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)

Monday, August 6, 2012

When to quit

Last week Kofi Annan, as prestigious and qualified a mediator as one could ask for, resigned his assignment to try to broker a peace agreement in Syria. Annan cited the Syrian government's intransigence, and the rebels' desire to achieve their ends by force of arms. In addition, he mentioned that “finger-pointing and name-calling in the Security Council” was making it impossible for him to do his job. Annan was quoted as saying that “without serious, purposeful and united international pressure, including from the powers of the region, it is impossible for me, or anyone, to compel the Syrian government in the first place, and also the opposition, to take the steps necessary to begin a political process.”

Mediators generally hate to admit defeat. We pride ourselves on our willingness to work with parties as long as it takes. Mediators know that the keys to achieving resolution are patience and persistence. If there is any glimmer of hope, we will pursue it. If they parties remain miles apart or appear stuck at impasse, we endeavor to remain positive. If they try to leave the room, we will follow them to the elevator to try to persuade them to stay.

So when is it appropriate for the mediator to send the parties packing? In some situations, probably a small minority, a mediator and the parties might come to the conclusion that the parties are better off resolving their conflict by other means. For example, one or both parties may have a genuine need to pursue their claims in court, maybe to prove a point, or maybe to experience a public airing of the dispute. If that kind of formal resolution is necessary or desirable, the mediator might refrain at some point from pushing the parties to a private, informal resolution that will not satisfy them.

In a case like Syria, it appears that the alternative to a peaceful resolution of this dispute will involve bloodshed and tragedy. A negotiated resolution still seems to represent the best course for all parties. And the outlines of a negotiated resolution are known. But the dictator does not appear willing to accept a resolution that requires his removal--the only possible resolution. And the rebels are unwilling to accept anything less. Those conditions by themselves might be enough to excuse a mediator who reluctantly tells the parties that if they would rather fight the matter to a conclusion, he cannot stand in their way.

Kofi Annan's explanation shows that there is more going on than that, however. He also explained that he is not getting the support needed from the people who hired him, in this case the fractious members of the Security Council. That means there is one dispute going on on the ground in Syria, while another one is going on among the members of the Security Council. (One interpretation of these events published yesterday in the Guardian puts the blame on heavy-handed Western powers, who demanded more concessions than Russia and China are willing to accept.) The mediator cannot continue to serve if he does not have the support of the people who retained his services. It is one thing for parties to a mediation to reach impasse. But if they cannot even agree on the parameters of the process, then it may be time for the mediator to step aside.