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.