Wednesday, April 26, 2017

Mediation and Justice

At the ABA Dispute Resolution Conference, I had a chance to hear a panel of experts from around the world talk about different ways of viewing the mediator's role in helping achieve a just result for parties using the process. In China, which has a couple of thousands of years of experience using variants of mediation, the mediator's role in this regard is viewed very differently from the west, where the practice is of relatively recent vintage. There, mediators have the power, even the duty, to make sure that the result accords with legal norms, and can even prescribe a different outcome from one the parties express. In countries such as the UK, Australia, and the US, on the other hand, mediators are usually admonished to avoid interfering with the parties' choices, although there are situations where mediators should consider withdrawing if they feel an unjust outcome is being perpetrated on one of the parties.

What is justice, anyway, and do we know it when we see it? Generally my feeling when I act as a mediator is that the parties are probably in a better position to assess the fairness of their agreement than I am, and therefore I should not be imposing my own views on their process. Mediators do not have possession of all the facts, and should not presume they have any better insight into the "correct" legal result of any given dispute than do the parties themselves or their own attorneys whose job is to compare the results their clients can achieve by settlement to the results they can achieve through litigation. Nor should we assume that the legally mandated result, to the extent we can even discern what that is, is necessarily more fair to the parties than the result they arrive at themselves. One thing we can suggest to parties is that the available alternatives to a negotiated agreement are not necessarily going to produce a more "just" result. All we can do is forecast a range of possible alternative outcomes, and attempt to assign probabilities to them, in the event the parties are unable to reach agreement. We can also suggest that negotiated resolutions serve other valid interests in addition to justice. Peace, for example. Efficiency, for another example.

It's useful to recognize, as these panelists suggested, that the mediator has a powerful role in influencing the outcome, whether we try to do that consciously or not. We should also be concerned that mediated outcomes may sometimes reflect power imbalances between the parties, or be impacted by a party's ignorance of their legal rights. Whether we can or should do anything about those problems is still open to debate.

Thursday, April 20, 2017

Dispute Resolution Protocols

It's not enough to suggest that in resolving disputes, we ought to encourage the use of mediation or negotiation or some other techniques that are preferable to a long, drawn-out lawsuit. Litigants often are not comfortable enough with ADR to resort to it as a first method. Mediation for example has developed a reputation as something parties should not normally resort to until the case has been litigated for a time, to provide the parties enough information to make mediation effective, and to give them enough experience with litigation that they will be motivated to want to avoid more of it. But litigation is such an expensive and destructive process that it seems a shame to require parties to suffer through it. Since they're usually going to come to a negotiated resolution eventually anyway, they ought to start down a more constructive path.

What is needed is a well-thought out dispute resolution process complete enough to serve as an alternative to litigation, instead of relying on litigation as the default method and then initiating mediation or settlement negotiation somewhere in the middle as a break from routine. That process would include a better method of initiating conflict resolution than a summons and complaint (I have suggested developing a new form of notice of dispute, but a demand letter can also serve the purpose), a cooperative exchange of information less cumbersome than traditional discovery, and a series of meetings to reach agreements. The process should allow vigorous advocacy, but should be cooperative rather than adversarial, problem-solving rather than destructive, and encouraging of agreement rather than encouraging of more disputes.

Collaborative lawyers have already figured out how to conduct such a process from start to finish, but that process is mainly confined to the family law field, and it is not clear that other civil lawyers would take to it. The distinguishing feature of collaborative law is the participation agreement, which generally requires the attorneys to withdraw from the case if the parties are not able to reach agreement, something that other civil lawyers are loath to do.

At the ABA dispute resolution conference, I attended two presentations that presented viable alternative systems. One was by a task force that has been working for several years on developing a process they call Early Dispute Resolution. They identified six steps in the process:

     1-Preliminaries: creating incentives and approaching the process in good faith

     2-Early Case Assessment: setting deadlines to collect documents and witnesses

     3-Information Exchange: obtaining needed documents and witness interviews from the other side

     4-Informed Judgment: evaluating the strengths and weaknesses of the case

     5-Expert advice:obtaining expert assistance when necessary, preferably jointly.

     6-Negotiation or mediation: meeting to attempt to reach resolution

Members of the task force stressed the advantages of attempting to reach settlement in about 60 days, as opposed to the time and expense of the typical litigation timeframe, but speed is not the only selling point of their suggested protocol. Such a method should also reduce the stress and unpleasantness of typical adversarial litigation, help preserve relationships between parties who might have repeated conflicts, and lead to more satisfactory outcomes than those that are sometimes only justified as a way of putting destructive litigation to an end.

Lainey Feingold offered a second dispute resolution protocol she calls Structured Negotiation, which is also the title of her book. Her method was perfected in the resolution of disability rights cases, but should be applicable elsewhere. Instead of starting lawsuits on behalf of blind or discriminated-against clients to obtain redress under civil rights statutes or the ADA, her organization attempts to reach agreements that can obtain the same relief her clients would otherwise be able to obtain, at less cost and more satisfaction to the companies whose practices they are trying to reform. The process includes the following steps:

      1-Opening Letter- not a typical demand letter, but an invitation to participate in a dispute resolution process

     2-Ground Rules- a structured negotiation agreement that includes confidentiality provisions, a tolling agreement, and a provision for plaintiffs' attorneys fees if the negotiation is successful

     3-Sharing Information-a mutual exchange of documents and other information

     4-Expertise-Retention of a joint expert if needed

     5-Meetings-A series of discussions between the parties, possibly with the aid of a mediator

     6-Written Agreement- Commitments to remedy the deficiencies and the payment of damages and attorneys' fees

Feingold stressed the importance of patience and persistence in this process, concepts that are very familiar to mediators, as well as the importance of adopting a cooperative problem-solving mindset, instead of an adversarial approach. She did not sell this approach so much on speed, as the Task Force did, and in fact recognized that it can often take many months even to bring their adversary to the table without the aid of sanctions or other court processes.

As one might expect, there is a lot of overlap between the suggested approaches. It is exciting to watch the development of full-blown, start to finish procedures that can be used as a viable alternative to traditional litigation. There probably should never be hardbound "rules" to guide such processes--the idea of rules and sanctions is antithetical to a cooperative approach to dispute resolution--but there is a crying need to promote the more widespread use and familiarity of tools that can guide dispute resolution in a wide variety of contexts.

Saturday, March 25, 2017

Compared to what?

In my sometimes over-simplified way of looking at negotiated agreements, I have argued that the most useful way to evaluate a potential deal is to compare it to alternatives that are actually available. Do not compare it to the deal that you think your side is entitled to, but instead compare it to whatever is likely to happen if you don't make a deal. When nations are considering entering into peace treaties or trade agreements, for example, it's generally not helpful to evaluate their benefits by comparing them to the best agreement your side might want. Instead look at whether the deal on the table is a better alternative than not making any deal at all. The same with settlements of litigated disputes. Don't compare a proposed settlement with the best possible result you might hope to achieve at trial. Instead just compare it to the costs and risks of continued litigation, and consider the whole range of possible outcomes and their likelihood.

Following this logic, the failure of the House of Representatives to pass the "Repeal and Replace" bill offered by House leadership and the Administration is difficult to understand. Republicans, especially in the House, have been saying for years that Obamacare is a disaster, and have repeatedly voted en masse to repeal it. Now that they finally have a president of their party who would presumably sign a replacement plan, they should have been able to come to agreement on something that they would all agree is preferable to the current "disaster." Yet they could not reach consensus. In an effort to placate more conservative members, they made the bill less palatable to moderates. No bill could satisfy enough members of the Republican caucus to pass.

An article in Politico argues that the Republican repeal and replace plan failed because it was a bad piece of legislation that most people opposed, not because the Republicans are bad dealmakers. But the article goes on to compare the failed Republican effort to achieve consensus on their bill to the work that Democrats did for nearly two years in 2009 and 2010 to keep their coalition together sufficiently to pass Obamacare in the first place. Like the Republican caucus this year, Democrats then faced the challenge of satisfying both their more conservative and more liberal members. The resulting bill was more conservative than the liberals would have liked, and probably more liberal than the more conservative members would have liked. It took months of hard work to keep the coalition together; time enough to persuade a sufficient number that the resulting compromise was better than the alternative of doing nothing.

The lesson is that while it might be easy to understand that proposed deals should be compared to their real world alternatives, and not to either party's wish list, it is very difficult to persuade people involved in negotiations to do that. People have a hard time letting go of their goals, and tend to be critical of any agreement that falls short. It takes sustained effort to get people to accept that something that to them appears much less than ideal is better than the available alternatives.

On the other hand, if it's true, as the Politico piece cited above also states, that the hastily-put-together Republican health care replacement, was just a bad piece of policy, then it's possible that many Republican members of Congress would just as soon keep Obamacare in place, and continue to blame Democrats for any problems with it, than take responsibility for a new plan that was full of its own problems. If that's the case, then letting the bill die in the House can be seen as an example of legislators understanding their interests very well, and making the right comparison.

Friday, March 17, 2017

Aikido and conflict resolution

I had a chance at the SXSW Interactive Conference this week, to attend an introductory session on how the principles of the martial art of Aikido can be applied to resolving workplace and other conflicts. The presenters used the symbols of sword, shield and withdrawal to illustrate three basic ways of initiating or responding to conflict. For example, someone pushing toward your center can be met with a counter-thrust, or a block, or by running away. When we practiced learning how to recognize these attacks and responses, it almost felt like a game of rock-paper-scissors. Our choices might be dictated by our own instinctive approaches to conflict, or by our perceptions of what would work best against our opponent.

Aikido teaches a more advanced technique than these limited fight or flight instincts would allow. That is to embrace the energy of one's opponent and channel it in a new direction that perhaps neither side originally expected, but that both sides "agree" on. I couldn't really learn how to do this in one introductory session, but did get a little sense of how this feels. Instead of escalating the fight with one's opponent, by responding with your own hostile actions, what you are doing is turning your adversary's intentions in a more peaceful direction. What was fascinating, however, was the presenters' illustration of how this technique might be used in a workplace interaction. Say your boss calls you on the carpet for a poor report you presented. You could respond by defending your work (shield), or by attacking the premise of the assignment (sword), or by hanging your head in shame (withdrawal). More effective than any of these traditional responses might be to thank your supervisor for his criticisms and ask for suggestions for improvement. By doing that you would be channeling the energy of your supervisor in a new direction that neither party may have anticipated (and in the process you might also avoid getting fired).

This sounds to me a lot like what we teach in negotiated conflict resolution. The most enlightened methods to achieve a consensual resolution do not rely on arguing with the other side about the validity of their contentions, or denying their claims, or running away. Instead, a good negotiator will try to understand--and even embrace the contentions made by the other side, to the extent they can without harming their own interests--and then attempt to channel those ideas and interests in a harmonious direction.

Tuesday, February 28, 2017

Opposing Actors

While lots of attention is being paid to this year's Oscars fiasco in which the presenters were handed the wrong envelope for the final award, I want to call attention to a little-noticed speech by Mark Rylance, who presented the (correct) award for best supporting actress to Viola Davis. Before announcing the winner, Rylance noted that oftentimes supporting actors would be better described as opposing actors. Their role is to disagree with and challenge other actors, creating the conflicts that make for a good story. He went on to explain how valuable such opposition is, not only in telling stories, but also in sports, and in society in general.

All of the nominated actresses--Naomie Harris in Moonlight, Viola Davis in Fences, Nicole Kidman in Lion, Michelle Williams in Manchester by the Sea, and Octavia Spencer in Hidden Fences--find themselves in conflict with other characters in these films. Perhaps one of the main reasons they were nominated is based on how beautifully they express and sometimes resolve these conflicts. 

Mark Rylance said: "The things these films made me remember and think about was the difficulty – something women seem to be better at than men – of opposing without hatred." I'm not going to opine as to whether women are better than men at expressing opposition without hate, but I would agree that this ability is fundamental to conflict resolution, and is also crucial to allowing our society to function well in general. As Rylance suggested, we should value opposition, not try to eliminate it. We should feel free to express opposition: to policies we disagree with, to plans others have for us that we think are unfair, to people who are trying to prevent us from doing what we need to do, to actions others are proposing that we think may be harmful. But we must try to do it without hatred, because hatred can make it impossible to resolve our disagreements.

Friday, February 24, 2017

How litigation resolves conflict

The other day, I was trying to explain to another attorney why I've grown to dislike the term "litigation," even though it's the most commonly-accepted way of describing most of my law practice. I don't have any objections to filing or defending lawsuits, and I'm also proud to call myself a trial lawyer for those unusual cases that finally make it to trial. But to me, "litigation" connotes a lot of activity in between that is not only wasteful, but actually counter-productive to the goal of resolving the dispute (I'm thinking of discovery disputes in particular, but the impulse to contest everything the other side is saying can arise in almost any procedural situation). This litigious mindset is counter-productive not only because it takes a lot of time and resources, but also because it can unnecessarily antagonize the other side and make the dispute harder to resolve. Sure, some of this pre-trial activity is necessary to prepare for trial, but the bulk of it is never used at trial. And if the case doesn't to trial, as most cases don't, litigation is an awfully inefficient way of learning enough about the value of the claims and the interests of the parties to enable the parties to settle.

But litigation, in the sense I'm using the term, still is often necessary to bring the parties to the table, replied the attorney to whom I was explaining my theory. People have to engage in it for a while before they understand just how destructive it can be. If that's so, I said, then what we are doing is encouraging people to participate in a process, not because we think it is a good method of resolving a dispute, but instead  to show our clients what a bad method it is for doing that, so that they will as a result decide to negotiate an end to their dispute instead of continuing to litigate. If that sounds cynical to my fellow litigators, just take a look at the recitals of practically every settlement agreement you've ever been involved with. They explain right on their face why the parties decided to enter into the deal, using language something like this: "in order to avoid further expense, inconvenience, and the distraction of litigation . . . . " We are admitting to the world that we are settling most cases just to avoid the harms caused by the process we supposedly entered into for the purpose of deciding the controversy!

Clients might be able to justify engaging in a process that causes pain to their adversaries because that can cause the other side to see the light and accept terms. In fact, they are often eager to go at it for that reason. But they usually don't want to cause themselves a lot of pain in the process. Clients find out that that they can't usually expect to inflict pain without receiving some back in return, just as you wouldn't expect to step into a boxing ring with another fighter without receiving some blows. As an attorney, I don't get much satisfaction out of subjecting my own clients to a painful experience just to teach them a lesson. Therefore, for the majority of private disputes, I'd prefer to start off with a less destructive process, like negotiation or mediation. And if we have to litigate, I'd prefer to do so in a way that minimizes the pain for my clients and helps more their case toward resolution, rather than in a way that forces them to settle just to avoid experiencing more of the pain the lawsuit is causing them. A lot of litigation activity is avoidable, and usually should be avoided unless it's the only way to obtain necessary information or present the case to a judge, or unless the goal is to intimidate the other side into resolution just to avoid more litigation. But if we are beating our heads against the wall just so that we will feel better when we stop doing it, we might have to question whether we needed to beat our heads against the wall in the first place.

Wednesday, February 15, 2017

"Us" vs. "Them"

You want to know about us? The kind of people you can trust, that's us. Reputable people. About them, they are the ones who caused the problem, not us. The thing about us, is that we're right. We did nothing wrong. OK, maybe we made a few mistakes, and the biggest mistake we made was probably getting involved with them. But for the most part, we're right. As for them, they betrayed our trust. They took advantage of us. They cheated us. We don't want anything to do with them any more. We just want them to admit they were wrong, pay us back, and leave us alone. But even if they did that, how could we trust them? They'll say anything, and then stab us in the back.

Why should we even listen to them? They have nothing to say to us. They'll just make us angry. They lied to us, and we can't trust anything they say. Anyway, they can't possibly win, if there is any justice. What they did was wrong, and blatantly illegal. Anybody who listens to us can easily understand that.

Another thing about them is that they are different from us. How else could they say the outrageous things that they say, and do the outrageous things that they do? They don't have the same values as us. They are evil and disgusting. If you can't see that, maybe you're one of them.


http://www.tomgauld.com/

Friday, February 10, 2017

Limiting options

There is a measure on the March ballot in Los Angeles, Measure S, that would among other things force a two year moratorium on most new big real estate development projects in the city. I'm not going to discuss here the merits of this proposal, even though I have definite opinions on the topic. I'm only going to address how our political and legal processes frame decisions. In this case, instead of allowing a healthy public debate over the scale, density and location of new apartment construction, in which we could consider a range of ideas, and perhaps reach solutions that serve a number of competing interests, this ballot initiative now forces use to choose only whether we are for or against one particular proposal. We listen to the proponents spin a narrative about preserving neighborhoods against greedy real estate developers determined to profit at the expense of our quality of life, while the opponents tell an equally compelling, competing narrative about the need to accommodate a growing population without rents spiraling out of control. To win the debate, both sides are prone to exaggerate the merits of their own proposal, and the faults of the other side. The debate is contentious because voters may choose only one side or the other, and are not allowed to search for a consensus solution.

Few people would try to justify the initiative process as an ideal way to make policy. Instead, initiatives get put on the ballot because some powerful interest becomes frustrated with the normal process of legislative decision-making on an issue. And often that frustration is justified, because the partisanship and corruption of the "normal" legislative process does not always create an ideal environment for making good policy either. But at least the City Council does not have to limit itself to only voting yea or nay on one particular way to approach a problem. It has the ability to consider many ideas, and can strike a balance between competing proposals.

Moving from the local to the national level, the new administration in Washington is also presenting us with some unfortunate "either-or" decisions. No longer are we talking about reaching legislative compromises on comprehensive immigration reform, for example. Instead we have been presented with ideas somewhat out of mainstream thinking, such as building a wall on our southern border, or temporarily banning entry from certain Muslim nations. And people are forced to line up for or against these proposals to address particular aspects of immigration policy, rather than being allowed to collaborate on solutions to broader questions. Whether people think these are good ideas or bad ideas, it appears that their implementation (or non-implementation) may make it harder to address other aspects of a much more complicated problem. When these political solutions inevitably turn into legal disputes, they devolve into another kind of an "either/or" choice. Our courts are now embroiled with deciding whether the temporary ban is constitutional or not, a binary problem that barely begins to address the whole complicated issue of immigration policy.

Proposals like Measure S, or like the Muslim ban, made by outsiders to the traditional political debate, have the power to upset the whole framework of that debate, and can make the solutions previously on the table impossible. People presented only with the choice of saying yes or no to a new radical proposal, tend to adjust to this new reality quickly and gravitate to one side or the other in the new framework. In that way the radical new idea becomes normalized.

"Either/or" thinking also permeates my world of business conflict resolution. Business disputes may be caused by a range of problems, including management failures, personality issues, and factual misunderstandings. But as soon as somebody threatens to go to court, the whole complicated array of problems that gave rise to the dispute may end up getting framed as an "either/or" question of whether somebody violated a particular contract provision, or committed a tortious action. The parties to the dispute will obviously line up on opposite sides of that question, and the deciders of the controversy may be limited in their choices to yes or no, up or down, guilty or not guilty. The real causes of the conflict may never be addressed, and other solutions to the conflict, beyond the narrow question presented to the court, may never be considered.

In sum, there are at least two problems with this prevalent mode of conflict resolution. One is that we have artificially limited the solutions to only an up or down vote on one particular issue, and foreclosed our ability to consider other ideas. The second is that we have forced the disputing parties to take antagonistic positions, investing them with the motivation to deny the validity of anything the other side is saying, rather than allowing them to work together to design a solution that may work better for both of them.

Eva Strauss

Thursday, February 2, 2017

"Soft" and "Hard" Negotiations, part 2

Yesterday, President Trump had a contentious call with Prime Minister Turnbull of Australia, in which he questioned a deal made by the Obama administration for the United States to accept a number of refugees currently held in detention by Australia, indicating we might not honor it. Other government officials spent the day trying to smooth over the disruptive and aggressive conduct of our new president.

What is ironic is that Australia has long had a much tougher and more racist immigration policy than the US. We detain people claiming refugee status until their cases are determined, but Australia refuses to allow even people who have been deemed refugees to set foot on the mainland, so they remain in deplorable conditions in offshore camps. Trump has thus gratuitously insulted someone with whom he should be in sympathy on this issue, in fact someone who is taking a much harder line on immigration than the United States does.

The question then is whether negotiations should be handled in an adversarial way, even when you have two people with similar views trying to deal with a common problem. There would seem to be no obvious reason for doing this, so it might be a case where the president is conditioned to react in a hostile and threatening manner even when that style might be counter-productive to reaching a resolution of the issue. Some litigators tend to handle every case in an aggressive way, simply because that is what they have been trained to do. Or as the saying goes, if the only tool you have is a hammer, every problem starts to look like a nail.

Whether President Trump finds it necessary or appropriate to moderate his aggressive style remains to be seen. If he doesn't, then we can expect to see more of what we saw today, which required others to move in and clean up the damage after an angry outburst from the president.



Monday, January 30, 2017

"Soft" and "Hard" Negotiating Styles

When you look at the literature on negotiating, you tend to find (at least) two schools of thought. One, exemplified by Fisher and Ury's Getting to Yes and its progeny, is a "win-win" approach that emphasizes communication and exploration of parties' underlying interests. The other is more of a "win-lose" philosophy that emphasizes getting the upper hand in negotiations and gaining profits for one side at the expense of the other. Some have labeled these as "soft" or "hard" approaches to negotiation.

Before trying to evaluate which approach to negotiation has more validity, I should note that there is some overlap between the two camps. An interest-based bargainer might say that being mindful of the other side's interests does not require you to sacrifice your own for the sake of a deal. Thus, it is not inconsistent with interest-based bargaining to make efforts to get the best deal you can.  On the other side, even the hardest of hard-boiled negotiators tend to recognize that the deal has to have some value for the other side, otherwise they will not enter into it, or they will not be able to perform it down the road. Lots of negotiators favor combinations of the two methods, following the time-honored "good cop-bad cop" technique.

One of the claims to fame of our new president is that he is an expert negotiator. He brags about his deal-making prowess, he has written books on the topic of negotiation; and his campaign was based in large part on promises to negotiate better deals for this country, especially on trade. President Trump's ideas about negotiating decidedly fall into the second camp. Admiring his tough talk, Trump's supporters believe he will get better terms from our trading partners, and dissuade companies from moving factories overseas, while Trump's detractors see him as a bully who will exacerbate rather than resolve conflict. Trump himself talks a lot about "winning."

President Obama, on the other hand, obviously exemplifies the "softer" approach that tends to be favored by mediators. He talks about finding consensus, and working together with people of different views to create constructive solutions. I have always thought of Obama as a mediator or conciliator himself, not as someone attempting to impose his will on others. I believe his style accounted for a lot of his successes, but he faced criticism from both supporters and opponents for not being "tough" enough. (At times, however, when Obama's opponents weren't complaining about how weak he was, they were attacking him for being dictatorial.)

This highly-charged election season can be seen in part as a referendum on negotiating philosophy. We are obviously deeply divided on this question, but it might be comforting to know that it is an issue more of style than substance. (Not that there aren't issues of substance that also divide us, but I'm not talking about those right now.) The country has now been jolted into an abrupt shift from one style to another, and the transition has been far from smooth. It remains to be seen, of course, how successful the "tough" approach to negotiating will prove.

Trump can already point to signs of success in getting companies to back down from plans to shift operations to other countries. He has hit some bumps, on the other hand, in negotiating with Mexico on who will pay for the planned border wall. Trump's speeches boasting that he would make Mexico pay may have gone down well with supporters, but this kind of talk was probably humiliating to Mexico, and has only intensified their opposition to the idea. To save face, Mexico's president has already canceled a meeting with the new president. And President Trump has somewhat softened his tone, now arguing that building the wall would be in Mexico's interests as much as ours. (Imagine Donald Trump, acting considerate of the opposing party's interests!) Trump says that he believes that torture works, but he also said he will defer to the new Secretary of Defense, who thinks he can get more out of a detainee with a couple of beers and a pack of cigarettes than by resorting to water torture. So stay tuned, and we'll find out how tough the tough talk really is, and how well it is working.