Settle It Now Negotiation Blog

Featured Blogger Interview at Mediate.com

Victoria Pynchon — Mon, 08 Feb 2010 16:46:24 -0500

Mediate.com - where I published my first article on mediation - was kind enough to publish an interview with me about my mediation career and blogging experience today. Below an excerpt and at the link, more than you ever wanted to know about my legal and ADR career.

[By mediating,]I regained everything I'd ever loved – people, story, drama, recovery – yet was allowed to retain the intellectual puzzle, strategic problem-solving job I'd enjoyed so much. It was like the farmer says at the county fair – he uses “every part of the pig except the squeal.” I too was now using every part of myself, including a squeal of delight. The mediation career I've carved out for myself include negotiation training (so I get to teach, which I love); writing (blogging and the book that's grown out of it); and, helping people resolve business disputes burdened with justice issues in a way that is far more efficient, effective and creative than the litigation process affords.

Negotiating Book Sales: Choosing the Best Cover

Victoria Pynchon — Sun, 31 Jan 2010 21:55:35 -0500

UPDATE: Thanks to the many great comments I’ve gotten here, at LinkedIn, on the book's Facebook Fan Page, and on the book's website I’ve shifted my focus from trying to depict the Asshole on the cover to depicting the Asshole’s victim/s. Along those lines, I’m considering using an image somewhat like this cartoon by the great legal cartoonist, Charles Fincher of LawComix. I might even ask Charles if I can use this very cartoon. What do you think?

With Charles’ hilarious caption above and as the cover of the book below.

More after the jump.

A is for Asshole, the ABC's of Conflict Resolution (mastering conflict in everyday life) will soon become a reality. Now I'm engaged in an activity that is likely more important than writing the book itself - choosing its cover (for which I've sought the help of my network, including readers of this blog - here!)

Here's one of the covers I'm considering.

How important is the cover? Even the academics - well known for their love of content - say it's pretty darn important. An online article at the Modern Language Association website by Professor Gregg Camfield, formerly of Penn and now at UC Merced, addresses The Importance of Judging Books By Their Covers.

we can--indeed we usually do--judge books by their covers. The Harlequin romances at the checkout counter in the supermarket have covers that tell us not only what but also how we will read. Leather-bound, gilt-edged volumes also tell us how to read: reverentially in the face of transcendent genius, which we have the good taste to purchase and display ostentatiously. My point is simple and obvious: the physical presentation of a piece of literature gives us essential clues about how we are intended to read it and gives us further clues about the means of its production and the social role it plays.

Of course I'd love to make a bundle of money on the book, but I mostly want people to read it - regular people who write to Dear Abby and Beth, not the elite bunch reading Randy Cohen's Ethicist in the New York Times (though I believe they'd benefit from it as well, including David Lat with the questionable mini-bar restocking habit).

So the cover of the ABC's needs to be eye-catching, even if the primary eye to be caught is the one browsing Amazon online rather than that of the customer glancing at the impulse table by the cash register (that's where I'd like it to be Barnes & Noble, Borders and Book Soup!). Taking a page from Professor Camfield's book, the cover of the ABC's should also tell readers that it's not another dreary book about peace-making or conflict resolution - dry and earnest. I want the reader to know that the book can be picked up and read anywhere the reader needs a little advice. I want purchasers to put it on their coffee tables for company to browse through when the host is getting the wine and cheese or beer and chips.

Here's another cover I'm thinking about.

The title - the only part of the book about which I do not take advice - is meant to shock a little, but more to let the reader know the information and advice will be frank and streetwise, not effete or intellectually out of reach. That's why I'm thinking of illustrative cartoons for the cover.

I'll have more to say about the book and the cover soon. In the meantime, I'd consider it a great favor if you'd mosey on over to the ABC's of Conflict Resolution's blog and help me choose the cover! There's a prize in the cracker jacks box for the person who provides me with the best advice (according to my own idiosyncratic standards).

And another. This one links to the book's Face Book Fan Page and I'd be most grateful if you'd go on over and fan the book! (I know there's one too many "%"s in the title below).

Thanks so much.

Motion to Compel Lunch: Granted

Victoria Pynchon — Fri, 29 Jan 2010 16:13:34 -0500

Thanks to Roger Wood at the Association Law and Other Musings Blog for passing along the Order for Lunch issued by the Maricopa County Superior Court (.pdf) excerpted below. Roger generously shared this truly glorious Order (and supporting opinion that you can read in the .pdf) over at Construction Law Musings today in response to my Guest Post there ("How to Get Sued").

Thanks Roger! This didn't just make my day; it made my year!

Plaintiff’s Motion to Compel Acceptance of Lunch Invitation

The Court has rarely seen a motion with more merit. The motion will be granted.

The Court has searched in vain in the Arizona Rules of Civil Procedure and cases, as well as the leading treatises on federal and Arizona procedure, to find specific support for Plaintiff’s motion. Finding none, the Court concludes that motions of this type are so clearly within the inherent powers of the Court and have been so routinely granted that they are non-controversial and require no precedential support.

The writers support the concept. Conversation has been called “the socializing instrument par excellence” (Jose Ortega y Gasset, Invertebrate Spain) and “one of the greatest pleasures in life” (Somerset Maugham, The Moon and Sixpence). John Dryden referred to“Sweet discourse, the banquet of the mind” (The Flower and the Leaf).

Plaintiff’s counsel extended a lunch invitation to Defendant’s counsel “to have a discussion regarding discovery and other matters.” Plaintiff’s counsel offered to “pay for lunch.” Defendant’s counsel failed to respond until the motion was filed.

Defendant’s counsel distrusts Plaintiff’s counsel’s motives and fears that Plaintiff’s counsel’s purpose is to persuade Defendant’s counsel of the lack of merit in the defense case.

The Court has no doubt of Defendant’s counsel’s ability to withstand Plaintiff’s counsel’s blandishments and to respond sally for sally and barb for barb. Defendant’s counsel now makes what may be an illusory acceptance of Plaintiff’s counsel’s invitation by saying, “We would love to have lunch at Ruth’s Chris with/on . . .” Plaintiff’s counsel. 1
___________
1 Everyone knows that Ruth’s Chris, while open for dinner, is not open for lunch. This is a matter of which the Court may take judicial notice.

Read on by clicking on the .pdf above.

And how could I resist adding the "will you go to lunch!" scene from David Mamet's Glengarry Glen Ross.

Negotiating Fallacy: Diane Levin's Brilliant Fallacious Arguments Posts

Victoria Pynchon — Tue, 26 Jan 2010 12:17:04 -0500

If you're following this blog but not Diane Levin's Blog The Mediation Channel, I have good news for you. Diane is an extremely focused, disciplined and lively writer. She's also one of the brightest and most canny negotiators, mediators and negotiation trainers I know.

Diane describes her series, Fallacious Argument of the Month, as follows:

With the goal of promoting clearheaded and reasoned debate and improving discourse, each month I skewer a different fallacy.

Before giving you entree to this excellent series, let me first note that these arguments do not justify any movement in your negotiation position. Remember - you need a new number and a new reason to counter that new number. If your mediator or negotiating partner expects you to give up something, he'd better have a darn good reason for you to do so. If you're a lawyer representing a party, you can feel your client figuratively or literally tugging on your sleeve when you offer more or agree to accept less in the absence of a justification that makes business sense.

The Appeal to Authority

Argumentum ad Hominem (this one is so irritating it can create impasse where none previously existed)

The Red Herring

Confusing Cause and Effect

The Misleading Ellipsis (to which I add this caution ~~> the quickest path from respected advocate to deceitful scoundrel is the misleading ellipsis - Judge, Arbitrator, Mediator and Opponent will all distrust your bona fides from that date forward; if you can't think of a better argument, fall on your sword on this issue and create a better one just over the next hill).

The False Analogy

The Straw Man

Diane adds one new fallacious argument every month. I'll endeavor to keep up with her. But more reliably, get her RSS feed, add it to your google reader and never again be without the wisdom of this brilliant mediator and negotiation trainer and consultant. That's her smiling face at top. Visit her often! at The Mediation Channel.

"Man" Up to Negotiate or Prevent Your Own Disputes at Sleeping Beauty's Castle

Victoria Pynchon — Thu, 21 Jan 2010 14:35:42 -0500

Conflict is in the house. The evil fairy surrounded the castle with deadly thorns. The "good" fairy put everyone in the castle to sleep. Will you be the valiant Prince in your own dispute story? Or are you the prize? The beautiful one who would prefer to remain unconscious rather than address the great battle between good and evil represented here? Did you hire a lawyer to resolve your dispute for you? Will he make it to the castle in time? Or will he spend the bulk of his energy erecting more obstacles to prevent your adversary from reaching you. By the time both champions reach the castle, will everyone be too bloodied and broke to rise from your bed and put your house back in order?

Choose carefully and read the entire post at the Commercial ADR Blog: The Other ADR: Risk Management for the Cloud.

We are a Bargaining, Haggling, Negotiating, Wheeling and Dealing Twitter World

Victoria Pynchon — Sat, 16 Jan 2010 16:41:48 -0500

We bargain with toddlers, haggle with street vendors, negotiate legislation, make deals with car salesmen, craft golden parachutes for failed "Tonight Show" hosts, use friendship as a bargaining chip, cut deals with the bartender, negotiate the complexities of culture through story-telling, seek to raise our salaries during a recession, and, wheel and deal on rookie wage scales, all in a matter of hours as chronicled by twitter. Below.

Search term: "negotiation"

@mikemyatt: Why negotiation is a flawed business practice: http://bit.ly/F6SeA #Leadership -> specifically, lawyers kill trust

@meatbeat i dont want an american car but my former salesman fren says they have up to a 25% bigger negotiation window over imports.

@The_News_Herald Police union concessions might not be enough, city says: PANAMA CITY — A nearly yearlong negotiation process crept... http://bit.ly/5NAryW

@JacksMomMarie 3 hours later the preschooler relentless negotiation of EVERY part of the day not as cute but still cool. Feel free 2 whisper a prayer tho

Search term: "Negotiate"

@gilscorner You don't get what you deserve, you get what you negotiate. - Stephen Pollard, British journalist

@chrisTalanian RT @TrackGals: WSJ.com - NBC, O'Brien Negotiate Exit http://on.wsj.com/7DVJK5

@slainson RT @NEW_PLAY_BLOG Theatre, ritual, storytelling is *Essential* to culture around world, it's a way to negotiate the complexity of culture

@BruceRecruiter RT @aoljobs: How to Negotiate a Better Employment Contract Than Conan O'Brien http://bit.ly/8ndMsw #jobs #resume

Search term: Bargaining

@preampcc a wrote a new blog post: Used Car Bargaining Tips http://bit.ly/7Om2b8

@sydneydalton just did some really good shopping and bargaining on canal street. hahahaha.

@naveenmurali Bargaining is just a game of egos.

@brucedeboer Creative Denial, Anger, Bargaining, & Acceptance - http://www.permissiontosuck.com/denial-acceptance/

@Congeniality08 @javierabrown I remember when "I'll be your best friend" was the most effective bargaining tactic. THAT was brilliant.

@karaffaunel Tough bargaining still ahead at UN climate talks 88P0wR cop15 copenhagen !

@ciensoong 5 phases of breakup .. Denial, anger, bargaining, sorrow, and acceptance .. Hmm

@MattRichWarren RT @andysimms: http://bit.ly/77yM4s NFL and NFLPA Bargaining Sessions include proposals to change rookie wage scale for THIS season.

@yoloneco810 Kankakee teachers go back to the bargaining table. http://r2u.at/LugWd

@Aubreysomething A promise is not a bargaining chip or something you say just to shut the other person up. - You only say it when you really mean it.

@thegipperreview RT @JimDeMint: My post on @RedState: Collective bargaining has hurt border patrol, TSA shouldn’t make same mistake http://bit.ly/8uniV9

Search Term: Haggling

@heathrrrr Sitting in a car dealership haggling over prices. What a way to celebrate a birthday.

@travelworld101 Haggling a tradition in Guatemala - Daily Oklahoman: Guatemalans prepare for the opening of the outdoor textile ma... http://bit.ly/8jGX6S

@BaybiiAyo09 #whyyouintheclub haggling with the bartender?

@CarrollStandard Haggling Over Price - http://www.carrollstandard.com/index.php?option=com_content&view=article&id=7763&Itemid=31

@EricRobertson Interesting. My warm beverage cost $0.44 more today, despite any amounts of haggling.

@nyaasu I'm all for haggling, I honestly don't mind lowering the price, but don't scam me out of it, geez. All I had to do was wait overnight! /o/

@adirferreira @markitecht Street vendors have a hard time haggling in English ... so cool!

@south_dakotaBNN Dakota Voice: Haggling Over Price: No matter how he tries to spin it, the legislation that Senator Nelson voted fo... http://bit.ly/89973Q

@markitecht Epic street haggling by @adirferreira last night. Started at R$30, ended R$0 (plus a line of credit. no kidding.)

Negotiate a Raise in this Economy? Maybe That's Not What You Really Want

Victoria Pynchon — Tue, 12 Jan 2010 20:59:30 -0500

Check out reporter Kevin Fogarty's article How to Turn a Job Offer into a Raise over at The Ladders, an Executive Search company for the six-figure set. Kevin recently interviewed me about negotiation strategies with a current employer when an eager new suitor comes a'calling. I have to admit that I didn't suggest hooking up with Mr. Greener Grass before ascertaining whether you could negotiate your dream job just where you are. An excerpt from the article below; full text at the link above.

Before you ask a current employer or future employer to entertain a competitive offer, you should sit down and figure out what exactly you're hoping to gain or change through negotiations.

What’s at the top of the list? “The answer to that, by the way, is never, ever, ever, ‘more money,’ ” Pynchon said. “More often it’s a change in the associates you work with, the kinds of projects you work on or your career path. When you make a list of things to negotiate, don’t go in thinking about the money; list the other things first.”

Not only will your goal in the negotiation be one that’s more likely to make you happier and more effective in your job, a list of other potential changes gives your boss things to take off the table without stopping the conversation completely.

“Every piece of research has shown that the more you give up in a negotiation, the happier your negotiating partner is,” Pynchon said. “So having some things you can give up without too much pain will do a lot to help maintain that relationship.”

Be prepared for a conversation that may not go your way, however, and don’t invest so much of your ego in the numbers that you end up declining the offer out of spite.

Finally, don’t forget that if you’re doing well in your current position, your security might be more valuable than an incremental increase in compensation. “It’s almost always the case that you can (perform) better in a current job than a new one, anyway, so most of the time it’s smarter not to take the other offer,” Pynchon said. “But it’s hard for overachievers to say ‘no’ to another $100,000.”

Do Attorneys' "Get in the Way" of Mediator Assisted Negotiations?

Victoria Pynchon — Tue, 12 Jan 2010 13:43:24 -0500

The not so secret opinion among mediators is that attorneys make settlement more difficult. Just as lawyers are heard to say that "litigation would be great if it just weren't for the clients" (a "problem" only class action plaintiffs' lawyers have actually resolved), mediators tend to say "mediation would great if it weren't for the lawyers."

Esteeming the rule of law in America as I do (especially in the recent era of its greatest peril) I have never seen lawyers as a problem in facilitating settlement of the lawsuits they have been eating, drinking, sleeping and, dating for years longer than I've spent reading their briefs and engaging in some pre-mediation telephone discussions.

I can't say lawyers are a problem because: (1) they're my job; and, (2) they're "my people" in the "tribal" sense. A few bad apples aside, lawyers are among the hardest working, most ethical, creative, multi-talented professionals I know. And they are pretty much solely responsible for fighting the battle, on every common weekday, to preserve the rule of law as a bulwark against tyranny on the right and anarchy on the left.

It was therefore no surprise to see a recent Harvard Negotiation Journal article (thanks to Don Philbin of the Disputing Blog and his indispensable ADR Toolbox) that one group of academics has asked whether attorneys have a Negative Impact . . . on Mediation Outcomes.

Let's start with this particularly widespread canard from the article:

Attorneys may delay the settlement of a dispute through mediation for financial reasons. For example, the payment of professional fees on the basis of hours worked could motivate the attorney to delay the settlement of the dispute to increase the number of hours billed to the client (citations omitted). Such non financial reasons as a desire to build or preserve a reputation for “hardball negotiating” in highly publicized cases could also motivate an attorney to delay settlement of the dispute [which the authors don't mention often results in a far better outcome for the client]. In addition, attorneys’ (or their clients’) commitment to or belief in their case based on questions of justice or other principles [which are worth, in my opinion, greater attention that purely monetary outcomes] could also delay settlement until “defending the principle becomes too costly” (citation omitted). Finally, attorneys may wish to justify both their role and their fees with unnecessary interactions./1

Are we mendacious, self-serving, parasites of the "justice system," feathering our own comfortable nests as we attempt to preserve the "outdated" notion that the justice system is capable of delivering justice? I don't believe so, but let's not get all anecdotal about these questions when we have cold, hard statistics within reach. What were the results of this study on the way in which attorneys might "get in the way of" a successful mediation?

Here's the bottom line assessment (please read the article yourself to draw your own conclusions).

The empirical data we collected in this study indicate that the presence of an attorney in a mediation does not significantly affect the settlement rate, the time needed to reach an agreement, the perceived fairness of the process, the parties’ level of satisfaction with the agreement, or the parties’ level of trust that the agreement will be honored. These results indicate that attorneys have much less impact than is claimed by those mediators who do not welcome their involvement in the mediation process.

Nevertheless, the results also demonstrate that the presence of an attorney does affect mediation outcomes in at least two ways: by reducing the parties’ level of satisfaction with the mediator’s performance and by reducing the level of reconciliation between parties.

So the Myth Busters of this study conclude that attorneys:

don't "significantly affect the settlement rate" /2
don't significantly affect "the perceived fairness of the process";
don't significantly affect "the parties' level of satisfaction with the agreement; and,
don't significantly affect the "parties' level of trust that the agreement will be honored."

This is the subjective viewpoint of the litigants, mind you, in a dynamic where the mediator often openly attributes the success of the mediation to the clients' attorney - an observation which is more deeply true than most mediators would care to admit with all their white horse hi-ho silver, magic bullet off-to the-rescue enthusiasm.

What did litigants report to the authors of this article? They indicated that attorneys adversely affected mediation outcomes in two ways: (1) they reduced the parties' "level of satisfaction with the mediator's performance"; and, (2) they "reduced the level of reconciliation between the parties."

Of all of the purported effects of attorneys' presence at mediation - without whom, it must be noted, the parties would not likely be induced to sit down and mediate at all -- the only significant perceived difference is the failure of the mediation process to reconcile the parties - something in which the legal system has little to no interest.

Please read the article for proposed solutions to the reconciliation issue. As to the remainder of the study's findings, I have this to say:

whenever two or more people are gathered together, the dynamics of the group more profoundly affect the outcome than do the contributions of any individual member of the group. Our "reality," especially as it appears in a group setting, is "co-created." See the New York Times must-read article on the Psychology of Terrorism and Retail Marketing at Google Books (the latter noting that because people live in a social world which is co-created in social interaction with others . . . . [they] can be thought of as both products and producers of the social world." Id. at 218.)
try as you may, you will never be able to untangle the threads that create the intricate tapestry of a settlement; every member contributes something invaluable without which the precise result could not possibly have been achieved.
who is therefore responsible for the good and who responsible for the purportedly bad results of mediation? That's easy: EVERYONE IS.

That being the case, we are all responsible for our outcomes - whether our contribution is "negative," i.e., resisting settlement, for instance, or "positive," i.e., problem solving the reasons given by Mr. Negative that the case simply can't settle on terms acceptable to all. Remember your University philosophy class? Thesis, Antithesis, Synthesis. We need people willing to state the negative to problem solve it positively. The relationships cause the outcome, not one member of a group unless that member is a tyrant with loyal troops at his command.

If you'll allow me a literary reference that justifies my own collegiate career and says far more eloquently than I ever could why we're all accountable, I first give you one of my favorite authors, Paul Auster (who you may remember as the screenwriter of the movie Smoke).

The world can never be assumed to exist. It comes into being only in the act of moving towards it. Ese est percipii. Nothing can be taken for granted: we do not find ourselves in the midst of an already established world, we do not, as if by preordained birthright, automatically take possession of our surroundings. Each moment,each thing, must be earned, wrested away from the confusion of inert matter, by a steadiness of gaze, a purity of perception so intense that the effort, in itself, takes on the value of a religious act. The slate has been wiped clean. It is up to [us] to write [our] own book. Paul Auster, The Decisive Moment from The Art of Hunger.

The second excerpt I will leave for your thoughtful consideration is by the greatest scholar of comparative religions to ever inhabit the planet - Joseph Campbell (skip the intro with the new age music).

Schopenhauer, in his splendid essay called "On an Apparent Intention in the Fate of the Individual," points out that when you reach an advanced age and look back over your lifetime, it can seem to have had a consistent order and plan, as though composed by some novelist. Events that when they occurred had seemed accidental and of little moment turn out to have been indispensable factors in the composition of a consistent plot. So who composed that plot? Schopenhauer suggests that just as your dreams are composed by an aspect of yourself of which your consciousness is unaware, so, too, your whole life is composed by the will within you. And just as people whom you will have met apparently by mere chance became leading agents in the structuring of your life, so, too, will you have served unknowingly as an agent, giving meaning to the lives of others, The whole thing gears together like one big symphony, with everything unconsciously structuring everything else. And Schopenhauer concludes that it is as though our lives were the features of the one great dream of a single dreamer in which all the dream characters dream, too; so that everything links to everything else, moved by the one will to life which is the universal will in nature.

It’s a magnificent idea – an idea that appears in India in the mythic image of the Net of Indra, which is a net of gems, where at every crossing of one thread over another there is a gem reflecting all the other reflective gems. Everything arises in mutual relation to everything else, so you can’t blame anybody for anything. It is even as though there were a single intention behind it all, which always makes some kind of sense, though none of us knows what the sense might be, or has lived the life that he quite intended.

Joseph Campbell - The Power of Myth, with Bill Moyers, as quoted in Derek Parrott's Blog.

Lawyers, mediators, clients, experts, consultants, legal assistants, and, yes, even your spouse with whom you consulted before today's mediation, every one of them is part of the "net of gems, where at every crossing of one thread over another there is a gem reflecting all the other reflective gems [so that] [e]verything arises in mutual relation to everything else, so you can't blame anybody for anything" and, by the way, we can't credit credit nor bear all the responsibility for anything. We are all capable. We are all accountable. And we all contribute something to the whole.

So we can stop pretending to be better than we are now. We can all put down the burden and shame of our own entirely human fallibility; the myth that we ever do anything without the contribution of others; and, the pretense that we don't behave as badly, or as well, as other people do. We're part of the team. We're in it together. Isn't that good news for the New Year?

And to give you a treat from having gotten this far, a scene that is all about seeing, from Paul Auster's Smoke.

____________________

1/ I'd be interested, of course, in what the authors consider to be "unnecessary interactions."

2/ This is a particularly interesting finding since mediators have also been found not to improve the settlement rate but only greater party satisfaction in several studies.

Don't Leave Money on the Table or Pay Too Much for that Release this Year

Victoria Pynchon — Mon, 11 Jan 2010 12:06:00 -0500

Don Philbin, the author of this must-read article (click on the image for the .pdf) on the reasons you walk away from negotiations fearing you've either left money on the table or paid too much for what you receive in exchange, is an attorney-mediator, negotiation consultant and trainer, and arbitrator.

Don has resolved disputes and crafted deals for more than 20 years as a commercial litigator, general counsel and president of communications and technology-related companies. Don has mediated hundreds of matters in a wide variety of substantive areas and serves as an arbitrator on several panels. He is an adjunct professor at the Straus Institute for Dispute Resolution at Pepperdine Law School, Chair of the ABA Dispute Resolution Section’s Negotiation Committee, and a member of the ADR Section Council of the State Bar of Texas.

Don is listed in The Best Lawyers in America (Dispute Resolution), The Best Lawyers in San Antonio, and the Bar Register of Preeminent Lawyers.

Don's ADR Toolbox where this article can also be found is an indispensable resource for all attorneys negotiating the settlement of a lawsuit or a business deal (wait a minute! the negotiation of a settlement is a business deal!)

And, it's not inconsequential that Don is one of the nicest guys I know. If you're going to spend a day or a week or a month with a mediator or an arbitrator, you deserve not only the brightest, most wise and best prepared arbitrator or mediator, you also deserve to have a little fun in the process because . . . you know . . . the money simply isn't worth the unhappiness that comes when dealing with . . . . the other sort too often.

Happy new year (dispute) resolutions!

Unique Arbitration Procedure for Resolving Claimed Mishandling of 90,000 Reinsurance Claims O.K.'ed by Ninth Circuit

Victoria Pynchon — Fri, 08 Jan 2010 01:21:17 -0500

It appears I'm not the only blogger to open up a second home this year. Greg May of the California Blog of Appeal just launched a companion blog covering the Ninth Circuit here. I cover Greg's analysis of the arbitration panel's handling of the complex reinsurance arbitration given a pass by the Ninth Circuit here.

Once again, I'll be posting about general commercial ADR issues over at the Commercial ADR Blog and limiting the Negotiation Blog to (surprise!) negotiation strategy and tactics.

For readers interested in IP ADR, I'm passing that baton onto the brilliant and talented international mediator and arbitrator Eric Van Ginkel as announced here.

Business to Business Mediation Examined at the Commercial ADR Blog

Victoria Pynchon — Tue, 05 Jan 2010 23:59:53 -0500

I've posted two pieces on non-litigated business to business mediations at the Commercial ADR Blog (here and here) in the context of a dispute between a medical marijuana facility and its neighboring tenant. For reasons not entirely clear to me, the new blog has been generating a lot more comments than this blog generally does which pleases me and leads me to let the Negotiation Blog's readers know of the on-going conversation over there.

Settle It Now's Newstex Syndication, BlawgReview#245, CharonQC, Marlon Brandon, Sacheen Littlefeather and Conflict as Your Zen Master

Victoria Pynchon — Mon, 04 Jan 2010 11:35:02 -0500

I find many of my law blogging friends over at Newstex. Now I've joined them here.

It used to seem odd to me that companies would bundle free blogs and that people would pay for the bundle. With the advent of LawBox, the iPhone application that bundles federal and state codes along with law blog and law news content, I get it. Not everyone's a BlawgReview Sherpa, paging through a news reader containing literally thousands of law blog posts every week for their possible inclusion in BlawgReview. A pre-selected group of law blogs, usefully organized by category (mine is there under ADR) is well worth the money (only the State code materials requirement payment; the federal laws and blogs are free).

But allow me to disgress here to say BlawgReview #245 is brilliant and readable and funny, as we Blawg Review followers would naturally expect from the enviably multi-talented CharonQC. In CharonQC's honor, he who has withdrawn his name from contention for the (admittedly King of the Anthill race for) Best Blawg Review of the Year (candidates here) we give you Sacheen Littlefeather, announcing Brando's rejection of the Best Actor Oscar (YouTube Video here). Ms. Sacheen sent the Academy Brando's "regrets" by denouncing America's mistreatment of Native Americans on and off the screen. And here's Dustin Hoffman's eloquent 1980 speech (again, on YouTube) accepting the Oscar with "mixed feelings" for the extremely good reasons he mentions: it's not the competition, it's the art.

The sixties. They literally bled into the early '70s. You really had to be there.

Below, Brando congratulating CharonQC for standing on his principles.

Hey! It's a New Year. Let's all resolve to make it as fun as it is productive and even half as generous as it is empire-building (or protecting). The Brits have a little to teach us about the loss of world hegemony so put CharonQC on your news reader to help you mourn America's status as a Super Power (an honorific I'm happy to pass along to some other freedom-loving country willing to play policeman to the world).

We'd all do well to adopt the Brits' mordant sense of humor; their ability to soldier on under the worse circumstances; and, their willingness to bear the burdens of universal health care.

What does all this have to do with conflict resolution? As the final chapter in the ABCs of Conflict Resolution (due out this Spring from Janis Publications) explains, Conflict is Our Zen Master?

Why? Because, as Ken Cloke observes in my interview with him about mindfulness and commercial mediation over at mediate.com,

every conflict we experience in our lives occurs at the intersection, or crossroads, between problems we now need to solve in order to grow, and skills we do not yet possess. So, for example, there are no two year olds who experience conflicts over romantic love, because romance is not yet on their agenda, and there are no ninety year olds who have conflicts over who gets to play with the blocks. With each level of growth and development, we experience fresh conflicts and at the same time transcend old conflicts that we not only successfully resolve, but develop the skills to move beyond. Helping people experience transcendence and evolve to higher levels of conflict and resolution is what I mean by the capacity of this field to do something really miraculous, something that is beautiful, but has an underpinning of logic and rigor.

In other words, conflict arrives on our door only when we need to learn something new and to challenge ourselves to learn a new set of conflict resolution skills, or to take a new point of view, that will move us past our current distress and into a higher level of conflict that befits the maturity we've achieved so far. In that, conflict is our Zen Master. I know. Every time I complain about my husband to my best (Buddhist) friend, she says, "remember, Steve's your Zen Master," and I remember that my present distress has something to teach me about my ability to love, accept, forgive or transform before I will be able to move on to a greater level of compassion, skill, understanding, meaning and, yes, love.

That's my stream of consciousness this morning. Happy new year to all!

Got a new iPhone for the holidays? give yourself lawbox for the new year!

Victoria Pynchon — Fri, 01 Jan 2010 17:42:36 -0500

LawBox for iPhone.

Carry your codes; the New York Times; ABA feeds; and, your favorite law blogs in your pocket along with the Federal Rules of Civil Procedure and Evidence. Not only is all of this free, if you're a legal blogger, you're highly likely to see your own blog here (copyright violation? perhaps but LawBox links to my negotiation blog after the first paragraph so it's just another way for lawyers to be introduced to my blog, which is fine with me).

If you want the essential codes from your own State (mine, the Cal. Rules of Civil Procedure; the Evidence Code; and, the Civil Code) you'll have to pay 99 cents for each. Imagine yourself saying to the Judge - "if you'll allow it, your Honor, I'm sure I can answer your question if I can just consult the Civil Code on my iPhone"!

I often wish I had these Codes when mediating a case, particularly when we're writing up the settlement agreement and I want to make sure "deal points" are enforceable if the parties resist my strong recommendation that we draw the complete agreement up then and there. See Evid. Code section 1123 and Code of Civil Procedure 664.6; I can get them for you in just a second; they're on my iPhone!

For a kid who spent her early years Shepardizing by the book (red hardbound; yellow paper supplement; red paper supplement & newsprint supplement) having the LawBox and Lexis/Nexis Shepardizing on my iPhone is sort of like watching John Glenn launched into space on the television in the elementary school cafeteria. Sooooooooo cooooooooolllllllllll.

But seriously, I like the layout; the ease of access; the way in which the legal blogs are categorized; and, most of all, the fact that I can turn to the law or news I want without typing something into google, WestLaw or Lexis/Nexis.

Check it out!

Ten New Year's (Dispute) Resolutions for 2010

Victoria Pynchon — Thu, 31 Dec 2009 15:57:16 -0500

I will practice restraint of tongue and pen
When my anger flashes, I will pause to remember that behind every accusation is a plea for help
When in the midst of a rancorous debate, I will remember to ask for the story behind the opinion
I will remember that each of my fellows is struggling with burdens that, if known, would cause me to respond to them with far greater kindness
I will remember that I, too, am subject to fundamental attribution error - over-ascribing intention to those whose behavior causes me real or perceived harm and over-ascribing circumstance to any behavior of mine that causes others real or perceived harm
I will strive to practice my primary occupational purpose: to stay emotionally sober and to help others achieve emotional sobriety
When I do cause others harm, I will promptly admit my part in it, apologize, make amends and strive to avoid similar behavior in the future
Of the primary responses to conflict -- suppression, avoidance, yielding, resolution, transcendence and transformation, I will strive for resolution, transcendence or transformation
I will keep in mind that it is usually better to be happy than to be right
I will strive to accept the things I cannot change; to rise to the challenge of changing the things I can, and to seek the wisdom necessary to know the difference.

More conflict resolution meditations for the New Year here (at John Lassey's ADR Weblog) here (announcing the CPR Annual Meeting with keynote speaker Kenneth Feinberg, recently appointed as President Obama’s “Compensation Czar” to oversee executive compensation at companies receiving federal bailout assistance); here (Innovative Conflict Resolution's first post of 2010 - about conflict "left-overs"); here (Jeff Thompson's Enjoy Mediation rolling out a new blog template for the New Year); here (the Peace Talks Radio Series special on Seeking Peace on Earth); and, here (Amerika on Conflict Avoidance and How to Avoid it).

Two of my favorite bloggers ended their blog-year with gratitude for fellow bloggers - thanks for the shout out John DeGroote at the brilliant and necessary Settlement Perspectives (A Simple Thank You); and the Loree Reinsurance and Arbitration Law Forum's Acknowledging Some Kind Mentions from Our Fellow Bloggers).

O.K., Ladies and Gentlemen: start your 2010 engines; it's going to be a busy and productive year! Lord knows there's lots of conflict resolution work to do.

Insurance Coverage Negotiation Case Study

Victoria Pynchon — Mon, 28 Dec 2009 23:29:50 -0500

There's a nice little case study over at my other blog - the Commercial ADR Blog - that you might want to check out if you represent policyholders or insurance carriers in coverage disputes or if you're interested in the power of anchoring and bracketing.

It might take me awhile to define the scope of the new blog - meant to address substantive commercial legal ADR issues - and the reduced scope of this blog. In the meantime, I'm likely to refer one to the other on a fairly regular basis.

Thanks for your patience!

Should HR Professionals Work Up the Courage to Negotiate Competitively?

Victoria Pynchon — Mon, 28 Dec 2009 13:20:58 -0500

Check out Kris Dunn's recent blog post at the HR Capitalist Retail and Religion - Now Inhibiting the Negotiation Skills of an HR Pro Near You...

Though the reasons given for our negotiation hesitancy are insightful and, I believe, spot on, the post moved me to more or less use the HR Capitalist Blog's comment section to write today's post. Here's the intro to Retail and Religion.

Have you ever noticed how bad a lot of Americans are at negotiating? I don't mean the type of negotiation you're doing on eBay right now; I mean real negotiation. The kind where if you're going to win, somebody has to lose. Where every dollar you save or gain comes right out of someone else's pocket. The type of negotiation where you are telling someone directly, either face to face or on the phone, what's acceptable and what's not.

Though my response will not surprise my readers, I'm hoping it will spark a conversation at the HR Capitalist. The intro to my comment here:

Thanks for raising negotiation skills as a matter worthy of discussion among HR professionals. Let me suggest, however, that savvy, money-saving, value-enhancing negotiation strategy and tactics are rarely of the competitive zero-sum variety.

A few bedrock principles of value-enhancing collaborative problem-solving negotiation include: (a) a dollar is not a dollar, i.e., everyone has a different subjective experience of money and its source; the reason for its payment; the timing of its receipt; and, the degree to which it fairly reflects value are just a few of the variables that can make one dollar feel like $10 or $100,000 feel like a slap in the face; (b) HR professionals and their employers possess items of value which are often of greater worth to employees than the cost of the thing to the employer - this means that employees can be compensated $1.00 in value with something that costs the employer 50 cents or, even better, with something that costs the employer absolutely nothing (expressions of gratitude; the inclusion of employees in the decision-making process when the decision will affect the working environment and so on); and, (c) most people are more interested in how their compensation compares to others who do the same or similar work than they are in the unadorned dollar value of their compensation - this I learned from sitting in compensation committee meetings in law firms where litigation partners would become enraged by a $200,000 year end bonus for the sole reason that another partner received a $500,000 year end bonus. It wasn't about money; it was about fairness.

So, do we need to screw up our courage, drop our hesitancy, and go bravely forth into competitive, distributive zero-sum bargaining session to prove our negotiation moxie?

For the answer - or at least one possible answer - to this question, click here.

For further human resource lessons from the recently released "Up in the Air" see today's post at Pension Risk Matters - "Up in the Air" - Stark Reality about Employee-Employer Relationship and last week's post at Schau's Mediation Insights, Does Staying Neutral Require Staying "Up in the Air."

Value-based mediation fees? Listen to the conversation here

Victoria Pynchon — Sun, 27 Dec 2009 23:00:44 -0500

Value-based fees in the mediation and ADR world

Professional mediators Amanda Bucklow, Tammy Lenski and Diane Levin discuss the problems associated with hourly and project billing, and ponder the promise and challenges of value-based fees. Two resources were referenced in the discussion: Consultants and value-based billing proponents Alan Weiss and Wendy Werner.

New Year's Negotiation Resolution: Dialogue with the Public Conversations Project

Victoria Pynchon — Sun, 20 Dec 2009 12:25:05 -0500

Click on the image for the link to the Public Conversations Project and join me in my New Year's resolutions to focus on our similarities and common interests rather than on our differences and conflicting goals; find common ground; share the experiences from which our opinions dervice (our stories); set aside argument in favor of dialogue; remember that each one of us is struggling with some great burden despite outward appearances; and, that squeezing the last nickel or concession out of our bargaining partner fails to recognize that we are all in this together.

For the many spiritual holidays being celebrated at year's end, I offer my own favorite prayer from my own religious upbringing, the Prayer of St. Francis of Assisi:

Lord, make me an instrument of your peace,
Where there is hatred, let me sow love;
where there is injury, pardon;
where there is doubt, faith;
where there is despair, hope;
where there is darkness, light;
where there is sadness, joy;

O Divine Master, grant that I may not so much seek to be consoled as to console;
to be understood as to understand;
to be loved as to love.

For it is in giving that we receive;
it is in pardoning that we are pardoned;
and it is in dying that we are born to eternal life.

Happy Hannukah, Kwanza, Festivus, Solstice, Merry Christmas and Happy New Year!

Negotiating Social Media Future with Stephen Fry

Victoria Pynchon — Sat, 19 Dec 2009 12:22:05 -0500

For my readers' holiday viewing pleasure (particularly those who tweet!)

The Prisoners' Dilemma, Rawls' Theory of Justice and the Healthcare Debate

Victoria Pynchon — Wed, 16 Dec 2009 10:58:29 -0500

Healthcare Napkins All

Napkin Presentation thanks to John-Folk Williams at Cross-Collaborate

Cheyney Ryan, a philosophy professor at the University of Oregon, contributed a short but extremely useful article to the must-have Negotiator's Fieldbook entitled Rawls on Negotiating Justice. John Rawls, Ryan explains, is the seminal philosopher of justice in the 20th century. "From the start," writes Ryan,

Rawls asked us to think of justice as a matter of agreement. He suggested that we think of the principles guiding a just society as the ones that individuals would agree to -- with the crucial proviso that they do not know where they themselves would end up in society, on the top or the bottom. They would thus act from behind a "veil of ignorance . . . Given this constraint, no individual could tailor the principles of justice to his or her special talents or circumstances, which is why Rawls called this approach "justice as fairness." Rawls suggested that the principles that would be agreed to would be ones that were deeply committed ot basic human rights and had a strong presumption in favor of economic equality. Inequalities would only be tolerated if they most greatly benefited the least well off.

According to Ryan, Rawls later concluded that the reciprocity inherent in bargained-for resolutions and a negotiated mutual advantage were insufficient to ensure justice. "The question to ask of principles of justice," Rawls asserted, was,

what were the most reasonable ones for people to agree to given the nature of our society and the nature of who we are? Justice, thus reconceived, lost the harsh individualism that Rawls' earlier theory seemed to possess. The stress on reasonableness meant that people taking others into account was an essential part of what justice was all about. His theory also moved away from his earlier hyper-abstraction, insofar as we talk of what is "reasonable" invariably refers not to some hypotheitcal persons with hypotheical aims but to real people -- in this case, us, here and now.

So this is what I'd like to ask my readers to do about the health care debate right after the jump.

It's a thought experiment. I don't want to urge you to think about it the way I do. I don't want you to think about it as a progressive, a liberal, a Republican, a Democrat or an Independent. I don't want you to think about it as an insurance executive or even as a taxpayer. I don't want you to think about the probable effect of the pending Bills on the economy (unless you're an economist with the credentials to do this). Here's what I want you to do and I want you to ask your friends and neighbors and congresspeople and senators and your insurance broker and chamber of commerce and PTA and Bar Associations to do:

Blind yourself to your socio-economic status, if only just temporarily. If it helps, think of someone who is as far distant from your own place in society as possible. If you are an insurance coverage attorney with a nice house in a good neighborhood with quality schools and a good health care plan, I want you to imagine yourself a pregnant teenager who has no father and whose mother works as a cashier at a local hardware store that cannot afford to purchase group health insurance. She is under-insured, having purchased the only plan she could afford. She was diagnosed with breast cancer just last week.

If you are unemployed and your COBRA benefits are running out, I want you to imagine yourself a United States Senator with responsibility for insuring that all Americans have access to quality health care while at the same time answering to the folks back home who are afraid the cost will show itself in increased taxes; the quality of care will plummet; and, the insurance industry will be hobbled, decreasing the benefit of private insurance plans to those who have them now.

Ready?

Now do what Rawls asks. Acting behind a veil of ignorance about your place in the social order, craft a principled means of providing Americans with healthcare (government-funded, privately offered or a combination of both) that is a fair and reasonable means for achieving the greatest good for the greatest number. If that seems daunting, shrink your world to the size of a tropical island like the ones the survivors of the TV series Lost live on. And if you've never seen Lost, just think of a society on an island cut off from communication with the rest of the world with about 100 people -- 50 in one "camp" and 50 in another -- with a single physician able to serve everyone's needs. Here are some season previews that will help you get the Lost idea.

Go! Please ask your friends to participate, leave your solutions in the comments box and tweet this!

The Prisoners' Dilemma piece of this before day's end.