Settle It Now Negotiation Blog

Negotiating Influence: How to Help Your Opponents Change Their Minds

vpynchon@settlenow.com (Victoria Pynchon) — Thu, 07 Aug 2008 11:47:18 -0500

I have alot more to say about this but for the moment am simply linking you to an article at Cognitive daily demonstrating the known fact that you are far more likely to persuade another if you are making eye contact with him.

And still opposing parties resist sitting in the same room with one another when attempting to settle litigation!

There is a considerable body of research showing that eye contact is a key component of social interaction. Not only are people more aroused when they are looked at directly, but if you consistently look at the person you speak to, you will have much more social influence over that person than you would if you averted your gaze.

For full article, click here.

Confidentiality Means Never Having to Say We're Liable

vpynchon@settlenow.com (Victoria Pynchon) — Wed, 06 Aug 2008 16:25:04 -0500

(image: Le Silence O Redon)

In today's Daily Journal, reporter Greg Katz writes that DESPITE RULES, NEUTRALS ARE RARELY BLAMED WHEN THEY MEDIATE AND TELL.

"What happens," asks Katz, "when a mediator is accused of breaking mediation confidentiality, the thing many mediators say is essential to their craft?"

The answer: probably nothing.

As Katz reports, the Simmons v. Ghaderi opinion that made mediation confidentiality iron-clad, arose from a mediation in which the neutral provided a sworn declaration to the Court reciting "details about [his attempt] to persuade Ghaderi to sign her consent," among other things.

Ron Kelly, an architect of the state's confidentiality statutes, opined that the Declaration filed by the mediator in the Simmons case breached "Evidence Code Section 1121, which forbids mediators, in most instances, from reporting to the courts anything that takes place in their mediations." Kelly concluded by saying,

If you were going to go after a mediator for malpractice, it seems like an open-and-shut case of violating the law would be a good start, don't you think?

Yes I do. Yet local attorneys and mediators seem unconcerned. Lucie Baron of ADR Services told Katz that her panel of neutrals had no policy on the matter because the mediators -- after all -- are attorneys and independent contractors to boot. They don't, she noted, ask her for legal advice.

Not a bad call on Baron's part. But what about the neutrals?

Their lack of attention to the spectre of "open-and-shut" malpractice litigation is perplexing. Though the Simmons mediator could colorably claim that the law of confidentiality was unsettled at the time he submitted his declaration -- or that the factual scenario before him permitted the disclosures made -- in a post-Simmons environment, neutrals cannot be so sanguine. Any disclosure of any communications during a mediation by the neutral would likely be actionable so long as it caused one of the litigants appreciable harm.

When someone is unhappy with a result -- as too many litigants of mediated settlements are /* -- they search the field for people to blame.

So far, mediators haven't been among the potential culprits.

I wouldn't count on that situation lasting much longer.

_____________________

*/ More on this topic soon.

Read Negotiating Life's End from the Bottom Up

vpynchon@settlenow.com (Victoria Pynchon) — Wed, 06 Aug 2008 14:16:53 -0500

I've received numerous notes about (and seen numerous "hits" to) the series "Negotiating Life's End." Many of this series' readers do not otherwise read blogs. The purpose of this note is simply to say that a blog (web log) reads in reverse chronological order, i.e., to start at the beginning, you need to scroll down to the end for the first post and then read the post immediately above that and the one above that, until you come to the end, which is the beginning. (see Little Gidding below)

If you'd like to read the series in sections by clicking on links in the usual order -- first to last -- here they are:

Negotiating Life's End

Negotiating Life's End: Part Two

Negotiating Life's End: Part Three

Negotiating Life's End: A Note of Gratitude for My Friends and Readers

Negotiating Life's End: Part Four

Negotiating Life's End: Part Five

Negotiating Life's End: Part Six

Negotiating Life's End in Mediation?

Negotiating Life's End: the Coming Crisis and Likelihood of Litigation

The Truth of Departure

For Friends and Family

I Owe it All to Dad

Below, My sister Sharon, Dad, me and my nephew Daniel.

It's very gratifying to find that my own experience can be of some use to others. Please feel free to use the comments section to share your own stories, dreams, fears, challenges, successes, failures, triumphs, losses and the like associated with the lingering death of a loved one.

Life's far to short not to avail ourselves of the opportunity to create community, particularly when we are most in need of the experience, strength and hope of others who share our predicament.

We shall not cease from exploration
And the end of all our exploring
Will be to arrive where we started
And know the place for the first time.

T.S. Eliot, Little Gidding, The Four Quartets

Neutrality, NFL Referees, Federal Judges and Mediators

vpynchon@settlenow.com (Victoria Pynchon) — Wed, 06 Aug 2008 12:23:49 -0500

I'm just back from a Judicate West retreat where we discussed the legal, practical and ethical issues of "neutrality." So it is with no small amount of interest that I read Concurring Opinions provocative post I Trust NFL Officials More than I Do Federal Judges (h/t Quizlaw).

Here's what Erik Lillquist has to say about the NFL official/federal judge comparative neutrality quotient:

My motivation for the title of the post is that I think NFL officials are actually better than judges on a number of these scores. For instance, NFL officials do not have the repeat-player problem. Furthermore, NFL officials are graded on all their calls, from every game, ensuring that the same calls are being made in all situations (and these days, they have to contend with the possibility of instant replay review on every call). And unlike federal judges and (to a certain extent) major league umpires, NFL officials are subject to the real possibility of termination for poor performance, something that cannot happen to Article III judges and rarely happens with major league umpires. As this LA Times article notes, between 2004 and 2007, there was actually more new Supreme Court justices than new (full-time, I assume) major league baseball umpires. In the NFL, on the other hand, turnover is more common. Because being a NFL official is so relentlessly competitive, the result is that (I think) NFL officials are more likely to get the call right than your typical judge (or umpire).

To say neutrality is not precisely defined in mediation theory and practice is a vast understatement. Consider these definitions of neutrality as reported in a "Knowledge Base Essay" on Neutrality at Beyond Intractability.

According to experienced mediator Robert Benjamin, neutral mediators:

will not intervene in the substance of the dispute;

are indifferent to clients' welfare;

have no relationship with the parties outside of the mediation;

will not attempt to alter perceived power balance differences;

are disinterested in the outcome; and

are unconcerned with the impact of the settlement on unrepresented parties.

In contrast, Kevin Gibson, Leigh Thompson, and Max Bazerman (1996) identify three distinct conceptions of neutrality.

Neutrality as impartiality, which holds that the mediator should be free of bias and should set aside his or her opinions, feelings, and agendas.

Neutrality as equidistance, which focuses on the idea that mediators should try to give equal consideration to each side.

Neutrality as a practice in discourse. Mediators are supposed to shape problems in ways that give all speakers a chance to tell their story in a way that does not contribute to their own de-legitimization or marginalization.

The mediator gives each side a chance to talk about their positions and concerns, and then reframes these issues in a more neutral way so that parties are more likely to listen to and understand the other side's viewpoint.

Then the mediator helps the parties to explore settlement options and to move toward a solution that all can agree on. Neutrality means that the mediator who facilitates this discussion should not have an interest in advancing the goals and positions of any party involved.

Similarly, Rachel Field (2000) points out that the term 'neutrality' encompasses "issues such as

a lack of interest in the outcome of the dispute,

a lack of bias towards one of the parties,

a lack of prior knowledge of the dispute and/or the parties,

the absence of the mediator making a judgment about the parties and their dispute, and

the idea that the mediator will be fair and even-handed."

Thoughts from our readers?

It's Never Just About Money: The Wilson Sonsini Settlement

vpynchon@settlenow.com (Victoria Pynchon) — Wed, 06 Aug 2008 11:25:19 -0500

Big or small, litigation is never just about money. Nor is settlement just about the strength of the parties legal positions or even the relevant facts. Here, as reported by the Wall Street Journal Law Blog in Is It a Settlement? Wilson Pays Brocade to be Released From Backdating, its also about relationship and cooperation and respect. Who knew?

So why would the S[pecial Litigation Committee] release [Wilson Sonsini] and Larry Sonsini? The SLC wrote that it weighed the opinion of a legal ethics expert as well as testimony and documents related to Sonsini and the firm’s roles at Brocade. It also listened to Sonsini and his firm’s “contentions that Brocade employees misled WSGR about stock-option grants” and that the firm had negotiated a good settlement with the SEC and helped avoid DOJ action against Brocade. The committee also considered the firm’s longstanding relationship with Brocade and the firm’s “willingness” to help the company resolve any “outstanding questions” about the backdating.

For the entire WSJ Law Blog post, click here.

Below -- Annie Lennox' Money Can't Buy It -- with a little Demi Moore Striptease for our gentlemen readers' mid-week enjoyment (with apologies to the puritanical and those who simply can't abide Demi Moore).

The IP Executive Summary of Blawg Review # 171

vpynchon@settlenow.com (Victoria Pynchon) — Tue, 05 Aug 2008 17:26:20 -0500

There's been some salacious commentary (such as WAC's Like a Vixen) about Blawg Review # 171. I just want to say to anyone who missed the sexual revolution -- on either side of the generation gap -- we're sorry to have started it all. We just never really left high school.

We've also heard some complaints that the most recent Blawg Review is just too darn long. In honor of our sister blog and those attorneys who are still billing 2400 hours/year, we give you the IP Executive Summary of the Virgin Blawg Review #171 below.

Isaac Newton. The Straight Dope thinks the virginity of this octogenerian scientist and mathematician is less surprising that the fact that the math gene somehow keeps perpetuating itself. We consecrate Newton's virginity to this week's best IP and IT posts. William ("I am virginal") Patry is asking questions about the government's engagement in copyright infringement but it is Patry's final blog post that we celebrate as a true virginal moment. Pause here.

My late mother, aleha ha-shalom, told me repeatedly that I had a religious obligation to learn every day, and I have honored her memory by doing exactly that. Learning also involves changing how you think about things; it doesn't only mean reinforcing the existing views you already have. In this respect, Second Circuit Judge Pierre Leval once said that the best way to know you have a mind is to change it, and I have tried to live by that wisdom too. There are positions I have taken in the past I no longer hold, and some that I continue to hold. I have tried to be honest with myself: if you are not genuinely honest with yourself, you can't learn, and if you worry about what others think of you, you will be living their version of your life and not yours.

Other IP bloggers have, of course, reflected on Patry's Final Blog Words here and here.

Back in the worldly word, Patently O -- which promiscuously shares itself with millions of readers every year -- turns its pen over to David McGowan who discusses why we should not interpret the recent Quanta decision too broadly. Lou Michels suggests we be the masters of our own domains, using the the recent San Francisco IT fiasco as a cautionary tale -- don't let a single person have control of all the keys to your kingdom.

We've heard tell that reading your iPhone has replaced the cigarette for post-coital bliss, in which case you'll be glad to hear Brett Trout at BlawgIT suggest that you might soon be watching television from that device. Protection, protection, protection. In a software license, boilerplate integration and non-reliance terms might not insulate a firm from claims based upon its salesfolks "over"promises. Elsewhere, at least one IP Blogger wonders whether blog content licensing might be dying for lack of buyers? (people pay for Blog content while I give it away for free?????)

The IP Dispute of the Week, of course, is Hasbro's suit against Rajat and Jayant Agarwalla for their Facebook hit Scrabulous. Scrabble itself was invented during the Depression by Alfred Mosher Butts, an out-of-work architect. How did he do it? As the New York Times explained in its review of Steve Fastis book, Word Freak (Zo. Qi. Doh. Hoo. Qursh) Scrabble's inventor assumed that the game would work best if the game letters "appear[ed] in the same frequency as in the language itself." So he

counted letters in The New York Times, The New York Herald Tribune and The Saturday Evening Post to calculate letter frequencies for various word lengths. Playing the game with his wife, Nina, and experimenting as he went along, Butts carefully worked out the size of the playing grid (225 squares, or 15 by 15), the number of tiles (100), point values for the letters, the placement of double- and triple-score squares, the distribution of vowels and consonants, and so on.

In response to the Hasbro lawsuit Ron Coleman at Likelihood of Confusion asks "How Many Points is Infringement?" -- one of those rare legal questions that actually has an answer rather than 20 more questions.

If Player 1 opens with "fringe" (double word) for 24 points; Player 2 follows by slapping an "i" on the triple word score followed by an "n" for "infringe" and 33 points; and, Player 1 responds with "ment" for 19 points, the combined score for "infringement" is 75 points. Our readers can do the math and moves on "trademark" and copyright."

On the matter of greater moment -- Will the ax fall on Scrabulous -- Jonathan Zittrain at The Future of the Internet answers his own question in the affirmative based on the name alone, opining that by calling it "rainbows and buttercups” instead of “Scrabulous” there’d be little claim of brand confusion but noting the "residual claim that the Scrabulous game board infringes the copyright held in the Scrabble game board." More on Scrabulous and its replacement with Word Scraper at the Video Game Law Blog here. (Mr. Thrifty's and my first game of Word Scraper here!)

Has anyone recently said God bless the best IP aggregator in the universe -- the IP Think Tank's Global Week in Review? This week IPTT points to the following posts on the Hasbro Scrabble debacle -- (Spicy IP), (Techdirt), (The Trademark Blog), (Out-Law), (Law360). While we're talking IP aggregation, check out Patent Baristas' regular Friday IP Round-up. All around aggregators include Anne Reed's (Deliberations) reading list and Kevin O'Keefe's LexMonitor.

Both Geoff Sharp and I picked up 8 impediments to settling patent cases on appeal (a desire for "justice" is not an impediment but a means to settlement). While we're taking an ADR angle, Virtually Blind's post Second Life Lawsuit Avoided; Law is Cool's Love, Actionable; and, Slashdot's recommend reading of the week (The Pragmatic CSO) are all well worth a look.

Slashdot also reminds us that IP prevention is worth a pound of IP litigation with the post WB Took Pains to "Delay" Pirating of the Dark Knight as follows:

"a new studio tactic [is] not to prevent piracy, but to delay it . . . Warner Bros. executives said [they] prevent[ed] camcorded copies of the reported $180-million [Dark Knight] film from reaching Internet file-sharing sites for about 38 hours. Although that doesn't sound like much progress, it was enough time to keep bootleg DVDs off the streets as the film racked up a record-breaking $158.4 million on opening weekend. . . The success of an anti-piracy campaign is measured in the number of hours it buys before the digital dam breaks.'"

If you're sufficiently virginal to believe in magic, check out the Law and Magic Law Blog's announcement of the dismissal of a defamation lawsuit against Magic Mag as protected opinion while Ernie the Attorney has at least one more make to make your iPhone magic here.

Meanwhile, the Legal Talk Network gathers together bloggers and co-hosts, J. Craig Williams and Bob Ambrogi to welcome Attorney Kevin A. Thompson from the firm Davis McGrath LLC, and Lauren Gelman, Executive Director of Stanford Law School's Center for Internet and Society to discuss Viacom's suit against Google's YouTube for the violation of its copyrights in a $1 billion lawsuit.

Because I used to type patent applications for Uniroyal (IBM Selectric - 5 carbon copies) I get a sweet whiff of nostalgia from Wiki Patents -- like this one -- Flexible Row Redundancy System 7404113 -- a row redundancy system is provided for replacing faulty wordlines of a memory array having a plurality of banks. The row redundancy system includes a remote fuse bay storing at least one faulty address corresponding to a faulty wordline of the memory array . . . . Another available data base for the engineering-attorney crowd is the subject of Securing Innovations post IBM Technical Disclosures' Prior Art Data Base. Concurring Opinions covers IP in the News this week, Peter Zura's 271 Patent Blog considers a patent that was a "Colossal Waste of Time" and IP Kat curls up with Small and Sole.

Next week, the Blawg Review will be hosted by the Ohio Employer's Law Blog which we expect will be far more respectful of BR's readers' political, religious and sexual sensitivities than this one was. Thanks for letting us play. And a very, very, very good night!

Slow Down -- Trial Lawyer Practicing Tranquility Nearby

vpynchon@settlenow.com (Victoria Pynchon) — Mon, 04 Aug 2008 23:28:31 -0500

Check out Underdog's Blog post Practicing non-anger if you're feeling stressed and cranky. Because there's a riot of unruly pre-school children residing inside of me, I too center myself as often as possible by remembering that everything is internconnected. Here's what DUI attorney Jon Katz does to keep himself from boiling over.

One approach I try to use in staying consistently calm and not angry is in focusing on how everyone ultimately is interconnected. Those who reach such a view from a deeply-held religious perspective -- which I do not, still remaining an agnostic who is into Judaism and Buddhism nonetheless -- might have an easier time sticking to the view than I do.

In any event, the more we see that we are interconnected, the less we will be tempted to cause disharmony to others and the more we will want to help everyone rise as we rise, and not to try to pull them into a ditch even if we find ourselves in one.

Read the remainder of the post here.

I was just telling Mr. Thrifty over the dinner dishes that my life as a litigator got far far better when one of my biggest and most enduring pieces of litigation was assigned to Judge Carolyn Kuhl over at the Complex Court here in Los Angeles. She set such an even-tempered example that opposing counsel and I aspired to live up to it. We wanted to please her. Everything got better after that.

That led me to think about the way Judges' ill tempers effects their dockets. The Judge bats the attorneys around the courtroom like cat toys and they begin to behave like caged animals on an electrified grid. The attorneys behave badly and that irritates the Judge who demeans and belittles them. The attorneys then demean and belittle each other and everyone is trapped in the vicious cycle.

Maybe if Judges realized that they have this effect on attorneys, they'd adjust their own attitudes and see the attorney wrangling before them chill out a little.

Thanks for the wise words, Jon.

The Virgin Blawg Review # 171 is Sleeping . . . . .

vpynchon@settlenow.com (Victoria Pynchon) — Mon, 04 Aug 2008 12:00:15 -0500

but Blawg Review # 171 is designed to wake you up!

Negotiating Bankruptcy

vpynchon@settlenow.com (Victoria Pynchon) — Thu, 31 Jul 2008 10:22:44 -0500

My favorite local bankruptcy mediators

Ben Siegel of Buchalter (left)

former bankruptcy judge Herb Katz (right)

Bankruptcy mediation catches on nationwide

A decade ago, there were only a handful of mediation programs in bankruptcy courts.

Long associated with family law disputes, mediation programs were slow to catch on in complex business litigation, including bankruptcy cases.

But that's changing.

More than two-thirds of the 90 bankruptcy courts have mediation available, according to Robert Niemic, senior attorney at the Federal Judicial Center. Even more offer some other form of alternative dispute resolution, such as judicial settlement conferences.

In the U.S. Bankruptcy Court for the Central District of California, more than 3,800 cases have been referred to mediation since 1995. About 64 percent of those cases were resolved through settlements.

To keep costs down, the first day of mediation is free. Parties choose from a list of 200 attorneys and non-attorneys, such as accountants and financial experts, who volunteer as mediators.

Chief Bankruptcy Court Judge Barry Russell, who launched the mediation program in 1995, said that most cases settle in a day, producing major cost savings for both the court and the parties involved.

For full article, click here.

Change Your Definition of Winning?

vpynchon@settlenow.com (Victoria Pynchon) — Wed, 30 Jul 2008 12:21:45 -0500

Change your definition of “winning” to include the business perspective. “Winning for the business” may not mean victory in a trial but preserving management time and protecting the business’s reputation and brand. From Early Case Assessment from Seagate Services.

Seagate is selling an e-discovery product (reason number one for leaving commercial litigation now -- e-discovery). But the quote above nails my own attitude toward resolving complex commercial disputes.

Negotiating Revenge

vpynchon@settlenow.com (Victoria Pynchon) — Tue, 29 Jul 2008 12:46:33 -0500

Who negotiates revenge?

Lawyers, of course.

In the criminal law, the negotiation ends either in a plea bargain or the Best Alternative to it -- trial.

Most civil lawyers don't think about revenge much. When settling a case, however, they should understand their clients' desire for vengence if they want to break past the psychological impasse to giving up the ultimate reward in a society based upon the law -- vindication of a party's position and punishment of the opposition by way of a jury verdict.

Today, the New York Times -- in Calculating Economics of an Eye for an Eye by Patricia Cohen -- brings us a better way to understand the primal need for vengence which, it seems, is based not only on our "human nature" but also on our acculturation and personal experience.

Even Dr. Melfi wants revenge in a world where the "justice system is %$^#'ed up."

The good news for countries clinging to the rule of law (as we are despite the recent assaults upon it) is as follows:

vengeful feelings are stronger in countries with low levels of income and education, a weak rule of law and those who recently experienced a war or are ethnically or linguistically fragmented. Anthropologists tend to believe that vengeful feelings were useful in binding a family or group together in early human society. They were protective devices before states were established and did the job of punishing wrongdoers.

Check out the full article here. H/T to Marginal Revolution here.

Head's Up for Blawg Review No. 171 at the IP ADR Blog

vpynchon@settlenow.com (Victoria Pynchon) — Tue, 29 Jul 2008 00:21:14 -0500

This is how hard I'll be working this week -- with a little help from my IP ADR Blogger colleagues -- to bring Settle It Now's readers one of the best Blawg Reviews of the year over at the IP ADR Blog this coming Monday.

If you've never participated in a Blawg Review before, check out the guidelines for submission here.

Though we've been reading Blawg Review since we put up our first tentative post on blogger (here!) in June of 2006, as hosts, we're Blawg Review virgins. So send your best posts this week to Blawg Review (follow those guidelines above) for possible inclusion in possibly one of the best BR's ever (we like to set our own bar high!)

And if you're a true Blawg Review virgin, here's how Blawg Review explains itself:

The Carnival of Law Bloggers

Blawg Review is the blog carnival for everyone interested in law. A peer-reviewed blog carnival, the host of each Blawg Review decides which of the submissions and recommended posts are suitable for inclusion in the presentation. And the host is encouraged to source another dozen or so interesting posts to fit with any special theme of that issue of Blawg Review. The host's personal selections usually include several that reflect the character and subject interests of the host blawg, recognizing that the regular readership of the blog should find some of the usual content, and new readers of the blog via Blawg Review ought to get some sense of the unique perspective and subject specialties of the host. Thanks to all the law bloggers who collaborate to make Blawg Review one of the very best blog carnivals of any genre.

Blawg Review 170 Negotiates Simple Justice

vpynchon@settlenow.com (Victoria Pynchon) — Mon, 28 Jul 2008 10:57:47 -0500

My friend, Joe Mockus, a criminal defense attorney in the San Francisco Bay area, once asked me, "just what is it that you do all day long?" I know what Joe did. He had at least one hundred court appearances a day and once in awhile tried a major felony case. He was negotiating while I was writing stake-in-the-heart summary judgment motions in cases with 2 million documents coded in the Phillipines. I took a lot of depositions and, if I was very very very lucky, I got to try a case to a jury once every five to ten years.

If you're a civil litigator like me (read: "not really a trial attorney") and you haven't thought of criminal law since your first year of law school (it has something to do with a man jumping out a 20 story window and then being shot by an angry mistress from the 10th floor, right? Cf. Magnolia below) then amble on over to Scott Greenfield's Simple Justice for a satisfying look at the world criminal lawyers inhabit every day.

And next week, we'll be hosting the Blawg Review over at the IP ADR Blog. Which reminds me, this is likely the first and only post on this blog you'll get this week!

Habeas corpus actus reus corpus delicti crimen falsi crimen innominatum crimem laesae maiestatis de minimis non curat lex.

The Magnolia criminal law bar exam question half-way through this opening to the darkest comedy of the 20th Century, Magnolia.

Florida Insurance Carriers Barred from Requiring Policy Holders to Arbitrate Disputes

vpynchon@settlenow.com (Victoria Pynchon) — Sun, 27 Jul 2008 02:02:07 -0500

Florida Insurance Commissioner Praises Mandatory Arbitration Ban

Thanks to the LexisNexis Insurance Center Staff

TALLAHASSEE, Fla. -- Florida Insurance Commissioner Kevin McCarty welcomed the First District Court of Appeal's decision affirming the Office of Insurance Regulation's denial of United Insurance Company of America's request to include a mandatory arbitration clause in its life insurance contracts.

Arbitration would have forced disgruntled policyholders to bypass the legal system to settle disagreements. United appealed OIR's action and the court affirmed the denial.

"Policyholders have fewer rights and constitutional protections under the more restrictive arbitration process than they would have in a civil court proceeding," said McCarty. "I'm pleased that the Court made it clear that Florida consumers should not be shut out of the traditional legal system to press their grievances against insurance companies."

Although United argued that federal arbitration law superseded the Florida law that allows policyholders to use the courts for contractual disputes, the Court stated that the matter "specifically relates to the business of insurance" and was, therefore, exempt from being superseded by federal law

SCMA Town Hall Meeting on Mediator Expertise

vpynchon@settlenow.com (Victoria Pynchon) — Sat, 26 Jul 2008 12:38:27 -0500

Live blogging from the SCMA Town Hall Meeting

Lee Jay Berman: What Makes a Great Mediator: Brain Storm Session with Attendees

integrity
resourceful
reflective
etiquette
diplomatic
non-attachment
presence
tolerance of silence
spontaneous
plan
common sense
love
money
ethical
insight
optimism
intelligence
- knowledge
- self-knowledge
- emotional
- social
discernment
sensible
mindful
attractive
empathy
timing
compassion
open-minded
charasmatic
process
faith
hope and safety
ubuntu
curious
open-minded

First Panel: Substance v. Process: Lee Jay Berman standing; left to right: Joan Kessler, Jim Lingl and Therese Gray

Jim Lingl

can resolve most disputes with the proper process
but when disputes involve people outside the room, need substantive knowledge

Joan Kessler

any mediator can handle any type of dispute
legal issues important in litigated cases
she's evaluative
she gives bad news to both sides in separate caucus
she's a former jury consultant

Therese Gray

people who come into mediation aren't thinking clearly
her life experience very important
attorney students take 3 weeks until they're comfortable
attorneys are suspicious because she isn't a lawyer
her negotiation teachers were federal mediators
it's always about people, not money
not an attorney - also not a therapist

Herb Katz: retired judge

it's up to the lawyers to explain the legal issues

Second Panel: Myer Sankary at Podium Excitedly Announcing the Neuroscience Seminars Upcoming at the SCMA annual conference. Left to right: Sandy Gage, Len Levy, Ken Reed and Alex Polsky

Sandy Gage

- if can't get out of the pattern that you're in (in a specialty) then you unnecessarily limit your possibilities
- he got called for insurance bad faith cases because he handled them
- how did Lee Jay Berman (non-lawyer) become so respected in a field dominated by lawyers
- trust your instincts
  - do you shudder when you hear about the subject of the case?
  - are you not interested in it?
- do your homework
  - learn what it's about
  - be prepared to handle the case from a knowledge base
Len Levy :
- this is perception of people using our services
- consumers in construction and employment believe you need subject area expertise in these areas
Ken Reed
- he feels more competent as a mediator when he understands the legal issues
- he doesn't think it's necessary to be an expert in any subject matter
- to be effective financially, it is important to be recognized and trusted as someone who knows the underlying subject matter
- we all learned disputing from our families
- learned that there are parent experts that would solve the problem (mom and/or dad)
- when we want a third party to help us resolve our dispute, we're thinking of someone with subject matter expertise -- judge or expert
Alex Polsky
- Alex was told he'd never make it because:
  - he wasn't a judge
  - he was the first non-judge at JAMS
  - now the group is 40% non-judges
  - he represented defendants and plaintiffs would never hire him
  - Topic today is POWER
    - market place power
    - who cares what we think about expertise
    - it's a gateway issue
  - the parties have to EMpower the mediator to handle the session
  - the less subject matter expertise he has, the greater amount of preparation he must undertake
    - briefs
    - pre-hearing calls
  - why are we hired?
    - evaluative
    - competitive
    - with expertise sometimes
    - mediations morph -- they change throughout the day
    - ask them for help without looking weak
    - then you'll get the cases

SCMA Town Hall Meeting in Malibu Tomorrow July 26!!

vpynchon@settlenow.com (Victoria Pynchon) — Fri, 25 Jul 2008 18:29:05 -0500

Just in case you're a local Southern California mediator with nothing planned tomorrow morning, come and join us at the Town Hall Meeting at Pepperdine. DJ article by the best friend ADR ever had in L.A., Greg Katz, below. See Lee Jay Berman's calendar of events here.

Town Hall Meeting Will Address Mediator Expertise
By Greg Katz
Daily Journal Staff Writer

LOS ANGELES - Do mediators need law degrees? Should neutrals who mediate business disputes have experience litigating those types of cases? Or, is it enough simply to have effective mediation skills and great insight into people and their interests? These questions have remained a topic of controversy as the practice of mediation has proliferated over the past few decades, with the field's most highly sought practitioners coming from the ranks of lawyers, psychologists, CEOs and general contractors.

They re-emerged recently, when the Los Angeles County Superior Court began requiring nonattorneys on its mediator panel to get supplemental legal training.

Never ones to shy away from conflict, local mediators will convene to discuss and debate those questions Saturday at a town hall meeting called "Mediator expertise: What does it take?" The meeting, which convenes at 8:30 a.m. at the Pepperdine University School of Law in Malibu, is the sixth annual town hall staged by the Southern California Mediation Association, the state's largest organization of mediators.

"It's an extremely hot issue," said attorney-mediator Phyllis Pollack, a member of the association's board who helped organize the event.

The town hall will kick off with a presentation on the history of mediation by attorney-mediator Richard Millen, who has been called "the Yoda of the mediation world" and holds that subject matter expertise is not an important factor in mediation. After Millen's presentation, there will be three panel discussions on various aspects of mediator expertise. Among the mediators scheduled to be on the panels are Edward Davis, a former transportation company executive; Joan Kessler, who holds a Ph.D. in communications and Alexander Polsky, who practiced criminal and civil law as an attorney. Lee Jay Berman, who came to mediation through the real estate world and never attended law school, will be the mediators' moderator.

Does that mean the association doesn't think mediators need legal training? "Like everything else in life, SCMA takes no position," Pollack joked. "We have members who are both attorneys and nonattorneys. We welcome all mediators of all stripes."

The event is free and ends at noon. Attendees can register at scmediation.org.

Don't Know How to Tell Your Client It's About to Be Fined $25K a Day?

vpynchon@settlenow.com (Victoria Pynchon) — Thu, 24 Jul 2008 11:52:51 -0500

This may be the biggest break-down in attorney-client communication in the history of litigation. Because this public statement by Allstate about its former attorney would be highly defamatory if not true, I'm taking Allstate at its word here.

Allstate claimed that it had not deliberately flouted Manners’ orders. Rather, it said, its now-former attorney — then with the firm of Wallace, Saunders, Austin, Brown & Enochs — had failed to respond to discovery requests.

Allstate said it was appalled when it learned last year that it was being threatened with contempt.

“Allstate litigates hundreds of bad faith cases each year,” Allstate stated in court documents. “And it responds to discovery requests — just like the ones in this case — in many of them. There is no reason in the world for Allstate not to participate in discovery — particularly in this case, where there is an underlying judgment of $1 million.”

Allstate said it “immediately removed” the attorney from the case and retained new counsel.

Read the article about the lifting of the daily $25,000 contempt sanctions against Allstate in the wake of its settlement of the bad faith action in which they were imposed here.

The answer to the question "how to break bad news to my client" can be found at any of the links below. Most of these links are for health care professionals, who have to break bad news to their patients and their families far more often than we have to tell our clients that something went terribly awry. Put that at the top of your attorney gratitude list.

The Breaking Bad News Web Site

Breaking Bad News by Telephone

A Framework for Breaking Bad News (anyone who read my Negotiating Life's End series knows that my father's physician could have used this excellent framework for delivering bad medical news to a patient's family)

Another excellent British source on breaking bad news listing the following traps for the unwary (partial list):

Do not avoid seeing the [client] or leave them anxiously waiting for news. Sometimes anticipation can be worse than even the worst reality.
Treat others as you would wish to be treated yourself.
Get the facts before you start.
Make sure you will not be disturbed. If necessary switch off phones or bleeps.
Be factual but sympathetic. Always be empathetic however you may feel personally.
Give time for the information to sink in and the opportunity to ask questions before moving on. Do not seem rushed.
If the [client] does not seem able to take any more be prepared to end the consultation and to take it up again later.
Look for all the cues, verbal or others. , , , Perhaps they would like you to speak to someone else or to have someone with them for the next meeting.
Never say that nothing can be done or the [client] will lose all hope.
Whilst trying to be positive never lose track of the fact that this is a serious and potentially fatal [reverse in the litigation]. Be optimistic but do not promise success or anything else that may not be delivered.

Employer Did Not Waive Right to Arbitrate by Telling Employee His Election to Arbitrate Was Premature

vpynchon@settlenow.com (Victoria Pynchon) — Wed, 23 Jul 2008 21:06:13 -0500

Not an earth-shaking opinion from the Ninth Circuit but a good one to keep around the next time you want to claim -- or resist a claim of -- waiver. Thanks to the Met News for summarizing these opinions on a daily basis and to LACBA for putting them into my email box every night.

What on earth would we do without them?

Where employment-related dispute arose between employer and employee who had executed employment agreement containing a mandatory arbitration clause, and employee wrote letter requesting arbitration to which employer responded by telling employee that it did not consider his claim ripe for arbitration, district court's order—after employee's termination—denying employer's motion to compel arbitration on ground that employer previously breached its agreement and waived right to arbitrate disputes was error because employee did not properly initiate arbitration under agreement's terms; district court improperly concluded employer waived arbitration where it was debatable whether employer acted inconsistently with right to arbitrate, employer initiated arbitration immediately upon learning of suit, and employer's actions did not prejudice employee.

Cox v. Ocean View Hotel Corporation - filed July 23, 2008

Can You Say What You're Writing to Opposing Counsel Face-to-Face? Would you Want to?

vpynchon@settlenow.com (Victoria Pynchon) — Wed, 23 Jul 2008 13:54:33 -0500

Thanks to David R. Donoghue at the Chicago IP Litigation Blog for picking up my recent Daily Journal article on the Dangers of Email in Litigation and running with it in A Call for Face-to-Face Communication in Litigation. As David comments:

It is no surprise that increased aggression in a naturally aggressive proceeding has negative consequences. For example, parties that often meet for the first time at a mediation or settlement conference arrive not trusting or respecting each other, making resolution much more difficult. Pynchon suggested a somewhat radical solution to the email problem -- live meetings with opposing counsel. She suggested that you routinely have live meetings with opposing counsel throughout the course of a litigation, including perhaps even doing some meetings over a meal. The face-to-face contact would generate the trust and respect needed to resolve issues that always arise during a litigation. I have always advocated live meetings with co-counsel in a multi-party litigation. Email communications (or even conference calls) tend to get out of hand and the parties tend not to pay enough attention to others' positions. I am going to expand that practice to opposing counsel.

One other thought, that I do not know if Pynchon will agree with. Those who still avoid email and continue using letters as a main communication means are not off the hook. I started practicing when letters, not emails, were how you communicated with opposing counsel. Those letters tended to be far more aggressive than the attorneys were in a live conversation. And I suspect people tended to read extra aggression into the letters they received. I do not know if aggression is stronger in emails than letters, but the same problem exists whether you hit send, hit print or use a pen to write to opposing counsel.

Looking for help with your communication skills? Though directed at teachers, here is a list of Six Ways to Improve Non-Verbal Communication Skills that will assist lawyers and their clients in resolving conflict face-to-face.

And then the juror applauded . . . .

vpynchon@settlenow.com (Victoria Pynchon) — Wed, 23 Jul 2008 11:58:44 -0500

Thanks to Anne Reed at Deliberations for following California case law on juror misconduct and bias. I won't steal her thunder -- click here for What is the Sound of One Juror Clapping?

I will, however, provide the appellate court's comment on human fallability -- a recognition we all need to carry into any settlement conference or mediation with us. Vast conspiracies are the rare one-off. As Al Gore once said -- we think we can evacuate the planet but not New Orleans? It's our human capacity for error coupled with our human tendency to search the field for someone to blame that accounts for most unresolved conflict. Here's the local Met News article on the opinion and the appellate opinion itself (from our own Second District here in Los Angeles):

"The jury system is fundamentally human, which is both a strength and a weakness. . . . Jurors are not automatons. They are imbued with human frailities as well as virtues. If the system is to function at all, we must tolerate a certain amount of imperfection short of actual bias. To demand theoretical perfection from every juror during the course of a trial is unrealistic."