Tuesday, March 24, 2015

Thirteen Days in September

Speaking of peace in the Middle East, I've been reading the new book about the Camp David negotiations by Lawrence Wright. Surprisingly, reading this account made me feel a little more hopeful about the prospects for peace between Israelis and Palestinians, the great unfinished business of the Camp David accords, even though the conventional wisdom in light of Prime Minister Netanyahu's recent re-election is that resolution of the issues in the territories is now a long ways off. The reasons for hope lie in recollecting that if anything, Menachem Begin was an even more belligerent character than Netanyahu is today. Begin was reluctant to concede on any issues, whether the status of Jerusalem, or Jewish settlements in Sinai, or withdrawal from the occupied West Bank. Yet even this most difficult Israeli leader, a former terrorist himself, was finally able to recognize the benefits of giving enough ground to make peace with Egypt. And Sadat, of course, eventually gave his life for this cause. It shows that under the right circumstances, even the most intransigent of parties--perhaps only the most intransigent of parties--can find the courage to make peace. While there are good reasons to be pessimistic these days about the prospects for resolving the conflict between Israelis and Palestinians, those who think it would be impossible for Netanyahu and Abbas to do something similar to what Begin and Sadat accomplished in 1978 may be speaking prematurely.

I was reading the book, not so much as a mirror to contemporary affairs but rather as a case study of a successful mediation. Even though the Camp David negotiations were so large in scale as to involve three national governments, 13 difficult days, a large number of issues, a weighty sense of history, and a great variety of personalities within each of the three camps, these negotiations went through stages that would be familiar to many mediators of much simpler disputes. The process started with the probably necessary but ultimately unsuccessful joint session. After reaching impasse, Carter presented a mediator's proposal, followed by threats to walk out by each side in turn. The parties had to be persuaded several times to return to the table, until they finally reached exhaustion and breakthrough at the end. The framework documents were not signed until the end of a grueling day and night of hard bargaining, at a point where the parties could not effectively concentrate on the details. After Camp David, the talks almost derailed again during the documentation of the final peace treaty.

Both the Israelis and the Egyptians initially approached these negotiations as do many parties entering into mediation: they failed to recognize any weaknesses in their own positions, or the need to give ground. Neither side was fully committed to the negotiation process; both were ready to walk away if agreement could not be quickly reached on something close to their terms. Both viewed the mediator's (Carter's) role as someone who would somehow make the other side give in to their demands. As Wright explains: "Sadat had assured his delegation that the summit was a simple affair. He would present the Egyptian proposal; the Israelis would spurn it; then Carter would step in to pressure Begin to accept the Egyptian offer." (p. 52)

The Israeli side made a similar mistake, focusing too closely on attacking the Egyptians' initial proposals, without realizing that Sadat had a fallback position if he could only get some of the hardline elements in his own delegation to go along. Carter was able to break this impasse in part by revealing to the Israelis, perhaps in breach of Sadat's expectation of confidentiality, that the Egyptians were prepared to make further concessions.  (p. 115)

At that point, before agreement had been reached on many points, the Americans took on a role that many mediators are reluctant to assume even after parties have reached agreement: the responsibility of drafting the settlement agreement. That way, instead of reacting to and rejecting each other's proposals, both sides would wait for the American single draft and propose modifications. Probably this technique was the only way to move these negotiations forward. Perhaps it only worked because the mediator in this situation was itself a powerful, interested player, with the ability to reward or punish either one of the parties.

Even after the American draft had gone through multiple revisions, however, it still took an enormous amount of work to get both sides finally to accept the reality of reaching agreement. It took repeated reminders of the enormous cost of failure, and the great benefits of success. And even that was not enough. In the end, it took leaps of faith on both sides to embrace the cause of peace.

Mediation, in its ideal form, is supposed to foster trust and understanding between the parties in conflict, with the mediator acting only as a facilitator, not as an arbitrator imposing solutions on the parties. Wright shows that at Camp David, this did not happen. If anything, Sadat and Begin became more hostile and distrustful of each other as they were forced to spend more time confined in this remote location. Carter was also compelled to do much more than act as a facilitator, using all of the power at his disposal as President of the United States to compel the parties to reach agreement. Camp David can be faulted for failing to achieve comprehensive peace. On the other hand, what this flawed process did achieve--peace between Egypt and Israel--has proved lasting and remarkable.

Saturday, March 21, 2015

Mandatory mediation

At the Orange County Mediation Conference yesterday, one of the lunchtime speakers, Judge Nakamura, who is chair of the ADR committee of the Orange County Superior Court, mentioned that the court's existing mediation program has been poorly utilized. He seemed puzzled by this problem, since the panel of experienced court-connected mediators has a high success rate in resolving cases. And since these mediators agreed to charge only $150/hour for court-referred cases, their services are a relative bargain as well.

Judge Nakamura's proposed solution is a pilot program in Orange County for mandatory mediation of civil cases. He believes this would take legislation to implement, and he urged those attending to contact their representatives in Sacramento to promote this idea. Most users of the California court system are aware of the drastic cutbacks in court funding that have contributed to delays and slower service in court. Something should be done to try to alleviate these problems. As the judge mentioned, if the court can require parties to meet and confer before filing demurrers and other motions, why not require some form of negotiation or dispute resolution procedure to attempt to resolve the entire case?

Cheers to Therese Gray, and other members of her committee, for another informative and successful conference, where we also heard Jack Goetz and Barbara Brown talk about SCMA's mediator certification initiative, and Woody Mosten deliver a thought-provoking speech on the need for informed consent in mediation.

Friday, March 20, 2015

Patent litigation

At South by Southwest this week I attended a program on patent reform featuring representatives from both sides in the "patent troll" debate. Though there was disagreement on the nature and extent of the problem, most of the panelists seemed receptive to proposed solutions such as making it harder to get patents issued, imposing stricter pleading requirements, regulating demand letter practices, or allowing fee-shifting to discourage meritless litigation.

I wondered, however, whether increasing the size of the hurdles on the litigation track might in some cases only give parties new issues to litigate over. If the cost of litigation is what gives patent "trolls" leverage to demand settlements, then the solution might instead lie in reducing the cost of litigation. Maybe by streamlining procedures, restricting discovery, reducing motion practice, and limiting opportunities for other litigation activities that drive up costs, we could reduce the leverage of those who demand payment to avoid the high cost of litigation.

TechDirt
One of the panelists worked for a substantial tech company that has spent a lot defending itself against so-called "trolls." Even though he complained about the high cost of litigation, he seemed to take pride in his company's willingness to take a stand in these cases. I asked why, if we were interested in reducing the cost of litigation, would we want to create new issues to argue about in lawsuits. Instead perhaps we should consider taking some steps that would actually make litigation less expensive. Several members of the panel dismissed the idea. arguing that discovery, motions, and other litigation tools are necessary to smoke out and fight meritless lawsuits.

To my mind that suggests that those who are complaining about the size of the hole we have dug ourselves into are also involved in digging that hole deeper.

Wednesday, March 4, 2015

Bad deals

Israeli Prime Minister Benjamin Netanyahu's speech to Congress yesterday about the conflict with Iran (transcript here) illustrates an attitude many parties in conflict take toward settlement negotiations. As the possibility of a negotiated resolution of a conflict begins to emerge, elements on one side or the other often find themselves resisting the deal.  In this case, the deal on the table would allow Iran to maintain some nuclear capacity, but would not allow them to build nuclear weapons. It's a bad deal, according to Netanyahu, because it would allow Iran to build many thousands of centrifuges, and shorten what is called the "break out time" that it would take for the country to build actual weapons. On the other hand, if we fail to make a deal with Iran, that would perpetuate the current state of hostilities, and would not restrict Iran's ability to build a bomb at all, if they were so inclined. "No deal" would therefore increase the chances of military action, if economic sanctions are not sufficient to prevent Iran from building a bomb.

Netanyahu told Congress that we are not limited to these two unpalatable choices, and that we can insist on a better deal in which Iran's nuclear capacity is much more restricted. One might question whether he really believes in this promise of a better deal, considering his view that the Iranian government is such a dangerous, untrustworthy regime that it wants to "impose a militant Islamic empire . . . on the entire world," and "will always be an enemy of America," If that is indeed the nature of the people we are dealing with, what would be the point of making any sort of deal with them? My guess is that Netanyahu would be a critic of any potentially achievable agreement.

In his speech, Netanyahu even acknowledged that he thinks we would still be better off with "no deal" than the "bad deal."  It's a legitimate point of view. Some wars do need to be fought, and sometimes you can obtain a better result by getting tough with an adversary rather than making an agreement. But there is usually a high price to be paid by taking that road, and Netanyahu knows he cannot sell that position in the United States. Most Americans do not want war with Iran. Netanyahu is also smart enough to understand that there probably is no third way. We have heard no indication from the parties at the negotiating table, who have been at this for a long time, that Iran would consider agreeing to the terms that Netanyahu argues we should insist on. Still he is encouraging Congress to think that a third way can be found, most likely as a means of trying to build opposition to the potential agreement.

I have frequently seen parties in settlement negotiations refuse to accept the reality of the two choices in front of them. Part of the challenge for a mediator or diplomat is to get participants to recognize that the only two choices they have are either to accept the "bad deal" or to continue the conflict. At some point in the negotiations, all other alternatives have been exhausted. Still parties in conflict often cling to the belief that they are entitled to agreement on their terms, and they cannot understand why the other side will not simply surrender to their position. Moreover, the fact that the other side won't bend is often seen only as more evidence that they are the sort of bad people with whom one should be reluctant to get into bed anyway. Settlement negotiations represent a process of helping parties understand the other side's view of the world, or at least disabusing parties of the illusion that the other side will suddenly see everything their way. With Congress, that is going to be a challenge, as their political incentives often align with maintaining the fixed beliefs of constituents who never get an insider's view of negotiation realities.

Monday, February 23, 2015

Mediation confidentiality in California

I will be speaking as part of a panel, along with Mary Culbert and Phyllis Pollack, on Saturday, February 28, 2015, at 10:00 a.m., at Loyola Law School. The topic is mediation confidentiality. It's a timely subject, because recent cases have raised questions about whether the broad protections for mediation confidentiality in California, can still be relied upon. In particular, many mediators are troubled by the Milhouse case currently pending in the Ninth Circuit, which recognized a vaguely-defined "due process" exception to mediation confidentiality to allow evidence of offers and demands exchanged in an unsuccessful mediation to be introduced in an insurance bad faith case. In addition, the California Law Revision Commission is currently considering whether to allow an exception to mediation confidentiality in attorney malpractice cases.

We will be reviewing the history of mediation confidentiality in California, including discussing the leading cases, statutes and rules on the subject. We will also be discussing the dilemmas involved in maintaining the secrecy of communications among parties in caucus-style mediation. We will review survey information showing how often the courts have had to deal with problems claimed to have arisen in mediation. We will also discuss the possible scope of the "due process" exception, as well as whether an exception should be granted for attorney malpractice. That may lead to discussion of the broader problem of how to handle party dissatisfaction with the results of mediation while maintaining the confidentiality and integrity of the process.

All that, and lunch too. Further information, and registration for the program, sponsored by SCMA and Loyola Law School, can be found here.

Thursday, February 19, 2015

Learning from mediation

Someone posted a question on an online forum about a divorce agreement reached after two days of mediation. The questioner's ex-wife wanted to set the agreement aside because some stock options assigned to the husband in the settlement agreement had subsequently skyrocketed in value. The husband was looking for some ammunition that would allow him to retain the full value of these assets. (Almost the exact same situation can be found in the recent California Court of Appeal case of Lappe v. Lappe, No. B255704 (2d Dist. Dec. 19, 2014). In that case, the wife was seeking discovery of financial statements provided by the husband during the mediation, for the purpose of attempting to set aside the mediated property settlement on the grounds of fraud and duress.)

MyDivorcePapers blog
Faced with such a crisis, it seems the natural tendency of parties and their attorneys is to analyze the issue in legal terms and threaten to go back to court for resolution. The wife's first response was to accuse the husband of fraud, and look for other possible grounds to set the agreement aside. As for the husband, instead of expressing joy at receiving a financial windfall, or any desire to share it, he instead seemed very anxious to prove that he had no inside knowledge of the increase in value, and therefore was entitled to retain it for himself.

I responded to the question by saying that I thought it was a shame after two days of mediation that the parties had not learned a better way to resolve conflicts. Presumably the parties came to mediation the first time because they thought it would enable them to achieve a cheaper or faster or in some other way superior means of resolving the dispute over the allocation of their marital property. Why wasn't their first thought to go back to mediation a second time to resolve this new dispute? Presumably the parties should have gained some experience in two days of mediation that would encourage them to seek a mutually agreeable resolution, instead of each seeking to win at the expense of the other. Why did they revert to a "fight or flight" response as soon as they were presented with a new challenge?

We are seeing an increasing number of cases seeking to set aside agreements reached in mediation. To me, that indicates that mediation is not always succeeding in instilling in parties the values that mediation is supposed to teach. Instead we are using mediation to cajole parties into fragile settlement agreements to which they are not fully reconciled. Settlement is unquestionably an important goal of mediation. But perhaps more importantly, mediation should aim at helping people view conflict as an opportunity to understand and satisfy both sides' interests and needs, rather than as an excuse to descend into a destructive cycle of blame and recrimination.

Monday, February 16, 2015

Tune in

I will be a guest on the Doug Noll radio show on Thursday, February 19, 2015. The program is broadcast over the internet and its website can be found here. In case you miss the program Thursday night, however, I believe it will soon be available on the website.

I expect to be talking about the business of mediation, how mediation may be transforming the civil justice system, and whatever else comes to mind. I'm looking forward to the opportunity.

UPDATE (3/5/15): It appears the audio file was erased by the web radio station, so my interview is now lost to posterity. Doug promises that we will do another program soon however.

Friday, January 30, 2015

Accessing justice

A recent artical in the ABA Journal  on movements to license legal technicians to perform limited legal services cited a Bar Foundation study showing that most people encountering what the study called "civil justice situations" either handled the situation themselves, did nothing about it, or enlisted the help of friends and family. Only about 22% sought the assistance of people outside their social network. Naturally the ABA article viewed this situation as a potential opportunity for the legal profession to meet unmet legal needs, while questioning whether opening up opportunities for paralegals or other non-lawyers to serve these needs should be allowed.

To me, however, data like that found in this study suggests that the traditional justice system is either too intimidating, too expensive, or too complicated to represent an attractive solution for most people. That means there is a great need to make the traditional justice system less expensive, less complicated, and more accessible. There also appears to be a need to empower people to handle these "social justice situations" more competently themselves (since most people apparently are already handling these situations themselves anyway, for better or worse).

The data suggests opportunities here for mediators and other conflict resolution specialists as well as for lawyers and legal services technicians. If people are generally resorting to self-help anyway, and would generally prefer to solve their legal problems outside of the traditional justice system, it follows that they could use some advice on ways of doing that better. There are also opportunities to teach the general public more about how to solve common legal problems, since is appears that most people are going to run into them, and most of those people are going to try to deal with those problems themselves.


Graphic by Jeff Dionise from the ABA Journal article linked above

Saturday, January 24, 2015

Technology

If somebody were to ask me (actually somebody did ask me) about the future of conflict resolution, my answer would have to include technology. Technology is already enabling us to do things that would have been unimaginable only, say, 20 years ago. We now carry devices in our pockets that enable access to virtually any available information. I can tap my cellphone to pinpoint my location on an interactive map and find out instantly how long it will take me to get anywhere by any available mode of transportation; I receive updates on appointments or plane schedules without even asking for them; and I can instantly communicate, via Twitter, or Linkedin or Facebook, or any number of other means, with virtually anyone.

Technological change has already started to revolutionize the legal system. Tools like RocketLawyer and LegalZoom are enabling people to perform many functions themselves they previously could not do very well without a lawyer. Companies like eBay and Amazon have already set up online dispute resolution procedures that are handling many times the number of conflicts between buyers and sellers than can be handled by any court. New software is being developed every day to create forms and negotiate agreements. Because technology enormously increases the efficiency of generating legal documents, automation is already putting lawyers out of work, while creating new opportunities for some. Thus far these technological advances seem best designed to deal with smaller scale conflicts that people have not traditionally been able to bring to court anyway. For the most part, these changes help people manage legal problems that they would otherwise have had to handle on their own. But they also have the ability to scale up to problems that currently tend to go to court.

We can also already see that even the traditional court system is slowly automating more and more of its functions. Electronic filing is becoming the norm.Web interfaces are becoming more user-friendly. Eventually these more streamlined case processing functions should allow the courts to update antiquated rules and procedures and make the justice system more efficient.

Given the rapid pace of change, it would be perilous to predict what technology might allow us to do, say 20 years from now. But one prediction I would make about the generation that is growing up with access to all the world's knowledge in their pockets, a generation that understands the power of crowd-sourcing, that is adopting the sharing economy, that believes in do it yourself solutions, and that demands instant answers to almost any problem: that generation is not going to have much patience with ways of doing things that were more appropriate to the 19th century.

That generation should be open to experimenting with non-traditional methods of resolving both simple and complex conflicts that people currently still associate with old-fashioned lawsuits. The good news for mediators is that the tech-savvy generation should be receptive to mediation as a way to resolve conflict. This generation has grown up expecting instant gratification, empowerment, and cooperation. They would be expected to embrace ADR processes that are faster than court; more centered on the needs of the disputants; and less adversarial.

But to retain the favor of tomorrow's clientele, mediators themselves are going to have to embrace technology or we might get left behind by even more efficient ways of resolving disputes. We think of mediation as an advanced form of conflict resolution compared to the creaky old court system, but how advanced will mediation seem when someone comes up with an algorithm that decides cases for disputants? People who are used to being able to get an instant answer to any question from the palms of their hands, are going to be receptive to those kinds of solutions.

For now, I don't even have any particular "mediation apps" to recommend, though it seems obvious that mediators, like everyone else, will increasingly be doing more business online and using the tools their clients are using to schedule and conduct meetings, and to share information. But part of the challenge for mediators in the future will also lie in persuading disputants of the value of old-fashioned talking remedies for conflict--methods that can be traced back to traditions like sitting around the campfire smoking a peace pipe. We have to work even harder to persuade people to slow down and try methods as ancient as that, while at the same time remaining open to new techniques, because we live in a rapidly-changing world that puts a premium on innovative solutions.


Wednesday, January 21, 2015

Better politics

Everyone is talking about President Obama's little dig at his opponents when he reminded them of his two election victories. But the part of the State of the Union speech that should get mediators excited is the following:


"So the question for those of us here tonight is how we, all of us, can better reflect America's hopes. I've served in Congress with many of you. I know many of you well. There are a lot of good people here, on both sides of the aisle. And many of you have told me that this isn't what you signed up for - arguing past each other on cable shows, the constant fundraising, always looking over your shoulder at how the base will react to every decision. Imagine if we broke out of these tired old patterns.

 Imagine if we did something different. Understand - a better politics isn't one where Democrats abandon their agenda or Republicans simply embrace mine.

 A better politics is one where we appeal to each other's basic decency instead of our basest fears. A better politics is one where we debate without demonizing each other; where we talk issues, and values, and principles, and facts, rather than "gotcha" moments, or trivial gaffes, or fake controversies that have nothing to do with people's daily lives.

 A better politics is one where we spend less time drowning in dark money for ads that pull us into the gutter, and spend more time lifting young people up, with a sense of purpose and possibility, and asking them to join in the great mission of building America. If we're going to have arguments, let's have arguments - but let's make them debates worthy of this body and worthy of this country.

 We still may not agree on a woman's right to choose, but surely we can agree it's a good thing that teen pregnancies and abortions are nearing all-time lows, and that every woman should have access to the health care she needs.

 Yes, passions still fly on immigration, but surely we can all see something of ourselves in the striving young student, and agree that no one benefits when a hardworking mom is taken from her child, and that it's possible to shape a law that upholds our tradition as a nation of laws and a nation of immigrants.

 We may go at it in campaign season, but surely we can agree that the right to vote is sacred; that it's being denied to too many; and that, on this 50th anniversary of the great march from Selma to Montgomery and the passage of the Voting Rights Act, we can come together, Democrats and Republicans, to make voting easier for every single American.

 We may have different takes on the events of Ferguson and New York. But surely we can understand a father who fears his son can't walk home without being harassed. Surely we can understand the wife who won't rest until the police officer she married walks through the front door at the end of his shift. Surely we can agree it's a good thing that for the first time in 40 years, the crime rate and the incarceration rate have come down together, and use that as a starting point for Democrats and Republicans, community leaders and law enforcement, to reform America's criminal justice system so that it protects and serves us all.


 That's a better politics. That's how we start rebuilding trust. That's how we move this country forward. That's what the American people want. That's what they deserve."