Thursday, November 29, 2012

Value

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

Tracks

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

Openings

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!