCMA conference this past weekend, in which participants explored the power of forming small groups to engage in dialogue. This format has been used successfully in a number of contexts to allow different points of view in a community to be expressed and understood. (See my post below on the Days of Dialogue programs on the future of policing.) It works because the participants in these groups learn to see one another as human beings They feel safe in telling their stories and expressing their feelings because they are taught to listen respectfully when other members of the group do the same. The topic in our small groups at this conference was the very process in which we are engaged. In other words, we were encouraged to talk about our civic interests and experiences, and the tools we could bring to bear to facilitate dialogue on public issues.

Last night I happened to attend a public meeting in my neighborhood sponsored by the Army Corps of Engineers and attended by other interested groups, to talk about plans for a nearby stretch of the LA River. They did not set up the room with round tables inviting random members of the community with varying concerns to engage in dialogue with one another, the format we were exploring over the weekend. But they also chose not to use the typical public meeting format either, where members of the audience are situated in opposition to officials who sit in the front of the room, and given a few minutes in front of the microphone to voice concerns to the people with authority. Instead the sponsors of the meeting employed a hybrid format where a number of tables were arranged around the auditorium, staffed by groups with different areas of expertise and interests who could answer questions from the public.

At least one member of the public was upset by this format. At the end of a short introductory message, where a Corps spokesman explained they would not be taking questions from the floor, she stood up and loudly protested being denied the right to publicly ask her list of questions, crying out, "This is supposed to be a public meeting!"

As much as we recognize the limitations of the traditional format of public meetings, it seems that some members of the public, and perhaps some officials also, actually prefer a confrontational style. Perhaps they feel that an "on the record" format is the best way to hold their officials accountable.  Or perhaps they simply enjoy engaging in confrontation rather than dialogue. I didn't get a chance to ask the woman who was unhappy about being denied the chance to stand up in front of everyone and ask her questions publicly, why she felt that was so important. But the episode did make me realize that it may go against the grain for at least some members of the community to ask them to eschew confrontation and conflict and instead engage in dialogue and collaboration.

I also learned that the thing that members of the public such as myself think of as the river bike path is instead thought of by the Army Corps of Engineers as an access road to a flood control project, that they allow the city to use as a bike path. A number of meeting formats can allow these different conceptual views to be expressed. I continue to believe, however, that a more collaborative process is best for designing solutions that serve all legitimate interests.

Monday, October 3, 2016

Voting against peace

On Sunday voters in Colombia surprisingly rejected a peace agreement that took the parties years to negotiate. The agreement would have ended more than 50 years of a civil war  that has pitted the government against the rebel FARC army. This setback for the cause of peace comes the same week that Israel buried Shimon Peres, one of the country's great peacemakers, the same month when a hard-won ceasefire in Syria seems to have collapsed, the same year that the United Kingdom voted to pull out of the EU treaty that has helped keep the peace in Europe for a generation, and the same year that has seen the growth around the world of nationalist movements, and of fears of trade and foreigners. In the United States, our political system has been disrupted by a campaign based largely on opposition to trade, hostility to outsiders, and distrust of diplomatic solutions to foreign conflict.

What is going on? Are people tired of making the compromises necessary to obtain peace? Is the world suddenly in a more warlike mood? Do people prefer to maintain their principles, their grudges, their hatreds? Or are we simply facing an upsurge in second-guessing the results of negotiated agreements, based on popular distrust of political leaders? Many people who did not participate in the negotiations of the Colombia peace agreement, just like the Iran disarmament agreement, or the TPP for that matter, apparently believe that better deals may be obtained if their side just acts "tougher" at the bargaining table.

In the case of Colombia, it is understandable that a generation that has grown up with violent conflict is reluctant to let go without a more satisfactory settling of scores. Opposition to the peace agreement seems to be based on a combination of distrust of the enemy the nation has been fighting for so long, and an unwillingness to accept its members back into society. The former president of Colombia, an opponent of the treaty, said that peace is an illusion, and that the proposed peace agreement was too forgiving of the rebels.

The good news, though, is that both sides in Colombia seem to be tired of fighting, and agreed at least on the idea that violence is not the best solution to conflict. Perhaps they will at least lay down their arms, even if they haven't yet been able to come to terms that their constituents will accept.



Friday, September 30, 2016

Meet and confer

For those who still think that litigation must always be conducted in an adversarial manner--that litigants must oppose anything suggested by the other side, and bring every dispute before the court for resolution--consider that the courts are telling you otherwise. It's not just that the courts routinely encourage settlement, and discourage trials; it's also that they have changed the rules to compel efforts at negotiating rather than seeking judicial resolution of problems that occur during the course of a lawsuit. It's almost as though the courts don't believe in the process they are designed for, because they are requiring you to engage in a different process first.

Meet and confer requirements have been around for a long time with respect to discovery disputes. Litigators understand that judges don't want to be bothered with the laborious and nit-picky task of deciding whether parties have given adequate responses to interrogatories and document requests. They don't want to referee attorneys' conduct during depositions. They don't want to order people to turn over information that they should have turned over voluntarily. Lawyers see the sense of requiring efforts to resolve those problems without the court's assistance before filing a motion to compel or for a protective order.

But many lawyers trained with an adversarial mindset treat the meet and confer requirement as just another opportunity to engage in combat rather than give-and-take. Many "meet and confer" sessions are initiated by letters that take the form of an ultimatum rather than an invitation to negotiate. Many lawyers think they can satisfy the meet and confer requirement by sending such letters without even having a telephone meeting with their adversary, and without making any effort to explore consensual resolutions. That type of conduct, because it is not a good faith effort at an informal resolution of the dispute, has been held to violate the rule. Obregon v. Superior Court, 67 Cal.App.4th 424 (2d Dist. 1998). Nevertheless, adversarial habits are hard to break, and many lawyers continue to treat the meet and confer requirement as merely a hurdle on the way to an inevitable motion to compel, a motion that can only be avoided by the other side's capitulation to the aggrieved party's demands.

The obligation to meet and confer, which applies to nearly every motion filed in federal court, has been extended this year in the California state system to apply to demurrers as well as discovery motions. C.C.P. Section 430.41. Like discovery motions, demurrers are another form of motion disliked by many judges. Demurrers rarely do much to move the case along, usually resulting only in an amended complaint, but do give the parties an opportunity to spar over the adequacy of their compliance with arcane pleading requirements. I'm not saying that pleading sufficiency is never important, but I am saying that most of the time, the parties should be able to work out these pleading issues without the assistance of a judge. That is what the courts are now telling parties they must do. If we heed the spirit as well as the letter of these rules, then lawyers and litigants should be attempting to resolve all aspects of their disputes in a constructive, problem-solving manner.

Thursday, July 14, 2016

Fear

Someone renting the house across the street from us has been blasting loud music very late at night, and I've been wondering how to deal with it. The other night when he woke us up at 2 am, I wanted to go knock on his door, but I was afraid that might cause an ugly confrontation. Should I call the cops? Should I leave a note in his mailbox?


I participated as a facilitator last night in another of the Days of Dialogue sessions being held around the city this year, on the very timely topic of the future of policing. One of the subjects my table discussed was fear: for example the fear claimed by police officers who have sometimes pulled the trigger on an unarmed suspect. Is that fear justified? Are better means available of de-escalating those situations?  We also talked about the fear of confrontation that sometimes causes people to shy away from talking to others with whom they find themselves in conflict. The police officer at our table suggested that many problems can be resolved directly between members of the community. Calling the cops should not necessarily be the first step, since that can sometimes cause a dispute to escalate. It's the same in the law business, I added. Many conflicts would be best resolved directly between the parties, before calling in their lawyers. Many of the lawsuits I've been involved with over the years have been perpetuated because of the parties' fears of communicating with one another, and the misunderstandings that this lack of communication creates. In that connection, I couldn't help but mention the little problem I've recently been having with my noisy neighbor, and how I was nervous about trying to resolve it myself.

Inspired by the police officer's comment, when I heard my neighbor this evening at it again in his makeshift garage recording studio, I worked up the courage to walk over and introduce myself. I met his dogs, his house guests, and then the offender finally came upstairs. I pointed out that he might not have realized that my bedroom faces the street directly across from his garage, and that especially at 1 or 2 in the morning, I didn't appreciate being awakened by his music. Maybe headphones would be a good idea. He apologized. He thanked me for coming over. He promised to keep it down. We shook hands.

We talked about much bigger problems at last night's Days of Dialogue session than loud music: The burdens of history; the implicit biases that can often steer us wrong; the corruptions of power; and other weighty and important issues. It was an informative, and even healing program for a lot of people. It proved once again that the format of small groups of people sitting at round tables talking and listening to one another's perspectives, has enormous power to resolve conflict and promote better understanding.

As a bonus, I obtained the immediate practical benefit of solving one small problem for my family. I was not expecting that just thinking and talking about these issues would have such an immediate payoff. But fear of confrontation is no small part of the cause of conflict and violence in our society. Trying to find a safe way to communicate with adversaries we are often afraid to confront is no small part of the solution to resolving conflicts and reducing violence.


Friday, June 10, 2016

Fighting

In the highly-charged atmosphere of our current political season, is more fighting really what we need? Senator Elizabeth Warren evidently thinks so. Here is a portion of Senator Warren's comments on the Rachel Maddow show last night, when Warren explained why she is endorsing Hillary Clinton for President: 

Hillary Clinton won . . . because she’s a fighter . . . . And I think this is what we need. . . 
As a Democrat, one of the things that frustrates me the most is there are a lot of times we just don’t get in the fight. We ask pretty please if we can have things or we make the argument for why it is the best thing to do, and then wait patiently for the other side to agree to come along. We negotiate. We start our opening position by negotiating.
You know, and I get that. I get the reason that you should be willing to negotiate sometimes. But you also ought to be willing to throw a punch.
It's an obvious dig at President Obama, often criticized from the left for being too willing to make concessions to adversaries in advance.

And it's no surprise that all of the candidates for president this year present a more combative image than the one our current president projects. It's conventional wisdom in political circles that the public usually wants a president different in personality from the current one, and that may be one reason none of the current candidates are running on a platform that emphasizes looking for common ground with one's adversaries.

If anything, Bernie Sanders has run a campaign even more
combative than Hillary Clinton's, railing against the rich and powerful, and frequently talking about how the struggle or the revolution must continue. Donald Trump has openly encouraged violence from his rally attendees, delights in name-calling, and brags about the tough approach he promises to take with trading partners and foreign enemies. His idea of negotiating sounds more like bullying.

Strangely enough, however, the broad public doesn't seem all that enthused about any of these fighting candidates. President Obama remains our most popular national politician. Looking back on his record in office, even his critics would have to acknowledge that he got a heck of a lot done, in the face of relentless opposition, by always being willing to negotiate with and work alongside his political opponents, instead of always fighting them.

Saturday, May 21, 2016

Pre-litigation dispute resolution

More evidence that the practice of law has changed in fundamental ways: At a panel presentation this week at the SCMA Employment Mediation Institute, Ann Kotlarski, who represents employers and Curt Surls, who represents employees, both agreed that they prefer to resolve employer-employee disputes without litigation if possible.

Surls said that he always sends detailed demand letters setting forth the factual background his client has presented, as well as the legal basis for his client's claims, before filing a complaint. These letters usually do not contain specific monetary demands, but  do include an invitation to mediate the dispute. Kotlarski also initiates attempts at early dispute resolution. She always calls the plaintiff's attorney as soon as she gets a complaint or a demand letter, among other reasons to express interest in discussing settlement. Her practice is to suggest that the plaintiff's attorney send her a written demand, preferably using a non-antagonistic tone, that she can pass along to her client to get the ball rolling on settlement. When she is able to initiate an early settlement conversation, about half the time the discussions take place between counsel only, and in the other half the parties employ a mediator.

The advantages of this protocol are fairly obvious. Since most disputes are eventually likely to be resolved by negotiated agreement, often at a mediation, why not go there first, before incurring the costs and emotional turmoil of litigation, which only creates new opportunities for conflict before resolving the pre-existing one? Avoidance of cost is particularly important for employers in wrongful termination and other employment disputes, where attorneys' fees provisions are prevalent. Resolving disputes without initiating litigation is also beneficial for employees, whose career prospects are often severely hampered when they sue their former employer. With most court filings now easily accessible online, and searchable by anyone who makes hiring decisions, it is particularly important for employees to avoid litigation if possible.

Of course there are cases in which information must be exchanged before one or the other party is in a position to agree to a settlement. But in many of those cases, that can be done informally, without involving court processes like document requests and depositions. And of course there are also cases where the stakes are high enough and feelings strong enough that litigation is necessary. What is not necessary, however, is to start every routine employment dispute by filing a charge or a complaint.

talkurbex.com

Thursday, April 21, 2016

Four clients


The wise client approaches the initial consultation with a lawyer with some ideas of what the client is trying to accomplish and with some perspective on his or her own situation. For such clients, the lawyer should be prepared to explain carefully how the process is likely to unfold, and help the client better understand their options. A lawyer can be confident that a wise client will listen carefully and trust the lawyer's advice. But not all clients are wise.

The simple client, for example, will come in for an initial consultation feeling aggrieved and agitated but uncertain what they are trying to accomplish or how to go about it. For example, an individual might believe they have been fired from their job unfairly, but have no idea what remedies might be available or whether they are worth pursuing. These clients tend to spew out a long, convoluted story that recounts in great detail all of the circumstances giving rise to their injury. For such clients, the lawyer must try to listen patiently, but their legal training teaches them to sift through the story trying to find elements of potential legal claims in it, while ignoring other parts that do not support a cognizable claim. Lawyers often try to educate this kind of client on those elements, in an effort to get them to focus on facts that are necessary to proving available legal claims. The lawyer might point out, for example, that unfair business decisions are not necessarily actionable, unless they were made for an improper purpose, such as discrimination based on age or sex or ethnicity. That prompts the client to see the story in a somewhat different way. In the process, a lot of what the client initially thought was important gets left on the cutting room floor, and the resultant story, while legally coherent and based on facts that that lawyer and client think they can prove, may not end up satisfying all of the client's concerns.

Lawyers might be better advised to figure out an appropriate way to present the client's actual grievances to the other side, rather than compressing them into a narrative judged only by whether it states a provable legal cause of action. Because, after all, most of the time the merits of the legal claims are never going to be finally adjudicated anyway, since the vast majority of cases end up getting resolved by negotiated agreement. And to reach that negotiated agreement we often have to bring back into the picture some of the client's concerns that got left out of the initial framing of a legal complaint. Those concerns might even prove more compelling to the other side than the story the law encourages parties to contrive.

Then there is the wicked client, who comes to a lawyer having already framed their problem into the shape of a legal dispute. What they want to know is how their claim is going to be decided. Are they right or wrong in thinking that the court is going to favor their obviously justified actions, and punish the dastardly conduct of the other side? Or less often, they might express worries that the court will find them liable for their actions. For these clients, the lawyer's training teaches them to advise the client on the merits of their legal claims and defenses, and the factors that might affect their adjudication. Even though lawyers hedge their bets with many caveats and uncertainties, they also need to show the client that they are capable of acting as a strong advocate for their cause. They must show sympathy for the client's view, and they must try to make the strongest case they can, even while pointing out potential obstacles along the way. What the client hears from this discussion usually tends to vindicate their initial point of view. They now feel armed with even more legal arguments that they can use to vanquish their adversary. They tend to discount the facts and arguments that might favor the other side.

What lawyers should more often be emphasizing to this latter group of clients, however, is that in the vast majority of cases, it is unlikely that any court or tribunal is ever going to determine the merits of their dispute. Because, as stated above, cases tend to get resolved by negotiated agreement. So the wicked client's belief that they are going to win the case may not be as important as they think. Instead of pounding the other side with the righteousness of their cause, they should be thinking of what tools they can use to help bring the case to a favorable resolution. The wicked client needs a better understanding of how the other side views the dispute, and how to satisfy the other side's needs and interests to bring the case to resolution.

Finally there is the client who does not know how to ask. This client may be shell-shocked: injured in an accident, facing separation from a spouse, feeling deceived in a business transaction. The lawyer needs to answer questions for this client that the client does not even know how to formulate. At the same time, the lawyer should try to help this client articulate their own needs, otherwise the lawyer is in danger of presuming knowledge of what the client wants, and substituting his own ideas of what the client's goals should be for the client's actual goals.

Even though there are four (at least) kinds of clients, just like there are four kinds of children addressed at the seder table--and most clients, like most children, combine aspects of all four types--they are all really asking the same question, which is what does this all mean and what is my part in it. And we should be trying to answer them in a way that does not encourage their worst tendencies, but instead helps them to figure out what interests and needs are most important to them, to develop some perspective about the situation, and to achieve a positive resolution.

Saturday, April 16, 2016

Avoiding Litigation

The ABA Dispute Resolution conference, held this year in New York City, presents an interesting mix of programs on mediation, arbitration, negotiation and collaborative practice. The conference manages to combine these fields, even though the cultures of mediation and arbitration don't always mesh very well; in fact they sometimes seem like opposites. But practitioners in both fields seem to get along. What they have in common is the desire to avoid litigation. Having a common enemy makes friends of us all.

Thus, at one of the panels I attended, in-house counsel acknowledged that they require employees to sign arbitration clauses so that the company can avoid the burden and expense of class action lawsuits. Mediation or arbitration of employment disputes is also encouraged to avoid the costs of ordinary litigation, especially the cost of discovery disputes. At another session, the benefits of early dispute resolution were mainly described in contrast to the enormous expense of motion practice and document production found in litigation. These concerns are valid, and it is absolutely correct that ADR can and should be promoted as a faster and cheaper alternative to litigation. But perhaps more attention should be paid to the question whether we can reform litigation--the "normal" conflict resolution process--instead of treating it as the bogeyman.

When I hear attorneys and clients complain about the high cost of discovery and motion practice in litigation, my first thought is that we should attack that problem more directly. We could greatly improve the court system by reducing the number of motions filed, and the amount of discovery sought. Most of those efforts are wasted anyway. Those pre-trial battles usually do not help much in the assessment of settlement options. They may even cause so much negative reaction from the other side that they hinder settlement. And even for the relatively rare cases that go to trial, trial counsel usually find that the boxes containing all those discovery disputes and other pre-trial motion practice are hardly ever opened. I firmly believe that if litigators could learn to find common ground where possible with their adversaries, instead of reflexively opposing everything the other side says, we could remove much of the waste and negativity that pervades litigation. We could also achieve better results for clients by negotiating the resolution of disputes within lawsuits, especially discovery disputes, rather than asking the court to decide them all, and we would save clients a lot of money by doing that.

But even if we were to assume that all of the expensive discovery and motion practice in the court system were necessary--and much of it unfortunately is necessary or unavoidable--it still seems to me that we are selling ADR short by selling it only as an alternative to a costly and inefficient litigation system. We ought to be touting the positive benefits of mediation and other negotiated resolutions of conflict--the opportunity for parties to control the outcome, to achieve greater understanding of the opposing party's interests, to resolve disputes in a more constructive way--instead of suggesting that we like ADR just because it is faster and cheaper than litigation.

If all we wanted was a cheaper and faster means of resolving disputes than presented by the court system, we could roll dice to determine outcomes. The process of dispute resolution must have higher aspirations than simply finding a cheaper and faster alternative to litigation.