Monday, June 28, 2010

Fielding the best team

For Dodgers fans, this is shaping up to be a trying year, with the team a bit shy of the elements that are needed for post-season success, and with the issue of ownership of the team headed for an epic battle in divorce court.  Meanwhile, the story in the LA Times Saturday was about Frank McCourt adding a star trial lawyer to the team of legal talent he has arrayed against his wife.
"It's like having your best athletes take the field," said Loyola Law School professor and legal commentator Laurie Levenson. "You'll see the best fight possible."
I wonder whether they could fill Dodger Stadium with all of the people who would be excited to watch the best fight possible between the McCourts' respective teams of lawyers.  I might pay to see that, but I'm probably not representative of the fan base.

For the rest of the Dodgers' fans, the prospects are not quite as exciting.  The story in today's LA Times was about the Dodgers' collapse in the last game of their series against the well-funded Yankees, and how they are a couple of pitchers short of the staff they would need to have any chance of making it to the playoffs.  Fans are understandably frustrated that the McCourts are fielding the best possible legal team, while their baseball team seems a bit shortchanged. 

Mediators know how to fix this problem.  It's simple, really.  Just settle the divorce case and use some of the millions that would otherwise continue to flow to the McCourts' many lawyers, to purchase the services of an ace starter and perhaps a couple of choice additions to the bullpen.  It's not that these lawyers aren't worth every penny they charge.  It's just that Dodger fans would rather see the money spent in ways that more directly benefit the team.  While, as today's LA Times story reports, Dodger management continues to assert that the McCourt divorce has had no effect on the team's hiring decisions, fans are understandably skeptical. It only stands to reason that with ownership of the team in such an unsettled state, the putative owners may not be putting maximum efforts on the baseball field.

It is possible that Frank McCourt's decision to hire a top trial lawyer could help position the divorce case for settlement, and Stephen Susman himself (the new attorney) says that everyone is still hoping for a settlement;  but other commentators quoted in Saturday's story suggest that McCourt's strategy of hiring an ace trial attorney instead of an ace pitcher is going to make it more likely that the case will go to trial.  Even if the money that Frank McCourt spends on legal fees does not directly affect the team's salary budget, the cost of his legal team still must be affecting his overall resources.  Of course, if he wins, he can argue that it was all worthwhile, and to the team's advantage also.  A mediator would ask both parties, however, if they have fully taken into account all of the costs and risks they are assuming.  Have the McCourts, for example, fully factored in the cost and delay of an appeal, assuming, as seems likely, that one party is less than completely satisfied with the trial court's ultimate ruling?

Another argument that mediators frequently use to help solve problems like the McCourts' is to suggest that they consider more carefully the psychic toll that a lengthy trial takes on their ability to run the business.  In this case that is not just a purely selfish consideration.  The distraction of a divorce trial ultimately affects the team's performance, and therefore affects the mood of an entire city.  We were uplifted by the Lakers winning a second-in-a-row NBA championship, but now we are depressed by the prospect of a wasted baseball season.  The McCourts need to take some civic responsibility and do what is best for the team and the city.  That may require patching up some of their differences, resolving the ownership issue somehow, and letting everyone get on with their lives.  Most likely all that will happen eventually, but only at a continued extravagant cost and after further delays.  Fans would of course prefer that settlement be accomplished more expeditiously, and lots of mediators would no doubt be happy to have the opportunity to help resolve this dispute by negotiated agreement rather than costly and protracted litigation.

Meanwhile every business owner, and beyond that, every person with a career, or a family, or a life,  can take from this story the lesson that those experienced with lawsuits already know: It is much more productive to concentrate your efforts on the future than on the past.  Lawsuits harm those efforts because they cost too much money and they force litigants to think about the past rather than the future.  That is why lawsuits should be resolved expeditiously and with minimal distraction from things that are more important in life.  Like baseball.

(Anne Cusack LA Times photo)

Friday, June 18, 2010

When do Apologies Work?

Lots of mediators have talked about the power of an apology to assist in resolving disputes, and in allowing people to get along with one another. (examples here, here, here, and here)  An apology can serve the highest purposes of mediation, in permitting reconciliation and allowing people to get beyond the dispute.  From a more cynical point of view, an apology can also save a wrongdoer money, as long as the apology is not used as an admission of liability.  Therefore, no one involved in a dispute should be too quick to dismiss the possible effectiveness of an apology.  To be effective, however, an apology should be sincere, it should be coupled with some concrete action, and it must be accepted. 

This week we saw some interesting public apologies in relation to the BP oil spill in the Gulf of Mexico.  First there was Congressman Joe Barton's public apology to BP'S CEO Tony Hayward, which was deemed so politically damaging that Barton was forced to apologize for his apology.  This could be seen as an apology that was so out of tune with what the public viewed as appropriate that it turned out to be counter-productive.

Then there was Chairman Svanberg's apology after meeting with the president.  BP has made efforts to apologize before, but these were  sometimes questioned, because they were coupled with refusals to accept blame until an investigation was completed, and because people may have doubted BP's willingness to do what is necessary to remedy the disaster.  Svanberg also made an unfortunate remark, which could have resulted from English not being his first language, about his concern for the "small people."  So he was forced to apologize again for his earlier clumsy apology.  But coupled with an agreement to put $20 billion in escrow to pay claims resulting from the Gulf Oil spill (THAT'S TWENTY BILLION DOLLARS!!!), BP's latest expressions of  contrition for the company's conduct might finally be given some weight.  Apologies, when done correctly, do have an impact.  Money talks also.

(Doug Mills/New York Times photo)

Tuesday, June 15, 2010

Success in Mediation

At a recent seminar, we were discussing the enforceability of agreements reached at mediation.  I asked the instructor whether he would agree that when parties find themselves back in a dispute over the meaning of their agreement, or whether they have even made an enforceable agreement, that dispute in itself indicates that the mediation failed at some level.  He proceeded to tell a story about a very contentious case he had once mediated, where the parties worked over the weekend, almost walked away from the table numerous times, and finally settled on the morning of the scheduled trial, after the judge held off the commencement of trial to give the parties a couple more hours to complete their agreement.  A couple of weeks later, the mediator learned that one of the reluctant parties committed suicide, being literally, as our instructor put it, unable to live with the agreement he had made.  I'm sure this case haunted the mediator, but he tried not to second guess himself, and I would not fault him at all for his heroic efforts in settling the dispute.  I'm sure there are even more cases where a party has been brought to a tragic end by an adverse result at trial, than there are cases of buyer's remorse at making a deal.  Therefore, we can still view a negotiated agreement as a better result for the parties than a litigated outcome in the vast majority of cases.  Even if the agreement is precarious, and even if it falls apart later, efforts to reach agreement are still probably more worthwhile in most cases than resolving the dispute in court.  Yet perhaps we should still be cautious about pushing parties too hard to make a deal.  

Mediators are prone to consider the cases that settle as successes, and the cases that do not settle as failures.  They are heavily biased in favor of reaching agreement, and generally consider continued litigation to be a mistake.  That is natural, and I think that way myself much of the time.  I would argue, however, that failure to reach an agreement at a mediation does not necessarily make the mediation a failure.  Parties may have valid reasons for preferring to resolve their dispute in court, such as where they feel an important principle is at stake and should be resolved with a binding and public precedent.  Parties may prefer to take their chances with the jury rather than accept an offer they view as unfair.  Parties may consider a result handed down  by a judge or jury as more legitimate than one they can reach themselves.  Sometimes a party's internal political or emotional circumstances may allow them to accept a result forced on them by the court, but they cannot agree to such a result themselves.  We have to accept the fact that not all cases should be settled.

I finally read Owen Fiss's diatribe "Against Settlement" published in the Yale Law Journal in 1984, because it was mentioned on Geoff Sharp's website as being one of the best articles ever written in the field.  I do not agree with Fiss, but it is good to bear his viewpoint in mind that settlement can be seen as a somewhat illegitimate, almost shameful process, and not necessarily as the preferred goal of the justice system.  Fiss views the ideal form of conflict resolution as a verdict reached in the light of the hallowed halls of the courthouse, with all of the law's protections and rights made available to the parties.  He is suspicious of furtive deals reached in the shadows of the back room.  He points out that courts are needed to address such problems as the inequality in resources and bargaining power between litigants, and the need for continued judicial enforcement of judgments, as well as to make authoritative interpretations of law.  In this view, settlement can be seen as a "highly problematic technique for streamlining dockets" which "should be neither encouraged nor praised."   As mentioned, I do not agree with Fiss.  I agree with the great judge Learned Hand who said that, "as a litigant, I should dread a lawsuit beyond almost anything short of sickness and death."  I think attempts to resolve disputes without litigation should be both encouraged and praised.  On the other hand, we can profitably take from Fiss the idea that if litigants decide not to resolve their dispute by agreement, their choice should not necessarily be viewed as a failure of the system.  To the contrary, that decision presents an opportunity for the courts to serve their highest purposes.  We should not sneer at all of the procedures the courts have developed over centuries, or deny litigants their right to invoke all of the protections of the law.

I would regard a mediation as successful whenever it allows parties to appreciate the costs and risks of their situation, so that they can make an informed and enlightened decision about how best to proceed to resolve their dispute.  So I would regard a mediation as a failure when the parties do not understand and appreciate their choices.  I would also regard the mediation process as successful when the parties learn to work together in a constructive way to solve problems.  Conversely, I would regard the process as a failure when the parties continue to bicker unnecessarily about issues that are not central to their concerns.  Most of the time, enlightenment and understanding should lead both sides to choose peace, but not all conflicts can be easily "cured," and some must be resolved or perpetuated by other means than mediation.

(John Harvey photo: The fork in the road is a good metaphor for the choice people often have to make in settlement negotiations. One path may lead out of the woods, while the the outcome of the second path is uncertain. A successful mediation can be defined as one that provides greater clarity about the costs and risks of both paths.)

Sunday, June 6, 2010

Dispute Resolution in Baseball

People can't seem to stop talking about  umpire Jim Joyce's bad call ruining what should have been the final out of what should have been pitcher Armando Galarraga's perfect game this week. The sportswriters are waxing eloquent on this topic, generally taking the position that we need to appreciate that human error is just part of baseball.  (There was also a good piece by Bruce Weber in today's New York Times.)   I'm going to add a little more to this torrent of words, inspired by a post on Peter Phillips's blog which makes the point that sometimes we need to accept outcomes that are beyond our control, even when they are caused by unfair mistakes.

First let me join in the praise of Armando Galarraga, who was remarkably calm and gracious about being deprived of joining only 20 pitchers in history who have pitched a perfect game. In his own imperfect English, Galarraga summed it up: "We're human, we go make a mistake, nobody is perfect. In that situation everybody is focused to do their best thing."  How many people would smile like this after having glory taken from them?  If only life could be more like baseball!  If only baseball could always live up to that level of sportsmanship!


An umpire in baseball functions differently from a judge or an arbitrator, and he is certainly not a mediator.  An umpire does not help people resolve conflicts, or decide between competing arguments.  Instead the umpire actually determines what happens, regardless of anybody else's version or objective reality.  A strike is not a strike because it passes through a defined area called a strike zone.  A strike is a strike if and only if the umpire calls it a strike.  A player is not safe because he stepped on the base before the throw was caught.  He is safe if and only if the umpire called him safe.  Different umpires call plays differently.  Umpires make mistakes in every game.  Baseball players and fans all know this, and generally accept it, even though they might get mad when  a call goes against them.  Baseball tradition frowns on appeals and instant replays, and arguing with the umpire will not get you very far.  The rules of baseball place ultimate power and control of the game in the hands of the umpires, but umpires do not see themselves as powerful, only as fallible human beings trying to do the best they can to make accurate calls.

Umpire's calls are important because baseball is a game of statistics, in which everything that can be measured and counted is measured and counted.  Most of those statistics have nothing to do with the outcome of the game, but only affect history.  In law, we would call Jim Joyce's blown call harmless error, because it did not affect the outcome of the game.  All it meant was that the pitcher had to face 28 batters instead of 27, the difference between a perfect game, and an almost perfect game.  But in baseball, there are no harmless errors, because every call changes some statistic, and therefore changes history.  In fact, there are no umpires' errors at all.  That might be the only statistic that we can't and don't track, because there is no higher authority than the umpire to measure it.

People search for perfection in life as in baseball.  People find peace when they understand and accept how impossible it is to measure objective reality and obtain perfect justice.

(MLB.com photos)

Saturday, June 5, 2010

Argument and Negotiation

Reading the comments to a post on negotiation on Ken Adams's drafting blog (one of which made the point that lawyers are trained to argue, not to negotiate), got me thinking about the differences between argument and negotiation.  It is quite true that lawyers often confuse the two.  I have to admit that I sometimes have trouble letting go of an argument myself, and sometimes forget that arguments that are not carefully attuned to their audience have a tendency to annoy rather than persuade.  I was pegged as an attorney from my childhood because I love to argue, and I still enjoy getting into a heated political debate, or hammering home a point in a brief or in front of a judge.  When we lawyers indulge in our natural desire to argue to the exclusion of other skills that are essential to negotiation, however, we can create unnecessary antagonisms, and make it harder to achieve an agreement.  Even in litigation, argument for argument's sake can be counter-productive: we can draw a distinction between arguments that are designed to be persuasive, and arguments that only get the speaker worked up, while doing nothing to move the listener.  Unfortunately, too much of litigation consists of argument for argument's sake.  If only we could follow the advice of that great trial lawyer Abraham Lincoln, who suggested that we should never quarrel.

When I'm doing mediation, I make a greater effort to suppress my natural desire to engage in argument, especially arguments of the second sort.  I try to coach the participants in mediation to get their points across in a way that the other side will at least hear.  This is not to say that I oppose vigorous advocacy in mediation, or any other aspect of conflict resolution.  I only suggest that what can sometimes pass for vigorous advocacy may be counter-productive if it causes the opposing party to move away from your position.  In mediation you sometimes see lawyers or parties ignore the opposing party, and address their arguments to the mediator in an effort to persuade the mediator of the soundness of their position.  You also sometimes see advocates in mediation pressing a position even where they can see that their words are causing distress or withdrawal on other side of the table.  Advocates sometimes forget that the goal of mediation is to persuade the other side to modify their position, not to antagonize the other side into hardening their position.  Good negotiators know how to listen very carefully to what the other side is saying, and to frame their responses in a way that addresses the other side's concerns, and gives them something new to think about.  Bad negotiators just keep beating their heads against a wall in the vain hope of making an impression.  One of the purposes of mediation, therefore, is to teach people to be better negotiators.

(Asier Ibanez photo for Google Earth)

Tuesday, June 1, 2010

The Value of Ambiguity

Starting in Contracts class in law school, lawyers are conditioned to think of ambiguity in agreements as a bad thing.  If a contract is ambiguous, it could be nullified as based on a mutual mistake. (I always think of the case of the two ships named Peerless.)  Even if an ambiguous document creates an enforceable contract, parties may be compelled to resort to the laborious practice of examining course of dealing, customs and practice and external evidence of the parties' intentions, in order to discern the contract's meaning. 

There are times, however, when the parties find it advantageous deliberately to allow some ambiguity to creep into a written document in order to reach agreement in the first place.  Case in point, the UN Security Council Resolution approved yesterday regarding the Israeli boarding of a Turkish blockade-running ship, which resulted in at least ten deaths.  I have been thinking about this incident quite a bit, and already posted two entries on my political blog about it.  Those entries, about people's tendency to accept pre-conceived narratives before they know all the facts, and about the need for restraint to prevent violence, probably have some relevance to mediation.  Reports of the lengthy negotiations required to reach agreement on a Security Council resolution inspire yet another post.

A number of Security Council members have a strong interest in expressing outrage and condemnation of Israel for political reasons.  The United States also has an interest in attempting to reach agreement with powerful members of the world community, but would not agree to a resolution directly condemning Israel.  To avoid a U.S. veto, what was needed was a resolution that members could point to as a condemnation of Israel, but that the United States could interpret differently.  The solution was an agreement that "condemns those acts which resulted in the loss of at least ten civilians and many wounded, and expresses its condolences to their families."

By condemning the "acts" without condemning anyone by name, the Security Council resolution accomplishes a number of important goals.  While clearly expressing condemnation for whatever acts, by whatever party, led to violence, it does not specify what acts or what parties deserve to be condemned. Thus, the resolution allows an investigation to go forward without any pre-conceived conclusions as to who is primarily to blame for the tragedy.  By blaming acts and not actors, the resolution could also be seen as separating the people from the problem in true Fisher/Ury fashion.    The text also contains valuable concessions for each Security Council member from the others: for example, for Israel's supporters what could be read as an acknowledgment of Israel's right to security from its neighbors; for Palestinian supporters, an acknowledgment of the need for the regular movement of goods into Gaza.  Thus the resolution provides a framework for future attempts to solve the larger problem.  (See my prior post on the power of agreements.)  And perhaps most importantly, this carefully cobbled-together document allows its signatories to use it for their own individual purposes.  Participants in the Security Council negotiations openly acknowledged that the text can be read in more than one way, and even seemed to take some pride in what lawyers might view as faulty draftsmanship. 

Are there times when parties in mediation should be encouraged to paper over their differences in an ambiguous way?  The danger is that an ambiguous agreement can lead to future conflicts.  The parties may end up back in court asking for an interpretation of their agreement, or the parties may end up in a new conflict because they never really resolved their last one in a clear way.  But the value of ambiguity is that it may allow an agreement to be made that could otherwise never be made.  And such an agreement--even if it appears to some extent to be an agreement to disagree--may still be more valuable to the parties than unending conflict.