From Mediation Channel

The saga of Carrie Prejean, the Miss California contestant for the Miss USA pageant who came out against gay marriage, had a picture of her breasts “accidentally” exposed during a photo shoot, and who sued the Pageant, which then countersued to get back their money for her breast implants, and who then settled the case when a sex tape was discovered of her, is still in the news.  But this time, she took on Larry “Inappropriate” King for the ultimate fight about mediation confidentiality. 

Here is a brief discussion of her interview in the Examiner….

Carrie Prejean nearly walked out of the Larry King show after calling Larry King inappropriate. Larry King asked Carrie Prejean about the sex tape that she made for her boyfriend.

“All right, let’s get to an embarrassing part for you and how you are handling it. You recently confirmed that when you were 17, you made what you call a private video, a sexual-type tape that you sent to your boyfriend. Have you seen the video?” Larry King asked.

Apparently, Carrie Prejean wasn’t interested in speaking about the sex tape and answered Larry by saying, “You know, I don’t think that’s the important issue, Larry. I think that, you know, there’s a video out there of me that I sent to my boyfriend at the time. And it was for private use. But does that justify my actions? No. And I take complete responsibility for the decisions that I made when I was a teenager. And I’ve learned a lot from it.”

Larry King asked Carrie Prejean if she told anyone at the Miss USA pageant about the video, she answered no and reminded the public that she wasn’t fired for any moral clause. Larry then asked Carrie Prejean if she planned to pursue legal action to block the video from being made public, especially since she was underage when the video was made. It was at this point that the ‘inappropriate’ behavior began.

Carrie Prejean answered,” You know, everything that was discussed, Larry, in mediation is completely confidential. And it seems as though I’m the only one holding up to that contract. So, if that’s the case, then I will stand by that contract, and abide by it.”

Larry King continued to press further, “Did you get a settlement?”

Again, Carrie Prejean answered, “That’s completely confidential. There was a confidential mediation. And I don’t think that needs to be discussed right now.”

Larry King broke for a commercial break but picked the topic back up shortly after Carrie Prejean called Sarah Palin her hero.

Larry King asked Carrie Prejean, “We’re back with Carrie Prejean. She’s the author of “Still Standing.” That book is available everywhere. We’ll take a call or two for Carrie in a moment. You sued the pageant after they fired you. They counter-sued. And then you accused them of a number of things including religious discrimination, clearly an issue very important to you. Why did you settle? You don’t have to tell me the terms of the settlement. But why settle, since you had a fight to carry on?”

To see the remainder of the interview, click here.

This interview, however, brings up the issue of what is confidential and what is not in mediation.

First, not everything about mediation is confidential.  It is not like in the Movie or show Get Smart where once something involves mediation, there is a cone of silence.  However, the question, did you get a settlement would remain confidential assuming the settlement agreement had a confidentiality clause.  If there was no confidentiality clause in the settlement agreement, then the fact of the settlement and the amount would not be confidential.  This is because the check, the release, and other documents would exist outside of the mediation process.

Ms. Prejean’s answer to the question of why settle is not covered by confidentiality.  Her own thought process exists outside of the mediation.  The terms of the settlement remain confidential due to the confidentiality clause in the settlement agreement, but the reasons do not.  She would be free to explain her reasons for settling.

Other things associated with the mediation would also not be confidential.  Anything that was in existence before the mediation, such as the sex tape would not be confidential.  Any comments that Ms. Prejean made before the mediation would also not be confidential.  What was said in the mediation, however, would remain confidential. 

If, however, a document or piece of evidence was created solely for the mediation such as a compilation of her sex tape, then that might be considered confidential. 

Obviously, confidentiality differs with each state and the issues discussed are simply general discussions.  But contrary to Ms. Prejean’s view, not everything arising from mediation is confidential. 

What are your thoughts about Ms. Prejean’s comments or about confidentiality?

From the Mediation Matters Blog of Steve Mehta.

       On Saturday, November 7, 2009, Dr. Daniel Druckman, Professor of Public and International Affairs at George Mason University in Fairfax, Virginia delivered the 5th Annual L. Randolph Lowry Lecture at Southern California Mediation Association’s 21st Annual Conference.
 

      His lecture was taken from his article Intuition or Counter-Intuition? The Science behind the Art of Negotiation published in the October 2009 issue of the Negotiation Journal (at pp. 431-448). In the limited amount of available time, Dr. Druckman  highlighted the metaphors for negotiation and some counter-intuitive findings regarding negotiation.
 

      First, negotiation can take many forms and is used in varied contexts, be it from our own daily lives, domestically, regionally, internationally, or even globally.
 

      To best describe the different forms of negotiation, Dr. Druckman uses metaphors. For example, some negotiators see negotiation  as a game, while others view it as a discourse.  Still, others,  see negotiation as a tool for managing organizations. (p. 433.)
 

      Some view negotiation as a puzzle to be solved with the familiar example being the ‘prisoner’s dilemma”. Others view negotiation as a bargaining contest such as occurs in haggling in the market place (p. 433).
 In addition, negotiation can be viewed as diplomacy politics in which “negotiation is viewed as a microcosm of the larger game of international politics” (p. 434).
 

      In short, there is not just one facet to negotiation: it has many faces, and how it is used depends heavily on the context in which it is used: the market place, within organizations, between states, between countries, or globally.
 

      Of equal interest are Dr. Druckman’s counter-intuitive findings. Each challenges “. . . the  popular wisdom and illuminate[s] the complexity of negotiating behavior”.(p. 437).

      The first involves the notion, to negotiate or not to negotiate: “A continuous negotiation process can increase the chances of getting a settlement.  It can also serve to perpetuate impasse” (p.437). Thus, it is important to know when to negotiate and when to stop. According to research, negotiations should continue as long as” momentum is building towards an agreement” but should stop” if new incompatibilities are discovered” which will serve only to heighten the conflict. (p. 437.)

       At the same time, “impasse can turn a frozen negotiation around.” It is often a “wake-up call” to negotiators to perhaps take a “time out” to reframe issues or develop new procedures that can lead to progress. (p. 437)

       A second counter-intuitive finding is that some times, “developing negotiating alternatives can have negative effects that outweigh the “good” agreement” (p. 438). That is, generating too many alternatives may produce a less than ideal agreement. Thus, determining the best alternatives to a negotiated agreement  or BATNA may actually be detrimental.

       A third counter-intuitive finding is that “exchanging too much information during negotiation can have the unforeseen consequences of revealing new incompatibilities that can escalate” rather than resolve, the dispute (p. 438).

       Similarly,  “too much flexibility in concession making may have negative implications for group loyalty” (p. 438).  According to Dr. Druckman, research has revealed that “quick concessions, even if mutual, often lead to suboptimal agreements.” Dr. Druckman calls this the “Winner’s Curse” (p. 438).

       The final counter-intuitive finding discussed involves emotional expressions:

      “. . . displays  of anger can be helpful when they reveal strongly felt values or interests and are directed at the task rather than at the other person(s). Strong expressions can serve to define or anchor a bargaining range if they are regarded as authentic signals rather than as distracting “noise” (p. 438).

       Similarly, firm stances can be effective, as well:” Standing firm on principles early in a negotiation but showing flexibility on positions later can elicit more concessions. . . ” (p. 438). (Or, similarly,  as my mediation trainers have often said: “be firm in the position but soft on the people.”)
 

       Dr. Druckman’s  brief discussion of the different metaphors for negotiation and the findings on counter-intuitive negotiation tactics gave me a lot to think about and to incorporate into my mediation practice.

       I hope that they provide food for thought for you as well!

       . . . Just something to think about!

From the Blog of Phyllis G. Pollack.

From Jan Schau's blog.

Despite my share of disappointments with the latest “revolutionary” computer technology, I’ve become quite optimistic about online video meetings. In contrast to promotions about the potential of “game-changing” breakthroughs, the newly available services look not just promising but extremely useful right now.

The previous post in this series discussed the capabilities of web conferencing, built around the technology of screen-sharing and conventional telephone communication. In the past, that type of web-based application was sharply distinguished from video conferencing, which delivered only the streaming video of the meeting participants. Increasingly, though, these two technologies are becoming a single integrated real-time experience as they add one another’s best features.

For example, the screenshot above shows a web conference presentation on Vivu, one of the newest and most innovative services. The concept of its interface is to create the equivalent of a training room or conference hall. In addition to the prominent image of the discussion leader, all the other participants appear in small inset images. As the host permits an individual to speak, that person’s image enlarges and appears side by side with that of the presenter or trainer. Though not shown in this shot, the presentation desktop screen can be displayed at the same time.

ViVu also enables small group meetings, as do the other services. This would make it possible to shift back and forth from large group plenaries to breakout sessions, as called for in Open Space Technology and other face-to-face conference designs.

For an example of straight video conferencing, here’s a brief demonstration of the Vidyo technology, one of the most advanced I’ve yet seen for desktop participation. Setting aside the obviously promotional script, the quality of live interaction is extraordinary for its smooth shifting from one speaker to another and excellent voice synchronization. (Since this is a recorded video, however, that quality is somewhat degraded from what you would see in the video stream of a real-time meeting.)

Unlike the other services described in this post, Vidyo is not an application the general public can sign up for online. It requires specialized equipment installed within an organization’s system. However, the company has recently introduced an express version of the hardware, consisting of a single unit, that is well within the reach of smaller organizations.

ooVoo is an online service that offers video meetings with up to six participants. ooVoo provides screen-sharing only with its business plan and is most valuable for the high quality of the interactive video discussion.

As shown here, the well-designed interface is one that I find inviting and easy to use. That’s an important consideration for participants coming online in video for the first time.

SightSpeed allows nine participants in online video meetings and also includes file sharing. It offers a long list of VOIP calling features, including text messaging, as well as an email system for notifying participants of upcoming meetings. Each session is recorded in full, and these files can be emailed to any participant, or anyone else, for later reference.

Among the services offering fully integrated video and web conferencing tools, MegaMeeting is one of the more established companies that primarily focuses on business users. Online meetings accommodate up to 16 on-screen participants, and the full range of screen-sharing capabilities are available.

Relatively low cost and ease of use for meeting participants are hallmarks of these web applications. Typically, an invited participant receives an email with a link and password to sign on. It’s no more difficult than calling in for a telephone conference.

All of the online services charge a monthly fee on a per-user basis and usually offer several plans with additional features at higher prices. Some also allow for per-meeting payment instead of monthly plans. As an example of affordability, ViVu charges $49 per month for unlimited meetings.

I’m encouraged by the rapid development and declining cost of online video technology. Currently available services seem especially well suited for interactive training and group presentations. They can also handle many types of meetings that support multi-stakeholder consensus building processes, such as technical team collaboration, agenda planning and stakeholder caucus sessions.

While I can’t imagine any form of online video meeting that could capture the complex interactions of a large and diverse negotiating group, the technology can play an important supporting role. It seems most appropriate for gatherings of professional groups, organizational staff and other communities of shared interests where joint planning, rather than conflict resolution, is the goal.

As the online services continue to advance in sophistication, lower the technical barriers for first users and reduce cost, their use in collaborative public policy work may well become quite common in the next few years.

From John Folk-Williams's blog Cross Collaborate

Thanks 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.  In separate caucus, the employee tells the mediator that he is working for a competitor.  The employee shares his concern that the revelation of his new employment could make him liable to his former employer for breach of the employee's non-compete obligation.  In a separate caucus with the CEO, the chief executive reveals that the  true reason for his failure to provide the contractually required advance warning of discharge was his fear that the discharged employee would learn of the CEO's on-going affair with his secretary, threatening the destruction of that valued relationship.  Back in joint session, the mediator adds "non-compete waiver" and "immediate departure" to the brainstorming white board.  The litigation promptly settles.

These are the party "interests" we're always talking about  -- one -- the affair -- that is strictly "irrelevant" to the legal proceeding and one whose revelation (working for a competitor) could result in a counter-claim for breach of contract and fiduciary duty against the employee and a cross-action against his new employer for tortious interference with contract and prospective economic advantage, as well as potential causes of action against both of them for the theft of trade secrets. 

If the mediator urges the CEO to exchange a waiver of the non-compete clause for the continued secrecy of his affair, has the mediator crossed the line from neutrality to advocacy?  If and when the company learns the former employee was working for its competitor at the time the case was settled, will it attempt to rescind that agreement on the ground that it was procured by fraud (the concealment of facts material to the waiver)?  And what are the duties of the company-attorney?  Doesn't the affair create a conflict of interest between the company and the CEO?  Does the attorney have the duty to inform the Board of Directors that its Chief Executive is waiving a valuable right in order to keep a relationship that is surely toxic to the conduct of the company's business a secret?

And what of the reputation of the mediation process itself?  Is there something unsavory going on here - something that is both "outside the law" and outside the principled reason communications in mediation proceedings are protected by the law as confidential, i.e., to encourage party openness rather than to permit party deception?

These questions should interest everyone involved in the mediation process and should trouble the sleep of mediators everywhere.  Because our process is conducted in secret, it is prone to abuse unless we - its practitioners - guard against deception and continually ask ourselves whether our interventions are in keeping with our obligation to be impartial.

Here are questions that we should ask ourselves whenever something in the back of our mind or a corner of our heart is telling us we might be doing more harm than good.

• If I were permitted to, could I share my decision with everyone?
• Is it legal?
• How does the decision make me feel about myself?
• Who does this decision negatively impact?
• Why am I making this particular decision?
• Have I clearly defined the problem requiring a decision to be sure I'm addressing the correct issue?
• Does this decision serve the company or me personally?
• Is the decision based upon facts consistent with fair play?
• Is the decision consistent with organizational values and culture or my own personal system of ethics?
• Is the decision fair and balanced to those it impacts?

from Ethics:  the Conscience of Decision Making

From Settle It Now Negotiation Blog

I came across an interesting article about a 9 year old child and her mediation skills.  The latter part of it has a political discussion which you can choose to read or ignore based on your political views.  But the story about the child is fascinating.   We could all learn from her.  Here is a brief excerpt of that story…

My granddaughter Maya, an adorable 9-year-old, came back from her school wearing a T-shirt with the word “Mediator” on it.

She said she had been assigned to walk in the schoolyard during breaks and look for kids fighting with each other.

Then she would offer her mediation services.

Intrigued, I asked her to explain how it actually worked.

“First,” she said, “I sit down with them and listen to their complaints. This is pretty boring, because they keep telling you things that happened in the past, not necessarily related to the present problem. I want them to get to the point. But I found out that letting them whine is part of the solution.”

And then?

To read more, click here.

From the Mediation Matters Blog of Steve Mehta.

Chris’s firm was negotiating with a small European company to purchase an ingredient for a new health-care product. The two firms agreed on a price but became deadlocked over the question of exclusivity – the American firm did not want to invest in a product containing an ingredient to which its competitors would have access, and the European company refused to sell the ingredient exclusively to the American firm. The American firm, surprised by the stubborn refusal of their European counterparts to agree to an exclusive arrangement, offered more money and other incentives, but the European firm wouldn’t budge. Malhotra and Bazerman describe what happened next:

As a last resort the U.S. team called Chris and asked him to fly to Europe to join them.

When Chris arrived and took a seat at the bargaining table, the argument over exclusivity continued. After listening briefly to the two sides, he interjected one simple word that changed the outcome of the negotiation. With it, he was able to structure a deal that both firms found agreeable. The word was “why”.

Chris simply asked the supplier why he would not provide exclusivity to a major corporation that was offering to buy as much of the ingredient as he could produce. The supplier’s answer was unexpected: exclusivity would require him to violate an agreement with his cousin, who current purchased 250 pounds of the ingredient each year to make a locally sold product. With this information in hand, Chris proposed a solution that helped the two firms quickly wrap up an agreement: the supplier would provide exclusivity with the exception of a few hundred pounds annually for the supplier’s cousin…

Why didn’t the other U.S. negotiators ask this simple question? Because, based on their prior business experience, they assumed they already knew the answer…

Other factors, I suspect, may have been in play here, working against the U.S. negotiators. Etiquette and social pressures inhibit inquiry. From a young age we learn that “it’s not polite to ask questions”. As we grow older, we worry that asking questions will make us look stupid, singling us out for unwelcome notice by the group.

In defiance of these deep-rooted social and cultural taboos on question-asking, virtually every best-selling negotiation text urges negotiators to “get curious”. G. Richard Shell, author of Bargaining for Advantage, prescribes a process that he calls “Information-Based Bargaining”, which emphasizes the importance of question-asking and careful listening, lauding the “relentless curiosity” skilled negotiators bring to the table. Mediation trainers also encourage curiosity in their students, so that they can delve deep into the needs and motivations of parties locked in conflict. In their classic work, The Making of a Mediator: Developing Artistry in Practice, Bernard Mayer and Alison Taylor define such artistry as “a commitment to curiosity and exploration”.

If curiosity is so essential to effective negotiation and conflict resolution, can educators and trainers teach curiosity? That’s a question that Vanderbilt University Law School Professor Chris Guthrie considers and answers in “I’m Curious: Can We Teach Curiosity?” (PDF) (copyright 2009 DRI Press, Hamline University School of Law). Determined to go beyond the “glib references to the need for curiosity” in negotiation literature, Professor Guthrie offers a short primer on the scientific study of curiosity and proposes some curiosity-enhancing teaching strategies. He concludes with a link to an article that appeared in Psychology Today in September 2006, “Cultivating Curiosity“, by Elizabeth Svoboda, which recommends three tips on how to “flex your curiosity muscle“, whether you’re negotiating, mediating, or doing something else entirely.

Incidentally, Professor Guthrie’s article is one chapter in an outstanding volume on negotiation pedagogy, Rethinking Negotiation Teaching: Innovations for Context and Culture, a collective effort to rethink how negotiation is taught in the 21st century. Those curious to learn more about negotiation teaching can download Professor Guthrie’s chapter along with the others at the Hamline University School of Law web site.

From Mediation Channel

The Supreme Court of Texas held that an agreement to arbitrate discrimination claims between an employee and a staffing agency hired by the employer survives the dissolution of the contract between the staffing agency and employer.

In the present case, In re Polymerica, __S.W.3d __ (Tex. 2009) (No. 08-1064), Polymerica, L.L.C. d.b.a Global Enterprises, Inc. (“Global”), a manufacture of plastics, hired Angelica Soltero in 1998. In 2002, Global contracted with dmDickason Staff Leasing Company (”Dickason”) to manage the company’s human resources department.

Shortly thereafter, Soltero signed a Dispute Resolution Plan, which “appl[ies] to any disputes between dmDickason/Global Enterprises and any applicant for employment, employee or former employee, including legal claims such as discrimination, wrongful discharge or harassment.” The Plan calls for binding arbitration under the Federal Arbitration Act.

On December 31, 2005, Global ended its contract with Dickason and resumed the management of its human resources department. Global terminated Soltero five days later. Then, Soltero sued Global claiming wrongful termination based on her national origin as well as retaliation for reporting alleged sexual harassment.

The trial court denied Global’s motion to compel arbitration concluding that all of Soltero’s claims arose from the wrongful termination after the agreement between Global and Dickason had ended. Global appealed.

The Texas Supreme Court, distinguishing In re Neutral Posture, Inc., 135 S.W.3d 725, 730 (Tex. App.—Houston [1st Dist.] 2003, no pet.), stated that “[t]here is no such time limitation in the Dispute Resolution Plan, nor there is a condition that the Global and Dickason relationship must be in place for either to enforce the Plan.” The court concluded that Soltero’s promise to arbitrate includes her claims against Global and directed the trial court to compel arbitration.

From the Disputing Blog of Karl Bayer, Victoria VanBuren, and Holly Hayes.

Check 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.   If he asks for too little, the jury award will not be adequate.  Too much and the jury will be insulted.  The venue should and must be considered too.  In a place like Flagler county, jurors may feel a lawyer is asking for too much, whereas under the same facts in south Florida, another jury may easily feel at home with a large damage award.

Remembering that the advantage in negotiation is always to the party who makes the first reasonably aggressive first offer the decision about how much to ask the jury for should be similar to how large the initial demand in a mediation proceeding should be.  Too much and the mediator not only spends the next hour or so defusing hot tempers on the other side, you lose most if not all of the advantage of anchoring.  For a discussion of anchoring, click here, here and here.

From Settle It Now Negotiation Blog

Stephanie raises an interesting question that ADR practitioners no doubt will ask themselves more and more. Increasingly I myself look for ways to apply discoveries from neuroscience, cognitive psychology, and behavioral economics to my own work, whether assisting clients to resolve their disputes or teaching people how to negotiate or mediate.

From Mediation Channel

Prospective clients are checking up on you. They’re Googling your name and your business name. They’re scanning only the first one or two pages of results. If you’ve got a website, they’re visiting it and looking around. If you don’t, they’re relying on what others are writing or saying about you.

These are the questions they’re asking themselves as they rummage about on the ‘net:

• Does she know her stuff?
• Can I trust him to get it done right?
• Why should I hire her instead of the mediator down the street?
• How can he help my clients and/or me?
• What would working with her be like?
• Does he offer something that I believe is a compelling solution to my problem?

For many mediators, these are the answers you’re providing online and off:

• Images of suits at boardroom tables, the scales of justice, handshakes, doves.
• FAQs about mediation, with the same answers as many other mediator websites.
• A photo of yourself in front of your legal library’s bookshelves, perhaps with your attorney colleagues around you.
• A boardroom like all others.
• An introductory session like all others.
• Print materials that are professional but generally boring and indistinguishable from the ADR provider next door.

Collectively, these answers are ineffective in a world where “cookie cutter” just doesn’t cut it anymore.

Why Differentiation Matters

If you’re already established and bringing in all the clients you want, you’re not reading this article. You already had a toehold before competition got tough or you had such an entre into your market that you could be mediating from the moon and people would still seek you out. I’m not writing this for you.

I’m writing it for the other 95% of mediators out there.

To stand out to your prospective clients, you need to be remarkable, not average. You need to convey your fit with their specific needs, not be interchangeable with other commercial providers. You need to convey that your practice is vibrant and in demand, not boring or tired.

What does it take to stand out, to be remarkable, to be unique in what you do and/or how you do it?

Here are five actions you can take in the next 60 days to build a differentiated platform for your practice. Some are concrete actions, and some are reflective work. You’ll need to do both, because each feeds the other.

You’ll notice none of them involve building or re-building your website. That comes later because the outcomes of the exercises will guide website design, function and content.

1. Stop Running From Your Current Job

To market effectively, you need to be running toward your dream, not just away from your nightmare. Running from your present situation supplies only the desire to get away – to almost anything that will give you some relief. That’s not a great foundation for marketing, which benefits greatly from genuine passion.

When mediators tell me they want to build a private practice or prove the mettle of a mediation division within a firm, I always ask: Why ADR? With painful frequency the answer is some version of, I’m disillusioned/unhappy/tired of what I’m doing now.

I live for the days mediators say to me, I’m so excited about the potential that ADR offers that I can’t stand waiting another day for my market to see that too.

Action 1: Figure whether you’re running primarily away or toward. Be nakedly honest with yourself. If you’re running away, all is not lost. Your task is to get very clear on what you would love to run toward – paint a picture in detail, figuratively or literally. Maybe it is commercial ADR. Maybe it’s piloting commercial jets.

2. Take Off the Mask

Differentiation is, in no small part, about risk. The risk to be who you really are and show that face to your market. It’s the risk to set yourself apart in a remarkable way, instead of blending in with the crowd. And in the mediation world, it sure is a growing crowd.

When it comes time to write marketing copy, build or re-build your website, and put yourself in front of your market, you want no cognitive dissonance between who you really are and who they see, or between who they see and what your marketing says about you. You want consonance and differentiation, in tandem.

Action 2: Who are you, really? If you could relax and let your good quirks shine through, what would people see? If you took off the professional mask you think you have to wear and let your market see you in your glory, what would they see? When you’re most happy, who are you and how do you act?

3. Pick Up the Paintbrush

This is about getting very clear on your market. Your market is not everyone, even though everyone has disputes. Repeat after me: My market is not everyone. When you market to everyone, the old saying goes, you market to no one.

Your market is looking for glimpses of themselves in your marketing. They’ll look ‘til they find the person who’ll give it to them, or they’ll walk away and find another way to resolve their dispute.

Be the commercial mediator for the construction trade. Or NASCAR fans who own mid-sized businesses. Or tech startups in Silicon Valley. You can add more markets later if you wish, but understand this: Narrowing your market usually means more business, not less, because your reputation as the go-to person in that market creates word-of-mouth momentum.

Action 3: Paint a picture of the people in your market, using words or images. What do they do? Where do they live and/or work? What do they spend money on? How do they dress? Where do they hang out? What do they do in their spare time? What kinds of values do they hold deeply? What causes do they support? Do you like them as humans (please say yes or pick a different market – it’ll show)?

4. Write a Classified Ad

You’ve heard of the elevator pitch. This is like that but you get fewer words. Your market is busy, overwhelmed by information, and wants you to cut to the chase.

If you were to write a classified ad for your market, telling them who you’re seeking and conveying a few important tidbits about the real you, what would you write? Here’s an example to get you started:

Conflict makeover artist seeks high-achieving mediators who want to transform their reactions to conflict. Whiners need not apply; this is strictly for internal-locus-of-control ADR providers who want to boost their own and their clients’ success. Are you a conflict junkie or conflict doormat? Tammy will teach you how to transform your reactions in conflict and be the mediator you know you can be.

Action 4: You have 75 words max. Write the ad. It’s not about using it; it’s about the clarity you’ll get from the act of writing and limiting your verbiage.

5. Take Your Market to Lunch

Market research matters, and I suspect very few ADR providers actually do it. Market research helps you answer necessary questions like:

1. How many people are there in my chosen market?
2. Who is my competition and how do I stand apart from them?
3. How do they solve problems now?
4. Would my market buy what I’m selling? If not, why not, and how would that change the services I offer?

The Internet, the Yellow Pages, your local library, and your local Small Business Development Center (sponsored by the SBA) can help with the first two questions. But there’s no substitute for talking to people in your market if you want to answer the last two.

Those last are two of the most important answers you need. And the questions most of you will skip. Too much trouble? Afraid of the answers and the implications for your dream? Too vague about your target market to know how to find them? Too uncomfortable approaching them?

All legitimate fears and discomforts. But here’s the rub: If you don’t do your research, you’re building a business based on a hunch. That’s a pretty expensive hunch, and one that hasn’t paid handsomely for most mediators.

Action 5: Invite five people in your target market to lunch together. If you know your market really well, you’ll know the kind of place they’ll enjoy eating. The trade is this: They get a fabulous, fun, extended lunch with no obligations beyond that, and you get to be a sponge with lots of questions. Be sure you get answers to numbers 3 and 4 above. After the first lunch, rinse and repeat.

The Return on Your Investment

When I look at mediators who make it in the current business and ADR environment and those who don’t, the differentiation is clear.

• Those with clarity about their market shine.
• Those with clarity about what differentiates them are remarkable – and their markets notice, too.
• Those who set aside their fears and reach out to their market for the unvarnished truth learn what will work and not work. Then they translate that information into practice.
• Those who set a solid foundation by working through the hard questions have the best marketing materials, websites, and advertising.

If you take all five of the actions I’m recommending, you’ll spend eight hours over 60 days. That’s one hour per week. If you’re running toward your passion instead of away from your disillusionment, you can find that one hour and it will pay satisfying dividends.

This article was originally printed in the ACR Commercial Section Newsletter, September 2009.

From the Mediator Tech blog of Tammy Lenski.

While 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. 

In yet another 2-1 opinion on mediation confidentiality -- Cassel v. Superior Court -- California's Second District Court of Appeal grapples with hard facts that made bad law. 

In conversations between litigation counsel and its client, Cassel, held on the days immediately preceding mediation as well as on the day of the mediation itself, Cassel allegedly told his attorney - Wasserman - that he would be willing to accept something north of $1.25 million to settle the case.   On the day of the mediation, Cassel signed a settlement agreement providing for payment of $1.25 million.  Cassel thereafter sued his attorney for legal malpractice, alleging that Wasserman "forced him to sign the settlement agreement for $1.25 million, rather than the higher amount he had told Wasserman . . . was acceptable." (if you're interested in the 411 on mediation advocacy malpractice, see my recent post Yet Another Path to Attorney Malpractice in Mediation Proceedings:  Coerce Your Own Client)

Before trial of the malpractice action, Wasserman filed a motion in limine asking the trial court to preclude the introduction into evidence of any testimony concerning Cassel's [otherwise attorney-client privileged] communications about the sum he was willing to accept in settlement.  The trial court granted the motion, holding that these communications - undeniably conducted in preparation for the mediation - were protected by mediation confidentiality under both the plain language of Evidence Code section 1119 and the Supreme Court decisions interpreting it.

The majority on the appellate panel disagreed for the following reasons:

1.  Communications between a party to mediation and the attorney representing him in that mediation are not part of the mediation "process" if they are not communicated to either the mediator or the opposing party because California law defines mediation as a procedure in which "a neutral person . . . facilitate[s] communication between the disputants to assist them in reaching a mutually acceptable agreement.”
2. "For mediation purposes, a client and his attorney operate as a single participant."
3. Once the court collapses the attorney and client into a single "participant," there are no mediation communications among participants to protect, or, as the Court more formally stated:  they were not communications between 'disputants' and the 'mediator,' as required to come within the definition of a 'mediation' or 'mediation consultation' and, therefore, to qualify for protection under mediation confidentiality."
4. "the fact that Cassel or his attorneys may have discussed a specific dollar amount for settlement" did not necessarily make it a communication that, in the Wimsatt Court's words "are materially related to, and foster, the mediation," because "some of the communications were more related to the civil litigation process as a whole rather than to the mediation."
5. the most principled (but not necessarily correct) reason for the Court's holding: the attorney and its client were "not within the class of persons which mediation confidentiality was intended to protect from each other—the “disputants,” i.e., the litigants—in order to encourage candor in the mediation process." 
6. finally, the Court's holding:

With start of trial within two weeks, the meetings and accompanying communications between Cassel and Wasserman . . . were for trial strategy preparation, not just for mediation . . .   The crux of the communications was that Cassel wanted his Wasserman Comden attorneys to honor his wishes, but they resisted to the extent, according to Cassel, that they breached their duties to him as his counsel. Neither Cassel nor Wasserman Comden assert that the communications contained information which the opposing party (or its representatives) or the mediator provided during mediation or otherwise contained any information of anything said or done or any admission by a party made in the course of the mediation. For the foregoing reasons, we conclude that the communications solely between Cassel as a client and his lawyer, Wasserman Comden, do not constitute oral and written communications made “for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation” protected by section 1119, subdivisions (a) and (b) or communications by “participants” protected by section 1119, subdivision (c).

Huh??????  Because separate caucus mediation communications between attorney and client about the sum the client is willing to settle the case for are not communicated to the mediator or the opposing party during the mediation (especially if the attorney fails to communicate the client's expressed wishes?) they cannot be considered "communications made 'for the purpose of . . . a mediation consultation"??

This is perhaps the most convoluted reasoning of any appellate opinion in memory.  I'd prefer a decision that just came right out and said something along the lines of - sure the communication falls squarely within the language of the confidentiality statute, but we don't think it ought to apply where a client is suing his attorney for duress in the course of a mediation proceeding.  The Court is justifiably worried about saying that because the Supreme Court has repeatedly cautioned the lower courts not to make court-crafted exceptions to mediation confidentiality.  (See Simmons v. Ghaderi) 

Intellectual dishonesty never got any court anywhere near the goal of justice.  This might just have been the case that made the Supreme Court relent and say, "o.k., in this extremely narrow circumstance, we'll permit an exception to the statutory provision."  If the Supreme Court refused to budge, this case just might have persuaded the California legislature to make a few necessary exceptions to mediation confidentiality.  Now, unless the appellate court reconsiders and follows the wisdom of the dissenter, Californians won't be given the opportunity the common law creates to "course correct" the law-making process to meet the challenges of unintended legislative consequences.

As the dissent correctly observes:

In the end, the majority?s analysis of section 1119, subdivision (a), seems to be founded primarily on its concern that protecting private communications between a client and his or her lawyer under the rubric of mediation confidentiality may shield unscrupulous lawyers from well-founded malpractice actions without furthering the fundamental policies favoring mediation. That may well be true; but, respectfully, it is not our role to make that determination. Rather, it is for the Legislature to balance competing public policies and to create an exception to the statutory scheme governing mediation confidentiality where it finds it appropriate to do so.

For those more interested in Prejean than in mediation confidentiality, here's an analysis of the Prejean/King dust-up with the Prejean money quote:  "I don't see anywhere in the Bible where it says you shouldn't get breast implants."

And if you think mediation can't be as dramatic as courtroom "gotcha" moments, here's the proof that anything at all can and does happen in those "confidential" rooms:

It was reported by TMZ.com, who broke the story of the lawyers' gambit, that the lawsuit was settled within seconds of the sex tape being shown to Prejean. Just to make the episode even more embarrassing for the 22-year-old, her mother was also attending the meeting at which the tape was shown.

Description of the X-rated Perry Mason moment here.

Do remember that California law only precludes parties from:  (a) introducing confidential mediation communications into evidence; and, (b)  obtaining evidence of those communications in discovery.  Although sub-section (c) of section 1119 broadly provides that  mediation communications "shall remain confidential," no one to date has suggested that disclosure of those communications gives rise to a cause of action in favor of any party opposing their disclosure to the general public.   

After the jump, my colleague on the IP ADR Blog Mike Young of Alston Bird (Mike's Labor Law Blog here) gives the Cassel opinion a triple huh?????  Nice work, Mike!

From Settle It Now Negotiation Blog

       In my various mediation training classes, we have discussed the pros and cons of an apology; whether it should be given and if so, under what circumstances.

       From my own life experience, I know that apologies are important but I did not realize what a real difference they can make or how powerful they can be until today.
 

      Today, I mediated an emotionally difficult case. The plaintiff, of baby boomer age, rented an apartment in a secure building. The owner of the building employed a resident manager and handyman on the premises. According to plaintiff, although the handyman was often drunk at work, the manager did nothing about it and, in fact, often shared cocktails with him on her patio.
 

      One evening while plaintiff was walking to the apartment of one of her friends in the building, the handyman accosted her and began groping. Only with the assistance of one of her neighbors was plaintiff able to escape out of the corner into which the handyman had pinned her.

       This event traumatized plaintiff for which she sought counseling. While the counseling helped a great deal, it was obvious during the mediation that the emotional scars still existed.

       Prior to the mediation, I was inclined not  to hold a joint session. However, just prior to the start of mediation, I discussed this issue with defense counsel and the defendant’s representative. They stated that for purposes of the mediation, they were not contesting the events or otherwise taking issue in any way with what had occurred. I suggested a joint session so that they could make this acknowledgment directly to plaintiff.
 

      So with plaintiff and her counsel’s permission, we held a short joint session. We did not discuss the event itself but simply the parties’ perspectives on the matter.
 

      After plaintiff’s counsel finished, defense counsel spoke for a few moments noting that the issues were not being contested for purposes of the mediation. Then the representative of the landlord spoke. The first words he said were directed to plaintiff: “I apologize for what happened to you.” He continued, and the reactions of both plaintiff and her counsel were visible: their hardened demeanors softened considerably. Someone had not only acknowledged that the event had happened but had apologized for it.
 

      With this acknowledgement, the sole issue remaining was the amount of damages. After several rounds of negotiation, the parties agreed on a sum, and drafted and signed a settlement agreement. It was over. It did not take very long at all to resolve this matter.
 

      Afterward, plaintiff’s counsel told me that when she and her client walked in to the mediation, they had planned to take a hard line, ask for a large sum of money and not negotiate much below their initial demand. But, then, the landlord’s representative apologized. That apology changed everything. Up until the mediation, no one from the landlord, not even the resident manager (who was well aware of the event at the time it occurred) had acknowledged to her that the event had even occurred much less asked her if she was okay. Rather, the resident manager ignored the whole thing as if it had never occurred. The apology was the first  acknowledgment  that something bad, indeed, had happened to plaintiff which should never have happened. It thus became the most important part of the mediation. Because of that apology, plaintiff was willing to settle and in fact, settled for a much smaller sum of money than she had in mind when she walked into the mediation.
 

      An apology: it can be quite powerful!  

      Perhaps this is why, within recent years, thirty five (35) states and the District of Columbia have enacted statutes excluding expressions of sympathy after accidents as proof of liability while five (5) states have passed statutes requiring mandatory notification of adverse events to patients. These statutes were enacted mainly with medical malpractice in mind:  to assist the medical  community in its efforts to deter or reduce litigation and the amounts paid in settlement by being able to express sympathy without such expressions being considered admissions of liability. These statutes allow the medical professional to be human without exacting a large price for showing that humanity.

       As Patricia  A. Bronte explains in her article entitled ‘Reviving The Lost Art of Apology” published by the Section of Litigation of the American Bar Association:
        

        “Although the apology statutes were enacted within a relatively short    period, there are significant differences among them. All of them provide evidentiary protection for simple apologies (“I’m sorry you were hurt”); unfortunately, one study has shown this type of apology to be the least effective, and possibly counterproductive, in reducing litigation and settlement amounts. Five states have apology statutes that also protect partial apologies (“I made a mistake and I’m sorry”), but only Arizona’s statute explicitly protects full apologies (“I’m sorry, it was my fault you were hurt”). Statutes in 13 states clearly protect simple apologies and may also cover broader apologies.  “
 

      One example is the California statute.  California Evidence Code Section 1160 (california-evidence-code-section-1160) provides, in part,  that “…portion of statements, writings, or benevolent gestures expressing sympathy  or a general sense of benevolence relating to the pain, suffering or death of a person involved in an accident ….shall be inadmissible… A statement of fault , however…. shall not  be inadmissible….” 
 

      So, apologies are powerful and can go a long way to avoiding  litigation altogether or greatly reducing  the settlements often exacted to conclude it.  

       The next time are in a dispute, rather than letting it get out of hand,  think about simply saying” I apologize.”
 
       . . .Just  something to think about.

From the Blog of Phyllis G. Pollack.

I'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").

In addition to encouraging parties to ask diagnostic questions to ascertain the preferences, interests, needs and fears of their bargaining partners, I also encourage story-telling as a means to slip under the barricade of reactive devaluation, avoid the roadblocks created by the clustering illusion, overcome confirmation bias, and generally clear the air of the many other cognitive biases that keep us from entering into the best business deal possible under the circumstances.  

Why stories?  In a recent post on the importance of stories to effectively market one's work (here, one's blog) Problogger provided just a few of the  ways in which story-telling improves communication (these will also help with the jury, of course):

• Stories engage the imagination of readers
• Stories go beyond facts and theories
• Stories reveal something about yourself as a blogger (they’re personal)
• Stories trigger emotions and the senses
• Stories are conversational - they stimulate others to react and tell their stories
• Stories provide hooks for readers to latch onto in your blogging (they’re relatable)
• Stories grab and hold the attention of readers
• Stories are memorable – while people don’t always latch onto facts and figures – a good story can be remembered for years
• Stories illustrate your points in ways that can be much more convincing (and convicting) than other types of information

I was talking to a friend recently about ways in which to talk about a difficult subject with a friend whose opinions radically diverged from his own.

"Share your experience," I said.  "Tell your story rather than expressing your opinion.  An opinion is assailable. Your personal experience - the reasons why you feel the way you do about, say, gay marriage, abortion rights or any other "hot topic" issues - is unassailable.  It will also create a bridge of understanding between you, encouraging your friend to share his experiences that lead him to disagree so fundamentally with you.  You will inevitably find parts of your life-experience that are similar, sometimes even the same.  Focus on those similarities in experience rather than differences in opinion and you will find yourself and your friend happily agreeing to disagree on positions, theories and beliefs, in favor of a new and potentially trusting relationship."

If that is Kumbaya, so be it.  I must say, however, that it is also international diplomacy.  War, after all, is both easy and lucrative.  Peace, on the other hand, is difficult and underrated, even scorned. Choose wisely.  Our own future and that of our children and our children's children depend upon it.

From Settle It Now Negotiation Blog

As a mediator, it is my job to be right in the middle of conflict.  Indeed, often as a mediator, we have to listen to things that the other side may not be willing to listen and then communicate that message to the other side in a way that does not turn off the other side yet communicates the message.  It makes me think that conflict is a normal part of life.  We all have conflict, and many people are afraid of conflict.  Rather than thinking that conflict is a bad thing, perhaps we can consider using it as a good thing:  An opportunity to communicate and clarify in a relationship.  As such, I have put together some suggestions when a conflict starts.  Hopefully, you will find them interesting…

1.  Calm Down.  Take deep breaths.  While breathing, think of a good things in your life.  Doing this will help you from feeling overwhelmed by the conflict and will enable you to think clearly.

2. How important is this person? Most people regret what they say most to their most loved ones.  Remember at the end of the day and the end of the conflict, you still have to be friends, co-workers, spouses, or family.  Focus on the fact that you are cleaning up your communication issues and the positive nature of that conflict.

3.  What are your needs? Don’t  get distracted from your own best goals/needs by the conflict.  More often the conflict is a temporary distraction rather than something that helps you achieve your goals. Think about  long-term interests are in the situation, and rank them by priority, so that you stay focused on negotiating the issues that really matter to you.

4.  Will This Issue Matter in a Year? Choose your battles wisely.  Will it matter and why?  Most times, the answer is no.  This can help guide you to determine if this is a battle worth fighting.

5. Consider the Other Person as an Ally.  Just changing your view of the other person in conflict can help you manage your emotions and the conflict itself.  Further, it allows you to focus the conflict on cooperative efforts rather than opposing efforts.

6. Begin by listening to the other person and affirming anything that you can agree on. Look carefully for any and all the areas where your interests and needs might overlap with their interests and needs. Verbally identify those commonalities.  Address prior agreements or successes with that person. R Then work to expand the areas of agreement.

7. Acknowledge and apologize for any mistakes. Many people refuse to apologize.  Don’t be afraid to do so.  Also, unequivocally apologize without any mitigators.  In other words, no “Sorry, but…”

8. Summarize the other person’s needs, feelings First. When people feel heard, they are more likely to listen. Summarize to let people know that you have understood them, not to argue with their view.

9.  Focus On Principled Solutions, Not Positions. For example, if you can’t agree on a price for something, see if you can agree on a fair rule to set the price. If you can’t agree on a fair rule, focus on finding a referee who could help you and your partner-in-conflict define a fair rule.

10. Ask For Specific Actionable Items.  Rather than focusing on overall feelings or attitudes, focus on things that can be done specifically.   Answer the Who, What, When, Where, and especially Why about your request.  Explain how the actions will help you and if possible, the other person.

From the Mediation Matters Blog of Steve Mehta.

I often find myself wishing I lived in California, if only to be able to regularly attend the magnificent events the Southern California Mediation Association plans and presents each year. These programs showcase the talents and intellectual achievements of some of the greatest thinkers and leaders that the field of conflict resolution can boast.

This past weekend attendees of SCMA’s annual conference fell under the spell of the magisterial Kenneth Cloke, who spoke eloquently about “conflict revolution” and the role that mediators can play in effecting global change. Victoria Pynchon has kindly posted Cloke’s PowerPoint presentation on her negotiation and ADR blog, Settle It Now.

Reading his presentation, I was moved by the power of Cloke’s words. If you read them, too, no doubt like me you will shake your head with weary recognition as you ponder the elements of demonization, mechanisms of moral disengagement, and the early warning signs of fascism. Alternatively, you will nod with approval as you read about the proposals for change that Cloke lays out – the 12 conflict resolution methodologies, the Mediators Without Borders 12-step program to address conflict systematically, and the personal choices in social change.

But I am also left uneasy, troubled by questions that have haunted me for many months. And I raise these questions now, not in disrespect or to impugn the message that Cloke delivered to mediators this past weekend.

There is no doubt that our inspiring leaders and, yes, our foot soldiers, too, command prodigious skills in negotiation and persuasion.  Why then do negotiation and conflict resolution remain in such disrepute here in the U.S.? Why, despite the Ivy League credentials and access to the corridors of power that the best and brightest among us enjoy, have we failed to influence political discourse on American soil?  We remain mired in incivility, fallacy, and fear, as daunting problems confound and oppress us, whether health care, climate change, unemployment, or threats to national security.

Negotiate with terrorists? Okay. But first we’d better figure out fast how we can talk with our opponents here at home.

From Mediation Channel

The present case comes as the U.S. Congress considers the Fairness in Nursing Home Arbitration Act of 2009. This Act would render pre-dispute arbitration clauses in nursing home contracts unenforceable (Senate version: S.512 and Status; House version: H.R. 1237 and Status).

In Koricic v. Beverly Enters., 278 Neb. 713 (No. S-08-1167), Frank Koricic took his elderly mother, Manda Baker, to Beverly Hallmark (now operating as Beverly Enterprises), a nursing home in Omaha, Nebraska. In 2005, upon her admission into the facility, Koricic signed several documents for his mother, including an optional arbitration agreement.

Baker died in 2007, she allegedly sustained injuries and pain and suffering because of Beverly Hallmark’s negligence. Koricic sued Beverly claiming negligence, breach of contract, and breach of fiduciary duty. Beverly moved to compel arbitration of the claims. The district court concluded that the arbitration agreement was enforceable against Baker’s estate because Koricic had actual authority to sign the arbitration agreement. Koricic now appeals.

The Nebraska Supreme Court stated that whether an agency relationship exits and the scope of that authority are questions of fact. The court found that Baker was an immigrant from Croatia and had limited ability to read, speak, or understand English. Koricic often had to explain the documents to her, but he only took action upon Baker’s direction. Also, Baker was never declared incompetent nor granted Koricic power of attorney over her affairs. When Baker was admitted into the nursing home, Koricic signed the paperwork at an office, outside of Baker’s presence and Koricic never discussed the content of the admission papers with her.

The court discussed agency law principles (actual and apparent authority) and stated that “nothing in the record suggests that a reasonable person should have expected an arbitration agreement to be included with admission documents for a nursing home.”

The court held that Koricic did not have the authority to enter into an arbitration agreement on behalf of his mother because it was not a condition of admission. Accordingly, it remanded the case for further proceedings.

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From the Disputing Blog of Karl Bayer, Victoria VanBuren, and Holly Hayes.

When a prospective client invites me to speak to their group about my work and how I may be of assistance, one of the first logistical questions I’m asked is whether or not I want an LCD projector.

There are times I do use PowerPoint, but I’m judicious about it and always keep Garr Reynolds’ wisdom in my mind. And the following tongue-in-cheek wisdom, too. It’s an oldie but goodie. Enjoy the chuckle!

[Can't view the embedded video in your email? Click here to view it online.]

Mediator Tech blog of Tammy Lenski.

From Jan Schau's blog.