Tuesday, June 30, 2009

My new round table

Furniture has important symbolic as well as utilitarian functions. In a courtroom, for example, the elevated position of the judge, and the adversarial positions of the parties, both facing and subservient to the judge, are perfectly symbolized and reinforced by the arrangement of the furniture. In a conference room, the person who sits at the head of the table sometimes assumes a similar position of authority. Parties attending a mediation usually expect the mediator to sit at the head of the table, and arrange themselves on each side, facing but often not talking to each other, and often directing their attention to the mediator at the head. To shake up these expectations, I sometimes like to sit to one side of the conference room table, and arrange the parties in a more haphazard structure.

The ideal form, however, is a round table, where every participant starts from a position of absolute equality. A round table symbolizes many of the values of mediation, and is also a popular shape for international diplomacy. For example, here is a picture of the conference room table at NATO headquarters (from the official State Department blog):

I have often wished I had a round table to use for mediations. But they are not practical for joint sessions, for two reasons. One is that the shape of most conference rooms, including mine, does not accommodate a round table. The other is that the need to fit in a lot of participants would require a large round table, which puts people too far away from each other to have meaningful personal communication. When you talk to someone at a distance, you tend to make a speech, instead of simply talking to the other person. So we settle for the standard oval table.

But I am finally putting some theory into practice by getting a small round table, only 42" wide, around which only four or five people can sit comfortably, but which fits perfectly in the small inside office I use as a work and storage room, and where I stash one side or the other for caucus sessions. This room used to have a big desk in it, and was always a bit awkward for caucuses. I can't wait to try it out for mediations, either for caucuses, or other types of sessions with a small number of participants.

Wednesday, June 24, 2009

Drawing Lines in the Sand

Paul Krugman says that President Obama messed up on health care big time at his press conference on Tuesday. Supposedly the President did that by undercutting his eloquent pitch for a so-called "public option" by refusing to state that a public option was a non-negotiable feature of his health care reform proposal. The exact quote is as follows:

"We have not drawn lines in the sand other than that reform has to control costs and that it has to provide relief to people who don’t have health insurance or are underinsured."

According to Paul Krugman, President Obama is making a mistake by negotiating with himself, and thereby giving away more than he needs to. Krugman displays a common view of negotiation that supposes that a party shows weakness by indicating that everything is on the table for negotiation, or by refusing to state in advance that certain conditions are non-negotiable. I believe most mediators would disagree with that common view. Mediators try to discourage parties from making "final offers," or from stating that a certain point is non-negotiable. If a party who draws a line in the sand does not get his way, he has left himself only the alternatives of either walking away from a potentially advantageous deal, or backing down from his "non-negotiable" position. If anything is going to make someone look weak, it is having to back down from a supposedly non-negotiable position. Therefore, it should be viewed as a sign of strength, not weakness, to acknowledge that every issue is negotiable. That doesn't mean you are going to have to compromise your fundamental interests, but it does prevent you from painting yourself into a corner that can be created by announcing a non-negotiable position. In other words, once you say something is non-negotiable, you limit your own negotiating options, and you may preclude obtaining a deal altogether.

Let's compare President Obama's approach to this year's health care reform debate with former President Clinton's approach. President Clinton waved his pen in the air and told Congress he would veto any bill that did not meet his conditions. Guess what? President Clinton didn't get any bill at all. By taking an open and flexible approach, by listening to and including all points of view in the process, but by nevertheless advocating the administration's position as strongly as possible, it seems likely that President Obama will succeed in obtaining significant health care reform this year, where President Clinton failed. People like Paul Krugman will complain that the final product does not go as far as Krugman would have wished, or that the administration gave away too much in negotiations. My guess, however, is that an open-minded approach to negotiations will result in at least as successful an outcome as a hard-headed approach.

Monday, June 15, 2009

Focus on the Positive

Suppose one of the parties to a negotiation makes what could be seen as a major concession, but attaches a bunch of conditions to it that everyone knows are unacceptable to the other side. This is what Prime Minister Netanyahu's speech did by for the first time accepting the possibility of a Palestinian state, but conditioning acceptance of such a state on limiting its sovereignty. We have the choice of looking at such an offer as a sham, or as offering a real possibility of a future agreement.

Of course the opposition's initial reaction has been negative, but any mediator's job ought to be to accentuate the positive. Suddenly we have a concept that both sides now agree upon. Yes, there are still a lot of details that remain to be worked out, but Netanyahu's statement should still be treated as a major concession on one of the most fundamental issues of any future peace negotiations. If the existence of a Palestinian state is taken as a given, and if that is something that the Palestinian side has always said is important to them, then it may become possible to resolve other points of disagreement as a means toward achieving that end. Perhaps the Palestinian side can be induced to modify some of its positions on the right of return, or the status of Jerusalem, for the purpose of achieving its desired goal of a Palestinian state. Perhaps the Israeli side can be induced to agree to attach future relaxations on some of the conditions attached to Mr. Netanyahu's statement, once certain benchmarks relating to the viability of such a state, and the reduction of violence, have been achieved. The point, from a mediator's perspective, is to deal with the issues one at a time, and use any agreement on any point of contention, as a building block and an incentive to reach agreement on other points.

Friday, June 5, 2009

Exit Strategies

Some of mediation's touted benefits include the potential for repairing a broken relationship, or the chance to re-open communications between estranged business partners or a divorcing couple, people who must continue to deal with each other. Mediation can also devise creative solutions that open up if the parties are able to resume or start a new relationship, for example, settling a dispute over poor service or defective products by supplying new products or services. In many lawsuits, however, the parties have no interest in doing any further business with each other. In the garden variety personal injury case between strangers, there is no reason for the parties to desire any future contact, and even in a case that arises out of a soured commercial or employment dispute, the parties may not wish or be able to carry on any future business. So the question is often asked, how do some of the potentially transformative concepts of mediation play out in those situations where the parties want to be completely free of each other?

In response to people who say they want nothing further to do with each other, it could be eye-opening to point out that they are already in a close relationship with the person they want to separate from--a relationship being perpetuated by the lawsuit itself. Lawsuits force people to continue to think about each other; to continue to have contact with each other; to continue to hurt each other; or at least to continue to re-live the events that caused the parties' prior relationship to end badly. Lawsuits often merely replay in another forum the same destructive actions the parties engaged in with each other that led to the dispute. In that respect, the parties to a dispute are a little like the characters in the Sartre play No Exit, forced to spend eternity in a vicious cycle of frustration and enmity. (photo credited to T. Charles Erickson from New York Times review of Hartford Stage production)

What mediation offers people who don't want anything further to do with each other, is the chance to have nothing further to do with each other. The litigation process does not always offer the same sort of finality. Lawsuits take a long time to resolve, and even if they go to trial, the trial is not always the end point, and does not always bring the closure people are looking for. After the trial is over, the losing side may appeal. If the trial results in a large judgment, the plaintiff may have difficulty collecting it. After a lawsuit is over, an unhappy party may file another lawsuit. Even if a case is resolved by a final court decision, that doesn't stop people from thinking about the injustice of the result. And even the party that "wins" a lawsuit is often unhappy about the size of the victory or the amount of his lawyer's bill. I was once consulted about a dispute between a group of homeowners and a neighboring developer.  These parties had been warring for years, at tremendous cost to both sides.  While the settlement that was eventually proposed did not satisfy all of the goals of either side, what it did accomplish was to stop the bloodletting on both sides, and also to physically separate the activities of each group from the other.  Continued litigation might have resulted in bending one side's will to the other's, but settlement allowed both sides to go their separate ways.  

Often people don't realize just how consuming their dispute has been, and will continue to be, and they also don't realize just how relieved they would feel to leave it behind. Often they cannot even imagine letting it go. People may need help both understanding that they are trapped in a cycle of hurt and recrimination, as well as in visualizing the possibility of getting out of that cycle. So there is a kind of reconciliation that can take place even when the parties desire no future relationship and only want to put the matter behind them.

Thursday, June 4, 2009

Hollywood hates settlement.

To help my kids with a school mock trial project, we've been showing them some classic trial movies, such as Inherit the Wind, A Few Good Men, The Verdict, and of course, My Cousin Vinny. These movies not only illustrate some good trial techniques, they also remind us of how much we enjoy watching the drama of trials. Stories such as these depend on conflict and its resolution captured in a trial. Conflict being deemed essential to a good story, it is only natural that the movies generally avoid telling stories of people peacefully resolving their differences. But some of these movies go even further, by depicting settlement as illegitimate or even evil. In A Few Good Men, Tom Cruise plays a cocky young attorney who plea bargains all of his cases and has never seen the inside of a courtroom. Finally he is forced to defend two Marines at trial, which is shown as the only way they can reclaim their honor, and he can prove that he is a real lawyer worthy of respect. Paul Newman's portrayal in The Verdict of an over-the-hill attorney who has one last chance to regain any sense of worth, tells an even more profound story. It is clear that if he takes the money the hospital (ironically owned by the Archdiocese) offers him to settle his medical malpractice case, he will lose his soul.

In both these movies, the settlements offered are fair, and accepting those settlement offers would have represented an entirely rational choice, given the enormous risks of trial. (In both cases, the attorneys are sure during the worst moments of the trial, that they will lose, and we see that losing the case is a real possibility.) Further, in The Verdict, the Paul Newman character's rejection of the defendant's settlement offer also represents a serious ethical violation, as he failed to inform his client's family of the settlement offer, and they probably would have directed him to accept it. Yet Hollywood still presents the idea of settlement as somehow shameful, because it would have deprived both the parties and their attorneys of the chance of justice or redemption amid the full trappings of the adversarial process.

Clients or other parties to a dispute often bring the same attitudes to a mediation, attitudes that are no doubt influenced by such stories. People frequently believe that an outcome obtained by fully playing out the adversarial process, even though it carries enormous risks and costs, is more legitimate than an outcome obtained through a negotiated resolution. One cannot say that people are wrong to feel this way, and it is difficult to try to overcome these feelings without shaking people's faith in the entire judicial system. It may be better to remind people that they always retain the option of playing the process out to its conclusion, and that no one is trying to deprive them of that right, only to explore whether a negotiated resolution might actually give them a better chance of obtaining salvation or peace or justice or whatever they may be seeking.