Friday, October 28, 2011

Court panel panel

It's not too late to register for the SCMA fall conference at scenic Pepperdine Law School in Malibu, worth driving up to for the view alone. The program promises to be just as spectacular as the setting, with two institutes, on elder mediation and collaborative family law, scheduled for Friday, November 4, before the main conference on November 5. A few of the Saturday panels include online dispute resolution, intercultural mediation, confidentiality and ethics, ombuds programs, conflict management coaching, and more. To top it off, we will have a keynote speech from Father Gregory Boyle, founder of Homeboy Industries.

I am excited to have the chance to moderate a discussion on developments in court ADR programs, featuring the administrators of both the Federal District Court and LA Superior Court programs, as well as two judges. I was originally supposed to help put together a panel featuring the producer and possibly the star of the TV mediation show Fairly Legal, but that unfortunately fell apart due to circumstances beyond our control. No matter. The three women (and one man) I'm sharing the stage with are going to be even more dynamic and interesting than the TV people would have been. Seriously! This main topic of this entire blog is figuring out how to integrate mediation into the court system. What could be nearer and dearer to my heart, then, than to have the chance to address that topic for over an hour with the very people who are trying to make that happen? Everyone within driving or flying distance who is reading this should plan to attend and come armed with good questions.

Sunday, October 23, 2011

The Illusion of Validity

Today's New York Times Magazine had an article about the hazards of confidence, by Nobel Prize-winning psychologist Daniel Kahneman, adapted from his forthcoming book Thinking, Fast and Slow. Kahneman describes some team-building exercises he engaged in many years ago in the Israeli Army, that were used to predict the leadership qualities of soldiers. It turned out that these exercises had no predictive power whatsoever, yet those who participated and evaluated the results continued to believe in their value, even after seeing their lack of predictive power. It must just seem intuitively obvious that those who exhibit the most skill at such tasks as figuring out how to get the team over a wall, would perform best at leadership tasks in the military. Kahneman calls this cognitive fallacy, the illusion of validity.

Kahneman noticed a similar phenomenon in studying the work of stock traders. He discusses studies showing that stocks that traders sell actually out-perform the stocks they continue to hold. It seems that a lot of stock traders would show just as good or better results if they didn't even bother coming to work. Kahneman once analyzed the performance of a group of investment advisers, finding that none of these advisers managed to out-perform the others when their results were compared over a number of years, suggesting that theirs is a game of chance more than skill. Yet every year, bonuses were awarded based on individual performance, and the best-performing advisers each year no doubt congratulated themselves on the results they had achieved for their clients. These economic and psychological studies show that it is difficult to shake people's belief in their own powers of prediction, or in the validity of the tools they use to make decisions, even when those tools are shown to have no predictive power.

In mediation, we see these kinds of cognitive fallacies, and others, all the time. Parties and their attorneys make predictions of success based on inadequate or even misleading or worthless information. Parties believe, understandably, in the validity of their positions; and attorneys are expected to show confidence in their clients' cases, as well as in their own skills. Part of the mediator's job may be to shake people's confidence in their predictive powers, something that Kahneman's work suggests may be impossible to do. It is also a tricky thing to attempt when the mediator is at the same time trying to show empathy and understanding for each party's predicament. So I might tell a party that they should place great reliance on their attorney's evaluation that they have a 75% chance of winning their case at trial. But they might also want to take into account that the other side's attorney thinks their side has a 75% chance of winning. It's not that either attorney is wrong, it's that the outcome of cases might be a bit harder to predict than people think it is.

(Tim Enthoven illustration from NY Times article)

Sunday, October 16, 2011

Don't Shoot.

Last week I heard David Kennedy (author of the new book Don't Shoot) and LA Police Chief Charlie Beck talk at the Aloud Program about reducing gang violence. Kennedy's theory, which has been implemented successfully in a number of cities, including Los Angeles, sounds almost too good to be true. As I understand it, the approach has several parts. First, recognize that the number of people responsible for the vast majority of violence in most cities is relatively small. So concentrate on those people. Next, let the street gangs know that violence will no longer be tolerated. The police will keep track of which gangs are responsible for the most violence, and will make life as miserable as possible for those particular gangs. That gives each gang a powerful incentive to lower their violence profile. Finally, and perhaps most importantly, utilize other forces in the community--peer groups, families, other community institutions--to pressure gang members to put their guns away. What happens? Everybody starts to understand that they are safer and better off if they stop resorting to shooting one another to solve their disputes. And dramatic reductions in gang violence start to occur.

In the question and answer session, audience members kept trotting out one after another pet theory for reducing crime (in this audience mostly liberal pet theories): What about reducing poverty? How about gun control? Why not legalize drugs? The chief and the author acknowledged each of these issues, but showed how none of these approaches has as much effect on the specific problem of gang violence as the so-called "ceasefire" approach. It turns out that if your goal is to reduce gang violence, you just need to focus on that. That means that the conservative nostrums for crime reduction, which Chief Beck recounted with a brief history of the LAPD's various militaristic responses to gangs over the last couple of decades, don't work either. Young men pay more attention to their mothers than to the police. Who knew? And if you enlist all available forces in the community to communicate the message that gang violence is no longer acceptable, people get that message.
Can this theory be applied to other types of conflict resolution?  The speakers talked about using the ceasefire approach to address problems like terrorism, or to the drug wars in Mexico. The theory probably has even more applications than that.

Think about a continuum of dispute resolution procedures, from the most to the least violent (from outright murder, to a duel, to a fistfight, to a trial, to a dialogue). Progress in reducing violence is represented by making each successive adversarial method of conflict resolution less socially acceptable. For example, the United Nations is supposed to operate on the principle that war is no longer acceptable, and provides a forum for an alternative form of dispute resolution. We haven't yet succeeded in eliminating war, but we might have had some success in reducing it. The courts were devised for the purpose of eliminating endless blood feuds, and have succeeded in making private revenge less common. Mediation can be thought of as a means of avoiding litigation, in other words, a movement from an adversarial, though non-violent, means of conflict resolution, to a more cooperative approach. To resolve conflict through mediation, we need to persuade people that conventional adversarial methods are wasteful and destructive. But if logical persuasion was not enough to make gang members understand that it is better not to resolve their quarrels with guns, then logic is is probably insufficient to help litigants understand the value of mediation. Eventually, we may need to change the social norms in the community to dissuade people from suing one another. In time, filing suit in court may come to seem as barbaric as calling out an opponent to a gunfight.

(shorter version originally posted here.)

Sunday, October 2, 2011

Switching modes

Imagine if one could flip a switch that would cause all the parties to a conflict to change their approach from an adversarial mode of conflict resolution to a problem-solving, or negotiation mode.  In other words, stop arguing with one another, and start talking and listening to one another. That is one way of thinking about what mediators do, and of course it is never as easy as flipping a switch. On the other hand, it doesn't necessarily even require a mediator to make the transition.  On my political blog, I posted something--inspired by my rabbi's Rosh Hashanah sermon--about the difference between a crisis model and a values model. He was talking about Israel, but the concepts apply to any conflict. The crisis model, which we seem to adopt in times of war or stress, is built on suspicion and distrust, does not tolerate dissent, and seeks to de-legitimize and defeat the other side. By contrast, what my rabbi was calling a values model, and what those in the mediation business generally call an interest-based approach, is built on trying to understand the other side's concerns, encourages communication among people of divergent views by appealing to shared values, and seeks a mutually satisfactory solution.

Why is it, whether we are talking about international political disputes, or business disputes, or even family disputes, that people seem to reach instinctively for the crisis model? Some would say it's because we respond to conflict with the more primitive parts of our brains. Others might say it's rational to react in a hostile manner to those who are manifestly out to get us. It could be our well-developed sense of justice and injustice that causes us to react with outrage whenever we feel wronged. Or we could be victims of our own biases, prejudices, and misunderstandings. I still make most of my living from the conflict model, even though the vast majority of litigated disputes eventually end by negotiated resolution.

It is possible to settle a lawsuit without ever letting go of an adversarial approach. But we are more likely to find peace if we can trade in the crisis model for an approach based on shared values, empathy, and an effort to accommodate divergent interests. Mediators usually encourage the parties to change their approach to conflict, but parties can make the switch with or without the help of a mediator. How do we make that switch?

I remember once in my early days of practice strategizing about our response to an eviction case. We needed to stay that case so we could litigate other claims against the landlord, and immediately started talking about the extensive set of papers we would need to prepare in support of that motion. At some point I suggested simply calling the landlord's attorneys to see if they would agree to a stay, and everyone else thought that was a crazy idea. With nothing to lose, however, we decided to try it, and to our surprise they agreed. Since then, my first impulse in encountering any problem in a case, is generally to call the other side to see if we can resolve it, something that the rules now usually require counsel to do (a requirement often honored in the breach). But if we make a genuine effort to resolve an issue that would otherwise require a motion, we will find workable negotiated solutions more often than we think.

I have often had to prepare cases for trial, while simultaneously attempting to settle them. The first time I remember being in that situation, I was in the office late in the evening drafting witness outlines for an arbitration hearing, while waiting for a call back from opposing counsel to find out if they would accept our last offer. While in the middle of that settlement discussion, knowing that the case was probably going to settle (it did), I not only lost some of my motivation to continue doing the preparation work, I also noticed that the outlines I was working on started to look rather pointless and absurd. (Parties to a lawsuit should consider having a settlement team different from their trial team, to keep the trial lawyers focused. Even then, however, trial lawyers just have to live with the reality that their work may come to an end at any moment.)

I remember a deposition I took of a witness associated with a production company in the entertainment industry. The witness, who was not a party to the case, seemed amused by all the squabbling between opposing counsel and myself. During a break, when we managed to have a more civil conversation, the witness asked both counsel for the warring parties how we could stand all the negative energy we were creating. This question, coming from someone whose business depends on fostering creativity and positive energy, made me realize how heedless litigators can be of the poisonous atmosphere we often purposefully foster, and how such an atmosphere can impede resolution of the dispute.

In each situation, what enabled me to make the switch was examining whether what I was doing was wasteful and/or counter-productive to the goal of resolving the dispute. Sometimes you have no alternative but to keep fighting, but many times all you find that you are doing is banging your head against a wall without making much of an impression on the other side. That is the time to consider communicating instead of more banging. Even in a dispute that appears to be a zero-sum game, parties often find that they have shared interests. At the very least, they have a shared interest in resolving the dispute. They may also have a shared aversion to the costs and risks of litigation. They probably both dislike the atmosphere of hostility and distrust engendered by the the crisis model, but they think it's all the other side's fault. If they can put aside the crisis model, and switch to  a values-driven approach, they might find they have even more shared interests or values in common.