Arbitration & Mediation
Settle It Now Negotiation Blog 
Everything you always wanted to know about negotiation but were afraid to ask. From Victoria Pynchon.
Post Frequency: 2.4/day Last Entry: November 20, 2009 at 22:36:10 Recent Entries: 782
By Victoria Pynchon
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Favorite Thanksgiving Family Conflicts: the Ice Storm
Posted on November 20, 2009I'd like to challenge all my favorite dispute resolution bloggers to find and post their favorite Thanksgiving Family Conflict Scenes in the movies. Above - an era within the memory of some of us who were too young for the "key parties" but too old for the behavior depicted here...
Southern California's Best Lawyers 2010 ADR Edition
Posted on November 20, 20092010 Best Lawyers ADR Services, Inc. Neutrals Victoria Pynchon Ralph O. Williams, III Eleanor Oths Barr Denise R. Madigan Eugene Charles Moscovitch Click on logo for entire issue, including JAMS and other Best Lawyer Neutrals. Click on the image above for the National Annual Best Lawyers ADR Guide which includes not only colleagues at ADR Services but also throughout the Southern California ADR community including: Deborah Rothman Jeff Kichaven Jay McCauley Les J...
How Not to Kill Your Relatives This Thanksgiving
Posted on November 15, 2009I kicked off a recent Thanksgiving holiday season by having an argument with my friend and neighbor the rocket scientist about extraordinary rendition and the effect of immigrant workers on the economy. I knew I'd lost all sense of perspective around midnight as I continued searching for and emailing Tony articles that proved me right, while Mr...
Trial Lawyers' Dilemma Similar to Mediation Advocates' Dilemma: Making the Initial Demand
Posted on November 14, 2009Check out Trial Lawyer's Dilemma: How Much to Ask for at the Palm Coast Injury Law Blog this week. As lawyer Phil Chanfrau observes: Knowing how much to ask the Jury for is a delicate, tough and lonely decision for any plaintiff's trial lawyer, no matter how skilled, and experienced he is...
Hope is a Choice: an Interview with Psychologist Anne LaBorde
Posted on November 12, 2009I created this video years ago with my BFF and apologize for its poor visual quality (I was just learning). But I can't duplicate this conversation about communication and peace making skills. I'm posting it here for the first time.
Prejean, Larry King and Hard Facts Making Bad Mediation Confidentiality Law
Posted on November 12, 2009While reading this opinion (or simply this post) think about Carrie Prejean's accusation that Larry King's question to her -- "why did you settle" --was "completely inappropriate" because (presumably) her thought process was protected by mediation confidentiality...
Why Do You Think They Call Them "War" Stories? A Meditation on Mediation Ethics
Posted on November 10, 2009Thanks to google translate (daily destroying God's work on the Tower of Babel) I can bring you this mediation war story (loosely and imperfectly translated from a German mediation blog that I'm sorry I've lost the link to). Before the trial of a wrongful termination case, the parties meet to mediate...
Support the Conflict Resolution and Mediation Act of 2009
Posted on November 09, 2009Thanks for the head's up on this new and important piece of proposed legislation to Patricia Porter, the Texas Conflict Coach in my twitter network = @txconflictcoach SEC. 3. CONFLICT RESOLUTION AND MEDIATION PROGRAM AUTHORIZED. (a) In General- The Secretary of Education is authorized to make grants to local educational agencies to provide assistance to schools served by the agency that are most directly affected by conflict and violence...
Harvard Mediation Goes to Iraq
Posted on November 09, 2009Community mediation in Iraq? You betcha. Some successes are small. He described one mediation between two families: one household with young girls built a privacy wall that blocked sunlight from reaching the neighbor's house. They had argued for months, and were close to blows...
Conflict Revolution: Mediating Evil, War, Injustice and Terrorism by Dr. Kenneth Cloke
Posted on November 08, 2009I spent my day Saturday at the annual convention of the Southern California Mediation Association (kudos to attorney-mediator Phyllis Pollack for a fabulous conference!) Ken Cloke spoke eloquently on conflict systems and what mediators can do to "save the planet...
Impatience Key to Effective Mediation
Posted on November 05, 2009(cartoon generously provided by the brilliant Charles Fincher at LawComix) O.K., I'm MUCH TOO CLOSE to this case but nevertheless intrigued by the following comments in the Recorder's recent article, Judge Puts on the Brakes While Heller Sides Mediate...
Mediation Advocacy: The Power of the Story
Posted on November 04, 2009I've been accused of Kumbaya here (ask some of my litigation opponents if you want to check out the truth of that particular canard). It's true that in addition to position-based competitive negotiation strategy and tactics in my mediation practice, I also facilitate what I believe to be the far more effective interest-based collaborative negotiation model, aimed at creating greater "deal" opportunities and avoiding mediation's bad reputation for splitting the baby in half (heard in the hallway: "anyone can divide by two")...
It's Not You, It's Me-diation: the Dim View from Across the Pond
Posted on November 04, 2009Thanks to Diane Levin of The Mediation Channel for passing along Six things I'd Change about Mediation from the U.K.'s Mediator Magazine. At present, if the total number of civil mediations were shared out evenly among accredited mediators, on average, mediators would manage fewer than one mediation a year...
Negotiating Gender, a History: When You Wish Upon a Star
Posted on October 29, 2009From Letters of Note.
Negotiating Enforceable Employment Arbitration Agreements
Posted on October 29, 2009Even so luminary a firm as O'Melveny has been smacked down by the courts (here, the Ninth Circuit) when trying to enforce employee arbitration agreements. California lawyers would therefore be well-advised to read the opinion covered at the California Employment Law Report this week: Arbitration Agreement Upheld Despite Employee's Argument It Was Not Mutual And Adhesive Here's the clause: I hereby agree to submit to binding arbitration all disputes and claims arising out of the submission of this application...
New Case Law for ADR Practitioners and Advocates: Insurance Coverage
Posted on October 29, 2009Best pull quote: 'Certainly from a pragmatic viewpoint, it is quite true that in many of the liability insurance cases, the most real dispute is between the injured third party and the insurance company, not between the injured and an oftentimes impecunious insured...
Mediators and Industry Knowledge, Game Theory and Understanding Conflict
Posted on October 26, 2009Check out the range of opinions among litigators' clients on this still-hot topic in mediation circles over at the Business Conflict Blog (quickly becoming one of the most indispensable commercial mediation blogs on the web): Should Mediators Be Expert in the Field of the Dispute? Excerpt below...
Mediation as Profession, Hobby or Retired Occupation
Posted on October 25, 2009Though I'm not wild about raising the over-discussed issue whether mediation is a profession, in writing L is for Lawyer (for the ABC's of Conflict Resolution) I had occasion to take a look at the characteristics of "professions." I thought I'd share them with my readers to add a little fuel to this long-burning fire because, frankly, L is for Lawyer is one of the most boring chapters of this book...
The Professional Women's Network: WE REFER!!
Posted on October 25, 2009There is a lot going on for women attorneys' business development these days, particularly at the Women Lawyers Association of Los Angeles (check out this November 17 all-day event: Continuing the Retention and Advancement of Women in Law Firms: Fresh Perspectives for Changing Times, for instance)...
Online Dispute Resolution Event Announcement
Posted on October 25, 2009ODR WEEK 2009 Web 2.0: Going from OH? To KNOW! Friday October 30th 2:30pm - 3:30pm est. (it will be archived too!) Spots limited, see below. Join Jeff Thompson (www.enjoymediation.com & Centre For Peace & Social Justice) and an all-star lineup of Mediate...
Blawg Review #234
Posted on October 17, 2009Sociologist Elise Boulding has said that we live in a '200 year present,' a 'social space which reaches into the past and into the future' -- a space in which 'we can move around directly in our own lives and indirectly by touching the lives of the young and old around us...
Arbitration & Mediation Legislation Now Before Congress
Posted on October 15, 2009Over at Disputing with at least one bill that would mandate mediation (to irritate mediation purists who learned this catechism at their ADR parents' knees- "mediation is a voluntary process . . . ") Thanks to Timothy R. Hughes - @vaconstruction in my twitter network - for the head's up...
Guidelines for Responding to Mediator Complaints Proposed in Virginia
Posted on October 09, 2009Thanks to Timothy R. Hughes of the Virginia Real Estate, Land Use and Construction Law Blog(@vaconstruction in my fabulous twitter network) for this item on mediator ethics from Virginia. Ethics rules for mediators retooled, comment sought by Peter Vieth Published: October 5, 2009 Regulations that govern certified mediators in Virginia would have more teeth under changes now under consideration...
Negotiating Jury Verdicts: Apologies Work with Twelve People Good and True
Posted on October 07, 2009A big thank you to local mediator Steve Mehta for Apology Infuences Jury Verdicts, New Study Finds excerpted below and click here for full post. By Steven G. Mehta A big question in trial for lawyers to consider is whether to apologize for their client's 'alleged' conduct...
The Annual ADR Issue of the Advocate is Out and Online
Posted on October 06, 2009The Advocate - the Journal of Consumers Attorneys Organizations of Southern California publishes an annual ADR issue every year and this year's issue is a goldmine of mediation strategy and tactics. From preparation to closing, some of L.A.'s most prominent mediators reveal the secrets of getting the best deal available for your clients...
Mediator Testifies for Insurance Carrier and Court Enforces Mediated Settlement Agreement against Policyholder
Posted on October 02, 2009What???????????? This opinion -- Palmer v. State Farm - is wrong on so many levels that it's no surprise the appellate court ordered that it not be published. The opinion therefore controls only the fate of the parties to the case and cannot be cited as authority...
Sure We Can Compromise, But Can We Negotiate Justice?
Posted on September 30, 2009The following is the conclusion of an excellent post on the recent Pfizer-Justice Department settlement noting that it met "the People's" justice interests better than a judgment could have. The full article, Settlement and Justice for All by Robert C...
Court of Appeal Grants Rehearing in Burlage
Posted on September 30, 2009I recently reported with surprise the Second Appellate District's Burlage opinion in which it refused to vacate the trial court's vacation of a $1.5 million arbitration award based upon the arbitrator's rejection of evidence that the damages sought were not in fact suffered by claimants...
Evaluative Neutrals and Mediator's Proposals
Posted on September 27, 2009Let me begin with a radical proposition the expression of which my colleagues assure me will doom my mediation career. Ready? Attorneys and their clients do not know what type of mediation is best for them any more than they know how to cure their own cancer...
The Difficulty of Changing Minds by L.A. Mediator Charles Parselle
Posted on September 25, 2009One of my own favorite quotes about "changing the other guy's mind" is from commercial mediator Jeff Kichaven: "piling rationales atop one another to convince a litigator he is wrong is like raising your voice to communicate with a deaf man...
The 411 on the AAA's Non-Binding ADR Solutions Program
Posted on September 23, 2009Yes, I am on this panel. The American Arbitration Association (AAA), the world's leading provider of conflict management and dispute resolution services, has unveiled new services for parties involved in business-to-business, business-to-consumer, and employer-employee disputes...
Restrain the pitbulls and release the attentive questioners for theirs is the Kingdom of Resolution.
Posted on September 22, 2009Don't Let the Mediator Bully the Parties from Six Ways to Insure Your Construction Mediation Will Fail over at the Construction Law Musings Blog. A mediator who is bullying you or your client to settle simply hasn't gotten the knack of asking questions and creating opportunities...
Six Negotiation Pitfalls to Avoid from the Stanford Graduate School of Business
Posted on September 22, 2009The advice below is part of the Stanford Graduate School of Business Knowledge Base. I have excerpted the article. To read the entire discussion (particularly if case study examples are helpful to you) click here. Poor planning After preparing your own agenda, outline the same for your opponents: What are their preferences, alternatives, and bottom line? Once at the bargaining table, test your hypotheses to determine what the opposition's priorities really are...
Negotiating Women at ForbesWoman
Posted on September 19, 2009If you're a certain age, you'll remember women's magazines as mostly "How I Saved My Marriage" (The Ladies Home Journal to which PWNSC member Cathy Scott's mother was always submitting articles) or 101 Things to do with Jello (Good Housekeeping)...
Wave Good-Bye to Mediation Confidentiality in the U.K.
Posted on September 18, 2009From the Business Conflict Blog comes bad news from the U.K., Mediator as Witness, Just When You Thought it Was Safe (excerpt below): John Richardson, that worthy and thoughtful New York mediator, has brought to our attention a decision by Hon. Mr. Justice Ramsey of the Royal Courts of Justice in England that seems to render unenforceable the commonplace contractual provisions immunizing mediators from testifying as to the conduct of the mediation...
Ten Ways to Get Sued: A Guide for Mediators by Michael Moffitt
Posted on September 18, 2009And just in case you think my mediation advocacy malpractice series is picking on attorneys, here is ADR Professor Michael Moffitt's excellent article from the Harvard Negotiation Law Review, Ten Ways to Get Sued: A Guide for Mediators (.pdf). Here are the ten ways...
Yet Another Path to Attorney Malpractice in Mediation Proceedings: Coerce Your Own Client
Posted on September 18, 2009Because the vast majority of my litigation and mediation clients were and are corporate entities or highly successful entrepreneurs, executives or managers, I was and am rarely in a position to coerce a client into doing something it didn't want to do...
Another Malpractice Trap for the Unwary Mediation Advocate: Draft Your Own Confidentiality Agreement
Posted on September 17, 2009As every mediation advocate must know by now, the California Supreme Court has locked down mediation confidences from attack at every turn. There can be no implied waiver of Evidence Code section 1119's protections and you cannot be estopped to assert it (Simmons v...
SOMEONE thinks we're no. 1!
Posted on September 17, 2009I have no idea whatsoever what InvespConsulting is nor how it decides (really!) what the "ULTIMATE BLOG RANK" is. But Settle It Now has never made the ABA Top 100 Legal Blogs despite its ABA listing as the most popular ADR Blog...
More Ways to Commit Legal Malpractice as a Mediation Advocate
Posted on September 16, 2009If you didn't already understand how to protect your mediated settlement agreement from challenge based upon statements made during the mediation, you do now. But wait a minute! Is that what you want? What if your client entered into the agreement only because its opponent made a material misstatement of fact? What if one of your co-defendants challenges your settlement agreement as not having been made in good faith, thus exposing your client to potential liability for indemnity or contribution? Can you win the "good faith settlement" challenge without the testimony of the participants in the mediation? In a comment on yesterday's post, Los Angeles mediator Joe Markowitz noted that: Parties are entitled to walk out of a mediation with a whole range of outcomes, from a completed settlement agreement, to a term sheet, to an oral understanding, to a promise to think over the other side's last offer, to a promise to see the other side in court! As long as both sides understand what they are getting at the conclusion of the mediation session, there should be no basis for a malpractice claim for any of these outcomes...
Russia and Bank of New York Mellon Use Litigation as an Opportunity to Make a Business Deal
Posted on September 16, 2009Just like I'm always saying -- this from the Wall Street Journal Law Blog [T]he Bank of New York Mellon has reached an agreement to settle a $22.5 billion lawsuit by the Russian government for $14 million. The deal was reportedly reached after the two sides made a separate deal for a trade-financing pact...
Yet Another Way to Commit Malpractice: Draft an Unenforceable Arbitration Clause
Posted on September 16, 2009Before I begin to get hate mail from attorneys about this series, let me say that it is meant to sound the alarm, raise red flags, and make attorneys overly cautious so that our clients wouldn't even ever think of suing us for malpractice. I don't mean to suggest here that drafting an arbitration clause a Court refuses to enforce or to apply to a given claim constitutes malpractice...
Call Your Carrier? Because of Negligent ADR Advocacy? YOU BETCHA!
Posted on September 15, 2009That's not a summons and complaint for malpractice, is it? Because of something you didn't know about ADR advocacy? C'mon! ADR is all about avoiding litigation, not creating it, right? The good news is that there hasn't yet been an ADR malpractice suit of note...
The Judicial Branch Rejects the Executive Branch's Settlement with Financial Institutions
Posted on September 15, 2009I'll leave opinions and conclusions about this New York Times news item (S.E.C. Settlement with Bank Over Merrill Bonuses) to my readers as I give myself time to ponder its implications. Excerpt below; full article at link above. As President Obama traveled to Wall Street on Monday and chided bankers for their recklessness, across town a federal judge issued a far sharper rebuke, not just for some of the financiers but for their regulators in Washington as well...
Diplomatic Engagement to Settle Your Commercial Litigation
Posted on September 14, 2009Today's New York Times Op-Ed piece on "diplomatic engagement" (Terms of Engagement) as a strategy for "chang[ing] [Iran's] perception of its own interests and realistic options and, hence, to modify its policies and its behavior," offers good strategic negotiation lessons for mediators and mediation advocates alike...
Negotiating Friendship at the California State Bar Tweetup
Posted on September 12, 2009O.K. I just couldn't resist posting this.
Power and Trust as Negotiation Strategies and the Lessons of The Cove
Posted on September 08, 2009Powerlessness and silence go together; one of the first efforts made in any totalitarian takeover is to suppress the writers, the singers, the journalists, those who are the collective voice. - Margaret Atwood Every year, a town in Japan named Taiji kills 2300 dolphins and small whales...
Burlage: "arbitrators have a great deal of power, but not absolute power"
Posted on September 06, 2009I recently reported with surprise the Second Appellate District's Burlage opinion in which it refused to vacate the trial court's vacation of a $1.5 million arbitration award based upon the arbitrator's rejection of evidence that the damages sought were not in fact suffered by claimants...
The Inaugural Issue of the Federal Bar's RESOLVER Hits the Newsstands!
Posted on September 05, 2009Welcome to the first issue of the Federal Bar Association's ADR Section Newsletter, The Resolver. (right, our fearless leader, Simeon H. Baum) The subjects covered in this issue include the chaotic state of federal mediation confidentiality protections [by Phyllis G...
California Appellate Court Reverses Arbitration Award
Posted on September 04, 2009More arbitration surprises in California! No, this isn't becoming an arbitration blog, but the threat of arbitration directly impacts the value of litigation and negotiating the price of a release from litigation is what I spend my days helping attorneys negotiate...
Further Thoughts on Arbitration Clause Unconscionability in California Contracts
Posted on September 03, 2009I belong to two groups on LinkedIn that any attorney who arbitrates cases or who counsels clients to put arbitration clauses into their contracts should join. They are the Greater AAA Connection, which describes itself as: a professional and social network of current and former employees, neutrals, and students of the AAAU from around the world...
The Continuing Perils of (Potentially) Uneforceable Arbitration Agreements
Posted on September 02, 2009Fellow State Bar Convention panelist Brian Reider recently alerted our panel */ to the Fourth Appellate District's August 26, 2009, decision Parada v. Superior Court (.pdf) which creates a slippery slope of questionable enforceability for Courts presented with motions to compel arbitration...
Justice Chaney, Arbitrator Rothman and Litigator Goldberg Speak on Arbitration Advocacy in Complex Commercial Litigation
Posted on August 31, 2009As advocacy in commercial arbitration becomes increasingly sophisticated, costs can skyrocket and the process can drag on unless counsel and the arbitrator(s) utilize these cutting-edge tips in the case management process. Topics will include motion practice, limiting discovery (including electronic discovery), and the use of stipulations and time limits to manage the proceedings...
How to Manage Your Negotiating Team from Harvard Business Review
Posted on August 25, 2009The last time I trained an in-house legal department, I asked every group manager this question: if I could leave a silver bullet behind, what would it be? The response was unanimous from this well-run Fortune 500 Company: fix our relationship with the __________ Department: it chronically undermines our negotiations with outsiders...
The Five Most Effective Ways to Break Negotiation Impasse: Part III
Posted on August 21, 2009In that most famous of sales movies,David Mamet's Glengarry Glen Ross, the under-appreciated Alec Baldwin gave his sorry group of cold-callers the prime directive of sales: Always Be Closing. You close when you convene the negotiation, close when you open it, close when you ask diagnostic questions, close when you offer your bargaining partner coffee, and close by MAKING THE FIRST OFFER...
The Five Most Effective Ways to Break Negotiation Impasse: Part V
Posted on August 21, 2009Know and Use the Rules of Influence Nearly all negotiators know Robert Cialdini's six 'rules' of influence: reciprocation, commitment and consistency, social proof, liking, authority and scarcity. They are easy to remember because we are all influenced by them every day...
The Five Most Effective Ways to Break Negotiation Impasse: Part IV
Posted on August 21, 2009Give a Reason for Every Number (right, the ultimate in lame reason giving: the dog ate my homework!) To reinforce anchoring and framing effects of first offers and offer-characterization, always state the reason you are valuing the item to be traded in the manner you are...
The Five Most Effective Ways to Break Negotiation Impasse
Posted on August 19, 2009I begin a series today on what I believe are the five most effective ways to break impasse. This morning's impasse-breaker will aid business people negotiating the settlement of a commercial dispute the most because it requires the generation of hitherto unseen business advantages to sweeten the pot...
The Five Most Effective Ways to Break Negotiation Impasse: Part II
Posted on August 19, 2009Someone recently told me that you can't argue with a story, only with a position or another argument. That's why narrative is such a powerful impasse breaker and why asking diagnostic questions, which elicit stories rather than arguments, is so often often able to bridge seemingly unbridgeable gaps between the parties' bargaining postures...
Best Early Case Assessment Practices
Posted on August 18, 2009I cannot recommend John DeGroote's Settlement Perspectives blog too highly or too often. This week he praises CPR's new Early Case Assessment Guidelines. Praise from John is hard to come by. I join in his comments below and suggest that all my readers click on the link below for his excellent commentary...
Negotiating Rational Choice, Statistics and the Future of Mankind
Posted on August 16, 2009(right: Bueno de Mesquita's "Logic of Political Survival") The book at right was brought to my attention for the first time by this highlighted text in Good Magazine: In the foreboding world view of rational choice, everyone is a raging dirtbag...
Letter From Cambodia: American Cambodians for Justice
Posted on August 14, 2009My name is David Blackman and I am a trial lawyer who practiced in Sacramento, California, for approximately 32 years before coming to Cambodia, where I have made my home for the last three years. I have been a member of the California Bar Association since 1972...
Family, Collaboration, Reciprocity and SOCIALISM?????
Posted on August 13, 2009From Indexed -- In Theory at Least. And this is all I'll have to say about universal health care. The way in which this Index Card wisdom applies to legal practice was addressed by me in the sadly defunct complete lawyer article Savvy Lawyers Value Their Human Capital These are hard times and none of us is immune...
Closed Dutch Auctions from Mediator Ralph Williams, III
Posted on August 12, 2009Ralph Williams August 2009 ADR Tip _______________________________________________________________________________ When 50-50 partners break up, the Closed Dutch Auction is an effective way to set the buyout price. The partners exchange sealed bids stating the price at which they will sell their 50% share...
Negotiating the Power of Reciprocity with "The Go Giver"
Posted on August 08, 2009A friend recently reminded me of a book review I wrote for one of those "get rich" books The Go Giver (below) for the sorely-missed Complete Lawyer. I reprint it here in the Negotiation Blog because I talk a lot about the power of reciprocity in bargaining...
Negotiating the Recession with Lawyer Connection
Posted on August 07, 2009Connecting for Job Help By Barbara Rose Gwynne Monahan is not a lawyer, but she knows what it's like to lose a job. So the Twitter thread she spotted in May about lawyer layoffs caught her attention. 'Wondering why laid-off attorneys don't band together and start a new law firm,' a lawyer tweeted...
You Decide from Mediate Dot Com
Posted on August 06, 2009This new video just in from Mediate.com. No, it won't inspire attorneys to mediate sooner than they already do nor drive any attorney to your mediation door. But it will introduce mediation to young people as a dispute resolution method that is in tune with the times - collaborative, reciprocal, fast, flat and flexible...
Contact Landlord through Mediation Program Advises the San Francisco Chronicle
Posted on August 03, 2009In the article Mediator can help with PayPal rent payment shift, the Rent Watch column of the San Francisco Chronicle (SF Gate) advises that a landlord's attempt to force renters to pay through PayPal is not strictly legal but, rather than risk a notice for failure to pay rent based on a complex legal analysis, contacting the landlord through a mediation program would be a safer method to resolve this issue...
Diane Levin Hits Mediator Credentialing Out of the Ballpark
Posted on July 29, 2009Many ADR bloggers (including me) have written extensively about the imposition of standards or the implementation of "best practices" in mediation. This week, Diane Levin at the Mediation Channel, hits the issue out of the ballpark, summaizing the arguments on both sides; providing solid resources for study and analysis; and, raising the important issues the mediation community will ignore to its detriment...
Is Starting an ADR Practice to Weather the Recession Like Choosing a Niche in Bobbleheads?
Posted on July 28, 2009This month's ABA Magazine suggests that an ADR practice might provide attorneys with a recession-proof (or downturn-friendly) practice: On ABAJournal.com, readers were asked to name some of the lesser-mentioned practices where an attorney might find refuge from this recessionary storm...
Maureen Dowd Chats with Skip Gates at the New York Times
Posted on July 26, 2009Maureen Dowd correctly notes in today's NYTimes column Bite Your Tongue, that "race, class and testosterone will always be a combustible brew. Our first African-American president will try to make the peace with Gates (who supported Hillary) and Crowley (whose father voted for Obama)...
The Cop The President The Professor and Civil Harassment Mediation
Posted on July 25, 2009It's merely coincidental that I volunteered to mediate civil harassment petitions for the first time during the same week as Gatesgate. (for the legal eagles, here's the law on disorderly conduct in one's own home vs. on one's own porch form today's L...
Mediating Civil Harassment Petitions with a Few More Thoughts on Gatesgate
Posted on July 25, 2009Some people are so dangerous and some situations so volatile that restraining orders are of little use. Consider this tragic tale of the courthouse shooting of a woman who had "secured restraining orders that prohibited [her former husband] from possessing or carrying any firearms, that ordered him to turn over his firearms to his lawyer, and that prohibited [him] from being 'within 100 yeards of any firearm' while in the presence of [his ex-wife] Eileen and [the couple's] children...
Delivering Justice in Community Mediation
Posted on July 24, 2009It's All About Reaching Neighborly Solutions FORUM COLUMN Daily Journal, July 24, 2009 By Victoria Pynchon Nearly every condominium complex harbors an outlaw - the man, woman, couple or family who refuses to follow the rules, such as the college kids who blast the woofers off their stereo system at 3 a...
Three Guys Walk into the White House for a Beer
Posted on July 24, 2009I'm happy to see that Obama has asked Gates and Crowley up to the White House for a beer. Breaking a longstanding tradition of ignoring racial conflict, Obama has officially invited Cambridge police officer James Crowley and Harvard professor Henry Louis "Skip" Gates, Jr...
Negotiating the Resolution of Civil Harassment Complaints
Posted on July 23, 2009It's good to step into a small claims or limited jurisdiction court from time to time to see how ordinary people's disputes are resolved, usually without counsel. Yesterday, as I sat in the small claims department of a local branch court, I wondered why the one-hour court trial I was observing hadn't been resolved in mediation...
The American Arbitration Association Gives Up Consumer Debt Collection Disputes as Well
Posted on July 22, 2009See the Wall Street Journal article Credit Card Disputes Tossed into Disarray on NAF's settlement with the State of Minnesota and the AAA's decision to "stop participating in consumer-debt-collection disputes until new guidelines are established...
The Benefits of Being Candid with the Mediator: A Guest Post by Attorney Gregory Nerland
Posted on July 17, 2009This is a guest post by litigator and mediator of Gregory Nerland of Akawie & LaPietra in Walnut Creek, California. You can follow Nerland on Twitter here. The photo is from Twitter - hence its casual nature. I reviewed with some dismay the July 12, 2009, post titled Mediators' Proposals: the Good, the Bad and the Ugly, which seemed to endorse counsel who deceive the mediator to push the negotiations to a mediator's proposal...
Minnesota Says National Arbitration Forum "Front" for Debt Collectors
Posted on July 14, 2009From David Sugarman's Oregon Class Action Blog, Bombshell: State of Minnesota Sues National Arbitration Forum. The State of Minnesota filed a lawsuit against National Arbitration Forum, a leading arbitration provider, claiming that NAF is a front for debt collectors and their law firms and not an independent arbitration service...
Negotiating Earn Out Provisions in M&A Transactions
Posted on July 13, 2009Via twitter this morning just in case the powers that be at manatt are still wondering whether it's worthwhile to have a twitter account. David Grinberg to Discuss the Negotiation of Earnout Provisions in M&A Deals Manatt partner David Grinberg will discuss the negotiation of earnout provisions in M&A deals during a live webinar hosted by Strafford on July 14, 2009 from 1:00-2:30 Eastern...
Mediators' Proposals: the Good, the Bad and the Ugly
Posted on July 12, 2009At the close of the year, our good friend John DeGroote at Settlement Perspectives asked whether mediators' proposals had lost their utility. Now that parties "know the mediator's proposal is coming," he wrote, savvy negotiators angle for an advantageous impasse rather than a settlement...
Negotiating Unity: Gettysburg, Rhetoric and Poetry
Posted on July 10, 2009Gettysburg View more presentations from Victoria Pynchon. We hear a lot of talk these days about rhetoric and whether people are able to follow through on it, deliver "the goods", stay true to the rule. We live in a cynical age and diminish rhetoric as if it were all just a slick sales presentation and we its potentially gullible consumers...
Mediation of Insurance Disputes in the London Market
Posted on July 08, 2009This 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...
Negotiating Resolution on the 4th of July
Posted on July 04, 2009I 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...
And Now a Word from Mediators Beyond Borders on Climate Change
Posted on July 02, 2009By 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)...
Deal or No Deal: Improving the Odds of Successful Mediation
Posted on July 02, 2009Need 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...
Negotiating God: a Sunday Reflection
Posted on June 28, 2009According 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...
Negotiating from a Position of Weakness Hollywood Style
Posted on June 26, 2009When 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...
Put Conflict Resolution on the Climate Change Conference Agenda
Posted on June 24, 2009Place: 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...
Negotiating with North Korea
Posted on June 23, 2009Check 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...
Sotomayor and Women's Organizations
Posted on June 19, 2009Women 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...
An Interview with Michael Young on the $4.1 Billion Arbitration Award
Posted on June 17, 2009Anatomy 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...
Negotiating Cooperation
Posted on June 15, 2009Cooperation View more OpenOffice presentations from Victoria Pynchon.
More Praise for Joint Sessions in Today's Daily Journal
Posted on June 09, 2009JUNE 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...
Negotiating Justice: Anchoring, Bias, Dad and Sotomayor
Posted on June 09, 2009I 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...
Foreclosure Mediation Becomes Mandatory in Connecticut
Posted on June 08, 2009So 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...
Who ME? Manipulate? Negotiating Impartiality in Mediation
Posted on June 07, 2009I 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: The article (well worth reading in full) Experts Say Full Disclosure May Not Always Be Best Tactic in Diplomacy, while citing the importance of back channel communications, quoted "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...
Update on the $4.1 Billion Arbitration Award Confirmed as Judgment by Los Angeles Superior Court
Posted on June 07, 2009Here's a copy of the Judgment Confirming Final Arbitration Award. Comment later. In the meantime, Money Money Money from Cabaret.
Barb North's Great Big Fat Reality TV Mediation Screen Test
Posted on June 06, 2009This 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! The 411 on Barb below...
Six Ways to Insure Your Construction Mediation Fails at Construction Law Musings
Posted on June 05, 2009How 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...
Michael Webster Encourages Franchisees to Attend Harvard's Program on Negotiation
Posted on June 05, 2009Check out franchise law blogger Michael Webster's post at Blue Mau Mau on the Harvard Program here. Excerpt below. How do we know that people are bad negotiators? For more than 30 years, theorists have been devising little bargaining puzzles...
My Great Big Fat Mediation Reality Show Screen Test
Posted on June 05, 2009I 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...
Negotiating the Recession with Poetry: "We Can't Be Forever Blessed"
Posted on June 04, 2009Sometimes, all that stands between us and giving up (R.I.P. David Carradine) is the knowledge that we are not in this alone and "cannot be forever blessed." Paul Simon's ** American Tune from 1975, another time when the American Economy was flagging...
The ABC's of Social Networking from Anna Laura Brown
Posted on June 04, 2009ABC's of Social Networking Success View more OpenOffice presentations from Annalaura Brown.
$4.1 Billion JAMS Arbitration Award Confirmed by Court!
Posted on June 03, 2009All I have now is the Plaintiff's attorneys' own press release. Excerpt below. SACRAMENTO, Calif., June 2 /PRNewswire/ -- Released today by Law Offices of Scot D. Bernstein, A Professional Corporation, and Law Offices of Steve A. Buchwalter, P...
Negotiating Employment: A 12-Step Plan
Posted on June 02, 2009This article (Relationships are Key in Job Searches) flogging this book (Whacked Again! Secrets to Getting Back in the Executive Saddle) landed in my email box from law.com this morning. I have to say that I agree with magazine mogul Tina Brown that we're in a "gig economy" not a job economy...
Negotiating Our Own Survival with One Human Story
Posted on June 02, 2009Human Story View more OpenOffice presentations from Ali Hadi.
Mediation without the Hammer of Litigation?
Posted on June 01, 2009Worth reading from last week's Mediator blah blah blog (the Lord Chief Justice arms himself with a hammer); just in case you missed it or didn't download the .pdf as I just did this morning. Thanks Geoff! Let us take a blank sheet of paper and imagine that we are trying to create a system which would provide a satisfactory means of resolving civil disputes, bearing in mind, without being over dramatic, that in the end, it becomes almost inevitable that some civil disputes will end up in criminal activity...
Negotiating with Difficult People for Lawyers
Posted on June 01, 2009Negotiating With Difficult People Part One View more OpenOffice presentations from Victoria Pynchon. Negotiating With Difficult People Part Ii View more OpenOffice presentations from Victoria Pynchon. Part III Negotiations With Difficult People View more OpenOffice presentations from Victoria Pynchon...
Negotiating with Difficult People
Posted on May 31, 2009Negotiatingwith Difficult People View more OpenOffice presentations from Victoria Pynchon.
Restorative Justice: Mediation for Crimes
Posted on May 28, 2009I'm asked about Restorative Justice from time to time. It's all about accountability, amends and reconciliation. Powerful stuff. Take a look. Here's my own article on Restorative Justice practices, which I compare to recovery in a 12-step community...
Structured Settlement Traps for the Unwary
Posted on May 28, 2009I would not ordinarily post a power point presentation that is someone else's marketing vehicle. Nor would I generally post a power point that is meant solely for the benefit of one side of any dispute (here, plaintiffs' personal injury attorneys)...
The 140-Page Majority Prop 8 Opinion in a Single Paragraph
Posted on May 27, 2009If you learn this single trick, Scout, you'll get along a lot better with all kinds of folks. You never really understand a person... until you consider things from his point of view. Sir? Until you climb inside of his skin and walk around in it...
Hey Justice Logic: Don't Go Around EMPATHIZING
Posted on May 25, 2009Check out Balkinization's Why is Empathy Controversial? or Liberal, an excellent analysis of empathic wisdom (and blind spots) on the Bench in the wake of a noted Republican's vow to filibuster any Supreme Court nominee who might commit the (liberal?) sin of empathizing from the Bench...
HOW You Negotiate More Important than WHAT You Negotiate
Posted on May 25, 2009Check out Steve Mehta's recent post at Mediation Matters -- Negotiations Today Could Haunt You Tomorrow, once again confirming that the human interaction during the negotiation is more important to long term satisfaction with the deal than the raw economic benefit achieved...
Mediation: Hazards of the Profession
Posted on May 24, 2009Police: Woman hit, bit court mediator var isoPubDate = 'May 23, 2009Police: Woman hit, bit court mediator PORTSMOUTH — After a session of marital mediation in the district court's family division, Elizabeth Loveday threatened to kill her estranged mate, then hit and bit the mediator, police allege...
"A" is for Asshole: the Power Point
Posted on May 23, 2009I know I've been promising the publication of this book for a long, long time. I'm half-way through the second draft though (my publisher Janis Publications will be pleased to know) and am feeling all bright and new about it again. The brilliant and talented Laurie Barrows chose the images and did the lay-out of chapter one...
Mediators Beyond Borders Seeks Acting Executive Director
Posted on May 23, 2009Announcement: MBB Seeks Acting Executive Director Mediators Beyond Borders (MBB) is a non-profit, humanitarian organization established to partner with communities worldwide to build their conflict resolution capacity for preventing, resolving and healing from conflict...
Communication Lessons from the Campaign Trail
Posted on May 22, 2009Changing Minds Is Easier to Do When Yours Is Open FORUM COLUMN Los Angeles Daily Journal May 19. 2009 By Victoria Pynchon It was hot, really hot, trudging the blacktop separating dozens of apartment buildings in Henderson, Nev., the day before the election...
Mediator Certification an Idea Whose Time Has Come?
Posted on May 22, 2009Mediate.com Certification Program: A Grilling of Mediate.com CEO Jim Melamed by Geoff Sharp, Diane J. Levin, Victoria Pynchon May 2009 Three of the mediation world's leading bloggers, Diane Levine, Geoff Sharp and Victoria Pynchon, not necessarily great fans of mediator certification, interviewed (think 'grilled') Mediate...
Negotiation Training Now!!
Posted on May 22, 2009Negotiation Training View more presentations from Victoria Pynchon.
Mediating Reinsurance Disputes
Posted on May 21, 2009Excerpt from the Loree Reinsurance and Arbitration Law Forum blog: In our case, two of the three retroceded claims made up most of the $5MM. In the original joint cession, the Retrocessionaire had alleged improper, accommodation underwriting of serious medical issues...
Chimp Loses Control of Van as Banks Lose Control of Foreclosure Crisis
Posted on May 21, 2009(image from and link to last week's This American Life episode, No Map) What do these two stories -- the first hilarious; the second infuriating -- have to do with negotiation? First, listen to the introduction and first story in last week's brilliant episode of This American Life, No Map (podcast here)...
Negotiating the Recession with a Legal Mutual Aid Society
Posted on May 19, 2009If you're worried about your law job becoming -- as they say in Britain - "redundant" or if you've already been laid off due to the recession, join Lawyer Connection which was born today as the result of a twitter conversation I had with Gwynne Monahan (who you can follow @econwriter)...
How Summer Associates Fail from David Mills' Brilliant "Courtoons"
Posted on May 19, 2009Hat tip to Virginia Construction Lawyer Christopher Hill for introducing us to the extremely multi-talented federal appellate attorney David Mills .
Conflict is Inevitable, Combat Optional from Justin Patten at Human Law
Posted on May 19, 2009British mediator and blogger Justin Patten (Human Law) has a terrific piece in his ezine today entitled Conflict is inevitable, combat is optional – how to negotiate without falling out. Justin responds with sympathy to a recent survey calling his fellow Brits "the angriest nation in Europe," noting that the wave of redundancies sweeping across the nation is forcing a number of employers, employees and their advisors such as lawyers and trade unions into conflict situation...
Dealing with "Jerks" - Tit for Tat in an Email World
Posted on May 18, 2009I'm re-posting below an article published in both the Los Angeles and the San Francisco Daily Journals (the local legal rags) about the dangers inherent in email communication. I do so because I had several complaints about the use of abusive email by in-house counsel last week at my negotiation training as well as in my twitter network from attorneys exasperated with combative emailers who refuse to take telephone calls (see post about conflict avoidance here) My advice? Use the tried and true tit-for-tat strategy: retaliate for uncooperative conduct and be quick to forgive as soon as your bargaining partners bring themselves back into line...
Negotiating the Future: President Obama's Notre Dame Commencement Speech
Posted on May 17, 2009Here's part I of the Obama Notre Dame Speech YouTube Video (sorry about the intro footage). Here's the MSNBC Video: Visit msnbc.com for Breaking News, World News, and News about the Economy OBAMA: Thank you, Father Jenkins for that generous introduction...
Do Interest-Based Negotiation and Mediation "Trade Justice for Harmony"?
Posted on May 17, 2009Among the most frequently asked questions at my negotiation trainings are these: how do you negotiate with a sociopath? how do you negotiate with people who are: evil dishonest; or 100% irremediable jerks how do you negotiate when you are powerless (or simply weak) Whenever someone asks me about negotiating evil, I think of Ken Cloke's brilliant book Conflict Revolution: Mediating Evil, War, Injustice and Terrorism – How Mediators Can Help Save the Planet (my review of that book here)...
Negotiating Success: Social Networking for Lawyers
Posted on May 17, 2009Internet defamation attorney Adrianos Fachetti; entertainment attorney Gordon Firemark; class action attorney H. Scott Leviant; Barger & Wolen Marketing Director Heather Milligan and I will be presenting Social Networking for Lawyers: A Roadmap to Success Session 1 (9:15-10:30) at the Second Annual LACBA Solo and Small Firm Convention on June 25, 2009...
More on Bargaining from a Position of Weakness
Posted on May 16, 2009Because I've been talking to a lot of people with services or products to sell in what they perceive to be a buyer's market, I've been giving a fair amount of advice about negotiating from a position of weakness. That being the case, I'm just jotting down a few random thoughts on the matter...
Want to Appear in My Blog Roll? Negotiating the Blawgosphere
Posted on May 14, 2009Dear New Blogger, I'm happy whenever new legal bloggers contact me to ask whether I'll add them to my blog roll because it gives me an opportunity to be of service to the Blawgosphere that has done so much for me. Because I keep writing this same responsive e-mail from scratch however, I'm going to finally post my most recent free advice so that I can simply link to it next time...
Negotiating Conflict in a Business Setting with a Word for Women and a Caution on Negotiation Ethics
Posted on May 13, 2009Negotiation And The Anatomy Of Conflict View more presentations from Victoria Pynchon.
Never Negotiate with Your Creditors Out of Fear, But Never Fear to Negotiate Lower Interest Rates, Waiver of Interest, Late Fees, Etc.
Posted on May 08, 2009O.K., times are tough. And it takes no small amount of courage to face the financial disaster that credit cards can cause to even those who feel themselves to be the most sober of financial citizens. Then it takes real courage to pick up a telephone and make a request to a disembodied and not-likely-friendly voice to ask for help bailing you out of a mess you can barely believe you find yourself in...
Negotiating Against the Grain of Gender
Posted on May 07, 2009Yesterday, we talked about the different negotiation styles of men and women. Today, we're going to explore how men can benefit from learning women-speak and women can benefit from learning man-talk. All of the data relied upon and excerpted below is from Gender Benders by Dianna Booher at the Negotiation Expert's blog...
More Lee Jay Berman on the American Institute of Mediation
Posted on May 06, 2009Here are the final clips of my interview with mediator and mediation educator, Lee Jay Berman, about helping disputants ask the questions necessary to resolve their conflict and how the new American Institute of Mediation will help the experienced mediator improve his/her existing game and, just as importantly, build the business that allows him/her to practice the profession at the highest level...
Negotiation 101: Gender War or Gender Peace and Prosperity?
Posted on May 06, 2009Although I am indisputably a "woman lawyer," I have never thought of myself in those terms. I'm a lawyer. And I'm a woman. I'm also a writer, a step-mother, a wife, a daughter, a river rafter, and an aficionado of squash (the game, not the vegetable), photography, literature, and theater...
Negotiating the Settlement of a Personal Injury Action? Here are Some Helpful Statistics
Posted on May 05, 2009My statistics page tells me that lawyers are not the only people searching for information about likely outcomes at trial. The clients land here too. For their benefit, here's a report from the Accident and Injury Lawyer Blog, penned last Spring but likely to reflect current trends as well...
Surprise Announcement of the Week: Joint Sessions Put Parties into a Collaborative, Even Generous, Mood
Posted on May 05, 2009Whether 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 here is nearly a dead letter in one of the most active and sophisticated mediation markets - Los Angeles California...
Negotiation 101: Putting "No" into a "Yes Sandwich"
Posted on May 05, 2009With so much emphasis placed on Getting to Yes in negotiations, we often forget the power - indeed the necessity -- of saying "no." Think of yourself in that iconic bargaining environment, the foreign bazaar. No matter how much of a buyers' market you're in, at some point, the seller must say no -- otherwise you'd just bargain him down to zero, or perhaps negotiate a deal in which he pays you to take the merchandise off his hands...
Master Mediator Lee Jay Berman and the American Institute of Mediation
Posted on May 03, 2009Here's part one of a multi-part interview with Lee Jay Berman of the new American Institute for Mediation. Lee Jay is one of the foremost mediation trainers in the United States. Why bother with yet another mediation institute? For the same reason I spent the vast majority of time at the recent ABA Dispute Resolution conference talking to attendees rather than attending seminars...
Are We Post-Racial Yet? Can we Be? Do We Want to Be?
Posted on May 01, 2009Cheryl Harris, Professor of Critical Race Studies at UCLA Law School talks about color-blindness as the bus we get on to take the journey to a post-racial society. What is the history of post-racial politics in America. What is its present posture and what do we have to learn from our history and our response to the elephant in the room? The first of a series from the ABA Dispute Resolution Conference in New York City last month...
The May 2009 Carnival of Trust
Posted on May 01, 2009If trust had a hologram for all of its forms -- honor, commitment, credulity, betrayal, reliance, and, confidence (harboring the "con" that playwright David Mamet has made his life's work) - that hologram would surely include images of the American Legal System...
50 Ways to Break an Impasse: Sam Imperati at the ABA Dispute Resolution Conference
Posted on April 30, 2009I'm providing you with just a few clips from mediator Sam Imperati's excellent presentation at the ABA Dispute Resolution Conference in New York City recently. Below are a few of Sam's mediation advocacy tips. You can find all of them at his website here...
Developing Your Business Without Spending a Dime
Posted on April 29, 2009A few days ago, in the wake of my social media for mediators presentation, I pulled out this old hand-out that mediator and USC Mediation Clinic Professor and Director Lisa Klerman used for a "write your way to success" seminar at the Southern California Mediation Association a couple of years ago...
The Question is Not WHETHER But HOW MUCH Your Mediator is Deceiving You
Posted on April 29, 2009I spent the day at an advanced mediation training session at the U.S. District Court in Los Angeles where I serve as a settlement officer. I came away troubled by the wide array of responses to questions concerning the mediator's "right" or "desire" or "need" to use deception in separate caucus mediation - the primary form mediation takes in Southern California litigated cases...
Neutrals Richard DeWitt and Jerome Landau Talk About Lawyers as Community Leaders
Posted on April 25, 2009Richard DeWitt is a member of the American Arbitration Association's National Roster of Neutrals serving on its large, complex case panel, its commercial, employment and technology panels and its panel of Mediators. He is also a Member of the FINRA Dispute Resolution Board of Arbitrators and serves on the National Arbitration Forum's Panel of Neutrals and the CDRS Panel of Neutrals...
One thousand non-billable hours a year to build a mediation practice
Posted on April 25, 2009With many apologies for the incomprehensible blurriness of this interview with Woody Mosten conducted in the noisy exhibitor ballroom at the NYC Sheraton Hotel during last week's ABA Dispute Resolution Conference, I nevertheless provide the interview because of the importance of Woody's message...
An Interview with the Editor-in-Chief of the Cardozo Law School Dispute Resolution Journal
Posted on April 24, 2009Jordan Wallerstein is the next year's Editor-in-Chief of the Cardozo Law School's Journal of Conflict Resolution. Jordan talks about his interest in dispute resolution; the challenges faced by his generation of lawyers; and, the benefits of attending Cardozo Law School in New York City...
Victoria Pynchon Now Available on AAA's Non-Binding Dispute Resolution Services Panel for Businesses and Consumers
Posted on April 24, 2009The American Arbitration Association announces a new set of dispute resolution services for businesses and consumers, including new panel members of which I am one. Mediation and non-binding arbitration are processes that offer parties opportunities to settle their disputes...
Mediation as Sales and Niche Mediation Practice with Jim Melamed of Mediate.com
Posted on April 23, 2009I traveled to the ABA DRS conference in New York City last week with my new video camera. I apologize for my lack of skill with it and with Mac's iMovie. I have more of Jim on tape and will provide it to you as soon as I learn where it disappeared to when I hit the wrong button on iMovie...
Negotiating the Marketplace with Social Media
Posted on April 22, 2009Social Media for Neutrals View more presentations from Victoria Pynchon.
Negotiating Peace at the ABA DRS Conference: Pray the Devil Back to Hell
Posted on April 20, 2009The most stunning presentation at the recent ABA DRS conference, about which I will write much more very very soon. For the web site, click here!
Separating the People from the Problem at the ABA DRS Conference
Posted on April 17, 2009The law school professor asked for a show of hands. "How many lawyers are in the room?" There was something about the way he shook his head, just slightly, from side to side, that communicated "too many lawyers," followed by a sigh that I read as "I'm still going to smack them upside the head...
Negotiating Reconciliation, Amends and Forgiveness in Burundi
Posted on April 13, 2009Whenever I read about restorative justice (my paper on the topic here) I am somewhat ashamed that I cannot put aside my own grievances when others resolve harms of such major magnitudes such as the murder of children and genocide. I am reminded of this today because of Paul and Rebecca Mosley's blog on the work they are doing in Burundi...
Negotiating the 21st Century: Blawg Review #207 at Jordan Furlong's Law 21
Posted on April 13, 2009It's law week in Canada and the brilliantly prolific Jordan Furlong at Law21 celebrates justice with Blawg Review #207: All the News that Fits, helpfully including the following outline for his comprehensive review of the best posts in last week's Blawgosphere...
California Courts May Not Require Parties to "Negotiate in Good Faith"
Posted on April 13, 2009Although a California Court may properly sanction a non-party insurance carrier who possesses the authority to settle litigation for its failure to participate in a mandatory settlement conference, there is no statutory (nor inherent) authority given the Court to sanction the carrier or a party for its purported failure to negotiate in "good faith...
Negotiating Women on New Day Talk Radio Easter Sunday Noon
Posted on April 11, 2009(and, yes, I am not only old enough to remember the "Second Wave" Women's Movement, I took a quite serious role in it, first as an unpaid volunteer and later through the federal government's "Program for Local Service" at the Center for Women's Studies and Services in San Diego) If you're celebrating Easter tomorrow and bored with the relatives, tune into New Day Talk Radio for a live call-in program on negotiation for women...
An Infinite Regression of Insurance Coverage
Posted on April 10, 2009This just in from the Insurance Journal -- an infinite regression of insurance coverage. You can now purchase insurance to cover your insurance company's refusal to provide you with insurance coverage. And if NAS refuses to provide coverage for your coverage dispute with your insurance carrier? Don't hold your breath; we've already entered the house of mirrors...
You Must Create Disputes to Resolve Conflicts: Contingent Business Interruption Coverage
Posted on April 09, 2009Conflict exists. It is a neutral state in which one person believes that his needs or desires cannot be satisfied at the same time as his fellows. This belief system -- that, for instance, there's not enough food in the world to feed everyone -- is not reality...
Negotiating World Peace with Mediators Beyond Borders
Posted on April 08, 2009Please join the Los Angeles Chapter of Mediators Beyond Borders on May 30, 2009 (.pdf) at the home of Ken Cloke and Joan Goldsmith in Santa Monica for conversation on global conflicts. Contribute your ideas, expertise, donations and support, in building conflict resolution capacity around the world...
The American Institute of Mediation Opens its Doors
Posted on April 08, 2009In anticipation of working out Affiliated Organization agreements with SCMA and CDRC, current members of those two organizations (and others in the very near future) will receive special Enrollment Discounts as a benefit of your membership in either of those groups...
Settle It Now in Avvo Top 50 Legal Blogs
Posted on April 08, 2009Lawyers are shrewd keepers of the score. They're in the AmLaw100 or 200, serve Fortune 50 or 500 clients and attended a top 10 Tier 1 law school as reported yearly by the U.S. World and News Report. Every year the ABA announces the Top 100 Law Blogs, the local legal rag - the Los Angeles Daily Journal - lists the top 100 lawyers, top 40 neutrals and 75 top women litigators...
Settling Lawsuits: Money is the Instrument but Justice is the Issue
Posted on April 07, 2009As every lawyer knows and most students of high school geometry must learn in mastering "proofs," the answer often comes first, the rationale later. I used to say, "I'm a litigator, I can rationalize anything." As a mediator, my rationalizations have turned from the way in which facts can be shoe-horned into causes of action or affirmative defenses to the way in which harm arising from a dispute (including, most assuredly, the moral harm of injustice) can be monetized...
Negotiating Practice Development in Hard Times
Posted on April 06, 2009This month, ADR Services, Inc. will host my presentation to the Southern California Mediation Association's Professional Development Committee meeting on social networking to build your mediation practice. On Tuesday, April 21, 2009 at 7 p.m. I will speak on the use of social networking tools to build your mediation practice under the auspices of the SCMA Professional Development Committee...
Negotiating Emotion (and Client Development) with Arnie Herz at Legal Sanity
Posted on April 03, 2009(image by the great Charles Fincher at LawComix) Thanks first to LexBlog for giving yesterday's post here a shout-out but more importantly, thanks to LexBlog for giving Arnie Herz' post at Legal Sanity Why lawyers should get emotional with clients coverage in the same daily compilation of LexBlog client posts, a tremendous resource I highly recommend you include on your news reader...
The Godfather of Collaborative Law Talks about Litigation and its Discontents
Posted on April 02, 2009Discouraged by the adversarial process? Looking for lawyers who will handle your commercial dispute without going to "war" with all the expense and collateral damage that involves? This excellent talk by Webb has been viewed 202 times, while "Drunk Lawyer" below has been viewed by nearly 300,000 people...
Good News for Mediators and Mediation Advocates Alike at Mediate.com in April
Posted on April 02, 2009Interviews with ADR giants: Mediate.com opens video archive for month of April Posted by: Diane Levin in Cool Things on the Web, Mediation, Mediation in Practice Mediate.com, the world's premier source for news, information, and articles about mediation, has opened its video archive to the public during the month of April...
Getting Your Opponent to the Bargaining Table without Appearing Weak
Posted on April 01, 2009Transparency Will Eliminate Unnecessary Wariness Between Parties from the April 1, 2009 Daily Journal FORUM COLUMN By Victoria Pynchon As a mediator, the question I hear most frequently from lawyers is "How do I convince my opponent to sit down and negotiate without losing my competitive advantage?" Believe it or not, the answer is transparency...
"Winning" the Negotiation with Insights from the Social Psychology of Conflict
Posted on March 31, 2009Negotiating to Win View more presentations from Victoria Pynchon.
Litigation in Plato's Allegory of the Cave
Posted on March 31, 2009Think of the cave as being "your side" of "the case" -- the facts that fit within the "elements" of the cause of action that will entitle your client to a remedy. Think of the outside world as representing the lived experience of both parties with all of the texture, ambiguity, dimensionality, particularity and depth of human experience and the particular experience of injustice...
Solo Practice University Art of the Deposition: The Basics
Posted on March 29, 2009The Basics Power Point Presentation for the first class on April 11, 2009. For my students only.
Pursuing a Divide and Conquer Negotiation Strategy? Don't Miss New California Case Law on Good Faith Settlement Findings
Posted on March 28, 2009Challenges to good faith settlements that cut off the rights of non-settling defendants to seek indemnification and contribution from settling defendants are nearly always doomed to failure. Trial courts are understandably eager to clear their dockets and there's no docket-clean-up pitcher like the first defendant to settle...
Los Angeles Daily Journal Profiles Mediator Victoria Pynchon
Posted on March 27, 2009Hands-on Approach Mediator Victoria Pynchon relies heavily on human dynamics in helping parties acknowledge realities they may prefer to avoid...
Negotiating First Year Legal Practice: The Art of the Deposition at Solo Practice University
Posted on March 25, 2009As many of my readers know, I'll be giving a live online full semester Art of the Deposition Course over at Solo Practice University. I'll tell you more about it when I have a little more time. Right now I want to make an offer to any young lawyer who is available to take the course twice a month on Saturdays at 10:00 a...
Can Mediation Evolve into a Global Profession by Michael McIIwrath
Posted on March 25, 2009Can Mediation Evolve into a Global Profession? by Michael McIllwarth *(.pdf) This year, 2009, celebrates the 200th anniversary of the birth of Charles Darwin, whose theory about how change occurs over time in organisms has had an impact far beyond the biological sciences...
Above the Law Slays a Few Sacred Cows for Blawg Review #204
Posted on March 23, 2009It rarely gets any better than this. Here's Elie Mystal's intro to tempt you into the the whole catastrophe. Here at Above the Law, we thrive on taking a vat of hydrochloric acid to the veneer of the legal profession and exposing the original craftsmanship underneath...
Maximize Settlement Opportunities by Maximizing Insurance Coverage
Posted on March 22, 2009Wondering how to settle construction litigation in the midst of an economic downturn that has emptied your contractor clients' pockets? Check out How Can Insulation Contractors Maximize Insurance Coverage over at Scott Godes' excellent Corporate Insurance Blog...
Negotiating the Recession with Social Networking
Posted on March 22, 2009If you want to negotiate from a position of power, you need to know Robert Cialdini's Rules of Influence: Reciprocation - People tend to return a favor. Thus, the pervasiveness of free samples in marketing. In his conferences, he often uses the example of Ethiopia providing thousands of dollars in humanitarian aid to Mexico just after the 1985 earthquake, despite Ethiopia suffering from a crippling famine and civil war at the time...
Huh?
Posted on March 21, 2009Assuming that suspicious stock sales by a member of a corporation's board of directors may constitute circumstantial evidence of scienter for purposes of establishing a fraud or fraud-related cause of action under California law--where director sold less than 35 percent of his total shares after having been provided with negative information about company's economic prospects over a period of nine months prior to selling--such activity did not support conclusion that sales were suspicious...
New SoCal Elder Care Mediation Training Program Announced
Posted on March 20, 2009Essentials For Elder Adult Mediation A training program for experienced mediators in cooperation with the Negotiation, Conflict Resolution and Peace Building Program California State University, Dominguez Hills April 30-May 2, 2009 Training Features and Topic • Lead trainers with extensive adult (elder) mediation and training experience • Speakers with expertise from multi-disciplines serving older adults and families • Skill building exercises and case studies for practical applications • Building awareness and appreciation for unique and typical experiences of aging • What makes Adult (Elder) Mediation different? • Model standards and ethical framework for practicing Adult (Elder) Mediation • The dynamics of family and intergenerational conflict • Balancing autonomy and responsibility in Adult (Elder) Mediation • Empowering choices and voices of parties in mediation • Working with other professionals in the 'aging services network' • Convening and pre-mediation intake approaches to enhance participation • Addressing myths & realities of aging • Understanding the spectrum of capacity to participate in mediation • Impacts of bias, ageism, stereotypes and perceptions on mediation • Overview of elder abuse, red flags, safety issues and limits of mediation • Recognizing elder law matters in civil rights, financial and other legal concerns • Overview of the Probate Court process • Awareness of the L...
More on Stringfellow, Environmental Liabilities and the Policies that Did or Did Not Cover Them
Posted on March 19, 2009What's the best thing about my tenure litigating environmental liability insurance coverage cases? Besides the great intellectual puzzle they proved to be? Besides the lasting friendships formed with members of joint defense teams? Besides the chance they gave me to appear before some of the best Judges in the State (Judge Carolyn Kuhl, for instance, in the Los Angeles Complex Court)? The way these cases irritated my justice-sensors and led me into a career as a mediator? No, none of those...
Your Negotiation Partner is Not Your Adversary
Posted on March 19, 2009Thanks to Diane Levin at the Mediation Channel for pointing me to a recent post by Ken Adams about the adversarial versus the "meeting of the minds" approach to contract drafting. Thanks to both! Contracts as a Relationship-Building Tool That's a long way from my let's-have-a-meeting-of-the-minds approach...
A trial lawyer, a mediator and a jury consultant walk into a bar . . . .
Posted on March 17, 2009. . . and they're all talking about the same thing! How do you put the "clothes," the drama, the pathos, the dimensionalty and texture back into the sterile legal cause of action we litigators have been working on for months, years, even decades...
Negotiation as Poker Game
Posted on March 14, 2009Negotiation as Poker Game View more presentations from Victoria Pynchon.
Negotiating Legal Decisions
Posted on March 14, 2009I'm bookmarking this article. I'll translate its main points from the academese to plain English this week-end along with insights on how to help your opponent make the legal decision you want him to make -- settle the case in the range of reason...
From Irish Lips to God's Ear
Posted on March 13, 2009Thanks to Geoff Sharp for pointing out this study indicating that Irish commercial mediations are projected to double this year. Hey, I have said I'm Irish, right? Mediation in business disputes to double Attempts to resolve commercial disputes by mediation will double over the next year, as businesses seek a cheaper and faster alternative to litigation, according to a new survey...
Want to Persaude Your Opponent? Tell Her a Story
Posted on March 12, 2009Want to convince the other side that your case has merit? Don't argue the law. Tell a Story! From The Secrets of Storytelling: Why We Love a Good Yarn in Scientific American: A 2007 study by marketing researcher Jennifer Edson Escalas of Vanderbilt University found that a test audience responded more positively to advertisements in narrative form as compared with straightforward ads that encouraged viewers to think about the arguments for a product...
Greater Negotiation Flexibility Results in Greater Anger?
Posted on March 10, 2009Thanks to Anne Reed at Deliberations for "tweeting" (@annereed) the article Flexible Approach To Acute Conflict Results In More Frustration and Anger, Study Shows. The research subject of the article suggested that having a more flexible approach to resolving an acute conflict interaction results in more frustration and anger...
Blawgs Without Borders at Blawg Review #202
Posted on March 09, 2009The scope and depth of Blawg Review #202 across the pond at Head of Legal sets the aspirational Blawg Review bar high and just where it ought to be too! No sense summarizing excellence but I will leave you with the resources Carl Gardner left at the close of his comprehensive global post...
Settle It Never? More on Stringfellow
Posted on March 09, 2009These are the cases that made me name my mediation business "Settle It Now." The contamination of groundwater here in Southern California as the result of discharges from the Stringfellow toxic waste site took many legal forms, including State of California v...
Before You're Ready to Negotiate the Best Settlement Possible, You Need to Prepare the Best Case Possible
Posted on March 07, 2009Learn, refine, perfect your deposition skills at Solo Practice University's The Art of the Deposition here!
Negotiating Disclosure: How to Get Beyond "Yes" and "No" in Your Deposition Practice
Posted on March 06, 2009Victoria Pynchon Joins ADR Services, Inc.
Posted on March 06, 2009Mediation is all about story, even when everyone thinks it's only about money. Here's the story of ADR Services, Inc., which I joined today, and its dynamic founder and CEO, Lucie Baron. From ADR Services' Website, one of those stories you must meet the hero of to believe...
And now a word from our sponsor: Stringfellow: settling catastrophic insurance claims
Posted on March 03, 2009Unemployed Lawyers, Solo Practice University, the Last Time the Baby Boom Was Poor, and the Gig Economy
Posted on March 02, 2009Negotiating Law Firm Lay Offs: You Can't Save Your Face and Your Ass at the Same Time
Posted on February 18, 2009How the "Big Kids" Settle IP Litigation at JD Supra
Posted on February 04, 2009SUMMARY [from JD SUPRA]: On December 22, 2008, GateHouse Media sued the New York Times, alleging that the "hyper-local" news aggregation pages on the New York Times-owned site Boston.com infringed its copyright and trademark rights. At the judge's order, the case proceeded on an extraordinarily expedited basis, with a bench trial set to begin on January 26, 2009...
Business Risk Exclusions Do Not Preclude Coverage for Non-Defective Work even if CAUSED by Defective Work
Posted on February 02, 2009Because litigation is so often settled with insurance dollars, from time to time we bring you updates on recent judicial interpretations of common policy terms. The following article answers the question in the Fifth Circuit whether CGL policies cover certain types of construction defect claims...
Outside the Box: Family Raffles Million Dollar Home
Posted on February 01, 2009(right: $24 million house from the Malibu Real Estate Blog) Outside the box thinking to avoid foreclosure from MSNBC Woman Wins Million Dollar House in Raffle. It was no ordinary raffle Friday for the 24,000 people who brought a $50 lottery ticket...
Litigation, Negotiation, Mediation, Oh My! The CharonQC Podcast
Posted on February 01, 2009It's the British, of course, who we have to thank for the common law, the adversarial system of justice and that most lyrical denunciation of lawyers' passionate pursuit of legal procedure, Bleak House. Charon QC is a serial podcaster, writer and producer of the satiric online soap opera West London Man, founder of the largest private law school in Great Britain, and all around QC about town...
Negotiating with Pirates: Squeeze Every Penny Out of the Deal
Posted on January 31, 2009In Hijacked on the High Seas When Somali Pirates Attacked, They Kicked Off 56 Days of Drama Over the Fate of a Ship and 28 Crewmen, The Wall Street Journal details the negotiation strategy and tactics that resulted in the release of the hijacked ship and its crew...
Negotiating Litigation: First You Have to Win
Posted on January 30, 2009I play squash. I learned to play the game when living in New York and continued to play at U.C. Davis (Law School) which had both regulation courts and racquets to lend. At a time when racquetball courts were being constructed with the speed of social media sites, I continued playing squash for pretty much one reason: I'm a woman and just about any (mostly male) colleague I played with could beat me out of sheer physical strength...
Negotiating Law Firm Survival with the Complete Lawyer
Posted on January 28, 2009Savvy Lawyers Value Their Human Capital by Victoria Pynchon and Gini Nelson at The Complete Lawyer. These are hard times and none of us is immune. I’ve been here before. In the early 1990s, my law firm announced we would ride out the economic crisis by henceforth buying legal pads without our firm name embossed on the binding...
When Negotiation Fails, Do You Flip a Coin? Grab a Random Stranger?
Posted on January 27, 2009Wheat and Chaff: Juries and Litigation Let me tell you a short story. A senior in-house lawyer is meeting with the CEO to talk about a problem the in-house lawyer had been asked to solve. The in-house lawyer describes how his efforts at negotiation had failed, so he had taken steps to find a random person off the street so that person could resolve the problem for the in-house lawyer...
Negotiating Foreclosure
Posted on January 26, 2009If you live in Ohio, there's some hope that you can negotiate your way out of foreclosure with a Court-annexed foreclosure mediation program. See Foreclosure filings rise in five counties at the the Crescent News. Excerpt below. We ask our readers around the country to please let us know if they have similar foreclosure mediation programs in their state...
Devil in the Details: the Deal, the Whole Deal and Nothing But the Deal
Posted on January 23, 2009It's getting very late in hour eleven of the mediation and everyone is tired and cranky. We've agreed upon: the total sum of the settlement; the period of time over which the settlement will be paid; the Stipulated Judgment in the event of default; and, the amount of the Stipulated Judgment (far more than the agreed upon settlement sum)...
Devil in the Details: Sticker Term Shock
Posted on January 21, 2009The anger, suspicion and ill will that has characterized the first eight hours of this mutli-party, eight-figure antitrust mediation is about to heightened as I deliver Defendants' terms: they will pay the settlement agreed upon in six equal yearly installments over three full years without any security to back it up...
The Devil in the Details: When Do You First Talk Terms?
Posted on January 19, 2009As you'll recall, we're in hour nine of the mediation. The parties have finally agreed to settle the antitrust litigation the Court ordered them to mediate ("we won't settle; we'll only be here for an hour"). Defense counsel wants to write up the "deal points" and make a quick getaway...
You've Settled? With a Term Sheet? The Devil in the Details
Posted on January 16, 2009It's 8 p.m. and you've just spent nine straight hours negotiating the settlement of complex commercial litigation with multiple parties that was filed before George Bush first took office. The case has been up on appeal twice and is now scheudled for trial in February...
The Forthright Negotiator "Rule" and Creative Ambiguity at Adams Drafting
Posted on January 14, 2009Anyone who's been living in outer Mongolia for the past couple of years should head on over to Adams Drafting straight away. Why? Because once you negotiate the best deal you can, you have to write it up on the best terms you can. Hence the need -- yes need -- for Adams' Drafting...
Negotiating the Recession: Networking Wisdom in Mentoring Circles
Posted on January 14, 2009I've always recommended barter when cash is tight. In an early post entitled The Benefits of Barter, I explained how interest-based barter is not simply for small-fry. AT&T used interest-based negotiation tactics and bartering in its 1999 fight with Comcast Corporation for the acquisition of MediaOne Group...
Texas Bar Association You Tube Ideals that Unite Us
Posted on January 09, 2009Here's good news for the new year! 2008-2009 YouTube Contest - Ideals that Unite Us $2,500 scholarship for under 18 winner / $2,500 cash prizes for 18 and over, People's Choice, and Classroom winners Winners also receive an expense-paid trip to the awards presentation in April 2009 Starting Sept...
Five Negotiation Rules to Beat the Recession Blues
Posted on January 09, 2009Before you start bargaining your way through the current recession, you need to decide which of your expenses might be negotiable. Your office or residential rent? I have friends who have successfully negotiated reductions mid-lease on the strength of their desirability as tenants and good relationships with their landlord...
Conflict: It's ALL Cross-Cultural
Posted on January 08, 2009There's a great new LinkedIn Group Mediators and Peacemakers that anyone interested in the dynamics of conflict and its resolution should think about joining. Recently, a group member posed this question: How do you as a mediator recognize the signs of cross cultural differences and how do you resolve that type of dispute? How often do you come across this type of dispute? I was thinking about how I might answer it when I noticed that my colleague and friend, mediation guru Lee Jay Berman, had taken the time to jot down his thoughts, which were better than any I was having, yet precisely expressed my own experience mediating conflict...
Do You Need to Understand Your Legal Rights to Serve Your Interests?
Posted on January 08, 2009Daily Journal Newswire Articles www.dailyjournal.com © 2009 The Daily Journal Corporation. All rights reserved. FORUM (FORUM & FOCUS) • Jan...
Blawg Review 2008 Blawg Review of the Year Nominations
Posted on January 04, 2009NEWS ALERT: I'm not working here. If blogging isn't fun or compelling in some other way - if I'm not just BURSTING to share something with my readers, I'm not doing it. The same is true for Blawg Review. If it's not laugh out loud funny, genuinely inspiring or impossible to put down (the well told tale) I'm not reading it...
You Can't Obtain a Favorable Settlement if You're Not a Formidable Adversary
Posted on December 29, 2008The lowest level, most critical, most easily learned (you can even use a cheat sheet!) and most shockingly ignored skill is authenticating documents and bringing them within the available exceptions to the hearsay rule. As we wade ever deeper into the waters of electronic discovery, E-Commerce Law provides us with the Internet Evidence Series below...
Waging War, Collateral Damage & Arbitrated Resolutions
Posted on December 29, 2008I've directed my readers to Adir Waldman's fine book Arbitrating Armed Conflict before. Now that there is pitched battle in the Middle East with significant civilian casualties, I once again recommend Adir's book to anyone who wishes to look beyond taking sides...
Los Angeles Attorneys Needed as Mock Trial Judges Martin Luther King, Jr. Weekend
Posted on December 28, 2008Dear Colleagues: On behalf of the UCLA Mock Trial Program and the UCLA Anderson School of Management, I am inviting you to volunteer as a trial judge or scoring judge at the 2009 UCLA Mock Trial Invitational Competition on Martin Luther King weekend, January 17-19, 2009...
It's Not About the Money; It's About Justice
Posted on December 27, 2008I'd stop flogging this dead horse if I didn't have to weekly convince litigants of their own enduring human tendency to prefer relative well-being over absolute material possessions. This week, that "news" is brought to you by the New York Times to explain why a surprising number of us have not been made terribly unhappy as our financial fortunes decline...
Likelihood of Confusion's Chanukah Blawg Review Mashup
Posted on December 23, 2008LIKELIHOOD OF CONFUSION® hosts Blawg Review # 191 celebrating the Festival of Lights and wishing all of us ?? ???? ??? or Happy Chanukah! We here in the Goldberg-Pynchon household celebrate both Chanukah and Christmas, as you can see from the really really bad iPhone photo of last night's menorah blazing before the tree in the background...
Online or Off, The Winning Technology to Create Community is Respectful, Collaborative and Reciprocal
Posted on December 22, 2008pCheck out a href="http://www.successful-blog.com/work-with-liz/"Liz Straus'/a a href="http://www.successful-blog.com/1/25-traits-of-twitter-folks-i-admire-and-25-folks-who-have-them/"25 Traits of Twitter Folks I Admire and 25 Folks Who Have Them/a.nbsp; These quot;traitsquot; are in fact disciplines...
For Your Attorney Holiday Book Gift List: Conflict Revolution
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e-Bleak House: Twitter "Tweets" Discoverable
Posted on December 17, 2008pimg width="400" vspace="5" hspace="5" height="714" border="5" align="texttop" alt="" src="http://www.negotiationlawblog.com/uploads/image/Bleak_House_title_page.jpg" //p pFrom a href="http://www.lawyersusaonline.com/index.cfm/archive/view/id/432466"E-discovery implications of Twitter/a at a href="http://www...
Can You Spell Autistic Hostility? Bertuzzi/Moore Mediate
Posted on December 16, 2008As CR Info explains People tend to break off interaction and communication with those they dislike. When this happens people become stuck in autistic hostility, that is, their hostility is perpetuated by their refusal to communicate. One-time Colorado Avalanche forward Steve Moore and former Vancouver Canucks winger Todd Bertuzzi met in Toronto on Monday for a court-ordered mediation hearing in an effort to prevent a lawsuit from heading to court...
Arbitration and E-Discovery: Make Up Your Own #^%@ Law!
Posted on December 16, 2008The National Law Journal's annoying practice of making its "best" content available only with a secret decoder ring forged in the fire of subscription dollars, nevertheless did not stop me from access to an intriguing article about arbitration's "e-discovery conundrum" (here for people with the secret code)...
To Arbitrate or Not Arbitrate Securities Fraud, That is the Question
Posted on December 15, 2008FINRA Securities Arbitration or Class Action Lawsuits? A common question asked by investment fraud victims is whether they should partake in a class action lawsuit of a securities arbitration claim. Often, investors are presented with a choice of either partaking in a class action lawsuit or FINRA arbitration action...
Negotiation Trust: It's ALWAYS an Inside Job
Posted on December 15, 2008As I head out to mediate an alleged Ponzi scheme purportedly perpetrated by one member of the Adath Israel Shul/* against another, I ponder its similarity to many other allegedly fraudulent financial schemes I've personally mediated. Then I pick up the morning New York Times where, three thousand miles away, "at Green's Pharmacy, a popular lunch counter in downtown Palm Beach a man who said two of his relatives were founding members of the [Palm Beach] country club wondered aloud whether the club’s unusually exclusive nature, especially among the wealthiest investors, is what enabled [Bernard L...
Local Mediators Kichaven, Rothman, McCauley to Join Forces to Form High-End ADR Boutique
Posted on December 13, 2008By Greg Katz Daily Journal Staff Writer LOS ANGELES - The crowded Los Angeles mediation market is about to get a new competitor. Professional Mediation will open its doors in January. It is the brainchild of Cary Sarnoff, president of Sarnoff Information Technologies, whose main enterprise is Sarnoff Court Reporters...
It's About Justice . . . and the Common Good
Posted on December 13, 2008We were talking about fairness over pizza with our neighbor last night. Tony was pretty teed off at the unions, something I've heard a lot of from Mr. Thrifty over the past couple of weeks. True to litigator form, however, Mr. T came to the defense of the "working man" when hearing his own opinions read back to him over cheese and pepperoni...
Face-to-Face Conversations Powerful Resolution Tool
Posted on December 13, 2008From this coming Monday's Forum Column in the Los Angeles Daily Journal (byline V. Pynchon): Psychologists tell us that we are not only "meaning making" beings, but that we are all born conspiracy theorists. Viewing a field of nonsensical, unrelated data, we naturally begin to "connect the dots" - to organize the information into a coherent, and often compelling, narrative...
The Mediator's Proposal: An Idea Whose Times Has Passed?
Posted on December 13, 2008Are mediators being hook-winked by clients who create artificial impasses for the purpose of procuring a favorable mediator's proposal? Does the mediator's recommendation carry so much weight that the parties are subject to a manipulated mediator's proffer? Does the mediator become just a tool of a party bent on flim-flam? Or is all distributive bargaining flim-flam? Check out John DeGroote's in-house point of view over at Settlement Perspectives and leave a comment...
Negotiating with Rod Blagojevich
Posted on December 11, 2008It's time to play Name That Goon! Rod Blagojevich vs. Tony Soprano. Hands on buzzers: One's a trash-talking thug trying to stay one step ahead of the law. The other was played by James Gandolfini...
No Review of Discretionary Stay by Arbitrator
Posted on December 10, 2008Thanks LACBA for the daily case reports! Trial court lacked authority to review discretionary, prehearing order by arbitrator, who imposed stay on arbitration of dispute concerning uninsured motorist policy until plaintiff--who was driving on work-related business in company car provided by employer when rear ended--pursued workers’ compensation benefits in light of Insurance Code Sec...
Saving Your Home from Foreclosure by Mediation
Posted on December 09, 2008More than 360 Connecticut homeowners have avoided foreclosure in the past five months thanks to a new mediation program established by the state, but some think it’s still being underutilized. The program, which was part of comprehensive mortgage relief legislation passed earlier this year, allows borrowers to meet their lender face-to-face to try to reach a settlement on an overdue mortgage...
Negotiating the Power of Consistency with ADR Services and LACBA's Linda Bulmash
Posted on December 09, 2008Friend and colleague Los Angeles attorney-mediator Linda Bulmash of ADR Services, Inc. advises us to be consistent in negotiating the resolution of litigation in this month's LACBA negotiation tip. The Power of Consistency in Negotiation and Mediation When a person makes a public commitment to a course of behavior, the human psyche will push them to follow through with their commitment...
Wal-Mart Settles Wage & Hour at Point of Punitive Damage Gun
Posted on December 09, 2008image from ChaosScenario Wal-Mart Settles Suit Over Pay for $54 Million MINNEAPOLIS (AP) — Wal-Mart Stores, the discount retail giant, will pay up to $54.25 million to settle a class-action lawsuit that accused the company of cutting workers’ break time and allowing employees to work off the clock in Minnesota...
Hard Times Make Good Neighbors: Collaborative Home Loan Re-Negotiation
Posted on December 08, 2008We are in this together. Remember. The bottom supports the middle and the middle supports the top. The current economy is Exhibit A. Link to L.A. Times story (more in-depth analysis) here. If your side of the boat sinks, my does too.
Negotiating Women: 5th and Final Part
Posted on December 06, 2008Thanks again to Vicki Flaugher of SmartWomanGuides.com for inviting me to have this conversation with her about ways in which women can and do maximize their bargaining power. And yes we do talk about negotiating the purchase of an automobile here as well!
A Single Ray of Resolution Optimism in the Darkest Movie in American Film History
Posted on December 05, 2008Must read: Embracing Conflict's analysis of Dueling Banjoes in Deliverance written by Niel Denny, a Collaborative family solicitor working in the South West of England who is a member of my twitter network here: @nieldenny. Excerpt and video below but a reading of the entire post is a must for anyone looking for reasons to believe that we can reach one another across political, cultural, religious, social and economic divides...
Negotiating Women Part III
Posted on December 05, 2008This segment of my interview with Vicki Flaughter is primarily about why women don't negotiate - to their substantial economic detriment - (see Women Don't Ask Here) and what they can do about it.
Negotiating Women Part II
Posted on December 04, 2008In part two of Vicki Flaugher's interview with me, we discuss ways in which women can comfortably respond to aggressive zero-sum distributive bargainers and negotiate better business deals using their natural strengths. I'd like to once again thank Vicki Flaugher of the Smart Woman Guides for helping me stay (somewhat) on point in discussing those negotiation challenges particular to women...
We Don't Need No Stinkin' Blawg 100: Great Blogs in the Year 2008
Posted on December 04, 2008No, I did not make the ABA's Blawg 100 this year, but my good online buddy, the brilliant and energetic Susan Cartier Liebel of Build a Solo Practice and Solo Practice University did. Here's just one of the many reasons Susan has the following she does...
Oops!! $6,000 in Attorney Sanctions for Failure to Notify Appellate Court Case Had Settled
Posted on December 03, 2008Nothing irritates a court more than doing unnecessary work because counsel fails to comply with the local rules. Here in Huschke v. Slater, the Court was sufficiently put out to order that the attorney "personally" pay the sanctions ("don't even think about asking your client to pay, buster!") and to order the opinion published for all the world to see...
Negotiating Women: Never Negotiate Out of Fear, But Never Fear to Negotiate --
Posted on December 02, 2008Video below is part I of an interview on negotiation challenges, strategies and tactics for women with Vicki Flaugher, founder of SmartWoman Guides. The full audio of the video is here along with Ms. Flaugher's kind comments about our conversation...
Small Lessons for Lawyers and Business People in Building Community
Posted on December 01, 2008Restorative justice is the criminal version of civil mediation. It stresses accountability, admission of guilt, forgiveness and reconciliation. It is the basis for Truth & Reconciliation Commissions that address harm done by one group of people to another that is rarely redressable by a criminal justice remedy...
Restorative Justice: Accountability and Forgiveness
Posted on December 01, 2008When I read accounts like the one below, I always ask myself, "what trespasses have I suffered that would permit me not to forgive?" As she sat in her boyfriend’s car, a young Texas woman named Dee Dee Washington was shot and killed — an innocent bystander of a drug deal gone bad...
Blawg Review Thanks Giving # 188 at Alice's Restaurant with New York Personal Injury Law Blog
Posted on December 01, 2008You have to be of a certain age, an age I myself am barely tall enough to be (right, 23 in 1975) or of a certain nostalgic hippie-era state of mind (right again) which Eric Turkewitz must himself be since he cannot have lived nearly as many years as I have, to celebrate Blawg Review #188 with an authentic Alice's Restaurant Thanksgiving dinner...
How We Tell the Tale Determines How We Resolve the Problem
Posted on November 30, 2008People who are joined together by a dispute -- which includes everyone engaged in litigation and their attorneys -- are suffering more than most from a universal cognitive bias known as fundamental attribution error. FAE is one of the ways we explain our troubles to one another...
Negotiating Potential Liability at Holiday Parties
Posted on November 29, 2008Planning on partying like its 1999 to boast morale in your law firm? Check out tips offered by Morrison & Foester in Holiday Parties: Morale Boost but Employer Beware back in December of 1999, advice that is as timely today as it was then...
Rumors of the Death of Narrative Greatly Exaggerated
Posted on November 26, 2008For goodness sakes! Telling stories is the entire reason for dining out! Not to mention the basis of all negotiations, disputes, and the common law. See Grand Theft Auto, Twitter and Beowulf all demonstrate that stories will never die...
Quickly Resolve Your Small Commercial Cases with the AAA Expedited Case Panel
Posted on November 25, 2008Beginning today, I'll be available to handle Expedited Commercial Cases for the American Arbitration Association. As the AAA explains: AAA offers fast, convenient online claim filing through our AAA WebFile service. In addition to filing claims, clients can make payments, perform online case management, access rules and procedures, electronically transfer documents, select Neutrals, use a case-customized message board and check the status of their case...
Negotiating Thanksgiving by Being of Service
Posted on November 25, 2008Thanksgiving Day begins a season that reminds many of us that our earliest negotiation experiences were those with our family. When I was a child, these were the issues on the Thanksgiving bargaining table Who gets to snap the wishbone (does anyone do this anymore?) Who gets to sit next to gramma Who sets the table and who does the dishes Whether my sister and I have to eat what we don't like (me cranberry sauce; she vegetables of any kind) to "earn" a piece of pumpkin (my sister) or pecan (me) pie Later, in adolescence, the issues changed must I follow the parental injunction not to talk about civil rights, pre-marital sex, world poverty, and, the Viet Nam War ALL DAY long do I have to change out of my blue jeans, workshirt and desert boots for dinner may I have two Thanksgivings - one with my father & one with my mom & step-dad MUST I be nice to my sister's new husband and, of course, who sets the table and who does the dishes (some things never change) Still later, when my sister and I had married and moved out of town whose table would we gather around for the holidays: mom's, mine or my sisters how to accommodate the newly vegetarian in the family could I skip Thanksgiving in San Diego in exchange for Christmas there (without my mother bursting into tears) and, of course, who sets the table and who does the dishes Thanksgiving is my own favorite holiday because there are no gift-giving obligations; everyone (more or less) celebrates the same holiday regardless of religion or national origin; there is no limit on the amount of cream and butter that can be consumed at a single sitting; and, everyone is expected to express gratitude rather than complaint...
Thottam Confidentiality: Just Follow the Statute; Don't Get Fancy
Posted on November 24, 2008From the Los Angeles Daily Journal November 21, 2008 CONFIDENTIALITY QUESTION HEADED BACK TO TRIAL COURT By Greg Katz LOS ANGELES - The state Supreme Court has denied review of an appellate decision that had become a cause celebre for mediators concerned about confidentiality precedents...
Blog Bites Bar ; Goes to Court
Posted on November 24, 2008See the Complaint here. h/t to @taxgirl As the ABA Journal explains: A law firm contends new Louisiana lawyer advertising rules slated to take effect in April will restrict its right to comment on Twitter, Facebook, online bulletin boards and blogs. The Wolfe Law Group filed a federal suit today challenging the rules, claiming they would subject each of the firm’s online posts to an evaluation and a $175 fee, according to a press release...
Negotiating Thanksgiving Conversations
Posted on November 24, 2008I kicked off the Thanksgiving holiday season last year by having an argument with my friend and neighbor the rocket scientist about extraordinary rendition and the effect of immigrant workers on the economy. I knew I'd lost all sense of perspective around midnight as I continued searching for and emailing Tony articles that proved me right, while Mr...
Survive with the Fittest Lawyers on Evolution Day with Blawg Review # 187
Posted on November 23, 2008Leave it to a legal marketing blog -- Lawyer Casting - to choose Evolution Day for its first entry into the BlawgReviewOSphere. As blogger Joshua Fruchter explains in Blawg Review #187, because the anniversary of Charles Darwin's publication of The Origin of Species on November 24, 1859 is inextricably intertwined with the idea that only the fittest survive, Evolution Day should be celebrated with advice for survival...
This Twitter Thing is Certain to Come to No Good!
Posted on November 20, 2008There's an infinite regression angle to this.
Feeling Extorted? Mr. Molski's Serial ADA Litigation and Why We Settle
Posted on November 20, 2008Many 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...
Potential Jurors in My Space Suicide Case Enraged
Posted on November 18, 2008Defense 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...
Will Dems Ban Mandatory Consumer/Employee Arbitration?
Posted on November 17, 2008This 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...
Cases Where Apology Would Get You Farther than Cash
Posted on November 17, 2008Excerpt 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.
How to Apologize on the Internet: Larry Bodine Comes Clean
Posted on November 17, 2008Some 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...
Tobacco Settlement More Spark than Dying Ember?
Posted on November 16, 2008From 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...
Negotiation/Mediation Terms of Art
Posted on November 16, 2008I 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...
Are Women Better Mediators Than Men?
Posted on November 15, 2008First 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...
Sqaundering Legal Talent from Jordan Furlong
Posted on November 13, 2008The 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)...
Ten Ways to Promote Cooperative Negotiations
Posted on November 13, 2008Mr. 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...
Learn Deposition Skills (and Much More!) at Solo Practice University?
Posted on November 13, 2008It'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...
Because All Great Negotiations Are Performance Art
Posted on November 12, 2008Bob 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
Posted on November 11, 2008Excerpts 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...
How to Lose an Argument from Awake at the Wheel
Posted on November 11, 2008Jonathan 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...
Obama's Persuasive Oratory for Your Next Court Appearance
Posted on November 10, 2008Simply 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...
Twitter Micro-Blog on What Negotiation Skills Lawyers Most Need
Posted on November 09, 2008brianherrington @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...
Trial Skills, Deposition Skills and IP Negotiation Skills Programs
Posted on November 09, 2008Here 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...
New California Custody Blog on Making Mediation Matter
Posted on November 07, 2008See 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...
Difficult Conversations 101: Blaming Sarah
Posted on November 07, 2008There 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...
Negotiating Hard Times: 10 Tips for Delivering Bad News
Posted on November 07, 2008Thanks to Russell Thomas (@3rddeadline in my Twitter network) for directing us to Ten Battle Tested Rules for Communicating Well in Hard Times by Henry Fawell (@henryfawell). Excerpt below: 1. Tell the truth. Warren Buffett said it best: “It takes 20 years to build a reputation and five minutes to ruin it...
More on the Cyber-Bullying Case from the Daily Journal
Posted on November 06, 2008Prosecutors Insist on Jury Trial for MySpace Case LOS ANGELES - In an unusual twist to an already unusual case, federal prosecutors Wednesday insisted on their right to try the MySpace cyber-bullying case before a jury even though the defense wants a bench trial...
Negotiating Common Ground: Empathy, Affinity & Shared Values
Posted on November 06, 2008What did I learn on the campaign trail? Other than breaking a lifetime phobia of the cold call I re-learned what I already knew from my mediation training and experience: share stories (not opinions) look for similarities rather than differences listen with a compassionate heart remember that behind every accusation and stated fear is a plea for help create/expand common ground be respectful of other people's point of view assist people in making new or different decisions only when they ask for it It was hot, really hot, trudging the blacktop separating dozens of apartment buildings in Henderson, Nevada the day before the election...
Negotiating Government: Triage the Vote
Posted on November 03, 2008UPDATE: Courtesy of Blawg Review #184 over at The Faculty Lounge is a link to the Voter Suppression Wiki Home Page. CNN was reporting yesterday that in early voting the elderly gave up waiting to vote because they couldn't stand in line for 3+ hours...
Negotiate Your Government: Vote!!
Posted on November 02, 2008Polling Place Finder Here from Vote411 You can search the system system to find out all you need to know about the electoral process in your state (Registration deadline, ID requirements, Voting Machines, etc) by either selecting a your state or customizing your search for specific information Instructions: Select your state from the drop-down menu or map below to find information specifically for where you live...
Make Sure Your Vote Counts with NPR-Twitter Vote Monitor Project
Posted on October 31, 2008Help NPR Identify Voting Problems: Entire NPR Post Below If you have any voting problems, NPR wants to hear about them. As part of Twitter Vote Report – a project born out of a collaboration of volunteer software developers, bloggers and the NPR social media desk – we'll be monitoring voter irregularities, everything from long waits and broken voting machines to polling places with insufficient ballots...
The Toughest Negotiation - Time to Build Your Practice
Posted on October 31, 2008By Guest Blogger Renée Barrett aka AAARenee One of my favorite movie quotes is from Angelica Houston’s character in Ever After. As the wicked stepmother, she declares to her favorite daughter Darling, nothing is final until you're dead, and even then, I'm sure God negotiates...
Cyber-Bully Mom Still on the Ropes
Posted on October 30, 2008Thanks to St. Louis Today's twitter feed -- Judge in Los Angeles Still Undecided in Cyber-Bully Case -- for hipping us to what's going on in our own backyard. By Robert Patrick ST. LOUIS POST-DISPATCH 10/30/2008 A federal judge in Los Angeles has once again failed to decide whether to throw out the criminal charges against former Dardenne Prairie resident Lori Drew, accused of the cyber-bullying that caused or contributed to the suicide of 13-year-old neighbor in St...
Negotiating a Conflict-Resolved Workplace
Posted on October 30, 2008Want a horror story for Halloween? Remember that Heller Ehrman collapse? Seems that you don't get COBRA benefits if the health plan your former employer maintained is kaput because it has gone out of business. Now think, pending surgery, no health insurance, pre-existing condition...
Negotiating a Better Health Care Plan for Your Employees
Posted on October 30, 2008Check out Dan Schwartz's post - A New Approach to Health Care - at the Connecticut Employment Law Blog. The focus on value rather than cost is what we've been preaching here at Settle It Now from the start. Snippet below but click on over to Dan's place for the goods on win-win health care solutions...
Down to the Wire: Making Your Vote Count: Justice Flourishes Only in a Healthy Democracy
Posted on October 29, 2008UPDATE: REPORT YOUR VOTE EXPERIENCES ON TWITTER VOTE REPORT HERE Here's a helpful list from this morning's Today Show on how to insure that the vote you cast is counted thanks to LegalMaven at Twitter this morning: Confirm your registration before you go to the polls here in Nevada, the early vote poll workers will check for you if you drop by one of the hundreds of nearby polling places here in Nevada, you DO NOT NEED TO VOTE AT ANY PARTICULAR VOTING PLACE if you vote on or before October 31...
The Journey to Empathy Begins with Listening and is Nurtured by Meditation
Posted on October 28, 2008by Guest Blogger Martin Golder Empathy is not only a central tool In conflict resolution, but also a way of being. And yet I remember that when I started in my first mediation course I was unsure of what it was. It even took a while to learn the difference between empathy and sympathy...
Mediating? A Savvy Plaintiff's Attorney Tells You How
Posted on October 28, 2008by Guest Blogger Brian Herrington Don’t Agree To Mediate Too Soon In The Litigation The mediation of litigated cases involving personal or economic injury should mainly be about money. Unless the issues of law and fact have been fully fleshed out, mediation sessions get bogged down in contentions about ultimate facts and conclusions of law that neither side can "win...
Why Common Sense, Compassion and Listening Twice As Much As You Talk Are The Best Negotiation Strategies In Law and Life
Posted on October 27, 2008Guest Blogger - Susan Cartier Liebel First, I'm honored to be guest blogging while Vickie is away campaigning her heart out until November 4. I'm also a little intimidated to be here as I can't speak on negotiation with the authority Vickie can, after all she's a distinguished and honored expert on the topic...
FEHA Attorney Fees Unavailable Under Cal Civil Code 998
Posted on October 23, 2008Civil Procedure Sec. 998--which permits a defendant to shift costs to plaintiff if plaintiff rejects a settlement offer and then fails to obtain a more favorable judgment--does not eliminate substantive requirements for awarding attorney fees to a prevailing Fair Employment and Housing Act defendant; prevailing defendant in FEHA action is only entitled to recover fees if plaintiff rejects defendant's settlement offer, fails to obtain a more favorable judgment, and plaintiff's action was without any legal or factual foundation...
Is Law Becoming a Clerical Function? Email and its Discontents
Posted on October 23, 2008Over at the Mimosa Systems Blog, we get some good advice about in-house eDiscovery management. What does this have to do with conflict resolution? Some of our smartest, most well-educated, highly compensated, creative and dynamic conflict resolution specialists -- litigators -- are in imminent danger of becoming clerical workers...
Rock Paper Scissors Dispute Resolution
Posted on October 22, 2008Thanks to Tammy Lenski over at Twitter (follow her!) for passing along Pop Crunch's photo of the best dispute resolution street sign ever posted (with all due deference to NYC's "Don't Even Think About Parking Here." I can't download it to post it so you must click here for it to make your conflict resolution day...
Guilty of Betraying Niche; Posting Politics on Another Blog
Posted on October 22, 2008Every time I post something political, I can see Kevin O'Keefe wince. "Your blog says 'everything you always wanted to know about negotiation,'" Kevin once said to me. "And you're blogging about Guantanamo. You are betraying your readers and they will leave you...
Bring Your No. 2 Pencil to Blawg Review #182
Posted on October 22, 2008I'm poll watching in Nevada. Why this is so exhausting I'm not certain. The poll workers are uniformly great. Patient. Persistent. Painstaking. The people who are voting remind me of jurors in the way they approach their civic duty...
Obama and the Politics of Despair
Posted on October 18, 2008There's nothing like getting a new Harpers in the mail to upset my idealistic dreams of a new America flourishing under an Obama administration. Here's the opening November '08 Harpers slap-in-the-face for dreamy liberals like me: After eight years of catastrophic Republican misrule—in the midst of economic crisis and rising unemployment, in a nation plagued by ruinous energy costs and inflation, bank failures, and staggering public and private corruption—an eloquent, charismatic, intelligent Democratic candidate was locked in a statistical tie with a doddering old hack whose primary argument for his claim to the most powerful office on earth is that he was shot down over Vietnam and tortured for five years...
Hope, Safety and Innovation
Posted on October 17, 2008The first thing we mediators are taught (after digesting the imperative to "be conscious") is that people in conflict need to be in an atmosphere of hope and safety to be able to: (1) recognize the point of view of another; (2) be accountable for his/her own "part" in the dispute; and, (3) generate creative solutions to bust past impasse...
What We Think We Know Can Hurt Our Negotiating Position
Posted on October 16, 2008I watched the debate last night with people who support my candidate. They all also happened to be mediators, so they understand concepts like confirmation bias --the tendency to search for or interpret new information in a way that confirms one's preconceptions and avoids information and interpretations which contradict prior beliefs...
Blawg Review # 181 Celebrates International Conflict Resolution Day
Posted on October 13, 2008It's effective, it's efficient and it's client-centered. Just what we need to weather the financial storm. What? The mediated resolution of litigated cases. Nobody blogs it better than Diane Levin at the Mediation Channel, who hosts Blawg Review # 181 in celebration of International Conflict Resolution Day...
What Times are These? The Unruly Tyranny of Mobs
Posted on October 11, 2008Bertolt Brecht wrote, "what times are these/when a poem about trees is almost a crime/because it contains silence/against so many outrages." The same can be said for a post about negotiation strategy and tactics. My friend and colleague, mediator and AAA arbitrator Deborah Rothman just returned from a very short vacation to Paris and the view from Europe is one of fear and growing alarm about the manner in which our political process has degenerated into hate-filled cries from the crowds at Republican rallies (see Rage Rising on the McCain Campaign Trail)...
Armed Conflict and Sexual Assault
Posted on October 06, 2008Sending this in complete from Paris, noting that women, who hold civil society together in the course of armed conflict, are rarely at the table when peace is being negotiated. As this lengthy piece asserts, we cannot ignore the sexual assaults that continue after "peace" has been achieved...
Mediation Ideologies and Settling Your Commercial Litigation
Posted on October 01, 2008Geoff Sharp at Mediator blah blah today asks the first academic question with which I was forced to grapple in my LL.M studies at the Straus Institute -- can you cherry pick transformative mediation techniques to settle commercial litigation? I realized I had re-entered the academy the day Joe Folger -- author, with Baruch Bush, of The Promise of Mediation -- said only transformative mediation "works" and its principles must be strictly followed...
Helping Employees Help You Help Them
Posted on October 01, 2008Earlier this week I was asked the following question by a concerned General Counsel: how can we help our employees grapple with on-the-job justice issues without leading them to believe that our proposed solutions are untrustworthy. The problem, as eloquently described by a lengthy email posing the question, is one that all employers face, large and small...
Ken Adams -- That's Conflict PREVENTION and Resolution
Posted on September 30, 2008My only regret about leaving legal practice when I did is that I did so before Ken Adams started the AdamsDrafting Blog. Now he's made me doubly regretful, having published A Manual of Style for Contract Drafting, Second Edition. See the ABA Q&A with Adams here...
Negotiating the Economy: You Can't Save Your Face and Your Ass at the Same Time
Posted on September 30, 2008See Marginal Revolution's post today The problem is that both of you are right citing David Brooks for the proposition that the "failure to pass the bailout represents a massive failure of American governance and leadership, most of all at the Congressional level...
More Dangers in Negotiating by Email
Posted on September 29, 2008Over at IP ADR, we warned against using email to negotiate because the social scientists tell us that it is "profoundly anti-social," i.e., we're less generous when we respond to an offer via email than when we're negotiating face to face. Today, Scientific American warns us that emailers tend to deceive one another more readily than do those who use pencil and pad -- see Business, Lies and Email here, excerpt below...
New California Case on Mediation Confidentiality and Recovery of 1717 Attorney Fees
Posted on September 25, 2008Go to the IP ADR Blog. I'll cover this later but am leaving for the Cal. State Bar Conference RIGHT NOW!
Law Blogger Get Together at State Bar Convention in Monterey
Posted on September 23, 2008ATTENTION all legal bloggers and would-be bloggers!! Those of us who will be attending the State Bar Convention in Monterey this weekend will be meeting at 5 pm on Saturday evening in the Fireside Lounge here. Please let me know if you'll be able to attend by dropping me an email at vpynchon@settlenow...
Negotiating Politics: The Issues: Guantanamo
Posted on September 23, 2008Because I'm heading for a swing state to campaign after the State Bar Convention and a brief vacation, I am starting a string of posts on talking about politics with your colleagues, friends and families. There is a way to do this without harming your relationships...
Mediators Give California Budget Crisis Advice
Posted on September 22, 2008From the Sacramento Bee's Political Editor Amy Chance, Q&A: Mediators brainstorm on how to fix the state budget process As California's longest budget stalemate in state history ground to a close, six professional mediators met with The Bee's Capitol Bureau last week to offer their thoughts on building a more functional state budget process...
Blawg Review #178 Celebrates One Web Day
Posted on September 22, 2008If you believe that law blogging is not only informative and entertaining, but capable of transforming our lives, our society, our culture and our legal system as well, run don't walk over to Peter Black's Freedom to Differ which not only rocks, it twitters, on One Web Day...
Private Means for Public Justice? Professor Murray Responds
Posted on September 20, 2008After generously commenting on my own comments to his article on the Privitization of Justice (any chance I can get permission to publish it here Professor?), Harvard Law School Professor Peter Murray left a comment which I've decided to bring "upstairs...
Law in Motion at KobreGuide
Posted on September 19, 2008Are you spending too much time surfing channels or cruising YouTube for quality documentary film? Absent my NetFlix picks, I'd be wailing 600 channels and there's NOTHING to see! Now there's KobreGuide with its own law channel here. The Guide takes its name from its publisher and editor Ken Kobré whose textbook (right) has been widest-selling text on photojournalism in the world for nearly thirty years...
Potential for Treble Damages Adds Weight to Settlement Demands for Bad Faith
Posted on September 18, 2008The following important update on the recovery of bad faith treble damages from the lawyers at Edwards, Angell, Palmer & Dodge California Federal Court: Insured Plaintiff Can Seek Treble Punitive Damages For Insurer’s Alleged Bad Faith The U...
John DeGroote's Settlement Perspective is the Great New Kid on the Block
Posted on September 18, 2008John DeGroote of Settlement Perspectives soon to appear at Mediate.com Featured Blogs. The missing link between mediators and litigators. The client!! Now we just need a blogging claims adjuster and we can bring peace to the Middle East. Below are John's impressive credentials...
More on Mediation's Corruption of Justice
Posted on September 16, 2008I note today that yesterday's post was . . . . well . . . a little snippy. Now that I've managed to get my hands on a copy of Professor Murray's article on the privitization of justice (which I'll post as soon as someone gives me permission to do so) I have a few more observations that are more nuanced than my first reaction...
Negotiating Justice: Are Mediators Corrupting the Legal System?
Posted on September 15, 2008Check out Geoff Sharp's review of Harvard Law School Professor Peter Murray's article The Privatization of Civil Justice recently published in the summer issue of Judicature magazine. The bottom line? because mediators are people we must naturally place our own self-interest above that of the people we serve; and, because insurance companies are ADR "repeat players," we mediators will naturally favor them because ...
Welcome ABA Journal Readers
Posted on September 14, 2008That spike I noticed in my readership while I was in New York was generated by this month's ABA Journal and its Ask the Experts ad. I can't say enough good things about the new look; fresh content; and, terrific online sources provided by this once-stodgy organization...
Negotiating Politics: Mediators and Neutrality
Posted on September 10, 2008Let's be clear about one thing. Mediators are not human Switzerlands. We have opinions, often strong ones, about issues like the rule of law in America, negotiated resolutions to intractable conflicts, the proper role of force against another sovereign nation and whether torture is a tool Americans ought to be using in the name of national security...
Legal Literacy Hosts Blawg Review # 176
Posted on September 08, 2008Legal Literacy hosts Blawg Review # 176 and just in time for the Presidential election! We're reminded that today is International Literary Day; that millions of people throughout the world do not have the opportunity to learn the 3Rs; that the U...
5 Blogs and 5 Blawgers
Posted on September 07, 2008It's been a long while since any of us have received a “five things” meme! Jordan Furlong of Law 21 tagged Susan Carter Liebel of Build a Solo Practice who tagged me, as did Diane Levin at the Mediation Channel (tagged by anonymous Ed...
18th Century Technology; 21st Century Problems
Posted on September 05, 2008LegalTED, coming soon to a conflict near you. In the meantime, I'm off to one of my two favorite cities in the entire world: Manhattan. In the meantime, I leave you in the capable hands of Albert Einstein. Any fool can make things bigger, more complex, and more violent...
An Idea Whose Time Has Come: A Legal TED Conference
Posted on September 04, 2008A lessee of commercial office space complains that the common areas are not being properly maintained. The local high school has just banned Catcher in the Rye. Again. A prestigious law firm fires a first year associate because he refuses to remove his new “tongue stud...
Negotiate Sobriety with the Labor Day Edition of Blawg Review # 175 at Austin DWI Lawyer
Posted on September 01, 2008If you've never been asked to perform a field sobriety test, raise your hand. That's what I thought. Only Ken Adams whose Dilbert post was one of my week's favorites. And for the three of you who have not yet seen this video of why not to come to court drunk and how not to respond to the Judge's questions in an intoxicated state, see this hilarious video...
What Can You Do if Someone Breaches a Mediation Confidentiality Agreement?
Posted on August 30, 2008(image from and links to HOA Issues Solved in Five Steps) I've recently been covering mediation confidentiality from an attorney's point of view. Because my statistics page reminds me that clients also read this blog, I sometimes direct posts to the people with the problem -- clients...
Optimistic Heart and Pessimistic Mind: Obama's Nomination
Posted on August 27, 2008Although I do I try to steer clear of politics, I simply cannot resist during this compelling political week and particularly on this historic day. F. Scott Fitzgerald said that the mark of a first rate intelligence is the ability to simultaneously hold two contradictory ideas in your mind...
Negotiating Cognitive Biases at the OC Bar Ass'n ADR Meeting on September 4
Posted on August 26, 2008Orange County Bar Association Alternative Dispute Resolution Section Meeting Reminder Thursday, September 4, 2008 Noon to 1:30 p.m. Wyndham Hotel 3350 Avenue of the Arts, Costa Mesa Speaker: Victoria Pynchon Attorney at Law, Mediator Author of the Settle It Now Negotiation Blog Judicate West Using and Losing Cognitive Biases to Win Your Next Negotiation How common biases prevent us from influencing others, interfere with case analysis, and confound attempts to learn true needs of others Learn how to identify specific biases to negotiate better deals for clients For more information or to register: Call FastFax at (949) 440-6700, x4 and request document 2279...
Clinton Speaks on 88th Anniversary of Women's Suffrage
Posted on August 26, 2008(Right, women protesting, 1912. My own grandmother was 12 years old at the time this photo was taken. By the time she was old enough to vote in 1921, she could vote) Why women's voting rights and Hillary Clinton's DNC speech on a negotiation blog? Several reasons...
California Courts Let You Have it Your Way: Arbitrate and Appeal the Award
Posted on August 26, 2008(while we're walking down memory lane anyway, "Have It Your Way" from 1976) When I ask litigators why they don't choose arbitration over litigation before unpredictable judges in a crowded court, their answer invariably is "because I can't appeal the ruling...
Negotiating the Political Conventions: Persuasive Argumentation
Posted on August 25, 2008Everyone who's interested in the state of the union and its internaional relationships should be glued to the Democratic National Convention tonight and the Republican National Convention next week. They are negotiating the nation's future. Let's listen to the speakers with a critical mind and an open heart...
The Democratic National Convention Kicks Off
Posted on August 25, 2008In honor of which, I'm excerpting and directing you to mediator Ken Cloke's article Thoughts on Mediation, Barack Obama and Our Political Future. [T]ere are four fundamental issues underlying this Presidential campaign, though they are somewhat broader in scope than what the candidates and pundits have been discussing: 1...
Is Collaborative Negotiation an Oxymoron? Should Litigators Care?
Posted on June 12, 2008"No," to question no 1 says Clarke Ching of the software blog More Chili Please who is hosting this week's Carnival of Trust. (Hat Tip to Chicago IP Litigation Blog) And "yes" say I to question no. 2.Ching cites us to Davis Anderson's post, "Stop Negotiating, Start Collaborating" in the Agile Management Blog, an article that was first published in the Cutter Journal...
Settlement Shocker!! Early Settlements Save Businesses Money
Posted on June 10, 2008From the National Law Journal -- Academics Proving that Which Everyone Already KnowsStudy Shows Early Litigation Settlements Save Businesses Money Sheri Qualters The National Law Journal June 9, 2008 A study of court settlements in personal injury lawsuits against businesses estimated companies could save an average total of $114,000 per claim or $670,000 for severe injuries by promptly settling cases instead of fighting them in court...
For Friends and Family
Posted on June 10, 2008Dad -- former Los Angeles Superior Court Commissioner Donald Wayne Pike -- passed away on his 84th birthday: 9 June 2008. I keep thinking I'll work and then I can't so, not knowing what else to do, am making my father a memorial blog...
The Truth of Departure
Posted on June 09, 20089 June 1924 Donald Wayne Pike 9 June 2008Dust Bowl Refugee, High School Drop Out, Western Union Messenger Boy, Merchant Marine, Salesman, Lawyer, Judge, Husband, "Daddy" Step-Father, Grand-Father, Brother, Uncle, Cousin, Mountain Climber, Sailor, River Rafter, Story-Teller, Proud Capitalist, World-Class Worrier and Sometime Liberal Democrat (when married to one) The Truth of Departure -- W...
Negotiating Evil: Hear, See, Speak
Posted on June 08, 2008I do hope you'll pick up Ken Cloke's new book Conflict Revolution. Keep it on your night stand. Dip into it when you feel angry, hopeless, and grief-stricken at a local, national, or international act of violence. Here's a little good news from Ken's book to cheer myself and my readers up after the last lengthy post on the Robert F...
Robert F. Kennedy on the Mindless Menace of Violence Forty Years Later
Posted on June 07, 2008If you are of a certain age, you will vividly recall where you were forty years ago when you learned that the unthinkable had happend -- another Kennedy brother had been shot.I was fifteen years old. The insistent ring of the telephone broke into my sleep in the early morning hours of June 6, 1968...
Negotiating Life's End: the Coming Crisis and Likelihood of Litigation
Posted on June 06, 2008One of the reasons I began this series was to explore the type of professional behavior that tends to trigger professional malpractice litigation -- and how that litigation might be avoided. . As you may recall, my first post reported the findings of a study of the motivations giving rise to medical malpractice lawsuits...
Negotiating Life's End in Mediation?
Posted on June 05, 2008Let's for a moment assume that I had not surrendered the control of Dad's final days to his wife, into whose hands he has so indisputably placed them. If you've been following this series, you may have concluded that my Dad's immediate family (step-children; my sister) are likely indifferent to, uninterested in or incapable of dealing with the end of Dad's life...
Negotiating Life's End: Part Five
Posted on June 03, 2008(me and Dad in San Diego's Balboa Park a year or so after the divorce)Conflict Suppression, Denial, Avoidance, Engagement, Resolution, Transformation and TranscendenceIf you've been reading this series, you already know my family's conflict resolution technique of choice -- denial...
Negotiating Life's End: Part Six
Posted on June 03, 2008Evil is not initially a grand thing, but begins innocuously with a constriction of empathy and compassion, creating . . . . the “smallest piece of evil.” This is simply the inability to find the other within the self. This smallest piece of evil can expand rapidly, replacing empathy with antipathy, love with hate, trust with suspicion, and confidence with fear...
Negotiating Life's End: Part Four
Posted on June 02, 2008(Dad with his One True Love -- the Boat -- July 4, 1976) We tell ourselves stories in order to live. . . . . We look for the sermon in the suicide, for the social or moral lesson in the murder of five. We interpret what we see, select the most workable of the multiple choices...
Negotiating Life's End: an Expression of Gratitude for My Friends and Readers
Posted on June 01, 2008(image from Thunderbow Expeditions) Though my posts about my father's illness and imminent death may seem "off topic," as my friend Joe Mockus' poem (below) reminds us, we are all heading toward this particular destination...
Negotiating Life's End: Part Two
Posted on May 31, 2008(right: Dad at 19; everthing about him was big -- not just the hair)My step-mother's disembodied voice rose up from my answering machine last week with the words we're all afraid to hear: "Vickie, your Dad's in the hospital; his condition is not good; please call me...
Negotiating Life's End
Posted on May 31, 2008(left: Dad, middle, after the dust bowl in Julian, California)I am told that my father is dying. This is not news. Dad has a progressive disease that ordinarily results in death only after years of suffering. I'm telling you this story (which will be the subject of several posts) because it's been suggested to me that I lodge a complaint with the local community hospital dad was checked into last week...
Negotiating Life's End: Part Three
Posted on May 31, 2008(right: Mom and Dad, late '40s)Dr. X promptly sent me a social worker who was willing and able to answer all of my questions about my father's present condition; the common courses end-stage Parkinson's takes; and, the options available for his care -- aggressive treatment; tube feeding with hydration; palliative care; and, in-home hospice services...
Los Angeles Mediator Jerry Lazar Brings Mediation to Reality T.V.
Posted on May 29, 2008(right: mediate this??)Reporter Greg Katz reports in today's Daily Journal, that Two L.A. Mediators Are Shopping a TV Pilot That Would Showcase Their Art -- one of whom is Settle It Now's friend local mediator and magician Jerry Lazar of the Fight Nicely Blog...
More Great Resources from the Bar Association Formerly Known as Stodgy
Posted on May 28, 2008Before giving you today's list of ABA Journal resources that landed in my in-box this morning, I want to announce my appearance on the Journal's dot com front page in its "Ask the Experts" feature. If you have a question -- any question -- relating to negotiation strategy and tactics, conflict resolution, mediation advocacy, persuading the opposition that he doesn't fully understand just how $%#*^ his case is, the social psychology of conflict, or the settlement of that pesky piece of litigation that is turning moldy on the upper right hand corner of your desk, just write it into the email box here and your answer will be quickly forthcoming...
More Thoughts on Negotiation and Appeasement
Posted on May 27, 2008(right: enemy? ally? victim? victimizer?)Everyone's been talking about negotiating with our enemies and appeasement lately. I've written several posts on it here and here, for instance. I've also read dozens of news and magazine articles on the topic in the past few weeks, here and here, for instance...
War Poet Wilfred Owen on Memorial Day
Posted on May 26, 2008(above: Sand Soldiers from Arlington West in Santa Barbara)Dulce Et Docorum EstBent double, like old beggars under sacks, Knock-kneed, coughing like hags, we cursed through sludge, Till on the haunting flares we turned our backs And towards our distant rest began to trudge...
In Praise of "Non-Lawyer" Mediators
Posted on May 26, 2008Tomorrow I'll be speaking at a seminar sponsored by our local Superior Court to acquaint "non-attorney" mediators with the law of contracts. This phrase "non-attorney" mediator rankles some conflict resolution professionals. They often point out that there are no "non-physician" health care workers -- only nurses, physicians' assistants, physical therapists, and the like...
Looking for More Cooperation? Expand the Group
Posted on May 25, 2008Michael Tomasello, co-director of the Max Planck Institute for Evolutionary Antrhopology, authors "Idea Lab" in this morning's Sunday New York Times Magazine, asking How are Humans Unique?Absent our collaborative skills, Tomasello tells us, we're not even the smartest animals on the planet...
The ABC's of Conflict Resolution: "E" is for Enemy
Posted on May 24, 2008This is your enemy. According to the American Heritage Dictionary, he feels hatred toward, intends injury to, or opposes [your] interests[; he's] . . . a foe[;] [a] hostile power or force, such as a nation[;] . . . [a] member or unit of such a force[; or,] ...
LEGAL-EASE FOR MEDIATORS ON MAY 27
Posted on May 24, 2008The Los Angeles Superior Court ADR Committee Presents LEGAL-EASE FOR MEDIATORS -- FLYER HEREA panel presentation of legal definitions and terms of art in: • Civil Litigation presented by Jan Schau• Contracts presented by Victoria Pynchon • Employment presented by Nikki Tolt• Personal Injury and Insurance presented by Sandy Gage• Real Property presented by Mark LoetermanModerated by Peter H...
Contentious Litigation? Get a War Crimes Negotiator to Settle the Case
Posted on May 23, 2008Is your litigation particularly contentious? Take a page from theBarbie- Bratz litigation which the AmLaw Daily reports was partially settled with the assistance of Pierre-Richard Prosper, a former ambassador-at-large for war crimes issues in the Bush administration...
Should We Fear to Negotiate or Only Fear to Negotiate Badly?
Posted on May 22, 2008In an Op-Ed piece in today's New York Times -- Kennedy Talked, Khrushchev Triumphed -- Nathan Thrall and Jesse James Wilkins suggest that John F. Kennedy's worst two days negotiating should be a lesson to Barack Obama. The lesson? That "sometimes there is good reason to fear to negotiate...
Ohio Foreclosure Mediation Program Handbook
Posted on May 20, 2008Ohio Foreclosure Mediation Program - Get more documents
Congress Negotiates the Foreclosure Crisis
Posted on May 20, 2008In this morning's Los Angeles Times, staff writer Maura Reynolds explains how -- and why -- the Senate has reached a deal on foreclosure legislation. "Key senators" writes Ms. Reynolds,announced Monday a bipartisan agreement on the broad elements of a plan to avoid foreclosures and speed the refinancing of mortgages for roughly 500,000 troubled homeowners without taxpayers footing the bill...
Can We Negotiate Justice?
Posted on May 19, 2008Thanks to Geoff Sharp over at mediator blah blah for citing us to Justice Trumps Peace: the Enduring Relevance of Owen Fiss’s Against Settlement by Don Ellinghausen, Jr. Geoff Sharp's excellent post on the issues raised (again) is here and Ellinghusen's exhaustive treatment of mediation's limitations and overblown claims here...
Negotiating Justice in Community Mediation
Posted on May 19, 2008Negotiated Resolutions in Community MediationNearly every condominium complex harbors an outlaw -- the man, woman, couple or family who refuse to follow the rules. The young couple who blasts the woofers off their stereo system at 3 a...
Negotiating the Recession: We Can't Be Forever Blessed
Posted on May 18, 2008The New York Times reports this morning that there were 243,353 foreclosure filings in April alone, nearly three times the total in the same month just two years ago," making it all but inevitable that "many millions of American families will be losing their homes before long...
Gay Marriage in California: Is it Good for Business?
Posted on May 16, 2008No, I'm not jumping into any gay marriage debate; nor opining about the "rectitude" of the "position" of either side. I do have gay friends for whom I'm happy, of course. Because I want to see them happy and because exclusion from the mainstream -- whether one believes it to be voluntary or not -- is difficult at best and incredibly painful at worst...
Must Read for All Women Negotiating Law Firm Life
Posted on May 16, 2008Below is my review in The Complete Lawyer of Lauren Stiller Rikleen's must-read book Ending the Gauntlet: Removing Barriers to Women's Success in the Law.Concluding paragraph:At bottom, this book calls for management practices that will benefit all attorneys while at the same time recognizing the disparate impact current practices have on women...
Negotiation Deal Breakers
Posted on May 16, 2008My readers will recognize many of the tips included in this article published last week in the Los Angeles Daily Journal -- Bullying, Rigidity Are Surefire Negotiation Deal Breakers. Read it by clicking on the link above or below -- to enlarge page on the document embedded below, click on right-hand arrow and scroll down toBullying, Rigidity Are Surefire Negotiation Deal Breakers - Get more documents
Negotiating Fractions
Posted on May 16, 2008I can't say I would have gone to medical school had I been taught arithmetic by these guys (I can't stand the sight of blood) but I might have gone to business school. More importantly, the ability to quickly calculate percentages does turn out to be pretty darn useful when negotiating deals...
Our Sister IP ADR Blog Selected as "Top Blog" for LexisNexis Copyright Law Center
Posted on May 15, 2008Many of our regular readers know that I have gathered together some of the best IP arbitrators and mediators over at the IP ADR Practice Group and the IP ADR Blog. We keep one another up to date on the law of patent, copyright and trademark infringement and share our knowledge with one another about the various industries we have each served...
"B" is for Bully Update: Mom Indicted for MySpace Bullying Leading to Teen's Suicide
Posted on May 15, 2008I've blogged several times about bullying, both here and over at the IP ADR Blog. We learned from Forbes.com today that federal prosecutors are seeking an indictment against the mom we wrote about here for her alleged role in an online hoax that caused a 13-year old girl to commit suicide...
Negotiating Gender with USDC Settlement Officers and Nina Miereding
Posted on May 14, 2008I just finished taking a two-day advanced mediation training offered gratis to settlement officers for the federal district court in the Central District of California. The cross-cultural mediation training portion of the seminar was conducted by the dynamite, brilliant and entertaining mediator and trainer, Nina Meierding...
Negotiating Blogratitude: Best Post of the Week Anywhere in Business and Money-Related Blog Articles
Posted on May 12, 2008Thanks again to IP attorney R. David Donoghue of the Chicago IP Litigation Blog for including my post on Trust and Compromise in the May Carnival of Trust. Now I have even more reason to be grateful. The Political Calculations Blog's weekly On the Moneyed Midways compilation of business and money related blog carnivals choose my post How Can I Convince My Client to Lose More than Predicted and Still Maintain My Own Credibility? as the Best Post of the Week Anywhere!Makes a girl feel all appreciated guys! Thanks!!! And nice to find the Best of the Best aggregated for readers on a weekly basis at Political Calculations which we'll be adding to our blog roll post haste!
Negotiating Competitive Arousal: When the Cost of "Winning" is Too High
Posted on May 12, 2008Take a look at this summary of the article When Winning Is Everything by Deepak Malhotra, Gillian Ku, and J. Keith Murnighan, now available online here as well as in the May '08 Harvard Business Review. Malhotra and colleagues suggest that an adrenaline-fueled emotional state [which they] call competitive arousal, often leads to bad decisions...
Negotiating Irrationality
Posted on May 12, 2008Recently, I excerpted the expressed concerns of in-house counsel about ineffective mediators. Among the complaints was some mediators' refusal to see or acknowledge the other side's "irrationality" As Where's the Magic from the U...
Searching for the Bright Mediation Bulb: Criticisms from Across the Pond
Posted on May 11, 2008Thanks to Geoff Sharp at mediator blah blah for directing us to this great U.K. Mediation resource, The Mediator Magazine which is great to poke around in a little when you're home for mother's day and mom's gone off to bed. Here, for instance, are some well taken criticisms of mediation practice by in-house counsel from the article Where's the Magic?Top of the list of issues which invite scorn is perceived weakness on the part of the mediator...
Is Hillary Negotiating Her Withdrawal? So Says Cokie
Posted on May 09, 2008From Women on the Web's Conversation Today Cokie Roberts: 'Hillary Is Negotiating Her Withdrawal' with Lesley Stahl © AP A Q&A with ABC News correspondent Cokie Roberts. Excerpt below:LESLEY: Let’s talk about Hillary. I’m wondering, how do you explain her unwillingness, at this point, to throw in the towel? Does she really think she has a shot at winning this? Is she addicted to campaigning, which is my favorite possibility here...
Negotiating a Raise with a Note of Gratitude to Forbes.com
Posted on May 09, 2008I shouldn't be talking about collaboration and reciprocity without penning a short note of gratitude for the benefits bestowed upon me and my readers by the new Forbes.com Business and Financial Network. The BFNetwork has not only introduced me to many business blogs that otherwise wouldn't have come to my attention, my narcissistic perusal of my own posts listed there have drawn me into abundant Forbes...
Negotiating Power: NYC Tenants Organize Resistance to Private Equity Bullies
Posted on May 09, 2008Today's New York Times (Questions of Rent Tactics by Private Equity) reports that investment firms have been purchasing New York City rental properties for the avowed purpose of "turning over 20 percent to 30 percent of the units, five times the typical vacancy rate," to upgrade the rentals up and out of rent regulation, generating tens of millions of dollars of income for the investors...
Negotiating the Flaming Lamborghini Is Not a Happy Hour Drink
Posted on May 09, 2008Thanks to Commitment Matters: Negotiation Practices in the Commodity World for pointing us to the U.K. Telegraph's provocative article Supermarkets & suppliers: Inside the price war by Jonathan Sibun and James Hall, discussing ruthless negotiation techniques employed by the big supermarket chains in the U...
Negotiating the Minefields of Electronic Discovery
Posted on May 08, 2008If you need help Negotiating the Minefields of Electronic Discovery, you have my complete sympathy. I hope this article by Stephen D. Williger, Esq.and Robin M. Wilson, Esq. from 10 RICH. J.L. & TECH. 52 (2004) helps. And if you're the client -- well, here's a darn good reason for settlement before you embark on searches of the C: drives of every employee you have! Entire article embedded belowNegotiating the Minefields of Electronic Discovery - Get more documents
Negotiating Anger: Why are They Shouting at Me????
Posted on May 08, 2008Brilliant piece on de-escalating conflict over at Tammy Lenski's Conflict Zen this morning. Teaser and link below: The friendly bailiff unlocked the small courtroom. After telling me to make myself at home, he pointed to a small red button on the wall...
Negotiating Diversity: What's ADR Got to Do with It?
Posted on May 08, 2008I'm asked this morning by an ADR colleague whether we can criticize diversity without sounding like racists. The question itself is problematic because it not only assumes a racial divide, it places "us" on the "white" side of it...
Mediator Learns that a Jury Verdict is a Settlement by Other Means
Posted on May 07, 2008Thanks to Geoff Sharp at mediator blah blah for alerting us to this truly excellent post over at The Consensus Building Institute: Mediator as Juror: A Day in Middlesex County Superior Court. After recounting the facts of the case, CBI's Managing Director Patrick Field comments as follows:[T]he case reminded me why mediators have such an important, but difficult, job in supporting justice, civil society and social capital...
The Biggest Lie in the Business: It's Only About Money
Posted on May 07, 2008A friend and former legal partner was fond of saying that the biggest lie in the business was I don't take it personally. After four years of full-time mediation, I have another "Big Lie" to add – it’s only about money...
Google, Viacom and YouTube: What's Holding Up a Settlement
Posted on May 07, 2008Today the Silicon Alley Insider in its post Google, Viacom: We Won't Settle YouTube Fight Out Of Court asked the same question about Google and Viacom that we've been asking about J.K. Rawling and a middle school teacher -- Whuzzup with the whole settlement thing?As Alley reports, David Eun, VP in charge of Google content partnerships told Dow Jones Newswires ``we're going all the way to the Supreme Court...
New Negotiation Resources: Preparation, Preparation; Preparation
Posted on May 07, 2008I'll add these to my blog roll when I'm not rushing out the door. For now, check out Jonathan Farrington's Blog post on Negotiation - Dealing with the Early Phases, a resource I have to thank the Business Growth Blog for, cited at the end of more excellent advice on Negotiating: Thinking it through...
The ADR Posse Joins Alltop's Featured Blogs
Posted on May 06, 2008The web moves so fast I can hardly keep up. But this Alltop listing is supposed to mean that you're very very good at what you do -- blogging in an area of specialty like ADR or "the law."I'll just go ahead and assume that it's meaningful because bloggers need all the lovin' they can get for pursuing, often on a daily basis, their largely uncompensated written work...
In the ABC's of Conflict Resolution, "D" is for Drama Queen
Posted on May 06, 2008Here's another character who everyone will recognize. The Drama Queen. Male or female, those who "stir up" conflict to add a little dramatic flair to an otherwise boring day, do so for a predictable set of reasons.Before dissecting the guy who's the first to spread the word that George is being fired for "cooking the books," and tells Crystal that the office manager has it in for her at the same time he tells the office manager that Crystal covets her job, let's briefly return to the conflict "basics" outlined in chapter one...
The ABC's of Conflict Resolution: An Open Letter to My Publisher
Posted on May 06, 2008Dear Janis,As you'll notice, I've posted on my blog the first three "chapters" of the ABC's -- due out from Janis Publications under the more genteel title "A" is for Donkey in July. Not meaning to compare myself to one of the greatest writers of all-time -- Charles Dickens -- other than in our mutual need for reader recognition, I'm hoping you will find that the "serialization" of the ABC's will encourage readers to buy it rather than discouraging them from doing so...
"C" is for Coward: The ABC's of Conflict Resolution
Posted on May 05, 2008(photo by Cobalt 123)In the ABC's of Conflict Resolution, we call “cowards” by another "C" term. We call them “conflict avoidant.” You can decide whether you are among the “conflict avoidant” by asking yourself how deeply you relate to the feelings described by New York Times writer Bob Morris in his article How to Avoid, Well, You...
"B" is for Bully: The ABC's of Conflict Resolution
Posted on May 05, 2008Here’s another familiar character. This is the kid who shook you down for your lunch money on the elementary school playground. The one who taunted you in gym whenever you failed to pass the basketball to the only guy able to sink it. The swaggering bad boy who threw the “dodge” ball in your face and then fell down laughing...
"A" is for Asshole: the ABC's of Conflict Resolution
Posted on May 05, 2008You recognize this guy.He’s the one who stole your parking place. He cut you off in traffic. Just last night at the Olmstead’s party, he interrupted your story about your trip to London for the sole purpose of changing the subject to his trip to Cambodia...
Advice from Forbes.com: How to Negotiate Like a Pro
Posted on May 05, 2008Because I'm in this Forbes Business and Financial Blog Network, I figured I should finally take a look around to see what useful advice Forbes.com might have for my readers. And sure enough, a Forbes.com search turned up How to Negotiate Like a Pro from the Entrepreneurs column by Lisa LaMotta...
Mediators Beyond Borders April Newsletter
Posted on May 05, 2008April Mediators Beyond Borders Newsletter - Get more documents
Employment Arbitration a "Moral" Hazard?
Posted on May 05, 2008See Lawyers USA News Brief Employees may be at disadvantage in arbitration by Correy E. Stephenson here. Excerpt below.State courts are reversing arbitration awards for employees at a "statistically significant" rate compared to reversing employer-friendly awards, according to a new study...
Chicago IP Litigation Blog Hosts a Carnival of Trust
Posted on May 05, 2008R. David Donoghue over at the Chicago IP Litigation Blog is hosting a new "Carnival" of Blogs that is new to me -- The Carnival of Trust. As David explains:The Carnival of Trust is a monthly, traveling review of ten of the last month's best posts related to various aspects of trust in the business world...
I'm Ready for My Close-Up Mr. DeMille!!
Posted on May 04, 2008My Judicate West Video Profile here and, of course, Gloria Swanson in Sunset Blvd. belowMy favorite lines:Joe Gillis: You're Norma Desmond. You used to be in silent pictures. You used to be big. Norma Desmond: I am big. It's the pictures that got small...
Negotiating Protest: A "Mediation" the Community Doesn't Want?
Posted on May 04, 2008Here's a local community protest being "handled" -- in part -- as a community-wide "mediation," "facilitation," or "public dialog."We have an attempted engagement here over the apparently unwanted "gift" of a new Home Depot in the Sunland-Tujunga community...
Why Take a Negotiation Class in Law School?
Posted on May 02, 2008(pictured, Harvard law School's winning Negotiation Team)I could write an entire book on why law students should study negotiation as well as an entire chapter on why they should study texts written for MBA students rather than law students...
The Complete Lawyer Arrives in LACBA Member Email Boxes on May 5
Posted on May 02, 2008The Los Angeles County Bar Association will soon be bringing its members the dynamite on-line work-life balance journal The Complete Lawyer.Even if I weren't a columnist for TCL (the Human Factor here) I'd still urge you to flip through the online "pages" of this tremendous resource...
Rights and Interests Mind-Map (Top-of-the-Head-Speed-Map)
Posted on May 02, 2008I really need to do one of these for a real case soon.
Thinking Like a Mediator with TCL's The Human Factor
Posted on May 02, 2008In the new issue of The Complete Lawyer, my fellow Human Factor columnists and I talk about what new tricks we had to learn and old skills we had to re-invent when we took the journey from legal to mediation practice. I give you my section of the column below, encouraging you to link to the Human Factor here to read what my my good friends and colleagues Gini Nelson, Stephanie West Allen and Diane Levin have to say...
Resolve All Those Pesky Disputes with Forthright
Posted on May 01, 2008This just in from Christina Doucet of the National Arbitration ForumForthright Launches as Stand-Alone Company New Company to Leverage Expertise and Leadership in Workflow System Based Transaction Processing and Resolution Solutions MINNEAPOLIS, May 1, 2008—Forthright, a global provider of transaction processing and resolution solutions, today announced its formal entrance into the marketplace as an independent company...
Getting the Parties to the Bargaining Table, Part II: Using Outside Settlement Counsel
Posted on May 01, 2008In this part of the new series on getting the parties to the bargaining table, I interview former in-house Chrysler counsel and former Hogan & Hartson partner, Lew Goldfarb, who now has his own full-time outside settlement counsel firm. For Lew's full bio and contact information, click here...
When Talks Reach an Impasse, Mediators Work their Magic
Posted on April 30, 2008. . . from today's Los Angeles Daily Journal.The magician-mediator (and genuine journalist) quoted in this article is the delightful Jerry Lazar.Check out Jerry Lazar's Fight Nicely mediation blog here. Mediation Magic - Get more documents
When the Judge Says "This Looks Bad on the Surface" Listen Up!
Posted on April 29, 2008. . . because the jury is about to transform your $1.7 million commercial dispute into $352.7 million verdict . . . read all about it in this 2001 story, After $1.7 million landed in the wrong account, CoreStates insisted it could seize the money...
MBA Students: Listen Up!! Negotiate Your First Salary
Posted on April 28, 2008Check out today's Naked MBA post The Importance of Negotiating Your Salary. Here's the best advice going:Practice Any good negotiator knows that you have to practice. Plan what you want to say and how you want to say it. Have mock negotiations with your friends or your career advisor...
Increase Your Bargaining Power with Writs of Attachment and Execution
Posted on April 28, 2008If you aren't using writs of attachment in contract cases where the amount due is certain, you aren't using the most powerful means of increasing your bargaining power in litigation.Attend LACBA's Brown Bag Lunch with Judge James Chalfant at the Stanley Mosk Courthouse 111 N...
Bargaining with Giants: Negotiating with Wal- Mart
Posted on April 28, 2008I'd just posted a piece on Negotiating from a Position of Weakness when along comes Harvard Business School Working Knowledge with an article about Negotiating with Wal-Mart by Julia Hanna. associate editor at the HBS Alumni Bulletin. Below, one successful vendor's Wal-Mart Negotiation Rules...
Getting the Parties to the Bargaining Table, Part I
Posted on April 28, 2008Is negotiation a political issue?You bet.Qureshi: Pakistan Won't Negotiate With Terrorists (RTTNews) - Pakistan's Foreign Minister Shah Mehmood Qureshi said Monday that his government would not negotiate with "terrorists" even as it seeks open dialogue with some militant groups...
Negotiating Happiness with Mind Maps: See Links by Clicking On "Continue Reading"
Posted on April 28, 2008According to one Mind Mapping website, the hand-drawn associational webs were developed as a technique to help people learn more effectively by a man named Tony Buzan. Buzan has gone on to be recognised as the world's leading authority on how to use the brain more effectively...
Negotiating from a Position of Weakness
Posted on April 27, 2008I was cruising around the blogosphere this morning looking for links to the prime directive of all negotiations -- know your BATNA -- when I ran across this great 2007 post by Penelope Trunk of the Brazen Careerist -- How to Negotiate When You Have Nothing to Leverage...
Your Potential BATNA: The Great American Jury Trial
Posted on April 27, 2008Thanks to Stephanie West Allen at idealawg (channeled to me this morning via the Forbes Business and Financial Blog Network) for the Famous Trials Website from Socrates to Moussaoui (and yes of course O.J.'s there). (above, theDeath of Socrates by Jacques-Louis David)Here's Stephanie's announcement:Professor Douglas O...
Mediation as Leadership in the Eye of the Storm
Posted on April 27, 2008This morning's guest blog -- Eye of the Storm Leadership: Mediation as Leadership and Leadership as Mediation -- is by Peter Adler, PhD, President of The Keystone Center and author of Eye-of-the-Storm leadership: 150 Ideas, Stories, Quotes, and Exercises on the Art and Politics of Managing Human Conflicts...
How Can I Convince My Client to Lose More than Predicted and Still Maintain My Own Credibility?
Posted on April 26, 2008The provocative comment we're following is Jay Welsh's remark that to settle most cases the Plaintiff has to accept a lot less than he wanted to recover and the defendant has to pay a lot more than he ever imagined paying. And the response we're replying to is Canadian lawyer Michael Webster's:When the issues have been crystallized into legal ones so well, you are in a lose/lose situation...
There Are No Non-Relational Zero-Sum "Pure Money" Negotiations: Part I
Posted on April 26, 2008Canadian Lawyer Michael Webster asks about Jay Welsh's comment (see videos) that "in a mediation the plaintiff has to settle for far less than they thought and the the defendant has to pay far more than they ever thought." "So," asks Webster, "this would be the lose/lose theory of mediation?" I know when Michael's being sarcastic but decided to respond seriously by noting that Jay himself used the phrase "lose-lose...
L.A. County Bar Association's Peer Mediation Program
Posted on April 26, 2008This is a great video that I highly recommend to everyone interested in ending violence in our public schools -- particularly Los Angeles attorneys. I "judge" (the DRS folks like to call it "coaching") local peer mediation "competitions" (the DRS folks don't like the word "competition)with students as young as ten and as old at 17...
Mediating and Arbitrating International and Complex Commercial Disputes
Posted on April 26, 2008We continue today with our multi-part series of interviews with JAMS GC Jay Welsh in which he and Michael McIlwrath, Senior Counsel, Litigation for GE Infrastructure - Oil & Gas, talk about mediating and arbitrating international and complex commercial disputes...
One of the Most Experienced Guys in the Business Reveals What Makes a Great Mediator
Posted on April 25, 2008Part III of the CPR Jay Welsh interview with Michael McIlwrath, Senior Counsel, Litigation for GE Infrastructure - Oil & Gas.Answer: there's not a single style.
Mediator Jerry Kurland Nominated to the Jerrold S. Oliver Award of Excellence
Posted on April 25, 2008You haven't really experienced unvarnished brilliance in a mediator until you've spent some time co-mediating a construction case with Jerry Kurland of JAMS. When I say "co-mediate" I'm talking 70% Jerry, 29% former Oliver Award winner Judge Victoria Chaney and 1% Vickie Pynchon...
Negotiating Disaster with Pawprints of Katrina
Posted on April 25, 2008I talk a lot in this blog about community; about the need for all of us to understand that when you drill a hole in the other guy's side of the boat, you sink too. There's something about disaster on a grand scale that brings the best out in us -- creates heroes...
JAMS General Counsel Jay Welsh Talks About Mediation "Styles"
Posted on April 25, 2008Part II of the CPR interview with JAMS G.C. Jay Welsh below. Here, Jay talks about mediation styles, including so-called "win win" or interest-based as opposed to distributive or zero sum bargaining; joint session vs. separate caucus mediation...
The History of JAMS: an Interview with JAMS General Counsel Jay Welsh
Posted on April 25, 2008The International Institute of Conflict Prevention and Resolution (CPR) is one of the premiere mediation organizations in the world. Though I'm a neutral on CPR's insurance coverage ADR panel, even I cannot access all of the site's content because I'm not also a member...
The Best Time to Settle International Disputes? Keep Your Eye on Currency Exchange Rates
Posted on April 24, 2008It is a truism that litigation tends to get worse rather than better over time. This is as true in the law as it is in physics -- things fall apart. Your client's clean and righteous narrative tarnishes over time; grows more complex and filled with contradictions...
Negotiating Your Mid-Life Career Crisis with 360 Career Coach Lisa Gates
Posted on April 24, 2008Practicing law, particularly litigation, is often frustrating, sometimes humiliating, and frequently simply simply dispiriting. On the other hand, the practice of law can be thrilling, intellectually stimulating, challenging, absorbing, and a darn good way to make a good living...
"At the Table" Negotiation Strategy
Posted on April 23, 2008Detail on each of these points soon. Image and text from Babcock Business Strategies here.This is useful in actual "at the table" negotiations. Negotiations Made Easy Understand their interests. If necessary, change the rules of the game...
Isolated? Miss Firm Practice? Join the ADR Online Discussion Group
Posted on April 23, 2008Mediation is a far lonelier profession than legal practice. If we are actively mediating, our daily work is done confidentially within four walls without observers or colleagues with whom to discuss our questions and concerns. If you were a litigator like I was, your days once teemed with colleagues, clients and observers -- associates, judges, co-counsel, joint defense attorneys, strategic partners, associates, clerks, legal assistants and, yes, the guys in the mail room! You don't truly appreciate what a vibrant community a law firm is until you begin a mediation practice where -- shoot -- you don't even get to act anymore!Now there's a place for us online to share our thoughts, opinions, ideas, feelings, even our insecurities about this wide-open, unregulated, un-standardized practice of ours -- an ADR listserv started by a man known to and respected by so many of us -- mediator Lee Jay Berman...
There are some days when everyone needs just a little encouragement
Posted on April 23, 2008Until one is committed, there is hesitancy, the chance to draw back-- Concerning all acts of initiative (and creation), there is one elementary truth the ignorance of which kills countless ideas and splendid plans: that the moment one definitely commits oneself, then Providence moves too...
What is "Special" about Wage and Hour Class Action Mediation by Jay McCauley
Posted on April 22, 2008I promised you a series of posts on mediating complex and sophisticated commercial mediation. Here's what I'm really most interested in doing -- starting a high level conversation among commercial litigators and commercial mediators about the best way in which we can help one another help your clients to achieve the best resolution possible to their commercial dispute and the legal problem/solution associated with it...
Negotiate with Your Head, Not Your Heart
Posted on April 22, 2008Thanks to Anne Reed over at Deliberations for forwarding this April 22 Psychology NewsWire, It Pays to Know Your Opponent: Success in Negotiations Improved by Perspective-Taking, But Limited by Empathy.It Pays refers to recent work done by Kellogg School of Management Professor Adam Galinsky, who has demonstrated (with colleagues William Maddux -- (INSEAD -- Debra Gilin -- St...
Outside Settlement Counsel in Class Actions
Posted on April 21, 2008As I promised last week, we'll be providing our readers with a series of posts about the use of settlement counsel in sophisticated and complex commercial litigation.While searching the internet for pertinent articles, I cam upon an interview with a New York attorney, Lew Goldfarb, whose entire practice is devoted to settling cases for clients already represented in litigation by other law firms...
Confidentiality of Settlement Proceedings in California's Central District Federal Court
Posted on April 21, 2008Thanks to Perry Itkin's Florida Mediator for linking to this Memorandum Opinion enforcing, by way of contempt proceeding, a mediation confidentiality order entered by a federal magistrate in the District of Columbia in January of this year.We were just discussing this issue at the yearly Settlement Officer (my own S...
What it Takes to Be a Great Mediation Advocate from Day on Torts
Posted on April 21, 2008Thanks to Geoff Sharp for leading me to John Day's terrific series of posts on What it Takes to Be a Great Trial Lawyer particularly Part 11, The Courage to Tell the Client the Truth, excerpt below.As information is learned in a given case, great trial lawyers also tell their client the truth...
The Role of Specialized Settlement Counsel by Jay McCauley
Posted on April 21, 2008From AAA arbitrator and Judicate West mediator Jay McCauley's website: The Role of Specialized Settlement Counsel At bottom, virtually all litigation is a tool of negotiation. The numbers say it all: Ninety-five percent of all filed lawsuits in fact settle before trial, and upwards of ninety-nine percent perhaps should...
Negotiating Seder
Posted on April 20, 2008Passover is my favorite Jewish holiday and one of the few days of the year for which I'm willing to spend at least two days grocery shopping, cleaning, cooking, buying flowers, and setting the table, not to mention printing out numerous Haggadahs from the internet for our dinner guests...
The Case for Settlement Counsel: Negotiation is Not a Competitive Sport
Posted on April 18, 2008(right, the must-read Google Story) If the point of litigation is winning what is the point of settlement negotiations? Winning, right? Wrong. The point of settlement negotiations is to create durable agreements that sufficiently serve the parties' interests so that they will either stop bothering one another -- for which the LawGod created iron-clad releases -- or flourish in their mutual business venture...
Negotiating with Terrorists: Choosing Your Bargaining Partners
Posted on April 18, 2008I do try not to stray into foreign affairs. Heck, negotiating with (not always rational) attorneys is difficult enough! Yet, occasionally, I mention negotiation in the context of international relations, as in my recent post -- Al Qaeda, Understanding the Bean-Counter Next Door -- which I knew might get some irritable comments...
Al Qaeda: Understanding the Bean-Counter Next Door
Posted on April 16, 2008(pictured: papyrus scroll)It was with more than a little relief that I read today's L.A. Times article on Al Queda's internal organizational memoranda -- Penalty for Crossing an Al Qaeda Boss? A Nasty Memo.They are, after all, not so different from us as people, however far their ideologies radically depart from our own...
When you lift the rock of legal practice off your back . . .
Posted on April 15, 2008. . . you tend to escape gravity in a fury of creative activity.Like this! The Spring issue of the r.kv.r.y. quarterly literary journal, which has just been published and is quickly approaching it's fourth anniversary. (see also r...
Ten Success Secrets from Top (Non-Starving) Mediators
Posted on April 14, 2008I'll soon be teaching a short session on career development over at the Straus Institute with one of the hottest mediators in town -- the busily brilliant Lisa Klerman, formerly of Morrison & Foerster and for the past few years the head of the USC Law School's Mediation Clinic...
California Continues to Resist Preemptive Effect of Federal Arbitration Act
Posted on April 14, 2008Just a quick note on a recent appellate case here holding that where the parties have agreed to conduct their arbitration in accordance with California law, the Federal Arbitration Act does not preempt state law on arbitrability. The case is Best Interiors, Inc...
Negotiating Law Firm Happiness: Partnership Compensation
Posted on April 11, 2008I've got a little series on law firm happiness going on over at the tremendous workplace law resource Connecticut Employment Law Blog. Dan Schwartz, the dynamite Blog Meister behind Connecticut Employment Law had to take a blog break while actually TRYING A CASE (yes, people still DO)...
Live Blogging from Straus Conference Negotiating, Mediating and Managing Conflict: Evolution in a Global Society
Posted on April 10, 20089:00 a.m. sesstion: Culture, Tradition and Language in Cross-Border Negotiations and International Conflict presented by Professor John Barkai, University of Hawaii; Andrew Aglionby, Baker & McKenzie; and, Michael Zacharia, Former Exec. VP of Bus...
Consensus Building Tips from Work Life Bridge
Posted on April 09, 2008Thanks to WorkLifeBridge for including us on its resource page. We're happpy to reciprocate and pleased to find another good source of information on collaboration, dispute resolution, and making life and work better for everyone. In their post Creepy Crawly Consensus, the authors of WorkLifeBridge direct their readers to some good consensus building resources...
Mediation Advocacy: the Self-Serving Bias
Posted on April 09, 2008(top: we assimilate and organize data in our own favor: click here for full size chart) Despite our own beliefs that we've adequately analyzed the weaknesses in our own cases, we have all been told at one time or another that we are "buying our own bull%#@^...
Settlement of the Month: W.R. Grace Tentatively Settles Asbestos Claims
Posted on April 07, 2008The Baltimore Business Journal announced today the W.R. Grace & Co. tentative $2B settlement on asbestos claims here. W.R. Grace & Co. Inc. has reached a proposed settlement of all current and future asbestos-related personal injury claims against the company -- a huge step toward Grace's goal of emerging from bankruptcy reorganization...
The Zero Sum Game: Allstate's McKinsey Documents
Posted on April 07, 2008Back from the ABA's ADR Conference via Washington D.C., I've had a lot of fly-over state "quiet time" to ponder the gulf between mediation advocates (litigators) and mediators (former litigators who drink a little adversarial treason with their morning lattes)...
Post from Washington D.C.; Lincoln on Right, Wrong, War, Peace and Yes, It's Sunday, God
Posted on April 06, 2008I read this on the wall of the Lincoln Memorial yesterday, after standing on the steps and imagining Dr. Martin Luther King Junior's "I Have a Dream Speech" (video and text here) forty years after his assassination and said to my husband -- "don't you long for leadership like this again?"See what Lincoln has to say about "God being on our side" and the end of negotiations in this short but stirring speech...
Ask for It: How Women Can Use the Power of Negotiation to Get What They Really Want
Posted on April 05, 2008I didn't realize until I got onto the plane out of Seattle that Linda Babcock and Sara Laschever -- our morning plenary session speakers (Women Don't Ask: Negotiation and the Gender Divide) -- have written a new book -- Ask for It -- How Women Can Use the Power of Negotiation to Get What They Really Want...
More Live Blogging from the Seattle ABA ADR Conference: Women Don't Ask and People at the Convention
Posted on April 04, 2008Thanks to Jim Melamed of Mediate.com for the iphone photo taken Friday morning just before the frankly brilliant presentation by Linda C. Babcock and Sara Laschever, authors of the must-read Women Don't Ask, Negotiation and the Gender Divide (men who don't like to negotiate should snap this book up as well -- you can put one of those brown paper covers on it or slip it into the mid-section of Esquire on the plane)...
Ask for It: How Women Can Use the Power of Negotiation to Get What They Really Want
Posted on April 04, 2008I didn't realize until I got onto the plane out of Seattle that Linda Babcock and Sara Laschever -- our morning plenary session speakers (Women Don't Ask: Negotiation and the Gender Divide) -- have written a new book -- Ask for It -- How Women Can Use the Power of Negotiation to Get What They Really Want...
Guilt-Based Apologies as Used in 12-Step Programs
Posted on April 02, 2008Once again, from my article Shame by Any Other Name (etc.) here:Understanding the differences between guilt and shame make even ordinary attempts to apologize and mend relationships damaged by careless, selfish or unkind acts, easier to understand and manage...
Original Faith on the Spiritual Benefits of Forgiveness
Posted on April 02, 2008Though I don't often avert to religion or spirituality, my own values are firmly grounded in mid-century mainstream Protestantism -- most prominent of which are compassion, tolerance, apology, forgiveness, reconciliation and the very real and ever present potential for the redemption of the human spirit...
Mediation Advocacy: Priming Mediator and the Opposition with a Collaborative Brand
Posted on April 02, 2008Can you marry a blog? If so, we're ready to propose to Deliberations, which is packed with more good advocacy tips than we can incorporate into our negotiation blog advice. Today, Deliberation's Anne Reed brings us the following useful information in The Brand Name Brain...
Mediator Ethics: Conflicts of Interest
Posted on March 31, 20081. Steadfast adherence to a strict moral or ethical code. 2. The state of being unimpaired; soundness. 3. The quality or condition of being whole or undivided; completeness. ETYMOLOGY: Middle English integrite, from Old French, from Latin integrits, soundness, from integer, whole, complete...
Apology: Shame, Guilt, Rupture and Repair
Posted on March 31, 2008A friend of mine once told me that "the most successful learning dyad in the history of the world" is the mother-infant/child relationship. Contemporary psychologists who have studied that relationship have discovered that toddlers whose caretakers help them "repair" the loving relationship that existed before the moment shame is elicited, learn guilt and apology instead of chronic shame and denial or withdrawal...
Apology: the Guilt Ridden vs. the Shame Infused
Posted on March 29, 2008(thanks to Beyond Intractability for the graphic)We talk a lot about apology as a means of descalating conflict for the purpose of engaging in successfully mediated settlement conferences and non-mediated commercial negotiations alike. You can bargain with someone who is enraged at (or even merely irritable with) you, but your negotiation will be derailed over and over again as feelings interfere with business judgment...
Changing the Other Guy's Mind
Posted on March 28, 2008Because I'm busy finishing a brief to change someone's mind and Greg May at the California Blog of Appeal is also engaged in making a living instead of answering my idle questions (what? they don't pay us to do this?) he sends along this link at Raymond Ward's blog the (new) legal writer which links to a site we'll all be wanting to visit ChangingMinds...
50 Ways to Leave Your Dating Service Arbitration Agreement
Posted on March 28, 2008You just slip out the back, Jack Make a new plan, Stan You don’t need to be coy, Roy Just get yourself free Hop on the bus, Gus You don’t need to discuss much Just drop off the key, Lee And get yourself free Where matchmaking service moved to compel arbitration of clients’ action alleging that "consulting agreements" were fraudulently induced, and agreements were [within a] class of contracts regulated by state law expressly rendering nonconforming contracts void and unenforceable, agreements’ failure to expressly set forth language required under dating service statutes--Civil Code Sec...
Strategy and Tactics for the Sophisticated Commercial Litigation Negotiator
Posted on March 27, 2008Click on the upper right hand corner and on "view full screen" at the bottom of the drop down menu that appears there. Breakthrough Business Negotiations - Get more free documents
How to Get Your Opponent to the Bargaining Table
Posted on March 27, 2008Lawyers ask me this question more often than any other. This week's Blawg Review Host -- TechnoLawyer -- reminded me that I once wrote a very short article on the topic -- contained in the TechnoLawyer Problem Solution Guide available again at the Blawg Review No...
50 Ways to Leave Your Dating Service Arbitration Agreement
Posted on March 27, 2008You just slip out the back, Jack Make a new plan, Stan You don’t need to be coy, Roy Just get yourself free Hop on the bus, Gus You don’t need to discuss much Just drop off the key, Lee And get yourself free Where matchmaking service moved to compel arbitration of clients’ action alleging that "consulting agreements" were fraudulently induced, and agreements were [within a] class of contracts regulated by state law expressly rendering nonconforming contracts void and unenforceable, agreements’ failure to expressly set forth language required under dating service statutes--Civil Code Sec...
Negotiating En Fran?ais
Posted on March 27, 2008O.K. I took French in high school but all I can say now is très malade because I was so sick in Paris once I thought I would die. Still, French attorney Dominique Lopez-Eychenie has an ADR blog that I have been "reading" for awhile with Babble Fish...
My Readers Ask: How Do You Negotiate with a Sociopath?
Posted on March 26, 2008Above: Tony's last session with Dr. MelfiI told you my feelings, every day is a gift...It's just - does it have to be a pair of socks? Tony Soprano, Episode 74I know what type of negotiation answers people are searching for because my blog's "back end" lists the search terms people use to find me (thanks LexBlog!) This morning, someone was searching for an answer to the question "how do you negotiate with a sociopath?" One of the central "in" jokes of the hit and late lamented HBO series The Sopranos is that you cannot successfully love (Carmela) treat (Dr...
Negotiating En Français
Posted on March 26, 2008O.K. I took French in high school but all I can say now is très malade because I was so sick in Paris once I thought I would die. Still, French attorney Dominique Lopez-Eychenie has an ADR blog that I have been "reading" for awhile with Babble Fish...
Part II of Negotiating Law Firm Happiness in Connecticut Employment Law Blog
Posted on March 25, 2008I've been guest blogging (along with many others) over at the Connecticut Employment Law Blog recently. Yesterday, Daniel Schwartz posted Part II of my article on using conflict resolution techniques and negotiation skills to increase the peace among your partners, whether there be only two of you or more than 1,000...
Conflict Revolution, Mediating Evil, War, Injustice and Terrorism or How Mediators Can Save the Planet
Posted on March 25, 2008Yes you CAN pre order this book now!! Right here. Not ready for the revolution? Read this review by clicking on the upper right hand corner and hitting "view full screen" at the bottom of the menu. Book Review of Conflict Revolution; Mediating Evil, War, Injustice and Terrorism: How Mediators Can Help Save the Planet by Kenneth Cloke reviewed by Victoria Pynchon - Get more free documents
The FAA Constrains Your Ability to Contract Your Own Arbitration Solution: Supreme Court Decides Hall v. Mattel
Posted on March 25, 2008Here's the opinion. Comment later.
Settle It Now Announces the Launch of Forbes.com's Business and Finance Blog Network
Posted on March 24, 2008Forbes.com to Launch Business and Finance Blog Network. Excerpt below: Today Forbes.com, home page for the world's business leaders, announced the creation of a Business and Finance Blog Network, comprised of a community of pre-screened, influential business and financial blogs...
English Professors Do It -- Negotiate that Is
Posted on March 24, 2008The google algorithm throws these random musings on negotiation up to me on a weekly basis because "negotiate" is one of my "google alerts." (have I said god bless google recently?)Almost all legal writing is collaborative, so I feel this English professor's pain...
Would You Like a Helping of Tolerance and Empathy with that Easter Dinner?
Posted on March 23, 2008Red and yellow black and white they are precious in his sight Jesus loves the little children of the world. Lyrics C. Herbert Woolston (1856-1927); Music: George F. Root (1820-1895) (MIDI, score). Root originally wrote this tune for the American civil war song Tramp, Tramp, Tramp...
English Professors Do It -- Negotiate that Is
Posted on March 23, 2008The google algorithm throws these random musings on negotiation up to me on a weekly basis because "negotiate" is one of my "google alerts." (have I said god bless google recently?)Almost all legal writing is collaborative, so I feel this English professor's pain...
Easter Bunny Cross-Examined by Charles Fincher
Posted on March 22, 2008He could have saved himself the humiliation if he'd been willing to mediate his dispute with Bugs Bunny!Thanks for the incomparable Charles Fincher at LawComix! and HAPPY EASTER to those of our blog friends who celebrate it!
John Adams and Ken Cloke's new Book Conflict Revolution
Posted on March 22, 2008(image from Fixing Australia, the Blog)My husband and I were watching part II of the John Adams series on HBO last night -- the part where Benjamin Franklin gives Adams (Paul Giamatti) some OJT on international diplomacy, beginning with -- and I paraphrase -- "you can't get a man to do what you want him to do by publicly humiliating him...
Changing the Other Guy's Mind: Appellate Advocacy
Posted on March 22, 2008See Greg May on prepration for appellate oral argument today:Appellate judges may have a draft opinion prepared, and may rarely change their minds due to oral argument, but — according to at least one justice I’ve spoken to — sometimes they are actually looking for the appellate advocate to give them a reason to change their mind...
Attrition? We Don't Care About No Stinkin' Attrition!
Posted on March 21, 2008I've got a series of guest posts about using conflict resolution skills to set partnership compensation over at the Connecticut Employment Law Blog while employment lawyer and blogger Daniel Schwartz is in trial. So I've been thinking about law firm employment issues a lot lately...
Can't Compel Arbitration if You Deny the Contract's Existence
Posted on March 21, 2008Check out California appellate attorney Greg May's post today -- A Dilemma for Some Defendants Who Seek to Arbitrate here. Excerpt below. It’s a long-held rule in California that a defendant sued on a contract may recover attorney fees pursuant to a provision in the contract even if the defendant prevails on a theory that he was not a party to the contract or that the contract is nonexistent, inapplicable, invalid or unenforceable...
In Celebration of Mediation Week: Legal Story Telling and the Obama Speech
Posted on March 20, 2008I don't know if today's post by Paul Secunda over at Concurring Opinions was penned in recognition of Mediation Week, but it might as well have been. See The First-Person Narrative in Legal Scholarship here -- excerpt below. Allen Rostron[ and] Nancy [Levit's] ...
Help Me Alex, Help Help Me Alex -- Our Friend Judge Alexander Williams Settles the Beach Boys Litigation
Posted on March 20, 2008This case has been knocking around the Los Angeles Superior Court for some time. Though many mediators have tried to settle it, the case resisted resolution until it came into the full-time settlement court presided over by our friend and fellow Straus Institute-Adjunct Professor Judge Alexander Williams, III during California Mediation Week! Good work Judge! And if you've ever spent any time with Judge Williams, you too would be saying, as I am, "he has all the fun!"Fun report below: While the lawyers were in chambers with Williams the first day, Jardine and Wilson sat in the audience and chatted, occasionally singing lines from "Help Me Rhonda" -- for which Jardine was the lead singer -- and "Tom Dooley," the Civil War-era folk song made famous in a version by The Kingston Trio...
More on Knowing What You Want Before You Negotiate for What You Need
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Yet Another Arbitration Clause Bites the Dust
Posted on March 16, 2008When we bought our house 6 years ago, Mr. Thrifty struck all ADR provisions from the sales contract. He's come to respect ADR much more in the last few years. Still, I believe he'd choose access to the justice system over its alternatives...
Achieving Your Heart's Desire: A Very Brief "How To"
Posted on March 16, 2008Why talk about achieving your heart's desire in a blog dedicated to negotiated resolutions of disputes? Because you must know how you value a thing before you can even begin to think about negotiating a price for it.This week, over at the Connecticut Employment Law Blog, Part II on my series of posts on negotiating partnership compensation will appear...
Prostitutes, Strippers and Forgiveness
Posted on March 13, 2008Sex scandals. Terrible? Shocking? Repugnant? How about forgiveable? As someone who has made the resolution of conflict a full-time job, I can tell you that forgiveness -- explicit or implicit -- is a critical factor in every successful settlement...
Los Angeles Superior Court Judges Alexander Williams, III and Helen Bendix Talk About Settlement Conferences, Mediation Strategy and Tactics, and the Administration of Justice
Posted on March 12, 2008The prestigious Straus Institute for Dispute Resolution has a new web site -- HERE!!! -- and a few videos that the beginning mediation or settlement advocate shouldn't miss.Here's Judge Williams, who sits in the downtown Los Angeles Superior Court as a full-time settlement judge...
We're Ready for Our Close-Ups, Mr. DeMille: Med-Arb Ethics Video
Posted on March 12, 2008Along the Borderline Straus Institute Instructional Video (time 16:05)Alternative Dispute Resolution (ADR) processes address a variety of client needs. In different situations, different approaches best meet the needs of particular clients. As ADR practitioners skilled at delivering a variety of processes, the question of when it is appropriate to mix approaches arises...
Smart Bloggers Who go to Trial Expand the Pie
Posted on March 12, 2008What's the secret of a happy law-life? Being right? No!Delegating responsibilities. That's what Connecticut employment lawyer and blogger, Daniel Schwartz, has done while he's trying one of those employment cases that resist negotiatied resolution...
Conflict Map
Posted on March 12, 2008Conflict Map with Credit to Richard Reuben_2_[1] - Get more free documents
Mediation Confidentiality in California
Posted on March 11, 2008Confidentiality in Settlement Negotiations and Mediation - Get more free documents
Mediation Week in California March 16-22, 2008
Posted on March 10, 2008MediationWeek[2] - Get more free documentsThanks to Kevin Forrester for the head's up here!
You Have Coverage for That? Finding Your Bottom Line
Posted on March 10, 2008How important is insurance coverage to your clients' decision to bring or defend or negotiate the resolution of a commercial dispute? It's usually the difference between having options and being entirely out of luck.And when that decision concerns catastrophic losses? Unless you are an insurance coverage specialist, you make coverage decisions at your peril...
Let's Just Go Ahead and Assume that, Torture or Not, Waterboarding is A-O.K. The Very Bottom Line? "Torture is Essentially Useless"
Posted on March 08, 2008I don't make this stuff up. Read Pray and Tell from the American Prospect Online Edition by Jason Vest, excerpt below and full article here. ON MAY 13, 2004, AS THE WORLD MEDIA WERE IN full serum over Abu Ghraib, an FBI agent who had spent time interviewing terrorism suspects at the U...
A Dark Day in America: Torture Veto Vetoed
Posted on March 08, 2008Being "neutral" does not mean we check our common human decency at the door. Do understand this however. When we are feeling frightened and disoriented, anger and its explosive cousin rage, consolidates our sense of self. This is one of the main reasons why aggression is so emotionally satisfying...
Peace in the Law Firm: What Do Women Lawyers Really Want?
Posted on March 07, 2008(collage by artist Tamar Factor)I'm ridiculously excited to announce that the new issue of The Complete Lawyer is out and that it focuses on women's legal careers -- see The Complete Lawyer's What Do Women Lawyers Really Want here!Publisher Don Hutcheson has added an ADR column to his brilliant work-life-balance journal -- The Human Factor -- written by my good blogger buddies Stephanie West Allen of idealawg and Brains on Purpose, Gini Nelson of Engaging Conflicts, and Diane Levin of the Mediation Channel...
Negotiation Coaching from Down Under
Posted on March 06, 2008Take a look at Geoff Sharp's Mediator Blah Blah post today about mediation coaching. Here are five different ways in which a mediator can coach a party to achieve more from the negotiation than he might otherwise be able to achieve without assistance:1...
Peace in the Law Firm? The Snark Says: Fess Up
Posted on March 06, 2008(right: Calvin Coolidge, Zelig and Herbert Hoover)Soon, the Complete Lawyer's Human Factor Columnists (first appearance, Vol. IV, Issue 2 /*) are going to be addressing the ways in which you can use conflict resolution techniques to create, or restore, peace in your law firm...
"Coerced to Settle By Attorneys"
Posted on March 05, 2008Sometimes reading my statistics page is the best way I have of taking the pulse of my readers and diagnosing the current actual rather than the aspirational state of settlement and mediation practice.Listen. Only the squeakiest client or party wheel will tell you that he is feeling coerced into settling the litigation that has become a millstone around your neck...
Vioxx Settlement Update from the New York Times
Posted on March 04, 2008The New York Times Reported today that 44,000 people have signed up for the Vioxx settlement here. Excerpt below. For full report click on link.More than 44,000 people have signed up for a piece of a $4.85 billion settlement over the withdrawn painkiller Vioxx, a sign that the deal is on track to go forward, the drug’s maker, Merck & Company, announced Monday...
Chain of Custody with Electronic Documents: Another Reason I'm Glad Not to Be Practicing Law Anymore
Posted on March 04, 2008But if you are still practicing law, download this great practice guide from Merrill-Legal Maintaining the Chain of Custody in Civil Litigation.
The Power of Persuasion: Obama's Oratory
Posted on March 04, 2008If the political season(s) have gotten too serious for you, check out I've Got a Crush on Obama below. Moment of Nostalgia: When I was in high school, I was too frightened to compete in the impromtu or extemporary speech categories and too lazy to prepare all those 3x5 cards for debate...
It's Time to Begin Distinguishing Between Good and Bad Mediation Practice
Posted on March 03, 2008Geoff Sharp over at Mediator Blah Blah cites one of New Zealand's top trial lawyers as saying that mediation "struck him as a 'dishonest kind of process'" explaining: At one mediation I attended the mediator, who was the most eminent mediator in Australasia, put a 50c coin on the table and said to the parties, "this coin is like litigation, it could fall on either side...
Arbitrator Not Liable for Assault During Recess
Posted on March 03, 2008Why do you think they call it recess?When tempers flare to the boiling point, arbitrators who fail to prevent recess assaults are immune from suit according to the New Jersey appellate court, as detailed in this Law.com article, Arbitrator is Not Liable for Attorneys Alleged Assault here...
Mediation Advocacy: The Story of Mediation
Posted on March 01, 2008Compare the hilarious Bob Newhart routine above (from Mad TV) with any episode whatsoever of HBO's new series about psychoanalysis The Treatment. In legal/mediation terms, Bob Newhart's "treatment" -- "just stop it!" -- is akin to the mediator's refrain -- "move past it," "get over it" or simply "move on...
ABA Dispute Resolution Conference in Seattle in April!
Posted on March 01, 2008The ABA Section of Dispute Resolution Presents The 10th Annual Spring Conference Pacific Currents: Sound Perspectives on ADR April 3-5, 2008 Pacific Currents: Sound Perspectives on ADR is the premiere conference in the world for dispute resolution professionals and lawyers engaged in dispute resolution processes...
Why the Legal Blogosphere? Try Ken Adams
Posted on February 29, 2008O.K., from time to time I draft a brief for someone. It keeps my hand in the game and REALLY -- it's MUCH EASIER to make $$$ doing what I did for 25 years than for what I've been doing for four. I have HIGH HOPES that my research and writing mini-career will soon be shut down by my ADR career, but in the meantime ...
The Peace Symbol Turns Fifty
Posted on February 28, 2008Thanks to Dominique Foucart at Réseau Médiation for directing us to the web site of the 50th Anniversary of the Peace Symbol here -- which we picked up in Dominique's weekly column -- this week in the anglophone blogosphère...
Contract Negotiations: "a Sophisticated Ballet Often Ending in Mid-Pirouette"
Posted on February 28, 2008Negotiations of the type I mediate on a regular basis are rarely the subject of appellate opinions -- at least not the part of negotiations we call the "dance." Having stumbled across this opinion while searching for something else, I couldn't resist the pulll of posting it here -- both for my readers' enjoyment and, frankly, using the blog as my own personal filing cabinet for some of my favorite appellate opinions (yes, I am a geek!)...
Check Out This Terrific Power Point Presentation on Commercial Mediation Ethics
Posted on February 27, 2008(right, me and Geoff -- not the most flattering photo of either of us but proof that we blogging mediators do in fact get together in "real time" and geographical space from time to time)Thanks to Geoff Sharp for posting Dwight Golann's and Ellen Waldman's Power Point on Commercial Mediation Ethics, courtesy of Professor Michael Moffit at the ADR Prof Blog here...
Mediation Advocacy: The Litigation Narrative
Posted on February 27, 2008In the middle of the journey of our life I came to myself within a dark wood where the straight way was lost. Dante Alighieri When the journey turns from litigation to mediation, it's helpful to remember that we litigators are classic Hollywood hyphenates -- the writers-directors-actors of our client's story -- and that our client has generally moved more and more into the background as the "executive" producer, i...
Mediation Advocacy: How to Help Your Client Help You Help Him
Posted on February 26, 2008Help me... help you. Help me, help you. Jerry McguireTwo short-short stories. Both to acquaint you with who I was as a litigator and how I can help you as a mediator.A Born MoralistI was on the telephone with my client talking about a Rand Corp...
Barack Interest-Based and Hillary Zero Sum?
Posted on February 25, 2008The Daily Kos speculates on Hillary and Barack's different negotiation styles as being attributable to the lack of negotiation classes in the law schools of Hillary's and my era and the presence of those classes in Barack's era here.Maybe that's why Obama appeals to me so...
Cross-Cultural Negotiation Insights from the Kellogg School of Management
Posted on February 25, 2008When you mediate disputes in a major urban center like Los Angeles, you do a lot of cross-cultural negotiation as a matter of course. I've relied in the past upon the Kellogg School of Management's Leigh Thompson and am happy to report that one of her fellow professors, Jeanne Brett has devoted an entire book to the intricacies of negotiating across cultural lines...
Off-Shoring Dispute Resolution to India?
Posted on February 25, 2008The Hindu News Update Service reports on the emergence of online dispute resolution in India here. Let me just say this. There cannot be too many people practicing mediation. There can only be too few.Excerpt below.Online Dispute Resolution involving mediation and arbitration with the help of technology, was emerging as a branch of dispute resolution, Chief Justice of Kerala, H L Dattu said on Saturday...
Diane Levin and Jim Melamed on Presidential Negotiation Styles
Posted on February 25, 2008There is no golden age, nor any "right" candidate (I'm still hoping for a Clinton-Obama ticket and no I don't care whose name is above the title; I'm for marrying vision with experience instead of wasting everyone's considerable contributions on a Democratic firing squad -- a CIRCLE)...
Negotiating a Culture Inimical to Emotional and Physical Abuse
Posted on February 24, 2008I saw Athol Fugard's disturbing play Victory tonight at the Fountain Theatre (local L.A. Weekly Review here). As the Weekly writes, "[w]here and how to direct one's rage is the drama's unanswerable, theological question."I returned home to a reader comment on my Zimbardo post Avoiding Evil and Promoting Good, directing my readers to the Situationist which recently posted a Zimbardo lecture: Genocide to Abu Ghraib: How Good People Turn Evil...
And the Gutsy Arbitrator Award of the Decade Goes to . . . .
Posted on February 23, 2008. . . the Honorable Sam Cianchetti, Los Angeles Superior Court Judge (ret.) for his decision awarding $8.4 million in punitive damages, for a total $9 million award, against Health Net In the Arbitration between Patsy Bates and Health Net, et al...
Negotiation, Mediation, Legal Careers, and the Rule of Law
Posted on February 23, 2008For more hilarious law cartoons by the fabulous Charles Fincher, click here.Yesterday, I had the distinct pleasure of speaking to, and then participating in a mock mediation with, Lisa Klerman's USC Law School Mediation Clinic students.Among these bright, energetic, earnest law students are some who would like to make mediation a career before a period of sufferance in the rights and remedies business...
Riegel v. Medtronic: An Opportunity for Industry and the Government to Do the Right Thing
Posted on February 21, 2008What does the decision in Riegel v. Medtronic have to do with dispute resolution? A lot if we collectively pause to commit ourselves to using this calamity/victory as an opportunity to benefit both industry and the public at the same time...
Upcoming International Dispute Resolution Conferences
Posted on February 21, 2008These items come unsolicited in my email box. I'm not recommending, but simply sharing, them with you.The Australasian Forum for International Arbitration (AFIA) will hold its 13th Symposium in Hong Kong, on Saturday, 8 March 2008. Attendance is free of charge...
Proud Supporter of the Rule of Law in America
Posted on February 20, 2008I know I've steered pretty wide of negotiation recently. But I worry about the preservation of the Rule of Law against the forces of benevolent conflict management on the one hand (see yesterday's post on harmony vs. justice here) and the stated enemies of the Rule of Law on the other (see Lawfare: Peace without Justice is Tyranny here)You can't negotiate with in a dictatorship...
How to Make Your Opponent Do What You Want Him to Do: Public Dialogue
Posted on February 19, 2008"Even if your intention is to bring people together, you have to let them decide whether they want to be together." Ken ClokeYou already know the answer to the question posed in this series of posts but I'll say it anyway. You can't possibly know what you want your opponent to do until you have the opportunity to sit down together to determine what would benefit the two of you the most...
Paternalism, Self-Determination and the Rule of Law
Posted on February 19, 2008I return from the Mediators Beyond Borders Founding Congress in Colorado with much to think, and write, about.Let me begin today by telling you a story drawn from my community mediation practice. The Parties vs. The LawyersCrystal and Keith /* are the unmarried parents of a seven year old girl, Taniyah...
The Paradox of Power: Trying to Get Your Opponent to Do What You Want: Another Interlude
Posted on February 17, 2008Minor wisdom from today's break-out session at the Mediators Beyond Borders Founding Congress.You give others power over you by attempting to get them to do what you want them to do. Ask any parent in a supermarket with a two-year old. The only power the 2-year old has is not to do what you want him to do...
Money and Power: How to Make Your Opponent Do What You Want Him to Do: An Interlude
Posted on February 16, 2008Report on Day Two of the Mediators Beyond Borders Conference later this evening. Now, because Jens Thang from the Negotiation Guru dropped by to comment on Ken Cloke's list of ways we resist change, I'm linking to a recent N.G. article on power...
How to Make Your Opponent Do What You Want Him to Do: Part I
Posted on February 16, 2008I'm blogging from the Stanley Hotel -- hence the Stanley Steamer -- in the Rocky Mountains -- hence the snow. Stephen King wrote the Shining here, not in my room, but right down the hall. The book was Inspired by the Stanley. Hence the picture of Jack...
A Valentine to Kevin O'Keefe of LexBlog for His Birthday
Posted on February 14, 2008I've never actually met Kevin O'Keefe, the founder of LexBlog, but I owe him a great debt of gratitude for dropping by my old blogger site one day to say he liked a post of mine. The rule of reciprocity and -- more importantly -- of curiosity, made me click on Kevin's Real Lawyers Have Blogs...
Readers! Tell the Cal Blog of Appeal How You Use Legal Blogs
Posted on February 13, 2008Greg May over at the California Blog of Appeal wants to know -- and may well use your response in one of his upcoming presentations. I think it would be good for Greg (and the rest of us!) to hear particularly from non-blogger lawyers...
One Hundred Articles at Mediate.com for Valentine's Day
Posted on February 13, 2008O.K., they're not exactly articles. They're posts. It's much much easier to write a post than it is to write an article (N.B. IP ADR BLOGGERS!!!) Maybe it's just me, but I get more miles per gallon out of reading a blog post than an article...
Why You Should Read Making Mediation Your Day Job
Posted on February 12, 2008Making enough money doing what you love to do? No?Butcher, Baker, Candlestick Maker, Doctor, Lawyer, Native American Chief, here's the book you must buy and read immediately -- Making Mediation Your Day Job: How to Market Your ADR Business Using Mediation Principles You Already Know First, Mediation Earth Mother, Scholar and Entrepreneur, Diane Levin's review:Shakespeare once wrote, "This above all: to thine own self be true...
And Now a Word from Our Sponsor: Marketing You, Inc.
Posted on February 12, 2008O.K. Big confession. In 25 years of legal practice, I never developed a book a business. Not one page. Not even a post-it note. Which puts me in mind of a Hugh (Gaping Void) McLeod drawing.Other than to urge you to run right out and buy Dr...
Note to Board of Directors: Women Make a Positive Difference
Posted on February 11, 2008Why diversity? Uh . . . . because that's how life successfully evolved on planet earth?Now a new study prepared by Ontario's Richard Ivey School of Business and the Wellesley Centers for Women concludes that corporations benefit from the presence of women on the Board of Directors in Critical Mass on Corporate Boards: Why Three or More Women Enhance Governance...
Trial Mediation and Justice -- the Judge Who Urges Settlement
Posted on February 10, 2008Thanks to Tulane Law School Professor Alan Childress over at the Legal Profession Blog for alerting us to this item No Bias on Encouraging Settlement about a Rhode Island Supreme Court ruling that a Judge needn't recuse himself for bias if he encourages the parties to settle...
Welcome to the Blawgosphere Civil Negotiations and Mediation
Posted on February 09, 2008Nancy Hudgins, a California lawyer-mediator, has a new blog -- Civil Negotiation and Mediation. She describes her mission this way:I chose th[e name Civil Negotiation and Mediation] three reasons. I will be discussing negotiation strategies in civil litigation...
Sex Text Hex
Posted on February 08, 2008Thanks to the ABA Journal for giving me the opportunity to use the word "sex" in a negotiation blog. Alas, our wayward human hearts -- and libidos -- will never stop leading us into endless acts of mischief. See below from Judge Shines Light on Secret Pact to Settle, Hide Text Messages...
Want to Understand Your Jury Pool? Watch Campaign News
Posted on February 07, 2008Trial attorneys, negotiators, mediators and settlement judges all share the same essential concern -- how to reach and persuade our audience. Trial lawyers have a product to sell -- their client's narrative -- which is always just one version of the "truth...
Writing on a Piece of Rice in a World of Injustice
Posted on February 07, 2008I often find myself explaining lawyers to their clients and clients to their attorneys. Here are some typical client complaints I hear about their litigator attorneys: he tells me to forget about the most important losses I've suffered she keeps editing my story I don't understand why I can't ...
Attorney Not Held to Higher Standard When Negotiating with Known Felon
Posted on February 06, 2008Take a look at Law.com's article Settlement Agreement in Spotlight as Legal Malpractice Case Against Duane Morris Begins. The legal malpractice action subject of that article is notable for what must be a ruling of first impression -- that an attorney may not be held to a higher standard of care in negotiating a settlement agreement "simply" because he knows his client's negotiating partner is a convicted felon -- at least not unless an expert testifies that a higher degree of caution should be exercised...
The Negotiation Guru Tells You to Be Classy!
Posted on February 01, 2008Check out last November's post on Negotiation Guru, How to Be a Classy Negotiator. Excerpt below:Classy negotiator?! Is there such a thing? I believe there is. A negotiator is not always about being competitive, collaborative, avoiding and the whatnot...
There's a New Mediator on the Blog Block Talking "True" and "False" Mediations
Posted on January 31, 2008Let's welcome New York attorney-mediator Christian S. Herzeca of Mediation Mediations to the blogging block and thank him for joining the conversation about what "true" mediation really is. Who is to say that a mediator is truly practicing true or false mediation? I attended a conference regarding mediation in personal injury cases, where insurance company defendants were discussing the relative merits of mediation versus showing willingness to go to trial...
Follow the Money: Coverage 101 and 2007 Fifty State Analysis of Coverage for Environmental Damage Liability
Posted on January 31, 2008I was a commercial, antitrust, IP and securities litigator long before I devoted nearly a decade of my practice to environmental coverage litigation. In the process, I learned enough about Comprehensive General Liability ("CGL") coverage to make me worry about how well I'd served my commercial clients in regard to the insurance coverage potentially available to them...
EVALUATIVE, FACILITATIVE, TRANSFORMATIVE, DIRECTIVE, OH MY!
Posted on January 30, 2008Because a reader recently suggested that "facilitative" mediators "tell the parties what to do," I decided it was time to revisit our terminology. Mediators! Litigators! Please feel free to weigh in!FIRST, LET'S JUST GO AHEAD AND ADMIT UP FRONT THAT NEGOTIATION IS A COMPETITIVE SPORT -- the goal of which is to take the largest part of the delta between the two parties' real bottom lines...
Mediation with a Mugger?
Posted on January 30, 2008Thanks to Geoff Sharp for this item picked up from this post over at the Legal Profession Blog:The Goetz example [of poor Bernhard having to mediate with his mugger] was used well to argue that law and courts have important social value, in many kinds of cases, that go way beyond dispute resolution, or even trendy alternative dispute resolution, in a classic article by Albert W...
Impeaching Witnesses in Depositions to Improve Your Bargaining Power
Posted on January 29, 2008(click on photo at right to purchase text)How do you achieve the best result for your client in a settlement conference or a mediation? By having done as much good work to support your own case and destroy your opponent's before you discuss settlement...
Our Man in Iraq on the State of the Union
Posted on January 29, 2008The Negotiation Law Blog's dear good friend, Mark Robbins, pauses in his work to make sure we didn't miss the President's reference -- in his State of the Union address -- to the work Mark is doing in Al-Hillah, Iraq. And they saw our troops, along with Provincial Reconstruction Teams that include Foreign Service officers and other skilled public servants, coming in to ensure that improved security was followed by improvements in daily life...
We Add Legal Frontier to Our Blog Roll
Posted on January 25, 2008If you haven't checked out our blog roll page lately, you might want to take a look here. These are the blogs we actually read both here and over at the IP ADR BLOG. We just this morning added the new "Legal Frontier" blog, whose author describes himself and his blog as follows:My name is Andrew Mitton and am the author of Legal Frontier...
Should You Raise the Spectre of "CSI" Juror Bias at a Mediation?
Posted on January 25, 2008Listen, if corporate entities believed they couldn't overcome juror bias, they would never try a case. How to accomplish that feat is the difficult task of every great trial attorney who represents a corporate defendant. Despite the research cited below, I do not suggest that plaintiffs' attorneys, as a matter of mediation strategy, suggest to corporate defendants that they will lose at trial because of juror bias...
DIY Dispute Resolution: Accountability, Apology, Forgiveness and Reconciliation
Posted on January 24, 2008When I was mediating the resolution of litigation on my local court-annexed ADR panel, I used to help attorneys, their insurance adjusters and physician clients resolve medical malpractice cases. Some of my most profound human interactions occurred in these mediations...
Another Consumer Arbitration Agreement Bites the Dust
Posted on January 22, 2008This one is Lowden v. T-Mobile USA decided today by the Ninth Circuit.We conclude that the Washington State Supreme Court’s decision in Scott v. Cingular Wireless, 161 P.3d 1000 (Wash. 2007), establishes that T-Mobile’s arbitration provision is substantively unconscionable and unenforceable under Washington state law, and that there is no federal preemption in light of our decision in Shroyer v...
Need a Bankruptcy Mediator? Try Judicate West Hearing Officer and Buchalter Attorney Benjamin S. Seigel
Posted on January 22, 2008Because I've had several people land on my Negotiation Blog looking for a bankruptcy mediator, I thought it would be a public service to introduce my readers to Buchalter bankruptcy attorney and Judicate West mediator, Benjamin Seigel.Mr. Seigel has published several articles on the practical aspects of mediation of business disputes and has served as a mediator for the United States Bankruptcy Court for the Central District of California since 1995...
Do It Yourself: The Most Effective, Personally Satisfying and Least Costly ADR
Posted on January 22, 2008I'm in the middle of reading two books, both of which should be on every mediator's night table -- Final Exam, A Surgeon's Reflections on Mortality by Pauline W. Chen and Faith-Based Reconciliation: A Moral Vision that Transforms People and Society by Canon Brian Cox...
Negotiating Retail: Buy the Suit and Take the Shirt and Tie for Free
Posted on January 19, 2008It is mediation creed that Americans don't like to bargain. If they did, there probably wouldn't be mediators or Hollywood agents.Now the New York Times tells us why. After World War II, we had a virtual monopoly on consumer goods. Our negotiation skills took a hike in the woods and never returned...
What Every Mediator Wishes Every Lawyer Knew About Negotiation
Posted on January 19, 2008(image: Avi dancing by Tamar Factor)Because I cannot say it any better than this, I am simply excerpting the Conflict Research Consortium's article on Principled Negotiation. You don't have to be an expert in this -- your mediator is...
How Rich are We? A Modest Response to Geoff Sharp's Mediator Salary Post
Posted on January 18, 2008Before a wave of emotional despondency descends upon rank-and-file mediators from Geoff Sharp's revelation that median mediator income hovers around $67,000, let's get a little perspective.First, if you are making $67,000 per year, you are the 52,428,447 richest person in the world and are in the top ...
The ABA Approves the Oxymoron of Collaborative Litigation
Posted on January 18, 2008The ABA Ethics Committee has given the green light to collaborative law agreements -- considered unethical in Colorado -- so long as the clients give their informed consent. See Putting a Kinder Face on Litigation. Excerpt below: “When a client has given informed consent to a representation limited to collaborative negotiation toward settlement, the lawyer’s agreement to withdraw if the collaboration fails is not an agreement that impairs her ability to represent the client, but rather is consistent with the client’s limited goals for the representation...
Writers Guild Ready to Negotiate in Wake of Directors' New Deal
Posted on January 18, 2008The Writers' Guild Responds with Predictable Petulance -- Analysis Later Now that the DGA has reached a tentative agreement with the AMPTP, the terms of the deal will be carefully analyzed and evaluated by the WGA, the WGA's Negotiating Committee, the WGAW Board of Directors, and the WGAE Council...
Directors' Guild Announces Tentative Deal with Producers
Posted on January 18, 2008Director's guild press release below. Analysis will follow.LOS ANGELES - The Directors Guild of America (DGA) announced today that it has concluded a tentative agreement on the terms of a new 3-year collective bargaining agreement with the Alliance of Motion Picture and Television Producers (AMPTP)...
Battleships, Litigation and Separate Caucus Mediation
Posted on January 18, 2008When people used to ask me what it was like to practice law, I compared litigation to the childhood game of battleships ** -- a game I recall playing with great avidity.So what does battleships have to do with yesterday's mediation? Until you are negotiating in the zone of possible agreement, you have no way of knowing how close you've come to resolution...
JOB ANNOUNCEMENT: SENIOR MEDIATOR/FACILITATOR IN SAN FRANCISCO
Posted on January 15, 2008Kearns & West, a mediation and communications firm specializing in water, energy, natural resources and environmental mediation, collaboration and public involvement, seeks: A seasoned mediator/facilitator or public involvement expert to join the firm’s San Francisco office, or A mediation/collaboration/public involvement firm or 2-5 person group that is interested in joining K&W, and/or A seasoned mediator/facilitator or public involvement expert or small firm interested in joining the firm in other locations...
JOB ANNOUNCEMENT: DIRECTOR OF TRANSFORMATIVE MEDIATION CLINIC ON LONG ISLAND
Posted on January 15, 2008This job announcement just in from Hofstra University School of Law --January 15, 2008 From Robert A. Baruch Bush, Professor, Hofstra University School of Law Transformative Mediation Colleagues: I'm writing to inform you of a great opportunity to work as the director of a Transformative Mediation Clinic at Hofstra Law School, in New York, where I teach...
Geoff Sharp Returns with a Mediation Puzzler for the New Year
Posted on January 15, 2008Welcome back from vacation Geoff! We do miss your voice.Readers -- here's Geoff's slightly edited vacation story coupled with a mediation puzzler! there we were - just after Christmas - on a main highway at the bottom of the South Island of New Zealand and crossing a one-way road/rail bridge...
More Commentary on the Licensing of Mediators
Posted on January 14, 2008The word "license" is obviously a red flag in the mediation community -- so red that no one has yet picked up my thread of "best practices and standards." Frankly, I worry a little more about best practices and standards than licensing...
Resolving Moral Conflicts
Posted on January 14, 2008As you can imagine, I have a lot to say about the resolution of conflict -- and the negotiation of solutions -- where moral beliefs are implicated and non-negotiable. Because I don't have time, I'm leaving you with the end of an excellent, must-read Sunday New York Times Magazine article by scholar Steven Pinker -- author of How the Mind Works -- entitled The Moral Instinct...
It's About Fairness, Dummy!
Posted on January 14, 2008(right: is the key to settlement really money?)This is the dialogue I often have when attorneys (and some mediators!) suggest to me that the settlement of litigation is "only" about money.V[ickie]: "Why do people seek out your services?"A[ttorney]: "Because [i...
The Time Has Come for Licensing and Best Practices
Posted on January 14, 2008I've long been saying it will take a tragedy following services provided by unqualified mediators before the States will move in to set standards and require licensing. Here's the first breath that will stir the leaves of change in Sacramento...
Conflict in Our Own Backyard: Should Someone Accept Clooney & Hanks Offer to Mediate the Writers Strike
Posted on January 13, 2008Finally an excuse to post a photo of the world's sexiest man on my blog!The excuse?Professor Carrie Menkel-Meadow's Concurring Opinion Post Can Actors Do Everything? letting us know that George Clooney and Tom Hanks have offered to mediate the writers strike as follows:George Clooney, Tom Hanks and other actors have offered to step in and "mediate" the writer's strike...
Why Happy Lawyers are Happy: From the Declaration of Independence to Neuroimmunity
Posted on January 12, 2008My brilliant and talented step-son who is beginning legal practice this coming Monday is worried about career satisfaction. When I suggested that he read my "Why Lawyers are Unhappy" article, he said, "I'd far prefer to read an article about why lawyers are happy...
Live and Free Vioxx Settlement Forum Conference
Posted on January 10, 2008Thanks to Drug & Device Law for pointing us to the CSPAN video of a recent forum on the VIOXX settlement here.This American Enterprise Institute forum will not be beneficial to plaintiffs who are searching for advice on whether to accept the settlement themselves...
The Limitations of Legal Practice are Highly Exaggerated: Our Lawyer in Iraq Reports from His New Post
Posted on January 09, 2008I'm finally here in Al Hillah, Babil Province, Iraq. The journey went from DC through London, included a night in Amman, Jordan and one week at the U.S. embassy in the Green Zone in Baghdad. I took a C17 between Amman and Baghdad and a Blackhawk between Baghdad and Hillah...
Los Angeles Grand Jury Pursuing Cyber-Bully Suicide Case
Posted on January 09, 2008We've covered cyber-bullying here before as well as organizational bullying at the IP ADR Blog here. As regular readers know, the new issue of the Complete Lawyer is dedicated to bullying by and of lawyers with my own confessional of a little workplace bullying here...
Best Law Blog News of the New Year: Professor Menkel-Meadow to Guest Blog at Concurring Opinions
Posted on January 07, 2008(pictured, Professor Carrie Menkel-Meadow)Let's face it. There is not a lot of seriously thoughtful, informed and scholarly discussion of mediation going on. But now there's some really really good news. One of the most sophisticated scholars in the discipline -- Professor Carrie Menkel-Meadow -- will be a Concurring Opinions Guest Blogger during the month of January...
What it Takes to Settle a Case is What it Takes to Be a Great Trial Lawyer
Posted on January 07, 2008Getting Your Ducks in a RowCheck out Day on Torts for What it Takes to be a Great Trial Lawyer.Why are these abilities the same as those required to settle a case on the most favorable terms? Because trial is the Best Alternative to a Negotiated Agreement...
The Lawyers Speak: What Counsel Look for in a Mediator
Posted on January 07, 2008Take a look at the answers Colm Brannigan has gotten on LinkedIn to his New Year's question: What Qualities Do Counsel Look for in a Mediator here.This is a topic about which there should be an on-going conversation between lawyers and mediators...
The NYTimes Dissects Lawyer Unhappiness with a Note on Following Your Dreams
Posted on January 06, 2008If you haven't seen it referenced by a hundred law blogs already, here's your link to the New York Times article The Falling-Down Professions, parsing not only legal, but also physician unhappiness.Of all the fool's gold mentioned there (property, power and prestige) the article does contain one note of true value that attorneys might be missing in their practices:Especially among young people, professional status is now inextricably linked to ideas of flexibility and creativity, concepts alien to seemingly everyone but art students even a generation ago...
The Forthright Negotiator Principle? Who Knew?
Posted on January 05, 2008I don't purport to have been around longer than Moses, but I have been pretty actively engaged in the interpretation of contracts since the early 1980's. So it comes as a little bit of a surprise to hear of a contract construction doctrine -- even one from out-of-state -- that I've never heard of before...
Make it Rain, Make it Rain, Make it Rain
Posted on January 04, 2008We know it's short notice, but if you can make it to the Ritz Carlton in San Francisco on January 15 (and shouldn't any excuse do?) don't miss the Lexis/Nexis Women in the Legal Profession Summit -- Rainmaking, Negotiating and Collaborative Development...
Do Good Looking People Negotiate Better Deals?
Posted on January 04, 2008Both the Wall Street Journal Law Blog (Do Looks Matter in the Law?) and the ABA Journal (Good-Looking Lawyers Make More Money) are reporting -- the WSJ beside a photo of the none-too-beautiful but apparently universally "sexy" Matt Damon -- that good looking people -- even those in the legal profession -- make more money than their less comely peers...
Money and Morals: Ethical Underwriting and Insurance Claims Practices
Posted on January 04, 2008This blog follows insurance coverage issues from time to time because insurance reimburses us for losses; litigation presumes loss; and, the negotiated resolution of litigation requires the parties to understand the benefits and limitations of everyone's insurance policies...
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