Thursday, July 26, 2012


At a mediation seminar I attended this week, Doug Noll, a mediator from Fresno, California, along with Don Philbin, a mediator from Texas, explained that hardly any of the information we process in communication with others is contained in their words. Nearly all of it lies in people's gestures, facial expressions, tone of voice, and other non-verbal cues. Lawyers have trouble accepting this fact, trained as we are in the importance of words. And we haven't grasped its full implications.

What was most interesting to me was a technique Noll tried to teach us that demonstrates to another person that they have been heard and understood. Instead of the frequently-taught method of summarizing the gist of what someone has just said, and asking them if we understood them, he thinks we can be more effective by reading the emotional content of another person's communication. Affect labeling is the technical term for this technique, and it follows from the idea that most communication is non-verbal. The way to do it--easier said than done--is to describe the emotion you observe, by saying something as simple as, "you're angry," or "you're frustrated," or "you're excited." If you're right, people will almost involuntarily start nodding their heads in agreement. And they will tell you that they finally feel listened to and understood, even if you didn't understand the verbal content of a single thing they said.

I asked Noll if he even pays attention to the meaning of people's words. Well sure, at some level he listens to that, he replied. But that is generally information he already learned from the parties' briefs. It's not the main thing he needs to process during at least that part of a mediation where people are trying to explain what caused the conflict.

Many of the participants in this training session had a hard time accepting the fact that understanding and dealing with people's emotional responses is more important than analyzing the content of their communications. That's because we are lawyers. We are trained to think that human beings are rational creatures. That words matter. That the correct answer to a legal problem can be determined from a description of the fact pattern. But when judges reach results that don't seem to conform to law or logic, we are surprised to learn that they too might sometimes be making decisions on an emotional rather than a rational level.

Advances in psychology and neuroscience in the last few decades lay to rest the illusion that humans lead with logic. Only after we try to understand and reach people on an emotional level can we even free up the logical part of their natures to deal with conflict in a rational way.

Tuesday, July 17, 2012

Changing the atmosphere

Even in the course of the most hard-fought lawsuits, opportunities may arise for the parties to decide to stop fighting for a moment, and try to work out some problem or another together. Parties are encouraged to resolve discovery disputes cooperatively, for example, instead of fighting over every document request and deposition notice. Parties are also encouraged to resolve entire disputes through mediation rather than battling it out in court. To do that, we need to change the atmosphere from one of mutually assured destruction to one of cooperation. How do we do that?

Think about changing the atmosphere in politics, a field of endless, irresolvable conflict and argument. In 2008, candidate Obama talked a lot about transforming political conflict, in a way that sounded familiar to mediators. Yet, nearing the end of his first term, the atmosphere in Washington is more divisive and partisan and conflict-ridden than ever. In an interview with Charlie Rose earlier this week, President Obama reflected on his inability to achieve the kind of transformation he had hoped for:
"And, if you asked me what is the one thing that has frustrated me most over the last four years, it's not the hard work, it's not the enormity of the decisions, it's not the pace, it is that I haven't been able to change the atmosphere here in Washington to reflect the decency and common sense of ordinary people--Democrats, Republicans and independents--who I think just want to see their leadership solve problems. And there's enough blame to go around for that."
It would be understandable if President Obama had decided to give up trying to change the political dynamics of Washington. People might expect the president to say that Republican intransigence had taught him it was a waste of time to try to reach accommodation with his adversaries. Instead the president appears to be the last man who still believes, after all he's been through, in the dream of transcending red and blue states, putting aside excessive partisanship and divisiveness, and trying to work together constructively to solve problems in a way that serves common interests. It's also charming that the president still believes that that is what the people want also.
[T]he basic notion that we are not Democrats or Republicans first, we're Americans first, and that most of the problems that we face are solvable, not in some ideological way, but in a practical, common sense, American way, that I believe as much as ever. And I think so do the American people.

Call me naive, but I think the president is right. The institution of government people are most disgusted with is Congress, because Congress is where the most obvious signs of partisan wrangling and gridlock have exhibited themselves. President Obama, on the other hand, still enjoys pretty decent favorability ratings (especially considering the still sluggish state of the economy). President Obama enjoys that standing at least in part because people appreciate that he is still trying to work with all sides and serve common interests.

To change the atmosphere, what needs to change are perceptions of partisans of all stripes. The president's allies on the left need to appreciate the necessity of negotiation and compromise to pass legislation and to serve the interests of all constituents. The president's opponents on the right need to appreciate that the socialist ideologue they portray as their adversary is a figment of their imagination. They will get more accomplished in President Obama's next term by trying to work constructively with the other side, than they will by reflexively opposing everything the Democrats support. Changing these perceptions is a lot easier said than done because political partisans believe with some justification that they are locked into an ideological struggle over matters of the most sacred principles. That perpetual struggle is more important to a lot of people than getting things done.

In comparison, the changes in atmosphere needed to resolve most private disputes should be much easier to accomplish. Parties to a lawsuit need not sacrifice their principles to put the dispute behind them. They might only have to recognize that the trier of fact at trial might not see everything their way, and might even buy some parts of the other side's outlandish story. They also need to recognize that continuing to litigate the issue might cost more than the difference between the parties. Once everyone recognizes those realities, parties can start working together to solve a common problem, instead of just trying to achieve their aims at the other side's expense.

Saturday, July 7, 2012

How to win

A piece in the New York Times last week called How Liberals Win, reminds us of the deals that FDR and LBJ made with corporate power in order to enact their signature reforms.  What President Obama did to pass health care reform followed that tradition. But when the Obama administration made a deal with pharmaceutical companies to obtain their support for health insurance reform, many of his supporters viewed that agreement as a sell-out. In hindsight, however, it appears that that agreement may have been crucial to obtaining passage of the Affordable Care Act. Remember that Clinton failed at gaining health insurance reform, because his proposals fell victim to a fierce and unrelenting advertising campaign by the health insurance industry. Clinton lost that battle because he had no corporate allies. Obama did not make that mistake, and used the support of the pharmaceutical industry to neutralize a similar campaign against the legislation by health insurance companies. That's one reason he was able to get major reform passed that Democrats had tried and failed to accomplish for a hundred years.

Other examples of what it really takes to pass major legislation appear in Robert Caro's latest installment of his Lyndon Johnson biography. Caro details exactly how Johnson was able to get two signature Kennedy promises enacted after Kennedy's assassination--the income tax cuts, and the Civil Rights Act. Both those bills were stalled in Congress in the fall of 1963, and nobody in the Kennedy administration seemed to have a clue about how to move them forward. How did Johnson do it? It was not just by browbeating and arm-twisting his opponents, although he did do some of that. With the tax cut bill, he saw that the only way forward was to placate Senator Harry Byrd, Chair of the the Senate Finance Committee, by making severe budget cuts that year, even though these cuts were anathema to liberals. The only way to get cloture on the Civil Rights bill was to obtain the votes of a sufficient number of Republicans in both the House and Senate, to make up for the no votes of nearly all Southern Democrats. Johnson did that by appealing to Republicans' sense of history, continually reminding Republicans that theirs was the party of Lincoln.

President Obama's critics on the left have attacked him for his willingness to make deals with the Republicans, especially the budget compromise that prevented the government from going into default last year. If they think there was ever a president who got what he wanted without making deals, however, they will have to look pretty hard to find examples. Both Roosevelt and Johnson, who left the largest legacies of reform in modern times, were constantly making deals with corporate power, and with political adversaries. even thought their parties held large majorities in Congress,

The administration's opponents on the right share this same mistaken idea--the idea that political success can only be achieved through uncompromising struggle--with the most partisan activists on the left. The right seems to believe that their best strategy is unrelenting opposition to everything the president proposes. That strategy may have worked to expand the ranks of the opposition in the 2010 election, but since that time Congressional Republicans' "take no prisoners" approach has made Congress the most unpopular institution of government by far. The public is disgusted that Congress now has difficulty passing even legislation that has broad public support, such as the payroll tax cut or highway construction funding. Congressmen seem to have forgotten that passing legislation usually requires finding common ground with at least some of your political adversaries. The president's adversaries should remember that their hero Ronald Reagan, who left a legacy of wide-reaching changes in a conservative direction, was also a notorious practitioner of compromise, which is how he got such  major changes as tax reform, domestic spending cuts, and immigration reform, through the Congress.

Parties involved in private disputes don't always approach them with the same ideological fervor with which people view political contests, but they do tend to want to defeat the other side, and prevail in their positions. More often, winning requires finding a way to deal with an adversary, if parties are interested in ending the struggle and accomplishing at least some of their aims.

Wednesday, July 4, 2012

Back to the Future

I grew up in the 1960's when the prevalent architectural vision reflected the dawning space age. Designers imagining the cities of the futures pictured tall building surrounded by flying vehicles, ramps and elevated highways. My childhood ideas of the future came from such sources as the Jetsons, the 1964 New York World's Fair, and 2001: A Space Odyssey. That style of architecture is out of fashion nowadays. We have returned to a more old-fashioned, pedestrian-friendly idea of city life. It's called the New Urbanism, and I'm all for it.

But cities like Los Angeles still retain examples of distinguished architecture from this period. (e.g., the Theme building at Los Angeles Airport; the Cinerama Dome, which I had a hand in saving; the Music Center; the Columbia Records Building) These buildings are both historic and futuristic at the same time. Downtown LA also contains remnants of a plan to build a series of bridges to connect its buildings, and an elaborate people-mover system that would shuttle people around downtown in the kinds of trams you now see mainly at airports, or Disneyland. The people mover plan was killed as part of President Reagan's budget cuts in 1981, and most people think it was a good thing it was killed, otherwise the downtown sky would be cluttered with a lot of ugly elevated tramways. As I mentioned, nowadays we believe in sidewalks again, and are busy installing more outdoor cafes and retail on the street. The idea of whizzing around downtown on elevated tramways is no longer so appealing. Instead, current plans call for reviving streetcars.

The building we're about to move our offices to, the LA World Trade Center (350 S. Figeuroa St.), has a large empty plaza in the back originally designed to be one of the main stations for the never-built downtown people mover. The building also connects to all the surrounding buildings by an elaborate series of bridges and ramps that are still used as pedestrian access to nearby hotels, office building, and apartments. The World Trade Center is so futuristic it has no front door that opens onto the sidewalk, only elevators that take you to a long concourse that looks like it could have been part of the 1964 World's Fair. It was designed to be entered primarily through the parking garage. That makes it less than ideal for New Urbanists such as myself who prefer to take the subway to work, but still convenient for accessing Bunker Hill and other parts of downtown. Looking out my new office window, across some freeway ramps, I will be able to gaze at another remnant of the space age, the Bonaventure Hotel, replete with even more flying ramps, bridges and outdoor elevators. For someone such as myself, interested in the movement to re-invigorate downtowns, it seems ironic to move into this artifact of an abandoned and probably unworkable dream for downtown Los Angeles. On the other hand, I am also interested in historic preservation. And these days, what is now being called mid-century style seems to represent the new historic.

OUR NEW ADDRESS (as of July 23, 2012):

Law Offices of Joseph C. Markowitz
350 S. Figueroa St., Suite 975
Los Angeles, CA 90071