Wednesday, December 29, 2010

Guilt

When we meet Orestes at the beginning of the second play in Aeschylus's trilogy, Choephori (The Libation Bearers)(for the first post in this series, click here), he is at his father's grave, gathering his courage "to do what must be done."   Once he gets to the palace, in disguise, Orestes doesn't hesitate to kill Aegisthus, who has usurped his father's throne, and taken up with his mother.  But killing his own mother is a bit more difficult for him.  After finding that Aegisthus has been murdered, Clytemnestra confronts her son, laying the full guilt treatment on him.  First she reminds him that she gave him life.
Orestes, my child!  Don't point at me with your sword.
See these breasts that fed you when you were helpless.
These were your first pillows when you were helpless.
Orestes hesitates, asking whether a man can perform anything more dreadful than killing his own mother.  Clytemnestra then begs for her life, and attempts to justify killing her husband by claiming she was in the hands of fate.  Orestes cannot win.  He knows he will be cursed by his mother if he succeeds, and cursed by his father if he fails.  Finally, obeying the hand of fate, he strikes his mother down. The chorus cries out
A two-headed monster of guilt--
But we must mourn them.
Our prince has put a crown of blood
On the terrible past
At his own cost
But at least he has given life to the hope of Argos. 
After the murders, Orestes tries to justify his actions.  As to Aegisthus, he says he bears no guilt: "On him I merely exacted the law that condemns adulterers."  But what about killing his own mother?  Though  he tries to justify that act also, he knows this second murder will continue to torment him.  He sees the Furies rising up after him, and must flee, even though the chorus tells him these are hallucinations and he has nothing to fear.

Ancient law demanded an eye for an eye, an endless series of revenge killings that perpetuated a vicious cycle of violence.  Orestes knows that the Furies are not interested in any extenuating circumstances, but despairs of whether he will find a fair venue to plead his case.  But even today, the law's remedies don't always address the parties' root problems.  In part that may be because the law's tools are not always sophisticated enough to probe beneath the surface.  The courtroom has trouble accommodating more than what we can see and hear.  Even when we may need to decide whether someone acted intentionally, we still usually don't have to understand precisely what is going through their minds.  The law might even rule some questions about motivations to be inadmissible speculation.  Ultimately, however, juries are still interested in finding out what is really going on. Guilt, fear, pride, regret, jealousy, greed, love, hate: these motivations often drive our actions; we need to understand these emotions to make sense of the story.

I mediated a case not too long ago which might not even have been brought except that the plaintiffs had borrowed from their parents the money they had invested with the defendants.  Their inability to recover the money so far and pay it back filled them with shame and guilt.  The legal system, however, was only concerned with the terms of the contract they entered into, and whether the defendant had breached it.  The rules of evidence might not even allow the plaintiffs to explain in court what was driving the lawsuit, and causing them the most anguish.

Several years ago, I tried a case involving a family business, always a fertile ground for Greek or Shakespearean tragedy.  A father had left the business to his sons, one of whom had allegedly forced the other one out.  Ostensibly, the case involved compliance with the corporate by-laws and shareholders' agreement, unfair competition and similar issues.  What the jury seemed interested in, however, was whether the parties had fulfilled their father's wishes.

Before I started my own law firm, I was a partner in a dissolving firm that had to resolve a number of difficult issues among the remaining partners.  It seemed that every time we had to consult our very detailed and comprehensive partnership agreement to find a solution to these issues, the solution did not seem satisfactory to us.  Instead we solicited input from everyone, talked it out, and resolved all of the issues by a new agreement.  In all these cases, the law seemed a crude tool that could not satisfy the parties' needs, but the parties still needed to find a way within the system to reach a result we can accept.

At the beginning of this play, Orestes's sister Electra also seems to be searching for a more sophisticated form of justice.  She asks what she should pray for.  When the chorus answers, "justice," she seems unsure whether there is a difference between justice and vengeance.  Electra says she wants  "[t]o judge, to convict, to condemn."  The chorus reminds her that the gods may only be able to provide retribution.  "To kill!  Blood for blood.  Pray for that."  Electra seems unsure that that is what she wants for her mother.  Nevertheless, she stands with Orestes praying for justice against her father's killers, and accepts him as the instrument of that justice.  Presumably she does not want him to pay the same terrible price that they are making their mother pay. Can the law do better than retribution?  Can Orestes escape the Furies?  Find out in the next installment.

(Hughes translation)

Thursday, December 23, 2010

Revenge

We can trace our justice system back to Moses receiving the Ten Commandments, or Hammurabi's Code (1700 BCE), if we wish. I'd prefer to start with Aeschylus's Oresteia, from 458 BCE.  I decided to reread this ancient three part Greek tragedy about the origins of a new concept of justice, to see if it might shed some light on transitions that seem to be occurring in our modern legal system.  Readers might have to bear with me for a few blog posts before I reach that goal. 

In Agamemnon, the first play of the Oresteia trilogy, Aeschylus tells the story of Agamemnon's homecoming and murder.  Agamemnon has been away for ten years fighting the Trojan War.  In the meantime, not surprisingly, the queen has gotten used to not having him around, and has made other plans for ruling the kingdom with her new partner Aegisthus.  Their murder of the returning king could have been explained as a simple power grab, but they choose not to explain it that way at all.  Instead, they justify their actions in terms of revenge.  As the chorus is about to condemn Clytemnestra for her murderous act, she immediately reminds them of Agamemnon's sacrifice of their daughter Iphegenia, whom he killed to appease the gods and allow the fleet's passage to Troy. Why not judge Agamemnon for that, she asks.  And why does she not have the right to avenge her daughter's death?  Foreshadowing the next play, Clytemnestra's only concern is her recognition that someone may in turn attempt to avenge the murder she commits.  To protect her from that, she relies on her partner in crime and on the throne, Aegisthus.
I too can swear a sacred oath--
The gods can hear me too.
By my daughter's protector, Justice,
Here perfected--as you can see,
By Iphigenia, by the Fury
That must avenge her
And has avenged her--that holy fury
For whom I poured this blood,
I swear by these, I am not afraid
Of this murder's avenger
While my own protector, Aegisthus,
Stands at my hearth beside me.
When Aegisthus finally appears, he too makes no mention of any political desire for the throne, but instead speaks only of obtaining revenge for the murder of his own half-brother by Agamemnon's father.
Justice!  At last the day of justice has dawned.
This is perfect proof that the gods
Watch men and punish evil.
What a beautiful sight
To see the man gagged and bound
In meshes knotted by the Furies!
To see his body
Emptied of all its blood.
At last he has paid
For the inhuman crime his father committed
Against my father.
Aegisthus seems perfectly satisfied with this result, and feels no need to justify what to us might seem the absurdity of Agamemnon paying the price for a crime his father committed against another man's father. But the chorus, while recognizing the rightness of the divine law that provides that a life must be paid for with another life, expresses some doubts about the sense of this law:
But this law of Zeus
Is a kind of disease
Inherited through the blood.
See how it has crazed
Every member of this house.
The obvious problem with the revenge cycle, of course, is that it has no end.  By the end of the third play, this law must be overturned, ushering in a new era with a different idea of justice. Until then, the first play ends with the chorus calling for Clytemnestra's son Orestes, who is in exile, to return and avenge his father's murder, while the new king and queen enjoy their temporary triumph.  Clytemnestra concludes the play by saying
You and I, Aegisthus, we are the law. . . .
Whatever word we speak, that is the law.
At last, the throne of Argos is ours.
So Clytemnestra finally admits that the law is based on power.  But Agamemnon is mainly about revenge and retribution.  It is also about a destiny that its characters cannot escape.  Cassandra, whose speeches occupy the center of the play, is a character condemned by Apollo because she spurned his advances.  Apollo cursed her by leaving her with the power to see the future clearly, but making sure that nobody would ever believe any of her prophesies.  She knows exactly what is going to happen, but she cannot prevent Agamemnon's fate, or her own, and she cannot succeed in alerting anyone to their danger.

Although we no longer believe in fate, and we have even made most forms of private revenge illegal, we have not completely escaped our ancient instinctual desire to strike back against those we feel have wronged us. We still hear of family feuds being carried on for generations, and we know that many litigants are motivated by the desire for retribution.  Currently, crowds are flocking to the new movie version of True Grit, subtitled Retribution, in which the teenage heroine, a modern Orestes, is compelled to avenge her father's murder.

We also still see litigants who are trapped by the machinations of a pitiless court system, with rules and procedures not of their making, and which they are powerless to escape.  Litigants often become consumed with the task of following the twists and turns of their cases through the courts, trying to make sense of interim court rulings, needing to understand arcane procedures, and reading the tea leaves of victories and setbacks along the way.  Recently I was trying to persuade a litigant to let go of her lawsuit, on the best terms she could obtain.  The alternative of continued litigation was only going to cost her more money, and even if she won her case, she would not be likely to collect on any judgment.  But this litigant told me she felt compelled to see the case through, at least to its next phase, because she had already invested so much time and money in it, and because she needed to prove she was right.  Like Clytemnestra, she is therefore in danger of becoming as much a victim as an instrument of a crude but powerful system of justice based on retribution. Stay tuned to find out whether Orestes can avoid a similar fate.

(All excerpts are from the Ted Hughes translation)
(painting: Collier, Clytemnestra after the Murder)

Monday, December 13, 2010

Common Ground, not Compromise

Here is a portion of a 60 Minutes interview with incoming Speaker of the House John Boehner, who explains why he thinks "compromise" is a dirty word:

J. BOEHNER: We have to govern. That's what we were elected to do.

STAHL (on camera): But governing means compromising.

J. BOEHNER: It means working together. It means find...

STAHL: It also means compromising.

J. BOEHNER: It means finding common ground.

STAHL: OK, is that compromising?

J. BOEHNER: I made clear I am not going to compromise on -- on my principles, nor am I going to compromise...

STAHL: What are you saying?

J. BOEHNER: ... the will of the American people.

STAHL: And you're saying I want common ground, but I'm not going to compromise. I don't understand that. I really don't.

J. BOEHNER: When you say the -- when you say the word "compromise"...

STAHL: Yeah?

J. BOEHNER: ... a lot of Americans look up and go, "Uh-oh, they're going to sell me out." And so finding common ground I think makes more sense.

STAHL (voice-over): I reminded him that his goal had been to get all the Bush tax cuts made permanent.

(on camera): So you did compromise?

J. BOEHNER: I've -- we found common ground.

STAHL: Why won't you say -- you're afraid of the word.

J. BOEHNER: I reject the word.
Lesley Stahl may not understand the distinction Boehner is trying to make, but I think a lot of mediators would.  As I discussed in a prior post, many participants in negotiations instinctively recoil from the very idea of compromise.  To compromise means to sacrifice one's principles.  It means taking less than one is entitled to.  It means giving up on the very idea of finding justice.  To find consensus or common ground, on the other hand, means identifying the degree to which both side's interests can be satisfied.  It means finding areas where you and the other side might agree.  It means finding a solution that achieves a better result for both sides than the alternative of continued conflict.

One of the reasons that the tax cut deal hammered out by the White House and Congressional Republicans was viciously attacked from both the right and the left was that it was seen as a compromise of fundamental principles.  Those who favored the agreement, on the other hand, saw it instead as a means of satisfying each side's interests, at the expense of  having to agree to satisfy the other side's interests.

I don't know what kind of a Speaker John Boehner is going to turn out to be, but I think he is making a useful distinction that could enable him to serve the interests of his most principled constituents, while at the same time allowing him to make agreements with the opposition that have the potential of getting things done.

Tuesday, December 7, 2010

Negotiation Lessons from the President

Here are the president's comments on the deal worked out yesterday on taxes: 



The media seems preoccupied with trying to figure out which party gains politically and which party loses; who wins and who caves.   Partisans on both the right and left seem anguished by how much each side had to "give up" to make a settlement.  Watching the president explain the rationale for making a deal, I am struck by how hard he has to work to persuade these partisans of the necessity and justifications for the deal.  It is remarkable how similar the president's rationales sound to the explanations lawyers and mediators have to provide for parties to a litigation, to justify the benefits of a settlement over the uncertainties of litigation. 

This particular deal looks a lot like a "win-win" settlement.  That means neither side got exactly what they wanted, but both sides were able to satisfy important interests.  And the alternative to this deal would have meant failure for everyone, because both sides were agreed that they wanted to preserve tax breaks for the middle class, and if they couldn't resolve this issue, then all of the Bush tax breaks, including those for the middle class, would have expired at the end of the year.  To avoid that, they had to agree to extend the 35% top marginal rate for high earners for two more years, instead of allowing it to revert to 39%, but in return Republicans agreed to substantial additional tax breaks for working families.  In addition, the negotiators won a thirteen month extension of unemployment benefits.  (Ezra Klein's summary of what he called an imperfect, but not bad deal, is here.) (Andrew Sullivan also has a very good analysis of how shrewd a deal this was, from the president's point of view, here.)

What may be even more important and impressive is just the fact of being able to make a deal at all, in the wake of a polarizing election, and especially one that satisfies the most important interests of both parties.  This seems to represent a triumph of the Obama campaign's promise to bring interest-based negotiation (that might be a technical term for what in politics we should just call representative democracy), to Washington, instead of partisan gridlock.  The President's willingness to negotiate should be seen as a strength, not a weakness.

(A slightly different version of this post appeared yesterday on my political blog.)

Thursday, December 2, 2010

Mediator's Proposals Redux

Being a trial lawyer, a mediator, and most importantly, a Dodgers fan, I can't help following the newspaper reports of the juicy ongoing divorce litigation between Frank and Jamie McCourt.  The latest news illustrates some of the pitfalls of mediator's proposals.  I am speculating to some extent as to what is really going on here, but based on this LA Times report, it seems that Frank's side accepted, but Jamie's side rejected LA Superior Court Judge Peter Lichtman's confidential proposal.  Generally, the way mediator's proposals work, the mediator provides his settlement recommendation to both sides, giving both a time limit to either accept or reject the proposal.  If both sides reject the proposal, neither side is supposed to know whether or not the other would have accepted it.  But if either side accepts it, at least the accepting party will know how both sides responded. 

In this case, everybody now knows.  Frank's side publicly announced their acceptance of the proposal, which Jamie's side seems to indicate may have breached the confidentiality restrictions on the whole settlement process.  That shows one pitfall of the mediator's proposal.  It might allow one or both sides to game the settlement system to some extent, and possibly even to influence the judge who is preparing his ruling after the trial.  Another pitfall is that a failed mediator's proposal may end the mediator's effectiveness, and may even stall the whole settlement process.  One or both sides may be so unhappy with the mediator's proposal that they lose confidence in the mediator, and may be reluctant to return to the table.

When parties seek a mediator's proposal, they are moving a step away from the spirit of  mediation.  Instead of being empowered to resolve their own dispute, they have submitted to a third party's recommendation as to how to resolve their dispute, and thus to some extent are allowing a result to be imposed on them.  For these reasons, as I discussed in a previous post, I generally resist making mediator's proposals.  I think a mediator's proposal should only be used as a last resort, and only when both sides request it, or maybe only when both sides beg for one.  Even then, I prefer to indicate to both parties a range that I think would allow the case to be settled, and invite both parties to consider making a proposal within that range.

Sometimes, however, parties themselves are still reluctant to make the kinds of proposals that are needed to settle a case, perhaps fearing the loss of face when they realize they can only settle the case within a range that they previously indicated they will not enter.  What they sometimes need to save face is to receive the number from the mediator, rather than offer it themselves.  If I think that is the only way the case is going to settle, I might be willing to propose a number that I think both sides are willing, but unable to admit they are willing, to take.  Conversely, if I don't get the sense that both sides really want to be "forced" to accept a number outside their comfort zones, I prefer not to throw out a number.  The danger, as illustrated by the McCourt case, is that if this gambit fails to resolve the case, negotiations may be derailed, and one or both sides may only have succeeded in gaming the trial judge, the mediator, or each other. 

(Photos from TMZ)

Wednesday, December 1, 2010

Persuasion

I posted something earlier this week on the power of negative thinking, on my political blog, inspired by a New York Times article describing how customers' negative comments on the internet actually helped a business find new customers by boosting its search engine ranking.  That led me to think about how our instinct to attack, rather than to engage in dialogue with people who we believe have wronged us, can often be counter-productive.   In the case of the business described in the article, its dissatisfied customers would no doubt be frustrated to learn that the more they complained, the more they were helping the business succeed.  Indeed, the owner actually found these complaints so helpful that he was inspired to mistreat his customers even more egregiously, thus completing the vicious cycle.

When we fight back, we seek to vindicate our own position, and we want to obtain redress from the wrongdoer, but we don't really expect to get the other side to agree with us.  Perhaps we recognize how difficult it is to change our adversary's mind, so we don't even try.  Or we don't think about what it might take to change the other side's thinking.  In the case of the customers complaining about the business described above, those customers were probably only trying to warn other customers to stay away, or they were trying to find an outlet for their rage; they might have been trying to punish the business, but they weren't trying to change his mind.  I'm sure they didn't expect to end up helping him, but their methods could only succeed in aggravating themselves and antagonizing him, and perhaps scaring away some potential customers who took the trouble to read reviews.  Attacking an opponent usually causes him to become defensive.  Therefore, we really can't expect vindication unless we can enlist a neutral party (like a judge) to punish the wrongdoer.  Hence, the need for the entire justice system, which is one step more civilized than the ancient cycle of revenge and blood feuds.

People sometimes carry similar instincts and expectations into a mediation (which should represent a third, even more enlightened stage of dispute resolution).  They don't always recognize mediation's advances over litigation, sometimes seeing mediation as a forum--a quasi-courtroom--to demonstrate the correctness of their position, and the wrongness of their adversary's.   Parties who approach mediation in that manner are sometimes frustrated when the mediator does not "decide" the dispute for them, or when their adversary does not simply collapse into submission.  That is because they have not even begun to employ the techniques of persuasion; relying only on the techniques of argument.  Arguments are designed to persuade a third party; they are less effective in persuading the opposition.

Even in the context of trial practice, an over-emphasis on the adversarial tools of argument can reduce one's effectiveness.  Judges and juries don't always respond to logic, and sometimes sympathize with your adversary when your cross-examination sounds too aggressive or your closing argument too strident.  A good trial lawyer also seeks to create sympathy for one's client, ingratiate himself with the trier of fact, and treat his adversary professionally.

As my own practice has encompassed more mediation and negotiation, I have reduced my reliance on some of the more aggressive techniques of litigation even further.  Especially in the negotiation setting, we need a whole new set of tools, such as empathy, consistency, likeability, and  a whole bunch of other skills they don't teach in law school.  Studied and proven methods of persuasion can be learned (see, for example, Robert Cialdini's book Influence), and they generally don't include bludgeoning your adversary into submission.  Parties who no longer even want to speak to each other, can find a way to open a dialogue when the mediator helps create a conducive atmosphere, and when they make some effort to use the methods of persuasion.

(illustration from Sophrosyne Radical blog)

UPDATE: Google claims it has already fixed the problem mentioned in the opening paragraph of this post, so that businesses can no longer rely on negative reviews to boost their search engine rankings.

Wednesday, November 24, 2010

Learning to Negotiate

I had the chance yesterday to lead two groups of first year law students at USC in some mock mediation sessions.  This is truly my idea of fun!  I was impressed by how eager these students were to learn how mediation is done in the real world.  It was also interesting to see how quickly untrained law students adopted many of the attitudes and tactics of experienced attorneys and parties in settlement negotiations.  When it comes to negotiating, we all have a lot of experience from a lifetime of doing it, so in a way we are all experts.  On the other hand, we are also mostly  amateurs in terms of the theory and science of negotiation, and could all probably use more training.  So it's good to see that law schools are finally teaching these techniques.  I can't remember spending even a minute of formal training in negotiation when I went to law school, yet I soon found that it was a major part of practicing law.  Ironically, before mediation became so prevalent, it was probably even more important than it is now to train lawyers in negotiation, since we usually had to settle cases ourselves.  Now lawyers can rely on trained mediators to facilitate negotiations.  And most mediators consider it part of their job to help bad negotiators become better negotiators.

I was also struck by some of the differences between how students approach settlement negotiations as compared to the dynamics of real world practice.  In both of the mock mediations I did yesterday, the students playing the roles of plaintiffs' attorneys were much more reluctant to come down from their initial demands than plaintiffs' attorneys generally are in the real world, while the defendants' attorneys were fairly flexible.  Maybe that reflects a natural zealousness and sympathy of the law students who represented the class of injured plaintiffs, while the pretend defendants found it relatively painless to offer fake money and didn't have to worry about the effect of their largesse on the business's bottom line.  Another thing that students didn't always recognize is that settlement posturing is often highly client-driven.  The pretend lawyers I observed yesterday were highly confident of their positions, while their pretend clients were generally inclined to follow the lawyers' recommendations.  In the real world, it is quite frequently the other way around.  While I do see lawyers who are more aggressive than the clients they represent, more often it is the parties themselves who have unrealistic expectations of what they can achieve in litigation.   Clients who are new to the legal process may have no idea of the likely results of litigation, but they have a strong sense of what they believe they are entitled to, whereas experienced attorneys usually have a pretty good idea of the weaknesses of their own case.  Lawyers often rely on the mediator to help persuade their own client that a settlement might represent a better outcome for the client than taking on the costs and risks of continued litigation and trial.

Thursday, November 18, 2010

A is for What?

Only a fearless writer would title her book "A is for Asshole."  I know Vickie Pynchon mainly as a fellow mediation blogger.  Because I follow her blog, I can attest that she does not shy away from controversial topics, or refrain from telling you what she thinks.  She also offers a lot of sound advice about the practice of mediation.  Her book is an entertaining, and highly personal tour of the characters and problems you meet in conflict resolution.

The book's first surprise is that the asshole is not who you think it is.  The asshole of the book's title only appears to be the brash, inconsiderate lout you dread meeting in a negotiation.  Instead he might be a complete innocent whom you mistook for an inconsiderate lout.   And if you misread the situation, which is always a distinct possibility, Vickie forces you to consider that you yourself might be the asshole. Or at least that you might appear that way to the other side.  Or perhaps, she suggests, the asshole could be viewed as the dispute itself.

By the time I reached the end of the alphabet, and learned that conflict is the Zen master, I felt like I had not only lived through Vickie's variant of the conflicts we all experience in life; but also learned such tidbits as how she helped her father build a brick wall, negotiated her own divorce, and preserved important friendships.  In the process, I was continually reminded that we have to put aside our pre-conceived notions and explore what lies beneath the surface in order to resolve conflict. 

By identifying the characters we all meet or play ourselves, and the common situations in which conflicts develop, Vickie helps us see the traps those roles and situations create.  By explaining the techniques that mediators use to resolve conflict, she helps us free ourselves from those traps.

Friday, November 12, 2010

Caving In

A big battle is shaping up in Congress in the next few weeks over extending the Bush tax cuts.  If Congress does not act before the end of the year, all of these tax cuts will expire automatically, an outcome that is favored by hardly anyone.  Instead, Republicans would prefer that all of the tax cuts be made permanent, while Democrats favor making the tax cuts for those making under $250,00 a year permanent, while allowing rates to rise for those making above that amount.  There are also a number of intermediate possibilities: the most prominent one being floated would allow the middle class tax cuts to become permanent but extend tax cuts for the wealthy for a couple of years.  But if the deadline is allowed to pass, neither side will obtain its preferred resolution, or any intermediate resolution.  Instead, all of the tax cuts will simply expire by operation of law, and the American people will probably be mad at both parties for allowing everyone's taxes to rise.

Compare this situation to the typical scenario in private disputes.  In those cases, both parties may want to avoid the cost and risks of trial, but they still retain the hope that if the case goes to trial, their side might prevail.  In the tax debate, however, both sides know that if they let the deadline pass, both sides will certainly lose.  You might think that would make this tax debate easier to resolve, but it doesn't appear that it will be easy at all. Why?

What seems to happen in politics is that political preferences become positions, and positions take on symbolic importance.  The relative ability of each party to achieve its positions also demonstrates its political power.  (And since politics is merely a public manifestation of how we act in life, the same impulses tend to operate in private conflicts as well.)   Mediators recognize the absurdity of attaching enormous significance to the question whether millionaires should be taxed at a rate of 35% versus a rate of 39%, considering that as recently as the 1960's, the highest marginal income tax rate was over 90%.   Yet even when mediators, and perhaps the parties themselves, cannot explain the difference between the numbers they are fighting over, they often find that parties are unable to budge from those numbers.  Mediators often see cases where the defendant might start off offering a waiver of costs, while the plaintiff is demanding a seven figure settlement, but by the end of the session the parties are only a few thousand dollars apart, and there is no material difference between their positions.  Yet they still have difficulty closing the gap.  Either they just cannot bring themselves to make an agreement, or they have invested their numbers with significance that is not apparent from the numbers themselves.

In the case of the looming tax debate, one side has staked out a position that taxes are already too high, and any increase in rates would violate its cherished principles, while the other side has taken the position that allowing the highest marginal rate to increase is an important demonstration of the need to undo what the previous administration did, and restore more progressivity to the tax system.  Furthermore, both sides are now using language that will make it harder to achieve any sort of resolution.  Emboldened by their electoral victories, Republicans are marching back to the lame duck session asserting that they will refuse to compromise on this matter of principle.  Meanwhile, supporters of the Democrats' position are already expressing their disgust at any sign that the Democrats may "cave in" to any of the Republicans' demands.  Again, remember that both sides lose if they can't make a deal, so all this posturing could amount to a game of chicken, in which one side might have to give in to avoid disaster.  As in all games of chicken, the "winner" is the one who is most willing to risk mutual destruction.  Alternatively, both must try to find a face-saving result that will allow both sides to claim that they won, or else they will be attacked by their own constituents for displaying weakness or betraying their principles.  Anyone who tries to remind these parties that they are only arguing about a four point gap in the marginal tax rate for about 2% of taxpayers, is likely to be told that they have no appreciation of the issues at stake. 

Could this sort of posturing have been avoided?  Only if the parties had been able to frame the debate in a way that recognized each sides' true interests, instead of as a contest of wills.  What should have allowed a more rational debate to occur is the recognition that both sides share some interests, and also that each side has interests that internally conflict.  Republicans say they are interested in stimulating the economy and reducing the size of government, but they also say they are interested in reducing the deficit.  Tax cuts might serve one purpose but make it harder to achieve another.  Democrats are also interested in the conflicting goals of stimulating the economy and reducing the deficit, but they would prefer to stimulate the economy by increasing public works spending, rather than reducing rich people's taxes.  The parties' common interests should suggest numerous ways of resolving the issue of an appropriate tax rate for millionaires in a way that satisfies their shared goals of long term deficit reduction and short term economic stimulus.  Wouldn't it be a tremendous sign of maturity in our political debates if both sides could announce that they have agreed on a result that satisfies a large measure of their political goals?  Instead both sides have fallen into the trap of trying to achieve a result that they can portray as a victory over the other side.  Both sides have also tried to taint any other result as an illegitimate compromise (see my prior post on why you want to avoid using the word "compromise"), or as one side "caving in" to the other's demands.  This kind of language makes it harder to solve what should be a solvable problem.

Private mediations often devolve into distributive bargaining contests, in which each side is asked to "cave in" to the other's successive demands.  At the end of that back-and-forth process, when the last party blinks, we can sign the agreement and go home.  We settle a lot of cases that way, but in my view, we could do even better if we are not too anxious to get involved in that kind of contest.  Better to spend more time identifying the parties' respective interests and goals, their ability to achieve those interests and goals through litigation, and any other costs and risks of failing to reach agreement.  Once that is done, a range of realistic and advantageous settlement possibilities should become apparent to both sides.

(I posted a slightly different version of this piece on my political blog.)

Sunday, November 7, 2010

The Funnel

In a talk I heard yesterday at the Southern California Mediation Association annual conference, Lee Jay Berman used the metaphor of a funnel to describe how how the legal system squeezes the issues involved in conflicts to the shape of a dried-out hamburger patty, so that most of the concerns of the participants in the dispute get left out of the process.  So one could think of the legal system as a kind of meat grinder.  And the mediator has the job of putting some flavor back into the squeezed-out meat, and adding some new ingredients to the mix.  

This concept resonated with me since as a practicing trial attorney I have often found myself listening to clients providing endless streams of information, most of which seems to have no use in a potential or actual lawsuit.  To draft a complaint for a client, I need to hear the client tell me the whole story, which clients often want to do in great detail, but I then need to weed out about 90% of what they are telling me in order to fit what remains into recognized legal pigeonholes.  Then the other side might attack the complaint and succeed in removing or narrowing some of those claims, and the necessities of trial preparation may require the case to be simplified even further.  Lawyers and judges tend to think this is a useful process, because it folds a messy story into a tidy package that can be processed by the legal system.   And when they bring a case to mediation, attorneys may underestimate the work that remains to accomplish a settlement.  They often think that they have the dispute narrowed down so well that all the mediator needs to do is push the parties toward a point that lies somewhere in between the well-defined positions of each side.

Why on earth then, would a mediator want to explode their carefully-prepared packages, or as Lee Jay put it yesterday, to put back in some of the juice and extraneous ingredients that have been removed by the funnel?   One reason is that parties may never find that point of resolution until they have had a chance to express and address the concerns that still matter to them.  The legal system may have deemed those concerns extraneous, but often it is all those things that the clients want to tell their lawyers in their initial meeting that caused the dispute in the first place.  (See my prior post on underlying causes.)  If the parties could have resolved the case without putting all that juice back in, they probably would not need a mediator.   Maybe it's like solving a Rubik's Cube.  Sometimes you need to mess it up badly before you can get it back in order.  Or maybe the mediation process can be analogized to a martial art.  I heard another talk yesterday by mediator Sam Konugres in which he talked about different kinds of concentration required to practice martial arts.  Sometimes you need to focus all your attention on one narrow point.  At other times, you need to be aware of everything that might come at you from any direction. 

So while the frustration of lawyers lies in seeing their careful work blown to bits, the frustration of mediators lies in being expected to remain within the confines of the neat little boxes that litigation creates.  That frustration was reflected in a number of presentations at yesterday's conference, on the theme of the business of mediation, which talked about ways in which the tools of mediation can be put to use in solving much broader societal problems than those involved in the cases that come before the courts.  For example, Laurel Kaufer has put her mediation skills to use developing an inspirational program for reducing conflict in prison, and in bringing together parties affected by Hurricane Katrina.  Ken Cloke seems to think that mediators can save the world, and also that some of the world's most pressing problems cannot be solved without mediation.  It's exciting to think about the potential of this field not only to deal with the problems that work their way through the court system, but a lot of other problems that the court system doesn't have a way of dealing with at all. 

(Clip art licensed from the Clip Art Gallery on DiscoverySchool.com)

Thursday, November 4, 2010

Partisanship

Regardless of our individual political leanings, advocates of mediation should be concerned by the bruising midterm campaign season that has just ended, and by the prospect of gridlock and increased partisanship in the next session of Congress.  In mediator's terms, we are facing the likelihood of impasse.  Conservative Democrats and moderate Republicans have been drummed out of both parties, leaving the more doctrinaire members dominant.  Newly energized Republicans have already announced that they have no appetite for compromise.  And Democrats have already started attributing the diminished enthusiasm of their base to the administration's willingness to make concessions to the opposition.  It will take all of the president's mediator-like skills to make progress in this situation.  Alternatively, he may abandon those instincts and take a more "Give 'em hell, Harry" approach to governing, which would probably please sizable elements of his supporters.

The public in general, and mediators in particular, responded positively in 2008 to candidate Obama's promises of a new kind of politics in which people of different views would work together constructively and respectfully to solve the country's pressing problems, instead of acting in our usual divisive and destructive manner.  That hasn't exactly happened, has it?  And it wasn't for lack of trying on the president's part.  But critics on the left have relentlessly attacked the administration for being too conciliatory, while critics on the right have adopted a deliberate strategy of opposing anything the administration has proposed.  It seems as though hardly anyone is still attracted to the vision articulated in Barack Obama's electrifying speech at the 2004 Democratic Convention in which he implored us to get beyond red states and blue states and start identifying ourselves as part of the United States.  Yet that vision, which many would probably now dismiss as hopelessly naive, was what propelled Obama to the forefront of the presidential race, and attracted millions to support his candidacy.  

What has happened in our politics the last couple of years shows how hard it is to get past our propensity to view the world in adversarial terms.  If the president has been unable to sell the public on the idea of peacefully resolving our political conflicts, how are mediators going to be able to sell the public on the idea of peacefully resolving private disputes?


(KAL cartoon from The Economist)

Update (11/5): An expanded version of this post appears on my political blog. And a follow-up post will no doubt be necessary at some point on the subject of how you negotiate with people who say they will not compromise.

Monday, October 25, 2010

What People Want

I tried doing some unscientific research to find out what people are seeking from mediation.  What I did was to use sitemeter, a tool for measuring web traffic, to identify some of the Google and other searches that led people to my site. I understand that my methodology will mainly turn up search queries that happen to coincide with subjects I am already addressing in this blog.  But such a list of search queries may also reflect how well (or poorly) people understand the mediation process, and what they are hoping to get out of it.  Here is a sampling of some terms people are searching for (all reported verbatim) that led them to my site:

  -Am I more likely to win money in mediation than a lawsuit?

  -Is negotiation enforceable?

  -How to get what I want from mediation

  -mediate free

  -Does adr take away right to trial?

  -Are there lawyers present at a mediation?

  -Do mediators have to be lawyers?

  -attorney malpractice mediation procedural justice

  -Is it good that the other side wants a mediation?

  -won mediation case still do have my money

  -Do you think that alternative dispute resolution is more effective than trial?

I don't see many queries in which the topic of mediation is tied to the goals of peace or reconciliation, or making the world a better place.  What I mainly see are people trying to find out whether mediation will advance their interests and protect their rights, which are perfectly legitimate concerns, but do not necessarily encompass all of the potential benefits of the mediation process.

And here is another unscientific survey of reality show contestants, illustrating similar self-centered and adversarial attitudes:



Remember that only one contestant generally emerges the winner in these shows, which means that if the only goal is winning, the vast majority of these people return home defeated and empty.  After watching this amusing but disheartening video (and another one here), I wonder what happens to those few contestants who approach these competitions in a different spirit, those who might say: "As much as winning is important to me, I also care about the value of the experience and the quality of relationships I pick up along the way."  I'd like to think that such people stand a better chance of winning, in every sense of the word.  It also occurred to me that it might be interesting to design a reality show that rewards cooperation and negotiation, or that results in  "win-win" outcomes.  Would anyone watch such a show?

(by the way, the answers to the above questions are yes, it depends, listen, why?, yes for arbitration but no for mediation, sometimes, no, maybe, yes, I don't know, and yes)

Sunday, October 24, 2010

Words to Avoid

In a caucus with the plaintiff's attorney and his counsel, we were trying to persuade the plaintiff to lower his settlement demand.  Plaintiff's attorney started telling his client that he had to compromise.  As soon as he said that, I saw the client visibly flinch.  This client had no interest in compromise.  Instead he was interested in greater recognition on the defendant's part of the debt that was owed.  I told him he didn't have to settle the case at all that day, and should probably take some more time to think about his options.  I was still hoping we would settle the case that day, but I could also see that this person was not about to be browbeaten into an agreement.  As a result, I think I gained a measure of trust. 

People instinctively resist the idea of compromise.  They want what they believe they are entitled to.  They want justice.  If I as mediator suggest to people that they can't have what they want or deserve, or that they should simply back down on a matter they feel strongly about, they are naturally going to resist. Therefore, instead of telling litigants that they have to compromise, I prefer to tell them that I am trying to get a better result for them than they could obtain by taking their lawsuit to its conclusion.  I help them understand the costs and risks of pursuing their claims to trial, so that they can see that settlement may actually represent a victory. 

We see the same resistance to compromise in politics.  Many Democrats are said to be disillusioned because their leaders watered down their health care and other reform proposals too much.   They would have rather seen the administration fight harder, instead of working so hard to get agreement with the other side.  At the same time, Republican stalwarts have no stomach for compromise either.  Representative Mike Pence told an interviewer recently that "there will be no compromise on stopping Democrats from growing government and raising taxes. And if I haven’t been clear enough yet, let me say again. No compromise. . . . The time to go along and get along is over."

This kind of talk is disheartening to mediators, who know that we never accomplish anything without some give and take.  It seems doubtful that politicians can accomplish much either without making some accommodations to the opposition.  Yet we have to recognize that partisans in public debate, or in private disputes, should not be expected to give in on matters of principle.  They need to either impose their will on the other side, or reach an agreement that can be interpreted as a victory.  For example, in the book Beyond Reason, there is a chapter on how a border dispute between Ecuador and Peru was resolved in an ingenious way, giving one country political sovereignty over the disputed area, and the other country property rights.  In that way, both sides were able to claim victory. 

Agreements that are cast as compromises are more likely to fall apart.  The Compromise of 1850 only held off the Civil War for a few years.  The Korean Armistice created an uneasy peace that has left fundamental issues unresolved.  Some private agreements also merely set the stage for future disputes, or leave participants feeling dissatisfied.  Telling people that they have to compromise may cause them to walk out of the negotiations, or lead to an agreement that they feel was imposed on them unfairly.  I think it is generally better to help both sides win the negotiation, and obtain an agreement that they can feel good about.

Sunday, October 17, 2010

Free Mediation: Part II

Following up on an earlier post, in which I discussed the frustrations of many mediators with pro bono court-annexed mediation, I want to try to figure out where we should draw the line between cases appropriate for free mediation and cases in which parties should be expected to pay for mediation services.  I suggest that the answer to that question may depend on one's view of the role of mediation in the judicial system, and specifically on whether mediation should be treated as "public" dispute resolution process to which citizens should be given access in the same way they should be guaranteed access to the courts, or whether mediation should be treated as a "private" system that allows litigants to avoid the court system in whole or part.

Geoff Sharp, a mediator based in New Zealand, provides links to the three best articles ever written about mediation.  Interestingly, he actually lists only two, and both are more than 25 years old.  Even more interestingly, these two articles provide diametrically opposing viewpoints as to mediation's place in the judicial system.  In the view of Frank Sander, courts should evolve into centers that provide a "flexible and diverse panoply of dispute resolution processes," tailored to the needs of the disputants.  Courthouse personnel would screen cases and send them to arbitration, or fact-finding, or mediation, or some other process, as appropriate.   I have also advocated similar ideas of the potential for expanding the role of mediation in the court system.  On the other hand, Owen Fiss  views settlement itself as an illegitimate process, that should be tolerated but never glorified, because it provides none of the legal protections and public scrutiny that we expect from judges.  Settlement should therefore continue to operate in the shadows of the court system.

Both positions have some merit, and the tension between these two views can probably never be resolved.  My guess is that most mediators would lean more toward Sander's view of the world of dispute resolution, a view that would dignify ADR to the same level as other mechanisms.  In fact, most mediators would argue that mediation is far superior to the expensive, cumbersome and unpredictable  methods of litigation.  We recognize the need for established rules of law, which requires codes and court decisions; we might appreciate the valuable roles of judges and juries; and we believe in the principle of access to justice, but we still think there is a better way for most people to solve most disputes.  But if we believe that peace and reconciliation are just as important "public" values as justice and law, that might lead us to the conclusion that litigants are just as entitled to free settlement services from the courts as they are entitled to the services of a "free" judge, even if their dispute is worth millions of dollars, and they could easily afford to pay the judge to decide their case.  That view may justify courts in assembling panels of attorneys or other professionals who volunteer their services on a part-time basis to help settle cases.  Better yet, it would justify the courts in putting a larger share of resources into paid court personnel who assist litigants in settling cases.

Ironically, if we view mediation as a more "illegitimate" process, seeing it as a way of circumventing the protections of the court system, that would lend more justification for treating mediation as a "private" service that litigants should be expected to pay for by the hour, just as they are expected to pay arbitrators, and just as they have to pay their own lawyers, experts and court reporters even for cases litigated in the "public" system.   Courts should be supported by taxpayers because they provide a benefit for everyone, even those who never set foot in the courthouse.  That benefit comes from the knowledge that when you sign a contract, or enter into any other legal relationship, the courts are always available to enforce those legal obligations, and that encourages people to live up to them.  In contrast, it is less clear that mediation provides a benefit for anyone other than the participants in the mediation, although I recognize that you can make the argument that maintaining peace and good relationships between disputants benefits everyone.  If mediation is seen as more of a private than a public function, courts should consider getting out of the business of providing free panels of mediators to compete with the professionals who are charging for their services, or they should at least steer more cases to private mediation.  And litigants should not expect (except in hardship situations) to be entitled to free mediation services, any more than they should expect their attorney to work for free.

(photo from Kiev Ukraine News Blog)

Friday, October 8, 2010

Underlying Causes

A mediator at a study group I sometimes attend raised a good point about the limits of most mediators' expertise.  He wondered whether it is even a good idea to delve into all of the psychological issues that may be motivating the parties to a dispute, since attorney-mediators are not psychologists or psychiatrists and are not qualified to diagnose or solve such problems.  Sometimes it may even be counter-productive to open the wounds underlying a complicated family or business problem, and it may not be necessary or even possible to resolve those problems to settle the lawsuit.  Personally, however, I usually want to try to find out about the forces that are driving the dispute, at least to some extent, because it is often impossible to resolve the dispute without at least identifying the factors that may be motivating the parties.  I also feel that one of the goals of mediation is to achieve some measure of reconciliation, or at least acceptance of the outcome.  I'm not sure it is even possible to get parties who are personally invested in a dispute to view their dispute in purely rational terms, and even if they could do that, I'm not sure it is possible for them to solve a rational problem such as evaluating the potential value of competing claims in court, without involving them on an emotional level as well.  You would almost have to ask people to view their dispute as somebody else's problem, similar to the way the lawyers might view the dispute, before you could get parties to think about it in a purely "rational" manner.  If the lawyers could get their clients to do that, they probably wouldn't need a mediator to help them identify the issues that are blocking settlement.

Mediators generally try to reach resolution by getting the parties past the emotional components underlying their dispute.  They might be able to do do this by ignoring those emotional issues, but more typically they let the parties "vent" those issues before leading them to a more "rational" approach.  Either approach may be justifiable depending on the circumstances.   But the question whether it is even appropriate for a mediator who first of all, is probably not a qualified mental health practitioner, and second of all, is acting as a "neutral," and not as one side's or the other side's therapist, to deal with parties' psychological or emotional problems is still worth thinking about. 

We could try to answer that question by pointing out the differences between the goals of dispute resolution and the goals of therapy.  In mediation, the goal is to end the conflict, not necessarily to change the inner person, or cure their psychological problems.  We might use some of the same techniques counselors use to help people communicate with each other, so that they can perhaps understand each others' problems better; but we are not necessarily trying to solve the parties' underlying problems ourselves.  And we don't need to know the clinical explanations for people's behavior in order to expose factors that may be exacerbating a dispute, and thereby resolve it.  Sometimes it is enough merely to find out that one of the reasons a family member filed a lawsuit was because they were not invited to a family event, or that an employee was insulted by the way they were treated at work.  Sometimes it is enough for parties to feel that those kinds of grievances have been heard and acknowledged by the other side, to allow them to put the dispute behind them.  Even in a personal injury case, as someone in our group pointed out, where there might not be any emotional issues motivating the decision to file a lawsuit, the injured party may still need to have the insurance carrier listen to and acknowledge their pain and suffering before they can bring themselves to settle the lawsuit.

In addition to exposing and communicating these underlying causes, should we also consider "treating" those psychological factors that may be preventing a person from viewing their dispute in a rational way?  Here is where the absence of standards and practices in the mediation field can lead us into the tricky situation of acting like amateur psychologists.  For example, if a person has difficulty settling a lawsuit because they are paranoid, should we try to reduce that person's paranoia in order to get them to trust the other side enough to enter into an agreement with them?  If a person is prone to disputes because they have an irritating personality (like the character, partly based on himself, that Larry David plays on his television show), should we suggest ways for that person to make himself or herself seem less annoying, so as to make the other side more inclined to settle?   If we see someone who might benefit from Prozac or Valium to get themselves on a more even keel, should we suggest that they seek that kind of treatment in order to help them settle their dispute?  And in the converse situation, if we see a party impaired by drugs or alcohol, should we suggest that they sober up before they agree to something they might later regret?  Of course there are also real psychologists or social workers who do mediation, and I'm sure they do it somewhat differently from lawyers or judges.  Yet I think even those qualified mental health practitioners recognize that what they are doing when they mediate a dispute between two people or groups, is different from what they might do in treating an individual as a patient.  I would be curious to hear other mediators comment on where they think mediators might be crossing the line into practicing a field they are not qualified to practice.

Whether we like it or not, every kind of human interaction, whether in the courtroom or around the negotiating table, is fraught with emotional issues.  To resolve a dispute at trial, the jury, which we might think of as a group of amateur psychologists, commonly uses their collective wisdom to figure out what is really going on beyond what the witnesses are telling them.  To resolve a dispute at mediation, we should also have some understanding of what lies beneath the surface.

(Still from Running with Scissors)

Thursday, September 30, 2010

Who Won?

Now that another one of those trials of the century that Los Angeles seems to enjoy about once a decade has concluded (I'm talking about the McCourt divorce trial of course), everyone wants to know who won.  Technically, since the judge has not ruled yet, and still has 90 days to issue a decision, there is no winner yet.  But the real answer is that neither side won, or perhaps that it doesn't really matter all that much which side prevails on the legal issue before the court: that issue being the meaning and enforceability of a document purporting to grant Frank McCourt sole ownership of the Dodgers.

How can I be so cynical as to suggest that it doesn't matter who wins?  First, because there may be a number of ways for the judge in this case to split the difference so that neither side comes out the clear victor.  Second, because of appeals.  The parties have the ability to continue to litigate this case for years to come, regardless of which side wins at trial.  But it is not clear that the business of baseball has time to wait for the results of all those appeals.  Therefore, there will be pressure to resolve the ownership issue long before the legal process is finally concluded.  Third, because of the parties' financial situation.  Even if Frank retains ownership of the Dodgers, his other financial obligations, including of course to his ex-wife, may compel him to sell the team.  If they are forced into joint custody over the boys in blue, sale becomes even more likely.  

So what did the trial accomplish?  I am not an expert on the legal issues--I only know what I read in the papers--but the main effect of the trial seems to have been to publicly humiliate both parties and tarnish their reputations.  T.J. Simers summed it up in the LA Times sports pages (the Dodgers' season is long over, so all Dodgers fans can do is watch the trial) this morning:
"Frank's lawyers successfully drove home the point that Jamie is just not credible. Jamie's lawyers successfully drove home the point that Frank is just not credible. They've got that right."
Court-watchers have concluded that Jamie probably came out ahead at trial.  That may be because Frank started out with what appeared to be a stronger legal position, while Jamie had the always difficult burden of proving that the document at issue was not enforceable or did not mean what it was thought to mean.  She seems to have succeeded at least in muddying the waters considerably, and could succeed in getting the agreement tossed out entirely.  Frank's case, on the other hand, might have been as strong as it ever was before the first word of testimony was uttered at trial, and if he loses, he may still be able to fall back on his interpretation of the documents and argue that nothing that was said at trial means anything.

Maybe it was necessary for Frank and Jamie to suffer through the cathartic experience of this public trial to bring them to a fair resolution of this dispute.  Somehow, I doubt that.  The real shame in this case, however, as I mentioned in an earlier post, is that not only have both parties to this dispute spent a lot of money only to  emerge deeply damaged as a result of this trial, but they have also caused untold harm to an important civic institution.  Both parties may now be forced to give up what they were ostensibly fighting over to salvage the team, and Dodgers fans would probably consider that justice.

How often does this sort of thing happen in real life?  A lot more often than people think.  Clients who approach me with a problem that potentially needs to be resolved in court are generally preoccupied with the merits of the dispute.  Who is right and who is wrong?  Which side's position is going to stand up at trial?   My answers to those questions are usually filled with contingencies, and then I have to throw in some practical questions.  How is the other side likely to approach a potential lawsuit?  How much is at stake as compared to the amount that the case will cost to litigate?  Once we start talking about those questions, the issue of who is right and who is wrong starts to recede in importance.  I'm not saying that the merits of a case do not matter.  The strength of each side's position is what drives the dispute, and often determines the value of the ultimate resolution, whether by settlement or verdict.  What I'm saying is that procedural concerns are just as important as the merits, and also that trials do not always reach a nice, neat conclusion that vindicates the position of one side over the other.

I have tried some cases with a clear winner and loser: either the plaintiff walked away empty-handed, or the defendant was assessed a judgment.  But I have also tried cases in which the outcome of the trial did not seem to accomplish very much at all.  That can happen where the plaintiff wins the empty victory of an unenforceable judgment, or where the amount the plaintiff wins was less than the cost of litigation, or where the defendant prevails at what he considers an excessive cost, or where the result of trial is essentially a draw. 

What will happen next in the McCourt case?  They are going to try mediation again of course, the only place that gives them a chance of reaching a result better for both sides than the alternative of endless litigation. 

(LA Times photo)

Wednesday, September 29, 2010

Top Ten Mediation Blogs

Following up on a similar post on my political blog, I thought it might be appropriate, after doing this mediation site for about a year-and-a-half, to recognize some of my fellow mediation bloggers.  One reason I started this site was because there didn't seem to be all that many blogs on mediation, so I thought I might be able to contribute to the discussion.  Since I started, some have dropped out, and new sites have cropped up.  Here is a list of some sites that have mostly been around longer than I have, and that I tend to turn to most often.

1. Settle it Now is a champion mediation blog in terms of sheer productivity.  Victoria Pynchon's posts are also consistently interesting, and she is fun to argue with.

2. Diane Levin is responsible for Mediation Channel as well as a very comprehensive listing of ADR blogs.  Diane's blog has been quiet for a couple of months.   I'm hoping that is just a short hiatus.

3. ADR Prof Blog is put out by a group of law professors and is therefore a good source for what is going on in academia in the ADR field.

4. From across the pond, Amanda Bucklow has a good site called Mediation Times.

5. Peter Phillips started his Business Conflict Blog about the same time that I did, and offers a lot of insight into mediating business disputes.

6. Disputing is a high quality blog dealing mainly with arbitration and related issues, published by Karl Bayer and other attorneys in his office in Texas.

7. This site, Mediation's Place is still trying to figure out the place of mediation within or adjacent to our court system, and my own place in it as well.  Since I made the list, of course I made the list.

8. Brains on Purpose is a unique site by Stephanie West Allen that combines neuroscience and conflict resolution.

9. Schau's Mediation Insights has been around for almost four years.  Jan is a knowledgeable LA mediator who publishes about twice monthly.

10. Phyllis Pollack, another LA mediator, blogs regularly on current mediation law issues and her practice, on her PGP Mediation site.

And since 10 is just an arbitrary number, I should also include Confict Zen by Tammy Lenski, and Enjoy Mediation, by Jeff Thompson, and blogs by some more California mediators, Lorraine Segal, Alec Wisner, and Nancy Hudgins

I should also add some other good blogs that seem to have taken a summer vacation: Steve Mehta's Mediation Matters, John Lassey's Mediation Stuff, CKA Mediation by Christopher Annunziata,  the Upchurch firm's The Strategic Mediator, Doug Noll's Ataraxis, and John DeGroote's Settlement Perspectives.

And a couple of other relatively new and promising sites: Lee Jay Berman's Eye on Conflict, and Just Court ADR, put out by Resolution Systems Institute in Chicago.

All these sites and several more are listed on the left hand column under the heading "Mediation Blogs," which is sorted by most recent post, so the more active blogs tend to rise to the top.

Monday, September 27, 2010

Free Mediation

The Los Angeles County Superior Court has developed a large mediation program that relies heavily on the provision of pro bono mediation services.  Litigants have the choice of the pro bono panel, which allows them three hours of free mediation services, after which the mediator may charge for his or her time; or the party pay panel, which offers three hours at a reduced rate.  The difference is that pro bono mediators are randomly assigned, while parties may choose their mediator from the pay panel.  Pay panel mediators also tend to be more experienced, but parties are sometimes lucky enough to get assigned to an experienced mediator from the pro bono panel.  From the point of view of mediators, the pro bono panel offers an opportunity to hone their skills, develop a reputation that can sometimes lead to more private mediations, and/or allow them to contribute pro bono services to the court system.  Thus, the pro bono panel tends to attract people who are hoping to build a career in mediation, as well as established attorneys and others who just want the satisfaction of performing a public service. 

Established mediators have often expressed frustration with the pro bono panel.  Phyllis Pollack recently posted a piece complaining of parties and attorneys who abuse the privilege of the pro bono panel.  Victoria Pynchon wrote a similar series of blog posts last month.  And Jeff Kichaven published an article in the LA Daily Journal last month proposing that attorneys pledge not to use the pro bono panel in cases in which they are receiving fees for their services.   I understand and sympathize with the frustration expressed by these experienced mediators (myself included) who are providing a valuable service that generally saves parties enormous amounts of money.  We deserve to be compensated fairly for our time, and parties ought to get used to the idea that mediators deserve to be compensated as much as attorneys do.  Of course there will always be cases where attorneys should consider working pro bono, and that applies just as strongly to mediators, but there are also a lot of cases where use of a pro bono mediator is unwarranted.  It can be penny wise and pound foolish in many cases to use a pro bono mediator, if as a result the parties do not take the process as seriously and if for that reason the mediation does not advance or even impedes resolution of the dispute.  In such cases, the parties would still be paying their own attorneys to attend a wasted mediation session, and may incur additional fees for continued litigation that might have been unnecessary if they had invested a little more time and money in the mediation process.

On the other hand, use of the pro bono panel is often justified, and many of the parties and litigants I see who are fortunate enough to be assigned to me as a sometimes pro bono mediator are highly appreciative of my services, and probably would not have chosen to mediate at all if they had no alternative but to pay the mediator.

Mediation itself is here to stay, and parties and attorneys will become more and more accustomed to seeing disputes resolved in mediation.  They will develop more sophistication about the process, and should in more cases recognize the value of choosing experienced mediators and having to compensate them for their time.  At the same time, this field is going to develop standards and practices and professional qualifications, and start imposing the same kinds of licensing and credentialing restrictions as other business and professions--whether accountants or lawyers or dentists or beauticians or house painters--have done.  That means it will become harder for parties to obtain the services of a certified mediator without paying for those services.  Those who do not wish to or cannot afford to pay for a mediator's services will either have to use an unlicensed or informal go-between to help settle their disputes, or they will have to do it themselves, just as people are free to paint their own house or draft their own will or even pull their own teeth.

I also think that one way the courts can help with providing quality mediation services to people who need them is hiring some more mediators on the court staff.  Taxpayers already pay judges' salaries, and some of those judges are assigned full time to settling cases.  Almost all the rest of the judges spend a considerable amount of time encouraging parties to settle or actually conducting settlement conferences.  Taxpayers also foot the bill for the court personnel who currently administer the mediation program.  It therefore makes sense for the courts to make available "free" mediation services, by salaried court personnel, for litigants deemed entitled to such assistance.  Courts need to get used to the idea that they are already in the dispute resolution business as much as they are in the "justice" business, and that it is a worthwhile expenditure of public funds to support dispute resolution professionals, just as it is to provide judges and clerks and bailiffs to assist the public in resolving disputes.  Meanwhile litigants who prefer a private mediator outside the court system should be free to avail themselves of the services of such individuals, just as litigants today can choose between having their case decided by a "free" judge, who is a paid state employee, or a private judge.

(photo of the complex case courthouse in mid-Wilshire from skateallcities skateboarding site, proving that courthouses can be viewed from many perspectives and can serve multiple functions)

Monday, September 20, 2010

Overcoming Our Combative Instincts

I did some posts this week on my political blog, trying to understand why voters seem so angry this campaign season.  After trotting out some of the usual suspects like our dysfunctional government, and the economy, I turned to the touchier subjects of intolerance, racism and xenophobia.  We certainly have a lot of problems to deal with in our country right now, but my mind keeps returning to the question of why we need to react to those problems with anger and recrimination.  Didn't we, less than two years ago, embrace the promise represented by the Obama campaign, of trying to approach our problems with a spirit of cooperativeness and inclusiveness?   A majority of the country actually elected a candidate who appealed to us to get beyond red states and blue states, and instead remember that we are all part of the United States.  How quickly we returned to partisan warfare.

In the world of private dispute resolution, we also find it hard to overcome our natural warlike instincts. While mediation is expanding into a more accepted and regular part of the litigation process, it has a long way to go to overtake more traditional forms of dispute resolution.  I doubt the demand for mediation services will ever approach the demand for litigators.  (The budget for the Department of Defense is more than ten times the State Department's budget, and that ratio is not likely to change any time soon either.  People say they want peace, but we actually prefer to fight.)  That's one reason I'm not yet ready to give up my trial practice.  While most participants  appreciate the cost savings of a settlement as compared to the enormous wastefulness of litigation, they do not always embrace or perhaps even understand the concept of a mediated resolution of disputes.  Our instinct is to fight and try to win, not to try to empathize with the other side's point of view and reach an accommodation.

People often approach the mediation process itself with a combative mentality.  Trial lawyers might see mediation as another step in the process of litigation that can be "gamed" and "won."  Clients might be reluctant to give up the fight with the other side, and look at the mediation as just another battle in that fight.  So participants in a mediation often try to impress the other side with the strength of their case.  Or they might try to scare the other side with the threat of continued costly litigation.  They might even refuse to speak to the other side.  They might bluster their way through negotiations with unreasonable offers or demands.  All these techniques, by the way, have some legitimate uses in a negotiation, and I have used them all myself, as advocate and as mediator.  But these kinds of aggressive negotiation tactics are not really what mediation is about.  The essence of mediation is listening to the other side with the goal of actually trying to understand their point of view.   That doesn't imply that you have to agree with them, or concede anything to them.  You just have to listen and try to understand where they are coming from.  When people do that, and when--just as importantly--they believe that the other side has heard and understood their own concerns, they often find a way of satisfying at least some of the other side's interests, without giving up any of their own.  How rarely we seem to do that, in politics, in our relationships with others, or even in mediation itself.

(photo from Mesirow Legal Juice)

Saturday, September 11, 2010

Helping the Other Side Succeed

In his press conference on September 10, 2010, President Obama commented on the re-opening of peace talks between Israelis and Palestinians as follows:

And one of the goals I think that I’ve set for myself and for my team is to make sure that President Abbas and Prime Minister Netanyahu start thinking about how can they help the other succeed, as opposed to how do they figure out a way for the other to fail.  Because if they’re going to be successful in bringing about what they now agree is the best course of action for their people, the only way they’re going to succeed is if they are seeing the world through the other person’s eyes.  And that requires a personal relationship and building trust.  Hopefully, these meetings will help do that.  (transcript)
This is classic mediator language.  I'm guessing most people follow the President's points about creating empathy, building relationships, and establishing trust.  People generally understand that that is how diplomacy and negotiation work.  The part that may seem most counter-intuitive, however, is the part about helping the other side succeed rather than trying to "win" the negotiation.  If diplomacy is seen as war by other means, parties generally view their goal as accomplishing as many of their objectives as possible.  They have a hard time grasping how helping the other side achieve their goals advances their interests.  Isn't that just another way of giving in?

Yet if we look at history, we can see numerous examples of parties who struck too hard a bargain paying a price later on.  The onerous terms imposed on Germany after World War I, for example, may have led to World War II.  In the Middle East, Israel needs to worry about whether a potential Palestinian state is viable, and Palestinians need to worry about whether Israel is secure.  Otherwise any peace agreement may fall apart in a few years.

OK, but do these goals for international diplomacy apply in the more mundane world of private negotiation and dispute resolution?  Both corporate and litigation attorneys representing clients in these contexts probably start off thinking it is almost unethical to try to accommodate the other side's interests.  Yet it may not be possible to make a workable deal for one's client, or achieve a settlement of a lawsuit, without at least considering the needs of the other side.  Parties entering into business relationships learn that they need to make sure that the deal is fair, and sometimes talk about leaving something on the table for the other party, otherwise they are going to create resentment and future problems.  But even parties negotiating settlements in which they expect to have no future relationship with the other side--the world in which I more often operate--should probably give more thought to how the deal looks from the other side of the table.  If they don't think about how to "sell" the deal to the other side during the negotiations, they may not even achieve a settlement in the first place.  To do that, they must be able to persuade the other side that the agreement satisfies the other side's goals and concerns better than the alternative.  That means parties to any kind of negotiation need to understand the other side's goals and concerns as well as they can.  And they at least need to be able to make a credible case to the other side that their offer is better for the other side than the alternative.  Otherwise they can have no realistic expectation that the other side will accept it.

Another point worth noting from the quote at the top of this post, is the president's remark that both Abbas and Netanyahu already agree on the best course of action.  In other words, as is true in many settlement negotiations, the general outline of a settlement, and even most of the details, are already well known.  (See my comments on this point in a post on my political blog.)   Both leaders have endorsed the concept of a two state solution, and a large majority of both Israelis and Palestinians favor the concept.  What needs to happen to achieve an agreement is for the leaders to overcome resistance to peace within their own constituencies, and to make the necessary leap of faith and hope.  The process is not unlike settlement negotiations in many private disputes, in which the biggest obstacles to agreement are the parties' own reluctance to give up the fight, their mistrust of one another, and their need to answer to other parties (e.g., their board members, their spouse) who resist agreement.

(Reuters photo)