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.