Saturday, December 31, 2016

Family business disputes

Problems that arise in running a family business sometimes manifest themselves as legal claims. That seems obvious when the company gets sued by an employee or vendor or customer, but can also occur when the other owners choose to invoke the courts when they suspect another family member of financial improprieties or mismanagement. Anger at the alleged offender can then fuel the fires of litigation, turning the conflict into a costly experience that can not only destroy the business, but can also destroy the family. And litigation may never resolve the underlying causes of the conflict, which could stem from sibling rivalry, parental favoritism, or some form of abuse. Those underlying causes of conflict can't always be resolved, but they should at least be identified, so that the parties understand that they either need to deal with them, or perhaps dissolve or re-structure their business relationships.

The importance of identifying underlying causes of conflicts can perhaps best be appreciated in situations where problems arising in a family business don't naturally appear as a "cause of action." For example, one partner is not seen as pulling their weight. Or the owners simply have different strategies for running the business. If the parties can't construe these problems as breaches of contract or torts, they are precluded from resorting to the legal system to resolve them, and that can be a blessing. Family businesses usually deal with these kinds of problems by informal means, or they allow them to fester.

That's when business owners should look for attorneys who can help them negotiate a buy-out of the interests of a disgruntled partner, or reassign the owners' roles in the company. Mediation may also be invoked to help families work through the underlying causes of their conflicts. Family businesses should also consider using informal, negotiated processes for resolving problems that seem to raise legal claims. Why treat a conflict raising legal claims differently from a conflict that only creates problems for the business? Both may be driven by the same sorts of personal issues, and confronting those issues may be necessary to solve both kinds of cases. Litigation may only create new problems for the business without touching any of the underlying grievances, allowing them to reappear later in another context. That would suggest that families should resist the urge to "make a federal case" out of every claim arising from a partner's alleged dereliction of duty, but instead to try to understood the root causes of those actions. The challenge is to overcome a natural reluctance to confront difficult underlying issues, even when those issues may be poisoning the parties' relationships or harming the successful operation of the business.

Friday, November 25, 2016

Lost in translation

How do we know whether those with whom we are dealing have hostile intentions? How do we establish communication with them? How do we develop trust? The new science fiction movie Arrival addresses these common problems in conflict resolution.

Confronted by forces that appear new and dangerous, our human instincts urge us to fight or flight. Those instincts may also lead us to interpret ambiguous gestures in a threatening way. We face these challenges even when we are dealing with people we know who are speaking our language. Imagine being confronted by an alien race that communicates with symbols we have no key to interpret. The movie nicely illustrates the linguistic complexities involved in asking a simple question like, "What is your purpose here?" It also shows what can happen when communication is misinterpreted. Did the aliens really use a word meaning "weapon"? Or did they mean "tool"? A lot rides on getting the right answer to this question.

The film attempts to make some larger points about language, arguing that the language we speak can actually affect the way we think. The idea that learning a new language might also awaken some new abilities in ourselves takes this point to a more magical level. But sticking to the known and  familiar, we know, when we try to resolve conflicts across cultures, that different cultural norms and habits can affect the way people perceive a problem. The way people of different backgrounds express a problem also affects the ways they approach solving it.

Not only does this film show just how difficult it can be to establish communication, it also preaches the virtues of collaboration over competition. The problem presented by this story can only be solved by twelve different nations working together and sharing information. Once these groups start distrusting one another and withholding information, they risk war. So it's a film that works both on the micro level of establishing communications between two parties who have difficulty understanding each other, and on the macro level of building world peace.

Tuesday, November 22, 2016

Election

Senator George Mitchell, the architect of the Northern Ireland peace agreements, spoke at the SCMA Conference the Saturday just before the election. Not knowing or making any assumptions about who would win, Senator Mitchell addressed what we, and the next president, need to do next to help bring us together and solve some urgent problems. He stressed the importance of listening to opposing views, and working together to find consensus on policy issues. Our political system is supposed to encourage that kind of cooperation because our system of separation of powers, unlike a parliamentary system, rarely puts one party in total control of the government. So what tends to result when the two parties fail to cooperate is political gridlock. That just makes voters even more disgusted with the political process, and even less interested in cooperation. It's a vicious cycle.

Since the election, I see few signs of adversaries reaching out to work with political opponents. President Obama has been gracious and cooperative, but he is about to surrender power. On the Trump side, the names being floated for Cabinet and White House positions do not inspire much confidence that the Trump White House will act in a conciliatory manner. And on the Democratic side, we are already hearing much talk about engaging in the same kind of total opposition to anything the president proposes that the Republicans have engaged in for the past eight years.

While the instinct for payback is natural and understandable, those combative tendencies are not necessarily politically smart, or good for the country. Talk of complete resistance to anything the new government proposes may only increase its authoritarian impulses. Instead we still need to make an effort to listen to opposing points of view, and find points of agreement where we can. We need to have faith that respect for the rule of law will be strong enough to prevail against the most potentially dangerous proposals of the incoming administration. And the new administration needs to make good on early promises to unify the country.

Tuesday, November 8, 2016

Public Meetings

Dorit Cypis put together an interesting workshop at the SCMA conference this past weekend, in which participants explored the power of forming small groups to engage in dialogue. This format has been used successfully in a number of contexts to allow different points of view in a community to be expressed and understood. (See my post below on the Days of Dialogue programs on the future of policing.) It works because the participants in these groups learn to see one another as human beings They feel safe in telling their stories and expressing their feelings because they are taught to listen respectfully when other members of the group do the same. The topic in our small groups at this conference was the very process in which we are engaged. In other words, we were encouraged to talk about our civic interests and experiences, and the tools we could bring to bear to facilitate dialogue on public issues.

Last night I happened to attend a public meeting in my neighborhood sponsored by the Army Corps of Engineers and attended by other interested groups, to talk about plans for a nearby stretch of the LA River. They did not set up the room with round tables inviting random members of the community with varying concerns to engage in dialogue with one another, the format we were exploring over the weekend. But they also chose not to use the typical public meeting format either, where members of the audience are situated in opposition to officials who sit in the front of the room, and given a few minutes in front of the microphone to voice concerns to the people with authority. Instead the sponsors of the meeting employed a hybrid format where a number of tables were arranged around the auditorium, staffed by groups with different areas of expertise and interests who could answer questions from the public.

At least one member of the public was upset by this format. At the end of a short introductory message, where a Corps spokesman explained they would not be taking questions from the floor, she stood up and loudly protested being denied the right to publicly ask her list of questions, crying out, "This is supposed to be a public meeting!"

As much as we recognize the limitations of the traditional format of public meetings, it seems that some members of the public, and perhaps some officials also, actually prefer a confrontational style. Perhaps they feel that an "on the record" format is the best way to hold their officials accountable.  Or perhaps they simply enjoy engaging in confrontation rather than dialogue. I didn't get a chance to ask the woman who was unhappy about being denied the chance to stand up in front of everyone and ask her questions publicly, why she felt that was so important. But the episode did make me realize that it may go against the grain for at least some members of the community to ask them to eschew confrontation and conflict and instead engage in dialogue and collaboration.

I also learned that the thing that members of the public such as myself think of as the river bike path is instead thought of by the Army Corps of Engineers as an access road to a flood control project, that they allow the city to use as a bike path. A number of meeting formats can allow these different conceptual views to be expressed. I continue to believe, however, that a more collaborative process is best for designing solutions that serve all legitimate interests.

Monday, October 3, 2016

Voting against peace

On Sunday voters in Colombia surprisingly rejected a peace agreement that took the parties years to negotiate. The agreement would have ended more than 50 years of a civil war  that has pitted the government against the rebel FARC army. This setback for the cause of peace comes the same week that Israel buried Shimon Peres, one of the country's great peacemakers, the same month when a hard-won ceasefire in Syria seems to have collapsed, the same year that the United Kingdom voted to pull out of the EU treaty that has helped keep the peace in Europe for a generation, and the same year that has seen the growth around the world of nationalist movements, and of fears of trade and foreigners. In the United States, our political system has been disrupted by a campaign based largely on opposition to trade, hostility to outsiders, and distrust of diplomatic solutions to foreign conflict.

What is going on? Are people tired of making the compromises necessary to obtain peace? Is the world suddenly in a more warlike mood? Do people prefer to maintain their principles, their grudges, their hatreds? Or are we simply facing an upsurge in second-guessing the results of negotiated agreements, based on popular distrust of political leaders? Many people who did not participate in the negotiations of the Colombia peace agreement, just like the Iran disarmament agreement, or the TPP for that matter, apparently believe that better deals may be obtained if their side just acts "tougher" at the bargaining table.

In the case of Colombia, it is understandable that a generation that has grown up with violent conflict is reluctant to let go without a more satisfactory settling of scores. Opposition to the peace agreement seems to be based on a combination of distrust of the enemy the nation has been fighting for so long, and an unwillingness to accept its members back into society. The former president of Colombia, an opponent of the treaty, said that peace is an illusion, and that the proposed peace agreement was too forgiving of the rebels.

The good news, though, is that both sides in Colombia seem to be tired of fighting, and agreed at least on the idea that violence is not the best solution to conflict. Perhaps they will at least lay down their arms, even if they haven't yet been able to come to terms that their constituents will accept.



Friday, September 30, 2016

Meet and confer

For those who still think that litigation must always be conducted in an adversarial manner--that litigants must oppose anything suggested by the other side, and bring every dispute before the court for resolution--consider that the courts are telling you otherwise. It's not just that the courts routinely encourage settlement, and discourage trials; it's also that they have changed the rules to compel efforts at negotiating rather than seeking judicial resolution of problems that occur during the course of a lawsuit. It's almost as though the courts don't believe in the process they are designed for, because they are requiring you to engage in a different process first.

Meet and confer requirements have been around for a long time with respect to discovery disputes. Litigators understand that judges don't want to be bothered with the laborious and nit-picky task of deciding whether parties have given adequate responses to interrogatories and document requests. They don't want to referee attorneys' conduct during depositions. They don't want to order people to turn over information that they should have turned over voluntarily. Lawyers see the sense of requiring efforts to resolve those problems without the court's assistance before filing a motion to compel or for a protective order.

But many lawyers trained with an adversarial mindset treat the meet and confer requirement as just another opportunity to engage in combat rather than give-and-take. Many "meet and confer" sessions are initiated by letters that take the form of an ultimatum rather than an invitation to negotiate. Many lawyers think they can satisfy the meet and confer requirement by sending such letters without even having a telephone meeting with their adversary, and without making any effort to explore consensual resolutions. That type of conduct, because it is not a good faith effort at an informal resolution of the dispute, has been held to violate the rule. Obregon v. Superior Court, 67 Cal.App.4th 424 (2d Dist. 1998). Nevertheless, adversarial habits are hard to break, and many lawyers continue to treat the meet and confer requirement as merely a hurdle on the way to an inevitable motion to compel, a motion that can only be avoided by the other side's capitulation to the aggrieved party's demands.

The obligation to meet and confer, which applies to nearly every motion filed in federal court, has been extended this year in the California state system to apply to demurrers as well as discovery motions. C.C.P. Section 430.41. Like discovery motions, demurrers are another form of motion disliked by many judges. Demurrers rarely do much to move the case along, usually resulting only in an amended complaint, but do give the parties an opportunity to spar over the adequacy of their compliance with arcane pleading requirements. I'm not saying that pleading sufficiency is never important, but I am saying that most of the time, the parties should be able to work out these pleading issues without the assistance of a judge. That is what the courts are now telling parties they must do. If we heed the spirit as well as the letter of these rules, then lawyers and litigants should be attempting to resolve all aspects of their disputes in a constructive, problem-solving manner.

Thursday, July 14, 2016

Fear

Someone renting the house across the street from us has been blasting loud music very late at night, and I've been wondering how to deal with it. The other night when he woke us up at 2 am, I wanted to go knock on his door, but I was afraid that might cause an ugly confrontation. Should I call the cops? Should I leave a note in his mailbox?


I participated as a facilitator last night in another of the Days of Dialogue sessions being held around the city this year, on the very timely topic of the future of policing. One of the subjects my table discussed was fear: for example the fear claimed by police officers who have sometimes pulled the trigger on an unarmed suspect. Is that fear justified? Are better means available of de-escalating those situations?  We also talked about the fear of confrontation that sometimes causes people to shy away from talking to others with whom they find themselves in conflict. The police officer at our table suggested that many problems can be resolved directly between members of the community. Calling the cops should not necessarily be the first step, since that can sometimes cause a dispute to escalate. It's the same in the law business, I added. Many conflicts would be best resolved directly between the parties, before calling in their lawyers. Many of the lawsuits I've been involved with over the years have been perpetuated because of the parties' fears of communicating with one another, and the misunderstandings that this lack of communication creates. In that connection, I couldn't help but mention the little problem I've recently been having with my noisy neighbor, and how I was nervous about trying to resolve it myself.

Inspired by the police officer's comment, when I heard my neighbor this evening at it again in his makeshift garage recording studio, I worked up the courage to walk over and introduce myself. I met his dogs, his house guests, and then the offender finally came upstairs. I pointed out that he might not have realized that my bedroom faces the street directly across from his garage, and that especially at 1 or 2 in the morning, I didn't appreciate being awakened by his music. Maybe headphones would be a good idea. He apologized. He thanked me for coming over. He promised to keep it down. We shook hands.

We talked about much bigger problems at last night's Days of Dialogue session than loud music: The burdens of history; the implicit biases that can often steer us wrong; the corruptions of power; and other weighty and important issues. It was an informative, and even healing program for a lot of people. It proved once again that the format of small groups of people sitting at round tables talking and listening to one another's perspectives, has enormous power to resolve conflict and promote better understanding.

As a bonus, I obtained the immediate practical benefit of solving one small problem for my family. I was not expecting that just thinking and talking about these issues would have such an immediate payoff. But fear of confrontation is no small part of the cause of conflict and violence in our society. Trying to find a safe way to communicate with adversaries we are often afraid to confront is no small part of the solution to resolving conflicts and reducing violence.


Friday, June 10, 2016

Fighting

In the highly-charged atmosphere of our current political season, is more fighting really what we need? Senator Elizabeth Warren evidently thinks so. Here is a portion of Senator Warren's comments on the Rachel Maddow show last night, when Warren explained why she is endorsing Hillary Clinton for President: 

Hillary Clinton won . . . because she’s a fighter . . . . And I think this is what we need. . . 
As a Democrat, one of the things that frustrates me the most is there are a lot of times we just don’t get in the fight. We ask pretty please if we can have things or we make the argument for why it is the best thing to do, and then wait patiently for the other side to agree to come along. We negotiate. We start our opening position by negotiating.
You know, and I get that. I get the reason that you should be willing to negotiate sometimes. But you also ought to be willing to throw a punch.
It's an obvious dig at President Obama, often criticized from the left for being too willing to make concessions to adversaries in advance.

And it's no surprise that all of the candidates for president this year present a more combative image than the one our current president projects. It's conventional wisdom in political circles that the public usually wants a president different in personality from the current one, and that may be one reason none of the current candidates are running on a platform that emphasizes looking for common ground with one's adversaries.

If anything, Bernie Sanders has run a campaign even more
combative than Hillary Clinton's, railing against the rich and powerful, and frequently talking about how the struggle or the revolution must continue. Donald Trump has openly encouraged violence from his rally attendees, delights in name-calling, and brags about the tough approach he promises to take with trading partners and foreign enemies. His idea of negotiating sounds more like bullying.

Strangely enough, however, the broad public doesn't seem all that enthused about any of these fighting candidates. President Obama remains our most popular national politician. Looking back on his record in office, even his critics would have to acknowledge that he got a heck of a lot done, in the face of relentless opposition, by always being willing to negotiate with and work alongside his political opponents, instead of always fighting them.

Saturday, May 21, 2016

Pre-litigation dispute resolution

More evidence that the practice of law has changed in fundamental ways: At a panel presentation this week at the SCMA Employment Mediation Institute, Ann Kotlarski, who represents employers and Curt Surls, who represents employees, both agreed that they prefer to resolve employer-employee disputes without litigation if possible.

Surls said that he always sends detailed demand letters setting forth the factual background his client has presented, as well as the legal basis for his client's claims, before filing a complaint. These letters usually do not contain specific monetary demands, but  do include an invitation to mediate the dispute. Kotlarski also initiates attempts at early dispute resolution. She always calls the plaintiff's attorney as soon as she gets a complaint or a demand letter, among other reasons to express interest in discussing settlement. Her practice is to suggest that the plaintiff's attorney send her a written demand, preferably using a non-antagonistic tone, that she can pass along to her client to get the ball rolling on settlement. When she is able to initiate an early settlement conversation, about half the time the discussions take place between counsel only, and in the other half the parties employ a mediator.

The advantages of this protocol are fairly obvious. Since most disputes are eventually likely to be resolved by negotiated agreement, often at a mediation, why not go there first, before incurring the costs and emotional turmoil of litigation, which only creates new opportunities for conflict before resolving the pre-existing one? Avoidance of cost is particularly important for employers in wrongful termination and other employment disputes, where attorneys' fees provisions are prevalent. Resolving disputes without initiating litigation is also beneficial for employees, whose career prospects are often severely hampered when they sue their former employer. With most court filings now easily accessible online, and searchable by anyone who makes hiring decisions, it is particularly important for employees to avoid litigation if possible.

Of course there are cases in which information must be exchanged before one or the other party is in a position to agree to a settlement. But in many of those cases, that can be done informally, without involving court processes like document requests and depositions. And of course there are also cases where the stakes are high enough and feelings strong enough that litigation is necessary. What is not necessary, however, is to start every routine employment dispute by filing a charge or a complaint.

talkurbex.com

Thursday, April 21, 2016

Four clients


The wise client approaches the initial consultation with a lawyer with some ideas of what the client is trying to accomplish and with some perspective on his or her own situation. For such clients, the lawyer should be prepared to explain carefully how the process is likely to unfold, and help the client better understand their options. A lawyer can be confident that a wise client will listen carefully and trust the lawyer's advice. But not all clients are wise.

The simple client, for example, will come in for an initial consultation feeling aggrieved and agitated but uncertain what they are trying to accomplish or how to go about it. For example, an individual might believe they have been fired from their job unfairly, but have no idea what remedies might be available or whether they are worth pursuing. These clients tend to spew out a long, convoluted story that recounts in great detail all of the circumstances giving rise to their injury. For such clients, the lawyer must try to listen patiently, but their legal training teaches them to sift through the story trying to find elements of potential legal claims in it, while ignoring other parts that do not support a cognizable claim. Lawyers often try to educate this kind of client on those elements, in an effort to get them to focus on facts that are necessary to proving available legal claims. The lawyer might point out, for example, that unfair business decisions are not necessarily actionable, unless they were made for an improper purpose, such as discrimination based on age or sex or ethnicity. That prompts the client to see the story in a somewhat different way. In the process, a lot of what the client initially thought was important gets left on the cutting room floor, and the resultant story, while legally coherent and based on facts that that lawyer and client think they can prove, may not end up satisfying all of the client's concerns.

Lawyers might be better advised to figure out an appropriate way to present the client's actual grievances to the other side, rather than compressing them into a narrative judged only by whether it states a provable legal cause of action. Because, after all, most of the time the merits of the legal claims are never going to be finally adjudicated anyway, since the vast majority of cases end up getting resolved by negotiated agreement. And to reach that negotiated agreement we often have to bring back into the picture some of the client's concerns that got left out of the initial framing of a legal complaint. Those concerns might even prove more compelling to the other side than the story the law encourages parties to contrive.

Then there is the wicked client, who comes to a lawyer having already framed their problem into the shape of a legal dispute. What they want to know is how their claim is going to be decided. Are they right or wrong in thinking that the court is going to favor their obviously justified actions, and punish the dastardly conduct of the other side? Or less often, they might express worries that the court will find them liable for their actions. For these clients, the lawyer's training teaches them to advise the client on the merits of their legal claims and defenses, and the factors that might affect their adjudication. Even though lawyers hedge their bets with many caveats and uncertainties, they also need to show the client that they are capable of acting as a strong advocate for their cause. They must show sympathy for the client's view, and they must try to make the strongest case they can, even while pointing out potential obstacles along the way. What the client hears from this discussion usually tends to vindicate their initial point of view. They now feel armed with even more legal arguments that they can use to vanquish their adversary. They tend to discount the facts and arguments that might favor the other side.

What lawyers should more often be emphasizing to this latter group of clients, however, is that in the vast majority of cases, it is unlikely that any court or tribunal is ever going to determine the merits of their dispute. Because, as stated above, cases tend to get resolved by negotiated agreement. So the wicked client's belief that they are going to win the case may not be as important as they think. Instead of pounding the other side with the righteousness of their cause, they should be thinking of what tools they can use to help bring the case to a favorable resolution. The wicked client needs a better understanding of how the other side views the dispute, and how to satisfy the other side's needs and interests to bring the case to resolution.

Finally there is the client who does not know how to ask. This client may be shell-shocked: injured in an accident, facing separation from a spouse, feeling deceived in a business transaction. The lawyer needs to answer questions for this client that the client does not even know how to formulate. At the same time, the lawyer should try to help this client articulate their own needs, otherwise the lawyer is in danger of presuming knowledge of what the client wants, and substituting his own ideas of what the client's goals should be for the client's actual goals.

Even though there are four (at least) kinds of clients, just like there are four kinds of children addressed at the seder table--and most clients, like most children, combine aspects of all four types--they are all really asking the same question, which is what does this all mean and what is my part in it. And we should be trying to answer them in a way that does not encourage their worst tendencies, but instead helps them to figure out what interests and needs are most important to them, to develop some perspective about the situation, and to achieve a positive resolution.

Saturday, April 16, 2016

Avoiding Litigation

The ABA Dispute Resolution conference, held this year in New York City, presents an interesting mix of programs on mediation, arbitration, negotiation and collaborative practice. The conference manages to combine these fields, even though the cultures of mediation and arbitration don't always mesh very well; in fact they sometimes seem like opposites. But practitioners in both fields seem to get along. What they have in common is the desire to avoid litigation. Having a common enemy makes friends of us all.

Thus, at one of the panels I attended, in-house counsel acknowledged that they require employees to sign arbitration clauses so that the company can avoid the burden and expense of class action lawsuits. Mediation or arbitration of employment disputes is also encouraged to avoid the costs of ordinary litigation, especially the cost of discovery disputes. At another session, the benefits of early dispute resolution were mainly described in contrast to the enormous expense of motion practice and document production found in litigation. These concerns are valid, and it is absolutely correct that ADR can and should be promoted as a faster and cheaper alternative to litigation. But perhaps more attention should be paid to the question whether we can reform litigation--the "normal" conflict resolution process--instead of treating it as the bogeyman.

When I hear attorneys and clients complain about the high cost of discovery and motion practice in litigation, my first thought is that we should attack that problem more directly. We could greatly improve the court system by reducing the number of motions filed, and the amount of discovery sought. Most of those efforts are wasted anyway. Those pre-trial battles usually do not help much in the assessment of settlement options. They may even cause so much negative reaction from the other side that they hinder settlement. And even for the relatively rare cases that go to trial, trial counsel usually find that the boxes containing all those discovery disputes and other pre-trial motion practice are hardly ever opened. I firmly believe that if litigators could learn to find common ground where possible with their adversaries, instead of reflexively opposing everything the other side says, we could remove much of the waste and negativity that pervades litigation. We could also achieve better results for clients by negotiating the resolution of disputes within lawsuits, especially discovery disputes, rather than asking the court to decide them all, and we would save clients a lot of money by doing that.

But even if we were to assume that all of the expensive discovery and motion practice in the court system were necessary--and much of it unfortunately is necessary or unavoidable--it still seems to me that we are selling ADR short by selling it only as an alternative to a costly and inefficient litigation system. We ought to be touting the positive benefits of mediation and other negotiated resolutions of conflict--the opportunity for parties to control the outcome, to achieve greater understanding of the opposing party's interests, to resolve disputes in a more constructive way--instead of suggesting that we like ADR just because it is faster and cheaper than litigation.

If all we wanted was a cheaper and faster means of resolving disputes than presented by the court system, we could roll dice to determine outcomes. The process of dispute resolution must have higher aspirations than simply finding a cheaper and faster alternative to litigation.


Thursday, March 31, 2016

Mediation's Potential

A couple of recent experiences as a consumer of mediation services have made me wonder whether the practice is living up to its full potential. In one case, when the mediator and opposing counsel started talking about what was going to happen at trial, I told them that there was no way the case was going to trial. They already knew I had done my best to avoid engaging in motion practice, discovery or other forms of litigation activity, and they also knew that the cost of taking the case to trial would almost certainly exceed the amount in controversy, and that my clients probably couldn't afford it. Therefore I didn't see much point in talking about what was likely to happen at trial. I wanted to talk about a fair and practical settlement.

The mediator was not happy with this approach at all. He told me I should never admit to the other side that the case was not likely to go to trial, since that would take away some of my "leverage." Then he spent a lot of time with both sides talking about the strengths and weaknesses of my clients' defenses to the claim, even though no tribunal would ever adjudicate those. The mediation "worked," as the case settled at the mediation, for about the amount we thought it would, but I found it strange that the mediator was more tied to the adversarial system than I was. This was mediation as it is commonly practiced, in the shadow of the court system. It is mostly focused on assessing the benefits and costs of continued litigation, and forecasting possible trial outcomes, rather than finding much out about the needs and interests of the parties.

Not that there is anything terrible about comparing the costs and risks of continued conflict to the value of settlement. I use that technique to some extent in most of the mediations I conduct, because parties usually want to be reassured at some point that the deal they are contemplating is better than the alternative of proceeding with litigation. But we are not really breaking out of the litigation mindset when we limit the discussion at mediation to trying to predict how the court would resolve the case. We are not practicing an "alternative" form of dispute resolution when we are solely preoccupied with what happens in court. And unless the parties truly care about how a hypothetical court might decide the legal questions involved in their dispute, they do not need to base their settlement on that measure. They are free to resolve it based on whatever values and norms are important to them.

In another mediation I attended recently as an advocate for one of the parties, I also observed that the mediator was spending most of her time talking about how the trial judge in our case might rule on some pending motions and evaluate some of the claims. Though these legal issues were certainly important, I was frustrated to be spending so much time having an academic argument with the mediator about these issues. I think it might have been more productive if the other side could have learned something about the challenges facing my client's business, or if my side could have learned more about some of the factors influencing the other side.

At the end of the day, I finally had a chance to talk one-on-one with counsel for the opposing parties, and found that short discussion more useful and informative than anything that occurred the entire rest of the day. I wondered why the mediator had been so intent on keeping the parties apart all that time. It was not something I was demanding.

We need to spend less time talking about "the case," and more time talking about the parties' interests. We need to spend less time talking about a hypothetical trial, and more time trying to understand what is bothering and motivating the parties. That is how mediation can live up to its potential, instead of operating as a cut-rate imitation of the adversary system.


Wednesday, March 16, 2016

Supreme Court poker

Here is how one high stakes negotiation is currently playing out: First a recap. On February 13, 2016, Justice Scalia's unexpected death created a vacancy on the Supreme Court.

Within less than a day, leading Senate Republicans made a pre-emptive opening demand, announcing that they would refuse to consider, even to hold hearings for, any nominee the president proposed. 

Next, President Obama announced that he would proceed in the normal course anyway, and he also invited the opposition to the White House, where they meet in the Oval Office on March 1, 2016. Presumably the parties gauged each other's resolve, presented their respective best alternatives to a negotiated outcome of the dispute, perhaps suggested some ways of reaching a resolution. But no resolution of the dispute was announced. 


Both sides then started recruiting allies and public support, engaging in a public relations campaign. The Republicans dug up an old speech by Joe Biden suggesting a similar tactic during the Bush years to the one they are proposing. The president started floating names on his short list to judge public reaction. Senate Republicans stuck to their guns, and appeared unmoved by any of the names on the list.

Finally today, March 16, 2016,  President Obama announced the appointment of Merrick Garland. He is the Chief Judge of the most prestigious court in the country next to the Supreme Court, a man with unimpeachable credentials, and a political moderate. Garland is also 63 years old, meaning his tenure on the Supreme Court will be limited. 

From the Senate Republicans' point of view, this is the best deal they could possibly hope to get, assuming that they have to accept an appointment by a Democratic President. Their only better alternative is to elect a Republican President in November, a prospect that has to be regarded as somewhat less than a certainty, and also an outcome of which not all of them are so enamored, given that the Republicans' leading candidate has been emphatically denounced by both the last two Republican presidential candidates, and that he is likely to transform their party in ways they might not find so comfortable. The implicit threat is that if they don't confirm Garland, President Hillary Clinton will put forward a new nominee much less to their liking. 

President Obama's tactic is already encountering a small amount of displeasure from his own base, and runs counter to what some other presidents have done when they spar with the Senate over confirmation of a Supreme Court nominee. Reagan, for example, played to his base by putting forward the very conservative Robert Bork, but when Bork was rejected by the Senate, Reagan backed down and submitted the more moderate Anthony Kennedy. When Nixon's conservative pick Clement Haynesworth was rejected, in a fit of pique he first tried to double down and submit someone even more unacceptable to the Senate, Harrold Carswell, but Nixon eventually relented and appointed Harry Blackmun. President Obama is making the opposite play, giving in to the Senate up front by appointing a moderate, rather than provoking them with a liberal.

Conventional negotiating strategy suggests leading off by demanding even more than you expect the other side to agree to, leaving plenty of room to back down later after the other side's expectations have been set. On the other hand, there is also a time-honored technique sometimes employed in labor negotiations, sometimes in eminent domain negotiations, sometimes in negotiating contracts with athletes or actors, less often in litigation settlement negotiations, for one side to throw out the best offer (from the other side's point of view) that they are ever going to make right up front, to let the other side know that the more they haggle, the worse the deal will get for them. The technique has some serious risks, but it has some real strengths also. It makes sense, for example, when time is limited and appearances are important. It appears to be the game the President is playing here. If he chose a more conventional strategy of nominating a liberal judge, there is always the possibility that Republicans could have still defeated him by raising objections on the merits, holding extensive hearings, and running out the clock. Given that the Republicans had already announced that they would not do that, but would instead simply sit on whatever nomination the president made, it makes some sense that Obama put forward a name to which the opposition could have no valid objections on the merits.

Not surprisingly, we are already seeing some backtracking from the Republican side. Maybe, some are saying, we would confirm Merrick Garland in the lame duck session of Congress after the election. Of course that would be inconsistent with the rationale they have been giving for refusing to consider any nominee, which is that it should be up to the president the voters choose in November, but no matter. Allowing a vote in the lame duck would still give Senate Republicans the chance to grab the best deal they can get after finding out whether their alternative looks any better. 

So far (it's still the same day this announcement was made) all we're hearing from the White House is that there is no reason to wait until the lame duck session in December. But I wouldn't be too surprised if President Obama's next negotiating move is to tell Senate Republicans that if they don't confirm this nominee before the election, his name is going to be withdrawn. Deadlines are also a risky tool in negotiations, but they also can be used as a display of strength. I don't usually counsel parties in negotiations to employ deadlines and ultimatums, because too often parties need to back down from them when they are tested. The tactic might work in this case, however, depending on how bad the Republicans' November prospects end up looking this summer. On the other hand, President Obama may feel no need to add additional pressure, and he also probably feels that Merrick Garland would be a great addition to the Supreme Court, even if he has to wait until December for that to happen. In the meantime, it's been an interesting negotiation to observe.

Saturday, March 12, 2016

"Never Trump" and the Prisoners' Dilemma

A variation of the Prisoners' Dilemma problem may be playing out in the Republican primary campaign. Those elements in the party who are still seeking to prevent Trump from becoming the nominee have apparently abandoned their original tactic of attempting to coalesce support around the strongest non-Trump candidate while encouraging weaker candidates to drop out. Instead, the plan of the Never Trump movement is now to encourage all three remaining candidates to remain in the race, but act more cooperatively toward each other so that each can amass the maximum number of delegates in the states in which each is running most strongly, and thereby prevent Trump from gaining a majority in advance of the convention. Thus, Rubio and Cruz are supposed to reduce their efforts in Ohio to allow John Kasich to win there; while Kasich and Cruz pull back in Florida to allow Marco Rubio to win.

Most likely this strategy is doomed to failure if Marco Rubio, as currently projected, cannot beat Trump in Florida. But even if it remains viable for a while, there will still be strong incentives down the road for all three non-Trump candidates to defect and support a Trump candidacy, rather than to remain cooperative so that one of them (or somebody else) could instead succeed. It is not even clear that any of these three candidates views the prospect of a Trump candidacy as the worst possible outcome as opposed to the candidacy of some other candidate besides themselves. Thus the incentives to cooperate are already weaker than those presented by the classic Prisoners' Dilemma problem. And the incentive to defect to Trump, instead of to cooperate with the Never Trump forces, becomes more powerful as the process moves toward the convention.

If Trump is short of delegates, naturally he will seek to induce one of the other candidates to drop out and support him, offering whatever inducements he needs to offer (e.g., the vice-presidency or a Cabinet position). And each of those candidates might prefer to support Trump rather than cooperate with the anti-Trump forces, especially if they cannot match Trump's offer. Trump has already succeeded in getting two former candidates (Christie and Carson) to support him, and it would not take a genius negotiator to get Rubio or Cruz or Kasich to do the same in the right circumstances. (Cruz might be a special case since he has a history of taking positions that do not seem to result in the best outcome either for himself or the group, but for purposes of this discussion, we probably don't need to delve into each candidate's idiosyncrasies too deeply.)

In the highly competitive environment of this election, I predict that all of these candidates are likely to defect in some form or other, as each seeks his own best personal outcome. They will not continue to cooperate with the Never Trump movement. At the same time, each of the candidates has an incentive not to rock the boat too much; they should all want a harmonious convention and unity in support of the nominee. These powerful incentives to defect rather than assist with a strategy that might benefit one of them but would result in a bloodbath in Cleveland, make it highly likely that, barring unforeseen events, Trump will end up as the Republican nominee. I'm not saying that is an ideal outcome. But it's hard to see any scenario in the Republican Party right now that will accomplish what the Republicans have almost always accomplished in past elections, which is to unite the various factions in the party around whomever might be their strongest candidate, whether that's Trump or someone else.

Thursday, February 11, 2016

Neutrality

Neutrality is a cherished concept in mediation, but the term is interpreted differently by different mediators. Some take it to mean being strictly impartial and fair toward both sides in a dispute, in the way that a judge should not let his or her biases affect the outcome, or show favoritism toward one side or the other. I take it to mean being indifferent toward the outcome of the process, leaving the parties to achieve a resolution acceptable to each side, but assisting both sides in satisfying their interests to the greatest extent possible. To do that mediators play a different role than judges or arbitrators, at times coaching one side or the other on their negotiating tactics, and at other times playing the devil's advocate. It's more of a shifting partiality, than an attempt to remain impartial.

That is why the ideal mediator does not necessarily resemble the image of blind justice, holding a scale that awaits the evidence to be piled up on each side. The ideal mediator is more likely to be someone who each side thinks the other side will listen to. In some cases, that ideal mediator might resemble a judge or other authority figure, if each side thinks the other is prone to respect such authority figures. In other cases, it might be best to bring in a friend of the other side, or someone with similar background and sympathies.

These thoughts on neutrality were brought to mind by today's story of the resolution without further bloodshed of the stand-off at an Oregon wildlife refuge between the federal government and so-called militia members who had seized the facility as a protest. It turned out a Nevada assemblywoman named Michele Fiore played a critical role in talking some of the protesters into surrendering to federal authority. Ms. Fiore is not someone one would think of as a "neutral" party in the dispute, being famous for posing with guns and taking outspoken conservative positions. But she was someone the protesters viewed as sympathetic to their cause, someone they would listen to, and someone they felt they could trust. She was one of them. Her role was to assure the protesters that they could trust the government enough to lay down their weapons and allow themselves to be taken into custody, and that in return they would not be harmed.

Certainly the FBI must have used a lot of tactics well known to negotiators and mediators in bringing about a peaceful resolution of this dispute. But when it came to finding someone who could act as a "neutral" between the government and the protesters, Michele Fiore fit the bill well.

Friday, January 15, 2016

The Hateful Eight

Are there negotiating lessons one can learn from the world of Quentin Tarantino? Mediators tend to believe that if we encourage parties in conflict to continue talking even when resolution seems unlikely, they will eventually reach a level of common understanding that will enable both sides to find an acceptable way out of conflict.

Films like The Hateful Eight and most other Tarantino films, severely test that assumption. The characters jabber endlessly. They examine each problem in excruciating detail. They lay out all of the various scenarios for escape from their predicament (their best alternatives to a violent outcome). At one point in The Hateful Eight, a character is jumping to conclusions about which of the three guys lined up against the wall might be responsible for poisoning the coffee. Sam Jackson's character tells him to slow it WAY down. He does not believe you can short-cut the process of detailed examination of all of the evidence. He wants to talk some more. And eventually we find out that nobody has been telling the truth, and nothing is exactly as it seems to be.

But all of this talking cannot save the characters in Tarantino's world from their fates. Anyone who has seen his previous films knows that this one is likely to end with an explosion of violence. Once in a while, the hero in a Tarantino movie is allowed to ride triumphantly off into the sunset, but only after vanquishing all of his or her enemies. More often, all of the characters in these films are doomed. There is never anything like a "win-win" solution available. Only "win-lose" or "lose-lose."

So is there a point to all of the ceaseless chatter in these movies, if negotiated resolution to conflict is impossible? At the very least, it is usually entertaining. No matter how talky or long these movies are--and they are all talky and long--I am rarely bored watching a Tarantino movie. Maybe because the tension of a violent resolution to conflict is always present. But in addition to having entertainment value, all the talk still seems to have another purpose. Understanding the sources of their conflicts, and the possible means of escape, is still important to these characters. They are not allowed to die in ignorance. They must meet their fates fully informed of the circumstances. And that gives them a certain level of dignity, and proves that there is value in talking a problem out fully, regardless of whether or not that problem can be resolved by negotiated agreement.