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)