Sunday, July 31, 2011

Deal or No Deal?

We're starting to hear outrage from both the left and the right in response to the debt ceiling deal that leaders of both parties have made on Sunday.  We're being assured by the usual gang of pundits that this outrage from the most partisan members on both sides demonstrates that the deal is probably fair. It reminds me of something that a lot of mediators like to say, which is that if both parties are unhappy with a proposed settlement, that probably means that it is fair.

As a mediator, I never like to use that line. Why would I want people to leave unhappy?  I prefer to try to persuade parties to a conflict that they should feel good about the settlement they are making. I would rather tell them that I hope they are going to get a good night's sleep, that I hope they feel that a weight has been lifted from their shoulders, and that there is a lot of value in putting a dispute behind them. When I have to resort to logic, I try to persuade people that they should not compare the deal on the table with the deal that they wanted or believe they deserve.  The only thing they should be comparing a deal to is the alternative of no deal. What that means is that litigants have to compare the offer being made by the other side, with the alternative of proceeding with a costly and risky lawsuit. They should not compare the offer being made by the other side with what they believe they are entitled to in some ideal system of justice.

In evaluating the debt ceiling deal, politicians and their constituents should compare the deal on the table, not with what either side wanted to achieve in these negotiations--for Republicans bigger spending cuts and a balanced budget amendment, for Democrats some increase in revenues. They have to compare this deal with the alternative of no deal. No deal means the Treasury runs out of cash on Wednesday, and then the President has to decide whether to ignore Congress and unilaterally order the Treasury to borrow more money anyway. And that probably causes a constitutional crisis as well as an economic crisis.  Alternatively, the President and the Secretary of the Treasury have to decide to stop issuing checks to a lot of government contractors, federal employees, veterans, seniors, people on disability, and a lot of other people who depend on government checks to live. There are only a small number of Congressmen who actually want to play out either one of those scenarios.

Let's compare that to the deal. The deal prevents a default, and commits Congress to enact some substantial spending cuts and possibly some revenue increases, most of which won't kick in for quite some time, maybe five or ten years from now.

Which means that, even if people don't like the plan for handling these deficit issues in the future, right now this deal is still way better than no deal. The only difficult part is persuading a lot of politicians who have to answer to a lot of very partisan constituents that they have to settle for something different from what they wanted. And why they should be happy about that.

(adapted from a similar post on my political blog)

Wednesday, July 27, 2011

The Joys of Settlement

Judge Martin J. Sheehan of the Kenton Circuit Court, Kentucky, penned this ode to the joys of resolving an apparently acrimonious and well-litigated case. I wonder if the clerk actually has to take seriously the part of the order that requires him to engage the services of a structural engineer to make sure his office is able to hold the case file. After all, it is a court order. (Clicking on images below should work to enlarge them. If not, go here.)

Tuesday, July 26, 2011


One of the reports I was reading about the Norway shooting incident this past weekend mentioned the difficulties police have in trying to prevent such violent events. In the past, it might have been easier to infiltrate and keep tabs on hate groups because they used more traditional means of organizing themselves. Now that such people congregate primarily on the internet, it may be more difficult to penetrate their activities and predict when they will become violent. This suspect in particular was sending out somewhat ambiguous signals, which might not have provided sufficient clues to allow law enforcement to act.

One problem with modern forms of communication is that they encourage people to interact mainly with like-minded individuals, and to filter out views that differ from their own. We see this tendency on cable news, and on websites that cater to particular political viewpoints. We see it on both the left and the right and in between. People prefer to listen to viewpoints they already agree with, and they often try to exclude those who disagree with them from the conversation. When there is dialogue, it tends to consist of confrontational rhetoric that does nothing to encourage people to listen to and try to understand opposing points of view. It's ironic that the most universal and powerful communication tool in history can have a tendency to insulate people from differing ideas, and can reinforce prejudice and hate. The internet starts out as an open system, but allows groups to build walls where they can demonize other groups that they define as the "other."

What is needed is to create more safe spaces where people are obliged to consider opposing points of view in a respectful way. That is the only way people can learn to communicate with one another without feeling the urge to silence those whose views differ from their own.

On my political bog, where I also posted the first version of this piece, I have offered some rules for conducting such a civil dialogue.  My suggestions include refraining from name-calling, from questioning other people's motives, from exaggerating, from misrepresenting, and from blaming. On that website, even though my posts maintain a definite point of view, I have also attempted, in my own modest way, to create a safe space for people of differing viewpoints to disagree and argue with one another, and I appreciate comments from people of all political stripes, especially the ones who disagree with me, so long as they are willing to engage in a civil conversation.

This terrible incident in Norway also made me think about the work of Ken Cloke, who believes that mediation can go a long way toward solving a lot of the world's political and social problems, including the problems of evil, injustice, war and terrorism. One object of mediation is to create a safe space where conflicts can be addressed in a non-threatening way, and people learn to understand and attempt to reconcile opposing points of view. 

Obviously, some points of view are difficult to include in a civil dialogue. If somebody thinks we need to round up and expel or kill all the Muslims, or all the Jews, or all the blacks, that viewpoint is impossible to accommodate. But we can still have a reasonable debate about immigration policy, or religious tolerance, or education, that includes concerns about national identity and culture, without allowing for extreme solutions that would deny the legitimate rights of others. The haters need to be included in that dialogue, so they feel they have an alternative to congregating only among themselves, and plotting violence. 

Sunday, July 17, 2011

Sanctions and Mediation

Those who take mediation seriously want to encourage parties to participate in good faith, and to prepare properly for mediation sessions, so that the process can achieve maximum benefit. We have to recognize, however, that there can be a tension between the desire to make sure that the parties don't waste each others'--and the mediator's--time, and the need for confidentiality, safety and flexibility in making mediation work. In other words, how do you promote the most effective use of mediation without slipping into exactly the kind of rules and sanctions-based world that mediation was designed to escape?

Don't ask the courts to resolve this dilemma, because they don't see it. Courts are entirely comfortable operating in the world of rules and sanctions. Here's an example from the Nevada Supreme Court. In the case of Pasillas v. HSBC Bank, arising out of Nevada's statutory foreclosure mediation program, the Court mandated that sanctions be imposed based on the mediator's (required) report that the bank failed to bring required documents to the mediation, and failed to negotiate in good faith. The bank may also have failed to make a person with authority available. I imagine most mediators are of two minds about a case like this one. On the one hand, we want to make sure parties participate in good faith, and bring the information and people necessary to increase the chances of success. But we are less comfortable being thrust into the role of adjudicator, or even reporter, of whether one party or the other has complied with those conditions. Most mediators prefer to act as facilitators, not adjudicators. In fact, the whole regime of rules and sanctions is antithetical to the voluntary spirit of mediation, and to the feeling of safety and confidentiality that we want to encourage participants to rely on.

Fortunately, in California I don't face this problem because we operate under different rules. When I have to deal with situations such as parties failing to show up for mediation, or failing to come prepared, or failing to show any willingness to negotiate, my inclination is to find out from the parties whether they think there is any point in continuing. If they think we can still accomplish something useful, I am usually inclined to go forward regardless of whether or not one side or the other is in default of some obligation. But if somebody is in default, and the parties prefer not to go forward, and I also don't think it would be productive to proceed, I am probably just going to report to the court that the mediation did not take place. In fact, at least in state court, the confidentiality rules may prohibit me from saying much more than that. Then it is up to the parties to ask the court for whatever sanctions might be appropriate. Courts are in the sanctions business. Mediators are in the agreement business.

(Thanks to Heather Kulp at Just Court ADR for drawing my attention to this case.)

Tuesday, July 5, 2011

Mediator in Chief

In the budget negotiations going on in Congress, once again we see the president assuming the role of mediator. Republican leaders in particular, while remaining adamant that they will not compromise on their position of keeping tax increases off the table, have lately almost been begging for the president's intervention to break the impasse. The Republican leaders sound to me like some of the lawyers I sometimes see representing an intransigent side in settlement negotiations. They know they have to make a deal, but they or their clients have boxed themselves into an untenable position. They need the mediator to "force" them to make a deal.

Today President Obama gave a statement to the press seeming to ride to the rescue of these locked-in negotiators. His statement was chock full of mediator talk. All of his exhortations were designed to move the parties from entrenched positions. First he said both parties must seize the moment, and take advantage of a chance to do something historic. Right now, the president stressed, the parties have a unique opportunity to do something big. That is the kind of "now or never" statement a mediator might make to parties late in the afternoon after everyone has already invested a lot of time in the negotiations but remain frozen in their positions. If the mediator can persuade the parties that NOW is the moment to do something dramatic, and that if they allow the moment to pass, they may never settle, sometimes that induces one side or the other to make a dramatic leap.

The president also asked both sides in the negotiations to get out of their "comfort zones." Often a settlement cannot be reached until both sides realize that the zone of settlement is outside the range that both parties came prepared to deal in. In a straightforward litigated case, for example, the defendant might come to the mediation with authority to pay up to $50,000 to settle the case. The plaintiff might come with the idea that they would take nothing less than $100,000. It often takes some time for both parties to understand what their own comfort zone is and just as importantly, the zone of comfort of the other side. It also takes some time for parties to get invested enough in the mediation process that they both want to settle the dispute. At that point, the mediator might tell the parties that if the case is going to settle, it is going to settle for a number somewhere between $50,000 and $100,000. Once both parties understand that they are both being asked to cross a line that neither wanted to cross, and once they both cross their respective lines, the case should settle somewhere in that range, which is beyond what both sides were prepared to offer. Likewise, in the budget negotiations, the president is telling both sides that they are going to have to find a way to give on points that they previously said were inviolate. Meaning that the Republicans should be prepared to accept some revenue increases as part of a deal, and the Democrats should be prepared to accept some cuts to cherished programs like Medicare. Once both sides have crossed their respective lines, that also makes the resulting deal easier to sell to each side's constituents, because they can tell their constituents that they got something valuable in return for their concessions.

Finally, the president's message advises both sides to leave their ultimatums and their rhetoric at the door. The parties are running out of time to complete these negotiations. They do not have the luxury of engaging in posturing and threats. At this point, both sides should understand what the outlines of a deal should look like, and they both have to decide that they would rather make a deal than try to blame the other side for the disaster that might follow if they do not make a deal. If both parties are still at the table, that must be because both want to make a deal. Anyone who makes a threat or ultimatum at this late stage of the negotiations has to understand that they might be killing the deal by doing that.  That means the time for those kinds of tactics is past. The president is saying that if the parties are still willing to participate on these terms, they are walking into these end-stage negotiations with the expectation that they are going to come out with a deal, and they already pretty much know what the deal is.