Monday, November 30, 2015

Spotlight

Confidentiality agreements often serve the short-term interests of the parties to a particular dispute: An enterprise accused of wrongdoing has a strong interest in keeping its alleged wrongful actions secret, both to protect its reputation and to dissuade others from suing. At the same time, individuals bringing such accusations have an incentive to agree to requests for secrecy, which are often demanded in exchange for settlement payments.

In the new movie Spotlight, in which a motion to unseal court records plays a central part, the practice of entering into confidential settlement agreements providing a small amount of compensation to victims of sexual abuse by Catholic priests, is portrayed as a shameful means of allowing the Church to cover up crimes for decades and keep predators at large. The legal system's complicity in the sort of confidentiality that allows evidence to be suppressed, criminals to be spirited away, and victims to remain in the shadows, is portrayed as an obstacle that must be overcome in order to allow justice and healing for abuse victims.

It is important, however, to distinguish the kinds of protective orders and confidentiality agreements that had to be defeated in the Church abuse cases, from the need to conduct settlement negotiations in private, without fear that admissions or offers might be used against parties in that particular case.

I have been involved in efforts to protect the confidentiality of settlement negotiations--mediation confidentiality in particular. Confidentiality is essential to the practice of mediation and to settlement negotiations in general, as the evidentiary bar against the admissibility of settlement negotiations encourages parties to speak candidly without fear that their offers and admissions may be used against them in later court proceedings. Without the shield of confidentiality, parties might be reluctant to engage in spirited settlement negotiations, and cases might be less likely to resolve in a consensual manner. Without the protection of confidentiality, parties are more likely to be forced into adversarial confrontation, and less likely to find a cooperative means of obtaining resolution. Without an evidentiary rule against the admissibility of settlement negotiations, parties are more likely to move back toward needlessly destructive litigation.

While the confidentiality of settlement negotiations generally deserves strong protection, courts must still be mindful of the over-use of protective orders and other efforts to hide wrongdoing in individual cases from public view. This is where the courts have to balance the interests of the public, including the interests of other potential victims of wrongdoing, against the desires of the parties in a particular case to keep facts out of the public view. Confidentiality clauses in settlement agreements are even more problematical than the use of protective orders, because usually judges have no opportunity to oversee their use, and parties are often too willing to agree to them. The situation in Spotlight illustrates one scenario where the routine use of confidentiality clauses may not have served any of the parties' long term interests. Parties and their attorneys should therefore be mindful of the potential over-use of protective orders and settlement confidentiality provisions, which can create traps even for the parties in a particular case, and which may also harm the public interest.


Saturday, November 14, 2015

SCMA fall conference recap

Congratulations to outgoing president Robyn Weinstein, incoming president Floyd Siegal, conference chair Hass Sadeghi, executive director Anne Sawyer, and all the other volunteers who helped create the Southern California Mediation Association's successful fall conference last weekend. The conference's theme, Conflict Revolution, made clear that our organization is moving well beyond the goal of helping people learn to mediate litigated disputes. Our goal is to change the world!

Ken Cloke
This goal was emphasized not only in panels such as the one described in my previous post that addressed new roles for mediators and mediation, but was also addressed in panels on critical race theory, LGBT rights, and other timely topics. Peter Robinson kicked off the conference with what amounted to a synopsis of an entire course on apology and forgiveness. And Ken Cloke closed the event by expressing the view that global problems from civil war to climate change can only be solved by the application of principles learned by mediators.

It's been my privilege to serve on SCMA's board for the past five years, including as president last year. It's a committed group of idealists filled with positive energy and intent on changing the world, and I have gained a lot from knowing these people.

Sunday, November 8, 2015

Urban Projects

Streetsblog
There is a half-finished Target store in my neighborhood that stands as a perfect metaphor for the problems with using litigation as a means of resolving developers' and the community's interests in urban projects. With construction halted because of claimed height violations, the unfinished building has been left in limbo. The community now has to live with something that is ugly; that is enormously wasteful; and that has been sitting there unfinished for a long time. Its continued unresolved status satisfies neither those opposed nor those in favor of the project.

I used that metaphor while introducing one of the workshops at the SCMA fall conference yesterday, a workshop on urban projects organized by Noah Stein. The panel brought together developers, community group leaders and an official with the MTA to talk about how mediation might be introduced into the planning and approval process to alleviate the adversarial nature of the current system. It was pointed out that zoning codes are so complex that variances are almost invariably needed, leaving developers at the mercy of changing political winds, as well as at risk of penalties for violations. There was also general agreement that the current CEQA process, which dates back to the 1970's, is in need of reform, if not complete overhaul. It leaves developers and planners after all of the environmental reviews and comments, still at the mercy of one opponent of the project willing to resort to litigation challenging the project's approval on the grounds that some negative environmental impact of the project was not fully considered.

So perhaps structural changes in the law are needed before we can design a more collaborative rather than adversarial type of planning and approval process. Still there was general agreement that even within the current system it is important for planners and developers to work with community groups and property owners early in the design process, so as to gain the community's trust, and to help create projects that will be more beneficial to all of the various competing interests. While it might be too late effectively to mediate disputes among project proponents and opponents after litigation has commenced, there does seem to be a place earlier in the design and planning process for the kinds of facilitated dialogues that mediators are trained to conduct.

Tuesday, November 3, 2015

Bridge of Spies

The new Cold War thriller Bridge of Spies, based on the true story of the prisoner exchange for captured U2 pilot Francis Gary Powers, shows an attorney living up to the highest standards of advocacy as well as negotiating ability. The movie's lawyer-hero, James Donovan (played by Tom Hanks) is first seen as a typical insurance company lawyer making clever legal arguments about whether an accident involving five motorcyclists should be considered a single "incident." Even when doing that, however, Donovan is able to impress by tying those arguments to a higher purpose.

When Donovan is asked to defend accused Russian spy Rudolf Abel, he takes his ethical responsibilities, and his devotion to the Constitution and to his client's interests, as seriously as any lawyer would wish to perform them, and performs to the highest professional standards, despite pressure to compromise those standards for the sake of gaining an advantage in the Cold War game of espionage. Compare James Donovan to the fictional Atticus Finch, an idealistic role model who has served as an inspiration to many lawyers. Both took on hopeless cases, and both strove to uphold the rights of a reviled defendant. But it must be said that although Finch showed courage in exposing the community's racism, his shaming of the jury may not have served his client all that well in the end. We should probably admire the real-life hero Donovan even more, because he took on the defense of a client who was probably not so innocent, and came up with the winning strategy that saved his client's life.

At the same time, like Atticus Finch, Donovan reminds the community of the Constitutional ideals they are supposed to stand for.  At home, Donovan has to endure the disapproval of his neighbors for taking on the defense of a hated spy. But all it takes is a tour of postwar Berlin with our hero to appreciate his viewpoint that upholding the rule of law is the only thing protecting us from descending into the fear, crime and oppression prevalent on the other side of the Iron Curtain.

Not only does Donovan turn out to be a highly skilled trial lawyer, he also shows himself as an effective negotiator. He does that by knowing both the limits and the extent of leverage he had over his adversaries. Donovan also knew his client well enough to understand his value to the Russians, and had built up the kind of trust with his client that enabled him to achieve even greater success in the end.

All in all, a perfect combination of street smarts and idealism. And a perfect combination of knowing what it takes to win, and what it takes to negotiate a mutually beneficial result with one's adversary. Truly an inspiring story.



Saturday, October 31, 2015

Car wars

An ongoing contentious conflict in Los Angeles, that affects every resident, is the conflict between automobile drivers and other users of the city's public spaces. This city, which has been designed in deference to the automobile since the 1920's, is facing new challenges from pedestrian, bicycle and public transit advocates seeking to reclaim a larger share of the city streets. Surprisingly, and without much public attention, this car-centric city has already adopted a new policy giving substantial ground to these advocates.

By a 12-2 vote, the City Council recently adopted what is called the Mobility Plan 2035, which calls, among other things, for putting many city streets on a "road diet" to allow more room for bicycle lanes and sidewalks. A few city streets have already been re-striped to add bike lanes and reduce the number of lanes available for cars. Advocates of the "road diet" approach claim that removing traffic lanes, and improving access to the city's amenities by other means, will improve the quality of life and actually improve traffic flow in many areas. (Some of these arguments are summed up in this LA Times article.) If you accept the premise that traffic is caused by having too many cars trying to use the available street space, then the best way to reduce traffic is to adopt measures aimed at reducing the number of cars. The alternative approach of attempting to accommodate increased traffic by building even more roads, has been shown time and again to encourage greater reliance on cars, and results in even more traffic.

Drivers naturally feel threatened by the new policy of re-allocating scarce road space away from cars. They are skeptical of the argument that they and other drivers will be coaxed out of their cars by these new measures, and they can be expected to fight them vigorously. An organization called Fix the City that claims to represent the public interest (though it has no members) has already filed a CEQA lawsuit attempting to reverse the city's adoption of its new mobility plan.

So this conflict is likely to play out in court, where instead of being able to engage in an orderly process of determining a reasonable allocation of competing uses for public space, the parties will instead be forced to argue about whether the city complied with applicable environmental regulations and statutes.

The conflict will also play out in contentious public meetings, where advocates for motorists, public transportation, bicyclists and pedestrians will see who can shout the loudest. As another LA Times column points out, however, it is only through greater public involvement that all competing concerns can be properly addressed. And public meetings can once in a while provide an opportunity for eloquent voices to be heard, as in the video clip below, where 11 year old Matlock Grossman shames the drivers who curse at him merely for trying to ride his bike to school.




Instead of turning this debate into a legal problem that frames the issues in a way that may not directly address all of the stakeholders' real concerns, or into a zero-sum power struggle in which the demarcation of every inch of pavement is seen as a gain or loss for each side, what is needed is for all participants in this debate to try to better understand one another's perspectives on this important issue of the allocation of public space. We should all be able to do that, since we all find ourselves using a variety of modes of transportation at different times. But if you are viewing the problem of traffic congestion only from behind the windshield of your own car, you might have trouble seeing how you yourself are contributing to the problem, or appreciating how the speed and noise of cars can affect others who are trying to cross the street or use the sidewalks. With a better understanding of other perspectives, we should be able to work together to design solutions that improve everyone's ability to use public spaces. After all, we share a common interest in making the city streets and sidewalks safer, more usable and pleasant places to spend our time.

Monday, October 12, 2015

Quartet

Tunisia, where the Arab Spring started, is also the first country to emerge from its revolution with a genuine commitment to democracy and the rule of law. This outcome may be attributable in large part to the work of the National Dialogue Quartet, a group composed of four organizations: the General Labor Union; the Tunisian Confederation of Industry, Trade and Handicrafts; the Tunisian Human Rights League; and the Tunisian Order of Lawyers. When Tunisia appeared in danger of falling into civil war, these organizations banded together and persuaded the Islamist and other parties to agree to a framework for negotiations that would lead to a more legitimate and pluralistic government.

The quartet's work illustrates two techniques favored by mediators: (1) acceptance by all of the feuding factions of a set of ground rules, and (2) encouragement of continued dialogue among all of the affected parties to the conflict.

Last week, the Quartet was awarded the Nobel Peace Prize.

Upon learning of the award, the president of the Tunisian Order of Lawyers, Mohamed Fadhel Mahfoudh, stated: "I think this is a message to the world, to all the countries, to all the people that are aiming for democracy and peace, that everything can be solved by dialogue. I also think that it this a message for political parties engaged in political conflicts that everything can be solved with dialogue. Everything can be solved in a peaceful climate. To engage with weapons does not lead anywhere."

New York Times

Friday, October 9, 2015

SCMA fall conference

The Southern California Mediation Association has announced the schedule for its annual fall conference in scenic Malibu, California on November 7, 2015. This year's theme is "Conflict Revolution: Mediators as Agents of Social Change."

The website describes the focus of the conference this way:
Today, in addition to the role they play helping to resolve legal disputes, mediators regularly serve as educators, executive coaches, facilitators, leadership trainers, ombudsmen, therapists, business consultants, and architects of dispute resolution programs at all levels. In today’s inter-connected world, there are numerous opportunities for mediators to support societal change through peaceful dialogue. 

This year's conference will include workshops on LGBT rights, race relations, urban projects, health care, and corporate governance, in addition to more nuts and bolts offerings on mediating family law, real estate, employment and other kinds of legal disputes. It promises to be a very exciting event.

Register here.

Wednesday, September 30, 2015

Days of Dialogue

I have had the opportunity recently to act as a facilitatator at a couple of the Days of Dialogue events taking place in Los Angeles this year. Taking a contentious topic--the future of policing--that has been debated around the nation in a confrontational fashion, this program demonstrates another way the issue can be addressed. The program brings together police officers, community leaders, students, and other interested and affected residents of the city to sit around small tables exchanging ideas and experiences related to how policing is and should be conducted.


The organizers of these dialogues have promoted them as a starting point for action and change. And it's certainly legitimate to view the process of listening and trying to understand different perspectives as a first step in helping to craft better policing practices. But the dialogue could also be viewed as an end in itself. The mere fact that people can engage in reflective communication about a divisive issue is what brings about change. By participating in these kinds of dialogues, we have an opportunity to gain some appreciation of the challenges facing police officers. And police officers have an opportunity to gain a better understanding of how they can be viewed sometimes as protectors and sometimes as threats to the community. Biases can be exposed; historical perspectives can be shared. Just by sitting around tables and talking with random people of different views, we may change more attitudes than can happen when opposing factions only shout at and confront each other.

(But see my post on a black lives matter protest I witnessed this summer, where I argued that carefully-staged confrontations can also be effective in changing attitudes. Protest marches may be needed sometimes to call attention to an issue, but constructive dialogue is also needed to help resolve conflict.)


Sunday, September 27, 2015

Blogger vs. WordPress

I recently succumbed to the need to upgrade my main law office website, jcmarkowitz.com, to make it look more professional and up-to-date. My law office site was one I created myself more than 10 years ago using the Blogger platform. About 6 years ago, I created this mediation site myself using Blogger. I still have a lot of affection for Blogger, which has a number of advantages going for it. Blogger is free. It is easy to set up and use. Editing posts, and even changing the layout and the template, is simple and intuitive. And the platform is more versatile than people give it credit for, allowing for some fairly sophisticated possibilities.

On the other hand, Google doesn't seem to have taken much interest in recent years in improving the Blogger platform, and, unless Google has some plans I don't know about, Blogger appears in danger of becoming a relic of the past. Most designers, and most owners of commercial websites, have long ago migrated to WordPress. It seemed like the obvious choice for my revamped website.

WordPress's capabilities seem limited only by the designer's imagination. Though it started as a blogging platform, WordPress now allows an enormous variety of content and layouts, while seamlessly integrating the blogging function anywhere the website owner wants to install it. On the other hand, I find that creating new blog posts in WordPress is more cumbersome than Blogger, and making other changes to the website is more complicated. It is much less "what you see is what you get." It is also less "do it yourself." I needed a professional website designer to create the WordPress site I wanted, and I will probably need help going forward in maintaining the site, unlike my Blogger sites, which I've been able to keep updated without any help.

I had to deal with a related dilemma in creating my new site. Should I integrate this mediation blog with my law office website? Or should I maintain this mediation blog as a separate, stand-alone site?

I lean toward the view that a blog and a commercial website are two different things. A blog is an educational and informational platform presenting the author's views on a relatively narrow topic. It can also be used as a diary or creative outlet for the author. A blog therefore should not be too blatantly promotional. A blog's content should be more article-like than advertisement-like. A commercial website, on the other hand, should function as a business's virtual address. It serves as a calling card and promotional tool for the business. It might need a lot of content to inform the public of all of the business's activities, but it doesn't necessarily need a creative or educational diary to perform its functions.

In the law firm world, I notice that while firms are encouraged to create blogs to show off their expertise and enhance their online visibility, not too many firms are very good at keeping up with producing good blogging content. That may be because blogging is a different task from the main website's task of describing the firm's capabilities, and because not all firms can find somebody in the office who likes doing it.

ailovebaking
Here is my solution to these personal dilemmas and conflicts. At least for the time being, I plan to maintain this "Conflict Resolution" site (mediate-la.com) as my personal platform for sharing ideas on the subject of conflict resolution in general and mediation in particular. For now, this site is going to remain on Blogger because Blogger is so easy to use, and still more of a "pure" blogging platform. Meanwhile my new WordPress site looks up-to-date and flashy. While that site contains occasional blog posts, some cross-posted from here, that will not be the focus of the law office site.

Sometimes to resolve a conflict, like whether you should have pie or ice cream for dessert, you don't have to choose one or the other. You can have both. The only thing you have to decide is whether you want your ice cream on top or on the side.


Thursday, September 17, 2015

Teamwork

My rabbi's Rosh Hashanah sermon this year concerned the important topic of healing the widening rifts in the Jewish community, which have broken out especially over the nuclear weapons deal with Iran. The problem he was talking about is not so much that there is disagreement about the advisability of this deal. Considering how troublesome and untrustworthy an adversary Iran has been, one would expect strong disagreements among supporters of Israel about how we should deal with that adversary.

Such disagreements wouldn't be a particularly new thing among members of the Jewish community. As the rabbi pointed out, ferocious conflicts among factions of the Jewish community have existed from the time Joseph fought with his brothers, and on and on through the ages. The resolution and the continuation of these conflicts have defined and often strengthened the Jewish people. Quoting from the scholar Yehudah Bauer, "quarrels and disputes are the engine that drives [our] culture forward, backward or sideways. That is its elixir of life." Or as the Rabbi said: "Add to the mix the fact that we Jews are by nature and nurture an edgy, argumentative, opinionated, critical, and self-critical lot, and the result is conflict."

The danger does not lie in these endless disagreements; it lies with elements on each side of the debate who question the motives of those with whom they disagree. It lies with those who resort to violence instead of debate. And it lies with those who seek to drive conflicting voices out of the community.

Senator Schumer and Congressman
 Nadler happen to have taken opposite
 positions on the Iran deal.
We don't have to agree all the time to preserve the unity of the community. We do have to treat those with whom we disagree as members of the same team, and recognize that all elements of this large, unruly Jewish community share common interests. Otherwise, we are in danger of losing the things that have defined and preserved the community in the first place.

Monday, September 14, 2015

Openings, part 3

In my last post on the topic of how we initiate conflict resolution, I talked about how lawyers frame disputes in a way that may leave out some of the most important concerns of the parties. But the blame for turning a multi-faceted conflict into a contest over legal issues does not lie solely with narrow-minded or selfish lawyers. The parties also bear some responsibility for viewing their dispute in that way.

Most new or potential clients walk into a lawyer's office looking for vindication. They want to talk about the merits right away. They want to know which side is right, and which side is at fault. Since most clients are pre-disposed to believe they are in the right, they are also hoping the legal system will provide that answer for them. Lawyers are pre-disposed to respond in a supportive way, but we usually qualify our answers to some extent, by making statements such as "based on what you are saying, it certainly looks as though you have some strong claims (or defenses)." The lawyer knows there is probably another side to the story, but what clients take away from such responses is the message that they will win.

On the one hand, lawyers have to be empathetic and encouraging, which is necessary not only as a first step toward conflict resolution, but also to show the client that you will be an effective advocate for the client's interests. On the other hand, lawyers need to give clients sound and dispassionate advice about the weaknesses of their position, as well as the costs of pursuing it.

We need to convey to clients that in most cases, no one is ever going to determine which side is right and which side is in the wrong. Most cases are resolved without getting definitive answers to those questions. We also need to make clear that the outcome of a lawsuit usually cannot be predicted with a high degree of certainty.

At the outset of a case, therefore, lawyers might need to steer the conversation away from a discussion about which side is right, and toward some other important considerations such as how much is at stake, what resources each side has to contest the matter, how strongly each side feels about their position, and what underlying problems might be causing the conflict. The answers to those question will often determine how protracted and difficult resolution of the dispute is going to be.

We ought to start off a representation by focusing more on how to bring the dispute to a satisfactory resolution, which in most cases is going to be by negotiated agreement, instead of trying to answer the hypothetical and often unanswerable question of how the case would be decided by a judge or jury.

Sunday, August 30, 2015

Straight Outta Compton

Who would have thought that the new movie, Straight Outta Compton, in addition to its great story and great music, would also contain some great lessons about negotiation? The main lesson being about the dangers of creating a partnership deal that is not fair to all of the participants. According to the movie's version of events, the leader of the group NWA, Eazy-E, and the manager Jerry Heller, presented the other members with a deal giving them a much smaller share of the profits than Eazy-E was taking. Followers of the school of aggressive negotiation can justify this hard bargain because it was originally Eazy-E's company and he put up the money to get the band's first record made, and also because the ethics of that school of negotiation support taking whatever you can get, and letting those on the other side of the table look out for themselves.

The results of driving such a hard bargain in this case were disastrous. The group's talented lyricist, Ice Cube, refused to sign and left the group. Eventually, the brilliant composer Dr. Dre also left the group. Both these talented musicians went on to have spectacular solo careers, while Eazy-E is shown losing almost everything. Experts on negotiation stress the importance of leaving something on the table, and making the deal fair to other parties, particularly when one has to work with those partners in the future. And particularly when those partners create so much of the value for the group. (For example in Michael Wheeler's book The Art of Negotiation, discussed in a previous post, the author provides many examples of aggressive negotiators blowing deals by demanding too much, or gaining deals that cost them in the long run.) Because Jerry Heller and Eazy-E failed to observe those rules, they ended up much worse off than if they had treated their partners fairly.

trailer
But just in case anyone thinks that this film about a bunch of tough guys only illustrates the value of "nice guy" negotiating, the movie also contains some examples showing that taking a "tough guy" approach can also be effective. At one point, Ice Cube is shown smashing up his record producer's office with a baseball bat to convey his displeasure at the size of his royalty payments. It's not a tactic I can recommend, but it sure seemed to make the guy a lot more pliable the next time they met. Dre's partner Suge Knight is also shown employing even more violent methods to make a deal, methods that lead to some short term success but long term failure. So there is also a place in negotiation for standing up and demanding what you are entitled to. To a large extent, that is what NWA stood for.

Highly recommended.

Thursday, August 27, 2015

Openings, part 2

When we meet someone for the first time, we immediately start forming impressions of them. It takes a lot to change that perception, even if they turn out to be quite different from the way we initially perceived them. Similarly with conflict. The way in which a controversy is framed does much to affect the way parties subsequently see the dispute.

Bombet
When a prospective client brings their problem to a lawyer, the lawyer is trained to sift through the client's story and pick out all of the potential legal claims. Much of the client's story is irrelevant to the lawyer, even though it may be important to the client. The lawyer then frames the story as an accusation that the other party has committed certain wrongs. What the case is "about" is then determining whether the opponent's conduct met the standards for assessing liability. 

There are a number of problems with this approach. First, the way in which the legal system defines the problem may not much resemble the problem that was originally bothering the parties. Instead, the legal system has created a new problem for the parties, by assigning them the task of obtaining a legal determination of the issues set forth in their lawsuit, rather that a full discussion of the conflict.

Second, since most cases even in the traditional adversarial system end without a full resolution of those legal issues, we are wasting a lot of resources preparing for an event (trial) that in most cases will not take place. And even in the cases that are disposed of by motion or trial, and thus obtain an adjudication of what the re-framed conflict is now about, the parties are often left unsatisfied with that resolution. And not just because the result may have gone against their side, but also because the case may have been decided based on an issue that is different from what was really troubling them.

The third problem is that the adversarial system encourages the parties to act in an antagonistic manner. The initial framing of the dispute creates new issues for the parties to contend over, and their conduct of the lawsuit or arbitration allows the parties to perpetrate fresh outrages on each other. It does not lead the parties to a different path of problem-solving and accommodation. Not right away, anyway. Before they get to that point, they are likely to inflame the dispute, and create new disputes. 

If we could get parties to frame a dispute in a more constructive way from the outset, that might lead them more quickly to more constructive methods of resolving the problem. In my prior post, I suggested that more creative use of demand letters might help create that constructive atmosphere. I think there is also a need for a more formal mechanism of initiating conflict resolution that does not require the parties to head down a destructive and wasteful path. Instead of assuming that the dispute is going to be resolved by an adjudications of the legal issues raised in the pleadings (which even in the traditional system, does not happen in most cases anyway), why not start off assuming that the dispute will be resolved by negotiated agreement, and assist the parties in that process?

It would be helpful to establish a more formal protocol for out-of-court dispute resolution, starting with a notice of dispute rather than a complaint. A complaint invites the defendant to deny the allegations, to file motions, and to raise defenses. A notice of dispute invites the other side to agree that the parties have a problem that needs to be solved. A complaint invites the other side to look for ways to thwart the progress of the action. A notice of dispute could suggest various methods of resolving the dispute, and invite the other side to suggest others.

The pleading stage of a lawsuit is usually followed by the discovery stage, a fresh opportunity for parties to battle over what should and should not be produced. Instead of launching into that battle, a notice of dispute could request an exchange of information and documents that would be helpful to resolving the dispute. It would encourage the parties to agree early in the process on what each side needs from the other.

I've been toying with this idea in my mind for years, thinking that it would be necessary to persuade the court system to change the rules and forms sufficiently to provide a mechanism for alternative forms of dispute resolution. Now that I think that's not likely to happen anytime soon, it's time for parties and lawyers to develop these protocols on their own.

Unless we believe that parties in every case need to engage in adversarial combat before they sit down and resolve the case consensually, just to get it out of their system, parties should understand the value of attempting diplomacy to resolve conflict before resorting to war. It's not that all cases must be resolved by negotiation. There is still a place for hard-fought contests over matters of principle. It's just that we don't need to start off assuming that ALL cases must be resolved by such adversarial means. 

Monday, July 27, 2015

Openings

In a prior post, I suggested that in the absence of a thorough re-vamping of the rules of civil procedure, parties and practitioners should try to invent new ways to resolve disputes outside the court system, How exactly would that work?

Let's start by considering how to open a case, both within and outside the court system. If you're having a problem with your neighbor/boss/business partner/stranger, etc., you can't simply ask the court to help you resolve that conflict. Instead you must file a complaint setting forth a cognizable legal claim. You must include all the elements of the claim. You must have damages or an entitlement to equitable relief. You must identify yourself as the victim and the other side as the transgressor. To get inside the door of the courthouse, you are required to act in an adversarial manner, and you must allege wrongdoing on the other party's part.

This is not always a bad way to initiate dispute resolution. A formal complaint does have the advantage of getting the other side's attention, and letting them know that you feel sufficiently aggrieved by their conduct to initiate formal legal action. But it also throws down the gauntlet. In that context, it's hard to resist the temptation to go further than is necessary. So to achieve maximum impact, the plaintiff often includes some causes of action that might be a stretch, and some allegations that verge on hyperbole. That is usually done to let the other side know just how severe the consequences  of their actions might be, but it also frequently provokes outrage, denials and counterclaims. In contested litigation, the pleading process, which in an ideal world would serve the useful purpose of finding out what matters are actually in dispute and what matters are agreed, is more likely to inflame passions on both sides, and drive the parties further from resolution.

For a lot of reasons, some historical, some budgetary, and some moral or philosophical, the courts are not likely to open their doors to disputes that do not meet traditional legal standards. Courts are not likely to turn themselves into dispute resolution centers available to manage any sort of conflict, regardless of whether or not it meets those traditional tests of legal sufficiency. But a lot of conflicts that probably don't meet those requirements seem to find their way into court anyway, simply because there is nowhere else to take them that can provide the same level of gravitas. Which means that the courts spend a lot of time "weeding out" cases that "don't belong" in court, even though they may involve real conflicts that are important to the parties involved. And even for the conflicts that do happen to meet the legal tests of at least successfully alleging a breach of contract, tort, or violation of some other legal interest, people might be surprised to learn that it's still not the courts' primary function to resolve those conflicts. Instead it's the courts' job to determine whether one or both sides is able to prove the alleged violations. In many cases, doing that job might have the effect of resolving the conflict, but it's still not the same thing.

So let's say you want to try to resolve a conflict--whether or not it meets traditional tests of legal sufficiency--outside of court. What you would probably do, outside the court system, to initiate a dispute resolution process is serve a demand letter. The problem with most demand letters--maybe because they're usually drafted by lawyers--is that they often find themselves infected with the same values and methods associated with the adversary system, even though they purport to present a means of resolving disputes out of court.

What that means is that most demand letters are going to contain the same language of legal claims, violations and damages that is contained in complaints. Most are going to threaten the party served with severe legal consequences in the event they do not give in to the party's demands. Even though most demand letters actually invite a negotiated resolution of a dispute, they usually read more as an ultimatum, and many of them seem to leave little room for negotiation. As a result, many demand letters provoke the same kind of angry denials and counter-charges that complaints provoke. Many become the opening salvos in a war of words that will probably end up in court, and only much later return to the negotiating table after a lot of costs and pain have been inflicted by both sides.

Recently I had to respond to a demand letter charging a client with various trademark and false advertising violations. I responded by suggesting that the client was within its rights in some areas but was willing to make certain other changes to its advertising materials in order to resolve the dispute. What I got in reply was a new letter, speaking in the same terms of threats and ultimatums, but demanding only that we do exactly what we had offered to do in response to the original letter! We made the changes, I wrote back thanking the trademark holder's attorney for his cooperation in successfully resolving the dispute for the benefit of both sides, and that was the end of the matter. The point being that lawyers have a hard time getting ourselves out of the mindset of claims and threats and sanctions, and into a different mindset of cooperative dispute resolution. Another point being that demand letters, even though they purport to seek an out of court resolution of a dispute, still operate in the shadow of the court system.

What I'm suggesting is that we might be squandering an opportunity. We ought to try being more creative in framing demand letters in a way that suggests a positive solution to a problem. That usually requires some acknowledgement of the other side's interests, and that can be done without appearing weak.

We should recognize that to frame a dispute only as a legal claim might be an unduly narrow way of looking at the problem. Discussion of the parties' other concerns and interests opens up other ways of potentially resolving the dispute.

We might also consider asking the opposing party to agree that the parties have a conflict, instead of inviting the opposing party to disagree with our characterization of the alleged violation. That would start the parties down a path of agreement, even if the only common ground that can be found at the outset is to the proposition that the parties have a dispute that needs resolving.

Another positive way of framing a demand letter is to invite the other side to suggest a means of resolving the conflict, instead of just demanding that they agree to our terms. That way they are invested from the outset with part of the responsibility for solving the problem.

Granted there are some situations where the stakes are such that you must demand that the other side agree to your terms or face the consequences, but you have to recognize when you take that approach, that if they don't back down immediately, you're just headed for litigation. For a large number of contested disputes it might be more productive to suggest right up front that you are interested in sitting down and resolving the dispute in a way that may satisfy both side's concerns and interests. The vast majority of contested disputes are going to end up in a negotiated resolution eventually anyway. It only makes sense that they start down that path from the outset.

Tuesday, July 14, 2015

Iran

The ink is barely dry on the breakthrough agreement reached this week with Iran, requiring that country to eliminate most of its nuclear weapons capacity in exchange for the lifting of economic sanctions, and many critics are already out in full force decrying the agreement. It seems remarkable that they could be so sure of their opposition without having had much time to read or study the text, or consider carefully whether this deal is better than the alternative of continued conflict. (In previous posts--here and here--on this topic, I outlined the way in which I think any negotiated agreement should be evaluated, not by comparing it to the outcome each side would have preferred, but instead by comparing it to the alternative of no agreement.)

But maybe it's not so remarkable that the critics have not even bothered to make what I think is the only relevant comparison. Maybe it would be a futile effort to try to walk them through the text, because their opposition is not fundamentally based on the terms that have been negotiated. They would probably object to any deal that Iran would agree to, because any deal that lifts sanctions will make Iran a more powerful, and therefore dangerous influence in the region. Any deal that allows Iran any weapons development capability at all can be viewed as an attempt to appease a dictatorial regime. Any deal that puts the world on better terms with Iran leads the world into a false sense of security.

It should be acknowledged that the critics have legitimate concerns, and that their arguments cannot be refuted by logic or reason. That is not to say that any of these arguments are right. I happen to think they are all wrong, or at least they are outweighed by the tangible benefits of making peace, and that the alternative of failing to reach agreement is far more dangerous. Still I don't think it's possible to persuade the implacable foes of Iran--or President Obama--of that. They can still respond with cries of appeasement, or with fears of the dangers posed by the Islamic Republic. They can't be proven wrong except by time. I have dealt with parties in conflict enough to know that they usually can't be persuaded by a mathematical demonstration of the benefits of the deal on the table vs. the costs and uncertainties of continued conflict. Instead they must in some other way reach a point where they feel that they can let go of the conflict and accept the deal.

Signing on to a deal with a partner that has attacked or betrayed you in the past always requires a leap of faith, no matter how airtight are the verification procedures for the deal's strictures. Peace always represents a leap of faith. And the arguments in favor of maintaining conflict, and distrusting one's adversaries are usually powerful. That must be why humanity so often resorts to war at the drop of a hat, while establishing peace is a fraught and difficult process.


Thursday, July 9, 2015

Time

Here is Secretary of State John Kerry reporting on the progress of negotiations with Iran. His statement should sound familiar to a lot of mediators: on continuing negotiations so long as progress is being made, on the importance of building an agreement that will last, on the need to avoid being rushed or constrained by arbitrary deadlines, and at the same time on recognizing that difficult decisions need to be made soon if agreement is to be reached.

Tuesday, June 30, 2015

Rule 1

The reformers who drafted the Federal Rules of Civil Procedure in the 1930's thought that if we could only get rid of the complexities of ancient pleading practices, and liberalize discovery, cases could be fairly adjudicated on their merits instead of being won or lost on technicalities. Their intent can be gleaned from Rule 1, which provides that the rules "should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding."

To a large extent, the simplified rules we have been living with for so many years must be judged a success, simply because they have stood the test of time. On the other hand, hardly anyone would say that Rule 1 accurately describes the way civil cases are currently processed. We have encrusted the original simple pamphlet enacted in 1938 with so much commentary and interpretation that the rules are on their way to becoming as arcane as the system they were designed to replace. We no longer administer the rules to remove roadblocks to just, speedy and inexpensive determinations of every action and proceeding. Instead we have created so many new roadblocks--mainly the burden of expensive discovery, but also new opportunities for motions--that the whole premise of the federal rules project must be called in question.

The rules ought to be re-written and streamlined again from top to bottom, which would be an endeavor comparable in scope to the original project. Such a revamping should recognize that the vast majority of cases are never going to be adjudicated on the merits. Since most cases are settled, the rules should better incorporate alternative forms of dispute resolution. A simplified set of rules could also eliminate steps that are unnecessary for the vast majority of cases that not going to trial, and could also encourage parties to move toward resolution rather than engaging in wasteful adversarial behavior. At the same time, simplifying the rules could make it possible for more cases to go to trial, because the cost of litigation would present less of an obstacle. (My own radical proposal for an overhaul of the federal rules can be found here.)

One commendable effort to reform the rules has been undertaken by the American College of Trial Lawyers and the Institute for the Advancement of the American Legal System. The task force has compiled a set of principles that still exalt the ideals of Rule 1, and that seek to create more flexibility and proportionality in the civil justice system to allow cases to be resolved in more appropriate ways. Some of these ideas are being incrementally adopted in amendments to the Federal Rules.

I'm not sure I will live long enough, however, to see the kind of wholesale reform that I think is needed. There is too much resistance to change in the fearful legal profession. And there is too much partisanship and paralysis in the political system to allow that kind of change. That means that the only practical way now to create the kind of streamlined dispute resolution process that would live up to the ideals of Rule 1 is to do it at least partially outside the purview of the court system. More on how to do that in subsequent posts.

Monday, June 22, 2015

What works

A mediator I know was explaining his system of taking and cataloging notes from his mediation sessions, to help him learn what was working and not working. He writes down phrases he has used that seem particularly effective, and keeps them on note cards. And he sometimes thumbs through his stack of cards during subsequent mediations to see if he can find something useful.

According to this mediator, impasse does not exist. Instead, when parties get stuck, he prefers to tell them only that the dispute probably will not settle that day, preserving the hope that it will settle at a later time when the parties are ready.

I have also found that the concept of impasse is not particularly helpful. It's too simplistic, for one thing, as there are a wide variety of situations in which negotiations can get bogged down. For example, the parties may need more information before they will move off their positions. Or one or both sides may be refusing to budge for tactical reasons. Or the appropriate decision-maker needs to be consulted before additional concessions can be made. If we use the term "impasse" to describe all these different scenarios, the term doesn't have much meaning. Moreover, the term "impasse" doesn't provide any guidance for moving the negotiations forward. It suggests instead that the process has reached a dead end.

If you have a stack of note cards or some other tools available to show the parties some ways to keep the process moving, you have no reason to suggest to them that they have reached an impasse. Instead, just pull out another card.


Sunday, June 14, 2015

Trade Negotiations

Some thoughts based on my experience with negotiation and mediation in general that may be relevant to the ongoing Congressional fight over passage of fast track authority for the Trans-Pacific Partnership (TPP) trade agreement (which suffered a major setback on Friday): First, there are great virtues in preserving the secrecy of negotiations until the deal is complete. Critics of the TPP have thrown suspicion onto the deal because many of its terms remain shrouded in secrecy. But confidentiality is something we fight to preserve in mediation and other forms of negotiated conflict resolution. One reason is to allow negotiators freedom to make aggressive offers and demands without fear of being second-guessed by their principals until the deal is completed. Another is to try avoid unnecessarily angering those who have to approve the deal before they fully understand the trade-offs involved in the final agreement.

In addition to maintaining confidentiality, it is helpful to the negotiating process for negotiators to remain open-minded. Even if the other side makes what is considered an unacceptable proposal, that should not be a reason to scuttle the negotiation. Instead, it is more constructive to present a counter-proposal, or to present something the other side may view as equally unacceptable as a condition of acceptance of their outrageous proposal.  I always caution parties to settlement negotiations to try not to react too negatively to the other side's insulting offers or demands. Instead they should be treated as invitations to make counter-proposals. I also caution parties not to rush into an evaluation of the merits of the deal. Wait until the negotiators have made the best deal they think they can get before comparing that potential agreement to the alternative of no agreement.

Particularly with something as complicated as a multi-nation trade negotiation covering a wide range of issues, it is important to step back and look at the bigger picture rather than to pick apart provisions that appear harmful to one side. In general, when barriers to trade are reduced, industries that have trouble competing against foreign suppliers are going to face even greater challenges, while industries that are having success in selling abroad are going to have even greater success. The economy may benefit from lower prices for goods made abroad, as well as from greater revenues for increasing exports. The net positive and negative effects  have to be weighed against each other before the deal as a whole can be deemed harmful. This is why every modern president seeks and usually obtains fast-track authority for trade agreements: so Congress can evaluate the package as a whole, rather than pick apart the pieces and risk its destruction.

One final consideration in evaluating almost any kind of negotiated agreement: Let's not overlook the value of peace itself. Parties often focus on the merits of the issue being negotiated, and fail to give sufficient consideration to the cost of failing to resolve the issue. They fail to put a high enough price on the cost of continued conflict. These costs and values are particularly dramatic in the context of international trade agreements. Trade can create greater understanding among the peoples of nations engaged in trade, as well as economic benefits. The alternative to free trade is suspicion, distrust, and even war. The first thing that countries suspend when they resort to war is trade. Thus, trade can be seen as one of the most effective deterrents to war, because when the economies of various countries benefit from trade, they are less likely to resort to war.

In the current round of negotiations over this trade deal, we see critics of the deal failing to consider all of the foregoing. They are suspicious rather than protective of the secrecy of the negotiations. They are unduly focused on the merits of particular parts of the deal, and unable to evaluate it in its entirety. And they fail to put a sufficient value on the virtues of making an agreement per se. I'm not arguing for or against the TPP. What I am saying is that there are good reasons for keeping negotiations secret; there are good reasons for the president to seek fast track authority to allow a vote up or down of the agreement as a whole; and there are a great many issues that must be considered in evaluating the benefits and costs of such a deal, including the value of resolving disputes by agreement instead of by more destructive means.

Friday, May 29, 2015

John Nash

Last week we heard the news of the strangely untimely death of mathematician John Nash, whose life story was made famous in the book and film "A Beautiful Mind." The Nash equilibrium is a concept sometimes touched upon in teaching negotiation theory, and it's not difficult to understand why we should try to understand it, even if we might have trouble doing the math. What Nash and others taught us that is especially relevant to conflict resolution is that parties involved in conflict will often rationally both choose a sub-optimal outcome for themselves. Therefore they will benefit from learning how to be more cooperative with their adversary. That means Nash's mathematical theory helps prove the usefulness of mediators or some other mechanism to encourage greater cooperation.

But Nash's own life story, and even his tragic death, prove something else also, which is that people are not governed solely by rational calculations, whether selfish or cooperative. Nash's own mind was taken over by irrational impulses for many years, due to his struggles with mental illness, and he only regained its rational functions late in life. His death in a freakish taxi accident, also could not be predicted by any mathematical equation or other rational process. Those hoping that a rational formula can be devised to resolve conflict are going to be disappointed. We also have to take account of irrational impulses, feelings and emotions, and just plain bad luck.

Tuesday, May 12, 2015

The Art of Negotiation

A long time ago, when I was fairly new at law practice, I represented a plaintiff in a contentious sexual harassment case against a large company. After a series of pre-trial battles, the defendant's counsel opened the door to the possibility of settlement, throwing out an insultingly low-ball number. I wasn't sure how to respond.

At that point in my career, I thought I knew how to litigate, but nobody had ever taught me how to negotiate. I had never received any training in negotiation strategy in law school, and very little at my law firm. The subject simply wasn't taught at the time. So I honestly didn't know the best number to come back with in order to lead the process to a good result for my client. For some reason I confessed my weakness to the other side, saying something that indicated I wasn't sure what to do next. My adversary's response was to ask me whether there was anyone else at my firm who was more skilled at negotiation who could get back to him with a response to his offer.

Suddenly I understood two things. First, there was nobody else at my firm who could do this better than I could. This was my case, and I knew it better than anyone. Second, I realized from defense counsel's somewhat desperate request for somebody to negotiate with, that the other side was extremely anxious to make a deal. Their aggressive litigation strategy had failed to make us go away, and now they were looking at the high costs and high risks of proceeding to trial. I knew they would pay more than they were offering, even though I wasn't sure how much I could talk them up.

Once I figured out how to process what the other side was telling me, I had the confidence to handle the negotiations, And I was able to engage in the kind of give-and-take necessary to get the deal done. After that, I never again thought of myself as someone who didn't know how to negotiate.

This story came back to me as I was reading a book called The Art of Negotiation, by Michael Wheeler, a professor at Harvard Business School, who is also part of Harvard's well-known Program on Negotiation. I picked up the book after I had a chance to hear Wheeler talk at UCLA about his theories of negotiation. The book is filled with entertaining stories about buying houses and cars, and closing business deals. Wheeler teaches classes on negotiation, so he obviously believes students can learn about negotiation in a classroom. But he also understands that negotiation is more of an art than a science. His theme is about the importance of improvisation in negotiation: responding to the cues and information given by the other side It's about the attention, presence of mind, and creativity needed to succeed in negotiation.

In other words, the secrets of negotiation lie not so much in knowing how to parry and thrust against the other side's maneuvers to score the most points. In fact, Wheeler repeatedly emphasizes that pushing for the best possible deal is not necessarily to a negotiator's advantage. Sometimes an overly aggressive approach will cause the other side to walk away, and sometimes getting more than your fair share will end up costing you in the end.

Instead, being a good negotiator is more about being in tune with the needs and desires of the other side, the way that good jazz musicians or theatrical improvisers respond to what they hear from their counterparts. It's about having a plan and then throwing that plan out the window as soon as you encounter the unpredictable response of the other side. And it's about learning how to treat our adversary as a partner in a project that requires more collaboration than competition.



Tuesday, May 5, 2015

Doug Noll show

I was interviewed recently by California mediator Doug Noll, on topics ranging from the business of mediation, to the decline in joint sessions, mediation confidentiality, and mediator certification. I also had a chance to trot out some of my pet theories about how to reform our justice system in general, and how mediation training is helpful in every walk of life, not just in training to become a mediator.

The audio broadcast can be found here.

Sunday, April 19, 2015

Applied decision theory

Richard Birke, a law professor at Willamette University, gave a talk at the ABA Dispute Resolution conference expressing frustration with the term "Alternative Dispute Resolution." The term is too limiting to describe the many ways that the skills of negotiation, mediation, and other forms of conflict resolution can be applied in practice. It's also inaccurate, since "alternative" means of resolving disputes probably comprise the vast majority of resolutions.

In the status hierarchy of law schools, the field of ADR has always been treated as something of a stepchild, not considered as prestigious as traditional subjects like Constitutional Law or Contracts. It's not clear that the study of conflict resolution even belongs in law school, since law comprises only a small part of the syllabus. Yet Birke is finding his colleagues in more traditional legal subjects, especially the more esoteric ones like Labor Law, wondering if any of their students will ever use the information they are imparting. Meanwhile teachers of conflict resolution, which embraces concepts from economics, psychology, and a myriad of other disciplines, and not much "law" at all, can see immediately the usefulness of the skills they are teaching. We all benefit from learning how to negotiate and how to solve problems.

Not only are the skills being taught in conflict resolution studies useful to pretty much anyone who has to interact with other human beings, those skills find practical application in a number of new career paths for attorneys (and also non-attorneys). While graduates of mediation training often have a hard time finding work as traditional "mediators," they can apply their skills to solve problems for clients in ways that traditional lawyers may be ill-equipped to handle. ADR specialists can help clients re-structure their businesses, deal with succession issues, avoid litigation, assist with contract negotiations, or any number of other conflict management and resolution scenarios.

Birke thinks we need to come up with a new name for this field, one that better expresses the wider array of applications of its teachings. His suggestion is "Applied Decision Theory," a name that might introduce its own set of confusions; but at least avoids some of the negative connotations of "Alternative Dispute Resolution." He recognizes the challenges of describing the field of study encompassed by this new term. And he also acknowledged the large problem of how to market this specialty, both to prospective students, and to potential clients who are accustomed to thinking that if they have a problem with somebody, they should probably call a lawyer to solve it, expecting that lawyer to employ an adversarial approach. It will probably take a while before it occurs to people experiencing injury or dealing with other forms of conflict, that they should call their local applied decision theorist.

Saturday, April 18, 2015

Re-living trauma

love to know
Einstein supposedly said that the definition of insanity is doing the same thing over and over again expecting different results. I learned this week that even though research has shown for about 20 years that grief counseling does not work--in fact it increases the stress levels of those being counseled--we  haven't given up on the practice. In a lecture at the ABA Dispute Resolution Conference, Professor John Medina explained how grief counseling as traditionally practiced, which involves asking the traumatized victims to recount their experiences shortly after the traumatizing event, can cause these victims to enter into a vicious cycle of rumination on the event and their part in it that does not help them recover. In fact, it can leave affected persons even more impaired.

Jim Pennebaker, a professor at the University of Texas developed a more sophisticated variant of grief counseling, in which victims are asked to wait three weeks, and then engage in writing down a description of the event on successive days. The waiting period is designed to take advantage of the natural process by which unpleasant memories can fade. And in the process of writing a story about the traumatic event, the critical instruction, which apparently makes all the difference, is to view the event as if from the disinterested eye of a neutral observer or cameraman. After doing that, stress levels and other harmful physical and mental effects from the trauma, pretty consistently go down, often close to baseline levels.

This research seems to have obvious implications for conflict resolution, though these implications have apparently never been studied or proven. We know that the traditional litigation process, and even mediation the way it is often practiced, causes participants to experience anew the negative effects of the original perceived injury, and even gives them the opportunity to receive and inflict new injuries on opposing parties. The grief counseling studies suggest that this kind of repetition of trauma is detrimental to reducing stress and other emotions that have been stirred up by conflict, emotions that need to be addressed before conflict can be resolved. We also know that one goal of mediation is to help parties view conflict more objectively, and even to learn to understand the opposing party's point of view to some extent. All of that suggests that simply asking parties to "vent" their anger or other feelings about the opposing party may be harmful to the process of resolving conflict. On the other hand, helping parties talk about the underlying events in a more objective manner may help them arrive at a more rational state conducive to resolving the dispute.

Wouldn't it be nice if someone would do the research that might help to prove what works and what doesn't, so that eventually we stop doing, over and over, the things that are unhelpful?

Measuring ADR effectiveness

The state of Maryland commissioned a cutting edge research project that has succeeded in measuring the effectiveness of the state's court-connected ADR program in limited jurisdiction courts. This study attempted to do much more than track settlement rates achieved through the program; the researchers also assessed the satisfaction of participants with the system, comparing the results with control groups of litigants who did not utilize the program. They found that participants who achieved settlement through ADR processes were most satisfied with court than those whose cases were adjudicated by the court. Even more tangibly, those cases were more than 20% less likely to return to court for enforcement or other follow-up action, a finding of considerable cheer to court administrators attempting to secure ADR funding from the legislature.

The study also attempted to measure more precisely what features of the ADR process participants found most beneficial, such as whether issues were addressed by the court, or whether participants took responsibility for their actions. These questions found significant gains through the use of ADR.

Drilling down even more deeply, this study even attempted to measure what techniques used by court mediators were most effective. This effort required the researchers to monitor mediations, code various types of mediator interventions, and correlate those with participant responses. They could thereby determine whether techniques such as eliciting information from participants, or reflecting what participants told the mediators, or making suggestions to the parties, were more successful in achieving agreements as well as satisfaction by the participants.

This research found, for example, that eliciting solutions from the parties had a positive impact on reaching agreement in mediation. On the other hand, using more evaluative or directive techniques had some negative long-term impacts. And participants reported feeling less satisfied with caucus-style mediation than those who relied more on joint sessions.

Not all of these results have been published yet, but more information about this study can by found at www.marylandADRresearch.org


Monday, April 6, 2015

Woman in Gold

About halfway through the new movie Woman in Gold--which tells the story of Maria Altmann's lengthy legal battle to recover the famous Klimt painting of her aunt from the Austrian government--the parties try to resolve the dispute by mediation. At the mediation, Altmann (played by Helen Mirren) offers to allow the Austrians to keep the painting if they will only acknowledge that it was stolen property (looted from her family by the Nazis), and pay some amount in compensation. It was a framework for negotiations that most mediators would jump at, because if the framework were accepted by the other side, the only thing left to negotiate would have been the amount of compensation. But the Austrian representative refuses even to consider admitting that the painting was stolen, and Maria and her young attorney walk out of the negotiation.

At that point, Altmann's side felt fairly confident of their legal position. Their main risk was that Maria would not live long enough to see the legal battle through. So they agreed to arbitration in Austria. After the arbitration was decided in their favor, the same Austrian representative attempted to re-instate a version of the deal discussed at the mediation. Too late, says Maria. She now feels so abused by the Austrian government's resistance to her claim, and its repeated refusals to negotiate, that she is determined that the painting must travel to America, as she was forced to do herself many years earlier.

A nice example of how opportunities to resolve conflict at mediation are often squandered, and how litigation opens old wounds and makes problems more difficult to resolve in a consensual manner. And how winners are not usually magnanimous in victory. Rightly so, it would seem in this case. So what was the value of mediation in a do-or-die case like this one? At the very least it reminded the victors that they had made a reasonable settlement offer that the other side should have accepted. That experience justified Altmann's refusal to make any concessions to her adversary after her victory.




Friday, April 3, 2015

Three options

President Obama's statement announcing the framework agreement reached with Iran this week outlined the three options the world has for preventing Iran from acquiring nuclear weapons.
First, we can reach a robust and verifiable deal -- like this one -- and peacefully prevent Iran from obtaining a nuclear weapon.
The second option is we can bomb Iran’s nuclear facilities, thereby starting another war in the Middle East, and setting back Iran’s program by a few years -- in other words, setting it back by a fraction of the time that this deal will set it back.  Meanwhile we’d ensure that Iran would race ahead to try and build a bomb.
Third, we could pull out of negotiations, try to get other countries to go along and continue sanctions that are currently in place or add additional ones, and hope for the best -- knowing that every time we have done so, Iran has not capitulated but instead has advanced its program, and that in very short order, the breakout timeline would be eliminated and a nuclear arms race in the region could be triggered because of that uncertainty.  In other words, the third option leads us very quickly back to a decision about whether or not to take military action, because we’d have no idea what was going on inside of Iran. 
The three options are familiar to many people embroiled in conflict, and basically boil down to (1) accepting an imperfect agreement, (2) escalating the conflict, or (3) maintaining the status quo. As the president points out, the third option may be unstable, and is likely to lead back to a decision to escalate the conflict. Thus, most of the time, efforts to resolve conflict devolve to only two options: deal or no deal, war or peace, acceptance or rejection.

I wrote about this problem in a prior post, but it bears repeating: Those who are opposed to the deal on the table only cloud the issue when they compare it to some hypothetical perfect deal. To be honest, they should acknowledge that the only real alternatives to the deal are escalation of the conflict or maintenance of an uneasy status quo.

That doesn't mean parties should always take the deal. But they should understand that rejecting the deal means that they are choosing to perpetuate the conflict, rather than resolving it.

Tuesday, March 24, 2015

Thirteen Days in September

Speaking of peace in the Middle East, I've been reading the new book about the Camp David negotiations by Lawrence Wright. Surprisingly, reading this account made me feel a little more hopeful about the prospects for peace between Israelis and Palestinians, the great unfinished business of the Camp David accords, even though the conventional wisdom in light of Prime Minister Netanyahu's recent re-election is that resolution of the issues in the territories is now a long ways off. The reasons for hope lie in recollecting that if anything, Menachem Begin was an even more belligerent character than Netanyahu is today. Begin was reluctant to concede on any issues, whether the status of Jerusalem, or Jewish settlements in Sinai, or withdrawal from the occupied West Bank. Yet even this most difficult Israeli leader, a former terrorist himself, was finally able to recognize the benefits of giving enough ground to make peace with Egypt. And Sadat, of course, eventually gave his life for this cause. It shows that under the right circumstances, even the most intransigent of parties--perhaps only the most intransigent of parties--can find the courage to make peace. While there are good reasons to be pessimistic these days about the prospects for resolving the conflict between Israelis and Palestinians, those who think it would be impossible for Netanyahu and Abbas to do something similar to what Begin and Sadat accomplished in 1978 may be speaking prematurely.

I was reading the book, not so much as a mirror to contemporary affairs but rather as a case study of a successful mediation. Even though the Camp David negotiations were so large in scale as to involve three national governments, 13 difficult days, a large number of issues, a weighty sense of history, and a great variety of personalities within each of the three camps, these negotiations went through stages that would be familiar to many mediators of much simpler disputes. The process started with the probably necessary but ultimately unsuccessful joint session. After reaching impasse, Carter presented a mediator's proposal, followed by threats to walk out by each side in turn. The parties had to be persuaded several times to return to the table, until they finally reached exhaustion and breakthrough at the end. The framework documents were not signed until the end of a grueling day and night of hard bargaining, at a point where the parties could not effectively concentrate on the details. After Camp David, the talks almost derailed again during the documentation of the final peace treaty.

Both the Israelis and the Egyptians initially approached these negotiations as do many parties entering into mediation: they failed to recognize any weaknesses in their own positions, or the need to give ground. Neither side was fully committed to the negotiation process; both were ready to walk away if agreement could not be quickly reached on something close to their terms. Both viewed the mediator's (Carter's) role as someone who would somehow make the other side give in to their demands. As Wright explains: "Sadat had assured his delegation that the summit was a simple affair. He would present the Egyptian proposal; the Israelis would spurn it; then Carter would step in to pressure Begin to accept the Egyptian offer." (p. 52)

The Israeli side made a similar mistake, focusing too closely on attacking the Egyptians' initial proposals, without realizing that Sadat had a fallback position if he could only get some of the hardline elements in his own delegation to go along. Carter was able to break this impasse in part by revealing to the Israelis, perhaps in breach of Sadat's expectation of confidentiality, that the Egyptians were prepared to make further concessions.  (p. 115)

At that point, before agreement had been reached on many points, the Americans took on a role that many mediators are reluctant to assume even after parties have reached agreement: the responsibility of drafting the settlement agreement. That way, instead of reacting to and rejecting each other's proposals, both sides would wait for the American single draft and propose modifications. Probably this technique was the only way to move these negotiations forward. Perhaps it only worked because the mediator in this situation was itself a powerful, interested player, with the ability to reward or punish either one of the parties.

Even after the American draft had gone through multiple revisions, however, it still took an enormous amount of work to get both sides finally to accept the reality of reaching agreement. It took repeated reminders of the enormous cost of failure, and the great benefits of success. And even that was not enough. In the end, it took leaps of faith on both sides to embrace the cause of peace.

Mediation, in its ideal form, is supposed to foster trust and understanding between the parties in conflict, with the mediator acting only as a facilitator, not as an arbitrator imposing solutions on the parties. Wright shows that at Camp David, this did not happen. If anything, Sadat and Begin became more hostile and distrustful of each other as they were forced to spend more time confined in this remote location. Carter was also compelled to do much more than act as a facilitator, using all of the power at his disposal as President of the United States to compel the parties to reach agreement. Camp David can be faulted for failing to achieve comprehensive peace. On the other hand, what this flawed process did achieve--peace between Egypt and Israel--has proved lasting and remarkable.

Saturday, March 21, 2015

Mandatory mediation

At the Orange County Mediation Conference yesterday, one of the lunchtime speakers, Judge Nakamura, who is chair of the ADR committee of the Orange County Superior Court, mentioned that the court's existing mediation program has been poorly utilized. He seemed puzzled by this problem, since the panel of experienced court-connected mediators has a high success rate in resolving cases. And since these mediators agreed to charge only $150/hour for court-referred cases, their services are a relative bargain as well.

Judge Nakamura's proposed solution is a pilot program in Orange County for mandatory mediation of civil cases. He believes this would take legislation to implement, and he urged those attending to contact their representatives in Sacramento to promote this idea. Most users of the California court system are aware of the drastic cutbacks in court funding that have contributed to delays and slower service in court. Something should be done to try to alleviate these problems. As the judge mentioned, if the court can require parties to meet and confer before filing demurrers and other motions, why not require some form of negotiation or dispute resolution procedure to attempt to resolve the entire case?

Cheers to Therese Gray, and other members of her committee, for another informative and successful conference, where we also heard Jack Goetz and Barbara Brown talk about SCMA's mediator certification initiative, and Woody Mosten deliver a thought-provoking speech on the need for informed consent in mediation.

Friday, March 20, 2015

Patent litigation

At South by Southwest this week I attended a program on patent reform featuring representatives from both sides in the "patent troll" debate. Though there was disagreement on the nature and extent of the problem, most of the panelists seemed receptive to proposed solutions such as making it harder to get patents issued, imposing stricter pleading requirements, regulating demand letter practices, or allowing fee-shifting to discourage meritless litigation.

I wondered, however, whether increasing the size of the hurdles on the litigation track might in some cases only give parties new issues to litigate over. If the cost of litigation is what gives patent "trolls" leverage to demand settlements, then the solution might instead lie in reducing the cost of litigation. Maybe by streamlining procedures, restricting discovery, reducing motion practice, and limiting opportunities for other litigation activities that drive up costs, we could reduce the leverage of those who demand payment to avoid the high cost of litigation.

TechDirt
One of the panelists worked for a substantial tech company that has spent a lot defending itself against so-called "trolls." Even though he complained about the high cost of litigation, he seemed to take pride in his company's willingness to take a stand in these cases. I asked why, if we were interested in reducing the cost of litigation, would we want to create new issues to argue about in lawsuits. Instead perhaps we should consider taking some steps that would actually make litigation less expensive. Several members of the panel dismissed the idea. arguing that discovery, motions, and other litigation tools are necessary to smoke out and fight meritless lawsuits.

To my mind that suggests that those who are complaining about the size of the hole we have dug ourselves into are also involved in digging that hole deeper.