Friday, December 28, 2012

End game

Nobody should be surprised that the "fiscal cliff" negotiations are going down to the wire, and perhaps beyond it. Republicans and Democrats have been fighting tooth and nail over these budget issues for years now, and nobody is about to concede gracefully to the other side. Only when both sides are absolutely sure that the deal on the table is the only deal available, and that the deal is better than the alternative--an unpleasant package of tax hikes and budget cuts that will take effect automatically in January--is there a possibility that both sides will accept the deal. In this situation, the deadline itself might be the only thing that will force the parties to make a deal, which means there is no reason to expect any deal to be made until that deadline is about to expire. Except that the deadline can be extended, and except that some of the parties think their leverage will actually improve after the deadline has passed, and some of these negative consequences start taking effect.

I've seen parties in protracted lawsuits reach this point numerous times. Contested lawsuits are not usually just about the money. If that were all that the parties had at stake, they would be able to resolve the dispute fairly easily. No, if the battle is hard-fought, that is because one or both parties believes that a matter of principle is at stake, or a personal insult must be righted. It's the same with members of Congress. Republicans firmly believe that the only acceptable way of dealing with our economic troubles is to keep taxes low and keep reducing the size of government, particularly on the kinds of social programs that Republicans believe are sapping our economic strength. Democrats firmly believe that these same programs are vital to protecting millions of people from the ravages of the economic downturn, and that they will also help stimulate the economy to faster growth. They also firmly believe we need to reduce inequality and raise revenues, and can accomplish both goals by increasing the highest marginal tax rates. If this were just a matter of choosing a compromise number between say, 35 and 39, that could be easily accomplished. But any number that we end up choosing will be taken as a surrender on a matter of the most sacred principle by at least one side, and perhaps by both sides.

How can parties be induced to accept the surrender of their principles? In private conflicts, it's sometimes effective to remind people of the toll the conflict is taking on them, and to ask them to imagine being able to put the conflict behind them. Sometimes they need to realize that no matter how long they negotiate or fight, they can't improve what they view as a lousy deal. At that point, the only choice they have is between peace and continued conflict. People only reach that point at the end of a long period of negotiation, when there is no more time left to negotiate.

Politicians might have an even harder time making peace than private parties. Perpetual conflict is part of their job description. Even if they reach one budget agreement today, they will just start the next day preparing for battle over next year's budget agreement, or some other issue of even more sacred principle. And politicians have to answer to their constituents, who are even less forgiving and understanding of the need to compromise than they are. Just like parties in private disputes, the politicians are only going to arrive at the point where they might accept a deal when there is no more time left to negotiate. And even at that point, a lot of them would just as soon continue to fight. 

Sunday, December 23, 2012

How to talk about guns

As the nation embarks on a debate about how to reduce gun violence, it might be a good idea to set some ground rules. First rule: it's useless to frame this issue in terms of constitutional rights. The meaning of the Second Amendment is a legal question that is determined by the Supreme Court. Arguing about the meaning of the Second Amendment is not going to get us anywhere, unless somebody's argument is going to influence the Supreme Court. Anyway, liberals just look foolish and hypocritical advocating a strict textual, originalist interpretation of the Second Amendment. They don't apply that standard when they claim that abortion and sodomy are constitutionally-protected activities. Why read another part of the Bill of Rights differently?

The good news for liberals is that even though the Supreme Court has determined that individuals have a constitutional right to own firearms, the Court left a lot of room for all kinds of regulations of that right. Nearly all of the ideas being floated for stricter control of weapons would probably be permitted under the Court's interpretation. If some gun regulations are not permitted by the Constitution, that is going to be for the courts to decide anyway, so it is no use arguing about it. First, propose and pass whatever gun regulations people decide are appropriate, and let the courts decide if we go too far.

My second rule for improving the debate comes from the mediation community. If we're trying to resolve a conflict, we need to ask participants to focus on their interests, rather than argue positions. Focusing on positions--whether we should or should not regulate guns more strictly--just drives people into opposing camps, and encourages them to assemble justifications for their views. If we instead try to find common interests, such as protecting the safety of children, we might have a more constructive dialogue about the most effective ways to accomplish that common goal.

Using that standard, we might have to recognize that there were parts of NRA lobbyist Wayne La Pierre's statement on Friday that could be used to start a constructive dialogue. LaPierre did try to address the common interest we share in protecting the safety of children by proposing the ideas of installing armed guards at all schoolhouses, and also cracking down on violent video games and other media depictions of violence. A lot of people might think these are bad ideas, but if we're going to have a constructive dialogue and debate that includes the gun-loving community--which is a sizable community--then the right way to react to the ideas  LaPierre has proposed is to thank him for his contribution to resolving the problem of gun violence, engage him in a discussion about the effectiveness of his proposed strategies, and ask him whether he is willing to consider any other methods of promoting the same goal of protecting children.

That leads to my third proposed rule, which is that we should demand empirical evidence supporting any suggestion for dealing with the problem of reducing violence. So if Wayne La Pierre tells us that the only way of stopping a bad guy with a gun is to install a good guy with a gun in every school building, we should demand studies that support that suggestion. Is that really the ONLY way? What about counseling? What about reducing the bad guy's access to the arms stockpile that his mother might have been assembling? And how effective is one armed security guard standing at the entrance to a school if the bad guy shoots him first? Still, we don't need to rule out increased security as one possible solution to gun violence.  Lots of schools already have guards and gates, and maybe we should consider beefing up some of those protections as part of the solution. But if Wayne LaPierre wants people to be open to his ideas, he needs to be open to other ideas as well. Including ideas that might keep dangerous weapons out of the wrong hands, or restrict access to high volume magazines, or require that gun owners at least pass the kind of licensing and safety tests that we demand of car owners.

Let's get all ideas on the table, look at evidence as to how well they work, and try to solve this problem in a constructive way.

Friday, December 21, 2012

Plan B

Last night, the Republican House leadership withdrew the tax part of their so-called "Plan B," which would have raised the top bracket percentage only for people making over $1 million annually. Plan B was withdrawn because they didn't have the votes to pass it. In negotiation parlance, Plan B was akin to the Fisher/Ury concept of BATNA (the best alternative to a negotiated agreement). In mediation, however, I find it more useful to focus the parties on the MLATNA (most likely alternative to a negotiated agreement), because parties who fail to make a deal can't count on getting their best alternative outcome. (In the budget negotiations we are now watching, the MLATNA would refer to the most likely scenarios that will occur if the president and the speaker cannot come to terms and pass a deal through Congress. More on those likely alternatives below.)

The withdrawal of Plan B is being portrayed as a failure for Speaker Boehner, but Plan B was actually a pretty clever gambit on his part. To get more of what the Republicans want out of a budget deal, Boehner proposed an alternate plan better for his side than the plan the speaker and the president were negotiating. Boehner thought he might pressure Democrats to agree to his alternative, otherwise they might be blamed for the failure of the negotiations. But first he had to get his caucus to support Plan B.

The real failure is of the Republican caucus to back the plan. This failure is almost incomprehensible, given that the only alternatives that currently seem available are either acquiescence to a negotiated agreement that would be worse than Plan B from the Republican point of view, or the dreaded fiscal cliff. If we go over the fiscal cliff, Republicans lose all their leverage on tax cuts. Taxes will go up automatically for all Americans. And the only alternative on the table will be the Democratic proposal to reduce tax rates for all but the top 2%. How could the House not bring that up for a vote once all the rates have gone up?

Here's what Representative Dan Burton said about that:
"If we go over the fiscal cliff, the president just comes back and says, 'OK, we're going to give tax cuts to everybody under $250,000.' Who's going to vote against that? Everybody'll vote for that. Everybody. Because it will be just a fait accompli. You won't be voting on whether you're going to do away with a tax cut, you're going to be reimposing tax cuts for everybody under $250,000. So the Republicans are in an untenable situation."
What explains the mentality of the House Republicans who rejected the best option they seem to have in these negotiations? Once they decided that none of the available alternatives are good enough for them, they are probably left with a worse alternative than Plan B. I've frequently seen this mentality displayed by participants in settlement negotiations. I tried to settle an employment discrimination case a while back, for example, in which the company offered x dollars, but the guy thought he should get more like 5x. The amazing thing was that this plaintiff knew he was almost certain to lose the whole case if he went to trial. He was very clear-eyed about it, and yet still could not accept the company's offer even though it was almost certainly better than any available alternative. It just didn't meet the standards of what he felt he was entitled to. A rational person should always choose x if the only choice is between 0 and x. But people are not all that rational. If they have an unshakeable belief that they are entitled to 5x, they would sometimes rather take 0 than settle for less than they believe is right.

That's what the Republican House majority chose to do last night. They decided they would rather have a big tax increase imposed on their constituents than compromise their "no tax increase" principles in the slightest. They rejected the possibility of agreeing to the tiniest possible tax increase that their leadership could possibly propose. This is not rational thinking. But it's not surprising either. The real world will find its way of imposing itself on the Republican House majority. But they are not going to be a willing partner to that process.

To be fair, I should mention that Plan B was probably doomed anyway, since the Democrats in the Senate said they probably wouldn't even have brought it up for a vote. And President Obama threatened to veto it. Still, it's got to be way worse for the Republican bargaining position if they can't even agree among themselves to support a plan that is the least damaging of all realistic alternatives to their beliefs. It's like refusing to agree to have your smallest toe amputated, even when you know that you will either die or lost your whole leg if you don't. It's amazing to watch a political party do that to themselves.

Wednesday, December 19, 2012

Budget impasse?

Getting closer to the deadline for avoiding the so-called "fiscal cliff," the budget negotiations between President Obama and House Speaker Boehner have reached a delicate stage, with the president suggesting concessions some of his supporters are having difficulty swallowing, and the speaker threatening a "Plan B" that would circumvent the deal the two principal negotiators have been discussing. These negotiations are a little different from those that typically occur in mediation, where the negotiators (usually lawyers) are usually constrained by the clients in advance from offering anything the clients have not authorized. In this negotiation, the "clients" take the form of members of the House and Senate, an unruly bunch on both sides. The extent of the authority they have granted to their "lawyers," represented by Boehner and Obama, may not be known until the package is voted on.

The real "clients" are of course the public. The most politically active members of the public are asserting their settlement authority by loudly advising their representatives that the deal that is being floated may already have crossed some lines. For the Republican base, that line is represented by raising anybody's taxes and the failure sufficiently to rein in perceived out-of-control government spending. For the Democrats, it is possible cuts to their most beloved programs, Social Security, Medicare and Medicaid, as well as the possibility that the president may back down from his promise to raise taxes on the wealthiest Americans. 

What I would say to try to calm these hysterical "clients" is to remind them that it is best not to say no too soon. Show some flexibility and movement if you want the other side to do the same. Wait until the other side has presented what seems close to their best offer before deciding whether or not to accept it. And don't compare the other side's offer to the ideal of what you think you are entitled to. Compare it to the alternative of no deal.

Because in the real world, we don't often get exactly what we think we are entitled to. Instead we get a choice between the deal we can get the other side to agree to, and the alternative of no deal at all. And we might have to offer to accept less than we would like just to find out what the possible deal is.

Looking objectively at the current budget negotiations between Speaker Boehner and President Obama, I don't see anything for either side's supporters to be panicked or outraged about at all. Both sides are following fairly standard negotiating tactics. Both are giving ground very slowly. At this stage, the two sides don't really seem all that far apart. And the outlines of a final deal don't seem all that unreasonable.

Everybody knows the final deal will consist of a combination of revenue increases and spending cuts. For the Republicans, the revenue increases will be too large and the spending cuts too small. For the Democrats, the opposite. But look at how much progress we have made since the stalemated budget negotiations of last year, when the Republican side would not agree to any revenue increases at all. Suddenly, the Republican side seems willing to accept tax increases of approximately equal size to spending cuts, which would have been unthinkable for them last year. And to give up their attacks on Medicare. To get those concessions, the Democratic side has had to show some willingness to trim slightly their demands for tax increases on the wealthiest Americans, and to tinker with the cost of living formula for Social Security. This all looks like standard negotiating to me. Neither side would be getting closer to a deal, which the parties are, without showing this kind of flexibility. People are kidding themselves if they think that the other side in these negotiations would bend if their side just held firm to their initial positions. Negotiating just plain doesn't work that way. The way it works is the way we are seeing it unfold in public.

Both side's supporters should feel confident that their representatives are doing their best to obtain the best deal possible, and are using every bargaining chip and bit of power at their disposal. At the end of the negotiations, we might quibble about whether one side or the other left a little money on the table. But for now we have no reason to think anybody is going to get anything less than the best deal possible for their side.

If the parties do reach a negotiated solution, nobody is going to be entirely happy with it. That's one definition of a negotiated solution. The test is whether it is better than the alternative. Critics of the concessions their side is considering in the negotiation process, would do well to consider the serious negative consequences of failure. Those include tax increases for nearly all Americans, layoffs for federal employees and contractors, market reversals and credit downgrades that will affect the financial condition of the entire country. And perhaps most importantly, the growing sense that this country is so polarized and dysfunctional that it can't even reach agreement on something as basic as a budget, something that should never have been so politicized in the first place.

It's a budget, and it necessarily has to reflect the spending and taxing priorities of all of us. The only way it could truly fail would be for the budget to end up making one party cheer and the other party feel that its priorities were ignored. So people should be happy if we end up with something that the most partisan advocates on each side are not entirely happy about. The alternative is worse.

Tuesday, December 18, 2012

Planned Early Negotiations

Has the rise of ADR affected the way advocates prepare and handle cases, or can we expect attorneys to continue their customary practices of pleadings, motions, discovery and trial preparation, until the day comes when the cases settle in spite of, or as a result of, those efforts? A lot of time and effort is spent on pre-trial activities that are not of much benefit even if a case goes to trial, and are even more wasteful if the case is settled. Is there a way of conducting litigation that might avoid some of that wasteful activity and lead the parties on a more direct route toward a negotiated resolution?

I'm not talking about what Professor Marc Galanter described years ago as litigotiation, which is a prevalent form of litigation that recognizes that most cases are eventually going to be resolved by a process of negotiated agreement, and uses all the processes of the court system as leverage and as aids to that negotiated outcome.  I'm talking about a method of lawyering that avoids the court system altogether, except perhaps as a fallback if the ADR process fails.

The legal profession is only beginning to formalize such a process. Last year, the ABA released a book called Lawyering with Planned Early Negotiations: How You Can Get Good Results for Clients and Make Money, by John Lande. Lande shortens his ungainly book title to the acronym of PEN, for planned early negotiations. I'd just as soon tell clients I will try to resolve their dispute if possible without litigation, but I'm interested to see that somebody has tried to create some structure and guidelines for practicing law in this manner. Lande even includes a helpful CD full of form agreements and other documents that might be useful in this type of practice.

So what is lawyering with planned early negotiations? Basically it means the lawyer is going to advise the client from the outset that the lawyer is going to try to solve the client's problem through negotiation, rather than a traditional adversarial approach to litigation. Clients are often reluctant to hear that message, instead usually wanting to know how their lawyer evaluates their chances of prevailing in court. But if we are honest with clients, we have to tell them in most every case, that the chances that their case will be resolved in court are fairly small. Most cases are going to be resolved by negotiated agreement anyway, so it makes sense to set the client's expectations for that from the start. As long as we're doing that, it makes sense to suggest trying to get to that point without litigation, a less familiar pathway for lawyers and clients.

To practice with the expectation of a planned early negotiated resolution might require changes to lawyer's engagement letters and creative fee arrangements. Lawyers then have to get used to the idea of forming constructive relationships with opposing counsel, which will help in exchanging information with the other side in a cooperative and informal way. Attorneys have to reach out to the other side to agree on a process that is likely to resolve the dispute without litigation. Lande also includes tips on negotiating and other techniques that are familiar to people working in the mediation world.

Divorce lawyers have led the way in this field, building up an elaborate body of collaborative practices, including what is known as the participation agreement . Such agreements generally require that if the parties fail to reach a negotiated settlement, the first set of professionals will be disqualified from representing the parties in court. This gives parties and lawyers maximum incentive to succeed in settling the case, and little incentive to litigate.

Can such an approach take hold in the commercial litigation context? It sounds like the opposite of the way I was taught to litigate years ago, when a particularly aggressive style of litigation was in favor, one that considered it almost unethical to do anything that would make your adversary's life easier. But it's really not all that different from the way many litigators have learned to practice. We often send out a demand letter as an invitation to a negotiation as well as a threat of litigation. We are supposed to try to resolve discovery and other disputes without bothering the judge about every disagreement, and it's usually in our clients' interests to do that. All trial lawyers recognize that the vast majority of cases will end in negotiated resolution, so we act as settlement counsel in cases we are simultaneously litigating, and conduct ourselves in a way that is not going to antagonize the other side unduly so as to jeopardize the ongoing settlement negotiation. Some firms use separate settlement counsel and trial counsel working simultaneously on a case, keeping each focused on their conflicting objectives.

The difference between the PEN process and customary litigation practice may come down to a decision at the outset of the case to put the threat of litigation into the background, instead of initiating a case by threatening or actually commencing a lawsuit. Corporate lawyers do that all the time. They can be just as aggressive as litigators, but they know they are employed to make a deal, that they might be blamed if they blow the deal, and that they will not be the ones to handle the case if the deal falls apart and litigation ensues. If business trial lawyers started adopting the PEN approach, they would have to start acting more like those corporate lawyers, which still allows them to advocate strongly for clients, but in the context of a planned negotiated resolution of the dispute.

In my litigation practice, I have had some success with an approach like the one Lande is describing. My fee is generally lower in such cases, but client satisfaction is generally higher, and I avoid the risk that can happen in litigation of a case getting bigger and more expensive than a client can afford, which can be disastrous for both the lawyer and the client. If I can provide the same or better outcome for a client without having to resort to a process that, let's face it, is more fun for lawyers than it is for clients, what possible reason would I have not to try it?

Sunday, December 9, 2012

Free mediation, revisited

The prospect of elimination of all ADR administration by the the Los Angeles County Superior Court, discussed in a previous post, seems about to touch off another debate about pro bono mediation. LA's court-connected mediation panels have always had a strong pro bono component, and this rankles a lot of practicing and prospective mediators, who quite rightly feel that mediators deserve to be paid, just as judges, court personnel and the parties' counsel all need and expect to be paid for their services. A lot of mediators will therefore say good riddance to the court's pro bono panel, and hope that the prospects for free mediation will be quite limited in the future. On the other hand, others trying to get their start in mediation depend on the court panels to gain experience and to gain contacts with litigants who might hire them in future cases. Without experience, they may have difficulty finding work.

I have a role as an officer of the Southern California Mediation Association serving members who fall in both categories, so I'm going to try to avoid taking sides in this debate. But it might be useful to examine some of the rationales for free mediation to see where it might find a place in the system. First, everyone should recognize that there is a justification for pro bono mediation in small cases, particularly where the parties themselves might not be able to afford legal representation, and where the amount in controversy doesn't justify payment of additional fees for professionals.

There is also a rationale for free mediation similar to the rationale for a free public system of justice, regardless of the amount in controversy. We need courts to enforce and develop legal rules that guide everyone's conduct. When we sign contracts, we usually don't expect to have to go to court to enforce them, but we should be willing to contribute as taxpayers to the maintenance of that court system to motivate all of us to abide by our legal obligations. Society also has an interest in the resolution of conflict in general, and we should therefore be willing to provide a free public system for that purpose. If mediators can resolve conflicts more efficiently than judges, then the courts have every reason to refer people to mediators without charge, just as they do not require litigants to pay judges. Under this rationale, however, we would expect the courts to pay mediators as part of the court staff, and some courts do that. I'm thinking especially of the staff mediators who do an effective job of easing the workload in appellate courts. If we believe the courts should be in the business of resolving conflict by alternative means, we should expand these programs in trial courts as well, but unfortunately in this time of budget cuts, it is difficult to propose adding such staff.

But the main reason for the maintenance of free outside mediation panels seems to be evolution. A lot of court mediation programs started out by asking for volunteers in the legal community to help settle cases. They didn't used to require any special training for these programs, but depended on people willing to serve an occasional morning or afternoon to reduce crowding and delays in the court. A lot of programs still operate that way, such as the federal court mediation programs that rely on a large pool of volunteers who are only expected to serve the court on an occasional basis. (Those panelists are permitted to charge fees after a set number of hours of free services, however.)

The LA Superior Court panel started that way also, but grew so large because of the huge caseloads generated by this massive court system, that it began to resemble a training ground for professional mediators who then started demanding pay for their more-than-occasional service. When the court started requiring more training to gain access to the panels, these demands started to sound more reasonable. Courts are able to retain a supply of volunteer mediators because there are still a large number of people exploring the prospect of obtaining experience in the field, and hoping to succeed as private mediators. But many of these people are trapped in a vicious cycle, having to contribute substantial amounts of time to mediation for cases that do not justify such treatment, only because litigants have been conditioned to expect free mediation.

The LA Superior Court has attempted to reconcile these competing demands by trying to limit the cases suitable for pro bono mediation, and by encouraging the use of a pay panel of more experienced mediators. I can attest from having served for two years on the court's ADR committee that most of the judges on that committee are quite sympathetic to the demands of mediators to be paid for their service. But pro bono mediation remains over-utilized, in the view of many people struggling to make a living in this field.

Will the possible elimination of the court program force more litigants into choosing private, paid mediation? And wouldn't that be a good thing? Perhaps. Litigants have been conditioned to expect to be referred by the courts to mediation, and have also learned to take for granted the availability of a large free or reduced-fee panel. But they have also learned to appreciate the value of mediation. At this point, they ought to be willing to pay for the service, which will after all potentially save them more in attorney's fees in most cases than mediation will cost. On the other hand, if the court is not processing all the thousands of cases that are currently being referred out to mediation, inertia might just leave many of those cases languishing. They might not mediate at all if they aren't pushed into mediation, and if mediation costs money. On the whole, therefore, it seems that the elimination of court panels, except perhaps in small cases, might end up helping more established private mediators, even though this elimination would be expected substantially to reduce the demand for mediation services in total, and will probably make it more difficult for less experienced mediators to gain experience.

Wednesday, December 5, 2012

Court-Annexed Mediation Not Dead Yet

The news is worse than expected. I had been thinking of the impact of court funding cutbacks here in Los Angeles primarily in terms of how cutbacks and delays in courtroom services would affect the demand for ADR. That was the focus of the program I moderated at the SCMA conference last month, where we also touched on the possibility of cutbacks to the ADR program itself, but did not anticipate its complete elimination. This week I learned that the entire LA Superior Court ADR program, one of the largest in the nation, is indeed in jeopardy.  A recent message from the chief judge announced that the court anticipates elimination of all non-mandatory elements of the court's ADR programs next year. At a meeting of the court's ADR committee today, we were told to anticipate reduction or elimination of all services by the ADR program as of June 30, 2013. Worst case, the court staff would no longer be administering any kind of ADR program using outside mediators, but would still retain the judicial settlement officers the court provides. Needless to say this was not a cheerful meeting.

The most positive way of spinning this news would be to say that it is still business as usual for court-referred ADR for the next six months, but after that the program will be phased out in part or totally eliminated. So if you hear people say that court ADR has been eliminated, rest assured that it has not . . . yet.

If all court funding for ADR is eliminated in June, that would also mean the court would no longer receive grant funding for ADR administration, but other agencies would potentially be eligible for that funding. It is hard to see, however, how any other agency, such as the LA County Bar Association (which is a possibility), would have the capacity to meet the terms of the grant. It requires a lot of personnel to administer.

Obviously this is a major disaster for the court, as are a lot of the other cutbacks, and it presents a huge challenge for people interested in doing mediation who were able to gain experience from being assigned pro bono cases by the courts. Nevertheless, the prospect of destroying the public system represents an opportunity for private mediators, as well as for organizations such as the Southern California Mediation Association, to fill the void.

Consumers of mediation services, and even mediators, don't always appreciate just how much work goes into court administration of these programs, and how much they cost. Court administrators have to enforce the eligibility requirements for membership on the panels, handle intake of cases for mediation and assignment to mediators, follow up to make sure mediations have been completed, and handle complaints. Any private organizations hoping to take over these responsibilities will have to re-invent an elaborate machinery the court has painstakingly built up over many years.

Still from Monty Python and the Holy Grail


Saturday, December 1, 2012

Ten courthouses

Although the budget crisis in California has lasted for years, the state court system has until now managed to avoid the worst possible scenarios. Courts have survived these hard times by depleting their reserves and diverting their capital budgets for operations. Having exhausted those strategies, and with no prospect of restoration of full funding in sight, the courts have finally had to take more drastic actions to grapple with huge funding shortfalls. Recently, the Los Angeles County Court system announced their plan to deal with budget cuts by closing 10 regional courthouses, including the branch courthouses in Beverly Hills, Malibu, Pomona, and Whittier. These facilities may end up staying open only for such purposes as paying traffic tickets. Their courtrooms will be shuttered.

A lot of ADR advocates are not going to mourn the loss of courthouses, and some think the decline of the public system could even be good for the private mediation business. To look at court funding cutbacks that way, however, is to ignore the real impact that closing courthouses will have. For people who need access to court, whether to process restraining orders, get a divorce, collect a debt, or obtain compensation for injuries, it is not good news to be faced with more delays and higher costs. It also marks the decline of a concept of neighborhood justice that all these branch courthouses represented. In a far-flung county as large as Los Angeles, that concept spared a lot of people a lot of long trips downtown. Now litigants will have to adjust to a more centralized, more crowded, and much slower system.

Mediators depend on the court system more than they sometimes credit. Even if we are only pointing out the system's imperfections and high costs, we are still relying on the court system as an inducement for parties to settle. Looking at the system in a more positive light, I like to be able to advise people embroiled in a dispute that they always retain the option of having their case decided by a judge or jury. It's much harder to tell people they are out of options. Wouldn't we rather allow people to retain the comfort of a public justice system even if they don't need to use it? When parties sign any contract, they feel they have the full force of the law behind them, even if they don't need to go to court to enforce it. When people resolve a dispute through mediation, they should also understand that their agreement bears the force of law. We can only provide that assurance if we have a functioning court system.

Courthouses function as gateways as well as destinations. Litigants commonly think of the courthouse as the place that will decide their dispute. But the courthouse might be better thought of as an intake system for disputes. Resolution of the dispute may be farmed out to an arbitrator or a mediator, or parties may reach a resolution by their own devices. Very few civil cases will end by trial even if we had all the courthouses in the world available. If we think of the courts more as an intake system than as a final destination, I wonder how efficient it is going to prove to force litigants to start their journeys in the massive downtown courthouse. Faced with that prospect, will litigants devise other ways to commence the process?

Thursday, November 29, 2012


File this post under the heading of interesting experiments in psychology, this one conducted by that noted Psychology Professor Jimmy Kimmel. Kimmel's team proves that if you tell people that two identical things are different, people will find the difference and be able to explain it to you. I'm not sure that I can articulate how this principle applies to mediation, but I am fairly certain that it does.

Friday, November 16, 2012


This year's Southern California Mediation Association conference experimented by adding an advanced track, co-sponsored by the American Institute of Mediation. The new feature enabled more experienced mediators to attend a series of workshops on topics that might be of more interest to them. This part of the conference seemed to be well received, but I will be curious to hear more reactions to it from participants. 

We felt the need to offer these kinds of programs in part to expand our reach as an organization. SCMA needs to remain relevant to more established mediators as well as introducing newcomers to the field. In order to function as a true professional organization, SCMA has to offer programs of interest to those members, and also to serve as a forum for the development of professional standards and practices, and to  address issues of concern to professional mediators such as mediator certification, mediation confidentiality, and other rules and regulations applicable to the practice.

In fact, the organization needs to go even further. It should not only help train new mediators and assist established mediators, but should also serve the interests of a range of professionals who want to incorporate mediation concepts into a variety of careers, from counselors to police officers to HR professionals to ombudsmen to lawyers like myself who not only mediate but also use mediation and negotiation skills in their practice. The future of mediation is not limited to developing a cadre of professionals who call themselves mediators, but instead aims to introduce approaches to the resolution of conflict that all of us can use in every aspect of our business and personal lives.

Wednesday, November 14, 2012


I thought I might lay off politics for a while after the election. But politics is not taking a moment's rest. And politics serves as such a good metaphor for mediation, I can't resist discussing it. Take, for example, the politics of the upcoming budget wars, of which we are now hearing the opening salvos. This debate promises to provide a great example of the dynamics of a very public negotiation, one that will affect all of us. We can think of the election as a mechanism that affected the strength of each side's bargaining position. We can also think of it as a message from the voters to their representatives, but that message is already subject to multiple interpretations.

Republican Congressional leaders recognize they are entering the upcoming battle in a significantly weakened position, and are already hinting at the possibility of compromise. They also know they need to make a deal more than the other side does. Still, they have not yet given any substantive ground at all on their previous commitments not to raise anybody's tax rates. President Obama and Democratic Congressional leaders are standing pat on their promise to raise the top bracket rate. They are almost daring the Republicans to drive us over the so-called "fiscal cliff." Democrats are acting like the party in mediation who tells you that he doesn't care whether or not he settles the case, because he likes his chances at trial so much.

My recommendation is not to pay too much attention to the initial posturing by either side. That's the same thing I tell people when I mediate disputes in litigation. Initial demands and offers should always be taken with a hefty dose of salt.  These positions are often deliberately designed to communicate just how tough a negotiation the other side can expect. Since parties do not expect the other side to jump at an opening offer, they almost always set them too high (or too low) to give the offering party room to negotiate. Sometimes parties want the other side to think they are crazy or unreasonable. That means it usually doesn't help to express outrage at anything said in the opening rounds of a negotiation. There is little reason even to take these opening statements seriously.

Karen Brzys
There are good reasons, supported by research, for parties to open negotiations with unreasonable demands. They serve the purpose of framing the other side's expectations, a concept known as "anchoring." These initial demands set the outside boundaries for a negotiated resolution, and serve each party's interests best by dragging those boundary markers as far as each side can plausibly drag them, leaving a lot of room in the middle for an agreement both sides might be able to live with.

It's the second round of offers where negotiations get more interesting. In that round, the Republicans will probably let the Democrats know what they might be willing to do to raise revenues. The Democrats might be willing to let the Republicans know what steps they might be willing to consider to reduce the growth of entitlement programs. The parties could be discussing a total overhaul of the tax code as a means of satisfying both the Republican demand to keep rates low, and the Democratic demand to raise revenue.

The crunch will not come until we are weeks or even days away from the December 31 deadline when the Bush tax cuts will expire and sequestration kicks in. The crunch might even come later than that, because the parties know that the world will not come to an end on December 31 if Congress fails to make a deal. So it won't be until at least mid-December when we should expect to find out where the parties really stand, and where the parameters of a possible agreement might lie. We could even reach a so-called "impasse" at that time, in which both sides refuse to budge from announced positions. In the meantime, people should understand that we have several rounds of bargaining to go, and that most of what politicians are saying now is not intended to be taken seriously.

Soon, however, it will be time to pay attention. Because what will determine the outcome of these budget negotiations will be the expressed feelings of the American people, and the strength and volume with which the advocates for the Democratic, the Republican, or some in-between positions express their points of view. We are the "clients" in these negotiations, and our representatives are charged with making a deal that reflects our desires. Good luck to them.

Sunday, November 4, 2012

Peacemaker of the Year

Kenneth Feinberg was the keynote speaker at the SCMA fall conference yesterday, where we presented him with the Cloke‑Millen Peacemaker of the Year Award. Feinberg gave a fascinating talk on the dilemmas involved in allocating compensation to victims of such famous disasters as the BP Gulf Oil spill, the 9/11 attacks on the World Trade Center and Pentagon, and the recent shootings in Aurora, Colorado. In each case, Feinberg was largely successful in avoiding protracted litigation and compensating victims relatively quickly, using criteria that he and his team largely had to invent. Even so, few victims of these disasters chose to go to court after taking the route of an established compensation scheme, even when they retained that option. Feinberg views the cases in which he was appointed as Special Master, despite their seeming frequency in his world, as relatively unique. Feinberg thinks it is difficult to apply the lessons he learned in administering these disaster funds, to other situations, even to other mass torts, because these highly-public tragedies each provoked such a special response unlikely to be duplicated in the future.

The experiences that might be more applicable to the kinds of cases handled by those attending the conference involve disputes that arise between claimants to a fund. Feinberg noted that absolute dollars matter, but relative dollars seem to matter even more. It seems that disaster victims measure justice by comparing their proffered awards to those offered to others affected by the disaster. Feinberg also gave examples of some of the conflicts between family members or neighbors, such as a conflict between the fiance and the parents of one of the World Trade Center victims. In these situations, Feinberg sometimes relied on teams of mediators to resolve such disputes, and sometimes set up what can seem like arbitrary rules that determine who gets paid, and how much.

We had an interesting discussion at the SCMA dinner Friday night on the values of neutrality and fairness, or maybe neutrality vs. fairness, as experienced by mediators. The discussion was provoked by a talk by Roger Wolfson, a writer for Fairly Legal. Feinberg, sitting in the audience this time, had trouble understanding how a mediator could ever lose sleep over achieving a successful settlement. Many of the mediators in the audience, on the other hand, had at times experienced some discomfort when parties agree, under pressure of pending litigation, to resolutions that seem unfair to themselves, or to the mediator. 

I may have more to say about this conference, but for now I just want to congratulate newly-inaugurated President Wendy Kramer and her team for a highly successful event!

Saturday, October 20, 2012


I posted something on my political blog about two competing ballot propositions before California voters this November. Both aim to improve the state's financial condition and raise money for education, but each attacks the problem in a somewhat different way. One is sponsored by the governor and the other by a private organization. Polling has indicated majority support for the governor's proposition, but now there may be a real danger that both propositions go down to defeat. Why? Because the competition between the two measures has sparked negative messages by each side against the other.

As soon as we have two ideas before us on how to fix a problem, we naturally start comparing them to decide which one we like better. We might think one idea is good, but another is better. The human mind doesn't always support that kind of subtle distinction, however. Once we start advocating for the idea we prefer, we can't seem to keep from attacking the idea we don't like as well. Instead of arguing that one idea might be good, but the other one is better, the argument starts to sound like one idea is good, and the other idea is bad. Supporters of each idea form two different camps, and point fingers at the other. The resulting negativity may result in enough "no" votes for each proposition, even from voters who support the general idea of more money for schools, that will cause both propositions to go down to defeat. If that happens, both camps will probably blame the other for the defeat.

We see this tendency among groups in all kinds of conflicts. Members of my family might support the general idea of going out to eat, but then break into warring camps over whether we should choose a Chinese or Italian restaurant. Parties in business disputes come up with two different solutions to a problem, each of which might be more advantageous to one side, but both of which are better than the continued conflict. If they cannot agree on a solution, however, the conflict continues, and the problem does not get solved at all.

With regard to the ballot controversy, one solution for voters who support the general idea of more funding for education, is to vote yes on both propositions; alternatively to vote yes on the one they prefer and abstain on the other. If you support one idea, that doesn't necessarily require you to try to defeat a competing idea. That path can turn "win/lose" into "lose/lose." It's better to stay open-minded to allow an acceptable solution to succeed. To get to "win/win," the proponents of two competing visions should work together to craft a joint solution they can both live with.

Saturday, October 13, 2012

Joint Sessions

I had a chance a while back to attemd a training session with Gary Friedman, a mediator in Northern Calilfornia, who is known as one of the foremost practitioners of joint session mediation. In fact, Friedman insists on conducting mediations start to finish with all parties in the same room. He will not even read mediation briefs marked as confidential, and he refuses to hold any information discussed with him during a mediation in confidence with respect to the other parties. If the parties to a mediation run by Friedman want to hold a private caucus, Friedman allows that, but they have to do that without without the mediator present.

Since I am also a believer in joint sessions, I was very interested in learning how Friedman does it, and I followed up the training session with Friedman by buying his book, Challenging Conflict: Mediation Through Understanding, which I found very worthwhile. The key word in the title is "understanding," which Friedman repeatedly emphasizes is the essence of his technique. If you agree that the best means of resolving conflict is bringing the parties to a better understanding of both their own situation as well as the perspective of their adversary, then it makes a lot of sense to suggest that the best way to achieve that understanding is for parties to communicate directly with those with whom they are locked in conflict. If the mediator is shuttling back and forth from room to room, the parties are denied that direct communication.

But locking the parties up in the same room is not sufficient. If the parties just use that opportunity to reiterate their positions, and continue their argument, a joint session might devolve into a shouting match that does not bring them any closer together. The mediator's job is to prevent that from happening. We do that by making sure that what each side says is heard and understood. One way to do that is to use a technique Friedman calls "looping," where the mediator summarizes what a party has just said, and then checks to make sure he has it right. In an earlier post, I described an even more sophisticated technique called "affect labeling," where the mediator identifies the emotional state of the speaker.

I also find it helpful to coach both sides about the value of joint sessions before we start, and how to best use our time in that setting, explaining that the purpose is not to practice our opening statements and closing arguments on the other side, but rather to genuinely listen and try to understand the other side's perspective on the conflict. Often the parties, and especially the attorneys, are reluctant to participate in a joint session, as they have become comfortable with the prevalent caucus style of mediation. I often have to spend some time trying to persuade people of the value of getting all the parties in the same room. Usually, but not always, participants are willing to try it, despite their reservations.

Unlike Friedman, I rarely keep parties in the same room for the entirety of the mediation, nor do I consider that necessary, though I can appreciate the ideal of conducting the entire mediation in a transparent manner. So I might start the mediation with short caucuses with each side, then proceed to a joint session, and then back to caucuses or other groupings, and then perhaps back to a joint session. All the moving around keeps things lively. And when an attorney or party who starts out skeptical of the value of joint session, tells me at the end of a session that he or she now sees the value of trying it, I feel we have accomplished something important.

Friday, October 12, 2012


However shaky the European Union is today, whatever its deficiencies, it still deserved the Nobel Peace Prize, for its contributions to peace over decades.

As Thorbjorn Jagland, the former Norwegian prime minister stated in announcing the award: “The stabilizing part played by the E.U. has helped to transform most of Europe from a continent of war to a continent of peace.”

In my house, where my kids are studying the arguments over ratification of the U.S. Constitution in their government class, I remind them how lucky we are to have decided more than 200 years ago to adopt a strong federal government. The Europeans, by contrast, are still having that debate today. And to a lesser extent, we are still having it too, though it is interesting to note that American political parties have switched sides, with Jefferson's party (which started out as anti-federalists) now generally advocating a powerful federal government, and Lincoln's party (which started out as favoring a strong union) now more in favor of giving greater power to the states. (I wonder how surprised Lincoln and Jefferson would be to see that reversal.)

With the glaring exception of the Civil War, caused by failing to resolve the issue of slavery in our Constitution, our federal system has generally kept peace among the states for over 200 years. We can only hope for the continued success of the European Union in keeping the peace on that continent as well.

Tuesday, September 25, 2012

SCMA fall conference

Early bird pricing will expire soon for the 24th Annual Southern California Mediation Association Conference on Saturday, November 3 at Pepperdine Law School.  The SCMA conference is co-sponsored by Pepperdine School of Law, Straus Institute for Dispute Resolution and is entitled, “The Working Mediator: Improving the Culture of Conflict”

The daylong conference begins with a Keynote Address by Kenneth R. Feinberg, recipient of the 2012 Cloke-Millen Peacemaker of the Year Award.  As “America’s go-to guy in calculating life’s worth” and “America’s King Solomon” (Newsweek Magazine, 6/25/12), Feinberg has been key to resolving many of our nation's most challenging and widely known disputes. He is best known for serving as the Special Master of the Federal September 11th Victim Compensation Fund of 2001.  Feinberg was also recently hired to negotiate all claims arising out of the Penn State scandal and reportedly is being asked to become involved in allocating the more than $5 million in donations collected after the shooting at a movie theater in Aurora, Colorado.  Numerous workshops will follow his keynote address, in every area of mediation practice, along with an Advanced Track co-sponsored by the American Institute of Mediation (AIM).

I will be moderating a panel entitled "Crisis in the Courts," in which we will consider how drastic budget cuts in the California state court system are presenting challenges and perhaps opportunities for mediators.

In addition, on Friday, November 2, there is a dinner/cocktail reception at the Sheraton Delfina in Santa Monica, honoring Peter Robinson with the L. Randolph Lowry Award and welcoming Mr. Feinberg. The guest speaker is Roger Wolfson, T.V. writer for the USA show, “Fairly Legal.”  It is sure to be a fantastic evening.

Go to: for details and registration. 

Thursday, September 6, 2012

Cooperation or Constant Conflict

Here is an excerpt from former President Bill Clinton's nominating speech at the Democratic convention last night, extolling the virtues of cooperation over constant conflict (The full transcript of the speech, as delivered, can be found here):

[T]hough I often disagree with Republicans, I actually never learned to hate them the way the far right that now controls their party seems to hate our president and a lot of other Democrats.
That would be impossible for me, because President Eisenhower sent federal troops to my home state to integrate Little Rock Central High School. President Eisenhower built the interstate highway system. When I was a governor, I worked with President Reagan in his White House on the first round of welfare reform and with President George H.W. Bush on national education goals. I'm actually very grateful . . .  that President George W. Bush supported PEPFAR. It saved the lives of millions of people in poor countries. And I have been honored to work with both Presidents Bush on natural disasters in the aftermath of the South Asian tsunami, Hurricane Katrina, the horrible earthquake in Haiti. Through my foundation both in America and around the world, I'm working all the time with Democrats, Republicans, and independents. Sometimes I couldn't tell you for the life who I'm working with because we focus on solving problems and seizing opportunities and not fighting all the time.
And -- so here's what I want to say to you. And here's what I want the people at home to think about. When times are tough and people are frustrated and angry and hurting and uncertain, the politics of constant conflict may be good, but what is good politics does not necessarily work in the real world. What works in the real world is cooperation.

What works in the real world is cooperation, business and government, foundations and universities. Ask the mayors who are here. Los Angeles is getting green and Chicago is getting an infrastructure bank because Republicans and Democrats are working together to get it.

They didn't check their brains at the door. They didn't stop disagreeing. But their purpose was to get something done.
Now, why is this true? Why does cooperation work better than constant conflict? Because nobody's right all the time, and a broken clock is right twice a day.

And every one of us -- every one of us and every one of them, we're compelled to spend our fleeting lives between those two extremes, knowing we're never going to be right all the time, and hopefully we're right more than twice a day.

Unfortunately, the faction that now dominates the Republican Party doesn't see it that way. They think government is always the enemy, they're always right, and compromise is weakness. Just in the last couple of elections, they defeated two distinguished Republican senators because they dared to cooperate with Democrats on issues important to the future of the country, even national security. They beat a Republican congressman with almost 100 percent voting record on every conservative score because he said he realized he did not have to hate the president to disagree with him. Boy, that was a non-starter, and they threw him out. 
One of the main reasons we ought to re-elect President Obama is that he is still committed to constructive cooperation. Look at his record. He appointed Republican secretaries of defense, the Army, and transportation. He appointed a vice president who ran against him in 2008. And he trusted that vice president to oversee the successful end of the war in Iraq and the implementation of the Recovery Act. . . .President Obama appointed several members of his cabinet, even though they supported Hillary in the primary. Heck, he even appointed Hillary.
I am proud of the job she and the national security team have done for America. I am grateful that they have worked together to make it safer and stronger to build a world with more partners and fewer enemies. I'm grateful for the relationship of respect and partnership she and the president have enjoyed. And the signal that sends to the rest of the world, that democracy does not have to be a blood sport, it can be an honorable enterprise that advances the public interest.

Wednesday, September 5, 2012

More on bi-partisanship and negotiation

My prior post on this topic attempted to refute one of President Obama's critics from the left, Thomas Frank, who is skeptical of the value of bi-partisanship. Critics on the right seem even more strongly attached to the notion of politics as struggle, rather than as an effort to reach accommodation. According to Ramesh Ponnuru, a writer for National Review, President Obama is kidding himself if he thinks that after winning re-election, the Republican Party is likely to become more cooperative than they have acted during his first term.
If Obama wins re-election, the Republican Party will react by moving right, not left. It will become less likely to compromise with Obama, not more. 
Ponnuru reaches this conclusion based on the likelihood that President Obama will win by a smaller margin than in 2008, unusual for an incumbent, and that the Republican Party will strengthen its control over Congress. In that situation, the Republican Party is likely to feel even more emboldened to push its conservative agenda than previously. 

There is a thinly-veiled plea in this analysis, to consider voting for Romney instead of Obama, in the hope that renewed Republican control over the government will allow the government to function more effectively than under the existing stalemate. If voters are sick of partisan gridlock, they should not support Obama, goes this argument, because in President Obama's second term, the Republicans are going to become even more obstreperous than they already are. So we might as well just hand the reins over to the other party if we want to eliminate all the partisan wrangling.

I question the premise of this argument for several reasons. First, the upcoming budget negotiations, which all parties have agreed to put off until the lame duck session after the election, have been designed to force the Republicans in Congress to compromise regardless of who wins the election (because otherwise all the Bush tax cuts will expire and automatic cuts to the defense budget will kick in). That means the Republicans in Congress must compromise on allowing revenue increases to be part of the equation if they want to avoid that result. But if Romney wins, Republicans in Congress will probably be less likely to recognize the necessity of compromise.

Second, the outcome that conservatives are advancing, that they will take an even harder line after the election, is not what most people, particularly moderate and independent voters, seem to want. When asked, people respond positively to the suggestion that the parties work together to find common solutions. They respond negatively to obstructionism and delay. Again, this seems true regardless of which candidate wins the presidential election. People are disgusted with Congress because its members seem unable to work with people of the opposite party to solve common problems. On the other hand, most voters seem to favor a more balanced approach to budget and tax issues, and to preserving social programs, than the Republicans are proposing. So while Romney supporters are probably right that people want the government to function more smoothly, that doesn't necessarily show support for smoothly passing the whole Republican agenda.

Finally, let's not forget the crucial role of the United States Senate, the bane of practically every president's existence. Unless one party has a super-majority, which neither party is likely to get after this election, the Senate has considerable power to put a monkey wrench into any president's plans. Democrats are not likely to roll over if they find themselves in the minority. And in the Senate, a minority of Democrats would still have the power to derail much of the Republican program.

Can the Republicans promise to end partisan gridlock? Only if they gain effective control over the entire government, and are empowered to pass a program that is probably a bit too extreme for most voters. If President Obama is re-elected, will that usher in an era of good feeling in Washington? Not very likely, but there may be some pressure on the opposition to participate in the process in a more constructive way.

Friday, August 24, 2012

Bi-partisanship and negotiation

Is a willingness to negotiate a sign of weakness? That seems to be the thrust of the critique of Thomas Frank, the latest prominent leftist critic of the Obama administration. Frank charges that Obama gave away too much to the right, because he stressed the importance of bi-partisanship, when he should have been fighting harder on substantive issues, such as punishing Wall Street bankers, or achieving more economic stimulus. Frank seems to think because the president placed the ideal of bi-partisanship above these other policy goals, he was forced to concede too much to the opposition.

The idea is that Obama's emphasis on bi-partisanship makes him a bad negotiator. Frank thinks that if you announce to your opponents in advance that you are interested in working out an agreement with them in a cooperative way, that will make the other side even more intransigent, and force you to move closer and closer to their position in order to make a deal.

One point Frank seems correct about is that the opposition has become more intransigent than ever. Did they become more intransigent because candidate and then President Obama announced in advance that he wants to be a conciliator, or would they have been equally if not more intransigent if the president had announced that he was going to fight them tooth and nail every step of the way? My guess is the latter, but it's still a valid question to ask how best to deal with an intransigent adversary. Should you continue acting as a conciliator, or should you adopt a more aggressive approach yourself?

My experience in litigation and negotiation tells me that it is never a sign of weakness to let the other side know in advance that you are interested in reaching a cooperative resolution of a dispute. It is a sign of strength. In fact it seems absurd to me to suggest that telling the other side you want to make a deal makes you a bad negotiator. More likely, the party who is unwilling to negotiate is a bad negotiator. That person is probably not going to be able to make a deal at all! On the other hand, if you have available some other more effective means of making the other side do what you want without negotiation, such as by declaring war on them or taking them to court, then you might be giving up some of your strength by renouncing those alternatives. But if you have decided that those means are too risky and costly, or you have already entered into a process of give and take, such as is usually required in Congress, then it is hard to see how a belief in the value of bi-partisan agreement can make you a bad negotiator. That's especially true if you are trying to achieve results that the general public is going to accept. For every Thomas Frank, who is going to complain that the Democrats gave away too much, there are going to be critics on the right who complain that the Democrats rammed through a leftist agenda without adequate consideration of opposing views. And their views count also.

The time you are showing some weakness as a negotiator is when you let the other side know that you have no alternative to making a deal. In other words, there is no harm in expressing a willingness to remain at the bargaining table as long as it takes, but there might be some cost if your side is unwilling ever to walk from the table if you can't obtain a deal that is acceptable. During Obama's first term, the weaknesses in the Democratic side's bargaining power did not come from the Democratic side's expressions of willingness to make a deal, or from their efforts to achieve bi-partisan agreement. They came from the Democrats' inability to walk from the table. It is crucial to understand this distinction. There were things the Obama administration decided they HAD to achieve, and that they could only achieve with the votes of a few Blue Dogs or Republicans. On all of those items, they made more compromises than their side wanted: the stimulus, health care reform, raising the debt ceiling, introducing new financial regulations. They made those compromises because the alternative would probably have been no deal at all, and that was unacceptable to the Obama team's side.

Notice that in the second half of the Obama administration's first term, there have been fewer compromises, and that has made supporters like Frank happier. (He also says he likes the feisty tone of the re-election campaign.) But note also that basically nothing has gotten done during this Congress, as compared with the first two years. That's because the Obama administration worked hard to get as much of its agenda enacted as possible during the first two years, and there now remain hardly any issues on which the Democrats HAVE to make a deal. Once the debt ceiling deal was in place, for example, the Democrats can take an uncompromising stand on their view that tax increases must be part of any deficit solution. They don't have to give anything on this point, because if they don't, the Bush tax cuts automatically expire and automatic spending cuts take effect that are much less to the Republicans' liking than the Democrats. (In negotiation parlance, the Democrats have a pretty good BATNA.) So there should be more pressure on Republicans to make a deal this fall. And that pressure exists regardless of how much sabre-rattling the Republicans engage in now. In fact, it appears to me that Republican bluster on the upcoming budget negotiations is a sign of weakness, whereas Democratic expressions of reasonableness and continued willingness to negotiate, are a sign of strength right now.

It's always easy to second guess the results of any negotiation. But it's much more difficult to show that a different approach could have gotten either side a better deal. And it just seems flat out wrong to suggest that someone is a bad negotiator because they believe strongly in the value of achieving a result by negotiated agreement. Especially in a democracy where all viewpoints are entitled to be included.

(photo from TPM)

Tuesday, August 21, 2012

Four rules of improvisation

Tina Fey's book Bossypants has a chapter on her time with the Second City improvisational theatre troupe in Chicago. In it, she includes a section outlining four rules of improvisation. (This section is actually entitled "Rules of Improvisation That Will Change Your Life and Reduce Belly Fat," although in a footnote she explains that these rules will not reduce belly fat.) These rules can nevertheless be useful in lots of situations, including mediation. I am not the first to note the similarities between mediation and improvisational theatre. Others, such as LA mediator Jeffrey Krivis, have written extensively about the applicability of improvisational skills in mediation and negotiation.

Here are Tina Fey's four rules:

The first rule is always say yes. Never say no. In Tina Fey's example, if the actor you are working with points his finger at you and says, "Freeze, I have a gun!' you do not respond by saying "That's not a gun, it's your finger." You don't do that because the scene would then turn into an argument and have nowhere entertaining to go. In mediation, when the other party makes a proposal, it's generally not a good idea to jump up and yell "That's an insult!" or "That's absolutely out of the question." Instead, it's better to respond with something more constructive like "that's an option," or "help me understand why you think it is fair that we turn over our first born child to your client." The rule of always saying yes doesn't mean that parties have to agree with everything the other side says. What it really means, as Fey explains, is to show respect for the other side's ideas and stay open-minded.

The second rule is to say "yes, and." To keep an improvisational scene going, each player should contribute new ideas rather than just react to the other player's ideas. Creativity builds on creativity to create the joy and excitement of improvisational theatre, and lead scenes into new and unexpected directions. In mediation, that kind of reaction also keeps the dialogue going. Notice it is "yes, and" and not "yes, but." The tendency in discussions of conflict is to introduce obstacles and problems with the other side's ideas, rather than new suggestions. A better way to react to the other side's suggestions is to say, "that's an idea, and here's another idea that might work even better."

The third rule is to make statements rather than ask questions. This helps keep the scene going by continuing to introduce new elements rather than forcing the first actor to keep justifying or explaining his own statements, which can be boring. In mediation, questions can be helpful to clarify each side's statements and suggestions, but it's also good to remember not to keep someone who is making suggestions completely on the defensive. So maybe we should interpret this rule to say: Don't just ask questions. Both parties also need to introduce their ideas into the mix.

The final and perhaps the most important rule of improvisation is that there are no mistakes, only opportunities. When an actor completely misinterprets what the other actor is trying to do or say, the first actor shouldn't correct the misinterpretation, but should go with the flow, and try to adopt the interpretation the other actor stated. In Fey's example, the first actor thinks he is clearly being a cop riding a bicycle, but the other actor thinks he is a hamster turning a wheel. In that case, the first actor must become the hamster.

This last rule is a hard rule to follow in mediation as well as theatre, because parties in conflict have a fierce desire to have their point of view understood. If they are misunderstood, they usually want to scream "no, no, no, that's not what I was trying to say at all." If we try to apply the techniques of theatre people, however, we might try instead to build on the other side's interpretation of our actions and statements. Rather than deny or try to correct the other side's misunderstandings, what we might need to do is try to understand what caused that perception. Then we gain some insight in how our actions or statements are viewed by others. That can help parties gain the understanding and perspective needed to resolve the conflict.

Sunday, August 19, 2012

Who needs to attend?

This question comes up a lot. And the answer seems simple. Parties need to personally appear at mediation. In private mediations, we decide who should attend when we set up the mediation. In court-annexed mediation, there are rules addressing this question. In LA County Superior Court, for example, it's local rule 3.272 now. In the Central District of California Federal District Court, it's local rule 16-15.5. Both say parties need to attend in person. If there is any question about who on behalf of a corporate or other type of organization should appear, it should be someone with full authority to settle the case. Everybody understands and agrees that mediation doesn't work as well without the personal attendance and full attention of the decision-makers. (See my prior post on the pitfalls of mediation by telephone.) So personal attendance is required.

OK, so what about insurance carriers? The answer is not quite so black and white, but it's still fairly clear that a representative of the carrier is expected to attend in person, if that is who is funding the settlement. We understand that the ultimate authority might be located in Minnesota or Connecticut, and we don't expect them to fly out for every fender-bender case in California. It's ok to send the local claims rep with limited authority, as long as he can reach out by phone to somebody with full authority. We also understand that it sometimes requires convening a committee to settle a case above certain limits. When information comes out during mediation that suggests the need to do that, that's when we might need to schedule a second session.

Clear enough, but what about the cases with multiple parties, some of whom have very limited involvement or ability to solve the problem? The cases where the parties are so far apart monetarily that it seems a waste of time and money to make people get on a plane? The cases that are so small that the cost of air travel seems to exceed the benefit? The cases where one party simply refuses to attend? And all kinds of other situations, excuses and justifications?

Here's where we get to the part of the rules that I'm not so crazy about, because in these situations, court-appointed mediators are given the authority to excuse the non-appearance of a party if the mediator thinks that is justified. That seems reasonable enough and a logical grant of authority to the mediator to control the proceeding, but I'm not comfortable with even that amount of decision-making power. Why? Because that puts the mediator in a similar position to that of a judge, who has to make a ruling that favors one party or the other. That grants the mediator the authority either to coerce a party who does not want to attend into attending, or to excuse a party that the other side thinks should attend. And that turns the proceeding is something antithetical to mediation.

The way I like to handle these situations is to try to get agreement on the question. If a lawyer shows up without his or her client there in person, I'll ask the other side if they think we can get something accomplished in these less than optimal circumstances. If they agree, I'm willing to proceed. If not, we might have more to talk about before we can proceed. If one side asks me in advance if it's ok to have the client available by telephone, I'll ask whether the other side has agreed to that, and I'll usually want to have a conference call with the attorneys. If on the other hand, a party thinks that compelling somebody to appear in person at a mediation is going to be helpful in the same way that making that party attend a deposition or answer written discovery can be helpful, that's a litigation tactic that I'm not interested in assisting. I'm probably not going to excuse that party either, but I'm going to want to talk about what we can accomplish in that party's absence.

It's not a waste of time to have an extensive discussion about the reasons why personal participation might or might not be important in a case. By working toward an agreement even on that small issue, we have already begun a mediation process instead of a litigation process, because we are identifying the roles and interests of each side. And if the parties can agree on how to proceed, that is going to help them agree on every other issue down the road, large and small.

A lot of people mocked the lengthy negotiations in Paris in 1968 over the shape of the table for the peace talks aimed at ending the Vietnam War. But those negotiations were essential to determining the status and relationship and interests of the four parties to the peace talks. And the difficulties in resolving those preliminary issues foreshadowed the difficult negotiations ahead. For similar reasons, negotiations over who needs to attend a mediation should not be short-circuited by a peremptory ruling by the mediator. What the mediator needs to do is help the parties resolve that issue themselves.

(Malcolm McPhee photo from Duckrabbit)

Friday, August 17, 2012

Lunch with Woody

Forrest (Woody) Mosten is a mediation trainer, and a prominent collaborative divorce lawyer and mediator here in Los Angeles. I came to his attention when I attended a seminar last year that he led on collaborative law, in which I had some fun playing a somewhat skeptical role. This week I had a chance to meet with Woody to discuss the possibility of a different kind of collaboration--possibly leading to an article or a book--and learned more about Woody's background as one of the pioneers in developing legal clinics for middle class clients (having been one of the founders of Jacoby & Meyers), as well as in unbundling legal services.

We talked about how our different career paths (mine the more traditional route of practicing with corporate law firms until I started my own firm about 18 years ago) had led us to a similar perspective on the practice of law and the potential of alternative dispute resolution. Woody bravely started a mediation practice more than 30 years ago, at a time when hardly anybody knew what mediation was. His career charts a series of innovations in the delivery of legal services and the resolution of conflict, many of which were initially greeted with hostility, and only later embraced, by the powers that be in the bar and the courts. Meanwhile, I was coming to the gradual realization after years of litigating complex business disputes, that often the most valuable service I could provide for clients was to find a way for them to dispense with my services, and find another way to solve their problem. That is because lawsuits themselves tend to become as large a problem for the participants as the underlying disputes. I also realized that even though the vast majority of my cases ended in negotiated settlement, we usually followed a very inefficient and expensive path to get to that point. Meanwhile, a lot has changed in the rules and practice of traditional litigation to make the process even more expensive and inefficient. I realized some time ago that there must be a better way, which is why I am developing a mediation practice as well as adopting some new approaches to my more traditional litigation practice.

I asked Mosten if he thinks the market for mediation services is going to be large enough to support the growing number of people interested in practicing in this field. I knew that he often confronts this question in training mediators and helping them launch careers. He thinks the untapped potential of the field is vast. Currently, most clients of mediation services are lawyers who only resort to mediation after they are deep into lawsuits and looking for another way to bring cases to a conclusion. The general public is only dimly aware that filing a lawsuit might not be the only way to initiate resolution of a dispute. Once people start to understand the potential for resolving disputes through mediation, they might still call their lawyers first, but they are going to be less likely to resort to a lawsuit first. Instead they might set up a meeting with a mediator to attempt to reach a resolution. This has already become a common practice in the divorce field, so it is bound to spill into other areas.

 I'm looking forward to continuing the dialogue to see what might result from it.

Monday, August 13, 2012

Evaluation and Facilitation

At a mediation I handled recently, I walked into the conference room as one party's lawyer was explaining to her client the differences between "facilitative" and "evaluative" mediators. "I'm a facilitative mediator," I proudly told the lawyer and client. I said that because that is how I prefer to think of my own style, and because that is a style that at least to me seems more consistent with the ideals of mediation. Evaluative mediators act more like judges, even though their opinions are not binding on the parties. Evaluative mediators can be quite effective, if that is what the parties are looking for. Most of the time, however, I feel that a third opinion of the merits of a case--on top of the opinions of counsel for each side, is unnecessary and can even be counter-productive. That kind of resolution limits the parties' ability to agree on their own resolution of their situation, based on criteria that the parties themselves believe are important, rather than submitting to what somebody else thinks. And a neutral evaluation can make it harder to settle a case, if one or both parties happens to disagree with the neutral's opinion.

Anyway, later in that same mediation in which I had advertised myself as a facilitative mediator, I found myself, after having spent a long time trying to empathize with the other party's justifications for their behavior, forcefully listing for that party, each of the things that I thought he had done wrong that had caused the other side to assert the claims they were making. I saw a light go on indicating that, in addition to recognizing how he might have handled the situation differently, this party was also beginning to understand how he might lose the case. "Not being so facilitative now," I thought to myself. "It sure sounds like I am laying down the law."  Worse, nobody had even asked for my opinion.

It so happened that this party was representing himself, which introduces a whole other topic for discussion. In the context of the topic of evaluation vs. facilitation, what the party's unrepresented status means is that he had no one to play the role of legal adviser or counselor except himself. And in that situation, it is more likely that the mediator is going to fill that void to some extent. In other words, even though I am never going to act as an unrepresented party's attorney, and I will usually caution the unrepresented party that they should not see me in that role, I am probably more likely to be somewhat more evaluative in the context where a party has no one else to provide a more objective assessment of their situation.  

Anyway, my gambit worked in this case, and the case settled shortly after I had explained to this party precisely where I thought he had messed up. I think it worked because, before I started my lecture, I had spent a long time allowing the party to express himself, and I had made a genuine effort to understand his feelings about the case. After that, he trusted me enough to be ready to acknowledge the mistakes he had made that had helped create the conflict.

Funny thing was, when I went back to talk to the other party, I reverted to my role as Mr. Facilitative, telling them that they should rely on the opinion of the fine lawyer they had brought to the mediation for an assessment of the value of the case, not me. And even when they asked my opinion of the fairness of the settlement they were about to agree to, my first response was, "why is my opinion important to you?" We say these kinds of things without thinking, because we are trying to adhere to conceptions of what is appropriate to our role. Then I relented, and reassured them that I too thought they were making a wise decision and the number they were agreeing to was fair, and much better than the alternative of walking away with no agreement.

The moral being, I guess, that none of us can claim to be quite as doctrinaire or consistent in our approaches to conflict resolution as we might like to think.

(Judge Judy: known for being highly evaluative and opinionated)