Monday, December 30, 2013


One of the more interesting assignments I had this year required me to mediate a dispute between two mediators. In preparing for this mediation, I wondered whether my usual conflict resolution techniques would work. These two experts were already wise to all of the usual mediators' tricks. What could I possibly suggest that they had not thought of already?

During the course of a couple of conference calls it took to resolve the problem, these two mediators showed that they were way ahead of me with respect to understanding the stages of the mediation process and the techniques we were using to reach a resolution. At one point for example, one of the participants asked me if it was premature to be brainstorming solutions to the problem, before we had fully explored the sources of the conflict.

But even though the participants were well versed in the mediation process, they still acted in many ways no differently from the typical participants in mediation who have little experience with how the process works. Each had legitimate grievances against the other. Each had emotional responses to the other's proposals. And each had difficulty imagining constructive solutions because they were trapped in conflict.

It was gratifying, and also somewhat amusing to me, to find that some tried and true mediation techniques still worked, even though the participants were fully familiar with those techniques. It was also instructive to see that even experts in mediated conflict resolution are not immune from conflict themselves, and were wise enough to recognize that, just as doctors sometimes need their own doctor, they needed their own neutral to resolve their problem. The experience reminded me of growing up with parents from the mental health field (my father a psychiatrist and my mother a social worker). Even though my parents were experts in family therapy, they found themselves facing the same difficulties as any other parents, and from my perspective, repeatedly demonstrated that they did not understand me at all!

As mediation has become a more prevalent form of conflict resolution, mediators are finding the participants--especially attorneys who have attended lots of mediations, or who have taken mediation training themselves--more and more familiar with the stages and techniques of the mediation process. This familiarity should not make these techniques less effective, however. Instead a deeper knowledge of the process saves some time, because the mediator does not have to explain as much to the participants. But the work of resolving the conflict remains essentially the same regardless of how well the participants understand the process.

Saturday, December 14, 2013

Managing unresolveable conflicts

This week, by passing a new budget agreement through the House (still waiting on the Senate), Congress finally seems to be learning how to get back to business. To do that requires managing truly unresolveable conflicts, instead of allowing those conflicts to gum up the works completely.

Positions on both sides have hardened to the point where Republicans will not accept even a penny of tax increases, and Democrats will not accept cuts to entitlement programs. That means the usual split-the-difference approaches no longer work. Meanwhile discretionary spending has already been cut more than both sides feel comfortable with. Support for restoring defense cuts in particular cuts across party lines. So how do you craft a budget agreement in this environment?

First you choose representatives who command trust from each side. In any negotiation it is vital that the parties' agents have full authority and the support of their principals. Conservative Paul Ryan and Liberal Patty Murray fit the bill perfectly. Next you send the two negotiators into a room together and make sure they understand they have to emerge with an agreement. (The reason everybody finally understands the need to make an agreement is that we have just seen what happens when the parties fail to reach an agreement before the deadline, which is that the government shuts down, and everybody suffers.) 

The negotiators also had to understand the need to respect the other side's most important interests. That meant conceding to the Republicans that taxes would not be raised, and conceding to the Democrats that entitlement spending would not be cut. (Instead it's federal employees' pensions that will be taking a hit.) Within that framework, the parties found room to restore some discretionary spending that both sides wanted, and also include spending cuts and revenue increases that won't take effect for some time, thus allowing both sides to say they achieved some important interim goals, and that the short term deal is better than no deal. 

Is there a lot of unhappiness with this agreement? Of course. The hard-line conservatives are bemoaning the spending increases, and complaining that the deal does not do enough to reduce government in the long term. Liberals remain frustrated with the spending levels to which the government has become constrained.

Many mediators would say that the test of a good settlement is that it leaves both sides feeling equally dissatisfied. I never like to tell parties in conflict that they should be unhappy with a negotiated outcome. If they achieved something better than the alternative that would come with the failure to reach agreement, they should view the agreement as a positive. (By alternative, I do not mean the best possible alternative outcome for each side, i.e., victory for their side, and surrender by the other side. I mean the most likely outcome, which in this case is continued conflict and paralysis.)

Still, one wishes that more could have been achieved by this negotiation process. Not more in the sense that either side could have obtained a larger share of its policy objectives at the expense of the other, but more in the sense that the parties failed to reach a more comprehensive agreement. In the past Democrats have sometimes recognized that reforms to entitlement programs might be necessary to keep those programs on a sound footing. Republicans have sometimes recognized that tax increases might be necessary to close budget gaps. A truly transformational agreement would have required both sides to cross lines that they are currently unwilling to cross, because they have defined those lines as matters of principle. To do that would require both sides to recognize more legitimacy to the others' point of view than they are currently willing to entertain. As a result, a more comprehensive, transformative agreement remains, at least for the time being, out of reach. 

Friday, December 6, 2013


During the 1980's, when South Africa was in the news all the time, when the divestment movement was in full swing on college campuses and countries around the world were imposing sanctions, when South Africa was being ripped apart by repression and terrible violence, I remember thinking that South Africa served in some ways as a microcosm of the whole world. In that country a small minority of European ancestry was imposing its will on the majority African population, consuming most of the wealth for itself, and adhering to the fiction that the majority population could be confined to a few artificial "homelands." It was an unsustainable system, but the leaders of South Africa seemed unwilling to yield.

I remember doubting during those times that South Africa would be able to resolve its terrible conflicts without prolonged and brutal civil war, which seemed almost inevitable, and that this country's likely fate did not portend well for the rest of the world's ability to resolve similar problems of discrimination, oppression and injustice.  On the other hand, if South Africa could somehow end the system of apartheid peacefully, maybe there was hope for the rest of us.

The fact that South Africa did manage to emerge from those dark days to find a more just system, and that it did not fall into civil war, was in large part due to the example of one man, Nelson Mandela. During the 1980's, Mandela was repeatedly offered release from prison, if he would agree to renounce violence, but he refused to accept his release on the government's terms. What Mandela did do, however, while still in prison, and in contrast to other political prisoners at the time, was to agree to enter into negotiations with the government. It took considerable courage to negotiate rather than continue to fight.

Gradually, Mandela was offered better conditions, and was treated with more dignity and respect, until he finally won release on his terms. After that it took years of additional negotiations before South Africa finally adopted a new constitutional system allowing for majority rule. Mandela showed the necessary patience and perseverance to see these negotiations through. And what was probably most remarkable, he treated his former captors magnanimously, and refused to give in to hate. In saving South Africa, he also gave hope to the rest of the world.

Saturday, November 30, 2013

House of Cards

I've finally been catching up on the first season of the TV series House of Cards. The hero, House Majority Whip Frank Underwood, played by Kevin Spacey, is a ruthless and cynical politician interested in obtaining power and using it. He repeatedly gets the better of his adversaries by his willingness to resort to lies and tricks, implying that such unscrupulousness is necessary to get ahead in politics, and that those who are unwilling to resort to underhanded tactics are going to be left behind.

It's a popular view of negotiation in general, that successful negotiators need to use trickery and deception to get the better of their adversaries on the other side of the table. The trouble is that the more we buy into this view, the more there is going to be resistance to resolving conflict through negotiation. After all, why should parties in conflict choose a process of resolution in which the outcome is determined by lies, tricks or games? Unless they think they are masters of negotiation themselves, or that they can hire experts to help put one over on the other side, it would seem more natural for litigants instead to prefer a system with procedural safeguards designed to provide transparency and fairness. We can't take pride in suggesting that parties resolve conflicts by means of sleazy, backroom deals.

What we should take away from popular depictions of the ruthless master negotiator is that this style of negotiation is not only distasteful, it also carries serious costs and risks. And it doesn't always even work. When Congressman Underwood gets the better of the teachers' union in negotiations by lying to them about what is going to be contained in the final Education Bill, they retaliate by causing a devastating nationwide teachers' strike. When he causes scandals to derail the ambitions of political adversaries, he creates enemies. The real message of a show like House of Cards should be that cheating, lying and other underhanded tactics do not necessarily lead to good results at all, and these methods also cost their practitioners their souls. And to some extent the show does communicate this message, though as with other anti-hero dramas like The Godfather, the show still ends up glorifying the despicable lifestyles it is condemning at the same time.

We don't see much on House of Cards about whether the underlying interests of these politicians are being satisfied by their games, or whether they are accomplishing anything of substance at all on a policy level. All we see are empty power struggles. As the title of the show suggests, this is the kind of game that can only lead to collapse.

People need to understand that the way negotiation actually works is by a process of communication and understanding that allows each side to appreciate both their own and the other side's points of view and interests, and to design solutions that best serve both side's interests.  A process that is about winning at any cost is not designed to satisfy either side's interests, and should also never be accepted as a legitimate form of conflict resolution.

Monday, November 25, 2013

Judging success in negotiations

Over the weekend, negotiators in Geneva achieved what many are calling an historic agreement with the Iranian government. What was achieved is an interim agreement, effective for the next six months, that essentially freezes Iranian nuclear development and allows for the lifting of some international sanctions against Iran. During that time, the parties will attempt to negotiate a more comprehensive agreement that satisfies the world community's demand that Iran be precluded from developing nuclear weapons while moving toward normalized economic and political relations with Iran.

Before the ink is even dry on this agreement, we are hearing a wide variety of reactions, most of which are predictable. Some are already heralding the agreement as President Obama's greatest foreign policy achievement, even though it seems a bit early to make that judgment. Others are condemning the agreement as a threat to peace. It's not just that the critics have not taken the time to study the agreement and give a thoughtful, measured response, or that more time is needed to determine whether this agreement will be successful or not. The real problem is that most critics are judging this agreement by the wrong criteria. They are complaining that it does not do enough to restrain or dismantle Iran's nuclear program; or that it relies too much on trust of an untrustworthy adversary; or that it lets our guard down by dismantling the sanctions program without getting enough in return. All of these criticisms measure the agreement against a hypothetical, better agreement. The correct way to judge the fairness of an agreement, however, is not to compare it to the deal we wish we could make, but instead to compare it to the alternative of no agreement. Are we better off with this agreement, or without any agreement? That is the relevant question.

Criticizing an agreement because it does not achieve as much as one side hoped it would achieve is usually a pointless exercise. What critics are doing in that situation is simply attacking the negotiating skills of our own side's representatives, or arguing that we could have achieved more by force or sanctions than by diplomacy. Now it could be true that our side could have made a better deal (though I haven't seen anyone make a convincing case for that yet). But that is a judgment best left to historians. Right now we are stuck the agreement that our chosen representatives actually made. We have no reason to think they did not gain as much as was possible at the negotiating table. In any event, it is bad form to second guess them. Even worse is to suggest that we could have obtained better terms through some other means besides diplomacy. That is also a useless thing to tell our diplomatic team on their way back from the table. Why did we send them off to Geneva in the first place?

If there are valid criticisms of the deal to be made, they must be based on showing that we would be better off with no deal at all with Iran, than with an imperfect deal. But without any deal, the Iranians could engage in whatever nuclear development they want. Without a deal the Iranian government is treated as an outlaw nation instead of being given incentives to abide by international norms. With a deal, on the other hand, Iran is being forced to make some changes, albeit not as many as the critics would want. With a deal, Iran will be hindered for at least some period of time from developing nuclear weapons. By these criteria, most people would agree that we are better off with a deal than without a deal.

Parties in conflict should not compare what they have gained through negotiations with what they wish they had, or what they think they should have in an ideal world. They should only compare what they have obtained by agreement as opposed to the most likely available alternatives. By that measure, it seems that diplomacy has yielded success thus far.

 Fabrice Coffrini/AFP/Getty Images

Friday, November 22, 2013

Going nuclear

Next time somebody tells you they don't want to give an inch to the other side in a negotiation or litigation, it might help to suggest to them that they might want to be more practical than our Congress. You probably don't risk having an argument if your friend or client happens to be from the opposite political party as you. The one thing that most Americans seem able to agree on, no matter what their political persuasion, is that they hate Congress.

In the latest example of Congress's ineptitude, we saw this week the spectacle of Senate Democrats deciding to change the rules of that body by a simple majority vote in the middle of a session, something that had never before been done in history; a move that has infuriated the other side and that invites retaliation in the future. How did we get to that point?

Last June, President Obama submitted the names of three appointees to the D.C. Circuit Court of Appeals, probably the federal judiciary's most powerful court after the Supreme Court. Submitting three names at once could have been seen as an offer to negotiate. Perhaps the Democrats would have settled for having one or two of those appointees blocked. Instead the Republican Senate minority blocked all three. At that point there was no more half a loaf that either side could accept in this battle. It was going to be all three judges or nothing. Republicans might have figured they could get away with blocking all three because the Democrats' only option was to set the dangerous precedent of blowing up Senate rules and tradition to get these nominees confirmed--the so-called "nuclear" option. And Democrats must have figured they had been pushed so far that they had no choice but to accept the costs and risks of exercising that option.

Politics is supposed to represent the art of the possible; it is supposed to encourage compromise. But at times in history, one or both factions in government instead see their perpetual ideological struggle as a matter of principle that does not allow for compromise. They would rather risk getting nothing than settle for half a loaf. We appear to be living at one of those times in our history.

At this point, the consequences of going nuclear are hard to predict. In the long run, the result might be judged a clear victory for one side or the other. The limitation or elimination of the filibuster might turn out to represent a valuable reform. Maybe this change will even encourage Americans to like Congress a little more. But at least in the short run, there can be no doubt that the refusal to work out a negotiated resolution of the dispute over presidential appointments has caused serious strains in the relationship between the two political parties, and has resulted in an "all or nothing" approach to governing that probably could have been avoided. Even the most ardent proponents of the Democrats' decision to drop the nuclear bomb recognize that they have destroyed a tool that they might wish they still had at their disposal the next time they find themselves in the minority.

For parties involved in perhaps less momentous conflicts, ask yourselves if this conflict is really a matter of principle. Is it really a power struggle that you must win or lose? Are you willing to risk total failure? Or can your goals be better realized through an agreement with the other side that promises practical benefits and does not risk destroying a relationship that may be useful or necessary in the future?

Friday, November 15, 2013

Mediator certification in California

Over the past year, I participated in a committee formed by the Southern California Mediation Association, and chaired by SCMA past president Barbara Brown, to study the question of mediator certification or regulation. We started our work without any preconceived agenda, knowing only that our organization had opposed a proposal to have mediators regulated by the California State Bar. We were against that, but we did not yet know what we were for. We knew that there were a wide range of views on this topic within our own organization, and also learned that this issue had stymied bigger organizations that ours, with the ABA Dispute Resolution Section as well as the Association for Conflict Resolution both unable to reach consensus. Here's how we summarized the split in the ADR community, from the introduction to the report our committee issued last month:
On the one hand, many practitioners see no compelling need for regulation or certification, as there has been no public outcry for it.  They see the advantages to keeping the field open as to mediators’ styles and backgrounds.  On the other hand, many mediators desire a credential that would be of benefit to themselves and the public. They are unhappy that persons with minimal or no training can hold themselves out as mediators, in some cases giving parties who attend mediations an unfavorable view of the field.  These mediators favor some sort of credentialing out of interest in promoting and supporting the highest standards for our field and, for some, out of fear that unless we mediators regulate or certify ourselves, someone else will do it for us.
I'm proud to say that in contrast to attempts by other groups to solve this problem, our committee was able to reach a consensus. What we ended up supporting, a position that we believe also has substantial support within our own organization, is a system of voluntary certification, which we hope will be endorsed by a broad swath of mediation organizations in the state. By making certification voluntary, rather than mandatory, we hope to keep pathways open for volunteer community mediators, who would oppose attempts to create any sort of guild. But by supporting a broadly-recognized voluntary certification program, we hope to serve the interests of professional mediators who desire the development of standards and practices, and the imprimatur of a credential that will assure the public that a certified mediator has at least met certain recognized standards of competence.

Our proposal would raise the bar for mediators above the typical 30 hour course required for membership on court mediation panels and community mediation programs. In addition to taking a set number of hours of coursework, including an ethics component, a certified mediator would also have to demonstrate practical experience, by for example conducting a number of hours of volunteer mediations, and also engage in some professional activity.

Thus, the factors we deemed crucial to the success of this project are first, that the standards for certification be rigorous enough that they serve the purpose of identifying well-qualified mediators. Second, that these standards be recognized across a spectrum of organizations so as to make the credential well-known, meaningful and uniform, in contrast to the hodge-podge of credentialing indicators that exist in the field today.

Our next task is to circulate the committee’s report to the larger mediation community--educational institutions, mediation provider organizations, and organizations statewide that serve the mediation community--to form a consortium of organizations that agree to participate in implementing a new certification program in California.

The full report, including appendices, footnotes and other materials, can be found on SCMA's fall conference journal page, under the heading workshop 3 in the first set of workshops.

Wednesday, October 30, 2013

Seeds of Peace

At this year's fall conference on Saturday November 2, 2013, the Southern California Mediation Association will be presenting the Cloke-Millen Peacemaker of the Year award to Seeds of Peace, an organization that since 1993, has brought young people  from regions of conflict around the world to meet their historic enemies face-to-face at their International Camp in Maine. Seeds of Peace operates on the theory that while treaties are negotiated by governments, peace is made by people.

The Cloke-Millen Peacemaker Award will be accepted by Sarah Brajtbort, US-based Programs Manager for Seeds of Peace. Sarah was a Seed herself in 2006, and returned as a counselor 4 years later, which she did for two summers. She was hired full-time in 2012 as the US based program manager, and has been instrumental in expanding the reach of the organization from simply bringing young people from trouble spots around the world together to get to know one another on a personal basis, to extensive follow-up efforts building on the camp experience.

It's about forging personal relationships, but it's also about using techniques similar to those used in mediation to facilitate dialogue among groups of people who are not used to listening to one another.

I've been impressed with the people I've talked to from this organization, and am looking forward to meeting Sarah this weekend. It's not too late to register.

Sunday, October 27, 2013

Confirmation bias

Reading through some of the twitter comments that started popping up immediately after last night's unusual World Series game, it wasn't difficult to figure out which were written by Red Sox fans, and which by Cardinals fans. (For those who missed it, the Cardinals won in the bottom of the ninth when runner Allen Craig was called safe at home, even though he was clearly tagged out, because Craig had tripped over the legs of the Red Sox third baseman after rounding third base.) Obstruction is an obscure and complicated rule in the baseball rule book, but it didn't take long before hundreds of "experts" started offering their interpretations.

Everybody was pulling out the same rule book, but partisans on each side were relying on different parts of the rule to make their cases. So Red Sox fans were quick to point out that third baseman Will Middlebrooks, who was lying on the ground after missing the ball, might have been lying sufficiently away from from the base path to allow Craig to go around him. Red Sox fans were also quick to quick to question the viewpoint of umpire Jim Joyce, the same ump who three years ago infamously deprived pitcher Armando Galarraga of a perfect game by a safe call that Joyce later admitted was wrong. Meanwhile Cardinals fans pointed to the flailing legs of the fallen Red Sox third baseman, and relied on the rule's provision that obstruction need not be intentional to be called as such.

It was a good reminder that nearly everyone is biased to some extent, and that nearly all of us use our powers of rational thinking, not so much to arrive dispassionately at the correct result, but instead to justify the result we already favor. The controversy reminded me of the disputed 2000 Bush/Gore election, when people who previously had never concerned themselves with such abstruse questions as whether a punch card with a hanging chad should or should not count as a valid ballot, suddenly became vehement advocates of one side or the other of that question, depending on which candidate they supported.

While we all like to think we arrive at our conclusions through a rational process, at some level we must recognize that we don't do that very well at all. That's why we strive for strict neutrality from umpires or judges or arbitrators. Parties expect mediators to be neutral also, but since mediators aren't supposed to decide the case for the parties, their biases do not impact the result in the same way. What mediators can do, which judges and umpires do not, is expressly consider what the parties really care about. That is, they can push the discussion beyond the legal and factual issues that seem to be driving the case, understanding that the parties are only arguing about those issues because of the results they are each trying to obtain. What the parties care about, just like what baseball fans care about, is which side is going to win. They care about that more for emotional than rational reasons.

I'm not advocating that we mediate the calls in sports games. That seems unworkable. Instead I'm suggesting that we recognize that a lot of the supposedly rational arguments on both sides of most disputes are really the products of post hoc thinking. The beauty of mediation lies in our ability to delve into the passions that are motivating people's conclusions, rather than just skimming the surface by concentrating solely on issues that people only care about because of how those issues affect the outcome.

(Photo: Eileen Blass, USA TODAY)

Wednesday, October 23, 2013

Mediation advocacy

Organizations offering basic mediation training courses are probably turning out more graduates than can reasonably expect to earn a living as mediators. But those courses are beneficial in other ways than simply conveying the skills necessary to serve as a mediator, whether paid or volunteer. They are also helping advocates understand how the mediation process works, which should help those advocates better represent clients in mediation. I have heard a number of litigators say they were glad they took a mediation training course because it helped them learn how to negotiate better, and to better appreciate how mediation works. Since a lot more cases end up getting resolved by mediation than trial, no litigator can deny the importance of learning how to effectively represent clients in mediation and other forms of negotiated resolutions.

But if one of the purposes of mediation training is to help advocates better represent clients in negotiated resolution of their cases, why not just introduce more courses dedicated specifically to that purpose? There are lots of programs teaching trial advocacy and appellate advocacy and even discovery advocacy. Why not programs teaching advocates how to make the best use of the process that is increasingly taking over the resolution of litigated disputes?  SCMA is helping to fill that void by introducing an advocacy track at this year's fall conference (November 2 at Pepperdine University Law School). The program is being led by Hal Abramson, who wrote a textbook on representation in mediation, and Jeff Kichaven, an experienced mediator here in Southern California.

If trial lawyers think that all they need to do to prepare for mediation is cut a few paragraphs out of their summary judgment brief, and change the caption to “mediation brief;” if they believe that when they  arrive at the mediation, they should just practice their closing argument on the mediator, block their client from participating, and refuse to make any concessions to the other side; they are probably not getting the full benefits of the process. To make mediations most effective, litigators might need to think about doing the opposite of what they are accustomed to doing. That might include listening to what the other side has to say, acknowledging weaknesses in their own positions; sharing information freely and voluntarily; and cooperating with the other side to craft a solution to the conflict. None of these skills come naturally to trial attorneys!

The SCMA program intends to demonstrate to advocates how the pieces of the mediation fit together in a way that will make pre-mediation exchanges of information, opening sessions and caucuses more constructive.  The panelists will also address preparation for mediation, and closing the gap in the last stages of negotiations.The goal of mediation is not simply to settle the case, but also to strengthen the attorney-client relationship, to the benefit of both attorney and client. That's what mediators call a win-win outcome. Advocates, come on up to Malibu November 2 to learn how to achieve those goals.

Tuesday, October 22, 2013

Peer mediation

Last week SCMA put on a program organized by Jason Harper, about peer mediation programs in high schools. The stars of the program were undoubtedly the three high school students trained as mediators at University High School, who described how they spend every sixth period preventing fights and dealing with a whole range of other conflicts that break out among high school students. The adult mediators in the audience were struck by the maturity and poise of these students, and their obvious mastery of the fundamentals of the mediation process.

This program has become so entrenched in this particular school that students often try mediation before calling each other out into the schoolyard for a fight. But peer mediation can do more than reduce violence, reduce absenteeism, and lessen the need for suspensions and other more traditional forms of discipline. This system can also reach and deal with underlying causes of conflict that disciplinary programs often leave untouched.

Perhaps most importantly, peer mediation gets students thinking about conflict in a way that can usher in fundamental reforms in our whole system of justice. Peer mediation programs allow the next generation to explore more effective ways of dealing with violence, theft, slander, and other forms of inter-personal conflict than the authoritarian systems we have traditionally relied upon. Thus, the spread of peer mediation programs has potentially revolutionary potential. To achieve that potential, we don't need to eliminate established disciplinary systems in the schools, or by extension, the criminal justice system in the world these students will graduate into. We merely have to offer an alternative. 

Thursday, October 17, 2013


Should we be celebrating the fact that Congress finally voted yesterday to allow the federal government to re-open and pay its bills?  The bi-partisan agreement to re-open the government merely preserves the status quo for a short period, and leaves open the possibility of another round of brinksmanship very soon. And look what it took to achieve even that! Endless hours of meetings, sending home hundreds of thousands of federal employees,  protests, and warnings from business and political leaders around the world of the dire consequences of inaction. None of that gives much reason to celebrate.

Nevertheless, as a mediator I can find something positive about this result, and when I tweeted a message to that effect, another mediator correctly identified the process we were both cheering as incrementalism. The theory of incrementalism holds that getting parties to agree on the small and simple issues helps create movement toward larger agreements. Psychologically, the process works by building trust between warring parties, and also by conditioning parties to enjoy the rewards of small agreements so as to increase their desire to continue to work on more difficult issues. So if Democrats and Republicans in Congress both derive some satisfaction and other benefits from making this small agreement, they might have an easier time making a more lasting agreement in December. That's a pretty big "if" in this case, but that's the theory anyway.

Logically incrementalism also works by cutting the legs off of arguments that parties might make to justify continued fighting. If Republicans in this case have been forced to admit that the federal government performs some useful functions and that it would be disastrous to allow a default, that might take some steam out of arguments by the more belligerent members of that caucus that government is always the enemy, or that refusing to raise the debt ceiling is a legitimate tactic. If Democrats have been forced to live a little longer with reduced levels of government funding, that may make it harder for them to raise spending levels in the future.

In other words, it seems there is both a positive and a negative way that parties in conflict can work toward agreement in incremental steps. The positive aspect lies in the good feelings aroused among the participants from achieving even small agreements. The negative part allows each side to use concessions by the other side to foreclose them from continuing the conflict.

Wednesday, October 9, 2013

The conflict trap

The quote of the week might be from Republican Congressman Marlin Stutzman of Indiana who summed up his side's dilemma last Tuesday as follows: "We're not going to be disrespected. We have to get something out of this. And I don't know what that even is." How many mediators have heard parties make similar statements? I'm guessing most have.

The inability of Democrats and Republicans in Congress to reach an agreement that will allow the government to continue to operate and pay its bills, something both sides presumably want, serves as a good illustration of how conflict itself can paralyze the parties trapped in it, and can prevent parties even from accomplishing things they might be able to agree on. We could analyze this conflict in terms of the respective demands of each side. We could try to figure out who is to blame for the situation. But none of that analysis would truly capture the dynamic the way one Congressman's offhand remark has captured it.

It's a mistake to try to resolve conflict by focusing solely on what the conflict is ostensibly about. In legal disputes, that means mediators sometimes need to pay less attention to the legal and factual issues that might play an important role in resolving the case in court, and more attention to the interpersonal dynamics that are often driving the dispute. In the political dispute that is consuming the nation right now, that means we probably should pay less attention to the parties' respective positions on deficit reduction, changes to Obamacare, taxes, spending levels, etc., and more attention to the way the political process itself is working (i.e., not working) to frustrate and enrage participants on both sides.

One can mediate disputes by simply asking the parties to state their respective positions, and then trying to coax both sides to make concessions that will get them closer to agreement. But that is not the most effective or satisfying way to mediate disputes. A more effective way is suggested by Stutzman's offhand comment. Rather than ridiculing such a comment, let's see whether it suggests a better approach to resolving the conflict.

First, the Congressman is demanding respect: "We're not going to be disrespected."  What is the Congressman asking for? Simple: Pay attention to us. Listen to our concerns. Grant that we have a legitimate point of view. Include us in the process. One key to successful mediation is to recognize participants' deep-seated needs to express themselves, and to be heard and acknowledged and understood. Often, the other side is more reluctant to grant that kind of validation to the other side than to satisfy the other side's substantive demands. I've seen parties in mediations refuse even to listen to the other side, but then agree to meet their settlement demands anyway. They have thereby decided that it costs them more somehow to acknowledge the validity of what the other side is saying, even if they don't have to agree with it, than it costs them to pay the other side to go away. But if they listened more, they might have made a more favorable deal.

Second, he is expecting a tangible reward. "We have to get something out of this." Republicans pinned their hopes on obtaining substantive concessions on the healthcare law or the budget by making their demands at the point they perceived they had maximum leverage. But they have no clear exit strategy in response to Democrats' refusal to negotiate while a gun is being held to the American peoples' heads. What both sides need now is a face-saving way out. They need to be able to tell their constituents that they achieved some kind of result out of this struggle, and that it was all worthwhile for some reason. In recent days, the conflict has focused less on the issues that originally drove it than on process demands. Republicans seem ready to settle for an agreement by Democrats simply to negotiate, and the dispute right now seems to be about whether the negotiations will take place before or after the government gets up and running again. However the conflict is resolved, both sides are going to want to tell their constituents that they did not back down, but the other side did back down. In other words, what is at stake here is the ability of both sides to say that they achieved something important, that they held on to their principles, and that the other side gave up something of value.

Third, this statement reveals a confusion about goals. "I don't know what that even is." It's a good idea to enter negotiations with a strategy and a realistic appreciation of what can be achieved through negotiation. But the conflict itself inflames passions and clouds reason. Parties trapped in conflict are literally incapable of using the portion of their brains that engages in logical and rational thought. They have been taken over by more primitive instincts like their fears and their allegiances. Until those driving forces are acknowledged, they cannot move on to consider rationally any of the solutions that might achieve some of their goals.

So instead of ridiculing Congressman Stutzman's statement, it might make sense for Democrats in some fashion to address all of the needs and concerns that such a statement reveals. Democrats can do that without without conceding a single substantive point. They can do it without giving up their refusal to negotiate. What they would have to do, however, is agree to treat the other side with some respect, to acknowledge how strongly they feel, to listen to their concerns, and to suggest that some tangible rewards might come out of a process of continuing dialogue. That is the way out of conflict.

Friday, October 4, 2013

When not to negotiate

Mediators tend to believe practically every conflict can be resolved through negotiation, and that settlement is almost always better than the alternatives of continued conflict or an adversarial form of conflict resolution like trial. Mediators like to quote Abraham Lincoln's admonition to discourage litigation and persuade neighbors to compromise, because lawyers do the most good as peacemakers. But Lincoln went on as president to wage war as fiercely as the country had ever seen. Did he forget his own advice to try to reach a negotiated resolution of conflict? Or was he compelled by circumstances to fight, offering the other side only the option of surrender?

My prior post about hostage-taking brings to mind situations where it is impossible, or inadvisable, to negotiate with the terrorists on the other side of a conflict. Currently we are in day 4 of a federal government shutdown. President Obama, famous for always being willing to compromise to make a deal, is this time refusing to offer any deal at all to end the shutdown. The administration is leaving the House Republicans with no alternatives but capitulation or extending the current crisis. I'm not going to opine as to whether the White House strategy is right or wrong, but the current stalemate does raise the question whether some guidelines can be developed for helping parties decide when it might be appropriate to refuse to negotiate.

Here are some situations that might call for walking out of negotiations:

1. When the other side's demands are unreasonable. Tea Party Republicans probably understood that the Obama administration was never going to negotiate their demand to de-fund its signature legislative accomplishment, the Affordable Care Act. They were merely making a last ditch, desperate stand against the measure taking effect. In the absence of the popular uprising they were hoping to start, they are never going to be able to achieve their objective. Similarly, when a party in a business deal or a lawsuit makes a demand that they should know the other side is never going to agree to, and can only be achieved, if at all, through a miraculous court ruling or similar event, there is nothing to negotiate. For negotiations to proceed, parties have to communicate in some fashion that they are only setting forth an opening demand that they are willing to modify, or that they are not serious about their position.

2.  When the other side's methods are intolerable. The Obama administration has been trying to communicate the message that it's not ok to mess with the full faith and credit of the United States of America. When the president in 2011 negotiated a budget deal under the opposition's threat of refusing to raise the debt ceiling, the Treasury got so close to default that the whole nation's credit rating was downgraded. This time, President Obama has announced loudly and repeatedly that there will be no negotiations over raising the debt ceiling. It is just something that Congress must do whenever it has authorized spending levels that require additional borrowing. Similarly, when adversaries demand ransom for hostage-taking, or threaten acts of terrorism if their demands are not met, it seems legitimate to refuse to negotiate. Sometimes companies will continue to defend a case even where continued litigation will cost more than meeting the demand. They do that to discourage new potential claims. Parties who refuse to give in to tactics that they perceive as illegitimate are taking the risk that the other side will carry out their dangerous threats, but refusing to negotiate might sometimes be the only way to communicate to the other side that their tactics are unacceptable.

3.  When there is a matter of principle at stake. This might be the most dangerous situation, and a recipe for perpetual conflict, because everyone has the right to define their own principles, and one side's cherished principles sometimes conflict with the non-negotiable demands of the other side. Both sides in the budget wars have invoked their principles, and that is one reason the conflict is so intractable. Parties in lawsuits will also sometimes say they cannot settle as a matter of principle, and then it is necessary to explore whether there is a way of resolving the dispute while keeping their principles intact, or whether there are higher values at stake that allow the compromise of certain principles.

Understand that these are not rules for when parties SHOULD refuse to negotiate. Parties will sometimes continue to negotiate in all of these situations. I am only trying to identify situations in which it might be understandable for parties to refuse to negotiate. Not all wars can be avoided, and not all lawsuits should be settled. Just the vast majority of them. But when the conflict cannot be resolved by negotiation, the reasons above are usually in play.

Tuesday, October 1, 2013

The hostage-taker's dilemma

Last night I had a chance to see an early screening of the new movie, Captain Phillips, based on the true and well-known story of the ship captain freed by Navy Seals after being taken hostage by Somali pirates. While the manner in which the captain was freed has to be somewhat disappointing to mediators, the movie still provides a good illustration of the problem faced by hostage-takers who fail to get their prisoner to a safe location. If they give up the hostage, they risk being killed. If they kill the hostage, they will almost certainly be killed or captured. And if they try to bargain for the hostage's release, they still face the difficulty of making a clean escape. At some point in this story, the hostage takers begin to realize that they have only created a trap for themselves. That's when they can become most dangerous.

Also last night the deadline ran out for House Republicans to bring to the floor a bill that would continue to fund the federal government. Instead, they continued to insist on adding new conditions to achieve objectives they cannot achieve legislatively (because they will be blocked by the Senate and the President). Their chief objective: the delay or dismantling of Obamacare. House Republicans have failed to keep their hostage safe in these negotiations. They may be able (at least temporarily) to demonstrate their power by shutting down the government, but one thing they cannot do by these tactics is delay Obamacare, which is taking effect on October 1 even while the rest of the government is shut down. Republicans are thus shooting their own hostage without being able to achieve their principal objective, a strategy that seems about as defective as that employed by the failed group of Somali pirates in the movie.

Hostages can be taken in all kinds of conflict situations. If not an actual hostage, there might be a threat to blow up the process if one side doesn't get their way: Pay the ransom, or we'll shoot the hostage. Give up the health care law, or we'll shut down the government. Meet our settlement demands, or we'll take the case to trial. The trick is to avoid pulling the trigger, especially where pulling the trigger is probably going to defeat your objective.

Monday, September 30, 2013

Civil collaborative

Collaborative law has firmly established itself in the family law arena, where parties (and attorneys) are often willing to commit in advance to do everything they can to resolve divorce cases out of court. Not so much on the civil side, where the whole idea appears antithetical to traditional litigators. There have been attempts in the past to make civil litigation more, well . . . civil, but the codes that were created in some jurisdictions to encourage more gentlemanly (or ladylike) conduct never seem to get at the root of the problem. The root of the problem lies in the nature of the adversarial system itself, and its tendency to encourage adversarial behavior.

More recently, however, it seems that an increasing number of civil litigators may be starting to experiment with ways of resolving contested civil cases with little or no reliance on the court, or at least with trying to reduce the cost and acrimony associated with discovery, motion practice, and other nasty features of civil litigation. Some call this movement "planned early negotiation;" others call it holistic or integrative law. In some ways the idea seems a throwback to a bygone era (which may never have existed) in which attorneys maintained more trusting relationships with opposing counsel, and attempted to resolve disputes in a reasonable way. A more collaborative approach also seems to flow naturally into mediation, as opposed to the way mediation usually arises in hotly contested cases, as a temporary truce called in the middle of a war.

Because of the importance of this topic, we are thinking of adding a panel to the advocacy track of the SCMA fall conference this year, or perhaps a program next year, discussing where civil collaborative practice came from and where it might be heading. When I discussed the idea this week with Woody Mosten, one of the pioneers of collaborative law, I told him I myself have been shifting my own approach to litigation in this direction: trying to keep clients out of court altogether, and trying to resolve problems in litigation with less court assistance. I still feel the need, however, to keep the hammer of litigation in my back pocket. Woody made a disapproving face when I said that, indicating that he did not think my thinking had evolved sufficiently on this issue. It probably hasn't.

What I understand from others who have tried to advance the discipline of civil collaborative is that most civil trial lawyers feel the same way I do. Thus, one of the chief stumbling blocks to developing civil collaborative practice has been the resistance of civil trial lawyers to sign participation agreements of the type recommended in family law cases, in which the attorneys who work on resolving the case agree in advance that if they fail to achieve an agreement, they will not be the attorneys representing the clients in any court case. Are such agreements essential to the practice of collaborative law? Or can we develop a species of more cooperative dispute resolution in the civil area that does not require the use of participation agreements?

I think it's possible to achieve better results in litigation by attempting to resolve issues in cases without motion practice, and by relating to opposing counsel with a view toward reaching settlement, rather that conducting settlement discussions only as a time out from unrelenting hostility. It's even possible to resolve disputes without filing a complaint at all. The difficulty arises when opposing counsel has not signed on to the same program. And that is where the collaborative family lawyers are probably a step ahead of the civil litigators who are attempting to practice in a more cooperative way. 

Thursday, September 19, 2013

Constructive Engagement

The recently-elected President of Iran, Hassan Rouhani, is starting to sound like a mediator. Today Rouhani published an op-ed piece in the Washington Post, in which he said the following: 
The world has changed. International politics is no longer a zero-sum game but a multi-dimensional arena where cooperation and competition often occur simultaneously. Gone is the age of blood feuds. World leaders are expected to lead in turning threats into opportunities. . . . 
In a world where global politics is no longer a zero-sum game, it is — or should be — counterintuitive to pursue one’s interests without considering the interests of others. A constructive approach to diplomacy doesn’t mean relinquishing one’s rights. It means engaging with one’s counterparts, on the basis of equal footing and mutual respect, to address shared concerns and achieve shared objectives. In other words, win-win outcomes are not just favorable but also achievable.
Perhaps the diplomatic breakthrough achieved this past week on removing chemical weapons from Syria is only the prelude to an even bigger breakthrough: moving toward improved relations with Iran. If so, this olive branch from Iran should be given at least as much attention as the posturing op-ed piece from Russia's President Putin in last week's New York Times. (see my prior post) We know that President Obama, while tightening sanctions on Iran and making clear that Iran's acquisition of nuclear weapons would be unacceptable, has also been interested in opening a dialogue with Iran at least since he expressed a willingness to do so in the 2008 campaign. Finally he may have a receptive negotiating partner.

Crisis and opportunity, indeed.

Monday, September 16, 2013

Carrots and sticks

The most high profile negotiations in the world this weekend took place in Geneva, where the U.S. and Russia announced agreement on a framework for the surrender of chemical weapons by the government of Syria. Apparently discussion of this issue has going on for a long time. The idea of disarmament by the government of Syria did not simply arise in response to its recent chemical weapons attack. We might therefore try to analyze this agreement using modern principles of interest-based bargaining. Syria and Russia have an interest in resolving a terrible civil war (they are hoping to resolve it in favor of the government of Syria). They also have an interest in trade and decent relations with other countries in the region and the world. They want some degree of acceptance in the community of nations, and do not want to be seen as "outlaws." By giving up Syria's stockpile, they gain on all these points, and they therefore have good reasons to make an agreement even apart from the threat of force by the U.S., France and others.

Alastair Grant/AP
Looking at this situation in a more conventional way, it seems apparent that nothing pushed the parties to agreement until the U.S. and other countries threatened military action in response to Syria's recent dastardly attack. Secretary of State Kerry continues to insist that the agreement to confiscate Syria's chemical weapons must be backed by force. He was quoted in a meeting with Prime Minister Netanyahu as saying, "We cannot have hollow words in the conduct of international affairs." This diplomatic breakthrough can therefore be seen as merely the continuation of war by less destructive means. Civilized nations are entitled to enforce a convention (or at least a norm, since Syria never signed the treaty). If a country commits a gross violation of such an international norm, sanctions may be imposed. To avoid those sanctions--to avoid the imminent threat of being bombed--Syria says it will to submit to an agreement to obey these international norms. It's mostly a matter of who has the power, and whether they are willing and able to use it. Nations obey the rules when other nations impose meaningful sanctions for violations.

When we negotiate resolution of any sort of conflict, we may take for granted that we are usually doing it in the shadow of a more coercive and destructive form of conflict resolution. (In the international sphere, that means war. In the private sphere, that means courts.) Do we make agreements mostly because we understand the rules and know the consequences of breaking them? Alternatively, can we imagine a system of conflict resolution that does not require a backdrop of air strikes, economic sanctions or courts? Can we imagine nations, and individuals, reaching understandings based purely on enlightened self-interest and respect for the legitimate interests of others, without the need for the threat of force to compel and enforce those agreements?

Thursday, September 12, 2013

Crisis and Opportunity

The September issue of Advocate magazine (published by CAALA, the Consumer Attorneys Associations for Southern California) contains an article I wrote prompted by the funding crisis in California courts. These court cutbacks, which will cause delays and other problems in working cases through the court system, should cause the consumers of court services--both litigants and attorneys--to rethink the way they use the court system.

The title is borrowed from the fall conference I am helping to organize for the Southern California Mediation Association. Part of my article describes the new "Select a Mediator" program designed by SCMA in response to the closure of the LA County Superior Court's ADR program.

I also offer some suggestions for conducting litigation in an era where courts have fewer resources to deal with motions and trials. Lawyers and litigants are going to have to negotiate their way through pre-trial proceedings without bringing every controversy to a judge. That's a necessity caused by budget cutbacks, but doing that might also prove to benefit the parties by reducing the costs of court resolution of every dispute within a case.

Saturday, August 31, 2013


The August issue of the California Bar Journal is devoted to the theme of lawyer as peacemaker. In his introduction, State Bar President Patrick Kelly argues that it is time for lawyers to refocus their efforts from advocacy to more of a problem-solving, peacemaking role. The issue includes a number of articles by prominent ADR practitioners helping to illustrate how lawyers can make this transition.

The State Bar President's recognition that it is time for advocates to work to reduce conflict and solve problems rather than exacerbating conflict and causing problems represents a welcome shift. As Kelly states, to the extent attorneys are able to address the need for problem-solving and peacemaking, that can contribute positively to their ability to serve clients' interests in a positive way, and should also improve the public's perception of the profession.

But this position seems at odds with the traditional view of the lawyer as a zealous advocate for their client's interests. Are lawyers supposed to abandon that traditional ethical duty and start making all nicey-nice with their adversaries, giving up their client's legal rights in the interest of peace? To reconcile these approaches lawyers might keep in mind that while clients all want what they think they are entitled to under the law, they also want to resolve their disputes in a reasonable and cost-effective way. Clients are not generally clamoring to perpetuate conflict at enormous cost and risk to themselves, which is what aggressive litigation sometimes entails.

It might also be helpful to keep in mind that litigation does not automatically require that you make no concessions to your adversary, and ADR does not automatically equate with a conciliatory approach. Rather, there is an important place for vigorous advocacy in ADR practice. Lawyers who are trying to resolve their clients' disputes by negotiation should not be giving away the store. They should be trying to obtain a favorable result for their client, just as they do in litigation. The difference is that advocacy in negotiation must influence the opposing party rather than persuade a judge. There is also an important place for peacemaking and problem-solving in litigation. A lawyer who fights at every step of the way in conducting a lawsuit instead of treating the lawsuit as a series of negotiations is only going to antagonize his adversary, increase costs for his own client, and make the case more difficult to resolve.

Lawyers can be vigorous advocates and problem-solving peacemakers at the same time; and regardless of whether they are pursuing conflict resolution in a public forum or a private dispute-resolution mechanism. Keeping the client's real interests in mind at all times--which always includes a range of interests from maximizing recovery or minimizing exposure to resolving a conflict in a reasonable amount of time at a reasonable cost, and sometimes even repairing a damaged relationship with an opponent--helps balance the lawyer's dual roles as both advocate and peacemaker.

Thursday, August 22, 2013

Back to school

Wayne LaPierre owes an apology, or at least an explanation, to Antoinette Tuff, the Georgia school employee who successfully talked down a gunman who entered her elementary school with an assault rifle and some 500 rounds of ammunition. Remember it was NRA spokesman LaPierre who responded to the Newtown shooting by advising us that the only way to stop a bad guy with a gun is to rely on a good guy with a gun. That's right, he said that more guns is the ONLY way to stop violence. Antoinette Tuff instead showed that engaging in an hour-long empathetic dialogue with a dangerous gunman might be an equally effective way to stop a bad guy with a gun. In fact, her method could be a more effective way of preventing violence, as no one was harmed in the incident.

Tuff's interview is a textbook explanation of how to calm down a disturbed individual. You do that by listening carefully to what he was saying, and by telling him, as Tuff explains, that she understood what he was feeling. Then she started sharing some of her own stories, and establishing a personal connection with him by noting that her mother's maiden name was the same as his, and that she remembered his previous visit to the school. Here was a person determined, as he said, to end his life and take many people along with him. Tuff assured the gunman that he did not have to die that day, and that he might have something to live for, and he agreed to surrender peacefully.

Few people would deny that guns have their uses, and most people agree that armed security is appropriate in some situations. What we need to be wary of, however, are people who claim that the only way to respond to violence is with more violence. There are lots of other ways to deal with violence, and many effective means of resolving conflict that do not require force. We need to study those methods. Listening to Antoinette Tuff tell how she did it would be a good place to start.

Wednesday, August 14, 2013

Litigation and homelessness

In an interview published in the LA Times a couple of weeks ago, the new Los Angeles city attorney Mike Feuer was asked about his approach to a well-publicized case in which the city has been enjoined from removing personal property that homeless people leave on public sidewalks. (The case is currently on appeal.) His response:
There are elements of this litigation I see as an opportunity to solve a problem. Litigation is rather a blunt instrument and has yet to get to the underlying issues. The fact that there is litigation means there has been a failure of public policy. It's important to address homelessness in a nuanced way.
I'm committed to striking a balance that enhances conditions for homeless people, protects public safety, assures businesses can operate and improves the quality of life for all our residents. The notice of appeal preserves all our options as we strive to find that balance.
This response is notable first for recognizing that litigation might be a legitimate means of solving a problem, while appreciating its limits for that purpose. Next Feuer shows an interest in identifying the underlying issues that are driving the problem. And finally a commitment to finding a balanced approach to dealing with these issues. All in all, a refreshing and constructive tone for the city's top litigator.

In response to a follow-up question, Feuer went on to describe more specifically how he would approach these underlying interests, a response bound to warm the hearts of mediators:
There's a core legitimacy to everyone's perspective; a zero-sum approach isn't going to cut it. I have in mind bringing stakeholders here for meetings to try to find common ground, getting people who aren't listening carefully to each other to start listening carefully.
Most litigators would be only too pleased to regale an interviewer with lengthy explanations of why the city's position is right and the people who are suing the city are wrong. Indeed, that is what you would expect from the city's attorney. Feuer is instead careful to explain that both sides have a legitimate perspective. He also strikes a new chord by explaining that the solution is not continued litigation, in which one side will win and the other side will lose, but the underlying problems might not get addressed. (Depending on which side "wins," either the sidewalks may be littered with abandoned property, or the prized possessions of homeless people will be swept away.)

Instead, what we need to do is get all the stakeholders--that means homeless advocates, business owners and residents--together to listen to one another in an effort to find common ground to solve the problem in a way that allows the city to keep public spaces safe and useable, while treating people who live in those public spaces with dignity and respect. This is a problem in need of a mediated solution.

LA Times photo

Tuesday, August 13, 2013


I recently mediated a case pending in federal court, in which we had a productive session that brought the parties a lot closer to resolution. Both sides had agreed that only the main defendant needed to attend the mediation, as the others lived on the other side of the country and had little willingness or ability to contribute anyway. But at the end of the session, there was still a gap to bridge, and defendants' counsel proposed that he confer with these absent parties to see if they could raise enough additional commitments to close the gap. We left it that counsel would continue settlement discussions between themselves, and call me in if necessary. Both sides left in a positive frame of mind.

Then, in a version of "good cop, bad cop," the court stepped in and scheduled another settlement conference to help push the parties to resolution. I use the term "bad cop" because the court's order was filled with very specific instructions and threats of sanctions. The parties were directed to submit offers and counter-offers at specified dates and times, to appear at the designated time for mediation, to file briefs conforming to very strict guidelines, to make sure that all parties attended and that they had full authority to settle the case. And in case these directives were not followed, the order set forth the exact monetary penalties that would be imposed.

My point is not so much to criticize this approach, even though it is at odds with the voluntary ideal of mediation, because the court's method may also have pushed the case closer to resolution. My point is that courts have a natural tendency to solve problems using the tools of rules, orders and sanctions. That is what courts do. It comes naturally to them. So even when courts hold settlement conferences, they still tend to rely on their customary tools. Sort of like the way Arnold Schwarzenegger dealt with children in the movie "Kindergarten Cop." Effective, maybe, but coming from a mind-set that is fundamentally different from the mediation process. And sometimes that is what the parties want and might even need.

On the other hand, the court's heavy-handed approach might have only created resentment, and still not settle the case. Is that how parties should expect to be treated when they become involved in a lawsuit?

How much coercion is justified to get the job done? What if, for example, courts had a standing order that every time someone files a lawsuit, both sides are fined $1000 per day (make it $10,000 per day in a really big case) until the case is resolved? That would force parties to the bargaining table in a hurry, but would also be antithetical to the business that courts are supposed to be in, of resolving disputes in a just and expeditious manner, according to the law.

Mediators should not need to resort to the tools of coercion. Parties should seek mediation voluntarily, and approach it in the spirit of cooperation and understanding. No one should  be forced to settle. Anyway, the costs and risks of litigation are usually sufficient incentive to drive most cases to settlement. Most of the parties I see involved in litigation are in a great deal of pain, and the lawsuit is usually a kind of private hell for them. Why would I want to add to that pain? Mediators do not  need to impose additional burdens on the parties. Getting people to recognize that they have the power to end their painful conflict is usually sufficient incentive to settle. And courts should think carefully before penalizing people too severely for failing to settle, unless they want to acknowledge that the business they are in is that of punishing people for using their services.

Wednesday, July 24, 2013


I remember reading a piece by a newspaper columnist who described the process by which someone in that field can finally claim to have mastered the trade. The aspiring newspaper columnist starts with a head full of ideas. He might even have rough drafts or outlines for many weeks’ worth of columns in a bottom desk drawer. But after about a year of doing the column, all of those ideas are going to be exhausted, and the columnist will have nothing left in the storehouse to draw from. Around that time, the columnist is going to be facing a looming deadline with no idea what to say. And that is when any newspaper columnist worth his salt begins to prove that he knows what he is doing. The columnist still has to file the column no matter what.

I can relate to this analogy because I have been publishing this blog for about four years now, which I try to update weekly. I live in fear that I will run out of new ideas.

More to the point, however, the position of the writer on deadline with no idea what to put on paper might also resemble the position of a mediator in the midst of a broken down negotiation who has run out of suggestions. Getting beyond impasse is a popular subject for mediation training, and most mediators have listened to lots of talks filled with tips and tricks for keeping the mediation going when the parties have just about given up and are heading for the door. Lots of these techniques can be effective. Every mediation trainer will tell you that it’s good to have as many tools in your toolbox as you can because you never know for sure what might be effective. And they are right. But what happens when the mediator has run through the grab bag of tricks, or when all the participants can smell another trick coming a mile away?

At that point, the mediator who is not willing to give up, is left only with whatever remains of the initial will to persevere and hope for success. You just have to keep going, no matter what.

I recently participated in a seminar with Ken Cloke, one of Southern California’s great thinkers and writers on the subject of conflict resolution. Ken didn’t teach this group of mediators very many new techniques for breaking impasse. He just got us comfortable with the idea of impasse as a natural state, with exploring the sources of conflict rather than simply trying to squelch it, with getting beneath the surface concerns of parties to reveal deeper truths. And he reminded us that the most important tool a mediator can bring to the mediation is your authentic self. Remain present and remain interested. Because the parties eventually run out of patience with games. Whereas if you have demonstrated that you have listened to and understand the parties’ concerns, and that you still care, they will eventually trust you to take them beyond impasse to resolution.

Or as George Burns put it, “Sincerity is everything. Once you can fake that, you’ve got it made.” But seriously, faking it is dangerous. Parties tend to figure out if you are faking it. A genuine desire to continue working the problem, even after everyone--including the mediator--has run out of suggestions, may be the only tool in the mediator’s toolbox that counts in the end.

(A version of this post originally appeared in the spring 2013 issue of ADR Times Perspectives.)

Wednesday, July 17, 2013

Criminal Justice

I try to avoid second guessing juries, even when they don't come out the way I might think they should. And I generally would not say that any acquittal in the criminal justice system shows that the system is not working. That's because our criminal justice system is supposed to be based on the premise that it is better that ten guilty men go free than that one innocent person is convicted. A wrongful conviction might be used as evidence that the system is not working. But an acquittal, even of a guilty defendant, shows the system is working the way it was designed.

But if the acquittal in the Zimmerman case can be taken as evidence that the system is working the way it is set up to work, why are so many people dissatisfied with the outcome? And even if the jury had convicted, a large number of people--different people--would probably still have been dissatisfied.

What happened to Trayvon Martin is tragic. But it was always a difficult case to prove beyond a reasonable doubt, which might be one reason the Florida prosecutors initially did not want to pursue it, until a public outcry forced their hand. In addition to the ambiguities and conflicts in testimony that make it difficult to determine exactly what happened, the case also exposed deep divides in the way people perceive dangers, in the way we decide who to empathize with, and who we fear. If you're George Zimmerman, a black teenager wearing a hood is probably up to no good. He's the "other." If you're Trayvon Martin, an armed neighborhood vigilante is someone to be feared. If we were instead talking about a white teenager being stalked by an armed black vigilante, many people's perceptions of who is one of "us" and who is the "other" would change. To the extent these kinds of biases caused Trayvon Martin's death, and might affect the way people perceive and perhaps decided this case, it's understandable that the case aroused passions.

Whenever the criminal justice system reaches a result that does not accord with the sense of justice of one segment of the community, it's not so much that the system failed as that the system is inherently limited by the biases and prejudices of the people who make the laws and decide cases. The system is designed to reflect the community's sense of justice, but when the community is divided, we are not going to be able to get results that satisfy everyone. 

The real failure in this case might might be the failure of the criminal justice system in this case to do anything to deal with the underlying causes of violence, or in any way to address the needs of any of the participants. If George Zimmerman's first request after being acquitted was to ask for his gun back, the system obviously hasn't done anything to reduce his fears, or to reduce the possibility of continued violence. And if Trayvon Martin's supporters feel that people whom they perceive as predators are being encouraged, not punished, that only reinforces people's feelings of being the outcasts and victims of a hostile society. And so this result might only perpetuate a vicious cycle of violence.

Some of these failures might be overcome if we moved toward a more restorative model of criminal justice, a movement that is gaining a lot of favor in school disciplinary systems. Such efforts would more directly address the distrust and misunderstandings that can lead to violent crime.

Monday, July 8, 2013

Select a mediator

On July 16,2013 the Southern California Mediation Association is holding a launch party for our Select a Mediator directory. This promises to be one of our biggest and best parties EVER, so please invite all your friends. The launch party is not limited to SCMA members, or to mediators. In fact, we encourage attorneys and other consumers of mediation services to come and learn more about our service. This event will take place at the Sofitel Hotel at 6:00 p.m. (MORE DETAILS AND RSVP HERE)

Created in response to the dismantling of the LA Superior Court random select and party select mediation panels, our directory represents a substantial upgrade of SCMA's member directory. It allows users to search for mediators by geographical area, by rate range, and by area of substantive expertise. The SCMA directory sets qualifications for listing that are substantially similar to those employed by the court's ADR department, but unlike the court does not randomly assign mediators. Users have the ability to peruse listings and select a mediator appropriate to their situation. Best of all, the SCMA service, at least for the time being, is completely free. There is no charge for using the directory,and no administrative fees for setting up a mediation with one of our listed mediators. Those mediators set their own charges.

In addition, many mediators on the SCMA site, have agreed to participate in a reduced rate program for cases with a value under $25,000 or in which at least one side is not represented by counsel. Participants in this program will charge 50% of their normal rate, or provide the first two hours of service for free.

The website directory is currently in a "soft launch" phase. That means it is already in operation but still has a few bugs, so bear with us! We plan to keep improving the website to maintain it as a state of the art directory. But the directory is only the means for showcasing SCMA-affiliated mediators. What distinguishes the SCMA directory is that it offers a broad range of mediators versed in a large number of areas of expertise and coming from a variety of professional backgrounds. In addition, we are promoting this directory to the courts and to the bar as an excellent substitute for the late, lamented court program. Our goal is to offer the public a large panel of well-qualified mediators that will perform mediations at reasonable rates, and operate with a minimum of rules and regulations and a maximum of flexibility and party choice.

Hope to see everyone at the launch party!

Thursday, July 4, 2013

Happy Independence Day!

On July 13, 1776, Lord Howe, who had just led the largest armada ever to have crossed the Atlantic, and whose troops were encamped on Staten Island, getting ready to crush the American rebellion, attempted to deliver a letter to George Washington. The letter proposed negotiations with a view to preventing bloodshed and restoring peace between Britain and the American colonies. But according to the account in Revolutionary Summer, by Joseph Ellis, the letter could not be delivered. Howe's emissaries attempted to give it to General Washington's representative, Joseph Reed, a lawyer from Philadelphia, in a meeting of rowboats in the harbor between the two gathering armies. But Reed refused to accept the letter because it was addressed to George Washington, Esq., rather than to General Washington, commander of the Continental army.

Timing is important in negotiations. This peace overture was probably doomed because it took place just after the colonies had formally declared their independence. Only a few days previously, on July 9, Washington had ordered the reading of the amended and approved July 4 version of the Declaration of Independence to his troops. His orders were to defend New York City from the British invasion, a task he was starting to realize was probably hopeless. Nevertheless, he could not back down at this juncture.

Recognition of the other side's status is also important in negotiations. Just as Reed could not accept the letter because it failed to recognize Washington's claim to be leading a co-equal army of an independent nation, Howe could not, consistently with his own orders, accord Washington that status. To do so would have been to surrender in advance the very principle the British were fighting for. They were in America to put down a colonial rebellion. They were not about to accept the premise that they were declaring war on another nation.

It's obvious in hindsight that George III bungled these negotiations badly. If Britain wanted to hold the colonies, they should have started negotiations much sooner, and been prepared to accord the Americans some degree of autonomy or representation in Parliament. Instead, Lord Howe made his last ditch effort to negotiate peace after the colonies had formally committed themselves to independence, was not prepared to extend any substantial concessions, and mistakenly expected that the Americans would back down in the face of overwhelming force. Because of Britain's poor negotiating strategy, and their confidence of  victory in war, we celebrate our independence every year with a bang of exploding fireworks, rather than with appreciation of the virtues of diplomacy.

Thursday, June 27, 2013

Crisis and Opportunity

I've been working with my co-chair Robyn Weinstein to put together SCMA's 25th annual fall conference, to take place in Malibu on November 2, 2013. Our theme this year is "Crisis and Opportunity: Expanding the Field of Conflict Resolution." The theme is drawn in part from our organization's efforts to create new opportunities for mediators in the wake of the unexpected closing of the Los Angeles County Superior Court ADR program.

But there are plenty of other crises all around. Take your pick of them. Our aim is to get people thinking about how the tools and tricks of our trade can be used to solve a myriad of problems, from international conflict to partisan gridlock in Washington to environmental pollution to gun violence. Mediated solutions can help ameliorate all of these problems and more.

The application of conflict resolution skills to our most pressing social and political problems will not only help save the world, but might also have practical value for our professional lives. We need to expand the definition of mediation beyond that of a professional hired to persuade people to settle a lawsuit, to a whole range of other applications. Workplace conflicts; labor conflicts (a traditional area for mediated solutions way before the use of mediation to help resolve lawsuits); public policy disputes; land use decisions; conflicts within schools and other institutions. All of these areas are ripe for intervention by people applying modern techniques of conflict resolution. Maybe we can even teach lawyers to resolve disputes in a more cost-effective and less destructive manner.

That brings up a new feature we are planning to add to the conference this year: a track geared toward legal and other types of advocates, both to emphasize the use of negotiating skills in formalized mediation sessions, and the application of conflict resolution techniques to solve clients' problems. We're also going to touch on other pressing issues in the field including mediator certification and regulation, ethical issues in the conduct of mediation, and mediation in specific substantive contexts. And we plan to continue the advanced track begun last year, to attract experienced mediators to the conference. And lots of other stuff. Stay tuned at where we will soon have up a schedule of the planned panels and other materials relating to the fall conference.