Settle It Now Negotiation Blog

This Twitter Thing is Certain to Come to No Good!

vpynchon@settlenow.com (Victoria Pynchon) — Thu, 20 Nov 2008 21:04:46 -0500

There's an infinite regression angle to this.

Feeling Extorted? Mr. Molski's Serial ADA Litigation and Why We Settle

vpynchon@settlenow.com (Victoria Pynchon) — Thu, 20 Nov 2008 12:35:45 -0500

Many in the legal blogosphere are buzzing about the recent Supreme Court decision letting stand a Central District injunction barring wheelchair-bound Jarek Molski from filing further ADA accessibility cases in our local federal trial court here in Los Angeles. See Justice Berzon's and Kozinski's spirited dissents to Ninth Circuit's Per Curiam refusal of the Petition for a full panel re-hearing here.

Mr. Molski was declared a vexatious litigant by the California Central District federal court back in 2004. See Wendel Rosen's excellent report of that case here. Molski v. Mandarin Touch Restaurant, 347 F. Supp. 2d 860 (C.D. Cal.2004) (declaring Molski a vexatious litigant and requiring court approval prior to his filing future lawsuits); aff'd Molski v. Evergreen Dynasty here.

Still active is Molski's case in the Eastern District of California which was recently permitted to go forward by the same Ninth Circuit Court of Appeal. As the Ninth Circuit explained the factual background of Mr. Molski's "serial litigation,"

[Plaintiff] Molski and his lawyer Thomas Frankovich (“Frankovich”) were purportedly in the business of tracking down public accommodations with ADA violations and extorting settlements out of them. On cross examination, Molski acknowledged that: he did not complain to any of [the defendant's] employees about his access problems; he had filed 374 similar ADA lawsuits as of October 8, 2004; Frankovich had filed 232 of the 374 lawsuits; even more lawsuits had been filed since that date; Molski and Frankovich averaged $4,000 for each case that settled; Molski did not pay any fees to Frankovich; Molski maintained no employment besides prosecuting ADA cases, despite his possession of a law degree; Molski’s projected annual income from settlements was $800,000;2 Molski executed blank verification forms for Frankovich to submit with responses to interrogatories; they had also filed lawsuits against two other restaurants owned by Cable’s; they had filed a lawsuit against a nearby restaurant; and Sarantschin obtained up to 95% of his income from Frankovich’s firm for performing investigations for ADA lawsuits.

See Molski v. MJ Cable, Inc. here.

Despite these apparently damning facts, in its 2007 affirmance of the vexatious litigant finding, the Ninth Circuit noted some of the reasons why Molski and his lawyer could not be condemned for their pursuit of serial ADA litigation. The ADA, noted the Court,

does not permit private plaintiffs to seek damages, and limits the relief they may seek to injunctions and attorneys’ fees. We recognize that the unavailability of damages reduces or removes the incentive for most disabled persons who are injured by inaccessible places of public accommodation to bring suit under the ADA. See Samuel R. Bagenstos, The Perversity of Limited Civil Rights Remedies: The Case of “Abusive” ADA Litigation, 54 U.C.L.A. L. Rev. 1, 5 (2006).

As a result, most ADA suits are brought by a small number of private plaintiffs who view themselves as champions of the disabled. District courts should not condemn such serial litigation as vexatious as a matter of course. See De Long, 912 F.2d at 1148 n.3. For the ADA to yield its promise of equal access for the disabled, it may indeed be necessary and desirable for committed individ- uals to bring serial litigation advancing the time when public accommodations will be compliant with the ADA.

But as important as this goal is to disabled individuals and to the public, serial litigation can become vexatious when, as here, a large number of nearly-identical complaints contain factual allegations that are contrived, exaggerated, and defy common sense. False or grossly exaggerated claims of injury, especially when made with the intent to coerce settlement, are at odds with our system of justice, and Molski’s history of litigation warrants the need for a pre-filing review of his claims. We acknowledge that Molski’s numerous suits were probably meritorious in part—many of the establishments he sued were likely not in compliance with the ADA.

On the other hand, the district court had ample basis to conclude that Molski trumped up his claims of injury. The district court could permissibly conclude that Molski used these lawsuits and their false and exaggerated allegations as a harassing device to extract cash settlements from the targeted defendants because of their noncompliance with the ADA. In light of these conflicting considerations and the relevant standard of review, we cannot say that the district court abused its discretion in declaring Molski a vexatious litigant and in imposing a pre-filing order against him.

In other words, when the legislature puts the enforcement of the ADA in the hands of disabled individuals without permitting them to recover damages, you can't blame private attorneys for working the market created for the private enforcement of public laws even if you can blame them for the manner in which the market is worked.

So what does this have to do with the settlement of litigation and, in particular ADA Litigation?

Because these accessibility cases always cost more to defend than to settle and because they're often indefensible, the rational business decision is simply to settle the darn things.

No one, however, wants to be extorted. And in the few ADA cases I've mediated, it's the principled refusal to pay money at the point of a gun that interferes with a business establishment's willingness to do the economically "rational" thing rather than, say, try it; appeal it to the Ninth Circuit; and, pursue it to the Supreme Court of the United States.

For those representing defendants who are feeling extorted, I offer my own (previously posted) ADA mediated settlement story below.

(for full post on this particular ADA settlement and Charles Tilly's "Anatomy of Explanations," click here)

Mediators themselves are at least partially to blame for defendants' perceptions that they have been brought to the mediation table or settlement conference to be extorted. Mediators so often stress the expense of litigation as the primary reason to settle a lawsuit that many defendants justly feel their consent is being given to the barrel of a gun. And none of us wants to be robbed.

Legal extortion was the theme of a recent mediation I conducted with the Chinese immigrant owner of a small motel in Long Beach. A local attorney brought suit against Mr. Wu for his failure to have the required handicapped parking space in his lot and a ramp for access to the registration desk. The lawsuit sought available civil remedies under the Americans with Disability Act (the ADA). Whatever the motivation of the plaintiff and his attorney, the Code called for recompense.

In response to my comments on the requirements of the ADA, Mr. Wu told me a story about his immigration to the United States; the money he and his wife had raised to buy this small motel and the way they both worked twenty-four hours a day to staff it.

Neither Mr. Wu nor his wife recalled any disabled person who'd been unable to use the facility. Nor did he recognize the paraplegic man in the hallway waiting outside -- a man Mr. Wu wouldn't acknowledge as he arrived nor consent to meet in a joint session.

As Mr. Wu spoke, his attorney pulled from his briefcase a map of the street on which his client's motel was located. It flagged a dozen other motels whose owners had been sued by the same client and the same attorney.

"We didn't know about the rules," the motel owner said. "This attorney sues everyone," he insisted, stabbing his finger at the flags on the map. "Now we have done it. Complete," he said, as his attorney passed me photos of the required improvements. " Mr. Wu paused, his face flushed. "He's suing everyone. It's extortion. We won't pay."

Responding to Story with Code and Convention

Foolishly, I didn't respond to the extortion comment. Instead, I talked about making a business decision to settle the lawsuit for less than the cost of the defense. This was part convention and part techinal account.

The convention? It's better to settle even a frivolous lawsuit if the cost of defense exceeds the expense of settling.

The technical account? The ADA provides statutory remedies taht cannot be defeated by Plaintiff's motiviation for bringing suit. Nor would Mr. Wu win the case if he could prove that Plaintiff didn't try to register. Just driving by and feeling discouraged was enough.

Not surprisingly, Mr. Wu was not moved by either convention nor by my expertise on the requirements of the ADA.

"It's extortion," he said again. We were, as Malcolm Gladwell notes [in his article on Charles' Tilly's book "Why"] talking past one another.

My first concern was cross-cultural. Of course, I thought, not only was I talking code and convention, I was talking American code and convention to a Chinese immigrant. So I tried another angle.

"In your homeland," I asked, "how are building codes enforced?"

The defendant laughed. "Bribes," he said. It's getting better I think. But still. A lot of bribes."

"Here," I replied, "the building inspectors don't usually take bribes. I'm sure there are exceptions. But on the whole," I continued, "the inspectors enforce the codes without taking money. In this country, lawyers do a lot of the enforcing. And they get paid to do it. I'll wager that some Chinese businessmen consider bribes a part of the cost of doing business. Here, business people often consider payments to settle lawsuits a similar cost of doing business."

Not placated in the least, Mr. Wu continued to insist that he would not be extorted.

So much for cross-cultural translation. Mr. Wu's repeated insistence on framing the conflict as a matter of principle -- not giving in to extortion -- was a sure sign I was missing the heart of the conflict. Mr. Wu was telling a story of injustice and I continued to respond with business sense and legalisms. How frustrated he must be with me. I tried again.

Responding to Story with Story-Telling

"Let me start again," I said. "The way I understand it, you purchased the motel without any of the required handicapped access improvements and you didn't know you were required to upgrade. Is that right?"

"Yes," he said, more eagerly than before. "No one needed to sue us. If we'd been asked to upgrade, we would have. And look," he said, pointing to the photos scattered on the conference table, "as soon as we knew, we complied."

I again examined the photos and said, "but you didn't make these improvements until you'd been sued by the gentleman in the wheelchair outside the door. The one who said he drove by your motel but didn't bother stopping because he could see there was no way for him to get in."

"He said that?" asked Mr. Wu, his interest growing.

"That's what he told me," I responded. "He needed a place to stay and he drove past all these motels that you've flagged here, and he couldn't get in to a single one of them."

Mr. Wu was shaking his head slowly up and down now, in the way we do when we're considering information that sounds newly plausible to us.

I continued. "Mr. Smith was in a car accident a couple of years ago and won't walk ever again. He's only thirty years old. It's not just the wheelchair that is so confining to him. It's his inability to go where people not in wheelchairs are able to go."

Mr. Wu was silent, but still thoughtfully nodding his head.

"Some of the money you pay -- if you pay the plaintiff rather than your attorney -- some of that money will go to Mr. Smith. It won't all go to his attorney. And I think that money will help him out. You could see your payment as a charitable act or simply a way of saying you're sorry that Mr. Smith wasn't able to use your motel."

Then I waited.

I could see the motel owner begin to sag under the weight of resignation. His righteous indignation had been spent. There was someone else involved in this conflict. Someone who was even more challenged and more impoverished that Mr. Wu thought of himself as being.

"So, it's at least a bit of rough justice to settle," I proffered. "Not extortion, do you think?"

The Pay-Off -- Material and Personal

This was a rush of reason-giving. Story. Convention. Code. As Gladwell notes, "one kind of reason is never really enough." And the right reasons, or at least the "good enough" reasons did the trick in this instance. The case settled for a small amount of money, less than the cost of defense. I had, of course, also told the plaintiff and his attorney Mr. Wu's story of hardship and his efforts to do the right thing. They lowered their demand in response.

More important than settling the case, was listening to both sides' stories and responding to each with a story from the other. This is what allowed the parties to leave the mediation feeling better than when they'd arrived. Mr. Wu acknowledged his part in the conflict and accepted responsibility for it. And Mr. Smith was able to exercise a bit of generosity by accepting less money from Mr. Wu than he had from the other motel owners he'd sued.

On his way out the door, Mr. Wu thanked me for helping him to understand. Then he stopped by Mr. Smith in the hallway and offered his hand. I couldn't help thinking that some degree of fellow-feeling had been created. At the very least, the rancor was gone. The resentment that someone once told me was like drinking poison and then waiting for the other guy to die.

Whether we're mediating someone else's dispute or negotiating our own business deals, we sometimes manage not only to make the right business decision, but to make the right people decision as well. And resolution just doesn't get any better than that.

Potential Jurors in My Space Suicide Case Enraged

vpynchon@settlenow.com (Victoria Pynchon) — Tue, 18 Nov 2008 20:28:55 -0500

Update from Public Defender Blog: Why Lori Drew is so screwed

Because almost all the testimony on the first day focused on Megan Meier’s suicide.

__________________________________________________________________

Defense Says Jury Pool Filled With 'Viciousness' Towards Lori Drew

LOS ANGELES — The pool of potential jurors assembled for the trial of Lori Drew is tainted by a deep animus for the 49-year-old Missouri woman accused of helping drive a 13-year-old girl to suicide, Drew's defense attorney said Tuesday.

After reviewing answers to questionnaires filled out by 75 jury candidates Tuesday afternoon, defense attorney H. Dean Steward found that 80 percent of the panel had previously heard of the case, and 50 percent held "devastating opinions" of his client, Steward told U.S. District Judge George Wu.

"The viciousness that comes out in this is stunning," said Steward.

The 17-question form, given to potential jurors as the first step in a screening process, includes this query: "You will hear evidence in the case about the suicide of a 13-year-old girl. Can you put aside any sympathy, pity or sadness you may feel as a result of this evidence, and fairly and objectively evaluate it, along with the other evidence in this case?"

Continue reading here.

Thanks to Anne Reed of Deliberations for the head's up (follow her @annereed)

How to Apologize on the Internet: Larry Bodine Comes Clean

vpynchon@settlenow.com (Victoria Pynchon) — Mon, 17 Nov 2008 23:35:03 -0500

Some attorneys and mediators make light of the power of the apology ("it's only about money"). My education, training and experience consistently suggest otherwise.

Today, we learn a lesson in heart-felt apology from Larry Bodine for a post I hadn't seen, but which Bodine himself admits was anti-Semitic.

"Elevator Pitch" Post Deleted I sincerely apologize for the crude and offensive "Elevator Pitch" post I put online last week. In the clear light of morning, it is clear that it was anti-Semitic and repellent. I want to thank all the people who commented and called me about it; I listened and took what you said to heart.

If you read on here you'll see that Bodine did not simply say "I'm sorry." He removed the admittedly offensive post; disowned it; and, empathized with those who found it offensive by sharing his own family's WWII imprisonment story.

As my Second Track International Diplomacy Professor Brian Cox has written in his book Faith-Based Reconciliation

Words that heal include expressions of caring, concern, gratitude and affirmation. [I]n demolishing the walls of hostility, we must be prepared to examine our own pattern of spoken words and embrace the practice of ethical speech. . . .

Because Bodine himself admitted the anti-Semitic nature of his post, it falls into the category of an identity-based conflict with some or all of his readers. Though speaking from a religious or "faith-based" viewpoint, I always found Cox' prescriptions for resolution to work equally well from the point of view of secular humanism. As Cox explains:

A faith-based reconciliation framework applied to an identity-based conflict . . . consists of six basic elements: imparting moral vision, building bridges between estranged groups, a peace accord, advocacy for social justice, political forgiveness, and healing deep collective wounds.

More particularly, Cox recommends the following specific steps:

1. Sharing life journeys and building common ground.

2. Sharing perceptions of the conflict.

3. Engaging in problem solving.

4. Sharing how one has caused offense to the other.

5. Exploring each community's narrative of history and perception of historical wounds.

If you read Bodine's spontaneous apology, you will see all of these elements contained in it. This is not surprising because apology and attempts to re-build interpersonal bridges are hard-wired into us as toddlers. As I wrote in "Shame by Any Other Name,"

Shame . . . "acts as a powerful modulator of interpersonal relatedness and . . . ruptures the dynamic attachment bond between individuals." 30 When an individual has broken this bond, he wishes to recapture the relationship as it existed before it turned problematic. 31 Toddlers shamed by their mothers, for instance, naturally initiate appeals to repair the momentary break in the emotional bond resulting from the shame-inducing behavior. 32 This process is called self-righting. 33 It is natural and universal. 34 The shamed toddler reflexively looks up at and reaches toward his mother. 35 Even a preverbal child will spontaneously express this need to be held in an attempt to reaffirm both self and the ruptured relationship, to feel restored and secure. 36

A healthy and responsive mother accepts and assuages the child's painful feelings of shame, enabling the toddler to return to a normal emotional state, one in which love and trust are ascendant. 37 If the caregiver is "sensitive, responsive, and emotionally approachable," especially if she uses soothing sounds, gaze and touch, mother and child are "psychobiologically reattuned," the "interpersonal bridge" is rebuilt, the "attachment bond" is reconnected, and the experience of shame is regulated to a tolerable emotional state. 38

This may all seem excessively academic. The point is that we all trespass on the feelings of others; those feelings are critical to our connection with one another; our connection with one another is fundamental to our individual well-being and our survival as a species; the urge toward reconciliation is therefore natural, as are our desire to be forgiven, our spontaneous expressions of remorse, our attempt to explain and normalize our bad behavior (we are all fallible and we have all suffered harm) and our fellows' willingness to forgive, particularly when we bare ourselves and our histories to one another in the course of our effort to re-establish what joins us and to move beyond that which divides us.

And for that lesson, we owe thanks to Larry Bodine this evening.

Will Dems Ban Mandatory Consumer/Employee Arbitration?

vpynchon@settlenow.com (Victoria Pynchon) — Mon, 17 Nov 2008 21:25:02 -0500

This just in on the same day I attended the AAA's Expedited Case training. As an ADR practitioner I favor party "choice and voice" in all dispute resolution venues, meaning that I frown on adhesion contracts of all types, including those that are unfairly imposed upon consumers and employees. The devil in the detail, of course, is the meaning of the term "unfairly." I am unfamiliar with the proposed law subject of this article and neither support nor oppose it. Just keeping my readers informed.

Democratic Party control could ban mandatory arbitration, expert says

11/17/08

Jan Dennis, Business & Law Editor
217-333-0568; jdennis@illinois.edu

Click photo to enlarge

Photo by L. Brian Stauffer

Michael LeRoy, a professor of law and of labor and employment relations, says Democratic Party control in Washington could restore lawsuits as an option for workers and consumers now forced to settle disputes through mandatory arbitration that gives employers and businesses an unfair edge.

CHAMPAIGN, Ill. — Democratic Party control in Washington could restore lawsuits as an option for workers and consumers now forced to settle disputes through mandatory arbitration that gives employers and businesses an unfair edge, a University of Illinois labor law expert says.

Michael LeRoy predicts a bill sponsored by Democrats that would bar companies from imposing arbitration will likely be approved next year when Democrats take over the White House and add to their majorities in Congress.

The measure, introduced last year but stalled by the prospect of a Bush administration veto, would halt a shift that has grown since a 1991 U.S. Supreme Court ruling allowing firms to require arbitration rather than courts to resolve disputes, he said.

For full article click here.

Here's the summary of the bill courtesy of the Consumerist:

Arbitration Fairness Act of 2007 - Declares that no predispute arbitration agreement shall be valid or enforceable if it requires arbitration of: (1) an employment, consumer, or franchise dispute, or (2) a dispute arising under any statute intended to protect civil rights or to regulate contracts or transactions between parties of unequal bargaining power.

Declares, further, that the validity or enforceability of an agreement to arbitrate shall be determined by a court, under federal law, rather than an arbitrator, irrespective of whether the party resisting arbitration challenges the arbitration agreement specifically or in conjunction with other terms of the contract containing such agreement.

Exempts arbitration provisions in collective bargaining agreements from this Act.

Cases Where Apology Would Get You Farther than Cash

vpynchon@settlenow.com (Victoria Pynchon) — Mon, 17 Nov 2008 10:41:43 -0500

Excerpt below. Full story here.

FORT PIERCE, Fla. – Authorities say an 11-year-old boy hit his mother in the head with a saw and then offered her $5 not to call police.

H/t to @SCartierLiebel in my Twitter network.

Tobacco Settlement More Spark than Dying Ember?

vpynchon@settlenow.com (Victoria Pynchon) — Sun, 16 Nov 2008 12:39:50 -0500

From Point of Law - Master & Settlement: General Tobacco sues AGs, competitors

Upon the 10th anniversary of the tobacco master settlement agreement (see below here and here), we find the legal disputes carrying on. Indeed, it appears the settlement did more sparking than settling. Perhaps that's the inevitable result of addressing important policy questions through a joint lawsuit by state attorneys general instead of through a state-by-state basis by legislative bodies, which can better weigh public sentiment and balance political considerations. So, more litigation.

Negotiation/Mediation Terms of Art

vpynchon@settlenow.com (Victoria Pynchon) — Sun, 16 Nov 2008 10:30:00 -0500

I have recently been asked by several lawyers to write a few posts on mediation and negotiation terminology not only because some attorneys are unfamiliar with these terms, but also because different mediators and negotiators use them to mean different things.

Mediators, lawyers and negotiators who read this post are invited to add, correct, object, or suggest further refinements and to add their thoughts on further strategic and tactical uses and perils of the impasse-busters we discuss today - the bracketed offer and the mediator's proposal.

And because my readers may find this post as dry as bones, I once again offer the X-rated "Negotiation Table" as pretty #%$@ true and funny (think Ari Gold).

Bracketed Offer: Party A makes an offer to bargain in the zone he wishes to see the negotiation move to. This is often used when neither party wishes to step up to the line of probable impasse and it can also be used to re-anchor the bargaining zone. Quite simply, Party A offers to bargain in the range of, say, $2 million and $3 million. He offers to put $2 million on the table if party B is willing to put $3 million on the table, i.e., "I'll offer to pay you $2 million if you'll offer to accept $3 million to dismiss your suit."

If party B does not accept the bracket, party A will not be "stuck" with having actually placed $2 million on the table when the next exchange of offers and counter-offers begins.

Responding to a Bracketed Offer: Party B can: 1. respond with a counter-bracket, i.e., I'll make an offer to accept $3.5 million in settlement if you'll put $2.5 million on the table; or, 2. refuse the bracket and ask for an unbracketed counter.

Mediator's Proposal:

The basics: the mediator chooses a number for the parties, making an "offer" to settle for, say $2.3 million which the parties are free to accept or reject. It is a double-blind "offer." If either party rejects the "offer" neither party knows whether the other accepted or rejected. Acceptances are communicated only if both parties accept, in which case they have a deal.

The circumstances: The parties should seek a mediator's proposal only when they have reached a hard impasse. A hard impasse exists when both parties have actually put their true bottom line on the table or their next to the bottom line and they see no hope of it closing the deal.

The purpose: Both parties believe they could convince their principal to accept a deal that is more than they wanted to pay or less than they wanted to accept, but they cannot convince their principals to put $X on the table or accept $Y. They hope to use the authority of the mediator to sell the deal to their principals. If they are the principals, they are willing to settle for a number lower or greater than planned but not willing to close the bargaining session having made such a concession, which would have the effect of setting the floor or establishing the ceiling of all future bargaining sessions.

The Mediator's number: I do not know whether there is a general practice among mediators about how they choose the number proffered. When parties ask me to make a mediator's proposal (I rarely recommend one in the first instance) I explain my practice as follows: When I make a proposal I am not acting as a non-binding arbitrator or early neutral evaluator. In other words, my proposal is not a reflection of the value of the case. The number I propose will be a number that I believe the Plaintiff is likely to accept and the Defendant is likely to pay.

In rare instances, the parties wish to continue bargaining in the event a mediator's proposal is not accepted by both parties. I have permitted this in a few circumstances after explaining to the negotiating parties that it often causes resentment on the other side because they feel as if the party who wishes to continue negotiating is unfairly attempting to use the mediator's number as a new bench-mark from which to bargain.

I highly recommend against continued bargaining after the rejection of a mediator's proposal on the day of the mediation. It should serve as a hard stop because the parties respond to it as an ultimatum. That's part of its power. Take it or leave it.

Just as you would not continue bargaining after indicating that you were putting your last dollar on the table, you should not continue bargaining (during that session) after the mediator has, in effect, put both parties' anticipated bottom lines on the table for them.

Are Women Better Mediators Than Men?

vpynchon@settlenow.com (Victoria Pynchon) — Sat, 15 Nov 2008 11:37:21 -0500

First she's all about the election and now she's back to post-mid-Century America's gender wars? Say it ain't so, Vickie!

These are just statistics from an extremely limited sample that tells more about this particular program in this particular place concerning the particular types of cases being mediated than they are about the relative abilities of male and female mediators.

I'm unaware, however, of any controlled studies on gender differences in mediation results. I do know that there's a gender imbalance in the profession and have had panel administrators acknowledge on the QT that even when they're choosing mediators or settlement officers pro bono lawyers tend to choose men most of the time.

So for women struggling in the profession, here's your moment of zen.

Examining the graphical representation of mediator gender and settlement rates, one can see that there are male mediators who settle cases at higher than average rates, as well as female mediators who settle cases are lower than average rates. Nevertheless, it appears that most of the popular mediators who settle cases at higher than average rates are women, while the majority of popular mediators who settle cases at lower than average rates are men.

Some may object to this “battle of the sexes” analysis on the grounds that men and women should be treated as equals. Based on our data, however, male and female mediators are not statistically equal with respect to the rate at which they settle cases. Whether this “good” or “bad” is more a matter of philosophy than statistics.

In her book In a Different Voice, Carol Gilligan described how men and women think about moral conflicts differently. Her research suggests that men tend to consider conflict in terms of rights while women generally view conflicts in terms of dynamic relationships. Accordingly, a “female” approach to conflict resolution may be better suited to the process of facilitating mediated settlements than a “male” approach to conflict.

For a colored chart and remainder of post, see Correlation of Mediator Gender to Settlement Rate at Practical Dispute Resolution here.

When I think of my own experience as a neutral for the past four years and compare it to my experience as an attorney in the first four years of my practice 1980-1984, I can only say that it is somewhat similar.

What made the difference in the years that followed? Women flooding the profession. As women litigators and bench officers begin to retire, I suspect that we'll begin to see greater use of women neutrals. And no, I do not believe that the paucity of women on commercial mediation panels nor what I believe to be their greater struggle to build a thriving practice there is based upon conscious sexism.

Like the tendency to prefer judges over attorney mediators (a preference I believe to be waning) I believe that the sub-conscious preference for male over female mediators arises from a continuing misunderstanding among members of the bar about what settles cases. Too many attorneys continue to believe that they need a mediator who can overpower the will of their adversary. And if you're looking for raw power (particularly the power of authority) in American commerce and law, you will naturally choose the judge over the attorney and the man over the woman.

I haven't written about this in the past because it is a topic that tends to divide people and it is not my intention to start a tiny gender war in the tiny world of mediation.

But when these statistics started pouring into my in-box, I couldn't ignore the topic any longer.

Please feel free to comment.

Sqaundering Legal Talent from Jordan Furlong

vpynchon@settlenow.com (Victoria Pynchon) — Thu, 13 Nov 2008 20:34:05 -0500

The management of the Obama campaign among the lowest level operatives (i.e., me making cold calls and walking precincts) reminded me of the way in which every organization squanders its resources.

I forgive the Obama campaign its trespasses because it was run by a dedicated, exhausted, physically ill cadre of poorly paid tweens -- tweens in this case being young people in that awkward period between University and real life or University and graduate school (listen to This American Life's spot-on audio-documentary on College Voter Registration Drives here). In any event, the Field Organizers whose goal it was to make X number of telephone calls and knock on Y number of doors were young and inexperienced in using human resources of any kind other than perhaps the counter-staff at the local McDonalds.

So it was that during the course of the last days of the campaign in Henderson Nevada that I met a growing number of 40+ volunteers who had given up going to the campaign office after walking precincts because its management style was anti-Obama -- top down, inflexible, and numbers rather than people-driven. Two of the three campaign buzzwords -- inspire and empower -- were lost in the tumult of real life.

Law firms, unlike local political campaign offices, are presumably being run by mature adult professionals who understand that which Obama Field Organizers could not.

If it takes 1,000 phone calls to recruit a single volunteer (or lavish summer programs; sky-high salaries; and, signing bonuses for first year associates) it's best to treat that volunteer or freshly minted lawyer like the valuable commodity they are. When the local campaign head or firm manager rages out of his office and browbeats his human resources into (temporary) submission, he might as well be keying his own new Bugatti Veyron.

I won't repeat most of what Jordan Furlong has written in his terrific post The Perils of Squandering Talent (a must read ) but I will give you his bottom line:

the legal profession [may be] at risk of becoming the North American automobile industry, about to be hammered by market forces we never prepared for[.] Are our clients, fed up with the cost of tapping our traditional resource, ready to cast about for alternative sources of legal talent? And does your firm in any way foreshadow General Motors, a well-known name poised to collapse from short-term thinking and a failure to give customers what they want?

Why is a negotiation blog put to the task of examining the well being of the profession as a whole? Because the negotiated resolution of disputes requires innovative, value-creating "out of the box" thinking as does the health of our profession in the 21st Century. That's why I've begun a new post category - Outside the Box - so that we can continue exploring those issues critical to our survival as legal professionals.

Ten Ways to Promote Cooperative Negotiations

vpynchon@settlenow.com (Victoria Pynchon) — Thu, 13 Nov 2008 18:40:47 -0500

Mr. Thrifty and I were discussing the increasingly depressing state of air-travel with our neighbors over take-out last week when frequent-flyer cosmetics rep Sean mentioned that U.S. Air was planning to stop showing in-flight movies for a $10 million cost saving.

Since all four of us are frequent flyers, a lively discussion ensued about ways the airlines could deliver entertainment at lesser cost.

Sean's life-partner, the rocket scientist, Tony, wasn't chiming in as usual. Only when the conversation flagged did we notice that he had one of those "I'm about to invent something" looks on his face.

"You know," Tony finally offered, chopsticks hovering in mid-air, "producers ought to offer unreleased movies to U.S. Air in exchange for the airlines making willing passengers available as focus groups. U.S. Air would be able to offer its passengers something better than the other airlines -- movies that haven't hit the theaters yet - and the production companies would probably pay the airline a fee for the focus group service."

This is why people say this or that doesn't require you to be a rocket scientist. These are the types of innovative solutions Tony calls up daily on a moment's notice. His take-out dinner proposal was what negotiation gurus are talking when they suggest that bargaining parties use their negotiation for the purpose of creating value.

As Harvard negotiation luminaries Lax and Sebenius have written, however,

having created new value, negotiators must still divide the resulting goods. Unfortunately, the competitive strategies used to claim value tend to undermine the cooperative strategies needed to create value. The exaggeration and concealment needed for effective competition is directly opposed to the open sharing of information needed to find joint gains. Conversely taking an open cooperative approach makes one vulnerable to the hard bargaining tactics to a competitive negotiator.

The Manager as Negotiator: The Negotiator's Dilemma: Creating and Claiming Value

Lax and Sebenius' recommendations to encourage value-creating cooperation?

Focus on interests rather than positions.
Make a strong early commitment to cooperative attitudes.
Capitalize on past histories of cooperative dealings.
Shift focus from competition to relationship.
Make an early agreement to be guided by the principle of just division of mutual gains.
Stress norms of appropriate behavior, such as being reasonable, civilized or fair.
Reward cooperation with cooperation.
Punish competition with competitive moves.
Readily provide your bargaining partner opportunities to resume cooperation.
Be clear and simple, so your responses are consistent with your stated intentions.

I will discuss each of these techniques in subsequent posts.

In the meantime, any U.S. Air people out there can have Tony's idea free of charge.

Learn Deposition Skills (and Much More!) at Solo Practice University™

vpynchon@settlenow.com (Victoria Pynchon) — Thu, 13 Nov 2008 11:30:36 -0500

It's official! I've joined the faculty of Solo Practice University™

Huh?

I don't see that University in any tier of the U.S. News and World Report's Law School Rankings! And if it's not ranked for goodness sakes, does it even exist?

Yes, Virginia, a school for legal practitioners does exist "as certainly as love and generosity and devotion exist, and you know that they abound and give to your life its highest beauty and joy."

O.K.,Solo Practice University™ is not Santa Claus but it comes pretty darn close.

Solo Practice University™ is a revolutionary new web-based educational community that picks up where your legal education left off.

Learn from some of the most progressive lawyers, marketing pros, technology consultants and legal business giants how to:

* Plan, build and grow your private practice
* Differentiate yourself from the competition
* Attract and engage new clients more easily

… and much more. They just can’t teach you that in law school.

Need to transform your marketing strategy in these troubled economic times? You can learn not just how to blog your way into your desired market, but how to leverage what you love into how much you make from Blawgfather and SPU Professor Grant Griffiths.

Wondering whether to put rocket fuel into your networking vehicle by adding online social media? You couldn't find a better teacher than SPU Professor Toby Bloomberg who has over 15-years of traditional strategic marketing experience and four years with social media through her company Bloomberg Marketing/Diva Marketing.

Are your clients peppering you with questions you can't answer about their rights and remedies in Cyberspace? Then it is Christmas, Hannukah and Kawanza all rolled up into one when SPU Professor Brett Trout is teaching a course on intellectual property in cyberspace.

Whether your presence in Cyberspace is solo or in connection with a group practice, let SPU Professor Stephanie L. Kimbo help you hang out your virtual shingle.

Don't yet know your way around the courtroom? Thinking of adding criminal defense to your practice as a growth industry in troubled economic times? Need to ask questions of a seasoned trial attorney that would make you feel inadequate to ask of your supervising attorney in the PD's office? There's no better winter holiday gift than SPU Professor Scott Greenfield's semester-long course “The Practice of Criminal Defense - The Road to Perdition.”

Still waiting to take that first deposition? Taking your 20th and can't stop worrying that the Court Reporter thinks you're just a tiny bit pathetic? Don't know how to deal with obstreperous opposing counsel? Afraid to run a line of killer cross-examination to re-position your case for summary judgment or settlement? Wish you'd gotten the expert to admit that he'd consider the moon to be green cheese if his attorney had told him to assume it? (yes my partner did).

Then you'll want to sign up for my Deposition Skills course based upon the NITA techniques I've taught for more than a dozen years and my own OJT during a 25-year commercial legal practice.

Let your real legal education begin at Solo Practice University™

Because All Great Negotiations Are Performance Art

vpynchon@settlenow.com (Victoria Pynchon) — Wed, 12 Nov 2008 15:32:43 -0500

Bob Dylan on Creativity

View SlideShare presentation or Upload your own. (tags: dylan bob)

. . . with thanks to @guykawasaki for tweeting the dylan slide show!

Fact that Class Settlement Was Reached in Mediation Does Not Prevent Objectors from Discovering Factual Basis for Mediated Terms

vpynchon@settlenow.com (Victoria Pynchon) — Tue, 11 Nov 2008 18:07:54 -0500

Excerpts from Kullar v. Foot Locker Retail, Inc. below. Comment will follow.

[T]he fact that the settlement was reached during mediation to which Evidence Code section 1119 applies does not eliminate the court’s obligation to evaluate the terms of the settlement and to ensure that they are fair, adequate and reasonable. If some relevant information is subject to a privilege that the court must respect, other data must be provided that will enable the court to make an independent assessment of the adequacy of the settlement terms.

[T]he fact that communications were made during the mediation and writings prepared for use in the mediation that are inadmissible and not subject to compulsory production does not mean that the underlying data, not otherwise privileged, is also immune from production. (Evid. Code, § 1120 [“Evidence otherwise admissible or subject to discovery outside of a mediation . . . shall not be or become inadmissible or protected from disclosure solely by reason of its introduction or use in a mediation . . .]; Rojas v. Superior Court (2004) 33 Cal.4th 407, 417; Wimsatt v. Superior Court (2007) 152 Cal.App.4th 137, 157-158.)

Foot Locker’s payroll records, for example, if relevant to the quantification of the claims being settled, are subject to discovery and may be introduced in opposition to the settlement even if they were disclosed to class counsel during the mediation, and even if class counsel was shown only a summary or analysis of those records that is not itself subject to production because prepared for use in the mediation.

* * *

Following the opportunity for limited discovery, the trial court should redetermine whether the proposed settlement is fair, adequate and reasonable. The court may and undoubtedly should continue to place reliance on the competence and integrity of counsel, the involvement of a qualified mediator, and the paucity of objectors to the settlement. But the court must also receive and consider enough information about the nature and magnitude of the claims being settled, as well as the impediments to recovery, to make an independent assessment of the reasonableness of the terms to which the parties have agreed.

We do not suggest that the court should attempt to decide the merits of the case or to substitute its evaluation of the most appropriate settlement for that of the attorneys. However, as the court does when it approves a settlement as in good faith under Code of Civil Procedure section 877.6, the court must at least satisfy itself that the class settlement is within the “ballpark” of reasonableness. (See Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499-500.)

While the court is not to try the case, it is “ ‘called upon to consider and weigh the nature of the claim, the possible defenses, the situation of the parties, and the exercise of business judgment in determining whether the proposed settlement is reasonable.’ ” (City of Detroit v. Grinnell Corp., supra, 495 F.2d at p. 462, italics added.) This the court cannot do if it is not provided with basic information about the nature and magnitude of the claims in question and the basis for concluding that the consideration being paid for the release of those claims represents a reasonable compromise.

By remanding we do not suggest that the proposed settlement ultimately may not pass muster. We hold only that the trial court may not finally approve the settlement agreement until provided with sufficient information to assure itself that the terms of the agreement are indeed fair, adequate and reasonable.

How to Lose an Argument from Awake at the Wheel

vpynchon@settlenow.com (Victoria Pynchon) — Tue, 11 Nov 2008 13:11:23 -0500

Jonathan Fields.Awake@the Wheel gives us 7 critical mistakes to avoid when trying to persuade someone to your point of view. Excerpt below: Jonathan's full post is a must read and can be accessed by clicking on the link above.

Don’t Attack - When you verbally attack either a person or their point of view, you immediately raise their defensive shields. . . .
Don’t fail to acknowledge and validate another person’s right to believe what they believe - You may want them to emerge from the conversation with a different opinion, but their experience in life has led them to the point of view they hold today. . . .
Don’t fail to anticipate and address objections - People feel a strong need to act and speak in a way that is consistent with their prior actions and statements. . . .
Don’t skip building rapport, trust, credibility - Often, especially when people have strongly held convictions, they’ll launch into an argument in support of those convictions, before allowing the person on the other side of the conversation to (a) get comfortable with who they are, (b) build rapport and likeability, which is a tremendous aid in the effort to persuade, and (c) establish enough credibility in an area to allow the other person to feel comfortable deferring to your knowledge base. Take the time to establish these elements in the conversation BEFORE launching into your campaign . . . .
Don’t forget to to adequate research - Be informed and prepared with the latest, most relevant information . . . .
Don’t shut yourself down to being persuaded yourself - This may surprise you, we’re not always right. . . . .
Don’t say don’t - By now, you may have realized that by simply removing the word “don’t” from each of these points, you’d end up with seven things to “do,” rather than 7 mistakes to avoid. . . . .

Rock on!

Obama's Persuasive Oratory for Your Next Court Appearance

vpynchon@settlenow.com (Victoria Pynchon) — Mon, 10 Nov 2008 13:41:11 -0500

Simply great post on Obama's oratory from About.com thanks to Grammar Girl in my Twitter network. Excerpt below from Barack Obama's Secret for Stirring a Crowd:

Oh sure, this may look as easy as one, two, three, but the truth is it takes more than a flag-draped stage and a run of tricolons to turn an ordinary speech into great oratory. Also helpful is the occasional series of four--a tetracolon ("democracy, liberty, opportunity, and unyielding hope")--along with effective repetition, a bit of alliteration, and a few conventional metaphors. The insistent use of the first-person plural ("we," "us," and "our") invites identification. And the right combination of anaphora ("It's the answer") and epiphora ("Yes we can") can lift a crowd off its feet and land a speech in the history books.

But that's not all. About 2,000 years ago, Cicero taught us that what makes or breaks a speech is effective delivery, which includes the qualities of dignity and grace:
All these parts of oratory succeed according as they are delivered. Delivery . . . has the sole and supreme power in oratory; without it, a speaker of the highest mental capacity can be held in no esteem; while one of moderate abilities, with this qualification, may surpass even those of the highest talent.
(De Oratore)
So to the list of Obama's persuasive skills add standing tall, speaking forcefully, and exuding confidence.

Oh, and one last thing. Especially in troubled and uncertain times, it never hurts to extend the promise of change, the prospect of hope, and the reminder that we're all in this together.

And if you haven't yet seen this hilarious video about 20-somethings' malaise post-election, click on play immediately!

Twitter Micro-Blog on What Negotiation Skills Lawyers Most Need

vpynchon@settlenow.com (Victoria Pynchon) — Sun, 09 Nov 2008 17:18:20 -0500

	brianherrington @vpynchon Patience. In terms of listening & allowing process to play out.

	bschuelke @vpynchon maybe not negotiation skill, but figuring out what client really wants/needs
	SCartierLiebel @vpynchon Knowing when to listen. Letting people put a period on the end of their sentence. Letting people tell their story.
	RobRutkowski @vpynchon You can't memorize preparation. You must still learn everything you can about the other side and the subject matter of the deal.
	3rddeadline @vpynchon not a lawyer, but: relationship/client management and business development should be on the list.

Trial Skills, Deposition Skills and IP Negotiation Skills Programs

vpynchon@settlenow.com (Victoria Pynchon) — Sun, 09 Nov 2008 17:05:38 -0500

Here are my upcoming speaking and teaching engagements in November and January!

I'm baaacccckkkkkkkkkkkkkkkkkkkk!!!!!!!!!!

Judicate West Neutral and IP ADR Mediator and Blogger Victoria Pynchon.

Coach/Instructor, National Institute of Trial Advocacy: Building Trial Skills
Location: Loyola Law School Los Angeles
City: Los Angeles, CA
Dates: 1/2/2009 - 1/8/2009
Director: Williams, Gary C.

This is a week-long intensive program for new and/or experienced attorneys who need to learn/brush up on their basic trial skills. If you can take the time, your entire practice will benefit from the experience.

BrightTALK Intellectual Property Summit here! on November 11, 2008 Webcast Free

Negotiating a Settlement in IP Litigation

12:00 pm
Presenting Victoria Pynchon, Judicate West, CPR, Settle It Now, IP ADR Blog

And coming soon! Deposition Skills Training (NITA techniques) at Solo Practice University!!

New California Custody Blog on Making Mediation Matter

vpynchon@settlenow.com (Victoria Pynchon) — Fri, 07 Nov 2008 13:51:06 -0500

See Make Mediation Matter over at Jill P. Rawal's new California Custody Blog. (right, Jill Rawal, fellow U.C. Davis School of Law alum) Excerpt of Ms. Rawal's post below.

Before you go to your mediation, think about what you want. Specifically, you want to think about the following issues:

Write your thoughts down and take the notes to mediation with you.

Once you are in mediation, be prepared to listen to the mediator and the other parent. Mediation is about learning and understanding, it is not about making the other person see that you are right.

What are your goals?

What parenting plan (i.e., custody and visitation schedule) would you like to see?

What about the holidays? Think about your family traditions and what would maximize the child's experience for each parent's special traditions.

What are your concerns about the other parent's lifestyle or parenting skills?

What can you do to help the other parent adjust to the new parenting roles?

I don't mediate family law cases myself, but I agree with Ms. Rawal's observation that many attorneys mediate just to get their dance card signed whenever the court system requires mediation. Because I serve on the L.A. Superior Court pro bono ADR Panel and because many Los Angeles lawyers believe they're required to mediate (they aren't if the case has a value in excess of $50K) you'd be surprised how many attorneys appear unprepared and without any hope that the case can be resolved.

I do try not to toot my own horn, but I'm now used to one or more of the attorneys using my services off the pro bono panel saying, "wow! you're good; I never expected this case to settle today."

Yes, well, I'm competent, and if you didn't expect the case to settle with just any assigned mediator from the panel, why would you let your client incur fees for such a fruitless enterprise? This is not, obviously, a question I ever pose to counsel, but it's sure one I think as the parties are putting their John Hancocks on the deal memo.

So attend to Ms. Rawal's advice. You never know when the mediator the court assigns you is actually a full-time skilled professional who can get the job done.

Difficult Conversations 101: Blaming Sarah

vpynchon@settlenow.com (Victoria Pynchon) — Fri, 07 Nov 2008 11:22:10 -0500

There appears to be no small amount of blame to spread around for the Republican's loss at the polls, much of it centering on Sarah Palin, as if she hadn't been hand-picked and thrown out to American conservatives as a "Hail Mary" pass.

Because scape-goating gives rise to oodles of litigation every year, let's talk briefly about having difficult conversations in which everyone "takes their part" in the loss experienced, failure suffered or mistake made.

Time to pull out your hopefully dog-eared and battered copy of Difficult Conversations: How to Discuss What Matters Most by Douglas Stone, Bruce Patton, and Sheila Heen, reviewed by the good folks at BeyondIntractability.com not too many years ago. As the Conflict Research Consortium Staff reviewers wrote, Difficult Conversations recomments that we:

start conversations from the perspective of a "third story" that describes (or at least acknowledges) the difference between the parties views in neutral terms. The opening should then invite the other party to join in a conversation seeking mutual understanding or joint problem solving.

Listening is a crucially important part of handling difficult conversations well. It helps us to understand the other person, and the feeling of having been heard makes the other more able to listen themselves. The key to being a good listener is to be truly curious and concerned about the other person.

Techniques that can help you show that care and concern include asking open questions, asking for more concrete information, asking questions that explore the three conversations, and giving the other the option of not answering.

Avoid questions that are actually statements. Do not cross-examine the other. Another technique is paraphrasing the other person to clarify and check your own understanding.

Acknowledge the power and importance of the other person's feelings, both expressed and unexpressed.

Each person must recognize that her views and feelings are no less (and no more) legitimate and important than anyone else's, and she is entitled to express herself. Once you have found the courage to speak, start by saying explicitly what is most important to you. Do not use hints or leading questions.

Share the information, reasoning and experience behind your views. Help the other person to understand you by having them paraphrase, or asking how they see it differently.

Blame statements should be reframed in terms of contributions [of all parties to the trouble at hand]. You can't move the conversation in a more positive direction until the other person feels heard and understood."

Naming the dynamic. When the other party persistently puts the conversation off track, for instance by interrupting or denying emotions, explicitly name that behavior and raise it as an issue for discussion. This makes the other person aware of the behavior, and it brings out more unexpressed thought and feelings.

Problem solving is the final step. First, remember that it takes two to agree. The other party needs to persuade you just as much as you need to persuade her. Gather information and seek missing information. Ask what would persuade the other person.

Tell them what would persuade you. Ask them what they would do in your position. Try to invent new options for dealing with the problem, and consider what principles could guide a fair solution.

When the parties cannot find a mutually acceptable solution, each must decide whether to accept a lesser solution, or to accept the consequences of failing to agree and walking away. When a person does walk away, they should explain why, describing their interests, feelings and choices.

Re-framing the GOP's loss? How about this? The Dems and the GOP are natural correctives to one another every four years. Things change. Like the economy. And the culture. New generations arise to replace the old ones. We evolve. We also fail, stumble, falter, lose courage, miss opportunities, and resist change.

We Americans believe in the benefit of adversarial processes to course correct; to shine a light on the problems we might otherwise blind ourselves to; and, to see which ideas survive the harsh illumination of debate. The transition of power from one party to another is the way we do things. Instead of casting blame, we might all take a look at our personal and organizational contribution to things as they currently are -- which is none too good for anyone.

Bottom line? There's simply no advantage to be achieved by blaming Sarah.