Wednesday, December 30, 2009

Are Judges the Best Mediators?

Way back when I served as a law clerk to a federal district court judge, I remember watching a trademark infringement bench trial about to begin. The parties had all their exhibits lined up; they had prepared their experts and their surveys; their attorneys announced that they were ready to proceed. Months before, I had worked on the opinion denying one side's motion for summary judgment, so I knew that the parties had already invested in a lot of pre-trial proceedings. Before hearing opening statements, my judge advised the parties that he had formed no conclusions yet about which side was in the right. He told the parties and their attorneys that he would try to reach the correct result, and that he was ready and willing to give everyone a fair trial, but that he was himself uncertain about the outcome. He also wanted to remind the parties that whatever the result of the trial, the losing party could always appeal, and they could still be looking at a long period of expensive litigation ahead of them. He then asked if they had made all efforts to settle the case. His entire speech took about two minutes. One of the attorneys asked if they might have a few more minutes to confer between themselves, and the judge retreated to chambers. Less than an hour later, the attorneys sent back word that they had settled the case.

Such is the power of the trial judge to settle cases. Sometimes all people have to do is look into the eyes of the person in whom they are about to entrust their fate before they realize that it might make more sense for them to control the result themselves.

Of course judges often have to get a lot more involved in settlement negotiations, employing a variety of mediation techniques to help the parties reach a settlement. Some of them are masters at mediation. But the real power of the judge usually rests in the parties' perception of the judge as an authority figure. Parties come to court expecting an embodiment of wisdom and power to dispense justice to them. They sometimes carry these same expectations into a mediation.  Even if the settlement judge is a different judge from the trial judge, or is a retired judge, parties tend to put some stock in his perception of the case's likely result, based on their confidence in his experience. Studies support the idea that what judges bring to the table is their moral authority and their ability to provide reliable case evaluations. (also here and here)  And as shown by the example I witnessed, sometimes judges don't even have to intimate the likely outcome to retain their power to induce a settlement.  They might just need to look the parties in the eyes and suggest that settlement would be a good idea.

The drawback of using a judge as a mediator comes when the parties aren't so intimidated by the settlement judge, or when the judge is too opinionated and one or the other party disagrees with the settlement judge's opinion. Even if that party is being foolish to disagree, the judge can still lose his effectiveness when his assessment of the case is simply rejected. As this article by Jeff Kichaven points out, it is not often that even experienced judges are able to provide a better valuation of the case than the parties' attorneys, who have lived with the case for months and are intimately familiar with its details. Judges sometimes think that case assessment should be the end-point of a mediation. They may not always have the patience to allow the parties to work their way through their own assessments, or to probe into other factors preventing resolution of the dispute. When considering a judge as a mediator, it may be helpful to ask what else that judge brings to the table aside from his judicial experience and authority, or is that experience sufficient to help settle the case in a satisfactory way. The best judge-mediators retain their aura of authority, while refraining from being too quick to judge the outcome; and they continue working with the parties beyond the case assessment stage of a mediation.

(Paul Benedict in The Addams Family)

Tuesday, December 22, 2009

The End of Employment Arbitration?

This week, the Franken amendment to a Defense appropriations bill became law, forbidding most defense contractors from using mandatory arbitration clauses in their employment contracts. I have written about this subject on my law firm blog site previously. This legislation is part of a larger, continuing trend towards the elimination of mandatory arbitration in virtually all employment and consumer disputes.

People in the ADR community may be concerned about this trend, but I think we should applaud it. The US Supreme Court in recent years went very far in the direction of upholding the enforceability of mandatory pre-dispute arbitration clauses (in contrast to the approach of the state courts in California for example). As a result of the inevitable backlash against the perceived harshness of this approach, Congress is on its way to eliminating pre-dispute arbitration clauses in most consumer and employment situations. (There is a nice list of pending legislation on this subject on the Disputing blog.) My view is that we are not eliminating arbitration; we are only restricting the non-knowing waiver of the consumer’s right to jury trial. People can always agree to arbitrate after a dispute arises if they really feel that arbitration is in both parties’ best interest. And in the brave new era when consumers can no longer be compelled to give up their constitutional right to jury trial in order to accept a job, open a bank account, or accept some other good or service, maybe companies should instead be encouraging mediation prior to commencing litigation or arbitration, which does not require anyone to waive anything.

(Scott Jacobs photo from

Thursday, December 17, 2009


"Preparation, preparation, preparation," is the trial lawyer's mantra. It is possible to over-try a case, but it is not possible to be over-prepared for trial. On the other hand, preparation is expensive. And preparation may seem wasteful, if the case does not go to trial, as most cases don't. So most trial lawyers would rather avoid burdening their clients with unnecessary costs, i.e., costs that are not going to help try the case if it must be tried, or that would help settle the case, which might mean costs that show the other side that you will be well-prepared for trial.

Parties go to mediation precisely to avoid the enormous costs of preparing for trial. As long as they have sufficient information to evaluate the likely outcome of a case, they do not need to be ready to cross-examine every possible witness, or research every possible motion. But what about preparation for the mediation itself? To the extent mediation is becoming a substitute for trial, as years ago depositions started becoming a substitute for trial, shouldn't the parties prepare for the mediation in a manner similar to preparing for trial? That means not only thinking about negotiation strategy, but also thinking about how to present helpful facts, and how to deal with expected questions from the mediator and the other side.

I mediated a case recently where the plaintiff was demanding compensation for lost earnings. But the plaintiff had no documentation to support her claim. I told her that she couldn't expect the defendant to take her word for the number of jobs that she claimed to have lost, any more than she could expect the judge or jury to take her word for that at trial. We ended up continuing the mediation to allow the plaintiff to come better prepared next time. Almost the exact same thing happened in another case where one of the issues was property damage. An itemized list is nice, but in this case the list was sloppy and contained a number of discrepancies. Receipts and appraisals and photographs would have been even nicer. Somehow, we settled that case, either because the defendant was willing to accept that the plaintiff would be able to come up with additional support for the claim, or because the defendant wanted to avoid the risk that the jury might accept the claim based on the plaintiff's testimony alone. Could this plaintiff have gotten a higher settlement if he had brought better evidence to the mediation? Quite possibly, if he had it. It may be that he brought all he had. The point remains, however, that the parties need to think about putting on the best case they can at the mediation itself.

If you have favorable evidence, you should turn it over to the other side. What are you saving it for? The value of surprise at trial is overrated anyway, in my opinion, and the case probably isn't going to trial anyway. If you have the caselaw on your side, you should cite it in your mediation brief. If your case would benefit from a meticulous and organized presentation (and whose wouldn't?), you might want to show the other side your meticulous and well-organized brief. If you think the value of the case will improve by taking a deposition, you should probably take it before the mediation. If you think the other side is not going to look very credible in front of a jury, you might think about how to get the opposing witness to reveal his weaknesses in front of the mediator and his own attorney, or you might at least cite some deposition testimony. If you can't or don't bother to do these things, the other side might just call your bluff.

Mediation gives parties the opportunity to avoid the enormous costs of a full-blown trial. That doesn't mean that it is also worth shirking the much lower costs of an impressive presentation at the mediation itself.

(Reuters photo of Chrysler legal team on their way to bankruptcy court in lower Manhattan)

Tuesday, December 15, 2009

The Medicare Gambit

As everyone knows, the US Senate is currently in the midst of negotiations, mostly among the 60 members of the Democratic caucus, aimed at producing a consensus health insurance reform bill that can pass the Senate. Without being privy to any inside information, I can only speculate as to what is really going on behind closed doors in these negotiations. But I did find interesting this week's reports that the Democratic Senators had apparently reached a compromise agreement that would have jettisoned the so-called "public option" but included a provision to allow people over 55 to buy into Medicare. This latest new idea now seems dead, but the bill may be back on track, and the majority of Senators remain hopeful for its passage.

So again, without knowing what any of the parties involved were actually thinking, I have to wonder what is going on here. The Medicare buy-in proposal seemed like a clever idea because no matter how much various opponents of reform complain about government-sponsored health insurance, nobody is very much opposed to the government-sponsored program we already have, namely Medicare. There may not be a single member of Congress who would vote to repeal that program. Therefore the idea of expanding Medicare rather than creating a new government program, was--not suprisingly--popular among a whole range of members of Congress. (perhaps too popular with liberals, as some have speculated.) On the other hand, the idea of expanding Medicare was rejected a long time ago as too threatening to the status quo of private employer-based health insurance. So what purpose was served by re-introducing this concept into the negotiations?

Sometimes in the midst of a stalled negotiation, it is useful to get the parties away from the issue they are stuck on and take them down a whole new track. For example, when parties reach an impasse on the amount of the settlement payment, I have tried sidestepping the impasse by asking whether something other than payment of money might be of benefit to the plaintiff, say the possibility of future business in a commercial case, or the provision of in-kind services, or finding another position for an employee whose employment was terminated. Sometimes the introduction of such ideas will get the parties thinking about how to solve the problem in a more creative way. More importantly perhaps, throwing out new ideas gets the parties working together to explore whether those ideas will work. Even if they decide that the alternative method of settlement is not feasible, they may still make important progress. That progress comes from the experience of collectively trying to solve a problem, and can even come from the mutual rejection of a new alternative. (Mutual rejection of an idea can be viewed positively: it means the parties finally agree on something!) Rejection of an alternative forces the parties back to the original way of settling the dispute, and may provide them with greater incentive to break the impasse that prevented the original form of resolution.

As I said, I have no idea what is actually going on in the Senate other than what I read in the papers. But I do know that failure to achieve an alternative approach does not necessarily doom the possibility of resolving this complicated, multi-party dispute, and may even help advance resolution.

Thursday, December 10, 2009

Opening bids

It is commonplace advice in settlement negotiations, including mediations, to warn the participants not to be insulted by the other side's opening demand or offer. Those who play the negotiation game often enough know that these opening numbers merely set the parameters for further negotiation, and are often deliberately unreasonable. Whether consciously or unconsciously, parties making unrealistic opening demands or offers are taking advantage of the concept of "anchoring." That theory, which has been validated by some research, holds that people are highly affected by the number, or price, that is attached to something. So theoretically, if one were to conduct two settlement negotiations of the exact same case (let's say this case has an objective value of $50,000), and in the first negotiation the plaintiff's counsel starts by saying his case is worth a million dollars, while in the second negotiation of exactly the same case, the plaintiff's counsel initially demands $100,000, the defendant is likely to end up paying more to settle the case in the first negotiation. The same holds true for defendant's opening offers. If the defendant starts off by offering $5,000, he is ultimately likely to get a better deal than if he starts off by offering $20,000, simply because he undermines the plaintiff's confidence in his own valuation by offering a lower number. Parties therefore have good reason to start a negotiation with an unreasonable number.

How do parties counteract this tendency? First, as suggested by the above example, both parties may have to play the same game. If one side makes an unreasonable demand, the other side is likely to make an equally unreasonable offer, thereby creating equally unfair dual anchors.

Another way is to let everyone know up front that these opening bids should not be taken very seriously. I handled a mediation recently where we had some discussion early in the session about the likely range of outcomes at trial. The plaintiff's attorney acknowledged--in front of opposing counsel--that he had only about a 10% chance at trial of hitting his top valuation. Then he turned around and demanded that amount as his opening bid for the settlement negotiation! We all understood that this wasn't a serious settlement demand; the other side treated his opening bid merely as an invitation to start the real settlement negotiation.

Yet another approach is for parties to ignore the mediator's or their own counsel's advice not to act outraged. If one party in a negotiation has communicated his passion about the case, and appears likely to walk out of the room if the other side insults him with an unreasonable offer or demand, that might cause the other side to think about tempering their opening bid somewhat, unless they want to torpedo the negotiation.

Is it the mediator's job to try to get the parties to be reasonable from the outset? Or is it the mediator's job to help both sides get the best deal they can? I lean toward the latter view. So I would not necessarily counsel parties to start with a reasonable number. I am perfectly willing to communicate an unreasonable number, with the caveat that such a number will probably provoke either an outraged reaction or an equally unreasonable number from the other side. Once we've gotten those anchors on the table, they function as the boundaries of the playing field for the subsequent negotiation. That doesn't mean that the case is going to settle halfway between those opening numbers. It just means that we have gotten the opening mind games out of the way, and can then perhaps start trying to look at the case more objectively.

Friday, December 4, 2009

Making War While Making Peace

I've been debating Afghanistan policy on my political blog and elsewhere, and here will reprint the post I did on that subject:
Politically speaking, it is not a viable position simply to suggest that we pull US and NATO forces out of Afghanistan, because that implies that we don't care whether the Taliban returns to power and makes Afghanistan into a haven for Al Qaeda once again. Anyone who wants to talk about Afghanistan in a way that might be listened to has the obligation to show that a different strategy has at least as good a chance of fulfilling the objective of keeping the Taliban out of power as our current strategy. One organization that seems to be addressing this issue in those terms is, which suggests six alternatives to a troop build-up: (1) protecting civilians, (2) upholding women's rights, (3) prioritizing development, (4) addressing underlying problems (unemployment), (5) supporting civil society, and (6) advancing diplomacy.

These are constructive suggestions. It seems to me, however, that they are not necessarily inconsistent with increasing military forces. In other words, NATO and the US can increase troop levels and use those forces to drive insurgents from populated areas, and at the same time use the military and other personnel in Afghanistan to protect human rights, assist in re-development, and promote civil society and the rule of law. I understand that there is an argument that an increased presence of foreign troops may sometimes be counter-productive to peacemaking efforts, and the military needs to be conscious that their presence is often resented. And to the extent that is true, it is all the more reason why attention should also be paid to re-building and creating a stable economic and political society in Afghanistan, at the same time as the military is working with the Afghan army to improve security.

(Photo from a story about the use of units of female soldiers to interact with women and children in Iraq and Afghanistan, from LA Times blog)

Like everything else, this subject of course ties in with the theme of settling lawsuits. There are plenty of lawyers who believe that the best way to get a favorable settlement is to prepare aggressively for trial. When the other side knows that you are not afraid to try a case, and that you have a good track record of winning at trial, they are more likely to come to terms than if they think you are bluffing. On the other hand, just as when we decide to send more troops to Afghanistan, there are certain litigation activities that have the potential for inflaming the other side, and sometimes make it more difficult to reach a settlement. So a lot of lawyers like to keep a settlement track open at the same time as they are working on a trial preparation track. It is also a good idea to consider whether litigation tactics will so increase costs or create a negative adverse reaction that they can make a case more difficult to settle. My job as a trial lawyer is certainly not to make the lawsuit a picnic for the other side. On the other hand, if I unnecessarily antagonize the other side or drive up their costs for no purpose, then they are likely to do the same thing to my client and everyone is worse off. I think that cases can be litigated zealously but at the same time with an eye toward cost control, preserving a professional relationship with opposing counsel, and keeping the settlement track open. That way you are fully prepared to defeat your adversary if necessary, or to make a fair deal with him.

I should note that you can only carry the analogy between fighting a war in Afghanistan and trying a lawsuit so far. I am not trying to suggest that we are in Afghanistan to make a deal with the Taliban. From what I understand of the Taliban leadership, they are not good candidates for deal-making. There has been an effort made, however, with some success, to lure Taliban fighters away from the Taliban forces, as these fighters' loyalties only go so deep. (Dexter Filkins's book The Forever War talks about how fickle are the loyalties of the various fighters in Afghanistan, whom he saw fighting for some warlord one day and for the Taliban the next.) The Taliban also have the option of laying down their arms and participating in the political process, but they know they are not likely to win an election, and so have always used illegitimate means to achieve power. But I am not suggesting that the legal positions of the various sides in the Afghanistan conflict are symmetrical, only that some of the considerations that apply to the use of the military can be analogized to the litigation process.

Sunday, November 29, 2009

The Roots of a Conflict

Many conflicts can be resolved without examining the underlying causes of the conflict too deeply, just as the common cold can be treated by dealing with the symptoms rather than the disease. For an ordinary lawsuit, removing the costs and uncertainty of continued litigation may present reason enough to settle the case, without any need to discuss the pathologies of the parties' relationship or the flaws in the way one party or the other conducts their business, that caused the conflict. Focusing on problems rather than solutions may even impede resolution of a conflict in many cases, as these discussions tend to inflame parties' passions. (See my prior post on solution-focused mediation.) But for the most intractable and difficult conflicts, resolution may not be possible without a serious effort to address core causation issues.

In an article in the latest issue of the New York Review, Hussein Agha and Robert Malley raise the question whether the most intractable of conflicts, that between Israel and the Palestinian Arabs, can be resolved without examination of issues dating back to 1948. As with many conflicts, possible solutions abound. Agha and Malley discuss the pros and cons of the two state solution, the one state solution, the long term "interim" solution, and the Palestinian/Jordanian solution. All of these potential frameworks for achieving peace present advantages over the current stalemate (although the idea of a single, secular state is probably a non-starter for the Israeli side, and the idea of a union between Palestinians and Jordan is probably not of much interest to the Jordanian government). The general outlines of all of these solutions are well known. What prevents the parties from hammering out an agreement, especially for a two state solution, the solution that both sides have at various times professed to favor, and the one that seems most likely to produce clear benefits for both sides?

Agha and Malley suggest that the stumbling block has been a reluctance on both sides' part, to deal with fundamental issues that date back to Israel's creation in 1948: "the question of Palestinian acceptance of a Jewish state and Israeli recognition of the Palestinians' historical experience." Perhaps peace can only be achieved when the Palestinian Arabs fully acknowledge the right of a Jewish state to exist, and their own past refusal to acknowledge that right. And on the other side, Israelis would need to acknowledge their own part in contributing to the refugee problem.

In more mundane conflicts, solutions are sometimes easy to implement once the more difficult underlying sources of conflict have been acknowledged. I remember in dealing with the dissolution of my former law firm, we all thought that negotiating the departure of a number of partners, and then figuring out how to work out some financial issues among the remaining partners, would be terribly difficult. It turned out, however, that after we had spent a weekend retreat discussing much more fundamental grievances and feelings among ourselves, those business details were much more readily resolved than anyone expected. Once a certain level of trust has been established, agreements are relatively easy to make and maintain. Without that trust, however, agreement is sometimes impossible to achieve.

Thursday, November 19, 2009

The Vanishing Trial

An article from Pacific Business News shows just how dramatically the number of jury trials has dropped off in the State of Hawaii, where only 17 civil jury trials were completed in the state courts last year.  The trend appears to be the same everywhere, though perhaps not to the drastic extent that has been accomplished in Hawaii.  The article attributes this decline to court-sponsored arbitration and mediation programs.  For example, all personal injury and other tort cases with a value of less than $150,000 are sent to arbitration.  Should mediators be happy about this trend, representing as it does the triumph of alternative dispute resolution, to the point that trial has become a vanishing breed?  One unhappy trial lawyer quoted in the article makes the point that trial should not be viewed as an evil that should be abolished.  He also points out that trials are necessary to make mediation work:
“If you don’t periodically measure the value of cases through trial, how are the mediators and settlement conference judges able to tell you what your risks are for going to trial?”
I think that is a very fair point.  The purpose of trial is not just to allow lawyers to enjoy the sport.  The purpose is to allow the cases that should go to trial the opportunity to do so, to provide an example for all the cases that do not go to trial.  (That is also of course the argument for taxpayers subsidizing the court system by paying the salaries of judges and other court personnel, because everyone benefits from knowing that contracts can be enforced in court, and remedies can be obtained for other civil wrongs.)  

The real problem is that all the pre-trial aspects of litigation, particularly discovery, but also the endless opportunities for pre-trial motions, have gotten so expensive that those costs drive many cases to settlement even where the parties might prefer to hand them to a jury for resolution.  Another problem is that when trial becomes increasingly rare, litigators tend to fear it more, and to over-prepare to the point where trial becomes unduly expensive, and parties choose to settle mainly out of fear of the unknown.  As I mentioned in another post  I did on this topic a couple of years ago, I would prefer to see a system where most cases are still settled, either through mediation or some other process, but more cases are tried, and fewer cases are litigated to the point of wastefulness.  I think that can only be accomplished by simplifying the rules, restricting discovery and motion practice, and encouraging parties to resolve pre-trial issues informally, and move their cases along to either settlement or trial.

Monday, November 16, 2009

Word Play

According to this report, Syrian President Assad is willing to move forward with peace talks with Israel, and Turkey is available to mediate, but there is "no Israeli partner willing to move forward." According to the same report, however, as well as this Reuters story in the New York Times, Prime Minister Netanyahu has given assurances that Israel is prepared to resume negotiations unconditionally.  But Israel says it would prefer to negotiate directly with Syria, or use a French mediator, rather than through Turkey, according to the Jerusalem Post.

What is going on here? Is this some kind of elaborate courting ritual, where each side is waiting for the other to ask for a dance? Or do the parties mean different things by the same words? Assad hinted at the latter explanation when he stated the following:
Syria does not have any conditions. Syria has rights and Syria will never give up these rights. All this word play from the Israelis is meant to do away [with] demands and rights. This can only accentuate instability in the region. (Reuters/New York Times)
Syria says it is not insisting on pre-conditions, but has rights that it will never give up. Israel says it is willing to negotiate without pre-conditions, but according to Assad, Israel does not mean what it says. Obviously the level of distrust in this situation is high. Further, both sides seem to want to maintain the moral high ground, and gain whatever advantages they can, before negotiations even commence. Perhaps there is also a bit of stalling going on here also. The New York Times story suggests that Assad is looking for greater U.S. involvement to push both parties toward peace. Perhaps Assad believes that the deal he wants will only be attainable if the U.S. pressures Israel to make greater concessions. Perhaps he believes he needs to be "forced" into making a deal to maintain his political standing in Syria. So it may be in Syria's interest at this point to blame Israel for impeding progress toward resuming negotiations. By suggesting that he cannot take Netanyahu's words at face value, and that Israel does not mean what it says when it expresses a willingness to negotiate without conditions, Assad may be creating an obstacle to peace talks that can only be removed by U.S. involvement.

Sometimes parties need a heavyweight to push them to make a deal that they cannot make themselves without facing unacceptable political repercussions. In the case of Syria and Israel, both have understood for years the outlines of a possible deal for Israel to surrender the Golan Heights in exchange for peace and appropriate security arrangements. The will to make such a deal has been lacking, however. More gamesmanship and maneuvering will no doubt take place before any such deal can be made.

(Golan Heights photo from planetware)

Sunday, November 15, 2009

The New Earth Army

The new movie The Men Who Stare at Goats is a comic take-off on the true story of an Army program to incorporate New Age concepts into the military. In the movie, Jeff Bridges plays an Army Colonel who trains an experimental unit of "Jedi warriors" who bring psychic powers and peacemaking concepts into modern war-fighting. George Clooney plays the most talented soldier trained by this unit, who actually does seem to have psychic powers. Of course, most of the ideas propagated by this so-called New Earth Army, which was based on a real program called the First Earth Battallion, were crazy, did not work, and were scoffed at by the regular Army. Just as you are ready to laugh at and dismiss these wacky ideas, however, the movie provides you a glimpse of how traditional military thinking works. The movie's two main characters get caught in a skirmish between two sets of military contractors who operate with military precision and go at each other with rifles blazing. The fact that they are both supposed to be on the same side does not seem to deter them from causing serious havoc. The moral I took from this story was: think twice before you laugh too hard at the crazy ideas dreamed up by these hippie soldiers; the way that the regular Army fights wars may be even crazier.

Sometimes people get a bit uncomfortable about the touchy-feely aspects of mediation also.  Businesspeople and their attorneys do not necessarily see the utility of discussing their emotional needs, and would often prefer to get down to business and negotiate a deal in an adversarial manner.  They may be put off by mediators who sometimes try to incorporate concepts from psychology, neuroscience, philosophy, game theory, religion or what-have-you.  Although diplomacy has been around for all of human history, the modern field of conflict resolution is still in its infancy, and still needs to develop a better understanding of what works and what doesn't work.  More fundamentally, participants in negotiating resolution of a dispute are often reluctant to let go of their traditional war-fighting mentality. When confronted by some of the crazy ideas that mediators might suggest, participants would probably do well to consider the shortcomings of the usual modes of solving conflicts. Resolution of disputes in the traditional adversary system is generally more costly, highly unpredictable, and at least equally crazy.

Friday, November 13, 2009

Carrie Prejean Sex Tape

We can only speculate as to why Carrie Prejean settled her lawsuit against the Miss USA Pageant, because she has refused to reveal her reasons on the grounds of mediation confidentiality. I of course have no interest in any such rumors, and of course Carrie Prejean has every right to refuse to talk about her reasons for settling her lawsuit, regardless of whether she is bound to refuse or not. My only interest is in educating the public about the proper bounds of mediation confidentiality.

Coincidentally, the Second District Court of Appeal in California issued a decision yesterday in a case called Cassel v. Superior Court on this very topic. No, not sex tapes! Mediation confidentiality. Cassel filed a legal malpractice action against his attorneys, claiming that they improperly forced him to settle a case for less than he told them was acceptable.  The attorneys sought to exclude evidence of conversations between them and Cassel, which were held during the course of a mediation, but outside the presence of the opposing party and the mediator.  Of course such conversations were subject to the attorney-client privilege (Evidence Code Section 950-962), but that privilege generally disappears when the client sues the lawyer for malpractice.  Evidence Code Section 958.  It is also well established that you cannot take a fact that is known outside the mediation room and create an obligation by other participants not to discuss it merely by discussing that fact in mediation.  Evidence Code Section 1120 provides: "Evidence otherwise admissible or subject to discovery outside of a mediation or a mediation consultation shall not be or become inadmissible or protected from disclosure solely by reason of its introduction or use in a mediation or a mediation consultation."  So the only way that mediation confidentiality comes into play is if the conversations fall within the scope of Evidence Code 1119.  That section provides as follows:

Except as otherwise provided in this chapter:
(a) No evidence of anything said or any admission made for the
purpose of, in the course of, or pursuant to, a mediation or a
mediation consultation is admissible or subject to discovery, and
disclosure of the evidence shall not be compelled, in any
arbitration, administrative adjudication, civil action, or other
noncriminal proceeding in which, pursuant to law, testimony can be
compelled to be given.
(b) No writing, as defined in Section 250, that is prepared for
the purpose of, in the course of, or pursuant to, a mediation or a
mediation consultation, is admissible or subject to discovery, and
disclosure of the writing shall not be compelled, in any arbitration,
administrative adjudication, civil action, or other noncriminal
proceeding in which, pursuant to law, testimony can be compelled to
be given.
(c) All communications, negotiations, or settlement discussions by
and between participants in the course of a mediation or a mediation
consultation shall remain confidential.
The communications that Cassel's former attorneys sought to exclude would appear to fall within the literal language of this statute.  However, the court held that these communications were not shielded, because they were made outside the presence of and not communicated to the opposing party or the mediator, and therefore reveal nothing about the substance of the mediation.  The court repudiated or perhaps distinguished a statement from Wimsatt v. Superior Court, 152 Cal. App. 4th 137 (2007), which seemed to suggest that clients give up all claims for legal malpractice that arise from the mediation process.  The difference was that in Wimsatt, the alleged malpractice occurred in the attorneys' communications with opposing counsel, not the conversations between attorney and client.

The question arose in some e-mail discussion of this case yesterday among some SCMA members whether this new decision poses a threat to the principle of mediation confidentiality, potentially imperiling mediators who are generally shielded from testifying about what occurs in the mediation context; as well as whether this decision could act as a disincentive for parties to participate in mediation.  (Of course another interesting question of whether Carrie Prejean properly invoked mediation confidentiality in her interview with Larry King must be answered in the negative.  If she signed a confidentiality agreement in connection with her settlement, that might restrict her ability to discuss the settlement, but Evidence Code Section 1119 only applies to the admissibility or discoverability of communications made in the course of mediation. It does not bar participants from discussing their motivations for entering into a settlement outside of the context of another court proceeding.  But maybe we should excuse Carrie for mixing up, if that is what she did, any confidentiality agreements to which she may be subject, and the provisions of the Evidence Code regarding mediation confidentiality.)     Anyway, I at least would not be unduly concerned about the potential erosion of mediation confidentiality represented by Cassel and I doubt that that decision would operate as a serious disincentive for attorneys or parties to participate in mediation. 

This case only holds that Section 1119 cannot be used by lawyers as a shield in a legal malpractice action, to exclude evidence of statements made outside the presence of the mediator and the opposing party. If a lawyer and client are discussing the possible settlement of a lawsuit outside of any mediation, there is no privilege that would apply in a subsequent malpractice action. Participating in a mediation may not give the attorney much in the way of extra protection protection after the Cassel case, but it does not put the attorney at any greater risk of having his statements to his clients used against him in a malpractice action. We have fairly broad protection for mediation confidentiality in California, and it does not seem to have been severely narrowed by Cassel.

Thursday, November 12, 2009

A Lesson(?) in Mediation Confidentiality

Once again, Carrie Prejean instructs the nation in etiquette, in this case telling us that it is "inappropriate" to ask questions about the parties' motivations in entering into a settlement.  As Larry King should well know, asking someone why they settled a lawsuit would destroy the principle of mediation confidentiality. 

Is it even necessary to get into the many ways in which Ms. Prejean's understanding of confidentiality is incorrect? The question I would rather ask is, why would you go on the Larry King show in the first place if you don't want to talk about it?

Thanks to Jim Melamed for posting this link.

(and for another post showing my unhealthy fascination with Carrie Prejean, go here.)

Sunday, November 8, 2009

Mediators can save the world!

Yesterday, at the Southern California Mediation Association's fall conference, I heard Ken Cloke give an inspirational talk about using mediation to solve some of the world's most difficult problems.   In fact, he seems to think that many of these problems can only be solved by mediation.  The reason for that is that threats such as climate change or the instability of the global financial system are beyond the reach of any one nation, and are not amenable to military solutions.  They can  only be addressed by conflict resolution at a global level.  Cloke is currently involved in attempting to insert a mediation mechanism in the international climate change treaty to be negotiated in Copenhagen next month.  Resistance to his idea is coming from people who say that there are already too many conflicts standing in the way of reaching a comprehensive climate change agreement.  Cloke's response seems to be that if we can't negotiate a treaty because there are too many conflicts, that demonstrates all the more strongly why we need a conflict resolution mechanism in the draft treaty to make it effective.  In other words, we may not be able to deal with this problem effectively at all unless and until we include mediation in the process. So Cloke has been organizing a group of mediators to travel to Copenhagen next month to push for inclusion of mediation in any climate change agreement.

Cloke has a lot of ideas about how to resolve the sorts of conflicts he is talking about as well.  He views intractable conflicts as part of systems, and looks for methods of taking people out of the destructive systems in which they find themselves.  His ideas are as applicable to conflicts within families as they are to large-scale social and political conflicts.  All I can do here is draw some attention to what appears to be a worthwhile project to get mediators more involved in solving very large problems.  To understand these ideas more fully, I'm probably going to have to read Cloke's latest book.

Thursday, November 5, 2009

The Power of Metaphors

My father, who was a psychiatrist, was a big believer in using metaphors in therapy. He was interested in dreams because he believed they can serve as metaphors for issues that people are trying to work out in their waking life. And he believed that if he as the therapist could introduce the right metaphor at the right time in a therapy session, he had a chance of helping someone see their problems more clearly, and perhaps enable them to change. In the movies, the big breakthrough moments in therapy occur when the patient finally forgives himself and gets a hug from his therapist. (examples: Ordinary People, Good Will Hunting) In the stories that I heard at home, a breakthrough was more likely to occur when my father was able to draw a verbal picture for the patient that enabled the patient to understand his situation.

Metaphors are powerful tools in law as well. Often there is nothing that can make a legal brief or an oral argument, or even a cross-examination, more persuasive, or at least memorable, than the use of an image that sticks in the reader's mind. An image may be memorable based on its concreteness or whimsicality or universality or perhaps its graphic nature; what makes a metaphorical image persuasive is its aptness to the legal or factual situation one is attempting to understand.  The illustration above is an example of a whimsical image. I found it on a website (wakefelderman) containing a whole series of nonsensical illustrations for the same caption. It doesn't mean anything, however, unless you can somehow analogize the illustration to some real situation. In other words, saying "it's a metaphor" doesn't mean anything unless you can answer the question, "what is it a metaphor for?"

I try to bring metaphors into the mediation room whenever I can.  For one reason, it is sometimes good to talk about anything other than the conflict the parties are having as a way of establishing rapport, and enabling people to see each other as human beings instead of just as adversaries in a dispute.  But more importantly, people may not be able to appreciate or understand how to resolve the conflict in which they find themselves, unless they can visualize an analogous situation. Thus, as can be seen on my blog, I like to talk about game shows, or movies, or sports, or politics, or history, because these all provide rich metaphors that may assist people in viewing the dispute in which their personal feelings are so entangled, more objectively or more truthfully.  The challenge is to design metaphors that are both memorable and apt to each party's situation.  But that is also the opportunity for creativity on the mediator's part, and for me, part of the fun of doing this kind of work.

For more extended and academic treatments of this topic, see this article by Suzette Elgin, or this one by John Haynes or yet another by Thomas Smith.  (It's always nice to know that some topic you've been thinking about has already been discussed exhaustively by others.) The Elgin article talks about problems that can occur when two sides in a dispute are relying on conflicting metaphors. Using Elgin's stereotypical example, a man may view life as a football game, while a woman may view life as a schoolroom. Obviously, different rules and results apply in each situation. In such a case, the mediator may have to find a new metaphor that both parties can relate to.

Haynes views the conflict resolution process itself in a metaphorical way. One way of looking at resolving conflict is as a war; another is as a journey. The journey metaphor is probably a more productive way of encrouaging the parties to view the process,  but the war metaphor may have its place at times.  Finally, Smith discusses the differences between "guiding metaphors" and "operating metaphors," and gives examples of how to recognize and use them.  This last article is more about using and extending the parties' own metaphorical ways of understanding their dispute, than about the mediator introducing a new way of looking at the problem. 

11/16/09: Thanks to Stephanie West Allen for the link. She is a strong advocate of the use of metaphors.

11/24/09: Thanks to Sandra Upchurch for another link. I'm glad my post was thought-provoking.

12/3/09: Thanks to Diane Levin for the Twitter link.

(light bulb illustration from Ollie Saward)

Friday, October 30, 2009

Is the mediator merely a "host"?

A study reported in The Jury Expert (brought to my attention on Phyllis Pollack's blog), came to the somewhat surprising conclusion that the mediator's behavior did not greatly affect the agreements reached. The researchers observed 62 mediations, then coded and analyzed the particpants' statements, and correlated those with the results achieved. They were surprised to find that the mediator's behavior and techniques seemed to have a limited impact on the results.  The authors conclude that, rather than seeing their actions as determinative, mediators "should understand that they are hosting a negotiation process." (This sounds like a comment noted in my post on the "beer summit", where one of the participants described President Obama's contribution as providing the beer.) This conclusion still seems questionable given the results reported which indicated that in more than half of the observed mediations, the mediator's actions did affect the disputants' behaviors. More than half the time seems like a lot to me. I know from my own experience that if I give up too easily, or say the wrong thing, the participants in a mediation may decide to walk away from the table. But if I keep trying to ingratiate myself with the parties and push and cajole them toward a resolution, I can cause parties to renew their efforts. Depending on my rapport with the parties, or my techniques, or even my mood, the results of mediation can vary greatly.

Nevertheless, I agree to some extent that all participants in the judicial process--attorneys, judges and mediators--should appreciate their limitations. I recall reading that the great trial lawyer Edward Bennett Williams said that even the best trial lawyer in the world could only improve his client's chances by a relatively small amount (so for example, if a client had a 4 in 10 chance of prevailing with a minimally-competent attorney, a super attorney might be able to improve the odds to perhaps 6 in 10). I also recall asking a trainer at one of the mediation seminars I have attended a question about putting some of his theories into practice. His somewhat surprising response was that we should not worry about that too much because as long as mediators exhibit patience and good will and especially persistence, we are all going to be relatively successful in getting cases settled. Mediators therefore well understand that most cases will settle with or without a mediator, and regardless of the quality of the mediator involved.

So what does the mediator bring to the table, as far as results that might not be measurable by the means used in the reported study? For one thing, the mediator's actions can greatly affect the parties' satisfaction with the process. If a case settles, but one or both sides walks away feeling cheated or abused or railroaded, that could still count as a "successful" settlement, but the mediator may not have adequately performed his job in helping the parties understand the benefits of what they have achieved. The mediator's actions may also affect the quality or fairness of the settlement that is achieved, something that would probably be difficult to measure in any study. To the extent the mediator is able to expose the parties' interests, and the strengths and weaknesses of their respective positions, the mediator may have greater success in leading the parties to a settlement that will stand the test of time.

Any mediator changes the dynamics of a negotiation by allowing the parties' attorneys to retain more of their role as advocates. The mediator relieves the attorneys to some extent of having to play devil's advocate, since the mediator performs the job of conveying the other side's position to their client. The mediator also provides a filter for the views of the other side, often enabling messages to get through that otherwise might be tuned out because of distrust of their source. Any mediator thus does a lot more than host a negotiating process. Moreover, different strategies by the mediator should also have an impact, not only on whether the parties are able to reach an agreement, but also on the nature of the agreement reached, and the parties' satisfaction with it.

(photo from Joe Monahan's New Mexico politics blog)

Thursday, October 29, 2009

The New Face of Mediation

Mediation may soon be shown in a more glamorous way thanks to USA Network, which is developing a new tv series called "Facing Kate" for Sarah Shahi, in which she will be playing a lawyer who decides to become a mediator. (see story in the Hollywood Reporter) This has to be good news for the public image of mediation. Now people will start seeing mediation as sexy and exciting.

Mediators, however, may have to worry about cleaning up their acts. Lest participants be disappointed when they see how ordinary most of us look compared to the actors on tv, we may have to pay more attention to our hair, make-up and clothing. Of course, I have long been accustomed to dealing with this kind of pressure. My office is in the same building where McKenzie, Brackman, Chaney and Kuzak practiced on LA Law. There was even a character on that show named Markowitz. (Fortunately for me, he was portrayed by one of the more ordinary-looking actors, so I did not suffer in comparison.) But Sarah Shahi promises to provide formidable competition for everyone.

(Thanks to Susie North for sending this news to the SCMA list)

(photo from Exposay)

Tuesday, October 27, 2009

Reverse Psychology

Perhaps because I have two teenagers, I find myself thinking about how to motivate people who generally find my suggestions stupid or old-fashioned.  If my ideas are going to be received as uncool, perhaps I should tell my kids the opposite of what I really think. As a mediator, I face this situation less often, because people generally come at least partially receptive to what I am offering. Reverse psychology can still be employed more often than you might expect, however.  It is not only teenagers who resist prescriptions that others think are good for them.  There must be an innate human compulsion to do the opposite of what we are told, going back to the all-consuming desire Adam and Eve had to eat the one fruit they were expressly forbidden to eat.

In settlement negotiations, I observe this human perverseness in a number of situations. At the outset, there is often resistance to the very idea of settlement. People walk into a mediation firmly convinced of the rightness of their positions, very attached to their claims, and reluctant to give them up. To counter these feelings, I sometimes tell them that if they really think they would be better off not settling their lawsuit, then by all means they should not settle. When this tactic works, it probably does so because it makes people less likely to view the mediator as someone who is trying to make them do something they do not want to do. People need to come to the conclusion themselves that they might actually be better off by accepting a settlement rather than taking a case to trial.

There is also a tendency during the negotiation phase of a mediation, to de-value any offer the other side has made. For example, if you are negotiating two or more issues in a mediation, you might be tempted to give in on an issue you don't care as much about, in the hope of speeding the process along.  But that may cause the other side to under-value your concession, and press even harder for compromise on the issue you do care about.  An obvious way to handle that situation is to show some reluctance to give in even on points that are not important to you. These are your bargaining chips, and when you hesitate before giving them away, you may be able to get a better deal on the issues that actually matter.

Or let's say the parties to a lawsuit are engaged in a negotiation over the scope of production of documents or electronic data. Perhaps there is one source of records that would be troublesome to produce and might reveal information that could be damaging to the producing party, while another source would be easy to produce while yielding nothing but wasted hours of document review for the demanding party. Might it not be in the producing party's interest to show more hesitation in producing the second set of materials? People are always most interested in discovering that which the other side is most interested in hiding. Everyone knows that going into a meet and confer session over discovery, but everyone should also know that the other side may be engaged in bluffing or outright deception.  We may need to remember that the briar patch is exactly where Brer Rabbit wants to go.

Groucho Marx said that he would never want to join a club that would accept him as a member. In negotiations as in life, people prize what is most difficult to obtain, and denigrate what is too easy. Being aware of this tendency can help parties get a better result.

Wednesday, October 21, 2009

Deja Vu

Monday night (10/19/09). It's the bottom of the ninth inning. The Dodgers are hanging on to a 4-3 lead in the crucial fourth game, in which the Dodgers have the chance to tie up the National League Championship series. Two outs, one strike, and seemingly moments away from victory, just waiting for Jonathan Broxton to put the final batter away. Instead, Jimmy Rollins hits a double, scoring both runners already on base, and the Phillies stunningly take the game, and almost inevitably, the Dodgers' World Series hopes.

But was it really Jimmy Rollins who won the game for Philadelphia? In Bill Plaschke's column yesterday in the Los Angeles Times, Plaschke argues that the decisive moment was Broxton's walk given to Matt Stairs, which put the tying run on base (the winning run followed when Broxton hit Carlos Ruiz with the ball). Matt Stairs is the same pinch hitter who hit a two run homer in last year's fourth game of the NLCS between the Dodgers and the Phillies, crushing the Dodgers' hopes last year.

Broxton, the closer responsible for allowing Stairs's home run last year, must have been haunted by last year's defeat. He may not have been expecting, however, that he was going to get the chance to face the same batter, for the same team, in the same game, of the same series, playing for the same stakes. Getting this rare second chance at redemption, Broxton could not, or would not, throw Matt Stairs a strike. Instead of looking for revenge, he seemed to be simply looking to avoid the same fate he suffered last year. So he threw Stairs four pitches that were not even close to the strike zone, and thereby walked himself right into the same result the Dodgers got last season. As Karl Marx said: History repeats itself, the first time as tragedy, the second time as farce.

Lawsuits, like baseball, offer the litigants an opportunity to face adversaries they have faced before. They also allow people to continue to re-live the past. For some, a lawsuit presents an opportunity to obtain recompense or revenge for a past injustice. The parties re-tell the story of their past relationship, and at least one side hopes to be judged differently than the outcome of the real event. For others, a lawsuit presents an opportunity to re-create exactly the same pathological dynamics that doomed the parties' past relationship. I have seen numerous cases in which the parties' battles over discovery or legal issues arising in the case uncannily mirrored the events of their past dealings in real life. Other litigants, just like Jonathan Broxton, simply want to avoid the awful fate that brought them to the courthouse. Instead of avoiding it, however, they frequently cannot escape it happening to them a second time.

Mediation challenges the participants to break out of the vicious cycle of their previous relationship. Mediation can offer the cathartic experience of re-living the past, just as telling one's story in court can do, but it also offers the opportunity to explore strategies for breaking the patterns that caused parties to suffer at each others' hands. Sometimes it is useful to remind people that if they cannot settle their dispute, they are likely to proceed with a farcical re-creation of their prior disastrous relationship. Other times it is possible to get people to see each other in a new light, to understand the other side's point of view a little better, or to handle the problem in a different way, so that they do not repeat those prior mistakes.

One wonders if Jonathan Broxton received the counseling he probably needed before facing Matt Stairs in a similar situation for the second time. Had he been better prepared, perhaps he could have faced his opponent, and his own demons, in a more convincing manner.

Monday, October 12, 2009

What is a peacemaker?

The surprising choice of President Barack Obama for the Nobel Peace prize, coming so early in his term, has led to some interesting commentary on what exactly constitutes a noteworthy achievement in peacemaking. Many who feel the award is inappropriate contend that unless Obama were able to broker a significant treaty, or achieve an actual arms reduction, or some other similar accomplishment, he would not merit such an award. Supporters of the award, on the other hand, point to the transformation that President Obama has already achieved in the way Americans view the world, and the way the rest of the world views America. These conflicting points of view, as I discussed in my political blog, could be said to represent different philosophies of peacemaking. In one view, the successful resolution of conflict represents peace, whether that resolution is achieved by deterrence, or by force, or by diplomacy. In another view, it is the beginning of constructive dialogue that represents peace, even if an actual agreement has not been put in place.

In judging whether mediation of court disputes is successful, is it enough that the parties sign a settlement agreement? Sometimes parties agree to a settlement because the costs of litigation are too high, or because they want to avoid the risks of an unpredictable result in court, or because they are able to arrive at a similar calculation of the likely results of continued litigation. Such settlements are usually still a good thing, because they spare the parties the wasteful expenditures of time and effort involved in litigation. But it could be argued that they do not bring real peace, only an approximation of the results of litigation without going through the cathartic actual experience. For mediation to result in a truly transformative experience, i.e., peace, the parties have to engage in a more searching dialogue. Parties might need to consider whether they can repair their relationships with one another. Even if they intend no future relationship, they might need to spend some time really listening to and appreciating the other party's point of view. They might need to re-evaluate whether their own conduct contributed to the dispute.

It appears that the Nobel Committee recognized President Obama for opening up a potentially transformative dialogue, even if that process has not yet resulted in all of the results people might eventually like to see. Those who do not understand the nature of the President's achievement as recognized by the Nobel committee seem to be mainly people who have trouble understanding the nature of the peace process itself. Many, perhaps most, people have less experience with the art of diplomacy based on a recognition of common interests and shared values, being more familiar with ways of reaching results based solely on calculations of respective power positions. Perhaps the Nobel Committee, in addition to having the lofty goal of actually influencing peace processes, also has a more sophisticated understanding of how to achieve peace than do many of the committee's critics.

(image from

Monday, October 5, 2009

Emotional issues in negotiation

Last night's season final episode of Entourage contained some good examples of the intangible factors that sometimes create, and then break, logjams in negotiations. First Ari Gold had to persuade his wife, in front of their counselor, to allow him to put up her assets as collateral for a loan needed to purchase Gold's former agency. She was distrustful because she suspected that he was pursuing this opportunity mainly to exact revenge against some of his former colleagues. In order to gain her trust, Gold had to admit, in graphic terms, that in fact he did have the basest and most personal of motives for buying out his former boss, and that he was looking forward to firing a number of their employees, but in spite of that, the deal made excellent business sense. As soon as he confessed his emotional and personal motives, he regained his wife's trust, and she consented to allow her assets to be pledged.

Later in the episode, the deal almost broke down over Terrence's demand that the agency he was selling continue to bear his name. Ari walked away from the table at this demand. Only when Terrence came back to Ari with an apology for his past mistreatment of Ari, would Ari allow the deal to get back on track. Ari was so moved by the apology that he even agreed to Terrence's demand.

Both incidents illustrate how seemingly irrational and emotional elements can prevent business negotiations from reaching a conclusion; and how settlement can sometimes only be reached after the emotional needs of the participants are fully acknowledged and at least partially met.

I would not hold Ari Gold up as a model in all respects, however. For example, I would caution against using a paintball gun as a means of firing employees.

Tuesday, September 29, 2009

Taking Offers Off the Table

Settlement offers as well as demands frequently carry a time limit: For example, "If not accepted, this offer will expire at 5:00 p.m. on Tuesday," or "If we cannot resolve this matter to our client's satisfaction within 10 business days, we will take all appropriate steps, including filing suit against your client." Why do people, including myself, include these deadlines? Everyone knows we may be bluffing, because we would generally still prefer to settle on the same offered terms the day after, or even the month after, the offer expires. If the settlement demand or offer were not a more attractive alternative than a failure to reach agreement, we would not have made the demand or offer in the first place. Usually that option remains more attractive than the costs and risks of non-agreement even after the artificial deadline has expired.

Similarly, near the end of a mediation session, parties have the choice of accepting the other side's last offer, or walking away without an agreement. Frequently, parties cavalierly threaten to walk away, even though it seems that they are jeopardizing the entire negotiation. They act recklessly because they count on being able to revive the negotiations at a later date. Sometimes parties merely need time to think about the last offer, and still expect to be able to take it the following week or month, even though the other side has told them that all bets are off after the mediation session ends.

Once a party makes a settlement offer, the offering party is rarely able to negotiate for a lesser amount. One reason is that parties' risk calculations going forward still favor the original offer. Parties might leave a negotiation session without a deal, then go back to spending many thousands of dollars doing more discovery and filing more motions, but that work usually doesn't change the value of the case. It is water under the bridge by the time the parties get to their next settlement opportunity. Perhaps more importantly, the opposing party will rarely be willing to settle for less than previously offered. So any offer that is made usually sets a floor for future negotiations. Backtracking is looked upon as bad faith. Parties should therefore not expect that they will be able to retract an offer that was made previously. That only happens on rare occasions, perhaps only when parties' view of the value of the underlying case has substantially changed. Parties can always walk away from the table after an offer has been rejected, but they should not expect to be able to make a better deal than the one they told the other side they would be willing to take.

Setting a time limit on acceptance of an offer still serves some useful purposes, however. It lets the other side know that you are serious about negotiating now, but you might not be interested in negotiating later. Putting an expiration date on an offer also prevents a belated acceptance of an offer that a party might later regret having made.

(photo from freedigitalphotos)

Wednesday, September 23, 2009


President Obama yesterday succeeded in getting Israeli Prime Minister Netanyahu and Palestinian President Abbas to meet in the same room in New York. The President said "Simply put, it is past time to stop talking about starting negotiations, and time to move forward." (quoted in the Los Angeles Times) According to a Netanyahu aide quoted in the New York Times, the meeting was to take place "without preconditions, as the Prime Minister has always wanted." This is obviously a reference to the Palestinian insistence on a settlement freeze prior to any serious negotiations. But the Israelis have also set preconditions to various meetings in the past, and Israel and the United States still will not negotiate with Hamas unless Hamas renounces terrorism and recognizes Israel's right to exist.

An insistence on pre-conditions can create a stalemate before any negotiations have even begun. If each party demands that the other side "give in" on some point before they will even deign to talk to each other, they may give up an opportunity to obtain concessions on those points as well as others. By demanding a settlement freeze, for example, the Palestinians may not obtain any concessions whatsoever on settlements. In the more mundane settlement negotiations in which I operate, I sometimes encounter parties who do not want to proceed unless the other side has an appropriate representative physically present; or who do not even want to attend a mediation unless the other side indicates in advance that it is willing to consider certain settlement parameters. In those situations, I generally try to find out whether there is a possibility of getting anything constructive done even if these pre-conditions cannot be met. If the parties and the mediator insist on waiting until ideal conditions are present, sometimes they miss an opportunity to resolve a dispute.

On the other hand, requiring that certain agreements be made even before negotiations can begin is often an effective way of getting the necessary pillars in place that will support an eventual settlement. And it is difficult to start a negotiation without at least some ground rules, so it can be said that there are certain minimal pre-conditions to every negotiation. For example, parties need to understand when and where the meetings are going to take place, and they have to accept the legitimacy of the people negotiating for the other side. They ought to enter into negotiations with a willingness to listen, and a willingness to consider resolving the dispute. Without at least a minimal acceptance of the idea of mediating a dispute, it is probably not possible for parties to resolve a dispute through mediation.

Tuesday, September 22, 2009

Litigating efficiently

A hot topic in the litigation field during these bad economic times is how to reduce litigation costs. Numerous articles and discussions have appeared about alternative billing or staffing arrangements that can save clients money, presumably by reducing the amount of time spent on activities that do not advance cases toward trial. I agree that billing by the hour sometimes creates perverse incentives for attorneys, just as it does in any profession that bills by the hour or by the procedure. I also agree that over-staffing and engaging in unnecessary work drives up legal bills. But I also think that discussions about litigating more efficiently sometimes miss the larger point.

The best way to reduce litigation costs is not to litigate. Because once parties have chosen or are forced to litigate, they have entered into the most expensive possible way to resolve a dispute. Moreover, costs are a double-edged sword in litigation. Parties should be conscious of the costs they are incurring in filing a motion or serving or responding to discovery, but they also can't help but take into consideration that they are inflicting costs on the other side by engaging in various activities. Often these costs drive cases toward resolution. Therefore, the whole idea of "efficient litigation" may be something of an oxymoron.

The problems of conducting a lawsuit may be analogized to the problems of fighting a war. The nation does not want a general who needlessly wastes troops and equipment in fighting unnecessary battles. But at the same time we recognize that if we want to win the war, we sometimes have to throw our troops and equipment into the battle for the purpose of causing the other side to throw their troops and equipment into the battle. And if we really want to reduce the costs of war, the best way to do that is not to leave war-making decisions entirely to the generals. Because generals tend to think about solving problems by military means.

One of the most potentially wasteful litigation activities is discovery disputes, generally the least favorite type of dispute that judges have to decide. So the courts have been trying for years to develop methods of resolving discovery disputes without needless acrimony and massive expenditures of resources. First they tried imposing sanctions for discovery abuses, but this only seemed to increase the stakes of discovery battles. Then they tried imposing requirements for meeting and conferring in advance of filing discovery motions. This seems like the right way to go, but still in many cases, these meet and confer sessions have turned into just another adversarial stage of a lawsuit. In order to make the meet and confer process work, the parties are supposed to seize the opportunity to have a genuine give-and take about discovery and actually try to come to an agreement that satisfies both their needs without burdensome requests and responses and motions. To do that, however, they have to get out of the litigation mind-set and get into the negotiation mind-set. These are fundamentally different ways of trying to resolve a dispute. To reduce time and expense spent on solving a discovery dispute requires the parties to act a different way from the way they generally act in conducting litigation.

Parties can best control costs only by choosing a different process of dispute resolution than litigation, because litigation is fundamentally an adversarial process that is not necessarily dedicated to reducing the number of issues that are in dispute, but instead often provides incentives for the parties to create more issues to fight over. So the best way to control costs in litigation is not to litigate, just as the best way to control costs in warfare is to resolve disputes at the peace table instead of the battlefield.

Tuesday, August 18, 2009

Federal Rules Reforms

I posted comments on my litigation blog on a report issued this spring by the American College of Trial Lawyers Task Force on Discovery and the Institute for the Advancement of the American Legal System, which recommends a number of reforms of the Federal Rules of Civil Procedure, chiefly concerning limitations on discovery. This same report gives but a passing nod to alternative dispute resolution. (pp.21-22) The trial lawyers who produced this report are willing to consider what they themselves describe as "radical" changes to the discovery rules, as well as numerous other reforms. Yet, while they recognize the value of mediation, their support for it is lukewarm at best. Although the report recommends that courts raise the possibility of mediation or other forms of ADR, it describes this recommendation as a "controversial principle," yet one that "recognizes reality."

Understanding that trial lawyers are interested in making the rules work more efficiently so that more cases can be tried, their wariness toward negotiated solutions to lawsuits, or issues within lawsuits, is still somewhat surprising. It seems to me that the best way to avoid wasteful litigation on the way to trial is to encourage negotiated resolutions of pre-trial issues, particularly discovery disputes. Finding means to resolve pre-trial disputes, other than by making demands and objections, exchanging angry letters, and filing motions, might encourage the early settlement of more cases, but it should also allow more cases to be tried. Many cases settle now only because of the crushing burden and delays of pre-trial motions and discovery. Trial lawyers, as well as clients, should have an interest in reducing those expenses by encouraging their resolution through a negotiated process. Mediation should not be thought of as an "alternative" procedure that the courts have to send the parties elsewhere to accomplish, but should be integrated into the rules themselves. Courts already do this to some extent by requiring the parties to meet and confer before filing certain motions, and the Federal Rules now require an early meeting of counsel (Rule 26(f)) and a voluntary exchange of initial disclosures. (Rule 26(a)) For a true reform of the Federal Rules, more thought should be given to further incorporation of "alternative" dispute resolution procedures into the process.

Monday, August 3, 2009

Why the Democrats Blinked

It seems appropriate to follow up on my earlier post about the factors that create impasse (as applied to California budget negotiations), with a post on what finally broke the impasse. In other words, why did the Democrats cave in to the Republican demand that taxes not be increased? Some political analysts attribute that result to the Democrats simply being more "wimpy" than the Republicans. Because Democrats seem perpetually less organized and more prone to infighting, because they seem to have more difficulty getting a coherent message across, or because they just lack backbone, the thinking goes, they are always getting rolled. I'm sure there is something to this kind of personality analysis of the parties, but I'm not sure it's the whole story. Here I want to analyze the issue from the point of view of negotiation dynamics, and the needs and interests of each side in making a deal.

Let's over-simplify the options available to close the California budget gap as (1) raising taxes, (2) cutting spending, and (3) more borrowing. Let's over-simplify the Legislature as consisting of two parties of approximately equal bargaining power (the numerical disadvantage of the Republicans is balanced by the two thirds requirement for raising taxes). Given those dynamics, one would expect a result that consists of a healthy dose of both tax increases and spending cuts, with some additional borrowing thrown in to satisfy both sides' interest in deferring unpleasant problems. But that was not the result that obtained. The advocates of no taxes clearly got more of what they wanted, because the resulting deal basically consisted of a combination of spending cuts and more borrowing. So why did the Democrats blink while the Republicans held firm?

I think one answer gets back to my discussion of the political pressures on each side. Republicans have a lot to lose by agreeing to tax increases. They have taken a pledge not to increase taxes. Each legislator who votes to increase taxes faces likely defeat in the next primary. The party's whole philosophy is based on the idea of reducing the size of government, including using tax reductions as a lever to reduce the size of government (query whether that has ever actually worked in practice, but that's the theory anyway). The Democrats, on the other hand, are perhaps more beholden to interest groups that depend on state spending, and also more committed to a philosophy of using government to solve problems. So they have something to lose by agreeing to spending cuts. But Democrats don't face the same political consequences if they don't raise taxes that Republicans face if they do raise taxes. Since nobody likes paying taxes, voters are less likely to be mad at legislators who refuse to raise taxes. Therefore, Republicans probably suffer more if they give up their commitment not to raise taxes, than Democrats do if they go along with spending cuts. There is another aspect of the costs to each side of not making a deal. If California cannot pass a budget, its credit rating goes down; its reputation suffers; and its government has difficulty functioning. While these costs bear down on everyone, the political consequences of failure may bear down more heavily on Democrats. Indeed, one might even argue that it doesn't bother Republicans as much when the government doesn't function, since that accords more with their philosophy.

As a result of all that, we had the classic situation where even though both sides seemed to have equal bargaining power, one side clearly needed to make a deal more than the other side. Whenever that happens, the party that must make a deal generally gets a worse deal. The other side only needs to wait out the side that is getting more and more anxious by the hour to make a deal, until the party that must make a deal finally caves. That seems to be at least part of the explanation for the deal that we Californians got.

(AP photo) (Notice the body language and facial expressions of the players in the accompanying photo: the self-satisfied smirk on the face of Assembly minority leader Blakeslee, the powerful stance of Governor Schwarzenegger, the fawning grin of Senate president Darrell Steinberg, and Assembly Speaker Karen Bass's tilted-back head and forced smile.)

Friday, July 31, 2009

The Beer Summit

Once again we see the nation's mediator-in-chief at work in the White House, bringing together the two adversaries in a nasty little conflict, not necessarily to resolve the conflict, and definitely not to determine who was right and who was wrong, but simply to begin a dialogue and raise legitimate issues. I did a post on this today on my political blog, where I initially expressed annoyance that the Gates-Crowley incident was distracting our attention from the important policy issues that the nation needs to resolve this year, but then I ultimately decided that a conversation about racial profiling, police procedures, and whether the Gates arrest can be seen as a metaphor for changes happening in our society, might be a conversation worth having.

But here I think it's worth pointing out how the President's technique seems to have been effective in defusing a divisive situation. To do that, he first had to draw even more attention to an incident that was already distracting him and the nation from some important policy debates, which perhaps caused a slow-down in the progress of health insurance reform bills through Congress, and which perhaps allowed some commentators on both "sides" of the issue to make inflammatory statements that could have made the issue a little more heated. Then he gave the participants, and all of us, and himself, a chance to re-evaluate our initial judgments on this incident. Finally, he achieved reconciliation in the form of turning feuding parties arguing about who was right and who was wrong, into participants in a dialogue in which both are seriously trying to empathize with the other's point of view.

Ultimately, the value of mediation is not in assigning blame, and perhaps its highest value is not even in resolving disputes. Rather, mediation may sometimes be most valuable simply to provide an opportunity for participants in a conflict to try to understand the point of view of their adversaries. This seems to be the president's favorite technique for dealing with almost every situation, and it is irksome to a lot of people who are not interested in trying to understand opposing points of view, and who would prefer to fight and demolish their adversaries, whether foreign or domestic. But for more enlightened participants in the political process, the hope is that through mediation, we can at least have a civilized discourse, and perhaps achieve resolutions that all sides can at least understand.

I can't help but note, however, that at least some of the media's treatment of this incident, and even some of the participants' comments, reflect an unfair lack of appreciation of the important role of the mediator in facilitating these kinds of dialogues. From the New York Times report on the beer summit comes this quote from Officer Crowley:

"Asked about the president's contribution to the meeting, Crowley said: 'He provided the beer.'"