Settle It Now Negotiation Blog

Mediation of Insurance Disputes in the London Market

vpynchon@settlenow.com (Victoria Pynchon) — Wed, 08 Jul 2009 12:23:20 -0500

This just in from 11 Stone Buildings on the Resolution of Commercial Insurance and Reinsurance Disputes - A Move Towards Mediation in the London Market?

David Stern's latest bulletin on insurance and mediation is now available to download on the link above. It aims to set out how mediation is perceived, what drivers there are for change and how these drivers are likely to impact the use of mediation as a dispute resolution technique for London Market disputes in the future.

If you would like more details of our specialist insurance mediation service, please contact Michael Couling on 020 7831 6381 or couling@11sb.com.

David would be glad to present this bulletin as an in-house seminar. Please contact Chambers if you would like further information on this or any of our forthcoming seminars.

For more information on the barristers at 11 Stone Buildings who deal with Insurance and Reinsurance please visit Insurance and Reinsurance.

To sign up for our bulletins and news alerts click on Newsletter Sign Up.

Though I mediated several big ticket London coverage cases in that fair city while defending environmental insurance claims cases (primarily against the petroleum companies my husband was then representing) the power of most settlement discussions was in the hands of the lead negotiator for Equitas - a master deal-maker who left most mediators in the dust.

I believe that the quality of mediation practice has greatly improved since that time (late 1990's, early 21st century) primarily as a result of attorneys entering the practice (with all due deference to my retired Judge mediator friends). I'm happy to see London giving mediation a higher profile.

Negotiating Resolution on the 4th of July

vpynchon@settlenow.com (Victoria Pynchon) — Sat, 04 Jul 2009 15:47:13 -0500

I worry sometimes that I write too much in generalities -- praising joint sessions; exploring the social psychological implications of the adversarial system; or arguing with my imaginary detractors - the ones I believe are hectoring me to be more practical. So I have a small practical story to tell you on Independence Day that will lead to some of those generalities I can't resist offering.

It is hour five of a mediated negotiation that has been at impasse all day. After asking some pointedly hard questions of the Plaintiff, I receive this candid response (more or less verbatim): I don't see much point in bullshitting you. I don't know if my litigation strategy will bear fruit or not. My client, however, is genuinely tired of waiting. He is simply unwilling to put off pay day any longer. He believes the Defendant has the money to pay him right now even if he doesn't have the money to pay all of his creditors. He believes Defendant is robbing Peter to pay Paul to keep his business afloat. He's tired of being Peter. He wants to be Paul.

I return to the defense caucus to report the disheartening news that the Plaintiff simply will not budge from the settlement posture he has insisted upon all day. He's not dissembling. He's willing to risk failure if the Defendant follows through on his threatened bankruptcy. He's ready to try the case on the scheduled trial date fewer than thirty days from now.

"What does he think?" asks the Defendant, "that he can get blood from a turnip?"

"No, but he doesn't believe you can't pay him. He thinks you're robbing Peter to pay Paul and he wants to be Paul."

Beat.

Defense counsel gets up, saying "it's clear we can't settle."

Defendant remains firmly in his chair.

Beat.

"Are you coming?" asks counsel, standing with one hand on the conference room door.

Beat.

"I think your client may want to have a conversation with you," I say, as defendant turns to me and says I can pay half of what's owed within thirty days and the remainder within sixty, all secured by the stipulated judgment he asked for [the one in a sum calculated to insure compliance or presage bankruptcy].

Five hours of impasse. Two minutes of candor. Sixty seconds to settle.

This is not the result of my work but of the Plaintiff's candor. All I did -- all many of us do -- is to refuse to give up until settlement appears hopeless to us and I guarantee you it always seems more hopeful to us than it does to counsel or the parties -- hours and hours more hopeful. Why? Because an offered release from the steel trap of litigation that is held out long enough will eventually be accepted, particularly where the choice is voluntary release or the continued effort to gnaw one's own leg off in an effort to escape.

The lesson? When one side speaks its own truth, the other side finally hears it.

What does this have to do with the Fourth of July? It has to do with overcoming the tyranny of another; with having the courage not only to visualize freedom, but to take bold action in the direction of its fulfillment. It has to do with the messy but boundless joy of self-rule, autonomy, and independence. It has to do with the courage required to give up hope that another will grant us the freedom we long for.

Happy July fourth and onward with our unlikely experiment with democratic rule coupled with the guarantee of liberty for those the majority might not so easily give it to.

And Now a Word from Mediators Beyond Borders on Climate Change

techsupport@lexblog.com (LexBlog) — Thu, 02 Jul 2009 11:19:09 -0500

By Kenneth Cloke

The Copenhagen Climate Change Conference -- What You Can Do

In December 2009, delegates from around the world will meet in Copenhagen, Denmark for the 15th Conference of the Parties (COP 15) to the United Nations Framework Convention on Climate Change (UNFCCC). Copenhagen will provide a critical opportunity for the world’s nations to reach a comprehensive agreement before the commitments set out in the Kyoto Protocol expire in 2012.
A recent report by the UN Intergovernmental Panel on Climate Change points to COP 15 as the focal point for decisive action by the world’s nations, in the effort to avoid a growing number of potentially disastrous environmental changes.

Yet a discussion of conflict prevention and resolution mechanisms is missing from the COP 15 Provisional Agenda, and the range and power of environmental mediation and similar techniques is not widely understood or agreed to by the parties who will be expected to sign the agreement that will replace the one adopted in Kyoto.

Article 14 of the 1992 UNFCCC negotiated in New York and Rio de Janeiro, which is reaffirmed in Article 19 of the Kyoto Protocol, states:

“… in the event of a dispute between any two or more Parties concerning the interpretation or application of the Convention, the Parties concerned shall seek a settlement of the dispute through negotiation or any other peaceful means of their own choice.”

However, the International Crisis Group, a nonpartisan conflict analysis advisory organization, has pointed out:

“[A] key challenge today is to better understand the relationship between climate change, environmental degradation and conflict and to effectively manage associated risks through appropriate conflict prevention and resolution mechanisms.”

It is clear to experienced conflict resolution professionals everywhere that conflict prevention and resolution mechanisms need to be a core part of the Copenhagen climate change negotiations and an indispensible element in international efforts to implement them afterwards. Without these mechanisms, global solutions will be much more difficult to negotiate and implement effectively and the time available to us to implement effective solutions is running out.

It is therefore incumbent on conflict resolution professionals to join together, travel to Copenhagen if possible, and if not, initiate a set of local and international dialogues on how conflict resolution methods can be used to effectively resolve climate change disputes.

What You Can Do

MBB has been provisionally accepted as an observer organization at the COP 15 meeting, and to my knowledge is the only mediation organization that will be present. We have a simple message: we want to convince the delegates that mediation is a viable option for resolving climate change disputes.

To achieve this goal, we will bring mediators from around the world to Copenhagen to inform delegates of the advantages of conflict resolution in resolving environmental and climate change issues, and encourage and support all parties in using it.

For those who are unable to attend the meeting, we will need justifications, explanatory materials and resources on environmental dispute resolution that can be passed out to delegates, and will need lots of local support. Here, for example, are ten things you can do:

Come to Copenhagen and participate in the Mediation Seminar on December 10 and 11;
Attend the COP 15 meeting as a MBB Observer and speak directly to national representatives who are attending the Conference;
Email delegates and opinion leaders in your area and encourage them to support ADR;
Help fund travel scholarships for mediators in countries affected by climate change who do not have the resources to come to Copenhagen;
Contribute blogs to the Forum, a MBB website where people can discuss environmental issues;
Contribute articles on environmental conflicts and mediation to “Conflictpedia;”
Film brief interviews with knowledgeable people in your area on the value of mediating climate change issues to put on Youtube and the MBB webpage;
Collect training materials, stories and case studies on environmental mediation, especially regarding climate change;
Contribute names and contact information to a referral list of mediators around the world who are able to mediate environmental disputes;
Form an MBB Chapter in your area and help organize dialogues on climate change and ways of resolving environmental conflicts.

Whether you can attend or not, Copenhagen represents a unique opportunity for mediators to contribute to solving global environmental problems. The time to act is now. Please join us and help save the planet.

Ken Cloke
President,
Mediators Beyond Borders

Deal or No Deal: Improving the Odds of Successful Mediation

vpynchon@settlenow.com (Victoria Pynchon) — Thu, 02 Jul 2009 10:53:30 -0500

Need CLE Credits? Mark your calendars!

The American Bar Association Section of Litigation will hold a live teleconference and webcast on July 14, 2009 titled “Deal or No Deal: Improving the Odds of Successful Mediation.” Reinsurance and Insurance expert Katherine Billingham from KB ReSolutions, Inc. and Randall Kiser from DecisionSet will present at the event. Randall’s article Lets Not Make a Deal: An Empirical Study of Decision Making in Unsuccessful Settlement Negotiations was featured recently in the New York Times.

Donald R. Philbin, Jr., friend of this blog and adjunct professor at Pepperdine’s Straus Institute for Dispute Resolution will also speak at the event. Here are two excellent papers written by Don: The One Minute Manager Prepares for Mediation: A Multidisciplinary Approach to Negotiation Preparation published in the Harvard Negotiation Law Review and Deal or No Deal? or Perhaps a Better Deal? The Impact of Improved Information published by CPR.

Find out more about the event here.

Negotiating God: a Sunday Reflection

vpynchon@settlenow.com (Victoria Pynchon) — Sun, 28 Jun 2009 18:59:34 -0500

According to Robert Wright in The Evolution of God (reviewed in todays NYT Book Review by Paul Bloom) "God has mellowed" from a capricious tyrant into non-zero-sum playing diety. This is good news for mediators and anyone else in search of a better paradigm for conflict resolution than the 16th century adversarial system. As Bloom explains Wright:

When people see themselves in zero-sum relationship with other people — see their fortunes as inversely correlated with the fortunes of other people, see the dynamic as win-lose — they tend to find a scriptural basis for intolerance or belligerence.” The recipe for salvation, then, is to arrange the world so that its people find themselves (and think of themselves as) interconnected: “When they see the relationship as non-zero-sum — see their fortunes as positively correlated, see the potential for a win-win outcome — they’re more likely to find the tolerant and understanding side of their scriptures.” Change the world, and you change the God. For Wright, the next evolutionary step is for practitioners of Abrahamic faiths to give up their claim to distinctiveness, and then renounce the specialness of monotheism altogether. In fact, when it comes to expanding the circle of moral consideration, he argues, religions like Buddhism have sometimes “outperformed the Abrahamics.

Having just finished reading Wright's The Moral Animal (an evolutionary exploration for our tendency to reciprocal altruism) and taking the long view of Western Civilization, I'm pre-disposed to believe that we have not only evolved physically and intellectually, but "morally" as well.

I understand from Bloom's review that Wright -- either a firm agnostic or wavering atheist -- is moved to wonder whether a universe in which moral progress takes place might suggest the presence of a higher power. Quoting Wright, Bloom observes:

[Wright] emphasizes that he is not arguing that you need divine intervention to account for moral improvement, which can be explained by a “mercilessly scientific account” involving the biological evolution of the human mind and the game-theoretic nature of social interaction. But he wonders why the universe is so constituted that moral progress takes place. “If history naturally pushes people toward moral improvement, toward moral truth, and their God, as they conceive their God, grows accordingly, becoming morally richer, then maybe this growth is evidence of some higher purpose, and maybe — conceivably — the source of that purpose is worthy of the name divinity.

Whatever the source of our moral development, divine or "mercilessly scientific," its encouraging on a bright summer Sunday to believe we can achieve, if not perfection, at least greater decency toward the divine in one another.

Negotiating from a Position of Weakness Hollywood Style

vpynchon@settlenow.com (Victoria Pynchon) — Fri, 26 Jun 2009 17:05:10 -0500

When last we left Ari and Terrence negotiating Ari's compensation Terrence had ceremoniously offered Ari "NOTHING!!!"

But we're not talking only money here. We're talking power and agency in the psychological sense, i.e., agency as the capacity to control one's own future. Before the "nothing!!!" offer, Ari had told his wife he was still "afraid" of Terrence even as she attempted to prop him up by reminding him that he was Terrence's partner now. Although Ari wants control of the agency, his strength falters when Terrence comes back from a seven-year sabbatical.

Ari's discomfort in the scene below is palpable. Terrence asserts his authority ("I hope you're not planning to expense the Bat Mitzvah to the agency"); implies that Terrence's daughter had better instincts for talent at eight years old than Ari has now; and, previews his plan to take over Ari's five-year relationship with the talent of the hour -- Vincent Chase.

Ari is dealing from a position of psychological if not actual weakness. Having Terrence back on the scene is a little like going back home for the holidays after a few years at college. You feel independent but it takes only a few minutes with your parents to revert to your powerless teenage self. The final blow to Ari's self-esteem below is delivered in the form of a "gift." $50,000 for Ari's daughter's Bat Mitzvah. Ari is fifteen years old again.

Sensing Ari's weakness, Terrence moves to consolidate his power by taking over a staff meeting from which he excludes Ari. But Terrence has over-played his hand. Using Terrence's violation of the agency's folkways ("you embarrassed me in front of my troops") Ari pries an apology out of him and wins his first battle over who can summon the other's attendence by fiat.

When Ari returns to the negotiations, he has re-set the bargaining table in a way Lax and Sebenius in 3-D Negotiation would applaud. The subject of the negotiation is no longer Ari's share of the profits, but the value of the company itself and Ari's share in it. Note how Ari takes credit for the lion's share of the company's present value and emphasizes the company's vulnerability if Ari leaves.

The deal is sealed but the check unwritten and Terrence has no intention of fulfilling his promise when he learns that Ari intends to open his own agency, (tortiously) raiding Terrence's shop of its agents and clients. In a remarkable power play, Terrence brings together the "five families" Hollywood, to threaten Ari with ruin if he so much as offers CAA's mail room boy a paid position. Quick on his feet, Ari accuses Terrence of anti-Semitism (making Terrence the member of an "out group") and then promises not to touch any agency's clients other than Terrence's.

With no money to open his new agency, Terrence's agents are not inclined to follow Ari until an unlikely partner offers to fund his venture, below.

As Lax and Sebenius instruct:

3-D Negotiation involves not one, but three dimensions, all of which are in play more or less concurrently throughout an[y] effective negotiation[:] 1. Tactics 2. Deal design 3. Setup.

Deal designs, say the authors, create lasting value.

Smart people working at the drawing board can . . . discover hidden sources of economic and noneconomic value, then craft agreements -- design deals -- that unlock that value of the parties involved.

In the Entourage negotiation, Ari unlocks his own value when he finds the courage to leave the safety of Terrence's agency and open his own. By episode's end, Ari has changed the players, the subject matter of the negotiation and the balance of power in town. This is 3-D negotiation at its finest (even though it also rolls out at its most shameless).

All of that said, don't miss the opportunity to appreciate Ari's "at the table tactics" in negotiating the sale of his interest to Terrence. He enters the room confidently, refuses to permit Terrence to use his old power plays ("save a tree; say it out loud"); re-anchors Terrence's $4 million open with "my counter is $#@$ you"; explains his own value; diminishes any claim Terrence might have to the present value of the agency; signals his firm willingness to walk away; and, demonstrates his commitment to stay away in the absence of a realistic offer ("I have a rich wife who loves to spoil me"). The power shifts and the deal is done in two minutes flat.

Yes, it's Hollywood. But all good fiction, which Entourage certainly is, rests on hard facts, all of which are brought vividly to life here.

The Insulting Opening Offer

vpynchon@settlenow.com (Victoria Pynchon) — Fri, 26 Jun 2009 17:00:50 -0500

Does it ever serve a purpose?

One extremely good answer to the question whether an insulting first offer ever has a purpose can be found at Steve Mehta's Mediation Matters Blog Taking Escalates More than Giving.

In this example from Entourage, Terrence's insult is reciprocated by Ari in conflict escalation (as Steve predicts) and Ari's eventual victory as demonstrated by my longer post about this episode, Negotiation from a Position of Weakness, Hollywood-Style.

Put Conflict Resolution on the Climate Change Conference Agenda

techsupport@lexblog.com (LexBlog) — Wed, 24 Jun 2009 20:17:24 -0500

Copenhagen DK, Corvallis and Santa Monica USA – 22 May 2009

by Gregg Walker, Tina Monberg, and Kenneth Cloke of Mediators Beyond Borders,  Jens Emborg, Mie Marcussen, Lone Clausen, and Vibeke Vindeløv of Nordic Mediators

Place: Glyptoteket, Copenhagen

Date: The 10th and 11th December 2009

During eleven days in December 2009 delegates from throughout the world will meet in Copenhagen for the 15th Conference of the Parties – COP15 – to the United Nations Framework Convention on Climate Change, UNFCCC. The Denmark meeting is crucial for the international climate change negotiations. The climate change crisis challenges people throughout the world to invent and implement innovative ways to mitigate and thwart climate changing causes and effects. The crisis calls for new methods for nations and people to overcome differences and work together with the objective of preventing and resolving conflict arising because of limited resources and/or the effects of climate change.

In a Manifesto from 9th July 1955 issued in London, Albert Einstein and other leading scientists urged humanity to find peaceful means for the settlement of all matters based on new ways of thinking. An important new way of thinking features the use of the collaborative, participatory, and pluralistic conflict resolution processes like mediation and facilitation. Construction of a new global conflict prevention and resolution infrastructure is critical to a comprehensive international climate change policy. Such construction will be a major part of the Copenhagen Mediation Seminar, with discussions of conflict prevention and resolution. Our aim is to gather 100 mediators to create a new Manifesto showing the infrastructure to peaceful conflict resolution.

Please reserve this important seminar for 100 mediators attending from all parts of the world. More information will come shortly.

Gregg Walker, Tina Monberg, and Kenneth Cloke of Mediators Beyond Borders – Jens Emborg, Mie Marcussen, Lone Clausen, and Vibeke Vindelov of Nordic Mediators

During eleven days in December 2009 delegates from throughout the world will meet in Copenhagen for the 15th Conference of the Parties (COP 15) to the United Nations Framework Convention on Climate Change (UNFCCC). The Denmark meeting is crucial for the international climate change negotiations. In December 2007 the parties to the UNFCCC agreed at Bali, Indonesia that negotiations on a future agreement have to be concluded at COP 15. The decision reflected the increased emphasis on the need for swift action made in the latest report by the UN Intergovernmental Panel on Climate Change. The Bali delegates also recognized that 2009 would be a critical opportunity for an agreement before the commitments set in the Kyoto Protocol expire in 2012.

A Critical Issue

The International Crisis Group, one of the world’s leading independent, non-partisan conflict analysis advisory organizations, stresses that “a key challenge today is to better understand the relationship between climate change, environmental degradation and conflict and to effectively manage associated risks through appropriate conflict prevention and resolution mechanisms.” Conflict preventive measures and resolution mechanisms need to be part of the climate change negotiations, both in Copenhagen and beyond.

At the December 2007 United Nations Conference on Climate Change in Bali, Indonesia, the German Advisory Council on Climate Change presented a report, World in Transition – Climate Change as a Security Risk. Based on research into environmental conflicts, the causes of war, and climate impacts, the report states that climate changes could “overstretch many societies’ adaptive capacities within the coming decades. This could result in destabilization and violence, jeopardizing national and international security to a new degree.”

Drawing on the work of international experts and organizations including the United Nations Environmental Programme (UNEP), the report notes, though, that “climate change could also unite the international community, provided that it recognizes climate change as a threat to humankind” and adopts “a dynamic and globally coordinated climate policy.” If the international community “fails to do so,” the report emphasizes, “climate change will draw ever-deeper lines of division and conflict in international relations, triggering numerous conflicts between and within countries over the distribution of resources, especially water and land, over the management of migration, or over compensation payments between the countries mainly responsible for climate change and those countries most affected by its destructive effects.” In its introduction to the report, the UNEP website states that “combating climate change will be a central peace policy of the 21st century.” Conflict preventive measures and resolution mechanisms should be part of the climate change negotiations, both in Copenhagen and beyond.

Scientists See the Need

 In addition, the scientific community recognizes that global climate change issues challenge our ability to deal with a changing environment containing huge potential for conflict. In March 2009 over 2500 delegates from nearly 80 countries participated in the International Scientific Congress on Climate Change: Global Risks, Challenges & Decisions in Copenhagen, Denmark. At the end of the conference the delegates presented a set of key messages that included cautions about conflict and climate change.

Key Message 2: Social Disruption stated that “recent observations show that societies are highly vulnerable to even modest levels of climate change, with poor nations and communities particularly at risk. Temperature rises above 2C will be very difficult for contemporary societies to cope with.”
Key Message 3: Long Term Strategy stressed that “rapid, sustained, and effective mitigation based on coordinated global and regional action is required to avoid ‘dangerous climate change’ regardless of how it is defined. Delay in initiating effective mitigation actions increases significantly the long-term social and economic costs of both adaptation and mitigation.”

Key Message 4: Equity Dimensions emphasized that “climate change is having, and will have, strongly differential effects on people within and between countries and regions, on this generation and future generations, and on human societies and the natural world.”

The delegates recommended the use of tools and governance practices to address these fundamental concerns. Conflict preventive measures, conflict transformation and resolution are essential to meet climate change challenges.

Rio and Kyoto Precedents

 The COP 15 Provisional Agenda, reviewed in Bonn, Germany in early June, lists a range of essential issues, from emission reduction to technology transfer. Conflict prevention and resolution mechanisms are missing from the Agenda despite the fact that Article 14 of the 1992 UNFCCC (negotiated in New York and Rio de Janeiro and reaffirmed in Article 19 of the Kyoto Protocol) states that “in the event of a dispute between any two or more Parties concerning the interpretation or application of the Convention, the Parties concerned shall seek a settlement of the dispute through negotiation or any other peaceful means of their own choice.” This article, though, is not sufficient to address the complex conflicts between nations and peoples likely to emerge as climate change impacts accelerate. Conflict preventive measures and resolution mechanisms should be part of the talks in Bonn, Copenhagen, and beyond.

Beyond Rio and Kyoto, there is precedent for putting conflict resolution on the Climate Change Conference agenda. A number of UN treaties and conventions that deal with environmental issues include conflict or dispute resolution mechanisms. For example, the UN Convention on the Non-Navigational Uses of International Watercourses, adopted in 1997 by the UN General Assembly, specifies conflict resolution methods. Agenda 21, the Environment and Development Agenda administered by the United Nations Environmental Program (UNEP) emphasizes conflict resolution.

Article 39.3 specifies the need:

g) To identify and prevent actual or potential conflicts, particularly between environmental and social/economic agreements or instruments, with a view to ensuring that such agreements or instruments are consistent. Where conflicts arise, they should be appropriately resolved;

h) To study and consider the broadening and strengthening of the capacity of mechanisms, inter alia in the United Nations system, to facilitate, where appropriate and agreed by the parties concerned, the identification, avoidance and settlement of international disputes in the field of sustainable development, duly taking into account existing bilateral and multilateral agreements for the settlement of such disputes.

An Important Commitment 

Climate change negotiators and decision-makers should affirm the commitment that people, communities, and nations will not be in violent situations due to conflicts that arise as a consequence of climate change. Politicians, diplomats, and specialists who attend the Climate Change meetings should consider conflict prevention measures and resolution mechanisms.

The climate change crisis challenges people throughout the world to invent and implement innovative ways to mitigate and thwart climate changing causes and effects. The crisis calls for new methods for nations and people to overcome differences and work together with the objective of preventing, minimizing and resolving conflict arising because of limited resources and/or the effects of climate change.

Construction of a new global conflict prevention and resolution infrastructure is critical to a comprehensive international climate change policy. Such construction can start with the Copenhagen conference, with discussions of conflict prevention and resolution along side the negotiations of scientific and technical issues of climate change.

The authors’ affiliations: 

Gregg Walker, Ph.D., Professor of Speech Communication, Oregon State University, USA (gwalker@orst.edu) 

Tina Monberg, Mediator, exam. psychotherapist and lawyer, Mediationcenter Ltd., Denmark (tm@mediationcenter.dk) 

Kenneth Cloke, Mediator, President of Mediators Beyond Borders, California, USA (kcloke@aol.com) 

Jens Emborg, Ph.d. MMCR, Associate Professor of Environmental Conflict, University of Copenhagen, Denmark (jee@life.ku.dk) 

Mie Marcussen, M.Sc., MMCR, Mediator, President of Nordic Mediators, Private Consultant, Denmark (kontakt@miemarcussen.dk) 

Lone Clausen, MMCR, Developing Aid and Crises Expert, Private Consultant, Danmark (lc@direkte.org)

 Vibeke Vindeløv, Dr., Professor of Mediation and Conflict Resolution, University of Copenhagen, Denmark (Vibeke.Vindelov@jur.ku.dk)

Negotiating with North Korea

vpynchon@settlenow.com (Victoria Pynchon) — Tue, 23 Jun 2009 14:13:19 -0500

Check out today's ADR Prof Blog post What are their interests? Negotiating with North Korea. Excerpt below.

North Korea recently sentenced two U.S. journalists, Laura Ling and Euna Lee, to 12 years of hard labor for illegally crossing the North Korean border. By all accounts imprisonment in North Korea, especially in a labor camp, is horrible and potentially life-threatening. The question now is whether their early release can be negotiated.

This situation poses an extreme example of a difficult negotiation. Power and culture are key factors. The challenge in this negotiation is to understand what matters to the North Koreans and to use that understanding to work towards an agreement to release Ling and Lee. But gaining this understanding is complicated because the North Korean government keeps the country closed to most foreigners which means that few U.S. citizens have experience in North Korea, much less experience negotiating with the government. Reportedly the State Department is engaged on Ling and Lee’s behalf—but without full diplomatic representation that engagement is limited (particularly when the North Koreans prevent the U.S. Envoy for North Korea from even entering the country). Potential candidates to act as negotiators include New Mexico Governor Bill Richardson (who has successfully negotiated with the North Koreans in the past) and former Vice-President Al Gore (who owns Current TV, the company the journalists were working for).

Continue reading here.

Time to Revisit the Resolution of the Cuban Missile Crisis

the president [Kennedy] recognized that, for Chairman Khrushchev to withdraw the missiles from Cuba, it would be undoubtedly helpful to him if he could say at the same time to his colleagues on the Presidium, "And we have been assured that the missiles will be coming out of Turkey." And so, after the ExComm meeting [on the evening of 27 October 1962], as I'm sure almost all of you know, a small group met in President Kennedy's office, and he instructed Robert Kennedy—at the suggestion of Secretary of State [Dean] Rusk—to deliver the letter to Ambassador Dobrynin for referral to Chairman Khrushchev, but to add orally what was not in the letter: that the missiles would come out of Turkey.

Ambassador Dobrynin felt that Robert Kennedy's book did not adequately express that the "deal" on the Turkish missiles was part of the resolution of the crisis. And here I have a confession to make to my colleagues on the American side, as well as to others who are present. I was the editor of Robert Kennedy's book. It was, in fact, a diary of those thirteen days. And his diary was very explicit that this was part of the deal; but at that time it was still a secret even on the American side, except for the six of us who had been present at that meeting. So I took it upon myself to edit that out of his diaries, and that is why the Ambassador is somewhat justified in saying that the diaries are not as explicit as his conversation.

From Sorensen comments, in Bruce J. Allyn, James G. Blight, and David A. Welch, eds., Back to the Brink: Proceedings of the Moscow Conference on the Cuban Missile Crisis, January 27-28, 1989 (Lanham, MD: University Press of America, 1992), pp. 92-93.

Sotomayor and Women's Organizations

vpynchon@settlenow.com (Victoria Pynchon) — Fri, 19 Jun 2009 21:28:46 -0500

Women in the United States Judiciary

2009 State Court Judges in the US:

4,325 women of 16,950 total
26% women

2008 Federal Court Judges

47 of 164 active judges on the thirteen federal courts of appeal are male (29%).
25% of United States district (or trial) court judges were women in 2008.

Women in Corporate America

In November 2002, women represent 15.7% of the corporate officers in America’s 500 largest companies. These percentages are up from 12.5% in 2000 and 8.7% in 1995.
In April 2002, there were six female CEOs in the Fortune 500 and a total of eleven in the Fortune 1000.
The number of women corporate officers: 2,140 out of 13,673.
The number of women corporate officers: 2,140 out of 13,673. T
Almost 95% or 2,141 of the top earning corporate officers are men, compared to only 188 or 5.2% of women top earners in the Fortune 500.

Earnings on the Dollar Compared to Men

Asian/other women: 67 cents
White women: 59 cents
African American women: 57 cents
Hispanic women: 48 cents

Family

Women managers are more likely to be single parents than male managers.
Women managers who are unmarried and have children under 18: 22 percent African-American, 15 percent Hispanic, 8 percent White, and 5 percent Asian/other women.

Women Lawyers

JOIN THE PROFESSIONAL WOMEN'S NETWORK OF SOUTHERN CALIFORNIA TODAY! We're "on the ground" locally and online nationally. Building business one relationship at a time.

An Interview with Michael Young on the $4.1 Billion Arbitration Award

vpynchon@settlenow.com (Victoria Pynchon) — Wed, 17 Jun 2009 11:25:44 -0500

Anatomy of an Arbitration Disaster

Amanda Bronstad
The National Law Journal
June 17, 2009

A Los Angeles Superior Court judge on May 28 affirmed an arbitration award of more than $4.1 billion, sending shock waves through the labor and employment bar in California.

The award went to Paul Thomas Chester, a former executive at iFreedom Communications Inc., who brought a wrongful termination suit against his former employer, its affiliated businesses and the founder, Timothy Ringgenberg.

The case ended up before an arbitrator, William F. McDonald, a retired supervising judge of the Orange County, Calif., Superior Court's complex civil litigation panel, who now works at JAMS.

Michael D. Young, a partner in the Los Angeles office of Atlanta's Alston & Bird, wrote about the award on his firm's labor and employment blog, "Who's the Boss?" Young spoke to The National Law Journal about the lessons that employment lawyers and their clients could learn from the outcome in this case regarding arbitration agreements and the arbitration process.

Young also broke down the award, to explain how the arbitrator came up with such an astronomically high number.

Read the full interview here.

Negotiating Cooperation

vpynchon@settlenow.com (Victoria Pynchon) — Mon, 15 Jun 2009 00:28:26 -0500

Cooperation

View more OpenOffice presentations from Victoria Pynchon.

Negotiating Justice: Anchoring, Bias, Dad and Sotomayor

vpynchon@settlenow.com (Victoria Pynchon) — Tue, 09 Jun 2009 12:44:04 -0500

I do not recall the day on which I learned I spoke with an "American" or "West Coast" accent but I remember it coming as a surprise to me. As Cristof, the director of The Truman Show says of his "creation," the happily oblivious Truman Burbank, “We accept the reality of the world with which we are presented.”

The fact that people are still questioning whether a woman, an African American, a Latina or (gasp: clearly for a more equitable society) a gay, bi-, Lesbian or transsexual, jurist will be "biased" by his or her unique perspective is dispiriting to say the least. As many people in high (the New York Times, CNN) and low (twitter) places have rightly pointed out, no one asks whether a white man will bring his prejudices to the Bench. Why? Because white men "have no accent." The dominant culture does not think of itself in terms of race (it doesn't have to) and the people with power (still primarily white men) do not need to ask themselves thorny questions about their attitudes toward their own race and gender.

Here's an example from the New York Times: Speeches Show Judge's Steady Focus on Diversity, Struggle

WASHINGTON — In speech after speech over the years, Judge Sonia Sotomayor has returned to the themes of diversity, struggle, heritage and alienation that have both powered and complicated her nomination to the Supreme Court.

She has lamented the dearth of Hispanics on the federal bench. She has exhorted young people to value immigration. She has mulled over the “deeply confused image” America has of its own racial identity. And she has used on more than one occasion a version of the “wise Latina” line that she has spent much of this week trying to explain.

Today is my father's birthday. It is also the one-year anniversary of his death, so I'll ask you to forgive my stream of consciousness post. I promise to tie it up in a bow by post's end.

Dad -- a dust bowl refugee -- a lawyer at 42 and Bench officer by 52, used to say that there "should be dumb politicians, to represent the dumb people." He was exaggerating, of course, to make the point that a representative government should represent all of the people and not just the privileged majority.

Was Dad's life-view affected by his humble origins, his "struggle" to overcome his lack of a completed high school education and a culture of poverty, as well as the burdens of his gender in mid-Century America (burdens which assumed only men were obliged to work to support their families)? You bet it was.

Did anyone ask whether Dad was going to bring a white, male, depression-era, bias to the Bench? No. Did he? Yes of course he did. Still, Dad leaned as far away from his mid-20th Century white male privilege as he could, drafting "marital" agreements for gay clients from the late '60s until he went on the Bench; voting against his economic self-interest in every Presidential election (proudly asserting that he paid more in federal income tax than he used to make annually) and supporting all civil rights movements -- African-American, Chicano (the term of that day), women and gays.

Dad was a good guy aware of his biases and willing to push against them. It is not, however, possible for any of us to be without bias as this article in the Cornell Law Review -- Blinking on the Bench: How Judges Decide Case -- demonstrates.

Below: me and Dad, may he rest in peace. 9 June 1924 to 9 June 2008

I've had this article in my files for some time because it's about anchoring -- the principle that negotiators will be influenced by any number that enters the negotiation environment, no matter how random. Below is an excerpt from "Blinking" demonstrating the power of anchoring on judicial decisions. Note the repeated use of the word "intuitive" - a word usually associated with women but not only a woman's talent or trait. (All emphases supplied)

The first example of intuitive judicial decision making arises from studies of a phenomenon that psychologists call ―anchoring. When making numeric estimates, people commonly rely on the initial value available to them.100 This initial value provides a starting point that ―anchors the subsequent estimation process. People generally adjust away from the anchor, but typically fail to adjust sufficiently, thereby giving the anchor greater influence on the final estimate than it should have.In short, ―the number that starts the generation of a judgment exerts a stronger impact than do subsequent pieces of numeric information.

We have found that anchors trigger intuitive judicial decision making. In one study, we demonstrated that a demand made at a prehearing settlement conference [$10 million] anchored judges‘ assessments of the appropriate amount of damages to award. . . . The $10 million anchor influenced the judges. Judges in the control group awarded a mean amount of $808,000 and a median amount of $700,000, while judges in the anchor group awarded a much larger mean of $2,210,000 and median of $1 million.107 Table 5 shows the impact the anchor had on their judgment.

In another study, we tested whether a motion to dismiss would also affect judges‘ damage awards. We presented participating judges with a similar fact pattern and asked judges in the control group, ―[H]ow much would you award the plaintiff in compensatory damages? We gave the judges in the anchor group the same background information, but also told them that ―[t]he defendant has moved for dismissal of the case, arguing that it does not meet the jurisdictional minimum for a diversity case of $75,000.‖ We asked these judges to rule on the motion, and then asked them, ―If you deny the motion, how much would you award the plaintiff in compensatory damages?

Because the plaintiff clearly had incurred damages greater than $75,000, we viewed the motion as meritless, as did all but two of the judges.Nonetheless, the $75,000 jurisdictional minimum served as an anchor and resulted in lower damage awards from those judges exposed to it. The judges who had not ruled on the motion awarded the plaintiff an average of $1,249,000 (and a median of $1 million), while those judges who ruled on the motion to dismiss awarded the plaintiff an average of $882,000 (and a median of $882,000).112 Thus, the $75,000 jurisdictional minimum anchored the judges‘ assessments, as they awarded roughly $350,000 (or nearly 30%) less on average.

Both anchoring studies suggest that the anchors had a powerful influence on judgment. This was true both when the anchor bore essentially no relation to the magnitude of the claim and when the judges knew full well that they were supposed to ignore the anchor. In both cases, the anchor triggered intuitive, automatic processing that the judges were unable to override.

This is what we litigators and trial attorneys do for a living. We try to "anchor" judges. We "spin" the facts and expand the outer reaches of the law in the way that helps our clients. We read judicial profiles to know as much about a Judge: his or her background; politics; charities; family life and prior decisions as possible so that we can 'speak his/her language./** No one knows better than litigators and trial lawyers how important an individual judge's background, ethnicity, political affiliations and the like are.

When I was litigating a 9-figure environmental coverage action, I routinely brought color-coded coverage charts that represented my point of view to every oral argument. Opposing counsel always griped and the Judge always overruled his objections because my charts made the complex and sophisticated coverage analysis easier to understand (from my point of view). What perplexed me was opposing counsel's failure to ever do the same. The Judge ruled in my favor on every major issue before her and I guarantee you it wasn't because I was "right."

(below, a sample coverage chart)

Meta-Anchoring

As you can see from the coverage chart example, it's not just numbers entering the negotiation environment that influence decision-makers, it's also the way in which the information pertinent to the case is characterized. I don't need to tell lawyers this, all of whom were weaned on this proposition: if you don't have the facts, argue and law and if you don't have the law argue the facts.

In Lax & Sebenius' brilliant 3-D Negotiation, they recommend "meta-anchoring" your preferred negotiation resolution as follows:

To meta-anchor effectively, look creatively at various ways to characterize the negotiation problem. some characterizations have clear implications for the appropriate kind of resolution, or at least the most appropriate prcess and personnel needed to get there. For example, framing a negotiation as "a routine extension of an existing deal" may receive far less scrutiny than approaching it as a "new contract," even when the substantive issues are identical.

The authors go on to describe a negotiation in which a small company seeking to be acquired by a larger one "identified two likely competing meta-anchors."

The first viewed the transaction as the purchase of R&DCo on a stand-alone basis. the second Viewed the deal as an attempt to create synergy by combining R&DCo's technological expertise with Acquirer's sales, maketing and distribution; by using R&D's technologies in other markets; and by using the buyer's greater size to win new sales for R&DCo. In this way, it would be possible to divide that synergy between the two companies.

The approach adopted was as follows:

"Almost monthly, we turn down an approach from potential acquirers who want to value us on a stand-alone basis. We're interested in talking to you because of the significant poential synergy between our two companies. If you want to discuss how we value and divide the joint gains from combining our companies, we're very interested in talking with you. However, if you only want to consider our stand-alone financials, you'll be wasting our valuable time as well as ours. Do you think it makes sense to proceed?

The small company re-defined its value as it's future value merged with the Acquirer rather than its present unmerged value. Then the small company suggested that the expanded value be divided equally because that value was due to both company's contributions in equal measure. That's "meta-anchoring" at its best.

So back we come to Sotomayor and her nomination to the Supreme Court Bench. Will she bring a viewpoint heretofore unrepresented there? Yes she will. Does that give her an unfair advantage over all the highly qualified white men who might have been nominated in her place? I suppose it might but our job in populating the Supreme Court bench is not to find the numerically "best" person for the job (highest LSAT score; first in class; editor of law review; most charitable; most acceptable disposition) but the best person to round out the current bench so that it is somewhat representative of the people that it serves.

Dad would have supported Sotomayor and on his birthday I'd like to thank him again for instilling in me the values that make me a supporter too.

_____________________

**/ I heard Constitutional Law scholar and Dean of the new U.C. Irvine School of Law Erwin Chemerinsky speak at the annual Constitutional Rights Foundation dinner recently. Rightly calling today's Supreme Court the "Kennedy Court," he admitted to pandering, saying "I'd put a photograph of Kennedy on my Petitions for Cert if I could."

More Praise for Joint Sessions in Today's Daily Journal

vpynchon@settlenow.com (Victoria Pynchon) — Mon, 08 Jun 2009 22:04:54 -0500

JUNE 9, 2009 | FORUM

When It Comes to Joint Session Negotiations, Talk Isn't Cheap

By Victoria Pynchon

Whether parties to litigation should engage in joint session bargaining at some point in the process is a hot topic at the moment because joint session practice is nearly a dead letter in one of the most active and sophisticated mediation markets: Los Angeles.

Most attorneys do not like to begin their mediated negotiations with a joint session and neither do many mediators. The reason most often given is everyone's desire to avoid a polarizing set of zealously adversarial presentations.

The joint session, however, was never meant to be a mini-trial or reiteration of the parties' adversarial positions - positions with which they've been living, and defending their clients against, for weeks, months, years, even decades. The joint session was designed to give the parties with the dispute - the clients - the opportunity to brainstorm mutually acceptable solutions to their undeniably mutual problem: the sinkhole of litigation.

The news for mediation advocates (litigators and trial attorneys) is that avoiding joint sessions may deprive the parties and counsel of the "small talk" necessary to put the parties into a collaborative, even generous mood.

Click here to read the entire article

Foreclosure Mediation Becomes Mandatory in Connecticut

vpynchon@settlenow.com (Victoria Pynchon) — Mon, 08 Jun 2009 18:53:40 -0500

So much for the mediation carrot & the principle that "mediation is a voluntary process."

Foreclosure Mediation Becomes Mandatory

Program staffing, caseload expected to double

By DOUGLAS S. MALAN

A voluntary foreclosure mediation program has worked so well in the eyes of legislators that the General Assembly pushed through a measure to make the program mandatory starting July 1.

Nearly 60 percent of those participating in the voluntary program have remained in their homes, and supporters contend that even more distressed mortgage holders will benefit from being forced into mediation. To date, only about 34 percent of those eligible for mediation have made use of the voluntary program, according to the Judicial Branch.

Continue reading here.

Update on the $4.1 Billion Arbitration Award Confirmed as Judgment by Los Angeles Superior Court

vpynchon@settlenow.com (Victoria Pynchon) — Sun, 07 Jun 2009 18:32:19 -0500

Here's a copy of the Judgment Confirming Final Arbitration Award.

Comment later. In the meantime, Money Money Money from Cabaret.

Who ME? Manipulate? Negotiating Impartiality in Mediation

vpynchon@settlenow.com (Victoria Pynchon) — Sun, 07 Jun 2009 14:40:48 -0500

I was reading a great article in the New York Times this morning about "blue sky" transparent diplomacy in light of Obama's Cairo speech and was intrigued by the phrase "constructive ambiguity" in international diplomacy.

The full Obama-Cairo Speech below:

Check out Experts Say Full Disclosure May Not Always Be Best Tactic in Diplomacy. While citing the importance of back channel communications, the author quotes "one of the nation's most experienced career diplomats and former under secretary of state" as identifying the two "home truths" in international diplomacy:

One is, don’t tell lies. The other is, you can say more in private than you can in public, but they have to be consistent.

This brought to mind not simply the one or two memorable instances in which I caught mediators in deception during my litigation practice, but a recent experience communicated to me by a friend about one of those $15/K a day mediators. I ask for the full 411 on these mediations because I'm intrigued by the value $15K/day buys. Here's the story.

My friend called me during a recent mediation to tell me that his mediator had just left the room after leaving this message with his "team."

Your opponents just asked me to make a mediator's proposal of $X.Y million.

Assuming that this disclosure was not a breach of confidence, I had to ask myself whether it was simply a (manipulative) hypothetical "offer" approved by the other side in form and content that the other side could safely disown. In either case, I felt it was (a) unethical - i.e., a breach of confidence; or, (b) partial (not neutral, which is also unethical).

Someone could likely talk me down off the ledge on this one but I'm having trouble seeing it as permissible mediator behavior. Assuming it wasn't a breach of confidence, it raises the question whose ox is being gored here? How much manipulation by the mediator is acceptable - is ANY manipulation acceptable and if the mediator is manipulating, is it POSSIBLE for him/her to do so without also being PARTIAL?

I have "caught" mediators in deception during my practice (and have not been quiet about my experience). In case mediators do not recall legal practice, let me remind them that counsel talk to one another and despite our differences usually trust one another more than we trust our mediator. If you lie to one of us or disclose something you shouldn't be disclosing, don't let the separate caucuses in which the mediation is taking place mislead you about the state of "play" in the litigation. If the mediator is dishonest, will be found out.

If we do not hold ourselves to the absolute HIGHEST POSSIBLE ethical standards, our credibility, and our careers, are seriously at risk.

Would any of my fellow mediate.com bloggers like to weigh in on this? Geoff Sharp, Jeff Thompson, Phyllis Pollack, Stephanie West Allen, Nancy Hudgins, Colin Rule, Tammy Lenski, Josh Weiss, Jan Frankel Schau, Jeff Krivis, Mariam Zadeh, John DeGroote, Steve Mehta, Arnold Zeman?

Barb North's Great Big Fat Reality TV Mediation Screen Test

vpynchon@settlenow.com (Victoria Pynchon) — Sat, 06 Jun 2009 13:55:48 -0500

This is a great discussion of mediation by local mediator Barb North -- another screen test for the mediation reality television show that will likely never become a reality because . . . . I understand the producers are having trouble convening!

Check out Barb's great article on Conflcit Coaching at mediate.com here.

The 411 on Barb below.

Barb North has worked as a mediator and negotiator for over fifteen years, and has designed and delivered more than 2,500 trainings in such areas as Conflict Resolution, Mediation, Communications Skills, Acting, Couples Communication, Improvisational Theater, Speaker's Skills and Stand-Up Comedy.

She is the shorter half of the Comedy Team of Barb and Steve North. In addition to training and mediation, Barb has been a Comedian/Performer/ Writer/Producer with her husband, Steve for over 25 years. This background explains her unique ability to present trainings, give talks, conduct seminars, facilitate events, act as an MC or appear as a talk show guest AND incorporate an entertaining spin into the content. Her presentations are fun, informative, and funny.

Barb has designed and implemented custom conflict management programs for numerous organizations and businesses, including extensive work with the National Organization of Girl Scouts of the USA and individual Girl Scout Councils throughout the country, Los Angeles County, Voluntary Mediation Services, the EEOC, Girl Scouts of the USA and the NASD. She has written and produced corporate training films, led seminars, retreats and facilitated group discussions.

My Great Big Fat Mediation Reality Show Screen Test

vpynchon@settlenow.com (Victoria Pynchon) — Fri, 05 Jun 2009 16:57:22 -0500

I don't know why this "screen test" for a mediation reality television program appears on YouTube but I ran across it today cruising Bing and it's pretty expressive of my passion for mediation so thought I'd share it with my readers.

Six Ways to Insure Your Construction Mediation Fails at Construction Law Musings

vpynchon@settlenow.com (Victoria Pynchon) — Fri, 05 Jun 2009 13:25:21 -0500

How smart is Chris Hill at Construction Law Musings to have a guest blogger every Friday? That's just the kind of collaborative problem-solving you need in your litigation counsel, particularly when you're facing multi-party construction litigation. This week, Chris was kind enough to ask me to add to the construction law conversation taking place every day at his tremendously useful, entertaining and enlightening blog. Excerpt from Six Ways to Insure Your Construction Mediation Will Fail below.

1. Leave the Decision-Makers at Home

A mediation – particularly a multi-party construction mediation – is more drama than law; more character than rights; and more emotion than reason. Mediation, like trial, requires the lawyers to restore the texture, dimensionality, morality and personality back into the dispute that we lawyers flatten for the purpose of satisfying the law’s requirement that we litigate only the “relevant” facts necessary to satisfy legal “forms of action.”

On game day, it’s not the mediator, but the parties themselves who must decide who is bluffing and who is not; what allocation of responsibility among the parties feels fair; whose claims of poverty or freedom from liability have the ring of truth; and, which parties have deeper pockets or greater negotiation flexibility than their attorneys have claimed.

Just as you wouldn’t want your jury to “call in” their verdict, you don’t want the mediation decision-makers miles away from the mediation table when the cards are being played. Remember that people seek out lawyers only when they feel they have suffered an injustice. Righting that wrong requires more than money or dismissal. It requires the belief that you, the attorney, have gotten your client the very best deal possible in light of the facts finally revealed, the personalities involved and the hard realities faced.

2. Leave Early Because the Other Parties are Acting in Bad Faith

Continue reading here.